Mandall & Camdyn (No 2)

Case [2022] FedCFamC1A 91

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…

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AGLC
Mandall & Camdyn (No 2) [2022] FedCFamC1A 91
Case
[2022] FedCFamC1A 91
Decision Date

CaseChat Overview and Summary

The appeal in Mandall & Camdyn (No 2) concerns final parenting orders for the child to live with the respondent, Ms Camdyn, after the parties separated in June 2019. The appellant, Mr Mandall, sought to appeal the primary judge's decision, arguing that she erred in various respects, including by not sufficiently considering the benefit to the child of having a meaningful relationship with both parents and by placing excessive weight on the disruption to the child's life if she were to move to the appellant's place of residence. Additionally, the appellant sought leave to adduce fresh evidence in two applications filed after the primary judge's final judgment and after the hearing of the appeal.

The court was required to decide whether the primary judge erred in the matters alleged by the appellant, and whether the appellant was entitled to rely on fresh evidence in support of his appeal. The legal issues encompassed the primary judge's weighing of the child's best interests, the appropriate consideration of disruption, and the admissibility of fresh evidence in the context of an appeal.

The court found that the primary judge did not err in her assessment of the child's best interests and the weighing of relevant considerations. The court held that the primary judge had appropriately balanced the benefit to the child of having a meaningful relationship with both parents against the potential disruption of moving to a new location. Furthermore, the court determined that the primary judge had adequately considered the child's established relationship with the respondent and the difficulties of maintaining contact with the appellant given the geographical separation. The court also found that the appellant's applications to adduce fresh evidence were without merit, as the evidence was either not relevant or did not provide a sufficient basis to alter the primary judge's findings.

The appeal was dismissed, and the appellant's applications to adduce fresh evidence were also dismissed. No order for costs was made as the respondent had not provided a statement of costs in accordance with the relevant rules.

Orders

Orders of the court

NAA 36 of 2021

BRC 2330 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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. BACKGROUNDGeneral 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]).

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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