Lambton and Lambton (No. 2)
[2017] FamCAFC 230
•9 November 2017
FAMILY COURT OF AUSTRALIA
| LAMBTON & LAMBTON (NO. 2) | [2017] FamCAFC 230 |
| FAMILY LAW – APPEAL – CHILDREN – RELOCATION – where the mother sought to relocate with the child to the United Kingdom – where the trial judge refused the mother’s application to relocate – where the child was only three and a half years old – where the mother contended that her mental health would improve if she were permitted to relocate – whether the trial judge determined the issue of relocation as a separate and anterior question – whether the trial judge wrongly elevated the consideration of the mother’s reason for relocation – whether the trial judge failed to properly consider the father’s capacity to relocate to the United Kingdom – whether the trial judge failed to pay evident regard to the mother’s legitimate interest and right to live in the place of her choosing – whether the trial judge failed to have regard to the entirety of the expert evidence in relation to the mother’s mental health – where no error demonstrated – where appeal dismissed. FAMILY LAW – APPEAL – PROPERTY – whether the trial judge erred in a consideration of s 75(2) factors – where no error demonstrated – where appeal dismissed. |
| Family Law Act 1975 (Cth) |
| Atkins & Hunt (2016) FLC 93-746 Bondelmonte v Bondelmonte (2017) 341 ALR 179 CDJ v VAJ (1998) 197 CLR 172 House v The King (1936) 55 CLR 499 U v U (2002) 211 CLR 238 |
| APPELLANT: | Ms Lambton |
| RESPONDENT: | Mr Lambton |
| FILE NUMBER: | SYC | 212 | of | 2015 |
| APPEAL NUMBER: | EA | 24 | of | 2017 |
| DATE DELIVERED: | 9 November 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge, Kent & Cleary JJ |
| HEARING DATE: | 21 September 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 February 2017 |
| LOWER COURT MNC: | [2017] FamCA 73 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sansom SC |
| SOLICITOR FOR THE APPELLANT: | Pigdon Norgate Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Richardson SC |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
Orders
The appeal from the orders made by Rees J on 15 February 2017 be dismissed.
There be no order as to costs of the appeal.
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 Lambton & Lambton (No. 2) 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 24 of 2017
File Number: SYC 212 of 2015
| Ms Lambton |
Appellant
And
| Mr Lambton |
Respondent
REASONS FOR JUDGMENT
The effect of parenting orders made by Rees J on 15 February 2017 is that the mother of the child, B, born mid-2013 and thus aged three and a half years of age at the time of those orders, is precluded from relocating the child to live with her in the United Kingdom (“the UK”) as the mother had sought. The mother appeals those orders.
In summary and paraphrased form, the mother’s challenges to the parenting orders are that the trial judge erred:
a)In determining the issue of “relocation” as a separate and anterior question to parenting arrangements in the child’s best interests; and elevated the mother’s reasons for seeking to relocate to the UK as central and determinative (Ground 1);
b)In not properly considering the father’s capacity to relocate to the UK (Ground 2);
c)In failing to have any evident regard to the legitimate interest and right of the mother to live in the place of her choosing (Ground 3);
d)In failing to have regard to the entirety of the evidence given by experts concerning the mother’s mental health (Ground 4).
The mother’s challenge expressed in Ground 5 of her Notice of Appeal as to the adequacy of the trial judge’s reasons was abandoned by her counsel at the outset of the hearing of the appeal.
The trial judge also made property settlement orders based upon an assessment of the parties’ contributions-based entitlements at 55 per cent/45 per cent in favour of the father and an adjustment to that assessment of 15 per cent in favour of the mother on account of relevant s 75(2) factors. At the outset of the hearing of the appeal the mother’s counsel abandoned the challenge to the trial judge’s assessment of contributions (Ground 6) leaving as the sole challenge to the property orders determined by her Honour the contention that her Honour erred in the adjustment made for s 75(2) factors (Ground 7). The mother’s foreshadowed challenge (in Ground 8) to an order that the trial judge made for spousal maintenance was also abandoned at the outset of the hearing of the appeal.
Did the trial judge determine the issue of relocation as a separate and anterior question? (Ground 1)
This challenge falls to be considered against, as a starting point, the factual context of the issues in dispute.
The mother was born in the UK and met the Australian born father whilst he was living and working in the UK from 2002.
In October 2006 the couple moved to Australia and commenced living together in about April 2007. They married in Australia in late 2008.
As earlier noted, their only child B was born in mid-2013. The child was only three and a half years of age at the time of the trial.
The parties separated in July 2014. From separation the child remained living primarily with her mother and spent increasing periods of time with her father.
It was not in issue at trial that the mother is the child’s primary attachment figure, nor was it in issue that it was in the child’s best interests that she continue living primarily with her mother. Whilst it was the mother’s proposal that she be permitted to relocate the child to live with her in the UK, the mother acknowledged that she would not herself relocate unless the child could also do so. Thus whether relocation was permitted or not, it was not in issue that the child would continue living primarily with the mother. On the mother’s case the father could also, if he so chose, live in the UK.
On this basis the mother proposed orders on the scenario that both parents were living in the UK and, alternatively, on the basis that she and the child were living in the UK with the father remaining in Australia. Whilst the mother also advanced the orders she sought if she were not permitted to relocate the child’s residence from Australia, there is no suggestion that such orders formed part of the mother’s proposal in terms of what she primarily sought nor that the trial judge treated those orders as a primary proposal of the mother as such.
The mother’s case, in summary and paraphrased form, taken from the reasons at [8], was that her return to live in the UK with the child was in the child’s best interests because as a result of the mother living in the UK:
·Her mental health would improve and thus her parenting capacity would be maximised;
·She would have a support network from family members;
·She would achieve financial security;
·She would not have to deal with a difficult parenting relationship with the father on a day to day basis.
It was also not in issue at trial that the child has a close and loving relationship with the father but that such a relationship could not be sustained in its then current form, nor progress or be maintained, if the child was relocated to the UK and the father remained living in Australia.
In short, the expert evidence was to the effect that on the scenario of this young child now moving to live in the UK and the father remaining in Australia, their relationship would be compromised. In other words it can be said that on this scenario the child-father relationship would not survive.
The father opposed the mother’s proposed relocation of the child and it was his case that he would not move to the UK. The father contended that the evidence did not establish that the mother will find financial security in the UK, or that she will have the family support she expects, or that her mental health issues will resolve.
The finding of the trial judge at [11] that the father will not move to the UK is the subject of the discrete challenge in Ground 2 and will be considered in discussing that challenge. However, on the basis of that finding and the foregoing uncontroversial factual context, the issues which fell for her Honour’s determination and the consideration of relevant s 60CC “best interests” considerations was, whilst exquisitely difficult, within relatively narrow parameters.
At [18] the trial judge identified the central issue in these terms:
18.The issue in the parenting determination revolves around two factors. The first is an assessment of the effect on the mother’s parenting ability of her depressed state and the effect on her depressed state of relocating to the UK. The second is the child’s ability to have a meaningful relationship with her father if she and her mother are permitted to relocate to the UK.
As to the question of whether the father-child relationship could be maintained if the child were living in the UK and the father remained living in Australia, the trial judge primarily relied upon essentially unequivocal expert evidence that it could not; allied with findings, based upon concessions by the mother, that her proposed orders on that scenario were “unworkable”. At [32] and [33] the trial judge recorded:
32.The mother’s proposals for the child to maintain contact with her father, if the child lived in the UK and he lived in Australia, which involved the child spending time with him in the UK each year and then the mother bringing the child to Australia for a second extended visit, were conceded by the mother to be unworkable. She said in cross-examination that this was the best she could come up with. She conceded that the father would not be able to take time off for the extended periods that she offered and that the best that could be achieved in Australia was that the father worked during the day and saw the child in the evenings.
33.She conceded that the child’s relationship with her father would be damaged if the child lived in the UK…
With reference to the expert evidence of the mother’s treating psychiatrist, Dr H, and that of the family consultant, Mr G, the trial judge recorded:
86.Dr H said that, if the mother and the child relocate, an adverse outcome for [the child] (in terms of her maintaining her relationship with her father) was guaranteed, whereas the potential of a positive outcome for the mother was not guaranteed.
87.Dr H was of the opinion that the relationship between the child and the father will inevitably suffer if she and the mother were to relocate to the UK.
…
109.Mr G concluded:
In summary, and unfortunately, none of the available options in this matter could be executed without considerable emotional cost to [the child]. If she were to be living in the United Kingdom with the mother, her relationship with her father would be compromised, she would miss her father and her attachment to him would be likely to weaken over time …
…
…
114.Mr G, like Dr H, said that it was inevitable that, if the mother relocated with the child, the child’s relationship with her father would be impaired.
…
117.Mr G agreed that, if the move to the UK did not turn out to be as the mother expected, then the child would be left with an impaired mother and an absent father.
…
120.Mr G accepted that it would be highly problematic if the child were to live in the UK with a mother who remained depressed and anxious, particularly as she would be deprived of the regular physical and direct emotional interaction with her father.
121.On the other hand, Mr G gave evidence that if the child and the mother relocate to the UK, the child’s relationship with the father “will almost certainly weaken over time”. He accepted that their relationship would weaken even if the father spent some holiday time in England and if the child spent some holiday time in Australia each year. Mr G accepted that whilst their relationship would be assisted by electronic communication, “nothing really replaces frequent, regular, physical, intimate interaction.”
In moving to consider relevant s 60CC “best interests” considerations under the “[d]iscussion” heading in the reasons, commencing at [122], it is plain that her Honour undertook that consideration within the parameters formed by the uncontroversial facts earlier referred to and the likely effect upon the
father-child relationship, by reference to the expert evidence as discussed. Indeed, as her Honour put it at [139]:
Ultimately, the determination to be made involves balancing the benefits and detriments to the child inherent in the two competing proposals.
Given the nature of the challenges within Ground 1 of this appeal, two matters bear particular emphasis in this context.
First, the “balancing” exercise the trial judge identified and had to undertake necessarily involved “predictions and assumptions about the future which are not susceptible to scientific demonstration or proof” and “perceptions, predictions and even intuition and guesswork” (CDJ v VAJ (1998) 197 CLR 172 per McHugh, Gummow and Callinan JJ at [151]).
Second, integral to making predictions about the future for the mother, if she and the child were living in the UK, was the evidence putting into question whether the mother would in fact achieve what she hoped to achieve for herself by that relocation. Likewise, the corollary concerning predictions about the mother’s future if she were not permitted to relocate with the child and the evidence relevant to that.
Having identified the case advanced by each party and summarising the evidence relied upon by each party, and having summarised the expert evidence relevant to the central issues, it can be seen from the discussion commencing at [122] of the reasons that the trial judge addressed the relevant s 60CC considerations by which best interests of a child are to be determined. In the course of argument of this ground counsel for the mother conceded, properly in our view, that no relevant s 60CC consideration could be identified which the trial judge failed to address in making her determination as to the child’s best interests.
In the course of the trial judge’s discussion referred to, the trial judge observed:
132.Neither Mr G nor Dr H predicted that, in Australia, the mother would not be able to parent the child. Rather, they said that her parenting might not be optimal. Dr H was confident that the mother would continue to care well for the child, whatever the outcome of the proceedings.
…
139.Ultimately, the determination to be made involves balancing the benefits and detriments to the child inherent in the two competing proposals.
140.If the mother is permitted to relocate with the child, the child’s relationship with her father will be compromised. The mother’s emotional wellbeing may improve. If the relocation is ultimately a disappointment for the mother then, as Mr G said, the child will live in the care of an impaired mother without the benefit of her relationship with her father and her paternal grandparents.
141.If the mother and the child remain in Australia, the child will have the benefit of a continuing and evolving relationship with her father and her paternal grandparents. Her mother’s parenting might not be optimal, but it will be sufficient. The mother’s emotional wellbeing may improve for the reasons expressed by
Dr H. The child will be able to have a meaningful relationship with both of her parents.
142.In accordance with the primary considerations expressed in the Act, I give the greatest weight to the child having a meaningful relationship with both of her parents.
We find no substance in the contention that the trial judge determined the issue of relocation as “a separate and anterior question” to parenting arrangements in the child’s best interests. Given that it was not in issue that the child would continue living primarily with the mother whether or not relocation occurred; and that the mother’s primary proposal was that she be permitted to relocate the child to the UK; her Honour properly considered the consequences for the child of the mother’s proposal. On findings including that the father would not move to the UK; and that it was in the best interests of this very young child that she have the opportunity to have and develop a meaningful relationship with her father; the trial judge necessarily had to engage in making predictions and value judgments about a hypothetical future for the child if she were living in the UK. Necessarily, the benefits and advantages postulated by the mother for the child of her proposed relocation to the UK had to be assessed, as best as they could be, including by reference to the available expert evidence.
When the reasons for judgment are read as a whole, it is plain that the trial judge engaged in this exercise and we are not persuaded that the trial judge made any error as contended for by this ground of appeal.
Did the trial judge fail to properly consider the father’s capacity to relocate to the UK? (Ground 2)
In setting out the parties’ respective cases the trial judge recorded a finding at [11] that the father would not move to the UK.
Relevant to that conclusion were associated findings the trial judge recorded as follows:
27.The mother relied on her assertion that the father, having worked in the UK before, could do so again.
28.When the parties met in 2004, the father was working for the Company J in City I. There is no evidence that he has maintained any employment contacts in the UK or that he has any contacts in London. It was not suggested by the mother that he could find employment in his profession in F Town.
29.The father is currently employed in a senior management role with Company D. He earns a significant salary.
30.There is no evidence that he could obtain a comparable position, or any position, in his profession, in the UK. There is no evidence that he has any other qualifications for employment or that there is any other field of employment open to him in the UK.
The father’s oral evidence at trial included that in Australia he had the support of his parents in providing assistance to him in caring for the child so as to facilitate the extent of time the child spent with him. Review of the transcript also confirms that the father, and his mother, were tested in cross-examination about the prospect of the father also relocating to the UK if the child was living there (see, for example, transcript, pages 143 to 146 and 164, and 246 and 249).
The findings made by the trial judge as referred to were clearly open on the evidence. Moreover, it was not contended at trial that the evidence supported a conclusion to the effect that it was likely or a real or substantial prospect that the father would in fact relocate to the UK if the child was living there.
This was not a case where it can be said that it was simply assumed by the trial judge that the father cannot, or should not, contemplate relocation or where there was no examination of such an assumption. The trial judge’s findings followed such examination and can be seen to be based upon the evidence.
Whilst in support of this ground, counsel for the mother placed emphasis upon the judgments of Gaudron J and Hayne J in U v U (2002) 211 CLR 238, it is to be noted that unlike the position of the father in U v U (supra), the UK is not the country of origin of the father; he has no family based in the UK and his own parents involved in caring for the child are based in Australia; and there was no conclusive evidence at trial that the father could obtain employment in the UK commensurate with that which he had in Australia. The father’s unchallenged evidence was that the only realistic prospect of employment for him in his field in the UK existed in the city of London and not in F Town or its locale where the mother sought to live with the child, those places being separated by a travel distance of up to two hours.
We find no merit in this ground.
Did the trial judge fail to have any evident regard to the legitimate interest and right of the mother to live in the place of her choosing? (Ground 3)
Beyond the bare assertion that the trial judge failed to recognise and afford weight to the mother’s right and interest to live in the UK, neither the mother’s summary of argument nor her counsel’s oral argument on appeal particularised how such an error was demonstrated from the reasons for judgment – beyond the fact that the orders made by the trial judge did not accede to the mother’s proposal.
Whilst the mother relied upon what Kirby J stated in his Honour’s dissenting judgment in U v U at [159] and [160], it is to be noted that his Honour also earlier observed at [157] as follows:
157In light of what was said in A v A, I want to make it clear that by referring to Gordon v Goertz in AMS, I did not embrace the minority view stated in that case in the Supreme Court of Canada. That was to the effect that there is a presumption of law that the custodial/residence parent has a right to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, can be shown to the contrary. Like the majority of the Supreme Court of Canada, I consider that such a presumption, elevated to a legal rule or invariable approach, would be incompatible with the statutory obligation to exercise the discretions involved having regard to an individualised assessment of the best interests of the child. I thought that I made this clear in AMS. I make it clear now.
(Footnotes omitted)
We do not consider it is open to interpret the trial judge’s reasons, read as a whole, as reflecting any failure by the trial judge to give appropriate weight to the mother’s rights of freedom of movement. Rather, where the mother’s proposal entailed the effective compromise of the child’s right to have and develop and maintain a meaningful relationship with her father, it can be seen that her Honour’s focus was upon the child’s best interests.
It is to be noted in this context that whilst the orders the trial judge made see the child continuing to live primarily with the mother, upon attaining the age of four years the child is to spend five nights per fortnight in her father’s care; and from the commencement of school next year for one half of each school holiday period.
In her written summary of argument (at paragraph 31) the mother accepts that, to the extent that the child’s interests were to be adversely affected by her proposed move, the mother’s desire to move should properly give way. We consider that this is precisely the approach which the trial judge took in circumstances of weighing the benefits and detriments of each party’s primary proposal.
We therefore find no merit in this ground.
Did the trial judge fail to have regard to the entirety of the evidence given by experts concerning the mother’s mental health? (Ground 4)
It bears some emphasis at the outset of discussion of this ground that the relevant experts, the wife’s treating psychiatrist, Dr H, and the family consultant, Mr G, a social worker, expressed opinions about a hypothetical future for the mother of either her continuing to live in Australia or her returning to the UK. Necessarily, given the subject matter, those opinions were not susceptible to scientific demonstration or proof. They were necessarily framed against a background of a range of assumptions and incorporated value judgments.
Taken from the reasons of the trial judge, the relevant facts concerning the mother’s case that her proposed situation and mental health would be improved if she returned to live in F Town in the UK included these:
a)The mother had left her family home in F Town when she was aged 19 years to attend university in City I, some 340 miles away. At trial, the mother was aged 34 years and thus had not lived in F Town for some 15 years, although had visited annually [26];
b)There was evidence which the trial judge apparently accepted of historical difficulties in the mother’s relationship with her own mother [37] and [38];
c)The trial judge also recorded with apparent acceptance that the mother reported to a counsellor, Ms K in April 2014, that she did not get on well with her own mother and that her mother was very unpleasant to her for all of her life, although her mother has become “more friendly” since the child was born [39];
d)The mother’s evidence was that in June 2014 her father encouraged her to stay in the UK but her mother was angry with her and told her that she should “get some counselling and make it work” [43];
e)The mother would be able to obtain remunerative nursing employment in the UK, although not necessarily in F Town [48];
f)If she returned to the UK the mother would initially be able to be accommodated with her parents temporarily but would need to seek rental accommodation [52]; and
g)There was no evidence that the mother’s family would be able to provide her with financial assistance [53].
The trial judge recorded at [23] the mother’s belief that if she were permitted to relocate with the child to the UK “her problems will all be solved” and that the mother appears to see nothing but a positive future for herself in the UK. However the trial judge made clear (at [24]) that rather than the mother’s subjective belief some primacy would be given to the expert evidence.
At [57] to [71] the trial judge outlined in some detail a summary of the written reports of the mother’s treating psychiatrist, Dr H, including as to the mother’s chronic adjustment disorder and depressive symptoms. At [68] to [71] the trial judge recorded:
68. Dr H stated:
If [the mother], the child, and [the father] remain living in Australia. Under those circumstances I believe that [the mother] would probably still be able to continue to provide well for [the child], even though she would continue with an adjustment disorder of depression from the predicament.
69. Dr H concluded:
My concern is that in the long-term [the mother] will become increasingly frustrated and despondent. It is extraordinarily difficult for her to be dislocated from her family and to not have a strong support. Whilst the paternal grandparents have been a positive influence they are not able to provide the needed emotional support and substitute [the mother’s] family. I have concerns that [the mother] will struggle in Australia financially and emotionally. I believe that she is strong and capable and that she would continue to be a healthy competent parent. However [the mother] will continue (sic) find the adjustment to life if remaining in Australia a major challenge and at a great personal cost to [her] wellbeing.
The ongoing stress and worry financially, worry about her family and pressure of the full responsibility of the care of the child is likely to gradually wear her down. She is likely to have a chronic adjustment disorder with depressive symptoms, but in the long-term she could find the situation overwhelming which would impact on the child.
70. Dr H concluded:
I am confident that [the mother] will continue to care well for [the child] no matter what the outcome of the family court hearing is.
71. He did not resile from that statement.
The trial judge then moved to discuss the oral evidence of Dr H in some detail at [72] to [88]. Within that discussion is reference to Dr H’s concession that his assessment relied heavily upon the mother’s self-reporting ([76]) and that the mother’s previous history of not feeling well-supported by her own mother was not presented by the mother to him ([78] to [80]). That discussion concluded with these observations:
83.Dr H conceded that there were a number of assumptions which he had made in his assessment that relocation would benefit the mother including that she had employment available to her and that her financial security would be improved. If either of those assumptions were unfounded then that would be a significant matter in his recommendation. He said that the mother is relying on having a good relationship with her family, being able to find adequate employment and having a good social environment and that, if those things did not eventuate, then a relocation to the UK might prove to be more difficult than the mother anticipates.
84.He said that he could not make a clear prediction as to the mother’s condition if she were permitted to relocate. However, he said “I would expect that her condition may not resolve immediately but I would expect that it would improve in the UK.” Dr H said that if the mother relocates to the UK, she may nonetheless require some ongoing help or therapy to readjust to her new life.
85.Dr H said that the finalisation of this litigation would be beneficial to the mother’s condition and that she should experience some significant relief when the matter was concluded. He said that it was possible that the resolution of the proceedings, even if the outcome were not favourable, might see her approach work and social interaction with a changed, positive, mindset and that it was also possible that an adverse outcome would have a negative effect.
86.Dr H said that, if the mother and the child relocate, an adverse outcome for the child (in terms of her maintaining her relationship with her father) was guaranteed, whereas the potential of a positive outcome for the mother was not guaranteed.
87.Dr H was of the opinion that the relationship between the child and the father will inevitably suffer if she and the mother were to relocate to the UK.
As the reasons for judgment reflect, the trial judge undertook a similar process with respect to the written report of Mr G and his oral evidence (at [89] to [121]). In the course of that discussion the trial judge observed:
102. In relation to the paternal grandparents, Mr G noted:
[The child] has had an ongoing relationship with the paternal grandparents since she was born and it would seem that this relationship is characterised by mutual affection and that [the child] has a clear-cut attachment relationship with them.
We interpolate here that at [126] and [128] of the trial judge’s discussion of the s 60CC considerations, the trial judge observed the significance of the mother’s proposed relocation not only upon the father’s relationship with the child, but upon the child’s relationship with her paternal grandparents with whom she had developed an attachment.
There is no challenge in this appeal as to the findings the trial judge made, by reference to the expert evidence, of the significance of the child’s relationship with the paternal grandparents and the impact, in terms of the child’s best interests, that her relocation to the UK would have in that respect.
Without being exhaustive, the following relevant references to Mr G’s written and oral evidence were made by the trial judge:
106.Mr G expressed the view that if both of the parents were living in sufficient proximity to one another, a parenting arrangement whereby the child lives with her mother and spends substantial and significant time with her father would be a viable option. Indeed it would be an optimal arrangement.
…
109. Mr G concluded:
In summary, and unfortunately, none of the available options in this matter could be executed without considerable emotional cost to [the child]. If she were to be living in the United Kingdom with the mother, her relationship with her father would be compromised, she would miss her father and her attachment to him would be likely to weaken over time …
If [the child] and her mother were to continue to live in Australia, [the mother] would be likely to continue to experience significant symptoms of depression and anxiety, that would compromise her capacity to provide a secure emotional base for [the child] and, as indicated above, would be likely to have an enduring and profound impact on [the child’s] emotional security. This factor … should be given considerable weight in any consideration of this matter.
110.Mr G, when asked by senior counsel for the mother whether the mother presented in a very fragile psychological state, disagreed with that proposition. He said that one of the important things about the mother was that she was inherently a strong person who overrides her depression for the child’s sake. Later in his evidence he described the mother as having considerable psychological strength.
111.Mr G said that the best outcome for the child was for the parents both to live in the UK. He said that he had explored that option with the father who said that his profession in the UK and his profession in Australia were not sufficiently similar and he would have difficulty working in the UK.
112.Mr G said that the best arrangement for the child was one where she could spend substantial and significant time with her father.
113.Mr G said that if the mother’s condition worsened and she moved to a major depressive illness, then there is an elevated risk that the child would have significant psychological problems later in her life.
114.Mr G, like Dr H, said that it was inevitable that, if the mother relocated with the child, the child’s relationship with her father would be impaired.
…
117.Mr G agreed that, if the move to the UK did not turn out to be as the mother expected, then the child would be left with an impaired mother and an absent father.
118.On the other hand, he said, if the mother remains living in isolation in Australia, she will continue to be depressed.
119.Mr G said that the “worst” alternative for the child is to live with a primary attachment figure who is depressed. However, it was conceded by Mr G that his opinion relies on Dr H’s diagnosis of the mother. In that regard, and as outlined earlier in these reasons, Dr H could not be certain that a relocation to the UK will result in a significantly more positive outcome for the mother’s mental health.
120.Mr G accepted that it would be highly problematic if the child were to live in the UK with a mother who remained depressed and anxious, particularly as she would be deprived of the regular physical and direct emotional interaction with her father.
In discussing the s 60CC considerations, in conjunction with the expert evidence, the trial judge recorded the following central findings:
130.As is clear from the evidence of Dr H and Mr G, there is no certainty that the mother’s circumstances will improve to the extent that she hopes. The mother was not frank with Dr H about the nature of the relationship between herself and her mother. He was not, therefore, in a position to give considered evidence about the likelihood of the relationship between the two women mitigating for or against the prospects of successful improvement in her emotional health.
…
132.Neither Mr G nor Dr H predicted that, in Australia, the mother would not be able to parent the child. Rather, they said that her parenting might not be optimal. Dr H was confident that the mother would continue to care well for the child, whatever the outcome of the proceedings.
…
138.I am satisfied that each of the parents has the capacity to provide for the child’s needs in Australia. In relation to the mother’s parenting, I am conscious of the evidence of Dr H and Mr G to which reference has been made in paragraph 132 of these reasons.
139.Ultimately, the determination to be made involves balancing the benefits and detriments to the child inherent in the two competing proposals.
140.If the mother is permitted to relocate with the child, the child’s relationship with her father will be compromised. The mother’s emotional wellbeing may improve. If the relocation is ultimately a disappointment for the mother then, as Mr G said, the child will live in the care of an impaired mother without the benefit of her relationship with her father and her paternal grandparents.
141.If the mother and the child remain in Australia, the child will have the benefit of a continuing and evolving relationship with her father and her paternal grandparents. Her mother’s parenting might not be optimal, but it will be sufficient. The mother’s emotional wellbeing may improve for the reasons expressed by
Dr H. The child will be able to have a meaningful relationship with both of her parents.
142.In accordance with the primary considerations expressed in the Act, I give the greatest weight to the child having a meaningful relationship with both of her parents.
It is trite that the trial judge was not bound to accept or act upon any particular aspect of the expert evidence. However, it is readily apparent that the trial judge gave careful consideration to the prospect of the mother’s wellbeing improving if she relocated to the UK, referenced to the expert evidence, and also weighed that against the consequences for the child of the loss of her relationship with the father. Concomitantly, the trial judge took into account the possibility of the mother’s relocation proving to be a disappointment to her and the possible consequences of that; and the prospects for the mother’s parenting capacity if she remained in Australia. Given the express references in the reasons as referred to, we reject the mother’s contention on appeal that the trial judge “failed to recognise” Mr G’s opinions in any material respect, or failed to take account of the opinions of either expert in any material respect.
Properly viewed, this challenge devolves into one not consisting of any alleged failure of the trial judge to take account of expert evidence, but as a challenge as to the weight given to selective parts of that evidence most favouring the mother’s case.
In our judgment the trial judge can clearly be seen to have taken into account all relevant central features of the expert evidence and in undertaking the difficult task of weighing competing aspects of that evidence in assessing the child’s overall best interests, in what was plainly a finely balanced case.
We find no merit in this ground.
Conclusions on appeal from parenting orders
As McHugh, Gummow and Callinan JJ observed in CDJ v VAJ (supra) at [152]:
152The 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 a 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. In G v G, Lord Fraser of Tullybelton pointed out:
"The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory."
(Footnotes omitted)
More recently in Bondelmonte v Bondelmonte (2017) 341 ALR 179 the High Court in discussing judicial discretion at [31] to [33] observed at [32]:
A parenting order made under s 65D involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations, either statutorily prescribed or considered by the court to be relevant. The primary considerations in s 60CC(2) are matters to be borne in mind as consistent with the objects of Pt VII. The additional considerations in s 60CC(3) require assessments of the matters there listed by reference to the circumstances of the case. They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.
(Footnotes omitted)
We are not persuaded of any error in the reasoning of the trial judge of the kind referred to in House v The King (1936) 55 CLR 499 as would permit this Court to interfere with the parenting orders made by the trial judge. We find no merit in any of the grounds of appeal from the parenting orders which were pursued on the hearing of this appeal and thus the appeal from the parenting orders must be dismissed.
Did the trial judge err in the determination of the s 75(2) adjustment made? (Ground 7)
As earlier noted this is the sole ground of appeal from the property adjustment orders the trial judge made that was ultimately pursued on appeal.
The trial judge determined that the net value of the property interests of the parties or either of them, including notional items added back to a combined “pool” for the purposes of adjustment, and including superannuation interests, was $1,879,422. Superannuation interests comprised $381,360 of that total.
That total is exclusive of a parcel of 5,011 Deferred/Unvested Company D shares held by the father as part of the terms of his employment. The property orders included provision for the mother to receive the net sale proceeds (after realisation costs and taxation) of 60 per cent of those shares.
The orders the trial judge made effected an overall division as to 60 per cent to the mother and 40 per cent to the father arrived at consequent upon a contributions-based assessment of 55 per cent/45 per cent in the father’s favour, adjusted by 15 per cent in the mother’s favour on account of s 75(2) matters. An adjustment of 15 per cent produces a disparity between the parties of 30 per cent, equating to $563,826.60 of the net pool for adjustment, not including the Deferred Company D shares.
In addition to property adjustment orders the father was ordered to pay spouse maintenance to the mother of $1,361 per week for three months, or until payment to her of the capital sum of $656,288 the father was ordered to pay the mother as part of the property orders.
The mother’s challenges to the s 75(2) adjustment made by the trial judge confronts the well-known restraints upon legitimate appellate intervention with respect to a discretionary determination.
At trial the mother had contended for a 17.5 per cent adjustment for s 75(2) matters in her favour of the non-superannuation assets, albeit from a starting point that her contributions-based entitlement should be assessed at 47.5 per cent. With respect to superannuation the mother had contended for an equal contributions-based assessment and a 15 per cent adjustment in her favour.
It bears emphasis that the s 75(2) adjustment the mother contended for at trial was predicated upon her proposal to relocate with the child to the UK. Obviously enough that relocation, if the father remained in Australia, would have the consequence of the mother having, for practical purposes, essentially sole caring responsibilities for the child. As already noted, the parenting orders the trial judge made facilitate the child progressing to being in the father’s care for five nights each fortnight and for half of each school holiday period.
It also bears some emphasis that, as acknowledged in the father’s summary of argument, a spousal maintenance order having been made it was, and remains, open to the mother to pursue an application under s 83 of the Family Law Act 1975 (Cth) (“the Act”) to vary that order or to seek a fresh order for spousal maintenance without the need to obtain leave (Atkins & Hunt (2016) FLC
93-746).
At [50] of the reasons the trial judge recorded a finding, unchallenged on appeal, that in 2016 the mother earned $50,000 working only two days per week, including benefits. At [230] the trial judge referred to the mother’s current (at trial) capacity to earn $70,980 and that:
... She may have the capacity to earn more depending on her commitments to care for the child and her health. When she was working full time, she earned about $100,000.
(Emphasis added)
Having noted at [231] that the father’s income is almost five times greater than that of the mother, the trial judge then recorded:
232.At the present time, the wife’s ability to work is affected by her health. She has been diagnosed with depression and, at the time of the trial, had been on sick leave since 4 November 2016. She deposed that her sick leave, annual leave and long service leave will be exhausted on 8 January 2017 when she will have no income from employment unless she returns to work. She has little option but to do so.
233.The child is three and a half years old. The wife will have significant parenting responsibilities for the child for some years to come and will also have to provide housing for her. The husband will also have significant child caring responsibility but there is no evidence that his income earning capacity will be thereby reduced.
234. The husband will provide child support for the child as assessed.
235.The disparity in income requires an adjustment in favour of the wife of 15 per cent.
236.Thus the wife will receive 60 per cent of the net asset pool, 60 per cent of the parties’ joint superannuation entitlement and 60 per cent of the Company D Deferred Shares.
We are not persuaded that the trial judge failed to take account of any relevant s 75(2) matter nor failed to attach sufficient weight to any such factor, or that the adjustment of 15 per cent made was plainly wrong as falling outside the range of a legitimate exercise of discretion. We reiterate that a 15 per cent adjustment produces a disparity between the parties worth $563,826.60 not including the Company D Deferred shares. Any legitimate claim the mother has for spousal maintenance in the future is preserved. The overall 60 per cent of the parties’ combined property interests the mother receives equates to $1,127,653.20.
We find no merit in this ground.
Conclusion and costs
There being no merit in any ground of appeal the appeal is to be dismissed.
In that event the father sought an order that the mother pay his costs of and incidental to the appeal, and senior counsel for the mother conceded on her behalf that if the appeal failed the mother “will be looking at a costs order.”
The appeal primarily concerned the parenting orders the trial judge made. In terms of the mother’s primary proposal to relocate the child to the UK, this was obviously a finely balanced case. In such a case it must be acknowledged that whilst no appealable error has been established another judge may well have acceded to the mother’s proposal. For the same reasons it cannot be said that the appeal from the parenting orders was not arguable given the inherent difficulties of assessment involved in determining the child’s best interests in the circumstances of this case.
We are also mindful that the father’s earning capacity is very significantly greater than the earning capacity than that of the mother.
Given that frank disparity in particular we consider that despite the concession by senior counsel for the mother, the usual position identified in s 117(1) of each party to proceedings bearing his or her own costs of proceedings ought not be disturbed and the appropriate order is to make no order for costs with respect to the appeal.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Kent & Cleary JJ) delivered on 9 November 2017
Associate:
Date: 9 November 2017
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