Mandall & Camdyn (No 2)
[2022] FedCFamC1A 91
•17 June 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Mandall & Camdyn (No 2) [2022] FedCFamC1A 91
Appeal from: Mandall & Camdyn [2021] FedCFamC2F 59 Appeal number(s): NAA 36 of 2021 File number(s): BRC 2330 of 2020 Judgment of: MCCLELLAND DCJ Date of judgment: 17June 2022 Catchwords: FAMILY LAW – APPEAL – PARENTING – Where the appeal concerns final parenting orders for the child to live with the respondent – Where the respondent unilaterally moved interstate with the child – Whether the primary judge erred by failing to place sufficient weight on the benefit to the child to have a meaningful relationship with both of her parents – Whether the primary judge erred by placing excessive weight on the disruption to the child’s life if she were to move to the appellant’s place of residence – Whether the primary judge erred by finding that the respondent was likely to comply with future Court orders – Whether the primary judge erred by placing significant weight on the respondent’s interests – Appeal dismissed – no order for costs.
FAMILY LAW – APPLICATION IN AN APPEAL – Where the appellant brought on two applications to adduce fresh evidence of circumstances after the delivery of final judgment by the primary judge and also after the hearing of the appeal – Applications dismissed.
Legislation: Family Law Act 1975 (Cth) ss 60CC, 70NBA(1)(b)(i), 93A(2)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35
Explanatory Memorandum, Family Law Reform Bill 1994 (Cth)
Cases cited: Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148
Blinko and Blinko [2015] FamCAFC 146
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Crowley & Picton [2018] FamCAFC 100
Godfrey & Sanders [2007] FamCA 102
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Harford & Spalding [2022] FedCFamC1A 78
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127
Lansa & Clovelly [2010] FamCA 80
Levan & Huxley [2020] FamCA 704
Lovell v Lovell (1950) 81 CLR 513
Mazorski v Albright (2008) 37 Fam LR 518; [2007] FamCA 520
Moose and Moose (2008) FLC 93-375; [2008] FamCAFC 108
MRR v GR (2010) 240 CLR 46; [2010] HCA 4
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Owens & Benson [2014] FamCAFC 243
Reeves & Grinter [2017] FamCAFC 19
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Sun Alliance Insurance Limited v Massoud [1989] VR 8
U v U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 153 Date of hearing: 22 March & 13 May 2022 Place: Brisbane (via videolink) Counsel for the Appellant: Mr Walsh Solicitor for the Appellant: Sterling Law Counsel for the Respondent: Mr Page QC Solicitor for the Respondent: Michael Dwyer Solicitor Counsel for the Independent Children's Lawyer: Mr Hodges Solicitor for the Independent Children's Lawyer: Barbara Fox Solicitor ORDERS
NAA 36 of 2021
BRC 2330 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MANDALL
Appellant
AND: MS CAMDYN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
17 JUNE 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant’s Amended Application in an Appeal filed 3 February 2022 is dismissed.
3.The appellant’s Application in an Appeal filed 7 April 2022 is dismissed.
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 Mandall & Camdyn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
The appellant father appeals against parenting orders made by a judge of Division 2 on 16 September 2021 in respect to the parties’ child, born in 2018 (“the child”). Most significantly, for the purpose of this appeal, the primary judge made orders permitting the child to live with the mother, Ms Camdyn (“the respondent”), in south east Queensland and spend time with the father, Mr Mandall (“the appellant”), both in Queensland and New South Wales.
Both parties were in agreement that an order should be made for the parties to have equal shared parental responsibility. The focus of the dispute considered by the primary judge was primarily where the child should live. The spend time arrangements for the child were to be dependent upon the determination of that issue.
In making the orders that permitted the respondent to continue residing in south east Queensland, the primary judge found that it was likely that the respondent would facilitate the child having a meaningful relationship with the appellant. The appellant contends that the primary judge erred in making that finding, among others, and has made two separate applications in an appeal on 3 February 2022 and 7 April 2022 seeking leave to present further evidence of events which have occurred subsequent to the hearing for the purpose of establishing error on the part of the primary judge in respect to that prediction.
The fresh evidence upon which the appellant seeks to rely, in essence, would establish that the respondent has facilitated the child spending time with the appellant on some occasions in accordance with the orders, but that she has failed to do so in respect to the more substantial periods of time during Queensland school holiday periods. The appellant contends the evidence would establish that the respondent has done so for capricious reasons and, further, that the respondent is doing so for the purpose of alienating the child from the appellant.
It is common ground that the evidence presented by the appellant would also establish that the appellant has not taken each opportunity to travel from New South Wales to Queensland to spend time with the child. The appellant contends that he has failed to do so as a result of his financial circumstances.
It is uncontentious that, in the period subsequent to the orders made by the primary judge on 16 September 2021, the respondent has not facilitated the child spending time with the appellant on some occasions. The respondent does not accept that her reasons for doing so have been capricious or unreasonable. She further contests the appellant’s assertions that she has engaged in conduct to alienate the child from the appellant.
For reasons which I explain, I have denied the appellant leave to adduce fresh evidence and I have dismissed the appeal. In circumstances where the respondent failed to provide a statement of costs incurred in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), I have not made an order for costs.
BACKGROUND
General
The appellant was born in 1972 and the respondent was born in 1977.
The parties met in City A, New South Wales in 2015. Shortly after the parties met, the respondent moved to south east Queensland and stayed with a relative who is now deceased. The appellant stated that the respondent moved to Queensland because she was unable to find work in City A. He was not challenged on that evidence.
The appellant followed the respondent to south east Queensland in December 2015 and the parties remained living together in south east Queensland until early 2018, at which time they moved to Town B, New South Wales.
The child was born on 22 July 2018 in Town B. The parties separated in June 2019, with the appellant leaving the respondent and the child to continue living in the property that they had both rented. The child was 11 months old at the time. The respondent has been the child’s primary carer since that time.
The child was three years old at the time of the hearing and approximately 3 ½ years old at the time of the appeal.
The appellant has four children from a previous relationship, two sons and a daughter who are adults. He also has another daughter who is 16 years of age. He sees his younger daughter approximately every fortnight. The appellant also has two grandchildren whom he attested to seeing approximately every week, although that frequency had diminished during the period of the public safety measures established in response to the COVID-19 pandemic.
During the time that the parties resided in Queensland the appellant, who has a business degree and a finance diploma, was in employment as a finance professional, earning approximately $100,000 per year. It is not clear when the appellant had been blessed with grandchildren during that period, however he maintained contact with his children during the time that he lived in south east Queensland, including during times they travelled to Queensland or when he travelled to New South Wales.
Both parties contended that the other was responsible for acts of family violence committed during the course of their relationship. On several occasions, each party sought the intervention of the New South Wales Police Force who, in response in October 2019, applied for an interim Apprehended Domestic Violence Order (“ADVO”) for the protection of the appellant and, in January 2020, applied for an interim ADVO for the protection of the respondent. The primary judge did not accept the evidence of the respondent that she had been the subject of physical violence perpetrated by the appellant. As a related issue, the primary judge did not accept the evidence of the respondent that she relocated to Queensland as result of concerns for her own safety or the safety of her child (at [147]).
It is common ground that, in late January 2020, the respondent unilaterally relocated with the child to Queensland on a permanent basis without the appellant’s knowledge or consent.
The respondent had formed a romantic relationship with Mr C (“the respondent’s new partner”) prior to moving to south east Queensland and was engaged to him in February 2020.
The respondent initially lived with her sister in Town D, Queensland and has subsequently moved into her own accommodation. The primary judge accepted at [210] that the respondent’s sister continues to be a support for her.
In the period subsequent to the respondent living independently in south east Queensland, her new partner spends approximately two nights each week with the respondent and the child in a property that has been rented by the respondent.
During her time in south east Queensland, the respondent has also taken out a lease on a commercial property from which she set up her own business and, at the time of the trial, planned to open her business to the public.
On 2 March 2020, the respondent filed an Initiating Application in the Federal Circuit Court of Australia (as it was then known) seeking orders, inter alia, that she have sole parental responsibility and that the child be permitted to relocate with the respondent to Queensland.
On 9 March 2020, the appellant filed his Response seeking, inter alia, orders for equal shared parental responsibility, for the child to immediately return to Town B with the respondent, for the child to live with the appellant and spend time with the respondent.
On 7 May 2020 orders were made, by consent, for the child to communicate with the appellant by FaceTime.
The primary judge notes that, on 25 June 2020, orders were made by consent for the child to live with the respondent until further order, spend time with the appellant and for the parties to submit to drug testing. It is noted that the drug tests returned negative results for both parties.
At [26] of the reasons for judgment, the primary judge noted that, as at the date of the hearing, “on 19 July 2020 the [appellant] last spent time with the child thereafter border restrictions prevented him spending time with the child in Queensland.”
On 5 November 2020, the respondent completed a parenting program in accordance with orders previously made by the Court.
The findings of the primary judge in respect to s 60CC considerations
In terms of the primary consideration set out in s 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) the primary judge found that it was in the interests of the child for her to have a meaningful relationship with both parents and that the child was not at risk of either psychological or physical harm in the care of either parent (at [196]–[197]).
At [198] of the reasons for judgment, the primary judge set out her findings in respect to the additional considerations set out in s 60CC(3) of the Act which, by way of summary, are as follows:
·It is not possible to ascertain the child’s views as to living with and spending time with the parties due to her current age, being three years old.
·In terms of significant relationships:
·the child’s relationship with the respondent is well-established and secure;
·the child’s engagement with the appellant was positive.
·In terms of the extent to which each of the child’s parents have taken the opportunity to be involved in making major long-term decisions, spending time with the child and communicating with the child;
·the appellant has attempted to maintain his relationship with the child both immediately prior to separation and in pursuing a relationship with the child following her relocation;
·the respondent failed to facilitate the child’s relationship with the appellant in late January 2020 and in placing her interests above the child when relocating the child to Queensland.
·The appellant supports the child financially through periodic child support payments.
·The child would be adversely affected by an order removing her from the care of the respondent at her current age and stage of development, with such an order “likely to be disruptive and distressing for her.”
·There are significant practical difficulties and expenses in facilitating the appellant spending time with the child while she continues to remain living in Queensland.
·The parties have the capacity to optimally care for the child.
·Given the child’s young age, the optimal arrangement for the child would be one where the parents lived a short distance from each other to facilitate regular, frequent and predictable time to occur with each parent.
·In terms of parental responsibility;
·the respondent acted “in complete disregard of the child’s right to establish and develop a meaningful relationship with the [appellant] when she removed the child to Queensland.”
·in doing so, she selfishly placed her own interests ahead of the child.
·she established herself as the “100% carer” of the child, irrespective of the impact that had on the child’s relationship with the appellant and the extended paternal family.
GROUNDS OF APPEAL
The appellant’s grounds of appeal are set out in the Amended Notice of Appeal filed on 31 January 2022 as follows:
1.The primary Judge erred by failing to place sufficient weight on the benefit to the child of having a meaningful relationship with both of her parents compared with the consideration of disruption of the child’s life.
2.The primary Judge erred by placing grossly excessive weight on the consideration of disruption to a three-year-old child’s life by having to move away from the Town E area.
2a.The primary Judge erred to the extent she considered that the Orders would provide a meaningful relationship with both parents.
3.The primary Judge erred by finding that the mother was likely to comply with future court orders and facilitate a meaningful relationship with the father because:
a.no proper basis for such a finding was identified and insufficient reasons were provided;
b.having seen the mother cross examined for many hours, the primary Judge noted she was a dishonest witness who was willing to say anything in order to remain in South East Queensland;
c.the primary Judge knew that the mother had wilfully breached a Court order to file her submissions after the trial had concluded;
d.the factual findings inter alia that the mother had consistently acted in disregard of the child’s right to a relationship with her father and her evidence at the trial; and
e.in the premises, there was no basis for such a finding.
4.The primary Judge erred by placing equivalent weight on the mother’s interests compared to those of the child.
5.The primary Judge erred by placing significant weight on the mother’s interests and no weight on the father’s interests.
6.
The primary Judge erred by failing to consider whether the child would be well-settled in the Town B area.7.The primary Judge erred by placing grossly excessive weight on whether the mother will be resentful and unhappy should she relocate to Town B.
8.The primary Judge erred by failing to provide any reasons or any adequate reasons for not accepting the views and recommendations of the family report writer.
Natural justice before finding that restrictions relating to interstate travel due to the Covid19 pandemic which had arisen since the trial had concluded were a material consideration.9.The primary Judge erred by accepting the mother’s evidence that she regards Queensland as her home.
10.The primary Judge erred by accepting the mother’s evidence of the difficulties she asserted she would face by relocating to Town B.
11.The primary Judge erred by finding that there was insufficient evidence to support a relocation order
the child being in day care was a substitute for being the care of her father.(As per the original)
APPLICATIONS BY THE APPELLANT TO RELY ON FRESH EVIDENCE
By Amended Application in an Appeal filed 3 February 2022, the appellant sought an order permitting him to rely upon evidence set out in his affidavit dated 31 January 2022. The appellant set out various contentions regarding events that have occurred since the orders were made by the primary judge.
The appellant also sought an order granting permission to rely upon an Amended Notice of Appeal. There was no objection to that aspect of the appellant’s application.
At the hearing of the appeal on 22 March 2022, I indicated that I would consider and rule upon the appellant’s application to adduce further evidence in the context of determining the appeal.
Subsequent to the hearing of the appeal, by further Application in an Appeal filed 7 April 2022, the appellant sought leave to reopen the parenting proceedings for the purpose of receiving further updated evidence, which the appellant contended had occurred in the period subsequent to him filing his affidavit on 31 January 2022. That further evidence was set out in an affidavit filed by the appellant on 7 April 2022.
That second Application in an Appeal was listed for a further short hearing on 13 May 2022. On that day, the queen’s counsel for the respondent made an oral application seeking leave for the respondent to rely upon an affidavit filed on 12 May 2022, the day prior to the supplementary hearing, in which the respondent responded to the matters raised in the appellant’s affidavits filed on 31 January 2022 and 7 April 2022.
For reasons set out in ex tempore reasons delivered on that day, I rejected the respondent’s oral application and again indicated that I would consider and rule upon the appellant’s application to reopen proceedings and rely on further evidence in the context of determining the appeal.
In rejecting the respondent’s application to rely upon her affidavit filed on 12 May 2022, I noted, in my ex tempore reasons for judgment delivered on that day, that:[1]
…the respondent nonetheless contends that the assertions made in the appellant’s affidavit are controversial and that, in the event of his affidavit being admitted into evidence, she contends that it would be appropriate for her to be given the opportunity to both test and reply to that evidence.
[1] Mandall & Camdyn (No 2) [2022] FedCFamC1A 91
Pursuant to s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), the Full Court has discretion to admit fresh evidence. That section relevantly provides:
In an appeal, the Federal Circuit and Family Court of Australia (Division 1):
(a) must have regard to the evidence given in the proceedings out of which the appeal arose; and
(b) has the power to draw inferences of fact and, in its discretion, to receive further evidence , which evidence may be given:
(i).as provided for in Division 2 of Part XI of the Family Law Act 1975 ; or
(ii).by oral examination before the Court or a Judge; or
(iii).otherwise in accordance with section 73 of this Act.
That section essentially replicates the now repealed s 93A(2) of the Act, which was considered by the High Court of Australia in CDJ v VAJ (1998) 197 CLR 172 (“CDJ”). The majority judgment in that matter was delivered by their Honours McHugh, Gummow and Callinan JJ, who will collectively be referred to as the plurality. In their joint judgment, the plurality upheld an appeal against a decision of the Full Court of the Family Court of Australia which had determined at [82] that the facts of that case presented as “one of the rare and exceptional cases in which the discretion to admit fresh evidence on appeal should be exercised.”
The plurality found the Full Court was in error in determining to admit further evidence. The Full Court had done so on the basis of an assessment that, if presented to a trial judge, the further evidence may have resulted in a conclusion “that the best interests of [the children in that case] may not be served by allowing the residential order to stand” (at [49]). As I will explain, the plurality held that the Full Court erred in applying that test.
As noted by counsel for the appellant, the plurality noted that the discretionary power vested in the Full Court to admit further evidence is not to be approached by applying common law principles (at [106]), but rather, the discretion conferred to receive fresh evidence is to be determined on the basis of the provisions of the relevant legislative provision and “is not expressed to be limited in any way” (at [107]).
That is, the plurality did not accept that the statutory language should be coloured or limited by expressions such as the requirement on the part of a party seeking to present further evidence to establish that the case fell into the category of “rare and exceptional.” It is not the case, however, as submitted by learned counsel for the appellant, that the High Court held that a liberal approach should be taken to determining whether fresh evidence should be received.
To the contrary, the plurality explained in considerable detail why a cautious approach is required. To take other than a responsibly cautious approach would, as noted by the plurality, “tend to throw into jeopardy the finality of orders made by primary judges and give them a merely provisional status.” The plurality held that to take other than a cautious approach to the reception of fresh evidence on an appeal would be neither in the public interest nor in the best interests of the children who are the subject of the proceedings (at [169]).
This is in circumstances where, as noted by the plurality, the very nature of parenting orders “involve predictions and assumptions about the future which are not susceptible of scientific demonstration of proof” and, in undertaking that task, a trial judge’s “perceptions, predictions and even intuition and guesswork can all play a part in the making of an order” (at [151]).
The fact that events have not turned out as predicted does not demonstrate error on the part of a trial judge. As noted by the plurality, if subsequent events establish that the prediction by the primary judge, even though soundly based, has not occurred, then as noted by the plurality “the preferred mode of procedure” where there has been such a change in circumstances that was not contemplated “between the making of the order and the hearing of any appeal” would be for the parties to bring an application for variation of the orders pursuant to s 65D of the Act (at [118]).
It is of significance that even though she was in the minority on the substantive issue in the appeal, Gaudron J was of a similar view to that expressed by the plurality in respect to that issue, stating at [56]:
The Family Court has power to vary or discharge orders specifying parent’s rights and obligations with respect to his or her children. Thus, ordinarily, evidence of subsequent events should not be admitted on an appeal from a parenting order if that evidence would more appropriately ground an application for variation of the order in issue.
It is my view that such an approach should more appropriately have been taken by the appellant in this case. Equally, insofar as the appellant contends that the events which have occurred subsequent to the hearing by the primary judge and, indeed, subsequent to the hearing of the appeal which establish that the respondent has contravened orders of the Court, he is entitled to pursue a contravention application pursuant to Division 13A of Part VII of the Act. Relevantly, s 70NBA provides for a party who is the subject of contravention proceedings to seek a variation of the parenting order even if the Court does not find that such a contravention has occurred. This would include, for example, where it might be found that the party who has failed to comply with an order had a reasonable excuse for their conduct (s 70NBA(1)(b)(i)).
Additionally, in rejecting the applications of the appellant to present further evidence, it is my view that the additional evidence that the appellant seeks to rely upon could not be admitted without the respondent having a proper opportunity to test the evidence. Relevantly, the appellant stated that the purpose of seeking to present the further evidence is to establish that the primary judge erred in finding that, in the event of the respondent being permitted to remain living in south east Queensland, she would facilitate the child having a meaningful relationship with the appellant. In that context, it was noted by the primary judge at [228] of the reasons for judgment that “having heard the [respondent’s] cross examined over many hours I am satisfied that she will comply with Court orders.”
The appellant contends that the further evidence upon which he intends to rely is uncontroversial and will establish that the respondent has not, in fact, complied with orders of the Court in respect to, at least, facilitating the child spending time with the appellant during the longer periods of time during which the child was to spend time with him during gazetted Queensland school holidays. The appellant further contends that the respondent has done so without reasonable excuse and, indeed, has done so in a capricious manner.
The evidence would further explain why the appellant has not taken every opportunity to travel to Queensland to spend time with the child due to financial reasons. It was not in dispute that the appellant has failed to avail himself of every opportunity provided in the orders for him to spend time with the child in Queensland.
While the appellant successfully objected to the respondent relying upon an affidavit which she prepared in response to the further evidence set out in the appellant’s affidavits, the mere fact that she sought to do so is an indication that, from the respondent’s perspective, the evidence is indeed controversial. This must be the case in circumstances where, as contended by counsel for the appellant, the evidence would establish that the respondent is seeking to alienate the child from the appellant.
For me to simply receive the evidence upon which the appellant seeks to rely, without providing the respondent with the opportunity of testing the evidence, would constitute a fundamental denial of procedural fairness. In that respect, for instance, the respondent would be entitled to challenge the appellant by way of cross-examination as to the state of his financial circumstances and whether they are such that he was unable to travel to Queensland to spend time with the child. This is in circumstances where, despite his stated inability to finance trips to Queensland which he attested cost approximately $150 in car expenses, he has nonetheless managed to source funds to engage both a barrister and solicitor to represent him in these proceedings, including making two applications within those proceedings, the second of which involved a subsequent hearing.
The issue as to the respondent facilitating the child spending time with the appellant is interconnected with that issue insofar as, at [171] of the reasons for judgment, the primary judge noted the view expressed by the Family Report writer that, as at the time of writing her report “the significant gap in time since regular contact between [the child] and the [appellant] may now require a rebuilding of the relationship.”
The nature of the child’s relationship with the appellant and specifically, the security of her attachment to the appellant, is relevant in circumstances where the primary judge made orders commencing from 1 February 2022 for the child to spend time with the appellant during school holidays, which included the totality of the school holidays at the end of the first and third Queensland school terms and half of the school holidays for the mid-year and Christmas school holiday periods (Order 5(b)). The respondent is, of course, expected to comply with those orders. However, to the extent that she has not done so, the respondent should not be deprived of the opportunity of testing the appellant’s evidence and presenting an argument regarding the potential existence of a reasonable excuse in failing to facilitate the child spending time with the appellant for those longer periods. This is in circumstances where the child is just three years of age, where she had not been spending regular time with the appellant, including as result of the appellant not availing himself of every opportunity, and in circumstances where the time that the child would spend with the appellant during those longer periods would be interstate (Order 7) and away from her primary attachment figure, should circumstances arise where the child became distressed.
The appellant’s contentions could not, in my view, be properly tested without a re-hearing. It would also be necessary for the respondent to be provided with a fair and reasonable opportunity to present argument in response to the appellant’s contentions, including as to why she contends she had a reasonable excuse for failing to comply with the orders without there being a re-hearing of the matter.
To admit the evidence without providing the respondent with that opportunity would constitute a fundamental denial of her right to procedural fairness in circumstances where the evidence is highly controversial including an allegation that she is alienating the child from the appellant.
Moreover, it would not be possible for me, presiding as an appellate judge of this honourable Court, to fully weigh that evidence with the evidence given at first instance (CDJ at [135]). In that respect, for instance, issues as to the significance of the appellant failing to take each opportunity to spend time with the child would be a relevant consideration pursuant to s 60CC(3)(c)(ii), as would the potential for argument to be presented regarding the significance of child’s lack of maturity (s 60CC(3)(g) and its relevance to the capacity of the child to spend relatively lengthy periods of time with the appellant in the circumstances where that time has been limited and irregular including as a result of the appellant’s own decisions not to travel to Queensland.
This is in circumstances where the reasonableness of the respondent’s conduct in failing to facilitate the child spending time with the appellant potentially has very significant potential repercussions for the respondent and for the child. As noted by the primary judge at [228], such a finding may result in “orders for the child to live with the [appellant] and the [respondent’s] time as a consequence will be limited.” In noting that potentiality, reference is made to alternative Order 8 as sought by the appellant in his Amended Notice of Appeal.
As noted by the plurality in CDJ at [135] and [150], the Full Court should be particularly cautious in admitting further evidence if the consequence of doing so would require there to be a re-hearing. This is particularly so in circumstances where the Full Court does not form the view that the further evidence, had it been available at the trial, would have produced a different result (CDJ at [149]).
In that last respect, I note that the plurality in CDJ at [149] stated that “it was not enough that the Full Court thought that, upon the whole of the evidence including the further evidence, another judge might make a different order” but, the test to apply is whether the further evidence if it had been tendered before the primary judge “was likely to have produced a different result” (emphasis added).
I am not satisfied that the further evidence that the appellant seeks to rely upon would have, as a matter of probability, resulted in the primary judge making a different order. This is because the primary judge regarded the child as potentially having a meaningful relationship with the appellant as but one consideration, albeit a primary consideration, to be weighed against a number of additional considerations, including the personal circumstances of the respondent to which I will subsequently refer.
Further, I am satisfied that it is likely, when assessing the reasonableness of the respondent’s conduct in the period subsequent to the hearing, that the primary judge would consider the respondent’s anxiety about the child spending a significant amount of time away from her primary carer, with whom she has a secure attachment relationship, to an interstate location with the appellant, who, as result of circumstances including his own conduct, has not spent regular time with child.
In summary on this issue, if I were to accede to the appellant’s applications and admit the further evidence of the appellant, I would, in my view, fall into the same error as that which was the subject of consideration by the High Court in CDJ. That is, I would be admitting the further evidence on the basis of the possibility rather than the likelihood or probability of the primary judge making different orders as a result of the receipt of that further evidence.
For these reasons, I dismiss each of the appellant’s Applications in an Appeal to rely upon further evidence.
Accordingly, I will consider this appeal on the basis of the evidence presented at the trial.
CONSIDERATION
Grounds 1 and 2 – did the primary judge err by failing to place sufficient weight on the benefit to the child having a meaningful relationship with both of her parents and placing grossly excessive weight on the consideration of disruption to a three year old child’s life by having to move away from the Town E area?
These grounds are interrelated and, appropriately, counsel for the appellant dealt with them jointly.
At the outset, in considering these grounds it must be noted that challenges to the attribution of weight placed on particular portions of evidence by a trial judge face significant challenges which are difficult to surmount (Lovell v Lovell (1950) 81 CLR 513 at 519 and 533; Gronow v Gronow (1979) 144 CLR 513 at 518 at 519–520; CDJ at 231–232). In that respect, in Gronow, Stephen J said at 519–520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight…
The appellant has failed to establish error on the part of the primary judge in weighing the benefit of the child having a meaningful relationship with other considerations impacting upon the best interests of the child, including by weighing the relevant considerations that I refer to below.
At [192] of the reasons for judgment, the primary judge appropriately applied the test for determining what is a meaningful relationship for the purpose of s 60CC(2) of the Act when referring to the decision of Brown J in Mazorski v Albright (2008) 37 Fam LR 518 (“Mazorski”) at [26] as endorsed by the Full Court in Blinko and Blinko [2015] FamCAFC 146 at [29] that “the word “meaningful” [as used in s 60CC(2)(a)] is a qualitative adjective, not a strictly quantitative one.”
The primary judge, also by reference to Mazorski, correctly determined that the concept of a meaningful relationship is one which is “important, significant and valuable to the child” (see Sigley & Evor (2011) 44 Fam LR 439 at [132] citing Mazorski at [26]).
The primary judge also, with respect, correctly noted that the Act “aspires to promote… a meaningful relationship, not an optimal relationship” (see Godfrey & Sanders [2007] FamCA 102 (“Godfrey”) at [36]).
In this matter, both parties acknowledged that it is in the child’s best interests to have a meaningful relationship with both parents in terms of s 60CC(2)(a). That was accepted to be the case by the primary judge, who found at [196] that “there is benefit to the child having a meaningful relationship with both of the child’s parents” and “in an ideal world” that would be facilitated “where parents live within close proximity to a very young child” and where “regular, frequent, consistent time is readily achievable.”
It is the case that the primary judge found, in the period immediately following the parties’ separation, that the respondent failed to facilitate the child having a meaningful relationship with the appellant. The primary judge noted however, that on 7 May 2020, the parties made orders by consent facilitating the child to engage in communication with the appellant by FaceTime and, on 25 June 2020, orders were made by consent for the child to live with the appellant and to spend time with the respondent.
Those orders were made in the context where the primary judge noted that, in the period subsequent to the respondent moving to Queensland in January 2020, the appellant asserted he had declined the respondent’s offer to facilitate the child having more Skype calls per week with the child because he did not want to disappoint her. The primary judge also noted that the appellant declined the respondent’s offer to spend more weekend time with the child, telling the respondent that he declined the offer because of “the extra time and cost in travel involved coming to Queensland every fortnight to see [the child]” (at [82]).
It was not disputed that, as at the date of the hearing, aside from the period impacted by travel restrictions imposed by the Queensland government as part of its public safety measures to combat the COVID-19 pandemic, the child had been spending time with the appellant when she was in Queensland. Given its centrality to this appeal, I note that the primary judge recorded the evidence at [140]–[143] as follows:
…To spend time with [the child] he has been driving from Town B to Queensland and leaves on Friday morning. He has been taking time off work on Friday and making up that time.
Should the [respondent] remain in Queensland he considers that he would not be able to spend time with [the child] more than once a month. He has been spending time with her every three weeks however that is not practicable. He said he intends to drive. He has spent time with [the child] overnight and has on occasion hired accommodation or stayed with friends. He said he could not afford to hire accommodation to spend time with [the child] and was hoping to spend time with [the child] more than once a month. He has been spending time with her every three weeks her and stay with friends. He has a school friend who lives in Town F he has known for 35 years.
He said he usually picks [the child] up on Saturday morning and returns her on the Sunday evening. He would then drive halfway home to Town B. He said if [the child] remains in Queensland he will only spend once a month with her as otherwise more time is not practical. He gets four weeks leave a year. He indicated to the ICL that the parties had agreed to [the child] spending half the school holidays with the parties. He said he has the option of working remotely and considered he would be available to care for [the child] if she spent half school holidays in his care. He said his work is flexible. His firm is family friendly because they work in the child care industry themselves.
He said he would like the option for [the child] to travel by air so she could spend time with her extended family. The [respondent] should bear the cost of flights.
(Citations omitted)
The primary judge was acutely aware of the difficulties arising from the child maintaining a meaningful relationship with the appellant if she continued to reside in Queensland.
In that respect, the primary judge specifically noted at [217] that the advantages for the child returning to live in Town B would include “the [appellant] maximising the time he spends with her and sharing her daily routine, her involvement in preschool and her leisure time.”
Comparatively, the primary judge noted at [172] that:
Should [the child] not return to Town B the relationship between [the child] and her [appellant] is likely to be a distant one due to the significant distance between the parents and due to [the child’s] young age.
The primary judge, however, balanced that difficulty with other considerations that resulted in her concluding that it was in the best interests of the child for orders to be made permitting the respondent to continue to reside in south east Queensland. Her approach was again entirely consistent with authority. In that respect, the Full Court in Jurchenko & Foster (2014) FLC 93-598 (“Jurchenko”) at [123] noted that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
In weighing relevant considerations, the primary judge concluded at [218]–[219] that it was in the best interests of the child for the respondent to be able to continue to reside in Queensland and to avoid disruption to the life of the child. This was articulated by the primary judge to be because of the following reasons:
·The respondent has secured both a residential lease “that provides herself and the child with secure accommodation and a commercial lease with respect to a business opportunity” (at [208]);
·The respondent was hopeful of earning income through her business activities to supplement social security payments which she receives, together with some child support provided by the appellant (at [208]);
·The respondent is engaged to her new partner who she plans to marry and that the primary judge noted “they have discussed moving into a common residence and supporting each other practically and financially in the future” at ([209]).
·the child is enrolled in daycare and the respondent has established herself in the Queensland community (at [210]);
·this includes the respondent attending a local Church with the child near where she resides (at [102]).
·the respondent resides near her sister who “offers her support” (at [210]).
On the basis of the evidence presented in the proceedings, it was entirely appropriate for the primary judge to have regard as to how the child would be impacted by an order requiring the respondent to relocate with the child to Town B. In that respect, in giving oral evidence the respondent stated:
I do want to continue living in a supportive and positive community
…
And the support we have, the friends that [the child] has, the day care that she has, the school [language] lessons that she goes to. All of these wonderful things, all of her neighbours in our street that we have established and built a beautiful space for her to thrive and be positive in.[2]
[2] Transcript 9 April 2021, p.109 lines 1–8.
It was also entirely appropriate for the primary judge to have regard to how the respondent would be impacted by orders requiring her to relocate the child to Town B which, in turn, would vicariously impact upon the child.
The primary judge was entitled to accept the evidence of the respondent at [210] that she regards Queensland as her home and would be unhappy to return to Town B, where it was noted by the primary judge at [212] that the respondent would face the following problems:
•She has no accommodation in Town B. She would be required to rent and is unaware of the costs and/or availability of rental accommodation in Town B;
•She will incur financial difficulties should she breach her residential and her commercial lease;
…
•She will be required to look for work in Town B and re-establish herself and the child in that community including obtaining a day care or pre-school placement for the child. She is unaware of the availability of day care or pre-school placements and the cost involved in that regard;
•The [respondent] does not have employment opportunities in Town B. She will be dependent on Centrelink payments should she not find work
•She will be removed from her current family support in Queensland.
Again, it was entirely appropriate that the primary judge had regard to those considerations; indeed, her failure to do so would have constituted error. In that respect, in Jurchenko at [125], the Full Court criticised the approach taken by the trial judge in that case because the trial judge had approached the matter:
… with a mindset in which it was assumed that the outcome needed to be one which would ensure a meaningful relationship with both parents – which according to his Honour could be achieved only if both parents lived in the same location. Having posed the question in this way, there then became only one available answer when the father’s refusal to consider moving to Town D was accepted as beyond criticism, and the mother was treated as having made a concession she would stay in Perth…
The Full Court stated at [112] that, as result of that error:
… [His Honour] was diverted to determination of the location in which the child could maintain a “meaningful relationship” with both parents, rather than determining which of the proposals was better for the child.
The manner in which the primary judge considered the impact upon the respondent of orders requiring her to relocate to Town B was also entirely consistent with authority. Relevantly, in Adamson & Adamson (2014) FLC 93-622 at [65]–[66], the Full Court said:
It follows from the decisions of the High Court in AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238 that in parenting proceedings there is no requirement for a parent to demonstrate “compelling reasons” to live where the parent proposes to live, be that a proposed new location or, axiomatically, in their current place of residence. … The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire. (U v U at [82] citing AMS v AIF)
These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
In U v U (2002) 211 CLR 238 at [142] (“U v U”), Kirby J observed that in circumstances where the child’s primary carer stated that, despite the inconvenience and impact it would have upon her she would move to reside to wherever the Court ordered the child should live, the Court should bear in mind the profound impact it would have upon the primary carer, stating:
It will be she, not the husband, who will usually be confined, in effect, in her personal movements, emotional environment, employment opportunities and chances of remarriage, repartnering and reparenting. Effectively, as here, it is she who will be controlled by court orders that require her to live, and make the most of her life, in physical proximity to the husband's whereabouts. In this way, inconvenience to the husband is minimised. But the effect on the wife may be profound.
As has been noted by this Court[3] and courts in other jurisdictions,[4] significant effects on the mother's emotional, residential, economic, employment and personal life have an inevitable impact on the happiness and best interests of the child
[3] AMS v AIF (1999) 199 CLR 160 at [145].
[4] Poel v Poel [1970] 1 WLR 1469 at 1473 per Winn LJ; sub nom P v P [1970] 3 All ER 659 at 662; Burns v Burns (2000) 182 NSR (2d) 101 at 113 [36] citing Wall v Wall (1997) 163 NSR (2d) 81.
As noted by Kirby J, by reference to those authorities, the notion that a child’s wellbeing is inextricably intertwined with the wellbeing of the parent who is the child’s primary carer is far from novel. Improvements in the parent’s financial, social and emotional circumstances will often result in a corresponding advance in the child’s welfare. Necessarily, the creation of circumstances that negatively impact upon a parent may also negatively impact upon the welfare of the child.
In terms of the potential impact on the child, in AMS v AIF (1999) 199 CLR 160, Kirby J further observed at [145]:
One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
(Citations omitted)
All parties accept that cases involving an application by a parent to be permitted to permanently relocate to another city with the child are not to be classified as a discrete type of parenting case. That is, as Kirby J noted the “touchstone” throughout the proceedings must be on the best interests of the child. However, the circumstances of the parties including their right of freedom of personal movements and right to obtain a supportive emotional environment, employment opportunities and chances of remarriage, re-partnering and re-parenting, are all relevant considerations. Indeed, those considerations directly relate to what orders are in the best interests of the child. That is because, as explained by Kirby J, whether or not a parent is permitted to relocate in accordance with their wish may have a significant impact on the parties’ future relationship, as well as their individual happiness and sense of financial and psychological wellbeing. The impact of those matters on the child’s primary carer will likely, in turn, vicariously impact upon the child.
The primary judge was clearly of the view that, on the facts of this case, the child would be negatively impacted by requiring the respondent to return the child to Town B. In reaching that conclusion, her Honour’s focus remained on the best interests of the child. That conclusion was reasonably open to the primary judge on the evidence.
In conclusion, in respect to Grounds 1 and 2, it was entirely appropriate for the primary judge to have regard to the matters that she considered in determining that it was in the best interests of the child for orders to be made permitting the respondent to continue to reside in south east Queensland with the child. The primary judge properly applied authority and identified the relevant matters that she considered to be relevant in determining what orders were in the best interests of the child. No error has been established in respect to the weight that she attached to each relevant consideration, including the weight that she attached to the desirability of the child having a meaningful relationship with both parents.
Accordingly these grounds must be dismissed.
Grounds 2a and 8 - did the primary judge err to the extent that she considered that the orders would provide for a meaningful relationship with both parents and failing to provide reasons for not accepting the views and recommendations of the Family Report writer?
The appellant addressed Grounds 2a and 8 together. It is convenient to firstly address Ground 8 which contends that the primary judge failed to have sufficient regard to the opinion of the Family Report writer and, further, failed to provide adequate reasons to explain why she did not do so.
The decision of a trial judge is not to be delegated to an expert, including a Family Report writer. As noted by the Full Court in Reeves & Grinter [2017] FamCAFC 19 at [15]:
Numerous authorities of the Full Court of this court make it plain that the ultimate decision is for the trial judge and it is a matter for the trial judge’s discretion as to what weight is to be given to expert evidence in the context of all the evidence to be considered (citations omitted).
In her Honour’s reasons for judgment under the subheading “Family Report,” the primary judge summarised the evidence of the family consultant to the extent to which the primary judge considered the evidence was relevant to the issues she was required to determine in the proceedings. No error has been established on the part of the primary judge in doing so.
In Bennett & Bennett (1991) FLC 92-191 at 78,266, the Full Court adopted the following test articulated by Gray J in Sun Alliance Insurance Limited v Massoud [1989] VR 8 at 18 (recently reaffirmed by the Full Court in Harford & Spalding [2022] FedCFamC1A 78 at [27]):
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
The primary judge adequately explained why she accepted the evidence of the family consultant as set out at paragraph 9.18 of her Family Report that “a child of [the child’s age] will best develop a meaningful relationship with both parents by maintaining regular and consistent contact.” The primary judge also noted that the recommendation of the family consultant was that, in order to facilitate that meaningful relationship with both parents, orders should be made requiring the respondent to relocate the child from south east Queensland back to Town B.
As I have noted in addressing Grounds 1 and 2 of the amended grounds of appeal, the primary judge provided a detailed explanation as to why, having regard to the respondent’s family support, community involvement and financial security together with the desirability of the child maintaining a connection to her activities, neighbourhood and community, she did not order the respondent to return with the child to Town B. In so doing, the primary judge noted that such a decision would be detrimental to the ability of the child to have an optimal, as opposed to a meaningful, relationship with the appellant.
Nothing turns on the word ‘optimal’. The use of that term by the primary judge was entirely consistent with authority. In that respect, in Moose and Moose (2008) FLC 93-375 at [70], the Full Court applied with approval the following statement by Kay J in Godfrey where his Honour said at [36]:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
The primary judge made it abundantly clear that orders permitting the respondent to continue to reside in south east Queensland with the child would not enable the child to spend regular and frequent time with the appellant. The primary judge was fully cognisant of that fact in structuring the orders which were made to ensure, to the extent that it was reasonably practicable, that the child would have a meaningful relationship with the appellant despite the fact that the respondent would continue to live in south east Queensland. This is made clear by the primary judge at [196]:
I am satisfied that there is a benefit to the child having a meaningful relationship with both the child’s parents. In an ideal world where parents live within close proximity to a very young child a care arrangement that involves regular, frequent, consistent time is readily achievable. Difficulties arise when parents elect to live in different States where there is a vast geographical distance between them. It is essential to ensure however that any arrangement made for the child is an arrangement that provides the child with an opportunity to have a meaningful relationship with both parents as is reasonably practicable and in the child’s best interests.
As previously noted by reference to the decision of the High Court in CDJ at [151], parenting orders necessarily “involve predictions and assumptions about the future which are not susceptible of scientific demonstration of proof.” The structuring of orders with the intended purpose of facilitating the child having a meaningful relationship with the appellant was an exercise of discretion. In those circumstances, it is necessary for an appellant to establish grounds that fall within the principles identified by the High Court in House v The King (1936) 55 CLR 499 (“House v The King”) at 505 and Norbis v Norbis (1986) 161 CLR 513 at 539–540, where appellate intervention may be required when the primary judge:
(1)Acts upon a wrong principle; or
(2)Allows extraneous or irrelevant matters to guide or affect the decision; or
(3)Mistakes the facts; or
(4)Fails to take into account some material consideration; or
(5)Makes a decision that, upon the particular facts, is unreasonable or plainly unjust.
In that respect, the appellant contends, at paragraph 5 of the appellant’s summary of argument, that the primary judge erred at [196] of her reasons for judgment in making orders that “provides the child with an opportunity to have a meaningful relationship with both parents as is reasonably practicable.” There was no error on the part of the primary judge in doing so.
A finding of reasonable practicability is a precondition to making a parenting order for a child to spend equal time with each parent or to spend substantial and significant time with a parent if equal time is not practicable (MRR v GR (2010) 240 CLR 46 (“MRR”) at [9], [14] and [15]). This means that, before such an order can be made, there must be a finding that such an arrangement is reasonably practicable “having regard to the circumstances of the parties” (MRR at [15]). It is clear that the primary judge was obliged to consider the circumstances of the parties, more particularly those of the respondent, in determining what parenting orders were reasonably practicable. This was in circumstances where, for reasons articulated in the judgment, the primary judge determined that it would not be in the best interests of the child to make an order that required the respondent to relocate the child to live in Town B.
The appellant has failed to establish error on the part of the primary judge in terms of the principles adumbrated in House v The King and, accordingly, Grounds 2a and 8 are without merit and will be dismissed.
Ground 3 – did the primary judge err by finding that the respondent was likely to comply with future Court orders and facilitate a meaningful relationship with the appellant?
As previously noted, the decision by the primary judge that it was likely that the respondent would facilitate the child having a meaningful relationship with the appellant, to the extent that it was reasonably practicable with the respondent living in south east Queensland, involved predictions and assumptions about the future based in part on perceptions, predictions and even intuition and guesswork (CDJ at [151]).
In that context, it was entirely appropriate for the primary judge to form a perception of the respondent having regard to not only the respondent’s response to questions, but also the manner in which she responded to questions asked of her during the course of a lengthy cross-examination in respect to that matter.
Additionally, the primary judge had regard to the fact that, while in the period immediately subsequent to the parties’ separation, the respondent failed to facilitate the child spending time with the appellant she subsequently made offers to the appellant to facilitate both FaceTime and face-to-face time after moving to Queensland at the end of January 2020. The primary judge recorded that the appellant did not initially avail himself of those opportunities.
The primary judge further noted that the parties were able to reach agreement as reflected in consent orders for the child to communicate with and spend time with the appellant.
As I have noted, the primary judge referred to the evidence of the appellant that he had in fact travelled to Queensland on a number of occasions and had spent time with the child.
Those factual findings formed a legitimate basis for the primary judge to infer that the respondent would, in the future, comply with orders of the Court with a view to the child having a meaningful relationship with the appellant.
That conclusion was reflected at [228] of the reasons for judgment, where the primary judge said:
Having heard the [respondent] cross examined over many hours I am satisfied that she will comply with Court orders. I intend to give the [respondent] an opportunity to demonstrate her commitment to supporting the child’s relationship with the [appellant].
The reference by the primary judge to her anticipation that the respondent would comply with Court orders must sensibly be read in the context of understanding that the primary judge was fully aware of the provisions of Division 13A of Part VII of the Act. Those provisions reinforce the expectation by the Court and the community that parties will comply with orders of the Court but recognise that exceptional circumstances may exist where such compliance is not in the best interests of the child or would place a person at risk of harm. The establishment of such circumstances may not necessarily negate the preparedness of a party to facilitate the child having a meaningful relationship with the other parent.
For these reasons, no error has been established in respect to this ground which must be dismissed.
Grounds 4 and 7 - did the primary judge err by placing equivalent weight on the respondent’s interests compared to those of the child and placing grossly excessive weight on whether the respondent will be resentful and unhappy should she relocate to Town B?
As I have previously noted by reference to the decision of Stephen J in Gronow, grounds of appeal based on challenging the decision of a trial judge based on weight “face a high bar” (Crowley & Picton [2018] FamCAFC 100 at [52]). The appellant has failed to establish any error on the part of the primary judge in respect to the weight that her Honour attached to the respondent’s interests and the child’s interests.
Indeed, with respect, the premise upon which these grounds of appeal are based is fundamentally flawed. For reasons which I set out above, the best interests of the child will often be directly connected to orders that are in the interests of the child’s primary carer.
The primary judge clearly explained her reasoning in determining that it was in the child’s best interests to permit the respondent to continue to reside in south east Queensland. As I have set out, these reasons related to:
·the prospect of the respondent retaining a stable relationship with her new partner, who would support the respondent in maintaining a household in which the child would live, rather than being placed in a position where it would be extremely difficult for her to maintain that relationship in the event that she was required to move to Town B;
·the fact that the respondent had greater economic prospects in south east Queensland through utilising business premises which she had leased than if she were required to return to Town B where she had no guaranteed employment and, until securing such employment, would be dependent upon social security supplemented by a relatively minor amount of child support paid by the appellant;
·the fact that the respondent had leased a house which provided secure accommodation for herself and the child in south east Queensland, rather than circumstances where it would be necessary for her to obtain suitable accommodation if she were to return to Town B and the associated uncertainties that would involve;
·the fact that the respondent would be required to move away from her sister, who also lives in south east Queensland and who the primary judge found the respondent could call upon for support as required; and
·the fact that the respondent was engaged in her local community and neighbourhood in south east Queensland, which would be disrupted should she be required to move to Town B.
As noted in the High Court authorities to which I have earlier referred, matters impacting upon the welfare of a parent can vicariously impact upon the welfare of the child. It was well within the appropriate exercise of discretion for the primary judge to give weight to those considerations, together with the fact that the child had herself become familiar with friends and neighbours, was enrolled in pre-school, and engaged in other social and community activities in south east Queensland. Indeed, in my view, the primary judge would have fallen into error had her Honour ignored those matters in considering whether it was in the best interests of the child to permit the respondent to remain living in south east Queensland.
In the absence of error being demonstrated in these grounds of appeal, they must be dismissed.
Ground 5 – did the primary judge err by placing significant weight on the respondent’s interests and no weight on the appellant’s interests?
It is to be noted that this ground of appeal is a further challenge to the decision of the primary judge based on weight and the authorities to which I have earlier referred concerning that matter are directly relevant.
As noted by the primary judge, at [10] of her reasons for judgment, the Act focuses upon the rights of the child rather than the rights of the parent. In that respect it is significant that, in 1996, the Act was amended to remove the concept of “custody” from the legislation. The explanatory memorandum to the amending Family Law Reform Bill 1994 (Cth) relevantly stated at paragraph 1:
This approach emphasises the concept of parental responsibility for the care, welfare and development of children rather than giving parents any rights to custody and access, which tends to foster notions of ownership in children.
Nonetheless, as noted in the earlier High Court authorities to which I have referred, the Court should be cognisant of the parent’s rights, including their right to form relationships with whomever they choose, their freedom of movement, their economic freedoms and to live in an emotionally supportive environment.
Nothing in the orders proposed by the primary judge impacted upon those fundamental rights of the appellant. Conversely, the orders proposed by the appellant would have impacted upon those rights enjoyed by the respondent. That is not to say that, in appropriate cases, the Court cannot determine those individual rights are to be negated or modified to the extent necessary that it is in the best interests of the child.
In this case, in determining what orders were in the best interests of the child, the primary judge clearly had regard to the respondent’s interests insofar as the respondent has, since the birth of the child, been the child’s primary carer.
The primary judge noted the respondent’s evidence at [83] regarding the income she was earning in Town E, including that the respondent had “set up a business and she works from the premises.” The primary judge further noted the respondent’s evidence that she had taken out “a commercial lease from a property and previous to that her business was on the main street of Town E” and that the respondent had also opened up a business to the public.
The primary judge noted at [123] that the respondent’s evidence was that if orders were made requiring her to return the child to live in Town B that she would follow the child, “who is number one in her life.” However, the respondent stated that she did not know how she would survive economically and that she would have to withdraw from two lease arrangements for her commercial and residential properties.
In terms of the respondent’s economic circumstances at the date the hearing, the primary judge noted at [124] that the respondent received approximately $981 per week in pension entitlements and child support and that her earnings from teaching art classes vary between $150 and $400 per week. It was noted that, at the time of the trial, the respondent paid rent in the amount of $435 per week including water and gardening expenses.
For reasons which I have earlier explained, matters impacting upon the respondent’s welfare, including her economic security, her and the child’s housing, their sense of belonging to community and neighbourhood, the prospect of marriage to her new partner and the ability to access and draw upon support from her sister were all matters that impacted upon the emotional social and economic well-being of the respondent and, hence, vicariously, upon the best interests of the child. It was entirely appropriate that the primary judge determined those matters to also impact upon the child.
From the reverse of that perspective, the primary judge also appropriately had regard to the potential economic hardship that would be imposed upon the respondent in requiring her to relocate in circumstances where she had no guarantee of employment and no certainty of obtaining appropriate housing. This was in circumstances where it was accepted in the proceedings that, other than to the extent that he provided child support, the appellant was not in a position to assist the respondent financially or by way of providing accommodation. In that respect, the primary judge noted at [144] that the appellant’s financial circumstances were that he was committed to pay rent of $300 per week, has a car loan of $65 per week, pays child support for his two children of $110 per week and $25 for mobile phone expenses. In addition, he has a short-term loan repayment of $40 per week and pays approximately $20–$30 per week in car expenses. The primary judge concluded that the appellant “lives from pay to pay” and that a round trip between Town B and Queensland, as at the date of the hearing, costs approximately $150, expended weekly in accordance with the previous orders.
Making orders placing the respondent in a position of financial hardship would have vicariously adversely impacted upon the child and it was entirely reasonable and appropriate for the primary judge to have regard to those matters in determining what orders were in the best interests of the child.
At the same time, the primary judge clearly had regard to the interests of the appellant including noting his desire to have an ongoing and meaningful relationship with the child. In that context, consistent with the principles adumbrated by the High Court in U v U at [175] and [35], the primary judge considered the prospect of the appellant relocating his place of residence to be near the child in order to spend a greater amount of time with the child.
In terms of that potential for the appellant to relocate, it was noted at [89] that after the parties met in or about mid-2015, the respondent moved to Queensland and the appellant continued to reside in City A before moving to Queensland to live with the respondent, after her step-mother passed away in October 2015. There was no dispute that the parties had lived together in Queensland between October 2015 and 2018, at which time the respondent was eight months pregnant. Having regard to the date of birth of the child being 22 July 2018, it appears that the parties moved to live in Town B in early 2018.
The primary judge noted the appellant’s evidence that he did not now wish to move to south east Queensland because of the fact that he has children and two grandchildren residing in New South Wales. The primary judge noted at [145] that the appellant sees his 16-year-old daughter once per fortnight (although “maybe a bit longer”) in accordance with an informal agreement he has with her mother. The primary judge further noted that the appellant sees his grandchildren weekly but, as at the date of the hearing, that was subject to COVID-19 restrictions. The primary judge noted that the appellant’s children and grandchildren live within an hour’s travelling distance from the appellant’s residence in Town B.
In considering this aspect of the case, it is significant that the appellant had been living in south east Queensland with the respondent in respect to the period from October 2015 until early 2018. Given the significance of that issue, I set out the primary judge’s account of that evidence as set out at [146] of her reasons for judgment, which is as follows:
He said when he lived in City G he worked as a finance professional but was made redundant. At that time he was earning about $100,000 p.a. He has a Business degree and a Finance diploma. His boys are now 21 years old. When asked by the Court if the court ordered [the child] to remain in City G whether he would explore getting work there and living there and being involved with [the child] to the maximum extent possible he said he would do his best to be part of her life. He said he wanted all the children to know each other and that would be difficult if [the child] remains in City G. He agreed that the older children could travel to see [the child]. He said it would be ideal if the parents lived within close proximity of each other given [the child’s] young age. He agreed it was an option for him to look for work and move to City G. He said his young grandchildren are holding him back from doing that. His grandson is 2 and granddaughter 11 months.
The primary judge noted at [156] that the appellant attested that, in the period that the parties resided in south east Queensland, “he maintained his relationship with his other four children by travelling to New South Wales to see them and they would visit him in City G.”
In determining not to make an order requiring the respondent to relocate to Town B with the associated economic hardship that would confront the respondent and vicariously the child, it was again entirely appropriate for the primary judge to consider the reverse of that scenario, that is, the prospect of the appellant relocating to reside in south east Queensland as he did during the first three years of the parties’ relationship.
Accordingly, no error has been demonstrated in respect to the extent to which the primary judge placed weight on the respondent’s interests and the appellant’s interests. This ground of appeal must be dismissed.
Grounds 9 and 10 – did the primary judge err by accepting the respondent’s evidence that she regards Queensland as her home and the difficulties she asserted she would face by relocating to Town B?
In his summary of argument, the appellant has dealt with these grounds together. I will take a similar approach.
At paragraph 51 of the summary of argument, it is contended that the primary judge’s findings in respect to the respondent’s lack of credibility necessitated that the primary judge should have rejected the respondent’s evidence that she regards Queensland as her home and that she would face difficulties in relocating to Town B.
It is clear that the primary judge was concerned regarding the credibility of the respondent in respect to certain aspects of her evidence including, significantly, her evidence that she had been the subject of physical violence perpetrated by the appellant and that she had moved to south east Queensland as result of her fear of the appellant. The primary judge stated at [40] that:
I formed the view that she was prepared to say whatever she considered would advance her case in support of an outcome that she remain living with the child in Queensland.
Those findings were repeated at [94] and [122] of the reasons for judgment, with the primary judge stating that she did not accept that the respondent “was a credible witness.”
However, as noted by the Full Court in Owens & Benson [2014] FamCAFC 243 at [60]:
Impeachment of a witness’ credit on one issue does not necessarily impeach the witness’ credit on all issues. The court is at liberty to accept all, some, or none of the evidence given by a witness.
(Citations omitted)
Appeal courts do not lightly interfere with the findings of fact made by a trial judge “unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences” (Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43]). The evidence presented by the respondent as to her current circumstances in south east Queensland and those which she anticipated confronting in Town B was entirely plausible and not “glaringly improbable.”
Further, the respondent’s evidence was consistent with evidence presented by the appellant, noted at [156] of the reasons for judgment, which recorded the appellant attesting that, in 2015, the respondent moved from City A to south east Queensland because “she had difficulty finding work.”
The appellant has failed to establish a basis for the Full Court to intervene on the factual findings made by the primary judge regarding the respondent’s current circumstances residing in Queensland and those which she would likely confront in the event of orders being made for her to move to Town B.
Accordingly, these grounds of appeal must be dismissed.
Ground 11 – did the primary judge err in finding that there was insufficient evidence to support a relocation order?
The appellant contended, at paragraph 62 of his summary of argument, that the case of Levan & Huxley [2020] FamCA 704 confirms that the onus at all times was on the respondent to establish that, as a matter of probability, she would experience hardship in the event of orders being made requiring her to relocate with the child to Town B.
To the contrary, in that decision, Baumann J, sitting as a judge at first instance, stated at [8]:
It is not controversial that a parent seeking to relocate with a child has no onus to establish any compelling reasons why they wish to exercise their right of freedom of movement (see A & A: Relocation Approach (2000) FLC 93-035).
His Honour, with respect, correctly observed, by reference to the decision of Murphy J in Lansa & Clovelly [2010] FamCA 80 at [16], that relevant authorities establish that:
The issue of relocation (and, necessarily, the parties’ proposals in respect of same) should not be considered separately from the issue of best interests. In truth, the proposals, including potential relocation, form part of the factual permutations within which best interests must be considered and findings made.
The primary judge clearly explained her reasons for declining to make an order requiring the respondent to relocate from south east Queensland to Town B. These related, in part, to the personal circumstances of the respondent which, in turn, vicariously impacted upon the child. Further, the primary judge had regard to the circumstances of the child, including the fact that she was settled into her neighbourhood and the community in Queensland and was engaged in pre-school and other worthwhile activities in that location. At the same time, the primary judge appropriately, in my view, had regard to the hardship which would confront the respondent if orders were made compelling her to relocate to Town B which again, would vicariously impact upon the child.
The matters considered by the primary judge and the weight which she placed upon the evidence in respect to those matters was entirely reasonable, appropriate and consistent with authority. No error has been demonstrated on the part of the primary judge in failing to approach this matter, as contended by the appellant, from the perspective of requiring the respondent to discharge an onus as to why orders should not be made requiring her to relocate to Town B.
Accordingly, this ground of appeal is also without merit and must be dismissed.
CONCLUSION AND COSTS
As I have found each of the appellant’s grounds of appeal to be without merit, the appeal must be dismissed.
In circumstances where the respondent has not, however, provided a schedule of costs in accordance with the relevant rules, I make no order as to costs.
I certify that the preceding one hundred and fifty-three (153) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 17 June 2022
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