MANGIN & BACH
[2020] FamCAFC 223
•8 September 2020
FAMILY COURT OF AUSTRALIA
| MANGIN & BACH | [2020] FamCAFC 223 |
| FAMILY LAW – APPEAL – PARENTING – Where the appellant has not complied with the consent order requiring her to relocate with the child – Where the appellant sought to adduce further evidence none of which could be received and the application was therefore dismissed – Where there is no error of law or mistake of fact and it has not been established that the primary judge’s decision was “plainly wrong” – Where the real issue remains what is in the best interests of the child and not the wishes or needs of the parties – Where the asserted change in circumstances viewed in the context of the consent order and what could reasonably be anticipated to arise in the period following the making of that order are insufficient to warrant reconsideration of the parenting arrangements agreed to – Where there is no merit in any of the grounds of appeal – Appeal dismissed – Proceedings referred to the primary judge for consideration of whether further orders should be made to implement the consent order. |
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84 |
| APPELLANT: | Ms Mangin |
| RESPONDENT: | Mr Bach |
| FILE NUMBER: | ADC | 4468 | of | 2019 |
| APPEAL NUMBER: | SOA | 27 | of | 2020 |
| DATE DELIVERED: | 8 September 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 11 August 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 February 2020 |
| LOWER COURT MNC: | [2020] FCCA 779 |
REPRESENTATION
| THE APPELLANT: | In Person |
| THE RESPONDENT: | In Person |
Orders made 11 August 2020
Leave be granted to the appellant mother to rely on her Application in an Appeal filed on 5 August 2020 seeking to adduce further evidence.
The Application in an Appeal filed on 5 August 2020 be dismissed.
The appeal be dismissed.
The proceedings be referred to the primary judge to list a hearing to consider whether further orders should be made, and if so, what orders, to implement the consent order made on 20 June 2017.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mangin & Bach has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 36 of 2020
File Number: ADC 279 of 2020
| Ms Mangin |
Appellant
And
| Mr Bach |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 26 March 2020, Ms Mangin (“the mother”) appeals against the order made by a Judge of the Federal Circuit Court of Australia on 27 February 2020, dismissing the mother’s application filed on 16 October 2019.
The appeal is opposed by Mr Bach (“the father”).
On 5 August 2020, the mother filed an Application in an Appeal seeking an extension of time to file that application, in which she sought leave to adduce further evidence.
The appeal was heard by this Court on 11 August 2020, and at that time orders were made giving leave to the mother to rely on her Application in an Appeal, dismissing the same, dismissing the appeal, and referring the matter back to the primary judge to list a hearing to consider whether further orders should be made, and if so, what orders, to implement the consent order made by his Honour on 20 June 2017. However, because of time constraints, reasons for judgment were unable to be provided when those orders were made, and it was indicated that those reasons would be delivered at the earliest available opportunity. These are those reasons.
Relevant Background
The mother was born in 1989, and the father was born in 1986.
The parties commenced a relationship in about 2009 in I Town, where the father was working.
In 2011, the parties moved to P Town for the father’s work.
In 2011, the one child of the relationship, Z (“the child”) was born.
The parties married in 2012.
The parties moved to O Town in 2014, again for the father’s work. He had a three year tenured position, and the father’s case in these proceedings was that the parties would relocate to Adelaide or Melbourne after three to six years for the benefit of the child’s education. I do not understand that that assertion was challenged by the mother.
The parties formally separated in 2015, and divorced in 2016.
In September 2016, the mother instituted parenting proceedings which culminated in consent orders being made on 20 June 2017. At that time the father was living in Adelaide, and the mother was still living in O Town.
The crucial paragraphs of the consent order are as follows:
2.That until the start of the 2020 school year (or until the mother’s relocation to Adelaide with the child, whichever occurs first), the child live with the Applicant mother in [O Town] and shall spend time with the Respondent father as follows:-
…
4.That on or before the commencement of the 2020 school year, the mother is to relocate with the child to Adelaide such that Adelaide will be the child’s principal place of residence.
5.That as and from the mother’s relocation with the child to Adelaide, the child shall live with the parties on a week about basis, as follows:-
…
9.That following the child’s relocation to Adelaide, the child will attend School in [N Town] and the parties shall do all acts and things necessary to enrol him jointly in that school prior to such relocation.
…
Prior to those orders being made the mother had commenced a relationship with her present partner, and they resided in a house purchased by them in O Town.
The mother and her partner now have two children of their own, respectively born in 2018 and 2019. There is an issue between the parties as to whether the mother was pregnant with the first child prior to the orders being made, with the father alleging that she was, and the mother saying that if she was, she was unaware of that when the consent order was made.
Both the mother and her partner are employed full-time in O Town, although the mother has been on maternity leave following the birth of her child in 2019.
The mother works as a case manager, and her partner works as a technician.
The father also re-partnered in 2015, and remarried in 2017. His current wife has a daughter born in 2010, and they now have a son born in 2018.
In 2015, the father and his current wife purchased a home in N Town, and moved to live there in 2016.
In anticipation of the child moving to Adelaide to commence the 2020 school year at school in N Town, the father arranged for him to attend holiday programs at the school, and in June 2019 enrolled him there.
In October 2018, the mother informed the father that she no longer wanted to move to Adelaide, and that she would be seeking to change the orders. The father responded by saying that if she was serious, she would need to commence proceedings promptly. However, the mother did nothing by way of commencing proceedings, and the father continued his plans for the child to move to Adelaide for the 2020 school year.
Eventually, on 16 October 2019, the mother filed an Initiating Application seeking the “dismissal” of the consent order made on 20 June 2017, and putting in place fresh orders providing for the child to live with her in O Town until he commenced Year 10 of school, and then he live with the father in Adelaide.
The father responded by seeking to, in effect, enforce the consent order.
The matter then came before the primary judge on 21 February 2020, and as referred to above, his Honour made the order the subject of the appeal on 27 February 2020.
Apart from dismissing the mother’s application, his Honour also gave liberty to the father to relist the matter, in the event that the mother had not relocated the child to Adelaide, in time for him to commence school at the beginning of the third term of the 2020 school year.
The Application to Adduce Further Evidence
The further “evidence” sought to be adduced covered a range of topics, but none of that “evidence” can be received, and thus the application was dismissed.
The “evidence” comprised the following:
(a)Emails passing between the parties detailing the attempts by the mother to have the father agree to change the orders, and a draft set of orders proposed for that purpose.
(b)A “market update” for property in O Town dated 27 July 2020.
(c)A letter from the mother’s current partner.
(d)A copy of a note made by a doctor indicating that her notes could only be made available pursuant to a subpoena.
(e)A document providing the birth details of the first child of the mother and her partner.
(f)A document detailing childcare fees.
(g)The child’s latest school report.
(h)Random text messages passing between the parties.
(i)TAFE SA transcripts for the study undertaken by the mother’s partner.
(j)The 2019/2020 income tax return of the mother’s partner.
Items (b), (c), (d), (e), (f), (i) and (j) are inadmissible, including for lack of relevance.
Items (a), (d), (e), (f) and (h) were available at the time of the hearing before the primary judge, but the mother either chose not to present them to his Honour, or she was advised by her solicitor that they were unnecessary.
Relevantly, none of this “evidence”, including item (g), demonstrated that the order under appeal is erroneous (CDJ v VAJ (1998) 197 CLR 172 at [109]).
The Appeal
It is pertinent to note that the matter was argued before his Honour on the basis that the so-called rule in Rice and Asplund (1979) FLC 90-725 applied. In other words, it was necessary for the mother to demonstrate that there had been sufficient changed circumstances to warrant considering afresh how the welfare of the child should best be served.
The changed circumstances promoted by the mother were the birth of her two children, and the relationship the child has developed with them; the nature of the work that her partner is now engaged in; the fact that she, her partner, and the children are settled in O Town and she and her partner have no desire to relocate.
However, it is also relevant to note that this case is different from those cases where the so-called rule in Rice and Asplund is sought to be applied, in that, the consent order in issue provided for the mother to relocate the child at a certain time in the future. Thus, the alleged changes of circumstances need to be viewed through that prism.
With that background, I turn to the grounds of appeal.
There are nine grounds of appeal raised in the Notice of Appeal. Three of those grounds (namely Grounds 2, 8 and 9) can be disposed of summarily as follows:
Ground 2 – The judge has not placed weight on the effect this has placed on the applicant partner (…), and assumed the applicant partner (…) is willing to relocate. Applicants [sic] partner (…) has stated he will not relocate, as these final orders were conducted without his presence in the chambers and agreed upon without his knowledge at the time.
The question of whether the mother’s partner is willing to relocate, and the allegations that the orders were agreed upon without his knowledge, are both irrelevant, and not matters that his Honour was required to take into account. They do not demonstrate appealable error by his Honour. The consent orders bind the mother, and cannot, and do not, require her partner to do anything.
Plainly, the mother’s partner’s position in relation to the relocation is relevant to the mother, and what she does, but that cannot impact on the order that she consented to.
Further, and in any event, I find it difficult to accept that the mother’s partner, who was her partner at the time, was not aware of the orders that the mother was consenting to.
This is a ground of appeal that cannot succeed.
Ground 8 – Judge outlined father could pertain [sic] further orders upon [the child] not being in Adelaide by Term 3 of 2020 meaning this would place [the child] primary [sic] in the father’s care (where mother unable to comply with the orders due to her other circumstances), when the applicant son has never been left primary [sic] in the father’s care before.
What the mother is here referring to is the liberty that his Honour gave to the father to relist the matter to seek further orders in the event that the mother failed to relocate the child in time to commence school in the third term of the 2020 school year.
The mother suggests that the further order that would be made, would be to place the child in the primary care of the father, and that had never been the position before. However, although that may have been a further order made, it was not the only order, and his Honour left it open as to what orders would be made in the circumstances that then applied.
There is no error here by his Honour, and this ground also has no merit.
Ground 9 – Judge dismissed information pertaining to repeated sexual activities occurring in [the child’s] Father’s home, involving [the child] and a step sibling.
It is not correct to suggest that his Honour “dismissed information” relating to “sexual activities”.
The fact is that there was an issue raised in one of the mother’s affidavits, and his Honour dealt with that as follows:
28.I will deal very briefly with an issue that was raised in the mother’s second affidavit, and that was an affidavit filed only on 18 February 2020. It relates to the issue of [the child] having a sore penis. When the child returned to the mother from the father’s care in January of this year, he complained of having a sore penis. This was the third time he had made such a complaint on return from the father’s care. The child has previously explained that he was not washing properly despite instructions given to him by his father. In January, on questioning from his mother, [the child] explained that he had been playing “the baby game” with his step-sister who is about 9 years of age. He had allowed his step-sister to touch his penis. This had apparently occurred on a number of occasions. [The child] said that sometimes he was ok with it and sometimes he was not. In any event, it seems that the soreness issue comes down to a matter of hygiene. The father says that it has been an ongoing issue.
29.If it was not abundantly clear from the mother’s affidavit, it was made clear by [Ms Z] in her submissions, that the mother is not suggesting that the father has sexually interfered with the child. It was not an attempt to bring a matter of that sinister complexion to the attention of the Court.
30.The mother’s position is that the father is essentially a sound parent. So that issue was a matter that was brought relevantly to the Court’s attention, but ultimately for the purpose of this application I have concluded that not a great deal turns on it. The father says that [the child] is somewhat of an impressionable child and that it might be possible, with respect to things that were said about that issue to do with his penis and hygiene, that he might have been saying things that he wanted one or other of his parents to hear.
31.If any untoward behaviour were to occur by virtue of the “baby game” with his stepsister [H], the father says that he is in the perfect position to know what to do because of his profession. He notes also that the doctor to whom [the child] was taken was not particularly concerned, and it seems that if there is substance to that matter, that it is more a matter of children’s play or experimentation. I do not conclude that there is an extant threat to the child’s psychological or physical wellbeing as a result of the matters raised in that affidavit.
In these circumstances, and given the submissions of the mother’s own solicitor-advocate, that is not a matter the mother can raise on appeal. In any event, his Honour dealt with this appropriately.
Again, there is no merit in this ground of appeal.
The balance of the grounds of appeal can be dealt with together. They all comprise weight challenges in suggesting that his Honour failed “to place weight” on various matters, principally the alleged changes of circumstances relied on by the mother to have the consent order discharged, and fresh orders put in place.
Those grounds are as follows:
Ground 1 – The Judge did not place weight on the fact that the applicant (mother) is unable to relocate with her partner (…) and obtain work in Adelaide, on the fact that both applicant and partner jobs are non-transferrable, are country-based practises and are paid at a higher level due to remote location.
Ground 3 – Did not place enough weight on the applicant’s changed circumstances and the impact relocating would have on the applicant and her family, especially financially.
Ground 4 – Did not place weight on the impact this would have on the applicants two other children …
Ground 5 – Did not place weight on the fact the applicant will have no means of support, such as a network of family or friends in Adelaide, due to the fact majority of both families reside in O Town.
Ground 6 – Did not place weight on the fact that [the child] (…) has remained in full time, primary care of his mother since he was born.
Ground 7 – The judge did not place weight on [the child’s] (applicant son) own opinion and did not give him a chance to represent his opinions and desires.
(As per original)
The principles applicable to weight challenges are well known. For example, in the High Court decision of Gronow v Gronow (1979) 144 CLR 513, Stephen J said this 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…
Here there is no error of law, or mistake of fact present, and it has not been established that his Honour was “plainly wrong” in reaching his decision.
His Honour was aware of the assertions made by the mother, and which are set out in these grounds of appeal. For example, there was her partner’s work situation (at [8]), and her own (at [10]), the fact that she now has two children with her partner (at [9]), and that her life is now entrenched in O Town (at [10]), the fact that the child is doing well at school, has a friendship group, and is settled (at [11]), and the fact of his relationship with his half-siblings (at [34]).
However, despite there being little admissible and relevant evidence produced in relation to a number of these assertions (e.g. see [53]), his Honour correctly approached the same by addressing whether they established a sufficient change of circumstances to warrant considering again the parenting arrangements for this child, given the consent order made in 2017, that a relocation would take place prior to the commencement of the 2020 school year.
Thus, his Honour said this:
43.Further still, do the matters to which the mother refers amount to a change of circumstances sufficient such as to warrant the final orders being set aside? It seems to me that the mother, being in a de facto relationship … and expecting their first child, that it must have been within reasonable contemplation that even if she had no other children, the family would, in the new form of [the child] having a half-sibling, become settled in [O Town] during the period of time in between the final orders and the move to Adelaide in 2020.
44.I do not think it could be seen as being something that was reasonably beyond comprehension of the mother or anticipation as a possible outcome that she might have chosen to have a second child with her current partner. Life is subject to changes, and, similarly, relationships are subject to development, change and plans being made in the future. It would be a fairly rare relationship amongst a relatively newly forged couple which did not experience a series of changes in the first few years, and that includes the possibility of having a further child or children.
…
52.I do not regard as a small matter the fact that the mother’s partner is in stable, and it would seem very good employment in [O Town]. But the fact remains, the mother and her partner had their second child and both parties continued to live and work and pursue their careers in [O Town], and their relationship developed and solidified, knowing that there was a timeframe which had been ordered by the Court for their return to Adelaide.
And concluded as follows:
54.The parties, that is, the mother and the children and her partner, are clearly settled in [O Town]. I acknowledge that. However, I have concluded that the matters which are referred to as the significant changes in circumstances are all matters that were within reasonable contemplation at the time of the final orders being made, at least in terms of things that might possibly occur, and I am not satisfied that there is good reason to either suspend or set aside the final orders. I am satisfied that it is in the best interests of [the child] that the final orders not be disturbed.
In reaching his decision his Honour also had regard to the fact that in the period since the consent order was made, the father, where appropriate, has been making necessary arrangements in anticipation of the child relocating as ordered. For example, the child has been enrolled, and has had his induction, at the school the parties agreed he would attend; he has attended holiday programs run by that school, and he has become familiar with practical issues such as drop-off procedures.
Understandably, the child has not been kept in the dark about the move to Adelaide, and when that would occur.
Further, his Honour accepted that “…the father has structured his work and life and his affairs, and, most importantly, dealt with maintaining a long-distance relationship with the child in good faith on the basis of the final orders” (at [49]).
A concerning aspect about this matter, is that the mother left it until the last moment to bring the matter back to court. Certainly the mother advised the father in October 2018 of her change of heart, but, even when invited by the father to do something about it, she did not. That of course left the father, and the child, to proceed on the basis that the order would be complied with, and to continue to make necessary arrangements for the move to Adelaide.
Of course, what must not be forgotten in all this, is that the real issue remains what is in the best interests of the child, and not the wishes or needs of the parties.
In this regard, it is relevant to note that the fresh orders the mother sought, would have seen the move to Adelaide delayed until the child was due to commence Year 10 at school. Frankly though, the sense of that proposal is lost on this Court, as well as how it would better serve the best interests of the child. All it would do, is create uncertainty and instability in the child’s life, wondering what the future would hold. In other words, given the assertions by the mother as to why it was now in the best interests of the child to remain in O Town, there could be no guarantee that the same arguments would not be raised when it again came time to relocate.
As his Honour concluded, he was satisfied that it was in the best interests of the child that the consent orders not be disturbed, and this Court is not persuaded that his Honour has erred in that regard.
The asserted change in circumstances, when viewed in the context of the consent order, and what could reasonably be anticipated to arise in the period following that order, are insufficient to warrant a reconsideration of the parenting arrangements agreed to.
In these circumstances, there is no merit in any of these grounds of appeal.
Conclusion
Having found no merit in any of the grounds of appeal, the appeal must be dismissed.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 8 September 2020.
Associate:
Date: 8 September 2020
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