Molloy & Reid
[2018] FamCAFC 89
•11 May 2018
FAMILY COURT OF AUSTRALIA
| MOLLOY & REID | [2018] FamCAFC 89 |
| FAMILY LAW – APPEAL – CHILDREN – International relocation – Where the mother was not permitted to relocate with the children from Queensland to New Zealand – Whether the primary judge erred in creating a “checklist” of issues and by reciting dicta in Morgan & Miles (2007) FLC 93-343 – Deiter & Deiter [2011] FamCAFC 82 and MRR v GR (2010) 240 CLR 461 considered – Held there was no error in the primary judge paraphrasing the law or developing a list of issues with the assistance of the parties – Jurchenko & Foster (2014) FLC 93-598 considered – Held primary judge had regard to s 65DAA(5) and the essential basis on which his decision rested could be understood – No error in the attribution of weight to the father’s behaviour – The primary judge’s focus upon and findings regarding the “diminishment” of the children’s relationship with the father did not amount to error – Held the mother’s case did not fail because she did not present “compelling reasons” for relocation – Where the primary judge was satisfied that the children would maintain a “meaningful relationship” with both parents if the relocation was permitted but found the father’s proposal was in the best interests of the children – Held the primary judge evaluated the benefits and detriments associated with relocation and did not treat the appellant mother’s fall-back position as a “proposal” – U v U (2002) 211 CLR 238 considered – Appeal dismissed – Timetable set out for the filing of costs submissions. FAMILY LAW – APPEAL – Cross appeal – Discrete issue concerning a notation to an order – Held no error and therefore no basis to amend the notation – Cross appeal dismissed. |
| Family Law Act 1975 (Cth) s 65DAA |
| Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Boyle & Zahur and Anor (2017) FLC 93-814; [2017] FamCAFC 263 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Deiter & Deiter [2011] FamCAFC 82 Heaton v Heaton (2012) 48 Fam LR 349; [2012] FamCAFC 139 Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127 Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 U v U (2002) 211 CLR 238; [2002] HCA 36 |
| APPELLANT/CROSS RESPONDENT: | Ms Molloy |
| RESPONDENT/CROSS APPELLANT: | Mr Reid |
| FILE NUMBER: | TVC | 55 | of | 2016 |
| APPEAL NUMBER: | NA | 58 | of | 2017 |
| DATE DELIVERED: | 11 May 2018 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Murphy & Aldridge JJ |
| HEARING DATE: | 8 February 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 September 2017 |
| LOWER COURT MNC: | [2017] FamCA 760 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT/ CROSS RESPONDENT: | Dr Brasch QC |
| SOLICITOR FOR THE APPELLANT/CROSS RESPONDENT: | Ruhl Family Law Centre |
| COUNSEL FOR THE RESPONDENT/CROSS APPELLANT: | Mr Shoebridge with Ms Fraser |
| SOLICITOR FOR THE RESPONDENT/CROSS APPELLANT: | Purcell Taylor Lawyers |
Orders
The Application in an Appeal filed on 24 January 2018 be dismissed.
The appeal be dismissed.
The cross-appeal be dismissed.
The respondent file and serve submissions (not exceeding five pages) in support of any application for costs in relation to the appeal within 14 days of the date of this order.
In the event the respondent files and serves submissions in accordance with Order 4, the appellant shall file and serve submissions (not exceeding five pages) in response and in support of any application for costs in relation to the cross-appeal within 14 days of service of the respondent’s submissions.
In the event the appellant files and serves submissions in accordance with Order 5, the respondent be at liberty to file and serve submissions (not exceeding two pages) in reply within seven days of service of the appellant’s submissions.
Subject to any written submissions to the contrary any applications for costs shall be determined in chambers without the necessity for appearance.
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 Molloy & Reid 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 58 of 2017
File Number: TVC 55 of 2016
| Ms Molloy |
Appellant/Cross Respondent
And
| Mr Reid |
Respondent/Cross Appellant
REASONS FOR JUDGMENT
The mother appeals against orders made by Tree J[1] refusing her permission to relocate the parties’ three children from O Town to New Zealand.
[1] The orders were made on 26 September 2017, but amended under the slip rule on 31 October 2017.
The father opposes the appeal and cross-appeals on a minor, unrelated issue.
Background
The mother was living in the UK and the father in O Town when they met while holidaying in 2003.
The mother had been raised in New Zealand, but had moved to the UK to work as an accountant. The father had grown up in O Town and was working there as an electrician.
The parties commenced living together in 2004. After two years overseas, they moved to O Town, where most of the father’s family live and where the father continues to operate the parties’ business.
The mother has a large family in New Zealand, and her parents continue to run the family farm in the area where the mother wishes to live.
The parties have three children: B born in 2008, C born in 2009 and D born in 2012.
The parties separated finally in November 2015. They have continued to reside in separate homes in O Town, which they acquired during their relationship.
The mother commenced protection order proceedings against the father which were resolved by a consent order (made without admission) in August 2016.
The father commenced proceedings in the Federal Circuit Court of Australia. Interim orders were made in April 2016 for the children to remain with the mother but spend five nights a fortnight with the father.
A Family Consultant provided a report to the Court recommending that the mother not be permitted to relocate, but that the children continue to live with her and spend time with the father each fortnight: six nights for B, four nights increasing to five for C, and three nights increasing to four for D.
The trial proceeded in June 2017. Apart from refusing the mother permission to move to New Zealand, the orders made following the trial provide for equal shared parental responsibility, for the children to live with the mother and to spend four nights a fortnight with the father (save for B who is to have an additional night), as well as half the school holidays and other special days.
The primary judge’s reasons
His Honour recorded that the following 11 issues had been identified at a trial management hearing with the assistance of the parties (at [25]):
1.What is the nature of the relationship between each parent and the children.
2.What risk, if any, does each parent pose to the children, and what, if any, means are available to mitigate it.
3.Would the children benefit from a meaningful relationship with each parent, and, if so, how might it best be facilitated.
4.Is it reasonably practicable for the mother to remain living in [O Town], and if so, what effect would it have upon:
(a) Her emotional and financial circumstances; and
(b) Her parenting capacity.
5.What benefits would relocating to New Zealand have for the mother, particularly in relation to:
(a) Her financial circumstances;
(b) Her family support;
(c) Her parenting capacity.
6.Is it reasonably practicable for the father to relocate to New Zealand, and if so, what effect would doing so have upon:
(a) His emotional and financial circumstances;
(b) His parenting capacity.
7.If the mother and children relocated to New Zealand, but the father did not, would the mother facilitate a meaningful relationship between the father and the children.
8.Is it reasonably practicable for the father to spend time with the children in New Zealand.
9.What is the likely effect upon the children of relocating to live in New Zealand if the father did not also do so.
10.What is the likely effect on the children if the mother relocates to New Zealand but the father and children do not.
11.Is the parties’ communication adequate to support equal shared parental responsibility.
His Honour went on to explain how these issues were to be addressed:
26.Once I have considered the relevant statutory provisions and legal principles, but in advance of a traverse of any residual s 60CC factors, I shall address those issues and then consider the appropriate parenting orders in this case.
Having set out relevant statutory provisions, his Honour said:
39.The application of these provisions I have just canvassed in the context of relocation cases has been discussed by many authorities. In the decision of Malcolm & Munro (2011) FLC 93-460 the Full Court approved the earlier decision of Boland J in Morgan & Miles (2007) FLC 93-343, and particularly at paras.79 to 81…
After reciting paragraphs 79 to 81 from Morgan & Miles (2007) FLC 93-343 and without making any further comment about their content, his Honour then discussed each of the identified issues, determination of which he had earlier said was “likely to substantially impact upon the outcome” (at [25]).
Importantly, his Honour found that if the mother had to remain in O Town, she was “likely to continue to suffer anxiety and stress and will feel, in a sense, as though she is trapped within circumstances which she cannot control”. On the other hand if she were to return to New Zealand there would “likely be an improvement in her emotional circumstances, and some improvement in her financial circumstances” (at [57] and [60]). His Honour also found that she “may be a somewhat better parent to the children, and at least likely somewhat more emotionally available to them” if permitted to relocate (at [61]).
These findings were made against the background of the mother’s claims that the father had engaged in family violence. Although no explicit finding was made that the father had engaged in such violence, his Honour said:
53. Whilst I am not satisfied that the father deliberately set out to dominate, control or otherwise manipulate the mother, I am satisfied that was indeed her experience of him for much of the relationship. I accept her evidence in that regard, and where there is a conflict between her and the father as to the perceived impact of his behaviour on her, I prefer her evidence.
Despite the allegations of violence, and acceptance of the mother’s evidence, his Honour observed that:
80. Both parties sought orders for equal shared parental responsibility … the mother did not seek to argue that the presumption should be displaced.
In discussing parental responsibility, the primary judge said:
82.[The mother] plainly has concerns about what the father may do, notwithstanding the fact that to date he has not demonstrated any particularly violent tendency … [the mother] plainly genuinely experiences anxiety at the prospect of interacting with the father. There are many instances of that, perhaps the most notable of which is that she declined to run in a running race in [O Town] when there was some prospect that the father may also be there…
…
84. Although not without some hesitation, I am satisfied that the parties’ communication is presently, and will likely remain, adequate to support equal shared parental responsibility.
The judge found that if the mother were to relocate, she would likely facilitate “a continuing relationship between the father and children, which may well fall short of being an optimal one, but on balance is likely to nonetheless remain meaningful, as that term is discussed in the authorities” (at [69]).
His Honour also found it was not “reasonably practicable” for the father to relocate and consequently, if relocation was permitted, the father “would be quite limited in the amount of time he could spend with the children in New Zealand” (at [64], [70] and [71]).
After finding that an equal time regime would not be in the children’s best interests, his Honour considered whether to make an order for “substantial and significant time”, noting in relation to that issue that “the mother’s relocation application looms large” (at [102]).
His Honour then summarised the advantages and disadvantages of the proposed relocation and explained his decision as follows (emphasis added):
103.Essentially the consideration of relocation involves balancing on the one hand, the inevitable diminution of the quality of the relationship between the children and the father on the one hand, against the likely increased happiness, or at least diminished anxiety and stress, of the mother, on the other. However there are a number of other matters to be weighed in the balance as well. Particularly I see the following matters as weighing in favour of the mother being permitted to relocate as follows:
•She would have likely have improved emotional support in New Zealand from family and friends;
• She has better prospects of employment in New Zealand;
•She is likely to experience reduced anxiety and stress because of the diminished prospect of inadvertently having contact with the father;
•She will likely perceive that she has been able to choose where she lives rather than being “trapped” in a [place] which, according to her evidence, she only agreed to ever live in for a period of two years.
104. On the other hand the following points tend against relocation:
•It is likely to substantially diminish the children’s relationship with the father, and cause them, at least, short term grief and loss;
•Particularly, [B]’s weekly face-to-face time with the father, focussed on [sport], would fall away;
•The mother’s prospects in New Zealand may not prove to be as rosy as she thinks;
•It would not permit the children to have a relationship with the father that would involve spending substantial and significant time with him;
•The mother has now lived in [O Town] for 10 years, and coped with doing so, and successfully parented the children, albeit perhaps at a sub-optimal level.
105.Ultimately, although not without considerable hesitation, I weigh those factors as tipping the balance against permitting relocation. Particularly, it is simply impossible to ignore the fact that, for ten years now, the mother has indeed lived in [O Town], and although she is unsatisfied, anxious and suffering stress, nonetheless she has been able to cope. The cost of improving her situation is to dramatically diminish the children’s relationship with the father. I conclude that, viewed from the children’s perspective, the disadvantages to them outweigh the advantages of relocation, which is not in their best interests.
106.I then turn to consider the content of the orders, and I am satisfied that they should be as proposed in the alternative by the mother. I am satisfied that those orders are indeed substantial and significant time, and that they are in the best interests of the children, and are reasonably practicable, taking into account the matters listed in s 65DAA(5).
The Grounds of Appeal
There were seven grounds of appeal. These were supported by a summary of argument which was not prepared by senior counsel who appeared for the mother at the hearing before us. Counsel took a different approach in dealing with some of the grounds than had been foreshadowed in the summary.
Ground 1 – reliance upon Morgan & Miles
Ground 1 asserts error by the primary judge
in his reliance upon the decision of Morgan & Miles (2007) FLC 93-343 having regard to the fact that the said decision was made prior to the decision of the High Court in MRR v GRR [sic] (2010) 240 CLR 461 and that criticism of the decision in Morgan & Miles that can be drawn from subsequent decisions of the Full Court of the Family Court.
The essence of the argument here was that the judge had led himself into error by focusing on the “checklist” of issues set out above and also on the “checklist” supplied by Boland J in the paragraphs recited from Morgan & Miles. The mother’s summary of argument went so far as to assert that his Honour had relied on Morgan & Miles “as the basis of his decision-making” in circumstances where neither party had referred to the case in argument.
Relying on what was said by the Full Court in Deiter & Deiter [2011] FamCAFC 82 counsel for the mother drew attention to what were said to be dangers associated with judges having regard to “checklists” which place “glosses” on an already complicated statute, thereby “obscuring” the law. It was argued that in the present matter the primary judge had “let the checklists control the outcome” (transcript, 8 February 2018, p 7).
We accept that the Full Court in Deiter & Deiter commented adversely on the way a magistrate had applied the “checklist” in Morgan & Miles, but nothing said by the Full Court there proscribed efforts by trial judges to paraphrase the law in the way Boland J had done in the earlier case. Indeed, it might reasonably be said that careful paraphrasing of legislation can illuminate the law and demonstrate that it has been correctly understood. The difficulty the Full Court saw in Deiter & Deiter was not that the magistrate had regard to the “checklist” in Morgan & Miles but rather that he may have misunderstood the nuances in one item on the list and hence misapplied what Boland J had said.
As we have pointed out, while the judge in the present matter recited the Morgan & Miles “checklist”, his Honour did not thereafter comment on it, or seek slavishly to apply it. It seems his purpose in referring to it was to provide a convenient paraphrase of the law and explain the method by which he proposed to apply the law. There was no error in doing so since it was not suggested in argument that there is any aspect of Boland J’s “checklist” which – when its nuances are properly understood – contains any legal error.[2]
[2] Although we were referred to what the Full Court said in Parks & Farmer [2012] FamCAFC 12 at [48], nothing said there identifies error in Boland J’s “checklist” in Morgan & Miles, subject to the remarks at [52] concerning the item that also attracted the attention of the Full Court in Deiter.
Furthermore, while it is true that Morgan & Miles was decided prior to MRR v GR (2010) 240 CLR 461, and while it is also true that his Honour made no reference to the latter decision, we can see no error. No submissions were made to show how his Honour departed from or overlooked what was said in MRR v GR. It is not obligatory for judges to refer to case law when all the case law does is to draw attention to the words of the statute, and to state how the plain words are to be applied.
It is evident to us from the entire structure of the reasons that his Honour paid careful regard to what was said by the High Court in MRR v GR in ensuring that the statutory “pathway” laid down in s 65DAA was followed.[3] Nothing advanced in argument suggested the contrary, albeit issue is taken in later grounds with some of the conclusions reached along the pathway.
[3] We refer here in particular to [28] and [95] – [106] of the reasons.
The other “checklist” criticised by the mother in oral submissions was the catalogue of issues which his Honour had assembled with the assistance of the parties. Again, we see no error in a judge developing a list of issues. Indeed, the issues joined between the parties mark the parameters of what the court is called upon to adjudicate. Delineation of the issues can be seen to be all the more important in the Family Court and the Federal Circuit Court, each of which operates without pleadings. Having identified the issues, it was appropriate for his Honour to have addressed them seriatim in the way he did in his reasons.
Importantly, his Honour made clear that resolution of each of the issues would not, in itself, lead to the result in the way that might occur in courts of strict pleading, where resolution of a key issue will be determinative. Instead, and correctly in our view, his Honour put it no higher than that determination of the identified issues was “likely to substantially impact upon the outcome”.
In the course of her submissions, counsel for the mother referred to Jurchenko & Foster (2014) FLC 93-598. That case is a good illustration of how the identification of issues can lead to error, not by the identification of the issues as such but by employing an invalid assumption when framing them. Thus, it is impermissible for issues to be framed on some notion not to be found in the legislation – for example, that orders must ensure children have a meaningful relationship with both parents. Similarly, issues cannot be framed upon premises not sustained by reference to the evidence in the case. But this does not mean that framing issues should be avoided. Quite the contrary. The identification of issues is crucial to the adjudication of every case and their exposition can usually be helpful. However, it is crucial that the issues are framed correctly and with precision and particularity.
We accept that if the third issue his Honour identified had stood alone, or was treated in a way to make it appear to be determinative, error would have been demonstrated. However, that is not how his Honour approached his task and thus he did not fall into the error identified in Jurchenko & Foster.
For these reasons we find no merit in Ground 1.
Ground 2 - reasonable practicability
By this ground it is asserted that the primary judge erred in law
in limiting the requirement of “reasonable practicability” arising under s. 65DAA(5) of the Family Law Act as relating solely to the reasonable practicability of the mother remaining in [O Town] and its effect upon her emotional and financial circumstances and parenting capacity and the reasonable practicability for the father to relocate to New Zealand.
It seems that this complaint arises out of the use of the following headings by the judge appearing above [44] and [62] of the reasons:
Reasonable practicability for mother remaining in [O Town] and effect upon her emotional and financial circumstances and parenting capacity
Reasonable practicability for the father to relocate to New Zealand
It is contended that in restricting his consideration to matters specified in these headings, his Honour failed to have proper regard to s 65DAA(5), which provides:
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
We accept that in following the prescribed pathway, a court “must have regard to” the matters specified in s 65DAA(5), however in complying with this directive a court needs to pay particular attention only to issues that have been presented for determination. We are not persuaded that his Honour failed to have regard to any of the matters arising under this subsection that the parties themselves regarded as being of significance to the dispute.
The judge said that he had taken the s 65DAA(5) matters into account. There was no need to specifically discuss all of them, since his Honour was required only to articulate the essential basis on which his decision rested so it could be understood and so justice could be seen to have been done: Housing Commission of NSW v Tatmar PastoralCo Pty Ltd [1983] 3 NSWLR 378; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Bennett and Bennett (1991) FLC 92-191; SCVG & KLD (2014) FLC 93-582; and Banks & Banks (2015) FLC 93-637.
In any event, we do not apprehend that the two impugned headings used by his Honour were designed to capture the matters arising under s 65DAA(5), but rather were a shorthand way of describing the fourth and sixth issues identified by his Honour at [25] of the reasons. While it may be that the use of the expression “reasonable practicability” in this context had potential to confuse, we consider that his Honour’s reasoning process was transparent and logical.
Furthermore, the equal time scenario that had to be considered under s 65DAA was discarded not because it was not “reasonably practicable” but because it was found not to be in the children’s best interests. And it was accepted on both sides that a substantial and significant time regime was both in the children’s best interests and reasonably practicable provided both parties lived in the same location. It was common ground that such a regime would not be “reasonably practicable” if the mother relocated, which is why his Honour was correct in saying at [102] that “the mother’s relocation application looms large” in deciding whether or not to order such a regime.
We accept the argument of counsel for the father that other propositions advanced in the mother’s summary of argument under this ground bear no relationship to the ground as stated and/or constitute new arguments that were not advanced at trial and hence cannot now be advanced on appeal.
For these reasons, this ground lacks merit.
Grounds 3 and 4– failure to find there had been family violence
By these grounds it is asserted that the primary judge
made an error [of] law and fact and against the weight of evidence in not making a finding that the … father had committed family violence against the … mother and had done so up to and immediately prior to the trial.
[and/or]
failed to give any or any proper weight to the evidence of family violence, the effect of that upon the … mother and the unchallenged evidence of the witness [Ms W].
It was claimed in the summary of argument that uncertainty had been created by the language the judge employed at [53] since it was difficult to know whether he had made a finding that the father engaged in violence. However, counsel for the mother conceded it was clear that his Honour considered that “acts of domestic violence had been committed” (transcript, 8 February 2018, p 12). That concession was properly made when regard is had to [44] – [52] of the reasons which provide the context needed to understand the finding at [53].
Having made this concession, counsel for the mother also properly conceded that Grounds 3 and 4 amount to nothing more than a challenge as to weight.
We are unable to find error in the attribution of weight to the father’s behaviour in circumstances where:
(i)it was proposed by both parties that the father should spend extensive time with the children;
(ii)where the primary judge accepted that the father’s behaviour was relevant to the mother’s desire to relocate;
(iii)where the primary judge took that factor into account – see [44] and the third bullet point at [103]; and
(iv)went on to explain why he considered it was in the children’s best interests for them to remain living near the father in O Town.
We find no merit in either of these grounds.
Ground 5 – “diminishment” in the father’s relationship with the children
This drawn-out ground asserts that:
Having regard to the findings of the learned trial judge concerning the … mother’s experiences of the … father, her psychological condition and its possible deterioration if she were to remain in [O Town] compared to its likely improvement if she were to live in New Zealand, that she would be a better parent if able to live in New Zealand, that she would facilitate a meaningful relationship with the … father notwithstanding living in New Zealand, that the … father was not as well attuned to the children’s emotional needs as is the … mother, that the father could not make out his case for equal time with the children and that in the case of the daughters of the relationship his time should be reduced, His Honour’s focus upon the “diminishment” of the children’s relationship with the father if they were to live in New Zealand:
[a] was an error of law;
[b] against the weight of all the evidence; and
[c]in practical terms required the mother to establish “compelling reasons” for the relocation orders she proposed.
Before discussing the three complaints contained in this ground it will be instructive to set out some of the more relevant findings:
72. The father suggested, if relocation were permitted, that the children would be devastated, and would likely “feel upset, confused and unloved by me.” He predicted that “the paternal relationship would not be able to withstand the strain and difficulties caused by living in different countries.”
73.The mother conceded this in large part, in that she said there “would be a substantial effect on the children if [the father] did not also relocate. That is that they would not see [the father] physically on a weekly basis. The move would impact the children’s relationship with their father.”
74.The parties’ views were endorsed by Ms [V], the family report writer, who at paragraph 151 said:
The most significant impact [on the children] would be their separation from their father. Due to the distances and expense involved, it is likely the children would spend time with their father three to five times a year. [B] could be the most impacted by this, being the eldest child and having a close relationship with his father, including their shared sporting interests. [C] also identified a close relationship with her father. Being separated from him for extended periods of time would likely cause considerable grief for both children. [D] still has a primary attachment to her mother but needs to be provided with the opportunity to build her attachment with her father. As the time she spends with her father would be block periods of time, she may initially experience greater separation anxiety from her mother.
75.I accept that evidence.
76.In her cross-examination, the report writer emphasised that it was the diminished relationship with the father that struck her as the key to the issue of relocation in this case. She reinforced that [B] was most likely to be adversely impacted by relocation, and that it was quite possible that [D]’s relationship with the father was not sufficiently established so as to survive relocation; she stressed that a secure relationship was essential in order to withstand relocation. That said, she acknowledged that the 10 months since she had given her report may have provided sufficient opportunity for the relationship with [D] to have been established, but she could not be sure.
77.She further emphasised that in relation to [C] and [D], in order for their relationship with their father to survive the long distance, it would need facilitation, which involved real effort and willingness on behalf of both parents.
78.I am satisfied that the likely effect upon [B] of relocating to live in New Zealand will be substantial, in that he will lose the presently close relationship which he has with his father, which sees him regularly experiencing him every week, including in relation to their shared sporting interests. I am likewise satisfied that the effect upon the two younger children will be significant, but perhaps not as marked as it will be upon [B]. Nonetheless it will be a significant loss to them, and they are likely to suffer a grief-type reaction in consequence.
…
104.On the other hand the following points tend against relocation:
·It is likely to substantially diminish the children’s relationship with the father, and cause them, at least, short term grief and loss;
…
105.Ultimately, although not without considerable hesitation, I weigh those factors as tipping the balance against permitting relocation. Particularly, it is simply impossible to ignore the fact that, for ten years now, the mother has indeed lived in [O Town], and although she is unsatisfied, anxious and suffering stress, nonetheless she has been able to cope. The cost of improving her situation is to dramatically diminish the children’s relationship with the father. I conclude that, viewed from the children’s perspective, the disadvantages to them outweigh the advantages of relocation, which is not in their best interests.
Dealing with the first of the three complaints, no attempt was made to explain how it was an “error of law” for his Honour to focus on the “diminishment” of the children’s relationship with the father, which we accept he did in reaching his decision.
Two main arguments were mounted in support of the next complaint, namely that the findings about the “diminishment” of the children’s relationship with the father were “against the weight of the evidence”.
First, it was claimed that whatever the mother may have conceded to the report writer about the impact of the relocation on the children, she had denied there would be such an impact when cross-examined. The mother’s concession, as recorded at [73] did not, in fact, come from anything said to the report writer but rather from her affidavit affirmed 15 May 2017, just a few weeks before trial. There is no error in a trial judge reciting, and giving weight to, a concession made against interest by a party in their sworn evidence.
Secondly, it was claimed that his Honour had erred in accepting the evidence recorded at [74] because the report writer had been unable to explain her “bald conclusion” under cross-examination. With respect to counsel, our examination of the transcript does not bear out the submission. The report writer properly acknowledged that it was “hard” to justify a prediction about something “that hasn’t happened yet” but went on to explain what had underpinned her prediction (transcript, 7 June 2017, p 212 – 213). We find nothing in the transcript to warrant criticism of his Honour for relying upon the report writer’s original report.
Turning to the final part of this ground, we are not persuaded that the mother’s case failed because she did not present “compelling reasons” for the relocation. This was a very difficult matter for the judge to determine, as is apparent from reading the judgment, and we entirely agree with what his Honour said on the final day of the trial (transcript, 9 June 2017, p 354):
But the reality is, as I’m sure I don’t need to emphasise to you, that this is an exquisitely finely-balanced case, it seems to me, in that both of you have got good reasons to support the positions that you’re adopting in relation to the issue of relocation. And ultimately, I have the unfortunate task of determining which of those positions is the more meritorious from the “children’s best interests” perspective.
His Honour went on to determine the matter based on his views about best interests, and we are not persuaded that he erred in doing so. As McHugh, Gummow and Callinan JJ said in CDJ v VAJ (1998) 197 CLR 172 at 219:
The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions.
While a different result was certainly available on the evidence, there is no basis for us to interfere with his Honour’s exercise of a very broad discretion.
This ground of appeal therefore fails.
Ground 6 – failure to assess which proposal was best for the children
Ground 6 asserts that:
His Honour erred in determining the location in which the children could maintain a meaningful relationship with both parents, rather than determining which proposal was better for the children.
It was common ground that the children would benefit from a meaningful relationship with both parents, and it was not in doubt that such a relationship could be maintained in the event the children remained living in O Town. However, when speaking of the scenario where the children would move to New Zealand, his Honour said:
69.… the conclusion which I draw is that the mother will likely facilitate a continuing relationship between the father and children, which may well fall short of being an optimal one, but on balance is likely to nonetheless remain meaningful, as that term is discussed in the authorities.
It can therefore be seen that his Honour was satisfied that, regardless of the outcome, the children would maintain a “meaningful relationship” with both parents. Once that fact is recognised, the premise in Ground 6 is not made out.
Furthermore, the matter was, in fact, resolved by reference to what proposal was “better for the children” as can be seen from the crucial finding at [105].
We therefore find no merit in this complaint.
Ground 7 – elevating the mother’s fall-back position to a “proposal”
The final ground of appeal asserts that:
while His Honour appropriately did not elevate the father’s “fall back” orders (if the mother could relocate with the children) to a proposal, he did so with the mother’s fall back proposal (if she could not relocate) and thereby erred.
In support of this ground it was submitted that the judge had focused on the mother’s “fall back” position of having the primary care of the children in O Town rather than on her primary proposal to relocate to New Zealand. We accept that if there was substance in this submission then error would be established since the refusal of a mother to abandon her children must not be elevated to the status of an “alternative proposal”: U v U (2002) 211 CLR 238 at 248–9 per Gaudron J and at 278 per Kirby J; Heaton v Heaton (2012) 48 Fam LR 349 at [32] and Boyle & Zahur and Anor (2017) FLC 93-814 at [43].
However, merely because a court makes an order consistent with a fall-back position, as his Honour did, does not mean that the fall-back position has been treated as a “proposal”. As Gaudron J explained in U v U at 248, the obligation is to ensure that each proposal is “separately evaluated”. It may be that after such an evaluation it will be found that “frequent contact with both parents [is] more important than any other matter” and hence orders will be made that are consistent with the fall-back position (U v U at 249 per McHugh J).
On our reading of the judgment, his Honour was careful not to treat the mother’s “fall back” position as a proposal. On the contrary, it will be seen at [103] and [104] that his Honour carefully evaluated the benefits and detriments associated with the relocation and then concluded at [105] that the balance was tipped against permitting relocation because, viewed from the children’s perspective, the advantages of relocation outweighed the disadvantages. Although his Honour then went on at [106] to foreshadow orders “as proposed in the alternative by the mother” he did so only after having evaluated the primary proposals on their merits, and treating the best interests of the children as the paramount consideration.
We also do not accept the mother’s argument that his Honour’s findings at [102] conditioned his subsequent consideration of the relocation proposal. All his Honour was doing at [102], which is set out in full below, was following the statutory “pathway” laid down by s 65DAA.
102.Turning then to substantial and significant time, I am satisfied that the orders proposed by the mother would indeed satisfy such a definition, in the event that she were not to relocate. However if she were to relocate, then plainly the time which she proposes would not fall on school days, and would not enable the father to be involved in the children’s daily routine, and many events that are likely to be a particular significance to the children, or indeed the father. Therefore in considering whether or not to order substantial and significant time, the mother’s relocation application looms large.
We are unable to see anything here to indicate that his Honour felt obliged to make orders that would permit the father “substantial and significant time”. All his Honour was saying was that he would need to consider the relocation application before deciding whether to make such an order.
Accordingly, we find no merit in this ground of appeal.
The outcome of the appeal
There being no merit in any of the grounds, the appeal will be dismissed.
Cross-appeal – notation to order
The father cross-appeals part of Order 16, which relates to his attendance at the children’s sporting and extra-curricular activities.
Order 16 was in these terms (we have emphasised the portion that is disputed):
Both parents are at liberty to attend the children’s sporting and extracurricular activities regardless of which parent may be caring for the children at the time of the event. Noting the Protection Order the Father is prohibited from following or approaching the mother within 10m during children’s events and activities.
Counsel for the father accepted that appeals should be directed against decrees which affect obligations or rights whereas this complaint relates to the terms of what appears only to be a notation. However, he submitted that as the notation formed part of an order it had the potential to be “mischievous”, since it does not make clear that the Protection Order is of limited duration, and a teacher or other person shown a copy of the order might think that the prohibition referred to was of indefinite duration (transcript, 8 February 2018, p 22).
We do not see any need to make any amendment to the notation. Given his Honour’s findings, we would consider it entirely appropriate if the father did refrain from being within 10 metres of the mother during sporting events or other activities. If an issue about breach ever arose after the Protection Order has expired, the father would be at liberty to produce that order in his defence.
The cross-appeal will therefore also be dismissed.
Application in an Appeal
The mother filed an Application in an Appeal on 24 January 2018 seeking to amend her Notice to include two additional grounds and to adduce further evidence regarding her mental health since his Honour delivered the judgment.
There was no opposition to the application insofar as it sought leave to add grounds of appeal and an order was made accordingly at the hearing of the appeal. The other aspect of the application fell away after counsel for the mother conceded at the conclusion of argument that it would not be possible for the Full Court to re-exercise the discretion in the event the appeal was allowed.
The application will therefore be dismissed.
Costs
We were unable to take costs submissions at the hearing as we were told offers of settlement may be relied upon in dealing with costs issues. Our orders therefore provide a timetable for costs submissions to be filed.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy & Aldridge JJ) delivered on 11 May 2018.
Associate:
Date:11 May 2018
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