Loverdos & Bonner
[2022] FedCFamC1A 174
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Loverdos & Bonner [2022] FedCFamC1A 174
Appeal from: Loverdos & Bonner [2022] FedCFamC2F 893 Appeal number(s): NAA 155 of 2022 File number(s): SYC 1387 of 2018 Judgment of: TREE J Date of judgment: 26 October 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the father appeals from final orders permitting the mother to relocate with the children interstate – Whether the primary judge failed to consider s 65DAA of the Family Law Act 1975 (Cth) – Where the primary judge’s reasoning does not comply with the strictures of s 65DAA, particularly as raised by the evidence – Inadequacy of reasons – Where a consideration of whether either regime was in the children’s best interests and reasonably practicable was not apparent in the reasons – Where the primary judge’s rejection of the family report writer’s recommendations and evidence is not articulated – Appeal allowed – Matter remitted for rehearing – Costs certificates issued to the parties. Legislation: Family Law Act 1975 (Cth) s 65DAA Cases cited: Bonner & Loverdos (2021) FLC 94-026; [2021] FamCAFC 93
Heaton v Heaton (2012) 48 Fam LR 349; [2012] FamCAFC 139
House v The King (1936) 55 CLR 499; [1936] HCA 40
Sayer v Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209
Number of paragraphs: 33 Date of hearing: 18 October 2022 Place: Cairns (via video link) Counsel for the Appellant: Mr Kearney SC Solicitor for the Appellant: Marsdens Law Group Counsel for the Respondent: Mr Sansom SC Solicitor for the Respondent: Broun Abrahams Burreket ORDERS
NAA 155 of 2022
SYC 1387 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR LOVERDOS
Appellant
AND: MS BONNER
Respondent
order made by:
TREE J
DATE OF ORDER:
26 october 2022
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Orders 2 to 11 (both inclusive) of the Orders of the Federal Circuit and Family Court of Australia (Division 2) made on 7 July 2022 be set aside.
3.The proceedings be remitted for rehearing before a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the two judges who have heard trials in the matter thus far.
4.The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
5.The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
6.The Court grants to the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the re-hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Loverdos & Bonner has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
introduction
Mr Loverdos (“the father”) appeals from final parenting orders made on 7 July 2022 by the Federal Circuit and Family Court of Australia (Division 2). Those orders were made following a rehearing consequent upon a successful earlier appeal brought by Ms Bonner (“the mother”) in 2021.
The orders from which the current appeal is brought provide for the parties’ two children to live with the mother, and that she be permitted to relocate their residence from Sydney to Brisbane. In the event the father remains living in Sydney, the orders allow for the children to spend each alternate weekend (from Friday to Monday) with him in a mix of Brisbane and Sydney, or alternatively, presumably in the event that the father relocates to Brisbane, upon him giving notice to the mother, then the children are to spend Wednesday to Monday with him each alternate week. On either scenario, the orders further provide for the children to spend half the school holidays with each parent, and make provisions for special days.
The mother opposes the appeal, however for the reasons that follow, the appeal will be allowed.
background
The relevant background to this matter was recited by the Full Court in the previous appeal Bonner & Loverdos (2021) FLC 94-026 as follows:
8.The parties commenced cohabitation in 2013. Their first child was born in 2015 and their second child in mid-2017. The parties separated in early 2017, prior to the birth of their second child, and the father sought a DNA test to establish he was her biological father.
9.The mother commenced a relationship with Mr C by February 2017.
10.After separation the elder child, then aged two and a half years, spent four nights a fortnight with her father.
11.The proceedings had initially been listed for final hearing in June 2019 but the matter was not reached. The mother’s treating clinical psychologist reported upon the effect on the mother of the delay in the final determination of the proceedings.
12.During the time it took for the case to come on for hearing, the mother and Mr C had managed their relationship with the mother ordinarily living in Sydney and Mr C in Brisbane. Their stated intention was to cohabit in Brisbane about 12 months after the mother’s arrival in Brisbane to allow their respective children to integrate into a blended household.
13.At the hearing before the primary judge the father sought orders that would prevent the mother from removing the children from Sydney to live in Brisbane, and that the children’s time with him be progressively increased to ultimately a shared care arrangement. Both parties sought equal shared parental responsibility.
14.The mother sought orders which would enable her to relocate the children’s residence to Brisbane, and initially spend fortnightly time with their father; one weekend in four in Brisbane and one weekend in four in Sydney. The mother proposed that once the elder child commenced school, the children’s time with their father move to three weekends each school term with two weekends in Brisbane and one weekend in Sydney in terms 1 and 3 and two weekends in Sydney and one weekend in Brisbane in terms 2 and 4. Other orders were sought in relation to school holidays and special occasions.
15.The hearing took place before the primary judge on 13–15 November 2019 and written submissions were ordered, the last of which was filed on 23 December 2019.
16.The primary judge delivered oral reasons for judgment on 3 February 2020 and on that day made orders that the parties have equal shared parental responsibility (as sought by the parties); that the children live with the mother; and that the mother be prevented from relocating the residence of the children outside Sydney without the written consent of both parties. The reasons for judgment were provided in writing on 23 April 2020.
17.The primary judge also made orders on a graduating basis for the children to spend increasing time with their father. Initially, the orders provide for the children to spend each alternate weekend with their father from after school/day care on Friday until before school/day care on Monday and for one afternoon each week for four hours. From the beginning of 2022 (and until the younger child commenced school), that time was to be extended to each alternate week from after school Thursday to before school Tuesday and then when the youngest child commenced school, culminated in an equal time arrangement.
The Full Court found that the primary judge made significant errors of fact which affected the outcome, and thus ordered a retrial of the matter.
The rehearing before this primary judge was heard from 2–5 May 2022, after which her Honour’s orders and reasons for judgment were delivered on 7 July 2022.
the appeal
The appeal arises from a discretionary judgment. In House v The King (1936) 55 CLR 499 at 504–505, it was said in relation to such appeals:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
the grounds
The grounds of appeal are as follows:
1.That the primary judge erred in, having determined that there should be an order for equal shared parental responsibility, failing to evidently consider whether it was in the interests of the children to:
1.1 spend equal time with each parent; and
1.2 spend significant and substantial time with the [father].
and, in any event, in failing to provide adequate reasons for such conclusions and/or findings as may have been reached in relation to each such matter.
2.That the primary judge erred in failing to have proper regard to the applications of each of the parties, in failing to evidently consider each of the applications and in failing to provide adequate reasons for the determination of such applications.
3.That the primary judge erred in failing to properly identify and have regard to the entirety of the recommendations and evidence of the single expert, Dr O and, where identified, for failing to provide adequate reasons for not accepting such evidence or proceeding in accordance with it.
4.That the primary judge erred in failing to consider at all, or at least sufficiently, the likely effect of change in respect of each of the parties’ proposals upon the children.
5.That the primary judge erred in finding that:
5.1the alcohol use of the [mother] occurred in Sydney and was the context in which such difficulties arose;
5.2that the [father] has had difficulties with depression;
5.3that the [father] would have difficulties in attending to the children’s needs in the event of an emergency;
5.4it was possible for the [father] to make arrangements for regular/consistent accommodation in Brisbane.
discussion
As argued, the grounds of appeal significantly overlapped. However a convenient starting point is s 65DAA(1) and (2) of the Family Law Act 1975 (Cth) (“the Act”), which is in the following terms:
(1)Subject to subsection (6), 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:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
(2) Subject to subsection (6), if
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
By Ground 1 the father contends that the primary judge failed to objectively manifest a consideration of the two matters in these subsections.
Before the primary judge, both parties conceded that they should equally share parental responsibility, no matter where the children lived. It is therefore beyond question that s 65DAA was engaged.
In the event the mother was not permitted to relocate with the children to Brisbane, then both parties sought an equal time arrangement in Sydney. Implicitly, therefore both parties recognised that such an arrangement was, on that scenario, in the children’s best interests.
It was only in the event that the mother relocated to Brisbane that the parties’ proposals diverged. In that event, the mother proposed that the children live with her, and if the father did not also move to Brisbane, spend alternative weekends with the father in a mix of Brisbane and Sydney. In the event the father moved to Brisbane, then the mother proposed that the children spend a block of five nights per fortnight with him.
The father did not, it seems, articulate alternative orders to cover relocation of the children. Although he did propose orders in the event the mother relocated to Brisbane without the children, the mother made it clear she would never do so, and thus that possibility fell away. Therefore the case, as fought, distilled essentially to two questions; was it in the children’s best interests to live with the mother in Brisbane, and if so, what time arrangements with the father were in their best interests and reasonably practicable.
So understood, as argued, this was not a case where the application of s 65DAA, mandatory though it be, appeared to inform the outcome to any great extent. Unsurprisingly then, neither party adverted to the provision before the primary judge, nor is it mentioned in her Honour’s reasons.
In permitting relocation her Honour’s reasoning appears to have been as follows:
(a)the mother’s work prospects would be improved by residing in Brisbane (at [76]);
(b)if living in Brisbane, the mother would have better mental health and support of her partner, which would enable her to function better as a parent (at [99]);
(c)if the mother is happy and content it will be positive for her parenting and hence the children’s well-being (at [77] and [99]);
(d)it was not presently practical for the father to move to Brisbane (at [59]) although that may change in the future (at [123]);
(e)the prospect of the children living with the father in Sydney and spending alternate weekends with the mother “is not realistic for their emotional needs”, as “[t]hey have never spent so little time with their mother on an ongoing basis” (at [128]);
(f)if living in Brisbane the children’s close relationship with the father can be maintained and developed (at [129]).
However as cogent as such reasoning may superficially seem, it suffers from several deficiencies. The most obvious is that the matter referred to at (e) was not a live possibility at the end of the trial. However more significant is that, as Ground 1 contends, it does not comply with the strictures of s 65DAA, particularly as raised by the evidence.
The course of consideration required by s 65DAA is indeed, as its language suggests, mandatory, and parties cannot by their conduct, absolve the court from adherence to its requirements: Sayer v Radcliffe (2012) 48 Fam LR 298 (somewhat ironically, an authority referred to by her Honour at [21]).
In Heaton v Heaton (2012) 48 Fam LR 349 (“Heaton”) at [37]–[38] the Full Court said:
37.We regretfully conclude that his Honour erred in his determination of the issue of equal shared time. By conflating the disparate issues of “best interests” and “reasonable practicability” the Federal Magistrate’s reasons for judgment do not demonstrate substantive, if not formal, adherence to the legislative pathway. As is apparent from a reading of them, with respect to his Honour, his consideration of each issue was vitiated by its dependence upon conclusions or assumptions with respect to the other issue. His Honour was required to first consider whether equal time was in the children’s best interests pursuant to s 60CC. If he concluded that it was, it was then necessary to consider the parties’ competing proposals and determine whether equal time was reasonably practicable. He did not do this.
38.These errors are such that the appeal must succeed. As the High Court said in MRR v GR [(2010) 240 CLR 461], the determination of both of the questions in s 65DAA(1) provide the source of jurisdictional power to make the order to which the section refers. It is not sufficient to argue that although his Honour’s findings do not follow that “pathway” when read as a whole, inferentially, it may be said that he made the determinations required of him in s 65DAA.
(Emphasis added)
Moreover, here the relevantly unchallenged evidence of the family report writer Dr O, drew sharply into focus the benefits of an equal time arrangement, and the disadvantages to the children which attended relocation.
Relevant passages of his report include as follows:
738.But, that said, this is a circumstance where in my view, the children’s wellbeing and character development will gain significant benefit if the children during their growing up maintain a meaningful relationship with each parent, and indeed spend substantial and significant time in the care of each parent.
739. Each of these children’s parents are quite active, successful, effective people, but each is a quite different person, in ways of thinking, relating, dealing with and expressing emotion. Each is the point of connection with a separate branching connectivity with extended family and friendships.
740. The lifestyle and background (including lifestyle, culture and traditions) of each of these two parents is not markedly dissimilar in terms of ethnicity and social class, but there will be significant differences in terms of extended family subcultures and spoken or unspoken traditions. It will benefit these children to experience and absorb these subcultures, traditions and aspects of shared lifestyle, from both extended families.
741. In my view, the children’s life experience, knowledge, skills and adaptive capacities will be broadened and deepened by having lived experience of being raised by both parents. This will include the children gaining from the strengths of each parent and their network, but also gaining understanding, resilience and flexibility of character through adapting to the vulnerabilities of each parent and their network.
742. One area where the children will grow in such a context is in the area of reflective capacity, flexibility of thinking, and ability to weigh up a variety of points of view, and also to come to one’s own strong, differentiated view.
…
752.In my view, this issue is one that also points to the benefit to the children of the children spending significant time in the care of each parent. Full time care of the children would be hard for either of these parents, each of whom is idealistic and ambitious in the domain of parenting and in the domain of work/ societal engagement. In a shared care context, each is likely to shift focus during times “on” and “off” the children, in a way that will benefit their overall life balance and sense of self, and the children.
…
8.g. The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living
790. These two children present as connected with and valuing relationship with each of their parents. They would grieve the loss of connection with either parent.
791.A separation from either parent would mean the loss of the benefits to these children of share care, which have been outlined above.
…
864.The fact that the children are living over 900km away from the father, will constrain the nature and extent of the children’s experience of the father and of the father’s parenting role, and the nature and depth of the child/ father connections.
865.The children’s connectivity with the father will fall short of the significant benefits to the children of substantial and significant time in the care of each parent, as has been outlined at paragraph 738 and following, above.
866.To the extent that the children do maintain regular holiday and some term time with the father, these described benefits will be realised, but to a lesser degree. The children will benefit from time with the father at his home each holiday period, and in particular from the weekends when the father visits their home locale, and they can show him around their day to day life.
867. There will be less integration of the child/father relationship and the father’s raising of the children, into the children’s ordinary day to day life, than there would be if there was colocation. Examples are that during child/father time, the children will not have opportunity to show the father and experience with the father aspects of their ordinary day to day life, such as school, friendships, sport. There will be limited opportunity to attend school or sport or a friend’s home, or a special event in the child’s life such as an assembly or concert.
868. The children will experience less integration also into ongoing and day to day connection with paternal extended family and family friends, for example birthdays or events in this extended family, or day to day incidental connection with this extended family.
869. The child/father relationship will be less of an attachment relationship in a foundational sense. The children will not be utilising the father and the father’s home as the basis from which to springboard into daily life, nor coming to the father in acute excitement or distress with the ups and downs of life. Importantly, the father will play a much reduced role in raising the children, in terms of day to day support, provision, encouragement and guidance.
870. Importantly, the father will not have the opportunity to provide “fallback” care, support and security to the children within their normal day to day context, during any time when the mother’s capacity is disrupted by a known or future as yet unknown vulnerability, in an acute or gradual way, either in the form of moral support, or pragmatic support including if necessary the children spending additional time with him for a temporary period, or if necessary assistance to or challenge of the mother.
…
872.In the event of relocation, orders could be made that might best support the child/ father relationships, which might be similar to the mother’s current application or to those recommended by me at para 957.2 and 959. But, in my view, even if those orders are implemented, the loss of developmental opportunity will be significant for the children. I have outlined that developmental opportunity above, which in my view is particularly beneficial for the children in its symmetry of time. The loss of backup and risk-modulating paternal local presence will also be significant, for the children.
…
891.But, I do carry concern that the end result of the above process could be a marked disruption in one or both of the child/ father relationships during late childhood or adolescence, with:
891.1. each child’s own process of getting to know and appraising the father and their connection with him through their own lived experience and on its own merits becoming distorted or usurped by a child identifying with maternal projection, in the absence of ongoing ordinary day to day connection with the father, and/or:
891.2. The mother supporting a want or perceived need/ opportunity for the child, over their ordered time with the father, with a stance that the a child-focussed response in the father would be to follow suit.
(As per the original)
Against that background, one would expect, in conformity with Heaton, considerable discussion about whether equal time was in the children’s best interests, and if not, whether substantial and significant time was in their best interests. As to the latter, her Honour did not determine whether the arrangement ultimately ordered comprised substantial and significant time, or if not, why it nonetheless was ordered.
Further, there needed to be a consideration of whether either such regime was reasonably practicable, however, there is no discussion in the reasons of this concept at all. On the facts, it was a central issue in the case, in that as I have noted, both parties appeared to concede that equal time, at least if the children were living in Sydney, was in their best interests. Against that scenario, the reasonable practicability of them remaining in Sydney loomed large, particularly given the mother’s evidence, buttressed by that of her partner, that if relocation were not permitted, she “would find some way to make it work” (Transcript 2 May 2022, p.86 lines 35-36).
One asks, given that evidence, why it was not then reasonably practicable for such an arrangement – which had, in various guises, been the status quo from the time of separation – to continue? That is not to say that it was necessarily reasonably practicable, but if not, then that outcome needed explanation, and none is apparent in the primary judge’s reasons.
A further albeit related nettle which needed to be firmly grasped in this case was the impact on the children of the diminished relationships with their father which, on the relevantly unchallenged evidence of Dr O, relocation would effect.
Although at [20(a)] the primary judge explicitly recognised that was a matter requiring determination, the closest that the reasons come to actually doing so is in the final paragraph, where her Honour says:
129.Each of these parents have a great deal to offer their children. They have demonstrated that that they are able to make arrangements so that [the children] can continue to have a meaningful relationship with each of them. These children have close relationships with their father, which the mother has supported. I accept that those relationships can be maintained and developed whilst the children live in Brisbane.
How that conclusion sits with the opinions of Dr O recited above is not clear, particularly given the absence of any articulated rejection of his evidence. True it is that at [51] the primary judge noted:
51.It became clear during his oral evidence that Dr O had not considered an arrangement where the father moved back and forth to Brisbane during school terms, rather than the children. He had been concerned that the children would not manage travelling more than once or twice a term, which would cause a significant diminution in their time with their father. A proposal where the school term for them was predominantly in Brisbane, with one weekend each term and half holidays in Sydney was considered by him to be manageable for the children.
However that does not mitigate against the significance of Dr O’s evidence about the likely, and serious, consequences of the diminution of the children’s relationship with the father. Any such consequences then needed to be weighed against any advantages which relocation to Brisbane afforded the children, in order to determine where their best interests lay. However that did not occur.
It therefore follows that at least Grounds 1, 2 and 3 all enjoy merit, which renders it unnecessary, and likely inappropriate, to consider the balance of the grounds.
outcome
The appeal must be allowed, and as the parties conceded, most unfortunately, remitted for a further trial, albeit not before either of the previous judges who have heard the matter.
costs
In the event the appeal succeeded, the father sought that the mother pay his costs, quantified at $44,000.
However the appeal succeeds on errors of law, and even if the mother did in some measure contribute to them, so too did the father.
The father is in a much better financial position than the mother, as senior counsel for the father conceded.
There will be no order as to costs, however costs certificates will issue to both parties for the appeal and the rehearing.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 26 October 2022
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