Kulat & Azzarudin
[2018] FamCAFC 97
•24 May 2018
FAMILY COURT OF AUSTRALIA
| KULAT & AZZARUDIN | [2018] FamCAFC 97 |
| FAMILY LAW – APPEAL – PARENTING – where the appellant contended the trial judge erred in the exercise of her discretion and provided inadequate reasons concerning application of the rule in Rice and Asplund (1979) FLC 90-725 – where no application was made by the appellant to have the rule in Rice and Asplund dealt with as a preliminary issue – where the rule was considered after a family report was undertaken and at the end of a trial – where previous final parenting orders made in 2012 provided for a change in the child’s primary care arrangements and for the child to relocate to Country C in 2018 to commence secondary school – where the child expressed views to the single expert report writer contrary to the terms of the 2012 orders – where the child’s intelligence and level of maturity was “impressive” – where the operative terms of the 2012 orders carried profound changes for the child – where ample evidence existed of circumstances requiring reconsideration of the 2012 orders – where the reasons for judgment demonstrated that the trial judge had regard to far more than simply the parties’ inability to agree on time in disposing of the Rice and Asplund issue – where the trial judge properly exercised her discretion in assigning weight to the child’s views as one of the considerations taken into account pursuant to s 60CC of the Family Law Act 1975 (Cth) – where there is no merit in the appellant’s challenges – appeal dismissed – appellant to pay the respondent’s costs of the appeal fixed in the sum of $18,515.10 |
| Family Law Act 1975 (Cth) ss 60CC, 65DAA, 117 Family Law Rules 2004 (Cth) r 15.45 |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Morton & Berry (2014) FLC 93-613; [2014] FamCAFC 208 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 SPS and PLS (2008) FLC 93-363; [2008] FamCAFC 16 U v U (2002) 211 CLR 238; [2002] HCA 36 Zabaneh and Zabaneh (1986) FLC 91-766; [1986] FamCA 18 |
| APPELLANT: | Mr Kulat |
| RESPONDENT: | Ms Azzarudin |
| FILE NUMBER: | BRC | 1132 | of | 2012 |
| APPEAL NUMBER: | NOA | 2 | of | 2018 |
| DATE DELIVERED: | 24 May 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Strickland, Kent & Forrest JJ |
| HEARING DATE: | 16 May 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 December 2017 |
| LOWER COURT MNC: | [2017] FamCA 1105 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Anderson |
| SOLICITOR FOR THE APPELLANT: | Steven Watkinson Solicitors |
| COUNSEL FOR THE RESPONDENT: | Ms Horsley |
| SOLICITOR FOR THE RESPONDENT: | Barry.Nilsson. Lawyers |
Orders
The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal proceedings in the fixed sum of $18,515.10 within thirty (30) days.
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 Kulat & Azzarudin 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 BRISBANE |
Appeal Number: NOA 2 of 2018
File Number: BRC 1132 of 2012
| Mr Kulat |
Appellant
And
| Ms Azzarudin |
Respondent
REASONS FOR JUDGMENT
Mr Kulat (“the father”) and Ms Azzarudin (“the mother”) have one child, namely, B who was born in February 2006 and is currently 12 years of age.
On 1 May 2012, when B was six years of age, the parties entered into final parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) by consent (“the 2012 orders”). In summary, those orders provided for the child to continue living with the mother in Australia (where the family had been living since 2010 prior to the parental separation in June 2011) until not later than December 2017, at which time the mother and the child were to return to reside in Country C with the child thereafter living with the father so as to allow the child to commence attending high school in Country C from January 2018. There were no specific provisions as to the time the child would spend with his mother after his relocation to Country C in the event the parties could not agree.
As at the time of the making of the 2012 orders, the father intended to live mainly in Country C whilst the mother intended to continue living with the child in her care in Australia.
On 5 September 2017 the mother commenced parenting proceedings in the Family Court of Australia seeking to vary the 2012 orders such that, in summary, provision would be made for the child to remain living with the mother in Australia and to attend his secondary education, commencing in 2018, in Australia.
At an interim hearing of those proceedings on 16 October 2017 before Carew J, the parties entered into consent orders including an order that Ms L be appointed as a single expert witness for the purposes of preparing a family report pursuant to r 15.45 of the Family Law Rules 2004 (Cth). The proceedings were listed for a final trial to occur on 21 December 2017.
On 22 December 2017, following that trial, Carew J made parenting orders the effect of which was to allow B to continue to reside with his mother in Australia and to attend secondary school here.
The father appeals from the orders made on 22 December 2017. The mother opposes the appeal.
Father’s challenges on appeal
By his Summary of Argument the father abandoned the last of his eight stated grounds of appeal as contained in his Notice of Appeal filed on 4 January 2018.
The father’s remaining grounds embrace the following challenges, in summary and paraphrased form:
a)The trial judge erred in failing to apply the “‘rule’ in Rice v Asplund” so that no variation of the 2012 orders ought to have been effected, and her Honour’s reasons are inadequate to explain the non-application of that rule with that result (Grounds 1 and 2);
b)The trial judge made the following errors in dealing with the expressed views of the child B:
·giving excessive weight to the views expressed by B (Ground 3);
·failing to consider the mother’s influence on the views formed and expressed by B about the quality of education at the Country C school the father proposed he attend (Ground 5);
c)The trial judge failed to give adequate weight to objective evidence of the quality of education at that Country C school (Ground 4);
d)The trial judge failed to give effect to findings that B spending substantial and significant time with each of his parents would be in B’s best interests (Ground 6).
Whilst Ground 7 of the Notice of Appeal asserts “[t]he learned trial judge’s decision is ‘plainly wrong’” that assertion is not accompanied by any particulars in the father’s Notice of Appeal nor is this ground addressed discretely from other grounds in the father’s Summary of Argument. It is therefore unnecessary to burden these reasons with any discussion of this ground, discrete from the discussion of the discernible challenges identified.
Grounds 1 and 2 – Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”)
No issue is taken by the father with the fact that the trial judge correctly identified (at [19] to [21]) the relevant principles espoused in Rice and Asplund, nor with the more limited scope for their operation when applied, as in this case, after a full hearing has occurred, rather than at a preliminary stage, a matter also correctly identified by the trial judge (at [21] and [57]).
No application was ever made by the father to have the rule in Rice and Asplund dealt with as a preliminary issue before any substantive reconsideration of the 2012 orders occurred. That may be explicable by the fact that the father himself also sought orders before the trial judge by way of variation of the 2012 orders (see Transcript, 21 December 2017, p 5 ln 1 – 20 and Exhibit 3) but whether or not that be the explanation, the fact is a full trial occurred.
Not only was there no application by the father to have any Rice and Asplund issue determined at a preliminary stage in advance of a trial proceeding, but, as already referred to, both parties consented on 16 October 2017 to an order for a single expert to undertake a family report involving the child B in the interview processes for the purposes of that report. Those interviews occurred in advance of the trial. As can be seen in the oft-cited case of SPS and PLS (2008) FLC 93-363 (“SPS and PLS”), Warnick J, sitting as a single judge exercising appellate jurisdiction, identified the fact of children being involved in family reporting for the purpose of the proceedings as an important factor in limiting the scope of operation of the rule.
Indeed there is authority for the proposition that where a full trial proceeds, without consideration of any Rice and Asplund issue at a preliminary stage, there may in the end result be no scope for operation of the rule. In Bennett and Bennett (1991) FLC 92-191 (“Bennett”) the Full Court considered a case where, unlike here, a party had maintained a position throughout the hearing that the trial judge should deal with the Rice and Asplund principle as a threshold question. The Full Court noted as to that (at pp 78,262 – 78,263):
… [i]t is, we think, a matter of discretion as to whether a Judge embarks upon a full hearing of a matter or determines the threshold question as to a change in circumstances. This is in no way to derogate from the general principle expressed by the Full Court in Rice and Asplund (1979) FLC 90-725, and in Zabaneh and Zabaneh (1986) FLC 91-766, that fresh applications for custody should not be entertained unless there exists a substantial change in circumstances. In some cases, however, and her Honour apparently considered that this was one of them, it is not easy to determine the threshold question without going into the merits of the matter. Obviously, if this is done, and as a result of taking such a course, the trial Judge comes to the conclusion, as her Honour did, that a change of custody is warranted in the interests of the child, then it would be unthinkable not to give effect to such a conclusion upon the basis that no change in circumstances had been shown.
…
… [i]t seems to be almost impossible to argue that if a trial Judge has concluded that, in the interests of a child, there should be a change in custody, such a decision should be set aside upon the basis that there has been no sufficient change of circumstances.
In referring to those observations of the Full Court in Bennett, Warnick J in SPS and PLS observed as follows:
71.This statement seems equivalent to saying that the rule in Rice and Asplund need not be applied.
72.I would put the position a little differently. While I have said that the rule needs to be re-formulated if applied at the end of a hearing, and may also carry less force, I do not think that the rule in Rice and Asplund should be cast aside at the end of a hearing to change a previous order, even if the trial Judge has come to the conclusion that on all considerations other than the rule, the best interests of the child require change.
73.There are two matters of public policy that support the application of the threshold question even at the end of a hearing. Namely, that it is important for one judge not simply to substitute his or her conclusion for another judge, unless there has been a change of circumstance sufficient to justify that course. Secondly, albeit the particular litigation has run, if no such rule is even considered, in a general sense litigation will not be discouraged.
(Emphasis as per original)
Obviously enough, the first of the two matters of public policy referred to by Warnick J has no application in this case as this is not a case in which one judge can be seen to be simply substituting his or her conclusion for that of another judge. This consideration obviously has a temporal connection to the amount of time that has passed since the original order was made. Here, as will be further discussed, very substantial time elapsed between the 2012 orders and the reconsideration undertaken by the trial judge.
As to the second of the matters of public policy identified by Warnick J, relevant to this case the 2012 orders were consent orders and not the product of any substantial litigation. Again, it bears repeating that substantial time elapsed between the making of the 2012 orders and the trial of these proceedings and there had been no litigation on foot in that substantial period. It is difficult to see how any public policy consideration is to be met in the circumstances of this case.
The trial judge was, with respect to her Honour, entirely correct in determining (at [57]) that these public policy considerations had no application in this case.
In our judgment, for the reasons already discussed, it can be concluded that either the rule in Rice and Asplund had no scope for application in the circumstances of this case or, alternatively, if it remained to be applied at all, the scope for its operation was significantly curtailed by the circumstances of the case referred to.
More fundamentally, and even if these conclusions be incorrect, we find the contentions of the father to the effect that there existed no sufficient change in circumstances since the 2012 orders to justify reconsideration of the parenting issues, to defy reason.
That is because, first, there was no issue at the time of making the 2012 orders that any views of then six year old B, whether expressed or not, could have any material bearing on determining his best interests given his young age and commensurate lack of maturity. In contrast, the views of a then almost 12 year old B, as expressed to the independent expert who assessed him as “intelligent” and “whose social and emotional maturity is impressive” (as evidenced by him being School Captain and Dux of his primary school) was a fundamentally important consideration in determining, as at December 2017, his best interests. Each of SPS and PLS and Morton & Berry (2014) FLC 93-613 are Full Court authorities supporting the proposition (one put from the bench to counsel for the father during argument of this appeal) that the views of a child who has matured since the making of the earlier orders may alone constitute a change in circumstance requiring reconsideration of those orders.
Put another way, as at the making of the 2012 orders on 1 May 2012, there existed no evidence even to suggest that B’s best interests may not be served by his moving to live in Country C, and to the primary care of his father, some five and a half years after the making of those orders. In contrast, evidence of B’s expressed views as articulated by him to the single expert, and that expert’s assessment of those views and the weight to be given to them, fundamentally challenged whether that relocation, and change in primary care arrangements for B, was in his best interests. That of itself was a profound change in the relevant circumstances existing as at the time of the 2012 orders.
Second, and allied to this, whilst effluxion of time, even considerable time, since the earlier order may not of itself be determinative, it is nevertheless plainly a relevant consideration (see Zabaneh and Zabaneh (1986) FLC 91-766). Here, as at 1 May 2012 the parents had separated in June 2011, and the child B had experienced only eight months of the parental post-separation period of living in his mother’s primary care, and he was then in early primary school. As at December 2017 B had lived in his mother’s primary care for a further five and a half years; had completed his primary school education with academic and social distinction; and had been living primarily in Australia since 2010, essentially the whole of the period of his cognitive development from a young child into early adolescence. The effluxion of that time, about five and a half years from when B was only aged six years, allied with all that it entailed in those respects, cannot be lightly dismissed by the notion that there had been no material change in circumstances since 1 May 2012.
Finally, it must be accepted that one rationale for the rule in Rice and Asplund, itself to be understood as a manifestation of the best interests principle, is that it is prima facie contrary to a child’s best interests for that child to be subjected to repeated changes in parenting arrangements. It is therefore of critical significance to note that in this case it was the operative terms of the 2012 orders that carried profound changes for this child. That is, upon those dormant parts of the 2012 orders becoming operative some five and a half years after the 2012 orders were made, not only were B’s care arrangements to fundamentally change from living primarily with his mother to living primarily with his father, but he was to live in a different country. It is counter-intuitive to logic and common sense that a rule, justifiable by preserving stability of circumstances for a child, in a child’s best interests, ought be applied so as to prevent reconsideration of orders which, five and a half years subsequent to their making, become operative to bring about profound changes to the child’s then entrenched living circumstances and parenting arrangements.
We are satisfied that in this case there existed ample evidence of circumstances requiring, in this child’s best interests, the reconsideration of the 2012 orders in the manner in which the trial judge undertook that reconsideration.
As to the challenge to the adequacy of the trial judge’s reasons, we would start by observing that so compelling was the case for reconsideration of the 2012 orders by reference to indisputable evidence to which we have referred, very little was required by way of explanation in the reasons to dispose of any Rice and Asplund issue at the conclusion of a trial. This is not by any means to characterise the reasons for judgment of the trial judge as having provided very little explanation. Rather, the point is made to emphasise the adequacy of her Honour’s reasons for judgment given even the outermost limits of the scope for operation of the rule in the circumstances of this case as referred to.
To characterise, as the father’s submissions seemingly seek to do, the trial judge’s finding at [56] that the parents’ inability to agree about the time B would spend with the mother if he relocated to Country C, as the sole change in circumstances identified by the trial judge, does the trial judge’s reasons a gross disservice. Having set out the principles espoused in Rice and Asplund at [19] to [21], her Honour’s application of those principles is set out, not only in [56] but in the discussion at [54] to [61] of the reasons. It is useful to quote the paragraphs we have referred to in full as follows:
19.While a parenting order is never final in the true sense of that word, as the provisions of Part VII of the Act themselves make clear and in particular s65D(2), there are restrictions placed on a party wishing to vary substantive parenting orders. The Court will need to be satisfied that there is a change of circumstances sufficient to warrant a
re-consideration of the order or that some matter of sufficient gravity was not disclosed at the first trial.
20.There has been some discussion over the years about whether the principles espoused in Rice & Asplund are properly called a ‘guiding principle’ or ‘binding rule’. However it might properly be described, it is fair to say that the ‘rule’ has been universally applied for well over thirty-five years.
21.Whether it is applied at a preliminary stage or after a full hearing the best interests of the child remains paramount and the Court is not relieved of its obligation to consider the relevant legislative provisions set out in Part VII. The stage of the proceedings at which the rule is applied is a matter within the discretion of the presiding judicial officer although its significance is likely to be greater when applied at a preliminary stage. An application of the rule is directed to the substantive order and does not prevent all variation to the primary order. When applied after a full hearing two particular public policy matters remain of some significance, firstly, to guard against one judicial officer simply substituting her or his view for that of the original judge and secondly, to have a rule that can be relied upon to discourage endless litigation even if applied in that particular case at the conclusion of the full hearing.
…
54.The parents agreed seven years ago that at the end of 2017 [the child] would return to live in [Country C] and live with his father. It is submitted on the father’s behalf that there has not been a change of circumstances sufficient to justify variation of the 2012 order.
55.It is fair to surmise that at the time the agreement was reached the parties must have considered that their circumstances were likely to change, as they have, and that [the child] would become settled in Australia, as he has, although the mother suggests that her agreement was a means to an end, namely, obtaining agreement to live in Australia with [the child], as she and the father had originally planned in 2010.
56.The 2012 order made provision for the mother’s time with [the child ] to be ‘as agreed’ and it is apparent that the parties do not agree about what time the mother would spend with [the child] if he is living in [Country C] with the father. The inability to reach agreement is a change in circumstances which would require a determination.
57.The application of the Rice & Asplund ‘rule’ is being applied in circumstances after a full hearing has occurred. The public policy reasons for applying the rule in such a situation viz to guard against one judicial officer simply substituting her or his view for that of the original judge and secondly, to have a rule that can be relied upon to discourage endless litigation do not apply in this case. The child’s best interests must remain paramount.
58.Since the 2012 order was made [the child] has become settled in Australia. His life is here. His friends are here. His interests are here. He wants to remain here and attend [D School] with a number of his friends.
59.On the mother’s proposal [the child] will continue the life he has known and enjoyed for the last seven years. He will also maintain a meaningful relationship with his father, brother and step-mother and other family members.
60.On the father’s proposal [the child] will be required to do something that he opposes. He has had the benefit of visiting [E School] in [Country C] and he acknowledged to [Ms L] that it is a good school (although he had some objections) and he acknowledged that his father made some good points about why he should return to [Country C].
61.Each parent has indicated that they place some importance on [the child’s] expressed wishes although the father now seeks to rationalise [the child’s] views, as expressed to [Ms L], saying that he is merely taking the easy option to stay with what he knows.
(Footnotes omitted)
As is reflected in the quoted paragraphs, the trial judge had regard to far more than simply the parties’ inability to agree on time in disposing of the limited scope of operation of any Rice and Asplund issue in this case. In Bennett the Full Court said that the path by which the result is reached must be discernible from reasons for judgment, either by implication or otherwise. When these reasons for judgment are read as a whole, particularly the paragraphs to which we have made specific reference, it is abundantly clear that by necessary implication the trial judge had regard to all of the circumstances to which her Honour referred as constituting a significant change in circumstances since the 2012 orders were made. Her Honour’s assessment was undoubtedly correct.
There is no merit in these grounds of appeal.
Grounds 3 and 5 – The challenges directed to the child’s expressed views
It is convenient to first deal with the challenge in Ground 5 that “[t]he learned trial judge failed to consider the submission that the views of the child had been formed by the mother providing the information about the quality of the education available at [E School]” (a reference to the school proposed by the father in Country C).
Leaving aside that the child had visited the school with his father when in Country C, the sole evidentiary basis for this contention, as identified in the father’s Summary of Argument, is by reference to paragraphs 53 to 55 of the mother’s affidavit filed on 20 November 2017. That is, it is contended on behalf of the father that reference to those paragraphs contains information mirroring or parallel to the views expressed by the child to the expert. However, comparison between what the mother deposes to in those paragraphs about the relevant school, and what the child related to the single expert about that school, as summarised at [39] of the reasons, demonstrates the opposite. That is, there is very little commonality between the two. As but one example, the child related to the expert, as an apparently important consideration for him, the lack of computer technology at the school and his belief that students did not use laptops to the extent with which he was familiar at his primary school. In comparison, the mother’s affidavit makes no reference to laptops or technology available at the school. Further, the child expressed his view that the sporting program at the school was very good and that the cricket coaching program at the school was possibly even better than at his proposed Brisbane school. That does not find any reference in the mother’s affidavit, nor is it consistent with the child being motivated to express only negative views about E School.
In short, the comparison directed by the father’s argument in support of this ground actually tends to corroborate, rather than challenge, the expert’s opinion, as apparently accepted by the trial judge (at [45] and [62]) that the child’s expressed views were not the product of overt influence of the mother.
In any event, [45] and [60] to [62] of the reasons dispel the notion that the trial judge failed to consider the question of any influence of the mother upon the child’s expressed views, including as to the subject school, as follows:
45.[Ms L] could not detect any overt influence by the mother on [the child’s] expressed views but acknowledged that it would not be surprising for him to be influenced to some degree by his mother’s attitudes given that he knew her preference was that he remain in Australia and she has been his primary carer for most of his life.
..
60.On the father’s proposal [the child] will be required to do something that he opposes. He has had the benefit of visiting [E School] in [Country C] and he acknowledged to [Ms L] that it is a good school (although he had some objections) and he acknowledged that his father made some good points about why he should return to [Country C].
61.Each parent has indicated that they place some importance on [the child’s] expressed wishes although the father now seeks to rationalise [the child’s] views, as expressed to [Ms L], saying that he is merely taking the easy option to stay with what he knows.
62.I consider it to be of some significance that [the child] attended the interviews with [Ms L] while in his father’s care and her assessment that [the child] was not influenced to any great extent by his mother’s preference. [Ms L] spent about an hour with [the child]. [Ms L] is a very experienced social worker and I am satisfied that her interview with [the child] has elicited his genuinely held views. I also accept her assessment of [the child] as a mature boy for his years and I note that her assessment accords with the views of his parents. [The child] understood the options and the consequences of each parent’s proposal.
These findings are obviously based upon the expert’s evidence, including the following references in the expert’s report:
135. When asked his mother’s view about his future arrangements, [the child] said that his mother has told him that it is up to him. He rejected the idea that he is influenced by his mother’s views, and said that he has not made that a consideration because he knows that his mother would be fine, whichever choice he makes.
…
167. [The child] insisted that his views about his future have been formed independently, although he is well aware that his parents both have strong and competing views on the issue. As a child, it is inevitable that his parent have some influence over him…
168. Although [the child] is aware that his mother would prefer him to continue his schooling in Australia, there is no indication that she has put any direct pressure on him to agree with her over this issue. Thus is not to say that [the child] might not be influenced by some of his mother’s attitudes as a result of their close relationship, however in my view, this relationship is secure enough to withstand a difference of opinion.
(Errors and omissions as per original)
It remains only to observe that when the single expert was cross-examined by counsel for the father at trial, her expressed opinion to the effect that none of the child’s views were the product of overt influence by the mother, was not the subject of any challenge; and it was not put to the mother during
cross-examination that she had provided, selectively or otherwise, information to the child likely to influence his view about the school.
Nothing to which we were directed in argument of the appeal established any evidentiary basis for the “submission” identified in this ground, nor any basis for the assertion that the trial judge failed to consider whether the child’s expressed views, either generally or in relation to the E School in Country C, were the product of the mother’s overt influence. We find no merit in Ground 5.
Ground 3 contains the contention that “[t]he learned trial judge gave excessive weight to the views of the child in determining what is in the child’s interests”.
This was a discretionary judgment by the trial judge in what her Honour characterised as “a finely balanced case” (at [68]). These features invite consideration of the following observations of Stephen J in Gronow v Gronow (1979) 144 CLR 513 at pages 517 and 519 – 520:
In this case the fine balance of competing circumstances not only made the decision facing the learned trial judge a difficult one. It should also have gone far to satisfy the Full Court that this was not an occasion upon which it was proper for an appellate court to disturb the outcome of a discretionary judgment, particularly when made after a most careful review at first instance of all relevant circumstances and made with that unique advantage which the primary judge alone possessed, that of seeing the parties and those associated with them and gaining at first hand some personal impression of their personalities. Where very evenly balanced competing claims are in question and where it is custody that is in issue this advantage must be of particular significance.
…
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight…
As to the nature of the discretion involved in the making of parenting orders, reference ought be made to the judgment of the plurality (McHugh, Gummow & Callinan JJ) in CDJ v VAJ (1998) 197 CLR 172 at [151] and [152]:
151.… Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
152.The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of the child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions…
Section 60CC(3)(a) of the Act mandated that the trial judge assess the views expressed by the child and any factors (such as the child’s maturity or level of understanding) “that the court thinks are relevant to the weight it should give to the child’s views”. As already noted, the trial judge had the expert’s opinion as to the detailed content of the child’s views and that expert’s assessment of his obvious level of maturity, intelligence and the like dictating that weight ought to be attached to his expressed views.
Notably, the child expressed views not only that he wished to remain living in Australia with his mother but views contrary to the prospect of him living in the primary care of his father.
The trial judge noted relevant aspects of the child’s personality and level of maturity in assessing the question of weight to be assigned to his views (for example at [8], [44] and [62]).
The single expert expressed the following opinion as to the weight to be placed on the child’s views:
163.There is no easy answer to the question of what option might be best for [the child], and in my view, the defining issue is really how much weight is placed on his views.
164.In my view, the Court should to give careful consideration to [the child’s] views, because he is an intelligent young person, who is almost 12 years of age, and whose social and emotional maturity is impressive. It is unlikely that [the child] would have been awarded both School Captain and Dux of [O Primary School] if this were not the case.
(Errors and omissions as per original) (Emphasis added)
These matters noted, it is plain that the trial judge did not take the approach of determining the parenting orders to be made based upon the sole consideration of the child’s views. Her Honour expressly disavowed that at [69] of the reasons. It bears emphasising what her Honour expressed as part of her “conclusion” commencing at [68] of the reasons as follows:
68.This is a finely balanced case. I am confident that whatever decision is made [the child] will be supported by each parent and will maintain a meaningful relationship with each parent.
69.On balance though I am persuaded that [the child] should remain in Australia. Each parent has deferred, to some extent at least, to [the child’s] wishes and he has made those plain to [Ms L] but his views are only one of the factors which ultimately cause me to find in favour of the mother’s proposal. [The child] is settled here and has achieved a level of excellence both academically and in his
extra-curricular activities. Relocation to [Country C] would involve many significant changes to [the child’s] currently settled and established life e.g. becoming fluent in a new language, adjusting to living in two new homes, leaving his long term friendships etc. [The child] presented to [Ms L] as somewhat anxious about relocating. He has a close and loving relationship with his father and sibling and step-mother and I find that those relationships will continue to be meaningful if he remains in Australia.
(Emphasis added)
Those observations follow the findings we have already referred to as appearing in [58] to [60] earlier quoted in full.
Review of the expert’s report containing in detail what the child related to that expert reflects that the child, rightly assessed as mature and intelligent, expressed undoubtedly well considered, thoughtful and comprehensive views, none of which can be characterised as being based upon irrelevant or peripheral matters. It is unsurprising that the expert was impressed with the quality of the child’s presentation of his views and it is equally unsurprising that the expert made the observations she did as to the weight that ought be afforded to the child’s views.
When the reasons for judgment are read as a whole we are well satisfied that the trial judge properly exercised her discretion in assigning weight to the child’s views as but one, albeit an important one, of the considerations to be taken into account pursuant to s 60CC of the Act in determining parenting orders in this child’s best interests.
We reject the contention that the trial judge erred in assigning excessive weight to the child’s views in reaching her determination. We therefore find no merit in Ground 3.
Ground 4 – Quality of education at E School
The father contends that the trial judge failed to consider the level of quality of education which could be provided by E School, his proposed Country C school.
An associated contention of the father is that the trial judge erred in failing to make a finding or consider the quality of education available at E School in comparison to D School. The trial judge does not reference specifically the quality of each school or a comparison of each school in her Honour’s reasons.
However, the mother contends, correctly when the transcript is reviewed, that there was no sufficient objective evidence as to each school for such a comparison or such a finding to be made. Importantly, the trial judge did not make a finding that the quality of education in Country C would be of a lesser standard than that available in Brisbane.
Counsel for the father acknowledged on the hearing of the appeal that there was no objective evidence led at trial to demonstrate any superiority of E School and counsel further acknowledged that the trial judge did not make a finding elevating the standard of Australian education as being superior to that in Country C.
There was no evidentiary basis in the case advanced before the trial judge to enable the trial judge to make any determination about superiority of education available in Australia as compared with Country C or vice versa. It follows that this ground of appeal is unsustainable.
Grounds 6 and 7 – Asserted failure of the trial judge to give effect to findings
It is contended by this ground that having made the findings her Honour made at [65], [66] and [67] the trial judge was bound to either order that the child attend school in Country C and spend significant and substantial time with each parent, or in the alternative, to dismiss the mother’s application.
The findings recorded in the identified paragraphs were as follows:
65.[The child] has lived primarily with his mother since 2010 and [Ms L] is of the view that he should continue to live primarily with the mother although she suggests that he spend nine days with the mother and five days with the father in each fortnight period if [the child] moves to [Country C] and then there be a review before there is any further change. Neither party has suggested an interim order, and of course an equal time or a nine/five arrangement would only be practicable if [the child] and his parents were living in [Country C].
66.I am not satisfied that equal time would be in [the child’s] best interests but I do consider that significant and substantial time would be in his best interests.
67.However, if [the child] lives in Australia it will not be reasonably practicable for there to be substantial and significant time of a kind envisaged by [Ms L].
In oral argument of the appeal, counsel for the father focused upon the trial judge’s finding at [66] that “significant and substantial time would be in [the child’s] best interests”. In summary, the father contends that despite finding that significant and substantial time with the father was in the child’s best interests (and could take place in Country C) the trial judge ultimately concluded that the child B should remain living in Australia where such an arrangement was not reasonably practicable. As a result, the father asserts that the trial judge’s determination was plainly wrong.
With respect, the argument of the father conflates two different and discrete matters the trial judge was obliged to consider pursuant to s 65DAA of the Act. It merges the distinction between a finding that it may be in a child’s best interests to spend substantial and significant time with a parent, on the one hand, and the requirements for the making of an order to that effect, on the other. That is the very point of emphasis in the High Court’s decision in MRR v GR (2010) 240 CLR 461.
That is, as her Honour was leaving undisturbed the order made in the 2012 orders for the parents to have equal shared parental responsibility for the child B, s 65DAA was triggered. Section 65DAA provides that if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must consider not only whether the child spending equal time or substantial and significant time, respectively, with each parent would be in the child’s best interests, but whether (by operation of subsection (2)(d)) an order for the child to spend equal time or substantial and significant time, respectively, with each of the parents is reasonably practicable. As observed by the High Court a finding of reasonable practicability is akin to a necessary finding as to a jurisdictional fact to enable such an order to be made.
In this case the mother acknowledged that if orders made required the child B to relocate to Country C then so too would the mother relocate. That explains her Honour’s reference in [65] to practicability in the context to both parents living in Country C. However, it was not the mother’s proposal that she relocate. Her proposal was that it was in the child’s best interests that he continue to reside with her in Australia. To elevate her acknowledgment to the status of a proposal, as the father’s submissions invite, would result in the error in approach criticised by the High Court in U v U (2002) 211 CLR 238.
There are a great many parenting cases where it can be said that a child spending substantial and significant time with each parent would be in the child’s best interests. However, in many of those cases the reasonable practicability of such an order is not established, and thus such an order cannot be made. This was such a case.
Here, after concluding that it was in the child’s best interests to spend significant and substantial time with the father, her Honour was obliged to consider s 65DAA(2)(d) as to whether such an order would be reasonably practicable. The trial judge ultimately determined that in his best interests the child should remain in Australia in the primary care of his mother, which meant that it was not reasonably practicable for an order to be made for the child to spend substantial and significant time with each parent within the meaning of the Act.
For these reasons, the contention that the orders made by the trial judge were inconsistent with the findings recorded at the identified paragraphs is misconceived. As can be seen from the reasons of the trial judge, immediately following the paragraphs referred to, her Honour embarked upon the discussion earlier referred to identifying all of the reasons and findings for the conclusion that the child’s best interests were served by orders seeing him remain in Australia in the primary care of his mother.
To the extent that argument of the appeal in support of this ground extended to the consequences for time, or the reasonable practicability of time spent by the father given that his other son is to commence his formal education in Country C, the father set out orders at trial concerning his alternate position in relation to time with the child should the child remain living in Australia with his mother. Those orders can be seen to provide for very similar time in Country C and Australia as was actually ordered by her Honour.
Moreover, as was acknowledged by counsel for the father in argument of the appeal, there was no cogent evidence put before the trial judge to establish that the fact that the father’s other son would need to attend to his formal schooling in Country C, precluded or limited to any substantial extent the practicality of the orders as made by the trial judge.
We therefore find no merit in this ground.
To the extent it is necessary to record anything more about Ground 7 of the appeal, to which we have earlier referred, it will be readily apparent from all of the preceding discussion that any contention that the determination of the trial judge is “plainly wrong” is rejected.
Conclusion and costs
There being no merit in any ground of appeal the appeal is to be dismissed.
In that event the mother sought an order that the father pay her costs of the appeal fixed, on a party/party basis, in the sum of $18,515.10.
In support of that application for costs counsel for the mother relied upon the significant financial disparity, in favour of the father, together with the fact that the father’s appeal has been wholly unsuccessful within the meaning of s 117(2A)(e) of the Act.
The father did not take issue with the fixed sum sought for costs by the mother if an order for costs were to be made in her favour, but resisted any order for costs being made. Counsel for the father acknowledged that whilst he might be seen to have been wholly unsuccessful in his appeal, the appeal was not without merit and in this context counsel for the father sought to place some emphasis upon the trial judge’s finding, as earlier referred to, that this was “a finely balanced case” (at [68]).
With respect to that contention, it obscures the distinction between original and appellate jurisdiction. To refuse to make an order for costs of an appeal on the basis that a case was a finely balanced one at first instance, would have the practical effect of obliterating that distinction.
As we have earlier emphasised, the trial judge exercised her discretion in rendering a discretionary judgment. Much of the appeal focused upon the application of the rule in Rice and Asplund and, for the reasons earlier discussed, we have found no merit in those challenges, and indeed it will be seen from our discussion that the father’s argument did not in fact have any merit at all.
We are satisfied, taking into account the father’s substantially greater financial position as compared with the mother, and having regard to the feature that the father has been wholly unsuccessful in the appeal proceedings, that there are justifying circumstances for a costs order to be made, and we are satisfied that the order sought by the mother is just within the meaning of s 117(2) of the Act.
For these reasons we will order that the appeal be dismissed and that the father pay the mother’s costs of and incidental to the appeal proceedings in the fixed sum of $18,515.10 within 30 days.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Kent & Forrest JJ) delivered on 24 May 2018.
Associate:
Date: 24 May 2018
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