Mortimer and Grealy
[2009] FamCAFC 67
•29 April 2009
FAMILY COURT OF AUSTRALIA
| MORTIMER & GREALY | [2009] FamCAFC 67 |
| FAMILY LAW – APPEAL – PARENTING – RELOCATION – APPEAL FROM FEDERAL MAGISTRATE – INTERIM ORDERS - Whether the Federal Magistrate gave sufficient reasons for his decision to order that the child be returned to Townsville from Perth – Whether there had been a failure to address relevant considerations under the legislation – Whether findings made by the Federal Magistrate were open on the evidence FAMILY LAW – APPEAL – Dismissed |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 Bennett & Bennett (1991) FLC 92-131 Gronow v Gronow (1979) 144 CLR 573 Hannan & Hannan [2008] FamCAFC 37 House v The King (1936) 55 CLR 499 Morgan & Miles (2007) FLC 93-393 |
| APPELLANT: | MS MORTIMER |
| RESPONDENT: | MR GREALY |
| FILE NUMBER: | TVC | 1256 | of | 2008 |
| APPEAL NUMBER: | NA | 17 | of | 2009 |
| DATE DELIVERED: | 29 April 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 28 April 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 5 March 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 236 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Anderson |
| SOLICITOR FOR THE APPELLANT: | Klimek & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Fellows |
| SOLICITOR FOR THE RESPONDENT: | Bevan & Griffin |
Orders
The appeal be dismissed.
It is requested that the hearing of the trial of this matter be expedited.
IT IS NOTED that publication of this judgment under the pseudonym Mortimer & Grealy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 17 of 2009
File Number: TVC 1256 of 2008
| MS MORTIMER |
Appellant
And
| MR GREALY |
Respondent
REASONS FOR JUDGMENT
The mother has appealed against orders made on 5 March 2009 by Federal Magistrate Coker. The orders had the effect of the mother returning with the child, a boy aged eight, from Perth to Townsville and radically altering the arrangements that had been in place for the time the child spends with the father.
This appeal was heard by me as a single Judge by direction of the Chief Justice pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth).
The orders made by the Federal Magistrate were interim in nature. The mother has appealed from only some of the orders. The orders which remain include:
(1) The Father and the Mother have equal shared parental responsibility for the major long term issues of the child [C] born […] January 2001 including but not limited to:
a) a child’s education (both current and future);
b) a child’s religious and cultural upbringing;
c) a child’s health;
d) a child’s name;
e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
(2) The parties consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
a)They shall inform the other parent about the decision to be made;
b)They shall consult with each other on terms that they agree;
c)They shall make a genuine effort to come to a joint decision.
(3)Notwithstanding the previous Order 1:
a)The Mother shall be responsible for the daily care, welfare and development of the child whilst he is living with or spending time with her; and
b)The Father shall be responsible for the daily care, welfare and development of the child whilst he is living with or spending time with him.
and details in relation to holiday contact. It was also ordered that a family report be filed by 28 May and directions were made for the filing of affidavit material for the purpose of a trial in Townsville.
The arguments raised by the appellant relate to the question of adequacy of the reasons of the Federal Magistrate and it was submitted that the evidence did not support the conclusions in the judgment. Overall it was submitted that it was wrong of the Federal Magistrate to have made orders which effect was to require the mother to return to Townsville, said to have amounted to coercion.
The appellant asks that the appeal be allowed and that this court then rehear the matter, allowing the mother to go to Perth with the child. In the alternative, that there be a rehearing by another Federal Magistrate.
Mr Fellows, counsel for the father directly referred to the difficulties created by such a result. Should an appeal court re-exercise in an interim hearing there would be no avenue for appeal other than the High Court. This is clearly undesirable. Secondly, Mr Fellows submitted on behalf of the father that they would ask that there be further evidence placed before the court including circumstances since the hearing on 5 March 2009. As mentioned, a Family Report was ordered. These submissions also illuminate the possible lack of utility in the hearing of an appeal against interim orders where a re-hearing is the only possible result.
However, it must be observed in this case that the effect of the orders had a significant impact on the mother and the child. It is accepted that the appeal is bought for bona fide reasons and that the submissions made by counsel for the mother were not without merit.
Background
Although there were some disputed facts before the Federal Magistrate there were none raised of significance in the appeal.
The parties were never married. The child was born in 2001 and had limited time with his father in his early years. As the Federal Magistrate said:
9.This is a most unfortunate case. It is, of course, unfortunate for a number of reasons, not the least of which is the fact that, for a significant part of this child's life, there have been lengthy periods where he has not had the opportunity for a relationship with his father. Whether that has come about as a result of immaturity and inexperience on the part of the father, or as a result of a lack of application or determination on the part of the mother to foster the relationship, the fact is that the child has had limited opportunities for a relationship with his father.
The child lived with the mother in Perth from 2005 until 2008 when the mother returned to Townsville where both families of the parents live. In Perth, the mother had a relationship with Mr O. Because that relationship came to an end the mother returned to Townsville in March, 2008. The relationship has now resumed and the mother now wishes to marry Mr O in a years time.
After the mother’s return to Townsville until November 2008 the father and his family spent considerable time with the child. There is no dispute that this was appropriate for the child.
On 8 September 2008 the mother first informed the father that she wished to return to Perth with the child to resume the relationship with Mr O. There is no doubt that the father made it clear that he opposed such a move. Solicitor’s letters were sent to the mother and are attached to the father’s affidavit. The father filed an application without delay. It seems the mother also had legal advice.
Despite the contents of the fathers solicitors letter the mother left Townsville with the child. The father and his family visited them before they left to say goodbye. About that occasion his Honour said:
31.As I commented before, but will comment again, I would consider any suggestion that the father and his parents coming to say farewell to the child the day prior to departure, shows nothing but care and, I would think, concern and it does the mother no credit whatsoever to suggest that that could in some way be suggested to be inferentially a consent or agreement to her departure with the child. I have never heard such abject nonsense in my life and I find such a suggestion to be entirely inappropriate, self-serving and, more particularly, self-centred.
The Federal Magistrate was correct in finding that the mother had acted unilaterally and that:
30.… Her actions in relation to this matter have prevented this child from having any opportunity whatsoever for the father to have a significant and substantial, or equal involvement in his life. The mother was aware of the concerns expressed by the father in that regard and notwithstanding that, still unilaterally acted to depart.
It is clear from the judgment that the Federal Magistrate appreciated that this was an interim decision. Reference was made to the significance of Goode v Goode (2006) FLC 93-286. His Honour said:
35.That might be a matter that also needs to be investigated but, in my view, there is not a skerrick of evidence upon which it could be seen, that without proper testing and investigation, there is a benefit to this child which outweighs the benefit to the child of having a meaningful relationship with his father and, of course, also the opportunity for a meaningful and significant relationship with other persons, including of course, grandparents on both the mother's and father's side significant in relation to this matter.
36.The mother has acted, in my view, in her self-interest. It is entirely unfocused upon the needs and best interests of the child. Without a moment's hesitation I intend, as is perhaps obvious from the comments made, to make orders with regard to this child which involve his return to Townsville.
There were criticisms of the language used by the Federal Magistrate. It is however, quite clear when his Honour said:
41.There may be in the fullness of time, a very real basis, and the father needs to be aware of this, for the mother to relocate and for there to be appropriate arrangements but the unilateral actions that have been taken by her, which clearly preclude this child from the opportunity to have a meaningful relationship with his father and other persons significant in his life is, in my assessment, a callous disregard of the best interests and the welfare of the child.
that he was mindful that different considerations may apply at trial.
If there is any question that the Federal Magistrate should not hear this matter on a final basis it would be necessary to make that application to him.
I understand from Mr Fellows who regularly practices in Northern Queensland that it is not necessarily the case that Federal Magistrate Coker will hear the trial.
The issue before the Federal Magistrate was whether an order should be made requiring the return of the child from Perth and depending on that decision what arrangements should otherwise be made for the child.
Of central significance it seems there was no issue that the parents have equal shared parental responsibility. In the application the father asked that should the mother return with the child to Townsville an order be made providing for the time with the parents to be “week about”, as it is often described.
The mother did not respond to this part of the application seeking only that she remain in Perth with the child, having half holiday contact with the father and other contact by electronic and other means. The mother in her affidavit did not suggest that the father’s proposal for week about time would not be in the child’s best interests. It seems that an assumption was made that the parties’ informal arrangements of alternate weekends with further time as agreed with the father and his parents would continue should the mother’s application fail. If that be the case it is difficult to understand that there was an apparent concession about equal shared parental responsibility and no allegations raised by the mother against the father such that equal time would not follow. In addition it should be noted that there was no need for the Federal Magistrate to apply s 61A(3) that the presumption would not apply in interim proceedings.
As was said in Goode when the presumption of equal shared parental responsibility is applied the first the thing the court must do is consider the practicality of spending equal time under s 65DAA.
In this case, there was some reliance on the fact that the child had lived with his mother all his life and that part of that time was in Perth. Whilst it can be said that the ‘status quo’ argument is one of the matters to be considered, as an additional consideration contained in s 60CC(3) it can also be said in this case that the child’s most recent circumstances were living in Townsville with regular time spent with the father and his family.
Submissions of the appellant
The reasons argument is particularly directed to the orders made by the Federal Magistrate that the child live with the father if the mother did not return to Townsville or week about if she did return. It was submitted that the reasons were insufficient especially in light of the history of the matter where the mother had been the primary care giver with limited time to the father prior to 2008.
Further, it is submitted that as the parties had previously arranged alternate weekends there needed to be some explanation in the judgment as to why the father should have substantially more time.
It was submitted that there was no consideration that the father could have a meaningful relationship with the child if the child lived in Perth. Perhaps one motivating factor to which the Federal Magistrate made reference was the fact that the father had not seen the child between early November 2008 and March 2009 when the matter was heard by the trial Judge.
It was submitted on behalf of the mother that support for this appeal could be taken from two decisions of Warnick J given as a single Judge on appeal from other decisions of Federal Magistrate Coker. In the case of Hannan & Hannan [2008] FamCAFC 37 the father had been seeing the children on alternate weekends, the children lived with the mother after separation in August 2006. The mother moved from Townsville to a distance described as one and quarter hours drive south. The Federal Magistrate ordered that if the mother resided in Townsville the children live with the parents week about but otherwise live with the father and spend time with the mother largely for alternate weekends.
It seems that the Federal Magistrate made a mistake about the mother’s case of some importance. The mother’s case was that the alternate weekend time could continue. The Federal Magistrate concluded that the mother’s actions precluded the children having a meaningful relationship with the father. He was generally quite critical of the mother.
Of interest to this case is paragraph 33 of the judgment which I repeat here:
I am mindful that the application was one for interim orders only and the judgment was given ex tempore. Nonetheless, it is essential that each party, particularly the losing party, and the Appeal Court, be able to trace the path of reasoning by which the result was reached. In my view, the apparent primary reason for both the order that if the mother lived in Townsville, care of the children be shared week-about between the parents, and the order that if the mother did not return to Townsville but remained in [the town X], she have contact only each alternate weekend (whereas the father proposed each weekend) is the Federal Magistrate’s view of the impropriety of the mother’s unilateral move to [the town X] in the face of the father’s opposition. Insofar as the argument is that the reasons disclose that the orders were made so that the children would have a meaningful relationship with the father, the answer is that, notwithstanding that a primary consideration is that it is in children’s best interests that they have a meaningful relationship with both parents, if other relevant factors are present, as they were here, they must be considered.
I respectfully agree with his Honour in relation to the sentiments expressed about interim applications and reasons. It is also helpful to set out paragraph 36 of the Hannan judgment:
The behaviour of the mother might readily enough explain an order that, as an interim arrangement, she return to Townsville with the children, though even then, all other considerations relevant to the best interests of the children would require a patent consideration. But it is difficult to see, without a clear connection being forged between the behaviour of the mother and her parenting capacity, how that behaviour of itself explains either the order for equal parental care or the order that the mother have but alternate weekend time with the children if she did not return to Townsville.
There are many obvious differences in that case from the present not the least the distance between Townsville and Perth. The other difference is the competing proposals of the parties’. In the Hannan case the mother’s proposal involved the father seeing the children for alternate weekends as he had been doing up to her departure whereas in the present matter the mother’s proposal was that the father see the child for school holidays.
The other case upon which there was reliance is Porter & Byrne [2009] FamCAFC 8. Some of the arguments in that case were as described by Warnick J as containing some similarities to Sampson & Hartnett (No.10) (2007) FLC 93-350 which was also relied upon in this case, that the orders were coercive. In essence, the order made by the Federal Magistrate in Porter & Byrne provided for a close to equal sharing of the children’s care, but only if the mother returned to Central Queensland. The mother wished to relocate to New Zealand so that the father have time with the children during school holidays. The error identified by Warnick J related primarily to the order made by the Federal Magistrate that should the mother not return to Central Queensland then the children live with the father and spend time with the mother for school holidays. This order was made despite findings as summarised by Warnick J as follows:
31. He found:
·that the only appropriate course was for the mother to return to Central Queensland;
·that it would be a tragedy if the mother determined that she would not return to Central Queensland;
·that there were major concerns if the children were placed with the father and had limited opportunities to spend time with mother
and yet made Order 4, which, far from being supported by that reasoning is contrary to it. It seems likely that Order 4 was intended to be coercive in its effect.
In the present case no such findings were made by the Federal Magistrate. In particular there were no “… major concerns if the child … were placed with the father” revealed in the evidence.
In addition it was argued in this matter that the orders were coercive. Reliance was placed on Sampson & Hartnett. Reference should be made to part of paragraph 6 of that decision where the Full court described the question raised by the appeal including::
… the propriety of orders and the power to make them, that have a coercive impact, that seek to create a situation, rather than orders that derive from findings based upon the evidence and that are responsive to proposals of a party.
After describing the significance of an order that a parent relocate to another place and the necessity to be satisfied about many factors, in Sampson & Hartnett their Honours said at paragraph 78 of the trial Judge’s reasons:
Insufficient scrutiny was given to alternatives to enable the development of the father/children relationship. Insufficient scrutiny was given to the practicality of the mother living in Sydney.
In this case it could be said that the findings about the times the child should spend with the father based on the probability of the mother returning from Perth to Townsville are absent however it should be remembered that these were orders on an interim basis where the background was the mother’s refusal to attend mediation or remain in Townsville so that a court could determine the issue of where the child should live albeit on an interim basis before her departure. In addition, the order was expressed providing an option for the mother giving her the same time with the child should she remain in Perth as she had proposed for the father.
In support of the argument that the evidence did not support the conclusions and orders, particular emphasis was placed on the statement in paragraph 10 of the father’s affidavit filed 19 December 2008:
[The child] and I have developed a very good and close relationship even though we were apart….
It was submitted that it was not unreasonable of the mother to wish to return to what was her previous place of residence and that the relationship with the father could be maintained. Whilst the mother’s motivation may be clear and not necessarily contrary to the child’s best interests it also needs to be appreciated that the Act does not contain any presumption in favour of a parent with whom a child has spent most of his time obtaining such an order.
An important fact is that the mother’s actions ignored the father’s request through his solicitor to consider counselling. Section 60I requires parents to make a genuine effort to resolve their disputes about children.
conclusions
In considering the reasons argument, it is important to remember that this was an interim decision. In addition this is an appeal from a discretionary decision, the principles relating to such appeals are well known. See House v The King (1936) 55 CLR 499 at p.504-505; Gronow v Gronow (1979) 144 CLR 573 at p.519 and AMS v AIF (1999) 199 CLR 160.
The principles relating to adequacy of reasons are also well known and understood. See Bennett & Bennett (1991) FLC 92-131 particularly at p.78,266-67.
Whilst it is undoubtedly correct that the Judge is not bound by the proposals of the parties, in this case the Federal Magistrate was provided with only one option from the mother and no evidence as to why the father’s proposals were not in the child’s best interests other than her desire to live in Perth and pursue the relationship with Mr O. In those circumstances the trial Judge could hardly be criticised for his approach. In addition, as already mentioned, once the parents agreed to equal shared responsibility it was incumbent upon the Federal Magistrate to consider equal time. Although the reasons in relation to the orders for time with the father could have been more extensive, particularly in relation to the provisions of s 65DAA(5), they could not be said to be inadequate such that the reasoning upon which the judgment is based is not clear.
Returning to an important aspect of this appeal, that it is from an interim order, reference need only be made to Morgan & Miles (2007) FLC 93-393 a decision of Boland J. In paragraph 79 her Honour carefully sets out the matters to be considered, later observing that there are no separate provisions in the Act dealing with interim as distinct from final orders.
I agree with her Honour’s discussion and also with paragraph 82 where she said that an interim hearing “… will of necessity, be an abridged enquiry”.
In paragraph 88 her Honour said:
It appears to me that the very difficult issues in cases involving a relocation, which difficulties are highlighted in the cases and referred to by the Family Law Council in its 2006 report Relocation: a report to the Attorney-General prepared by the Family Law Council, (Family Law Council of Australia, Barton, 2006) make it highly desirable that, except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis. It further appears to me the comments of Warnick J in Campbell and Spalding remain apt and relevant to determination of these cases.
In this case, the mother had already left Townsville and travelled to Perth. The Federal Magistrate was left to decide the matter on the parties’ competing applications as between Perth and Townsville. The reasons for the decision are clear and well within his Honour’s discretion. No appealable error has been demonstrated. The appeal must be dismissed.
It was submitted on behalf of the mother that she is now placed in a very difficult position. Until trial the mother does not wish to make any permanent arrangements for accommodation or employment. It is her strong desire to return to Perth. In part, the solution for this difficulty is that the trial be heard as soon as possible.
Both parties request that the hearing be expedited and I will so request.
I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 29 April 2009
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