McAdam & McAdam
[2008] FamCAFC 91
•3 July 2008
FAMILY COURT OF AUSTRALIA
| MCADAM & MCADAM | [2008] FamCAFC 91 |
| FAMILY LAW - APPEAL – From decision of Federal Magistrate – Children – Relocation – Child lived with mother and spent time with the father – Mother relocated with child – At trial, the father sought orders that the mother and child return to the area from which they moved and for an equal shared care arrangement – The father’s application was rejected by the Federal Magistrate – Father appealed – Whether the Federal Magistrate erred in failing to attach appropriate weight to the allegedly demonstrated risk of psychological harm facing the child when in the mother’s care – Whether the Federal Magistrate failed to take account of the meaningful relationship of the father and child – Whether the Federal Magistrate erred in the exercise of his discretion by failing to consider the potential impact of the mother’s relocation on the child and its effect or potential effect on a meaningful relationship being maintained between father and child – Whether the Federal Magistrate’s discretion miscarried by a failure to consider whether the arrangement occasioned by the relocation had changed or would change the relationship between father and child – Whether the Federal Magistrate failed in placing inappropriate weight on the written evidence of the family report writer – Whether the Federal Magistrate erred in placing undue weight on the impact on the older children in the mother’s household if the child was ordered to return – Whether the Federal Magistrate erred in failing to have sufficient regard to the practical difficulties of the child spending time with the father on each alternate weekend – Whether there was a miscarriage of discretion – No merits in the appeal – Appeal dismissed |
| Family Law Act 1975 (Cth) |
| Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 Norbis v Norbis (1986) 161 CLR 513 |
| APPELLANT: | MR McADAM |
| RESPONDENT: | MS McADAM |
| APPEAL NUMBER: | NA | 21 | of | 2008 |
| FILE NUMBER: | BRC | 11899 | of | 2007 |
| DATE DELIVERED: | 3 July 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | BRISBANE |
| JUDGMENT OF: | WARNICK J |
| HEARING DATE: | 24 June 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 13 February 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 365 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Frizzelle |
| SOLICITOR FOR THE APPELLANT: | Legal Aid Queensland |
| COUNSEL FOR THE RESPONDENT: | Mr Edwards |
| SOLICITOR FOR THE RESPONDENT: | Family Law Solutions |
Orders
That the appeal be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym McAdam & McAdam is approved pursuant to s 121(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 21 of 2008
File Number: BRC 11899 of 2007
| MR McADAM |
Appellant
And
| MS McADAM |
Respondent
REASONS FOR JUDGMENT
The proceedings tried before Phipps FM, resulting in the orders which led to this appeal, were precipitated when Ms McAdam relocated residence with S, the daughter of herself and Mr McAdam. S had been living with her mother and three elder half siblings at W, west of Ipswich in South East Queensland. The father, a farmer, lived at R about 30 minutes drive away. The mother moved to K, near Gympie, north of Brisbane and about three hours drive from the father’s residence.
In the trial, the father sought orders that would see the mother and child return to the area from which they had moved and the institution of an equally shared care arrangement, week about, for the child. The Federal Magistrate rejected the father’s application, and it is he who appeals.
The eight grounds of appeal (which will be later set out) and the arguments in support of them have, in many instances, something of the character of arguments that might be put at first instance, rather than attempts to identify specific errors in the learned Magistrate’s decision. For example, they may urge that a particular conclusion should have been drawn, but do not demonstrate that alternative conclusions were not available. However taken together, they probably amount to the proposition that, in all the circumstances of the case, the learned Magistrate failed to give sufficient weight to some factors, gave insufficient weight to others, and in the end, the result fell outside a reasonable exercise of discretion.
The context in which these arguments fall for consideration has some significant features:
(i)the order that the Federal Magistrate made for periodic contact, namely that the child spend time with the father each alternate weekend from 6.00pm Friday to 5.00pm Sunday, provided essentially for the same time as the father had been spending with the child before the relocation, with regard to which the Federal Magistrate inferred from the father’s evidence “…that until the relocation he was happy with the arrangements, that is the alternate weekends.”;
(ii)the father worked “…six days out of seven, and sometimes seven days out of seven, and sometimes longer hours, his normal working day is 8.00 to 4.00.”;
(iii)the father’s partner, Ms W, whom the Federal Magistrate said, after referring to the father’s work commitments “…would be a figure in [S]’s life” did not give evidence. The Federal Magistrate further said: “…Ms Clark [who prepared a Family Report] spoke to her and gathered from her that she enjoyed having [S] stay. I infer from that that she supports Mr [McAdam] in his application. The Court has not had evidence from Ms [W] where she states specifically that she supports the father's application.” … “The Court has not had an opportunity to hear what she has to say about it, what she thinks about what life would be like for [S] living in the home with her three boys.”; and
(iv)the family reporter did not support the father’s application.
This context presents some difficulty for the father’s appeal.
In the circumstances, after a background, including an outline of the Federal Magistrate’s essential approach to the matter, I will discuss some specific points raised by the grounds, some arguments that did not neatly fit within the grounds, and then consider the proposition that the learned Magistrate’s decision fell outside a reasonable exercise of discretion.
Background
The parents married in January 2000. The household comprised then, S’s three older half siblings, Z, nearly 18 at trial and twins, E and C, 16 in June 2008 and following her birth in April 2001, S. The parties separated on 6 March 2006.
For most of the period since separation, the father had spent every second weekend with S and had frequent telephone contact and holiday time. Phipps FM found:
14.… All had proceeded well. The parents had cooperated. [S] had maintained a good relationship with her father.
About 18 months before the trial, the father repartnered and he lived with Ms W and her three children, three boys aged 15, 13 and eight.
On the long weekend of 8 May 2007, S spent the long weekend with her father. Following her return to her mother, she told her sister C about a game that she had played with the 15 year old son of the father’s partner. It is sufficient to describe the incident as one of sexualised behaviour. Upon learning of this the mother telephoned the father and correspondence followed. The mother notified the police on 31 May 2007 or thereabouts. Subsequently, she took S to a sexual abuse counselling service and S received teaching about protective behaviours. Ms Clark’s assessment was that S was not upset by the incident. Phipps FM finished his discussion of any question of risk to S arising out of the incident, by saying:
17.I am quite satisfied that Mr [McAdam] and his partner monitor any contact between [S] and [M] and whatever protective measures are necessary are in place.
18.I am satisfied that if I was to order equal time that there would be more than adequate protective measures in place so far as [M] and [S] were concerned.
Shortly after “the incident”, in June 2007, the mother moved her household to K. Phipps FM found that the mother did not forewarn the father and left no contact details. I was told that this was not quite accurate or at least not a complete description of the father’s state of knowledge and my attention was drawn to a letter written by the father on 22 June 2007, to the mother, demonstrating an awareness by him of the prospect of a relocation by the mother. It might also be that some telephone contact details were given when the mother moved.
In any event, no ground of appeal raises this aspect. Whatever the full circumstances as to the father’s knowledge of these matters, the father spent no time with S until following a Legal Aid conference in late August 2007. Since then, the previous arrangements have resumed in relation to alternate weekends and there has been telephone contact twice a week. Phipps FM said:
15.… It is agreed all round, including in Ms Clark's report, that it has proceeded well.
Phipps FM recorded that there was no suggestion before him that equal shared parental responsibility should not apply. Not disagreeing with that position, he then recognised that he was obliged to consider an equal time arrangement for the care of the child. He said:
26.The conclusion by Ms Clark in her report is first of all as to equal time. [S] has lived all her life with her mother and her older siblings. She has lived in a house where she is the youngest of three girls and she has an older half-brother. If she was to be spending equal time she would have to transfer from that household as described to one where there is the known carer figure, her father, and the three young males, 15, 13 and 7. Ms Clark describes it in her report as an adjustment challenge. She elaborated in her oral evidence. She referred to literature which shows that children being in two households was challenging. Her view was that here [S] is happy and adjusted in the current arrangements and she may find it unsettling if those arrangements were changed.
27.The evidence about [S] currently is that she is happy and well-adjusted, she is doing well at the school which she is attending, and she is enjoying her time with her father. There is a significant issue about the amount of time she has to spend travelling, but subject to that caveat she is thriving.
The Federal Magistrate then returned “…to the issue of the mother’s willingness to facilitate the relationship between [S] and her father”. He had earlier identified that the essence of the father’s case was that the mother’s relocation was an attempt to damage the father/daughter relationship and in the light of that, to maintain, improve and promote that relationship, shared care was necessary.
Phipps FM examined the mother’s actions, not only in relocating but in respect of some other aspects of the arrangements for the child, in circumstances where some involvement of the father in decision-making might have been expected. Having done so, he returned to the question of equal time, saying:
32.While there may be some doubts about Ms [McAdam]’s motives in moving, and a need to consider her willingness to promote the relationship, the issue is what is in [S]’s best interests in terms of where she is living at the moment, where she should live in the future, and what those arrangements should be.
35.[S] currently has a very good relationship with both of her parents. She has a very good relationship with her half siblings. They are important in her life. … She has known Ms [W]’s three boys for 18 months, but Ms Clark points out that she has not lived with them all her life and they are not her siblings.
36.I accept Ms Clark's opinion, for the reasons she gives, that it would not be in [S]’s best interests for there to be an equal time arrangement. That is, it could have an adverse impact on [S]’s emotional well being. It may well affect her relationship with her father if she becomes distressed to some extent or her current happy state is affected. If her mother's emotional state is affected, that could affect [S]. Her mother is her primary carer. Ms Clark considers it could affect her current happy relationship with her father. Ms Clark’s evidence is that it is not so much the time, but the quality of the relationship with him which is important and the quality of [S]’s relationship with her father currently is excellent.
37.Two other considerations in s.65DAA(5), I might summarise, as the capacity to cooperate. Ms Clark gave evidence of the need for cooperation. There has obviously been suspicion in the recent past between the parents. I have described what I consider to be
Mr [McAdam]’s motivation in making this application and the criticisms that have been made of Ms [McAdam] about her willingness to promote the relationship with the father. There is some merit in those criticisms and some merit in Mr [McAdam]’s suspicion about what was done.
38.Ms Clark observed a cooperative and respectful attitude between the parents, but there must be some lingering doubt about the ability for them to cooperate about the myriad of day-to-day details where there needs to be cooperation if a seven year old is spending equal time with each parent.
39.The principal considerations are the ones I have referred to, which may be summarised as the effect on [S] of any change, but I do take into account what I think are some lingering concerns about the ability of the parents to cooperate effectively in terms of the two cooperation considerations. Even if there was a relocation I conclude it would not be in [S]’s best interests for there to be equal time.
The learned Magistrate then recognised that his decision about “equal time” did not decide the relocation question. He said:
40.… After the move the alternate weekend time can continue and half the school holidays can continue. There are two disadvantages. One is the travel. It is the effect on [S] which is the important consideration. … The other aspect is that while the alternate weekends and school holiday time can continue, the opportunity for additional time and more flexible arrangements is limited because of the distance the parties will be apart if there is not a relocation.
…
43.Ms Clark's opinion and recommendation is, with some hesitation because of the amount of time involved in travelling, that there should not be a move back. [S] potentially would be in a house with an unhappy mother and unhappy siblings. I have already described Ms Clark's assessment of the importance of that family relationship to [S]. Ms Clark said that she prefers certainty to uncertainty. As things stand at the moment [S] is thriving in the family home and with family members with whom she is familiar. She has an excellent thriving relationship with her father. If she then was in a house with an unhappy mother and unhappy siblings, that would effect her well being. That is a disadvantage in itself and if her happiness and well-being is affected, it may affect the excellent relationship she has with her father.
44.The considerations are the benefit to [S] of a meaningful relationship with her parents and the nature of the relationship of [S] with her parents and the other people in her life. I consider that [S]’s best interests lie in her remaining with her mother where she is in [K].
Grounds of appeal
Ground 1:
1.His Honour erred in failing to attach appropriate weight to the demonstrated risk of psychological harm which the child faces in the mothers care.
The gravamen of this proposition was that, because the mother had behaved or proposed to behave in ways that drew some criticism, either by the Federal Magistrate in his reasons or by Ms Clark in her evidence, a risk of psychological harm to the child in her care was demonstrated. Ms Frizzelle, counsel for the father at trial and on appeal, pointed to the criticisms by Ms Clark of the manner in which the mother relocated without informing the father and to Ms Clark’s view that the mother had overreacted to the incident of sexualised behaviour, including taking the child to sexual abuse counselling. Ms Frizzelle also relied on passages of the evidence in which the mother indicated that she proposed to continue to take the child to therapeutic counselling, notwithstanding that Ms Clark thought that unnecessary. Also, as earlier indicated, the mother had executed other unilateral acts in relation to arrangements for the child, such as changes of school and religious affiliation.
However, Ms Frizzelle did not point to any evidence developing the proposition that the mother’s behaviours, in relation to the particular matters identified, represented or predicted any risk in the future, of psychological harm to the child in the mother’s care.
Not only in the absence of such evidence but, in the view of the mother’s evidence, for example of her mixed motivations for moving, even if that included an overreaction to the sexualised behaviour incident, and of her observations of the benefits for the child of counselling, the conclusion for which Ms Frizzelle now contends was, in my view, not the only conclusion open to the Federal Magistrate. It is not enough to succeed on appeal to show that a particular conclusion might have been reached.
In any event, Ms Frizzelle conceded that the conclusion which she now contends should have been reached, was not urged upon the Federal Magistrate. In my view, there is no merit in this ground.
Grounds 2, 5 and 4
2.His Honour failed to take account of [sic] meaningful relationship of the father and child.
5.In the exercise of his discretion His Honour failed to consider the potential impact of the mother’s relocation on the child and its effect or potential effect to maintain a meaningful relationship with the father.
4.The discretion miscarried in that His Honour failed to consider whether the arrangement occasioned by the mothers’ unilateral move to [K] had changed or would change the relationship between the father and child.
Passages of his reasons in which the Federal Magistrate addressed the matters which these grounds assert he failed to consider, including those already set out, are:
34.… The statutory considerations relevant are … and then the primary consideration of the benefit to [S] of having a meaningful relationship with both of her parents.
44.The considerations are the benefit to [S] of a meaningful relationship with her parents and the nature of the relationship of [S] with her parents and the other people in her life. …
In my view, there is no merit in these grounds.
Grounds 3 and 7
3.His Honour failed in placing [sic] inappropriate weight with written evidence of Ms Clark.
7.His Honour erred in failing in placing undue weight on the evidence of the report writer in respect of: (a) uncertainty and unhappiness and (b) her analysis of the relationship between the child and the members of the fathers’ household. [as orally amended at hearing]
Ms Frizzelle pointed to cross-examination of Ms Clark, in which the family report writer was given information about various things of which she was not previously aware. These included the mother changing the child’s schooling while they were living at W, and the designation of the child’s religious affiliation, as well as the true travel time between the mother’s new residence and the father’s residence, as against a lesser period that Ms Clark had originally in mind. Ms Clark expressed some criticisms of the mother and/or reservations because of these matters.
However, the short answer to this ground is that none of these matters caused Ms Clark to change her ultimate recommendation. While the Federal Magistrate was by no means obliged to accept that recommendation, he was free to do so and it provided an acceptable foundation for his conclusion.
Ground 6
6.His Honour erred in placing undue weight on the impact of the older children in the mothers’ household if the child was ordered to return to the Ipswich area.
It is noted that the ground is not that the Federal Magistrate was not entitled to place weight on the impact of a forced relocation on the mother’s older children, but that he placed undue weight on that factor. The weight to be given to it was very much a matter for the Federal Magistrate but in any event, he made it clear that, irrespective of the factor, he would have reached the same conclusion.
As earlier seen, his Honour formulated his conclusion in paragraph 44:
44.The considerations are the benefit to [S] of a meaningful relationship with her parents and the nature of the relationship of [S] with her parents and the other people in her life. I consider that [S]’s best interests lie in her remaining with her mother where she is in [K].
He then continued:
45.I add two comments. In the High Court decisions, the right of people to decide their place of living is a consideration. There are three older children involved. They are not parties to the proceeding and they are not represented other than by their mother. If I was to order relocation, I would have to give some consideration to the effect on them independently of the affect on [S].
…
49.I consider, independently of these comments, the evidence is clearly in favour of a decision that it is in [S]’s best interests that she remain in [K] and that the arrangements should be as they are at the moment. (emphasis added)
Ground 8
8.His Honour erred in failing to have sufficient regard to the practical difficulties involved in the child spending time with the father each alternate weekend.
The passages already quoted (in particular, paragraphs 40 and 43) show that Phipps FM was well aware of and concerned about the travel required, particularly its effect on S, for the child to spend time with the father.
Other arguments
In the course of addressing the grounds of appeal, Ms Frizzelle made some submissions about the Federal Magistrate’s approach, of which contentions did not squarely fit within the grounds of appeal. She said that the learned Magistrate was wrong to disregard the prospect of the child, as she grew older, of not wishing to travel so far so regularly to see the father. I do not consider that the mere possibility of such a development was a matter that Phipps FM was obliged to take into account.
Ms Frizzelle suggested that the learned Magistrate did not place sufficient weight on evidence about the lack of contact the mother’s older children had with their father. No evidence about this to which she pointed compelled findings adverse to the mother’s parenting of the older children, let alone findings adverse to the mother’s capacity to parent the parties’ child.
Finally, Ms Frizzelle suggested that the learned Magistrate failed to address alternative arrangements to the proposals put forward by the parties. She did not assert that alternatives had been specifically put to the Federal Magistrate. She did not assert that in such circumstances a court must consider alternatives anyway. However, she argued that the learned Magistrate failed to consider an arrangement whereby the mother returned to the proximity of R and the father spend greater time with the child than alternate weekends. In my view, as the cases were presented to Phipps FM, he did not need to say much of the possibility referred to. He gave clear reasons for rejecting relocation, many of which would have applied whatever arrangement was then put in place. He did recognise (at paragraph 40, earlier quoted) that greater involvement of the father was possible if the mother and child returned.
Did the Federal Magistrate’s discretion miscarry?
As was said by Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345, of the rationale of an appellate court’s approach:
… It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.
In the High Court of Australia in Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178 Brennan J stated:
The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
As seen, the learned Magistrate had to weigh up a number of factors. He did not accept the father’s concerns about the mother’s intentions to damage the father/daughter relationship, at least at the level of seriousness that the father put it, but he did find cause to be critical of some of the mother’s actions. These concerns and doubts, together with other factors, such as the impact on the child of increased travel and the limitations on the father’s involvement with the child beyond alternate weekends and holidays, caused by the relocation, he weighed against the likely consequences if the mother was obliged to return to nearby the R area, as well as concerns about the father’s proposal for an equal sharing of the child’s care.
All of these matters he addressed in the context which I set out at the beginning; that the same arrangements for the child to spend time with the father could still be made, that the father had been satisfied with that, and that the father’s partner did not give evidence.
In my view, the conclusion to which Phipps FM came was well open to him.
Conclusion
The appeal should be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 3 July 2008
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