Morrall & Olmos
[2017] FamCAFC 2
•12 January 2017
FAMILY COURT OF AUSTRALIA
| MORRALL & OLMOS | [2017] FamCAFC 2 |
| FAMILY LAW – APPEAL – CHILDREN – RELOCATION – Where the father appeals against final parenting orders which permit the mother to relocate the child to Germany – Where the grounds of appeal challenge findings, the exercise of discretion and weight given to various factors – Whether the primary judge erred in his consideration of the parties’ competing proposals – Whether the primary judge erred in his application of s 60CC(2)(a) of the Family Law Act 1975 (Cth) – Whether the primary judge erred in his evaluation of expert evidence – Whether the primary judge made errors of fact – Where the exercise of making parenting orders for the future is discretionary as per U v U (2002) 211 CLR 238 – Where the primary judge is not bound to accept the evidence of the family consultant – Where the findings made by the primary judge were open on the evidence – Appeal dismissed. FAMILY LAW – APPEAL – STAY – Where the father appeals against refusal to grant a stay of orders pending the determination of his relocation appeal – Where primary appeal will be dismissed – No utility in stay appeal – Appeal dismissed. FAMILY LAW – COSTS – Where both appeals dismissed and the father has been wholly unsuccessful – Where an order for costs would impede the father’s ability to meet travel costs associated with the parenting orders – Mother’s application for costs dismissed. |
| Family Law Act 1975 (Cth): ss 60CC(2)(a), 60CC(3)(ca) |
| CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 |
Payne v Payne [2001] 2 WLR 1826
U v U (2002) 211 CLR 238
| APPELLANT: | Mr Morrall |
| RESPONDENT: | Ms Olmos |
| FILE NUMBER: | BRC | 11732 | of | 2012 |
| FIRST APPEAL NUMBER: | EA | 183 | of | 2016 |
| SECOND APPEAL NUMBER: | EA | 192 | of | 2016 |
| DATE DELIVERED: | 12 January 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Ryan & Kent JJ |
| HEARING DATE: | 8 December 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 September 2016; 24 November 2016 |
| LOWER COURT MNC: | [2016] FamCA 812; [2016] FamCA 1019 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lethbridge SC and Mr Maurice |
| SOLICITOR FOR THE APPELLANT: | Dobinson Davey Clifford Simpson |
| COUNSEL FOR THE RESPONDENT: | Mr Page QC |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray |
Orders
Appeal No EA 183 of 2016 be dismissed.
Appeal No EA 192 of 2016 be dismissed.
The mother’s application for costs be dismissed.
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 Morrall & Olmos 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 SYDNEY |
Appeal Number: EA 183 of 2016; EA 192 of 2016
File Number: BRC 11732 of 2012
| Mr Morrall |
Appellant
And
| Ms Olmos |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal (EA 183 of 2016) filed on 20 October 2016 Mr Morrall (“the father”) appeals against final parenting orders made by Benjamin J on 23 September 2016. Those orders permit Ms Olmos (“the mother”) to relocate to Germany with the parties’ daughter, B (“the child”). She is their only child.
The father’s Notice of Appeal filed on 28 November 2016 (EA 192 of 2016) against his Honour’s order of 24 November 2016 refusing to grant a stay of the orders must also be considered.
The unchallenged findings of the primary judge were that the child has always lived with her mother and is primarily attached to her. The mother is “a very good primary carer” but she had developed a depressive illness and believed she could establish a much more stable life for herself and the child in Germany. The primary judge was satisfied that, if the mother remained in Australia, her mental health issues and “very poor circumstances” would “have a significant detrimental impact upon her and upon her ability to care for the child” ([221]). His Honour was also satisfied the mother had “enabled” the child’s relationship with the father and that the child loved her father and he loved her ([5]). Nonetheless a change of residence to the father “would have a profound negative impact on the child” ([306]) and although permitting the child to move to Germany would have a “profound impact upon the relationship between the father and the child” ([277]), which would “likely diminish”, their relationship would continue ([224]). Pursuant to the orders under appeal, the child is to spend time with the father in Australia for four weeks annually and, if he can arrange to do so, he is to have an additional four weeks with her in Germany.
The mother resists both appeals. Her Queen’s Counsel’s summary of argument and oral argument did not provide assistance with the necessary particularity and we have had to undertake our own detailed review of the record, unassisted by cogent submissions on the mother’s behalf, to examine the father’s assertions on appeal as to error.
Relevant background
So as to give context to both appeals, it is necessary to set out some brief background facts.
The mother is a German national and permanent resident of Australia ([22]). She is 43 years of age and immigrated to Australia in 2002. The father is a Country E national and Australian citizen and is currently 39 years of age. He immigrated to Australia in 2009 ([26]).
The mother and father commenced cohabitation in Brisbane in November 2009 and married in December 2009 ([27]).
The child was born in Australia in 2010 and is currently six years of age ([28]). Since the time of her birth the mother has been the child’s primary carer.
By agreement, in November 2011 the mother and child went to Germany. The father joined them in December 2011 and, as planned, he returned to Australia on 4 January 2012. The mother and child were due to return with him but it was agreed they would extend their stay and return to Australia on 14 February 2012.
The mother did not return with the child and eventually the father commenced proceedings pursuant to the Hague Convention on the Civil Aspects of International Child Abduction to secure the child’s return.
In the meantime, and unware of the Hague application, the mother decided she would resume her relationship with the father and on 31 July 2012 she and the child returned to Australia.
It appears on the evidence provided by both parties that the mother moved from Brisbane to Canberra with the child on 15 November 2012, and the parties separated four days later. The mother commenced employment in Canberra on 27 November 2012, while the father remained in Brisbane to complete his PhD. The father contends in his summary of argument that the primary judge’s findings at [32] concerning “the date and sequence and [sic] separation are plainly wrong” (father’s Summary of Argument filed 28 November 2016 page 3, footnote 3). While the primary judge was incorrect in stating that the parties separated prior to the mother moving to Canberra, nothing turns on this error.
In December 2012 the father instituted parenting proceedings in Brisbane by way of his Initiating Application filed in the then Federal Magistrates Court. By her response, the mother sought orders, inter alia, that she be permitted to relocate to Germany with the child. Those proceedings were transferred to the Canberra Registry on 12 March 2013 ([34]).
The father moved to Canberra on 25 March 2013 and obtained employment at University X where he is currently employed on a contracted basis ([35]).
On 31 July 2014 the parties concluded the parenting proceedings by way of consent orders, which provided for the child to live with the mother and spend time with the father for four nights per fortnight as well as time after day care each Thursday until 6.30 pm ([44]). That compromise involved the mother not pursuing her application to relocate.
In February 2015 the mother was diagnosed with a major depressive disorder ([45]).
On 30 June 2015 the mother’s employment contract concluded ([46]).
The mother re-instituted parenting proceedings by way of her Initiating Application filed on 17 November 2015. By that application the mother sought that the consent orders of 31 July 2014 be set aside, that she have sole parental responsibility for the child and that she be permitted to relocate with the child to Germany.
As was earlier referred to, on 23 September 2016, the primary judge pronounced the orders under appeal. The orders are structured so that the consent orders of 31 July 2014 continue to operate until 7 January 2017. As at 8 January 2017, the mother is permitted to take the child to live in Germany. In the meantime, the child would continue to spend time with the father, in essence, five nights each fortnight. However, and to the father’s undoubted credit, he has adhered to an agreement that the mother takes the child to Germany for four weeks in January 2017. This was on the basis that the child would return to Australia no later than 4 February 2017. It is against this background that the primary judge determined the father’s application to stay the trial orders.
At the hearing of the stay application the mother proposed an order to the effect that she would return the child to Australia if the father’s appeal against the relocation order was successful and she was ordered to do so. The primary judge made an order to this effect and having done so, dismissed the application for a stay.
The interplay of the orders made in the primary appeal and those made in the stay appeal means that unless an order is made for the mother to return the child to Australia, after they depart in January 2017, they will remain in Germany.
The relocation appeal
The father’s Notice of Appeal advanced some 17 grounds of appeal, many of which were interrelated and were addressed together in his summary of argument. We propose to adopt the same approach. It is noted that grounds 8, 12, 13 and 17 were abandoned.
There is no challenge to his Honour’s statement of the applicable law, rather, the focus of the appeal is on specific findings and how these affect his Honour’s exercise of discretion. It also needs to be remembered the appeal is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. Disagreement by an appellate court only on matters of weight by no means justifies a reversal of the primary judge (Gronow v Gronow (1979) 144 CLR 513 (“Gronow”) at 519).
No argument was advanced in support of the purported challenge to Orders 5, 6, 7 and 29 to 33 (inclusive). There is no doubt the primary judge had power to make these orders and there is thus no basis upon which they should be disturbed.
It is common ground that if the appeal is successful we could not re-exercise and the proceedings should be remitted for rehearing by a judge other than the primary judge.
Did the mother plan to return to Germany without the child? (grounds 1-4)
The focus of these grounds concerns the proposition that on the first day of the hearing, through her counsel, the mother advanced a proposal to the effect that she would return to Germany, permanently and, if necessary without the child. However, his Honour determined the proceedings on the basis that the options presented for determination were:
·By the mother, that she and the child relocate to Germany;
·By the father, that the child live with him in Australia and spend time with the mother; and
·In the alternative, that the 2014 orders continue undisturbed ([287]). This was on the basis that both parents and the child would continue to live in Australia.
It follows, and it is the case, that the primary judge did not consider what the father says was the mother’s proposal that she would immediately return to Germany if necessary without the child. It needs to be understood that his Honour was satisfied that the mother did not want to return to Germany without the child but it was accepted that in the event the mother’s mental health failed to the extent she was unable to look after herself she may be forced to do so, inferentially without the child ([254]).
The errors said to arise from a failure to consider this asserted proposal are three-fold. First, in failing to appreciate that on this important issue the mother approbated and reprobated his Honour, in effect, erred in failing to find that the mother would say and do anything in order to achieve her goal of being able to relocate with the child. Secondly, to challenge various findings about that proposal and thirdly, by failing to consider and evaluate:
a)all relevant proposals, and
b)the reliability of and weight that could be attached to any assurance given by the mother in the event that she was permitted to relocate.
In advancing these challenges, senior counsel for the father took us through a careful analysis of the first day of the trial and, in particular, of counsel who then appeared for the mother’s cross-examination of the family consultant. From that cross-examination it emerged for the first time that if the mother was unsuccessful in her application, she may nonetheless return to Germany. Until that point neither party proposed orders that would separate the child from the mother. With this possibility raised by counsel for the mother the ambit for cross-examination of the family consultant broadened and the question of whether there was a change in circumstances sufficient to warrant reconsideration of the 2014 consent orders fell away. However, the mother did not present a minute of order to give effect to this new option and in her evidence disavowed any intention to leave Australia without the child. As the passages below establish, in her evidence the mother acknowledged that circumstances could unfold where she might be forced to return, if necessary without the child.
The transcript references which are now set out provide the flavour of the questions which underpin these grounds.
Counsel for the mother cross-examined the family consultant during which the following exchanges took place:
[COUNSEL FOR THE MOTHER]: … Now, at paragraph 60, when you address the impact, as you see, on the child’s relationship with the father, should the mother and the child move to Germany, I take it that when compiling your report, as a consequence of the various – or the two proposals of the parties in relation to where one would live, that you saw that as being, really, the core issue in the matter. The father’s not seeking any increase in time. He just says dismiss this application?‑‑‑Yes.
The mother’s seeking to move with [the child] ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ to Germany?‑‑‑Yes.
So I think it’s fair to say in those circumstances that you put that paragraph in because you saw the core issue as being the impact on [the child’s] relationship with her father ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ if the relocation was granted?‑‑‑Yes.
When you interviewed the mother, you discussed with her, didn’t you, whether or not she would remain living in Australia if [the child] was to remain living in Australia?‑‑‑Yes.
And she said to you, “I can’t initially. I cannot answer you that,” or words to those effect?‑‑‑Yes.
And she cried?‑‑‑Yes.
And, then – she then said to you, “I would be forced to go back,” meaning Germany.
…
[COUNSEL FOR THE MOTHER]: The mother said to you that she would be forced to go back to Germany if [the child] was ordered to remain here?‑‑‑I don’t remember her saying that.
And she said to you, otherwise effectively she would be living in emotional and financial poverty. And she said, “I would be forced to leave”?‑‑‑I – I don’t remember her saying she would be forced to leave.
You certainly raised with her what she would do if [the child] was not permitted to relocate to Germany with her?‑‑‑Yes.
What I’m suggesting to you is that she made it clear to you that reluctantly her position would be that she would go back?‑‑‑I – I do not – I do not believe that that’s the case, that she said that to me.
Right. I’m going to ask you to accept from me that that’s the mother’s position. In those circumstances you would agree, wouldn’t you, that what your report doesn’t do is assess what would be the impact upon [the child] if, in fact, she were to remain in Australia and her mother was to return to live in Germany?‑‑‑No. I did not consider that that was a possibility.
(Transcript of proceedings, 15 April 2016, page 24 lines 40-47; page 25 lines 1-18, 28-46)
(Emphasis added)
This line of questioning of the family consultant continued:
[COUNSEL FOR THE MOTHER]: … Now, in terms of the mother’s proposal that she will return to Germany with or without [the child], if that’s the order that’s made by the court, and the fact that it hasn’t been commented upon in your report, I take it from the totality of the evidence that you’ve given this morning that if they were the two choices, and given [the child’s] primary attachment to her mother, you would be supportive of [the child] going with her mother if they were the two choices that the court faced?‑‑‑It’s a – it’s a very difficult – it’s a very difficult decision. I – there’s a lot of – there’s a lot of unknowns about – for [the child] going with her mother to Germany. Her relationship with her mother may be the primary attachment, but [the child] is getting older, and other things are important to [the child] now, and that has been the basis for her being the person she is now, her primary relationship with her mother. A move of this magnitude will be – would be massive for [the child], because her other attachment figure, her father, would not be there, and she would not have a relationship with him, and over time she would be likely to lose her relationship with him.
…
[COUNSEL FOR THE MOTHER]: … And when you say that there are a lot of unknowns in [the child] moving to Germany with her mother, I think part of your evidence was there a lot of things that are important to her, and a move of this magnitude shouldn’t be done lightly. She’s likely to lose the relationship with her father. They’re just some of the things I think you said in answer to my question. If she doesn’t move to Germany, and her mother does, that’s something of great magnitude in this child’s life too, isn’t it?‑‑‑Absolutely.
(Transcript of proceedings, 15 April 2016 page 29 lines 8-21, lines 40-46)
(Emphasis added)
Counsel for the mother went on to question the family consultant as to which of the parties would be best able to facilitate a relationship between the child and the other parent, if the child were separated from them. That exchange is as follows:
[COUNSEL FOR THE MOTHER]: …When his Honour retires to consider the evidence, whether it be the cross-examination, the affidavit evidence, your evidence, the reports, one of the most significant factors is going to be who can best facilitate this change for [the child] in a focused – child-focused way, firstly. Who is best able to support the relationship across the world as well? --- If that’s the decision that the judge makes.
Well, if they’re the proposals that the parties got, that’s really the only decision that - - - ?---Well, the decision could be that the – the judge could decide that the – that the – that the parents remain – that [the child] should remain living with – as she is with both her parents. It will be the mother’s decision to decide to - - -
Sure?‑‑‑ ‑ ‑ ‑ relocate to Germany.
But you understand that if that’s the mother’s proposal, and the father’s proposal that he remains here, the court can’t restrain the mother from leaving?‑‑‑No…
…
Yes. Okay. And just so that there be no misapprehension when others might read the transcript, when you said that she was going to go back to Germany because she can’t get rid of her depression here, you understand that that’s not a proposition I put to you about why she will be returning to Germany?‑‑‑I – I do understand that That is what ‑ ‑ ‑
Thank you?‑‑‑That is me making an assumption.
…
[COUNSEL FOR THE FATHER]: …I might need to ask your Honour for an adjournment. This position that the mother would go to Germany whatever occurs with [the child] is a new one to us, and it radically changes the shape of the case. And so I just need to try and reflect on what that means and whether I’m actually equipped to properly question [the family consultant], and whether [the family consultant] is equipped to answer those questions on the fly, seeing as this is such late-breaking news.
(Transcript of proceedings, 15 April 2016, page 32 lines 16-30, page 33 lines 33-39, page 34 lines 8-13)
(Emphasis added)
When the hearing resumed counsel for the father cross-examined the mother about this new option, namely that she would return to Germany regardless of whether the child was permitted to do so:
[COUNSEL FOR THE FATHER]: You’ve already said – you’ve already said that you would go once – if an order was made preventing your daughter from leaving this country?---I said when I would be forced to leave the country.
Well, you see, I will take you through the questions that were put – and I think this is a different category, your Honour – that were put to the family consultant by your then counsel, and it suggested you would immediately leave – not any conditions, not any delays. Do you accept that?---No.
(Transcript of proceedings, 23 May 2016, page 28 lines 12-19)
Counsel for the father took the mother to various passages of the trial transcript of 15 April 2016, in particular to questions asked by her counsel of the family consultant about what the mother said during her interviews. After referring to these passages and putting a number of the same propositions to the mother, the following exchange took place:
[COUNSEL FOR THE FATHER]: Okay. Now, what that means – I suggest to you – is that this new idea of a delay is something you’ve come up with somewhere between 15 April 2016 and the making of the new orders that you have prepared?‑‑‑No, I didn’t.
Do you follow what I’m saying?‑‑‑Yes.
And I suggest to you that the reason you’ve done this is you believe that leaving immediately – sorry, threatening to leave immediately if your daughter is to remain in this country will harm your case. That’s the reason, isn’t it?‑‑‑No, it isn’t.
You see, there’s no reference to it when you file your application in November last year. There’s no – nothing in your affidavits until after this series of questions from Ms Gillies. When the consultant is asked, it’s not suggested to her that there’s going to be some delay for some reason. All that happens is you – I suggest – have changed your position because you don’t think it will help your case?‑‑‑No, I haven’t.
Because you know what it means, don’t you? If you’re prepared to leave your daughter in full-time care of her father, you are saying to the court, “I trust him to look after her”?‑‑‑No.
You would never abandon her if you had any doubt as to his ability to care for her?‑‑‑That’s not true.
(Transcript of proceedings, 23 May 2016, page 32 lines 8-30)
And:
[COUNSEL FOR THE FATHER]: It wasn’t suggested to [the family consultant] by [counsel for the mother] that your proposal in the event that [the child] could not relocate to Germany was to remain in Australia and hang on as long as you could, which is the substance of what your affidavit says. Well, that wasn’t suggested, was it?‑‑‑It was in [the family consultant’s] evidence.
Are you saying you told [the family consultant] that, that you would hang on as long as you could but then you would go if you had to?‑‑‑I said to [the family consultant] when I would be forced – yes.
Yes – no, no. Please answer my question. Did you say to [the family consultant] that you would hang on as long as you could?‑‑‑I can’t remember.
You can’t remember?‑‑‑No.
It’s pretty important, isn’t it?‑‑‑It is very important. Yes.
There’s a big different with saying, “I’m leaving if this order is made regardless” and saying, “I will hang on and I will see how I go”. There’s a big difference, isn’t there?‑‑‑No, because I didn’t say the first one.
Beg your pardon?‑‑‑Sorry, I don’t ‑ ‑ ‑
There’s a big difference in saying that you were going – ultimately you would leave if you couldn’t hang on in Australia and instead saying, “I’m leaving once the orders are made”. There’s a big difference?‑‑‑Yes, there’s a big difference ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ yes.
And you had introduced this idea on 2 May?‑‑‑No, I didn’t.
Well, why did you ‑ ‑ ‑?‑‑‑Hang on.
‑ ‑ ‑ dispute that? How can you dispute that when ‑ ‑ ‑?‑‑‑Because I ‑ ‑ ‑
‑ ‑ ‑ when it’s obvious?‑‑‑ ‑ ‑ ‑ said it to [the family consultant] as well.
Beg your pardon?‑‑‑I said it to [the family consultant].
You said it to [the family consultant], that you would hang on as long as you could?‑‑‑That I just leave when I’m forced to.
Well, that’s a different thing to saying hanging – hanging on as long as you could, don’t you think?‑‑‑No, I think it’s pretty similar.
(Transcript of proceedings, 23 May 2016, page 36 lines 9-46, page 37 lines 1-5)
Two things emerge from the evidence of the mother and the family consultant in these passages. First, the mother’s evidence is clear in eschewing any suggestion she would leave Australia without the child immediately or soon after an adverse decision and that she would only contemplate leaving the child were she ultimately forced by her personal circumstances. Secondly, the mother eschewed that she gave a different version to the family consultant and that is not inconsistent with the evidence of that witness.
The challenge thus turns upon the questions put in counsel’s cross-examination and has substance only if it can be established that counsel put a clear proposition that the mother intended to leave immediately or soon after the decision if she was not permitted to relocate with the child (the new option).
The primary judge, at [14] of the trial reasons found that the new option reflected ‘…an unintentional miscommunication and that the mother at all times wished to continue in her role as primary carer of the child but was concerned about her ability to do so if her health deteriorated further.” It was contended these findings were not open to his Honour.
The question of miscommunication, inferentially between the mother and her counsel who appeared on the first day of trial is irrelevant. The significance of [14] is that the primary judge accepted the mother’s evidence as to her desire to care for the child but she recognised that she might, at some indeterminate stage, be forced to return to Germany alone. It is telling that nowhere in the transcript references to which we were taken did counsel for the mother put a temporal element to the possibility the mother would return to Germany without the child. That information was provided by the mother in her evidence. In this regard, the mother was particular and consistent that she would only return if forced to by reason of “her mental health, her lack of employment and consequent poverty, combined with her deep desire to return to Germany…” ([14]).
On a fair reading of the trial reasons, it is apparent that the primary judge gave careful consideration to the matters raised by these grounds and decided that he would accept the mother’s evidence on the point. His Honour was entitled to do so.
Before us, senior counsel for the father conceded that unless the father was able to establish that the only inference available from cross-examination and the exchanges between his Honour and counsel for the father at the end of the first day of trial was that immediately following judgment, the mother would depart Australia, with or without the child, then grounds 1 to 4 inclusive could not be made out. As we have explained, we do not accept this was the only available inference and his Honour’s conclusions on this topic, taking into account the totality of the evidence, were available.
Moreover, the focus or analysis upon the mother’s proposal or position, as expressed or as to be inferred in the manner invited by these grounds and the argument in support of them, would be to confine the inquiry impermissibly as was discussed by the High Court in U v U (2002) 211 CLR 238 (“U v U”). As the High Court there emphasised, the Court’s consideration is not confined by the proposals of the parties and the fundamental requirement of the Act is to regard the best interests of the child as paramount. It was fundamental to that task at trial that informed by, but not necessarily determined by, the mother’s proposal or position (either as expressed or as to be inferred), the primary judge had to consider the likely consequences for the child of the orders ultimately made. Inevitably, examination of hypothetical future possibilities as to a party’s response to the orders made renders absolute precision of prediction unattainable. In that context, the primary judge had to consider the future consequences for the child identifiable on the evidence of orders not permitting the child’s relocation with the mother to Germany. As Gummow and Callinan JJ (Gleeson CJ, McHugh and Hayne JJ agreeing) observed in U v U at [90]:
90. The exercise, of looking to, and making orders for the future, is peculiarly a discretionary one.
The primary judge was bound to look beyond any tactical elements within the approach by either party, in their stated position or proposals. Relevantly, in Payne v Payne [2001] 2 WLR 1826 (a judgment referred to with apparent approval by various members of the High Court in U v U ) Thorpe LJ referred to the “tactical” approaches sometimes employed by parties in cases of this type, in an analogous context, as follows (at [42]):
In very many cases the mother’s application to relocate provokes a cross-application by the father for a variation of the residence order in his favour. Such cross-applications may be largely tactical to enable the strategist to cross-examine along the lines of: what will you do if your application is refused? If the mother responds by saying that she will remain with the child then the cross-examiner feels that he has demonstrated that the impact of refusal upon the mother would not be that significant. If on the other hand she says that she herself will go nevertheless then the cross-examiner feels that he has demonstrated that the mother is shallow or uncaring or self-centred. But experienced family judges are well used to tactics and will readily distinguish between the cross-application that has some pre-existing foundation and one that is purely tactical. … The judge in the end must evaluate comparatively each option for the child, one against another.
Grounds 1 to 4 do not succeed.
Errors of fact (ground 5)
By ground 5, various findings are challenged, the effect of which is said to be that the primary judge erred in failing to find that the 2014 orders were no more than a device in the mother’s campaign for permission to relocate the child. Allied to this is the notion that the mother engineered circumstances which would maximise her prospects of securing permission to do so.
The findings challenged are at [193]-[195] as set out below:
193.In lengthy submissions counsel for the father asserted that the consent orders the mother entered into on 31 July 2014 were a device so that the mother could garner evidence to make a further application. I do not accept that assessment. I find that after the finality of the 31 July 2014 orders the mother became sadder, more disillusioned and more isolated. I accept that her mental health either continued to be poor or became worse. I have considered [the therapist’s] evidence and made this determination having regard to the notes of [the psychologist].
194.I am satisfied that when the mother’s paid employment was terminated her broader economic circumstances deteriorated.
195.I accept and find that the mother entered into the July 2014 orders ‘with a view to improving the relationship with the father; with a view to her mental and emotional health improving; and with a view to employment prospects improving’. All of these hopes soon evaporated.
(Footnote omitted)
The findings at [193]-[195] reflect the primary judge’s assessment of the mother’s evidence taking into account the specific matters which it is sought to agitate in this ground. In this respect it is contended that rather than accept evidence from the mother, based on file notes by the mother’s therapist dated 22 August 2014 and a forensic psychologist dated 26 September 2014, the primary judge should have found that the mother sought to orchestrate permission to relocate.
As to the therapist, her notes contained the following statement:
Pushed for Consent Orders [till June 2015 when her contract finishes]. Then she has further “amo” [sic] ie no job here.
Although the therapist was not cross-examined about this note, she was questioned about what the mother told her about why it was the mother agreed to sign the 2014 consent orders and whether, at that time, the mother still hoped to be able to return to Germany. The gist of the therapist’s evidence is that the mother understood that at some future date she could re-apply for permission to relocate and that her prospects of success might be enhanced if she could show she had no further contract of employment and she had made attempts to obtain work but been unsuccessful. As the therapist explained it, the mother “…hoped to be able to try again…there was some issue about whether that would be a possibility” (Transcript of proceedings, 25 May 2016 page 266 lines 3-4).As to the use of the word “amo” the therapist was not asked whether this was her word or a quote from the mother. However, in relation to other snippets in her notes the therapist said that her notes were not intended for publication and designed to “just jog my memory of …. at the time.” (Transcript of proceedings, 25 May 2016 page 275 lines 3-4). For her part, the mother said she “...cannot remember I said these words. Ammo is not a word I use.” (Transcript of proceedings, 24 May 2016 page 121 lines 23-24).
The mother denied that she entered into the consent orders as a device to achieve her plan to re-apply when her contract for employment expired in 11 months. In her affidavit of 2 May 2016 the mother spoke about her meeting with the family consultant and why she entered into the consent orders. The mother explained the situation thus:
[The family consultant] asked me “Why did you enter into Consent Orders?” I said “I didn’t know that I would not be able to get a job. How could I know that the relationship with [the father] would not improve? How could I know that my mental health would not improve? How could I know that things would get worse? I have hypertension, sciatic nerve problems, I’m overweight. I signed with faith for the best case scenario being [the father] and I getting along, my health being better, my job being OK and [the child] and I could have stayed until she was 18 years. The Court doesn’t want to see us. I don’t want to see the Court either but I am sitting here and I have no other idea what to do.”
(Original emphasis)
The primary judge was entitled to accept this evidence and it provides a satisfactory evidentiary basis for the findings at [195].
At [58] of the trial reasons, the primary judge specifically addressed the evidence concerning the therapist’s August 2014 note. His Honour did not accept the device argument advanced by counsel for the father and expressed the view that the note reflected part of the mother’s “long term hope” to be permitted to return to Germany fulltime.
As to the psychologist’s note, she wrote in 2014 that the mother “… had no job next year and will need to go back to court for relocation”. That evidence was addressed at [193]. It was not overlooked and consistent with the approach taken to the therapist’s note, it was balanced against, in particular the evidence given by the mother.
The primary judge was entitled to reject the device argument and we discern no error. Nor are we satisfied that merely because the primary judge was mistaken about the circumstances under which the parties separated that this mistake strengthens the challenge raised in this ground.
Ground 5 is not made out.
The family consultant (ground 6)
By ground 6 it is asserted the primary judge erred in rejecting the evidence of the family consultant with respect to the consequences for the child’s relationship with the father if the child moved to Germany. Allied to this is the argument that the stated reasons are inadequate.
The primary judge discussed the evidence given by the family consultant at [175]-[183]. His Honour first provided an overview of the key components of that evidence, in particular, as to the effect of relocation on the child’s relationship with the father. The recommendations made by this witness were then analysed along with the substantial challenge which had been mounted by the father against the proposition that the mother was committed to fostering a relationship between him and the child.
No challenge is made to the accuracy of the primary judge’s analysis of the evidence given by the family consultant or the challenge just mentioned. Rather, it is to his Honour’s conclusions at [180]-[183]. This is where his Honour rejected the opinion of the family consultant that the child’s relationship with her father would be lost or fractured if the child moved to Germany. Contrary to the opinion of the family consultant, his Honour found that relocation would result in their relationship being “…diminished by distance but, given the relationship as it now stands and which must reflect the mother not sabotaging it and in fact supporting it, … the relationship will not be lost or fractured if the mother moves to Germany” ([180]).
In coming to this conclusion, the primary judge considered various longitudinal studies referenced by the family consultant which traced the effect on children deprived of a parent. Although his Honour accepted the evidence given by the family consultant as to the effect of these studies, his Honour found that because the child would not be “deprived of her father” the alarming outcomes identified would not eventuate. His Honour was entitled to distinguish between the circumstances examined by the studies and those which applied to the subject child. There can be no doubt that this conclusion was available and that the reasons at [181] and [183] provide adequate explanation for it.
In U v U, a case involving the potential international relocation of a child and the evidence of a counsellor in that context, Gummow and Callinan JJ (Gleeson CJ, McHugh and Hayne JJ agreeing) observed at [83] that a judge is not bound by a recommendation of a counsellor (family consultant) nor bound to accept or reject the whole, or any part of, the evidence of such a witness.
Ground 6 is not made out.
Expert evidence (grounds 7 and 9)
By these grounds various challenges are made to the approach taken to professional witnesses. Ground 6 is concerned with the evidence of Mr V. He is a psychologist who was appointed as a single expert to assess the mother’s mental health. The expert’s opinion that the mother suffered from a “major depressive disorder single episode – current episode moderate – severe” was accepted. The challenge concerns the decision of the primary judge not to accept the expert’s opinion that with cognitive behaviour therapy, the mother’s mental health difficulties would resolve without her needing to return to Germany.
The expert’s opinion that cognitive behaviour therapy has a good outcome rate in resolving depressive episodes, as well as in relapse prevention was also recorded by his Honour ([139]). However, on the basis of what the expert understood of the mother’s treatment history he viewed the mother as essentially untreated or ineffectively treated. As far as the expert understood it:
… [I]t is unclear as to whether [the mother’s] treatment with [her therapist], is partially, or even largely evidence based. I can say for certain that hypnotherapy (which [the mother] advised comprises some of the sessions) does not have a current solid evidence base in treating depression. Of course there are psychosocial factors which also can serve to assist in resolution of depressive disorders including social connectedness and gainful employment.
(Report, Mr V, at [6.4])
In relation to the expert’s opinion concerning the mother’s treatment and prognosis, the primary judge said:
141.Mr [V] said that the mother’s depression was treatable but was essentially untreated. I do not wholly accept that view as there is evidence that the mother is taking treatment through [the therapist] and over a period of time, including hypnotherapy and cognitive behavioural therapy. She has on one or two occasions seen psychiatrist, Dr [N]. What is problematic in this case is that the mother has been desperate to return to live in Germany for many years. She has seen a number of health care professionals and has tried to accommodate remaining in Australia (order 31 July 2014) but these have not resolved her underlying misery and despair. What Mr [V] suggests is that other treatment (the gold standard) be applied in the hope that it works, leaving the mother and consequently the child at risk if it does not.
Although Mr V was aware that the mother received treatment from her therapist, he was not briefed with a copy of the therapist’s affidavit and his opinion was expressed “primarily on [the mother’s] self-report, and psychometric testing results”. Mr V correctly understood that the mother’s therapist treated her with hypnotherapy but his opinions were expressed without him being made aware that the mother’s therapist also treated her with “cognitive behavioural therapy … and … controlled crying”. Although the therapist’s evidence could have been brought to Mr V’s attention, it was not. Queen’s Counsel for the mother explored with him a procedure called “cognitive hypnotherapy”, with which the expert was unfamiliar and counsel for the father essentially explored the lack of utility in hypnotherapy.
In these circumstances, it was well open to the primary judge to reject Mr V’s opinion that the mother’s depressive disorder could be resolved if she remained in Australia and received cognitive behaviour therapy. The point being that in her case, cognitive behaviour therapy had not resolved her depressive disorder.
The gravamen of ground 9 is that the primary judge erred in placing any weight on the evidence of Dr R, a clinical psychologist, who provided an adversarial forensic report concerning the mother’s mental health. Her report was based on three hours of interviews of the mother and, controversially, the mother’s input into what became known as the “revised” report which issued in December 2015. At trial and on appeal it is argued on behalf of the father that as a consequence of that involvement by the mother in settling the report, the witness’s evidence could be given no weight. The primary judge was obviously critical of the mother’s involvement in the creation of the revised report which undermined its probative value ([152]).
In relation to Dr R, it can be seen that his Honour:
·accepted her opinion that the mother suffered a major depressive disorder because this was no longer in issue ([157]);
·rejected her opinion that the mother suffered from post-traumatic stress disorder and complex post-traumatic stress disorder because it was inconsistent with the evidence of Mr V ([158]);
·accepted her opinion that the mother suffers anxiety in her dealings with the father which is relevant to her mental health ([159]); and
·based on evidence to similar effect, accepted Dr R’s opinion that the mother’s depressive symptoms are related predominantly to the fact that she is not able to return to Germany and has a sense of displacement ([162]).
Including [159], it can be seen that Dr R’s evidence was ultimately irrelevant. This is because his Honour did no more than accept her evidence where it was uncontroversial or was consistent with facts established independently of Dr R. Thus, we do not accept that Dr R’s evidence in and of itself influenced the outcome in the Court below. We are emboldened in this view as the challenge, in effect, did no more than complain that the evidence should have been rejected in its entirety and there was no indication by senior counsel for the father of where and how it had influenced the outcome.
These grounds are not made out.
The therapist’s evidence (grounds 10 and 11)
By ground 10 the father challenges the finding at [204] which is set out below:
Given all of the evidence I am satisfied that the mother, who is the primary carer, is at a significant risk in regards to her parenting capacity as a consequence of the deterioration of her mental health if she is required to live in Australia.
The opening words “[g]iven all of the evidence” should be emphasised. They are significant because the challenge made by ground 10 proceeds on the basis that [204] is solely based on the evidence given by the mother’s therapist as recounted at [143]. That evidence carefully explains why, if the relocation application was refused, this would “undoubtedly constitute a major challenge for the mother’s health and wellbeing” and research evidence showed that “…various characteristics noticeable in the way depressed individuals think and act seem to be passed on to their children”. In relation to the therapist, although no weight was given to her evidence outside the scope of her treatment and assessment of the mother, reasonable weight was given to her assessment of the mother and the symptoms she displayed. At [144], the therapist’s evidence that if the mother was prevented from returning to Germany it “would present a major challenge to the mother’s heath [sic] given the diagnosis of the mother” was accepted. Although this evidence is sufficient justification for the conclusion expressed at [204] it is not accepted that his Honour’s finding at [204] is based solely on the evidence given by the therapist.
It should be emphasised again that there was no dispute that the mother suffered a major depressive illness (moderate-severe) for which she had received treatment for quite some time (whether she received appropriate therapy was a separate issue). There was also considerable evidence from the mother about how she felt parenting in Australia compared to being able to parent in an environment which she regarded as supportive and where her own financial, employment, social and emotional needs were met. No doubt this formed part of “all of the evidence” to which reference was made. We are satisfied that his Honour’s findings at [204] are not limited to the therapist’s evidence and, in its terms, ground 10 must fail.
There were no submissions, either in the summary of argument or in senior counsel for the father’s oral argument directed specifically to ground 11. All that need be said is that commencing at [287] of the trial reasons and following, the primary judge set out his findings as to the likely impact upon the mother if her application were dismissed. Those findings were open to his Honour and, absent the articulation of any argument directed to them, can be taken to be not the subject of specific challenge in the appeal. As can be seen from [299] and following of the reasons, the primary judge’s finding, by reference to the father’s proposed orders, that the father accepted the depths of the mother’s despair and unhappiness if she is not able to return to Germany, is a finding inferred from the father’s approach that the mother would not cope with a decision which did not permit her to return to Germany, with a consequent likelihood that the mother’s ability to parent would diminish or even end with her returning to Germany at some later stage. That inferential finding was open to be made. We find no substance in ground 11.
The application of s 60CC(2)(a) of the Act (ground 14)
The gravamen of ground 14 is that the primary judge failed to properly apply s 60CC(2)(a) of the Family Law Act 1975 (Cth) (“the Act”). This is one of two primary considerations which must be considered so as to determine the outcome which is in the best interests of the child. The provision focuses on the benefit to the child of having a meaningful relationship with both of the child’s parents.
The misapplication of s 60CC(2)(a) is said to arise from:
·his Honour’s focus on the interests of the mother rather than the best interests of the child;
·the fact that whilst his Honour acknowledged the child’s relationship with the father would diminish, he wrongly found that the relationship would still flourish;
·there being no objective evidence that if the mother was to remain in Australia there was a great risk to the welfare of the child with respect to her relationship with the mother; and
·the fact that orders could not be said to be likely to give rise to a meaningful relationship between the father and the child.
The first proposition is easily discounted. At [12] of the trial reasons, his Honour correctly identified that:
·“the best interests of the child have priority over the interests of the parents”…;
·“the mother needed to demonstrate … how the proposed move is in all of the circumstances, in the child’s best interests”.
The primary judge did not focus on the interests of the mother. To the extent there was discussion of her interests, it was always about the mother as a parent and how her parenting capacity might be affected. In this context, his Honour was obliged to consider the nature of the child’s relationship with the mother, who was unarguably the child’s primary carer and how the mother’s depressive disorder might affect her capacity to continue to care for the child as well as she had to date. Given the nature of the proceedings, it was thus necessary for the primary judge to give close attention to the evidence adduced in both parties’ cases about the mother’s wellbeing, and what she and her therapist said was the deterioration of her health subsequent to the 2014 orders.
Having come to the conclusion that the impact on the mother of her deteriorating mental health had been profound, between [213] and [226], his Honour explained why it was that he was satisfied that this “very good parent to the child”, if she remained in Australia, would suffer “a significant detrimental impact upon her and upon her ability to care for the child” if the relocation application was dismissed ([221]). Thus, unless the mother was able to relocate with the child, there was “…a great risk in terms of the welfare of the child in particular as to her relationship with the mother” ([226]). In other words, that the good quality parenting and the nature of the relationship which the child had with her primary carer was, if they remained in Australia, at great risk.
This “great risk” finding is sought to be impugned because, it is contended, there is no “objective” evidence to support it. With respect, this approach misstates the manner in which findings as to both future hypothetical possibilities and findings made by inference from other findings are legitimately made. Moreover, the argument ignores the nature of the discretion involved in parenting orders made for the future. We have earlier made reference to what was said by the High Court in U v U at [90]. In CDJ v VAJ (1998) 197 CLR 172 the plurality of the High Court (McHugh, Gummow and Callinan JJ) observed of applications for parenting orders and of their determination as follows (at 218 -219):
…Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
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.
It is accepted that under the specific rubric of s 60CC(2)(a), the primary judge did not discuss the child’s relationship with the father and the effect of separation from him in the same level of detail that he did qua the mother. His Honour found that on a relocation the child’s relationship with the father would likely diminish but went on to say that their relationship “…will continue and given the father’s past approach will be able to flourish”. No challenge is made to the findings that the child’s relationship with the father would likely diminish but still continue. It is the use of the word “flourish” that is under challenge by the second proposition outlined above.
We understand the reference to “the father’s past approach” as being to the evidence which showed the real efforts made by the father to maintain and develop his relationship with the child. For example, his decision to follow the mother and child from Brisbane to Canberra. Probably also his earlier agreement to live in Germany. The point being, his Honour was satisfied that the father would do all that he could so as to spend time and communicate with the child ([246]). Although this did not involve him also moving to Germany, given the mother’s ongoing encouragement of the child’s relationship with the father, she would still spend significant time with him in Australia annually and there would be regular communication by Skype.
Considered in this light, his Honour was plainly satisfied that the child’s relationship with her father would continue to be meaningful albeit, as was said on more than one occasion, in a diminished fashion. The word “flourish” would thus seem to encapsulate these concepts and mean something like, continue and be meaningful. Notwithstanding that his Honour erred in finding that in Germany the child would attend an English language school, these relationship findings were available. As to the former, the mother gave evidence that the child would attend the local primary school. In relation to English language studies, the mother said “… English is guaranteed as it is part of the main school curriculum in Germany. In Germany English classes commence at Grade 3 with two hours per week. On top of this [the German school] offers in co-operation with the Institute of Languages, English courses for Years 1, 2, 3 and 4 running for 45 minutes after school” (mother’s affidavit sworn 28 October 2015 at [154]). Clearly it was not an English language school.
However, the critical point is that although the mother conceded German would eventually become the child’s primary language, the child would continue to have English language classes and the mother would speak to her in that language. With annual trips to Australia of four weeks, and weekly Skype or FaceTime communication between the father and child as ordered, his Honour could safely and did, in fact, proceed on the basis that the child and father would maintain a common language. There was thus no basis for concern (as expressed by the family consultant) that language differences would interfere with their relationship.
In support of the proposition that the orders would not give rise to a meaningful relationship between the child and the father, it is argued that the finding at [315] “… [i]t is open to the father, who enjoys a good income, to travel to Germany for four weeks per year” is erroneous and thus his Honour’s conclusion that “[t]his will give the child exposure to the father for some eight weeks per year plus regular electronic communication” was not available. As is not in doubt, the evidence adduced at trial is that the father had fulltime employment until at least December 2017 which provided him with four weeks annual leave. In light of this evidence, we accept that for the foreseeable future the evidence established that the father would probably spend no more than four weeks a year with the child in Australia.
But the judgment proceeds on the basis that the only certainty for contact between the child and the father is for four weeks in Australia annually and by Skype. This is why the word “open” was used. As we interpret his Honour’s reasons, this word was used to recognise that provision was to be made in the orders so that if the father could arrange it, he could spend time with the child in Germany along the lines proposed by the mother. At [315] the primary judge did no more than point the benefits to the child should he do so.
This ground has not been made out.
Failure to make finding (ground 15)
By ground 15 it is asserted that his Honour erred in finding that the relocation proposal would not have a serious and deleterious effect upon the child by reason of her removal from residence in proximity to her father, such that the mother’s proposed relocation of the child should not have been permitted. In other words, that the effect on the child of separation from her father would be “serious and deleterious” and the primary judge should have so found.
As we said earlier, the primary judge described the effect as being “profound” and to “diminish” the child’s relationship with the father. Senior counsel for the father relied, in particular, on the evidence given by the family consultant on the point. As we said earlier, her evidence on this topic was based on various longitudinal studies which the primary judge was satisfied addressed circumstances different to those in this case.
There can be no doubt that the primary judge was troubled by the gravity of the decision that befell him. It was described as complex and difficult and the decision to permit relocation was “finely balanced”. The point being, his Honour well understood the seriousness of the issue for all parties involved and recognised that the child’s relationship with the father would inevitably diminish.
Error in the manner asserted is not established.
Payment of child support (ground 16)
Section 60CC(3)(ca) concerns the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child. There is no doubt that when the mother’s employment came to an end she was in extraordinarily strained financial circumstances. For example, she was eligible for and received food parcels provided by a charity and lived in supported accommodation.
The primary judge thus understood that the provision of child support by the father was of real significance to the welfare of the child and the mother’s capacity to meet the child’s necessary expenses. His Honour’s discussion of the point is exemplified by the following passages:
234.The father is in arrears of child support in the sum of approximately $3,000. I accept that this came as a consequence of a change of assessment in 2015. However, the father knew the mother was unemployed and living in supported accommodation and yet is paying the arrears by modest instalments.
235.In his submissions, counsel for the father asked rhetorically ‘if there is a finding that the father has remained in arrears to the tune of $3,000 since the assessment was made, one has to ask what does this have to do with relocation?’
236.The answer is clear; the arrears arose in about March 2015, shortly before the mother’s employment ended, of which he knew. Yet it went unpaid. The father explained that this arose out of the impact of the costs of these proceedings.
…
241.Thus the answer to the question posed by the father’s counsel is also clear. The mother has better employment and housing opportunities in Germany than in Canberra. In that context what support can she expect from the father? Given his approach to child support, and his, at best, dismissive approach in Australia to preserving the child’s German culture, the answer must be that he will pay the minimum of what is lawful. The mother can expect little financial help from the father in terms of her care for the child. Furthermore, it is a relevant factor to which the Parliament has directed consideration. I have given it some weight.
(Footnote omitted)
Although it is submitted on the father’s behalf that the primary judge should not have been critical of him, we are more than satisfied that this approach was available. Given that one of the important issues in the case was the mother’s ability to gain sufficiently well remunerated employment in order to meet her and the child’s financial needs, there can be no doubt that the primary judge was entitled to attach some significance to the finding that the “mother can expect little financial help from the father in terms of her care for the child.” Of course, it is well settled that 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 (Gronow at 520). Lest there be any misunderstanding, we do not disagree with his Honour’s attribution of weight.
This ground is not established.
Conclusion and Costs
The father has not established relevant error and the appeal will be dismissed.
In the event we were able to pronounce judgment and publish our reasons prior to 4 February 2017, it was agreed that the stay appeal became nugatory and could be dismissed. That order will be made.
In the event the appeal was dismissed, the mother sought costs against the father, which the father opposed. For the father, it was submitted that the parties have expended a significant amount of money in relation to their ongoing legal dispute, which they have, and that an order for costs would almost certainly impede the father’s ability to meet his share of the child’s costs of travel between Germany and Australia. We accept this is so and notwithstanding that the father has been wholly unsuccessful in the appeal, an order for costs would not be appropriate.
I certify that the preceding ninety eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ryan & Kent JJ) delivered on 12 January 2017.
Associate:
Date: 12 January 2017
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