Mallows & Harrod (No 2)
[2022] FedCFamC1A 102
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Mallows & Harrod (No 2) [2022] FedCFamC1A 102
Appeal from: Mallows & Harrod [2022] FedCFamC2F 36 Appeal number(s): NAA 30 of 2022 File number(s): LEC 92 of 2018 Judgment of: ALDRIDGE J Date of judgment: 8 July 2022 Catchwords: FAMILY LAW – APPEAL – RELOCATION – Where the appellant sought to relocate with the children – Where the primary judge did not give the parties an opportunity to be heard on the proposed order that required the appellant to live in a particular place – Denial of Procedural fairness – Error of law established – Appeal allowed – Relevant orders set aside and varied – No orders as to costs. Legislation: Family Law Act 1975 (Cth) ss 60CC
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Jasapas & Johns (No. 2) [2020] FamCAFC 203
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Paskandy v Paskandy (1999) FLC 92-878
Pruchnik & Pruchnik (No. 2) (2018) 58 Fam LR 458; [2018] FamCAFC 128
Sampson and Hartnett (No 10) (2007) FLC 93-350; [2007] FamCA 1365
Sayer v Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
U v U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 67 Date of hearing: 21 June 2022 Place: Sydney Counsel for the Appellant: Mr Foley Solicitor for the Appellant: Guy Sara & Associates Solicitor for the First and Second Respondents: G J Donaghy & Company Solicitors Solicitor for the Independent Children’s Lawyer: Filed Submitting Notice on 5 April 2022 ORDERS
NAA 30 of 2022
LEC 92 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MALLOWS
Appellant
AND: MR HARROD
First Respondent
MS ROBIE
Second Respondent
MS BOWDEN
Intervener
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
8 JULY 2022
THE COURT ORDERS THAT:
1.The application for leave to adduce further evidence as identified in the oral application made on 21 June 2022 is refused.
2.The appeal is allowed.
3.Order 4 made on 24 January 2022 is set aside.
4.Order 8 made on 24 January 2022 is varied by the addition of the words “if the children remain living in the Town B/Town K area, or in the event the children are living in Town A at a place agreed in writing at Town D, Queensland or Town E, Queensland”.
5.The parties have liberty to apply within seven (7) days as to the form of Order 4 above.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mallows & Harrod (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
On 24 January 2022 a judge of the Federal Circuit and Family Court of Australia (Division 2), made a suite of orders concerning the care of two children born on 20 April 2014 and 14 August 2015. The orders provided for the children to live with Ms Mallows, their paternal aunt and the appellant in this appeal (“the paternal aunt”). She was to have sole parental responsibility for them, save for their “Aboriginal culture and identity”, with that being placed in the sole responsibility of Ms Bowden, the maternal grandmother and intervener to the appeal.
The orders provided for the children to spend time with the maternal grandmother on two
non-consecutive weekends during each school term, and for specified weeks during school holidays.
Order 4, which is the subject of this appeal, is in the following terms:
4.The paternal aunt is not permitted to relocate the children from New South Wales and a travelling distance by motor vehicle of no more than 3 hours from [Town C, New South Wales] unless otherwise agreed to in writing by the maternal grandmother, … (the maternal grandmother) or by way of court order.
The significance of that order is that the paternal aunt had sought orders enabling her to move to Town A, Queensland, which is three hours or more travelling time north of Town C, New South Wales. At the time it was made, the paternal aunt and the children were living in Town K, New South Wales, which is at least 90 minutes travelling time west of Town C, where the maternal grandmother and the children’s parents live.
Order 4 effectively prevents the paternal aunt from taking the children to live in Town A.
The appeal is opposed by the maternal grandmother and both parents. The Independent Children’s Lawyer (“the ICL”) filed a Submitting Notice on 5 April 2022.
BACKGROUND
In order to understand the appeal, it is necessary to set out the history of the matter, which is largely taken from the reasons of the primary judge.
At the time of the hearing the children were in the primary care of the paternal aunt. She sought orders that would see that continue, with the children spending very limited time with the maternal grandmother. This stance was modified during the hearing and it was proposed that the children spend one weekend per school term with the maternal grandmother and specified weeks during the school holidays.
The maternal grandmother proposed orders that would see the children living with her and spending seven nights in every school holiday with the paternal aunt. Additionally, orders were sought for the children to commence spending time with their parents, supervised at first but progressing in nine months to two nights a fortnight in the parent’s sole care.
The parents did not play an active role in the proceedings, although they were apparently present for some or all of the hearing. They did not file trial affidavits.
The children, their mother and the maternal grandmother share Aboriginal heritage.
The parents separated in October 2016 and the children spent week about time in a fairly flexible arrangement, with the father at the paternal grandmother’s home in Town B, New South Wales and with the mother the maternal grandmother’s home in Town C.
By January 2018, the parents were not capable of looking after the children due to their drug use and family violence. The paternal aunt took the children into her care, she said, to avoid the possibility that child welfare authorities might remove the children.
The paternal aunt commenced these proceedings in February 2018. In June 2018, interim orders were made for the children to live with the paternal aunt and spend time with the maternal grandmother and extended family for three hours on one Saturday a month, with the paternal aunt and maternal grandmother taking turns travelling.
Her Honour recorded that despite the orders, the paternal aunt had taken the children to Town C to spend time with the maternal grandmother eight times. The maternal grandmother had travelled to Town B only five times.
In March 2021, the paternal aunt and the children moved to Town A without consulting the maternal grandmother or the parents. Orders were made on 20 April 2021 requiring the children to be returned.
Since then, the children have been living in Town K with the paternal aunt and travelling 40 minutes each way to school in Town B. The paternal aunt frequently took the children to Town A for weekends and school holidays.
The primary judge recorded that the travelling time between Town K and Town C was approximately 2.5 hours (at [34(d)]).
Her Honour found that the children’s primary carer was the paternal aunt to whom the children were strongly attached. The children were found to have loving relationships with the maternal grandmother and their parents (at [67]–[68]).
At [82]–[92], the primary judge noted that the maternal grandmother had the intention of transitioning the care of the children to their mother, which would be a second change of circumstances. Accordingly, it was found that the disadvantages caused by at least two changes in circumstances supported the children remaining in the care of the paternal aunt.
Her Honour was satisfied that both the paternal aunt and the maternal grandmother had the capacity to adequately meet the needs of the children.
The primary judge turned to the rights of the children to enjoy their Aboriginal culture, noting that there was a glaring lack of evidence as to this consideration (at [114]). Her Honour added:
119. During cross-examination the maternal grandmother added:
(a) She was an elder.
(b) The children are in … country and the tribe traces back to [Town C].
(c) Their great great grandfather was the only survivor from the [Town C] massacre.
120.Unfortunately evidence was not provided to the court as to … country, the tribes in the [Town C] area or in the [Town K]/[Town B] area and/or the cultural practices of the tribes.
After consideration of what evidence there was, her Honour concluded:
140.In summary as to this consideration of the right of the children to enjoy their Aboriginal culture I make the following findings:
(a) The children have not through their Aboriginal side of the family been extensively involved in their aboriginal culture.
(b) The paternal aunt has ensured that the children are aware of their Aboriginal culture and heritage since the children have been in her care.
(c) This consideration does not give rise to a change of residence for the children.
(d) The maternal grandmother intends to ensure that the children enjoy their Aboriginal culture moving forward.
(e) This enjoyment of the Aboriginal culture can be achieved with the children remaining in the care of the paternal aunt provided the children spend regular time with the maternal family including weekends and extended holiday time.
141.I therefore find that provided there are appropriate orders as to the children’s time with the maternal grandmother, then this consideration does not support an order for a change of residence for the children.
Finally, it was found that if the children were living with the paternal aunt, they would have a better chance of maintaining a relationship with the maternal grandmother, whereas if they were living with the maternal grandmother the relationship with the paternal aunt would not continue.
Her Honour determined that the above considerations overwhelmingly supported the children continuing to live with the paternal aunt.
Her Honour dealt with the question of relocation and concluded:
169.Although relocation was an issue in this matter the final hearing was conducted in such a way that little evidence was provided to support a relocation case.
170. The submissions were also minimal on the issue.
171.I find having considered the evidence before the court that it is in the children’s best interests that the children not be permitted to relocate to Town A and are to remain in New South Wales within a driving distance of three hours from the maternal grandmother and orders have been made accordingly.
172. I make this finding based on the following:
(a)The children have been exposed to many changes in their lives and future changes need to be minimised.
(b)Remaining in New South Wales will enable the children consistency of schooling and relationships with their community and friends.
(c)Remaining in New South Wales will enable the children to spend weekend time and holiday time with the maternal grandmother and maternal extended family.
(d) Remaining in New South Wales will enable the children to enjoy their Aboriginal culture.
APPLICATION TO ADDUCE FURTHER EVIDENCE
By an oral application made at the hearing of the appeal, the paternal aunt sought to adduce evidence of Google searches as to the driving time between Town C and Town B and between Town A and Town C. The paternal aunt also sought to adduce maps of the maternal grandmother’s Aboriginal country, apparently to show that it extended into Queensland (but not as far as Brisbane, let alone Town A).
The affidavit relied upon did not attempt to comply with the requirements of r 13.39 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and was only served on the other parties late the day before the hearing. Neither boded well for the reception of the new evidence.
There was some evidence at the hearing itself of the relevant travelling times.
The paternal aunt said that if the children moved to Town A they would be travelling an additional 30 to 40 minutes to go to Town C as opposed to Town B, but that it was an easier road to travel because it was not winding (Affidavit of the paternal aunt filed on 19 April 2021, paragraphs 12–14). She later added that Suburb G (which is in Town A) is a three hour drive from Town C and Town K is a 90 minute drive from Town C (Affidavit of the paternal aunt filed on 19 April 2021, paragraphs 69–70). The paternal aunt also said that Town C would be an extra 30 minute drive if she and the children moved to Town A (Affidavit of the paternal aunt filed on 19 April 2021, paragraph 85).
The evidence was not challenged and no contrary evidence was called.
I therefore do not understand the need for the Google searches. Further, those searches were available at the hearing (CDJ v VAJ (1998) 197 CLR 172 at [111]).
The source of the maps of the specific Aboriginal country, or how and by whom they were prepared, were not identified. Therefore, it is difficult to see how they are admissible. As I have mentioned earlier, their relevance is questionable.
Thus, the application for leave to adduce further evidence as identified in the oral application is refused.
THE APPEAL
The four grounds are, most unhelpfully, very broad in nature. In order to understand them, regard must be had to the Summary of Argument filed on 24 May 2022 which is also very brief. It emerges from that document that the challenges to Order 4 raise questions of procedural unfairness, lack evidence and the weight given to various considerations.
It is helpful to commence with some general observations about relocation cases.
It is well-established that cases involving a relocation of children are not in a special category and that the orders should be made that reflect their best interests. In doing so, the Court must consider the competing proposals that the parties have put before it. For example, see Sayer v Radcliffe (2012) 48 Fam LR 298, where the Full Court said:
48.A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents: see Palmer (No 2) at [76]; Morgan at [80]–[81]. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
As the primary judge herself said, at [168], it is an error to decide with whom a child should live and the possible relocation as discrete issues. See Paskandy v Paskandy (1999) FLC 92-878 at 86,456.
Of course, the Court is free to formulate its own orders (U v U (2002) 211 CLR 238 at [80]) but the Court must give the parties the opportunity to be heard on those proposed orders (Kioa v West (1985) 159 CLR 550 at 582; Pruchnik & Pruchnik (No. 2) (2018) 58 Fam LR 458 at [45]; Jasapas & Johns (No. 2) [2020] FamCAFC 203 at [83]).
Orders which provide for a parent, as opposed to a child, to live in a particular place, are made only in exceptional circumstances, as discussed by Bryant CJ and Warnick J in Sampson and Hartnett (No 10) (2007) FLC 93-350.
Her Honour identified the parties’ proposals at the outset of the reasons.
The primary proposal of the paternal aunt (which was the alternate position of the ICL), was in essence, that she have sole parental responsibility for the children (save for their Aboriginal culture and identity), that the children live with her, and spend specified time with the maternal grandmother and extended family. The aunt also proposed an order that she “be permitted to relocate the children to [Town A]” (at [7]).
This form of order has been the subject of criticism. In AMS v AIF (1999) 199 CLR 160, Kirby J said:
188.I do not consider that the references in the reasons of the primary judge and in those of the Full Court to the provision of “permission” to the mother to return to the Northern Territory with her son indicated an erroneous understanding of the decision which had actually to be made. As I have shown, this was the very way in which the parties framed their respective affidavits and presented their arguments. It was unsurprising, therefore, that the judges should also slip into the same language. Notwithstanding this, it would be preferable that such references to “permission” to relocate be avoided. The word has a tendency to distract attention from the jurisdiction actually being exercised. In this case, it concerned the custody and guardianship of the child, residence arrangements and access and contact orders, all of which fell to be decided having regard to the welfare of the child as the paramount consideration. To treat the determination of the residence of the child, and the connected issue of custody, as dependent upon the giving or withholding of “permission” to a parent to relocate his or her residence may divert attention from the child’s welfare, to the competing needs and demands of the parents in conflict.
(Footnotes omitted)
To a similar effect, Hayne J said:
217.… But that does not mean that the question for the Court is whether the mother is to be permitted to move to Darwin. And it does not mean that the question is whether the mother has shown a “good” or a “compelling” reason for wanting to move.
218.To translate the question into this form - has the mother shown a good, or good enough, reason for wanting to move - focuses attention upon the reasons and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child - to be in the custody of the father (in Perth) or to be in the custody of the mother (in Darwin). That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody in Darwin. If the mother had wished to move to marry and establish a new family in Darwin, or to take up new and better employment or training in Darwin, it may well have been possible to conclude that in all the circumstances the child's welfare would be advanced by his being committed to the mother’s custody. The circumstances to be considered would include not only the fact of relocation but also all of the consequences that would follow - separation from the non‑custodial parent, the creation of a new family in which the child would thereafter live (with all the concomitant advantages and disadvantages), the better economic position of the custodial parent, and so on. In that sense, inquiring about why the mother wished to move was relevant but it was only one inquiry among the many that go into deciding the ultimate question. The complexity (and difficulty) of the inquiries required by that question is well illustrated (in a different legislative context) by the decision of the Full Court of the Family Court of Australia in B and B: Family Law Reform Act 1995. But as that decision rightly shows, the inquiries are directed to ascertaining what is in the best interests of the child.
(Emphasis in original)
The primary position of the ICL, which was adopted by the maternal grandmother, mother and the father, was that the children live with the maternal grandmother, who was to have sole parental responsibility for them, and were to spend seven nights with the paternal aunt in the school holidays.
At the time of the hearing the maternal grandmother, the mother and the father were all living in Town C. There was no suggestion that any change was planned.
No other proposals were put before the Court, even as alternatives or back-up proposals. Thus, the proposals facing her Honour were that the children live in Town A with the paternal aunt or with the maternal grandmother in Town C.
No party or the ICL proposed an outcome that saw the children living with the paternal aunt in New South Wales.
The primary judge, after a consideration of the s 60CC factors, found that they “overwhelmingly support orders whereby it is in the children’s best interests to remain living with the paternal aunt” (at [157]).
Her Honour then turned to the question of the relocation – thereby falling into the trap of considering these issues discretely, against which she has cautioned herself.
No oral submissions were made. At the end of the evidence, directions were made for the provision of written submissions with no further hearing. At no stage did the primary judge raise Order 4 with the parties or the ICL.
Order 4 is clearly material as it imposes a significant restriction on the right of the paternal aunt to live where she chooses (Stead v State Government Insurance Commission (1986) 161 CLR 141 (“Stead”)). A breach of procedural fairness is an error of law and Ground 2 has therefore been made out.
I do not need to consider the remaining challenges, which were only faintly pressed and faced some obvious difficulties.
Order 4 must therefore be set aside.
The respondents submitted that in that case, all the orders should be set aside and the entire matter remitted for rehearing.
Section 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) empowers the Court to make a wide range of orders when exercising appellate jurisdiction, only one of which is to refer the matter for rehearing. It provides:
(1)Subject to any other Act, the Federal Circuit and Family Court of Australia (Division 1) may, in the exercise of its appellate jurisdiction:
(a) affirm, reverse or vary the judgment appealed from; or
(b)give such judgment or make such order as, in all the circumstances, it thinks fit, or refuse to make an order; or
(c)set aside the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit; or
(d)award execution from the Court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court.
Regard must be had to the controversy between the parties that was determined by the Court which was whether the children should live in Town A with the paternal aunt or in Town C with the maternal aunt.
There is no cross-appeal and hence no challenge to the orders giving effect to the finding that the children’s best interests were overwhelmingly served by living with the paternal aunt.
What role then, did Order 4 play in the scheme of things?
It is hard to reconcile the order, which effectively permits the paternal aunt to move the children to live anywhere in New South Wales, so long as it is within three hours travelling time from Town C with Order 8 which appoints Town F as the changeover location. That location, which is between Town B and Town K on the one hand and Town C on the other, only makes sense if the children remain living in the Town B/Town K area. Town F makes no sense if the children are living elsewhere. Yet no order was sought or made that the children continue to live in the Town B/Town K area. The paternal aunt could properly take them to live anywhere in New South Wales and she could choose well away from that area.
Two of the justifications for Order 4, as set out in [172] which has been quoted earlier, namely that change for the children be minimised and to provide for consistency in schooling and friends, therefore do not support it.
There is, on the evidence before her Honour, a slightly greater travelling time between Town A to Town C than if the children were restricted to New South Wales, but not such as to prevent the children from spending time with the maternal grandmother in Town C as provided in the orders. The children will spend slightly longer travelling but that is all.
There was no evidence which suggested that remaining in New South Wales would enable the children to enjoy their Aboriginal culture. Her Honour found that the enjoyment of that “can be achieved with the children remaining in the care of the paternal aunt provided the children spend regular time with the maternal family including weekends and extended holiday time” (at [140(e)]).
There was also no evidence as to the benefits of the children living with the paternal aunt but on the specific Aboriginal country and no evidence to suggest that if the children were to live in New South Wales within three hours travelling time of Town C they would remain in the specific Aboriginal country.
There was no basis for Order 4. Consistently with s 36(1)(b) and s 36(1)(c) of the FCFCOA Act, it will be set aside.
In Stead, it was pointed out that not every breach of procedural fairness requires a new trial (at 145). No order along the lines of Order 4 was raised for consideration. No proposal, even as a back-up proposal, was put that the children should live with the paternal aunt in the Town B/Town K area or that there be an order for her to live within a particular distance of Town C. There is no controversy to be remitted for rehearing or be quelled by the re-exercise of discretion. There is therefore no need for any updating evidence.
For the assistance of the parties, Order 8 will be varied so as to make the change over point half way between Town C and Town A if the children go to live there, but the parties will be granted liberty to apply in relation to it, if they wish to make submissions as to the precise location.
No orders as to costs were sought.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 8 July 2022
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