Olney & Lander
[2009] FamCAFC 107
•19 June 2009
FAMILY COURT OF AUSTRALIA
| OLNEY & LANDER | [2009] FamCAFC 107 |
| FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – CHILDREN – Mother appealed orders restraining her from relocating the child’s residence more than 20 kilometres from the father’s current residence and for the father to spend regular time with the child – The mother asserted, inter alia, that the Federal Magistrate did not properly apply the mandated s 60CC provisions, wrongly approached the relocation issues and erred in restricting the mother’s residence – No merit in any of the advanced grounds of appeal – Not satisfied that the Federal Magistrate failed to properly consider the proposal – It was appropriate in framing orders to consider realistic possibilities in relation to future arrangements for the child – Restraint on relocating the residence of the child did not leave the mother without remedy if the circumstances of the father’s residence change – Appeal dismissed – Mother ordered to pay costs of the father |
| Family Law Act 1975 (Cth), Part VII |
| Bellenden (formerly Satterthwaite) v Satterthwaite (1948) 1 All ER 343 Browne v Dunn (1893) 6 R 67 CDJ v VAJ (1998) FLC 92-828 at 186.2 Kemp & Kemp (1986) FLC 91-709 Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178 |
| APPELLANT: | Ms OLNEY |
| RESPONDENT: | Mr LANDER |
| APPEAL NUMBER: | NA | 101 | of | 2008 |
| FILE NUMBER: | BRC | 10470 | of | 2007 |
| DATE DELIVERED: | 19 June 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick, May, Boland JJ |
| HEARING DATE: | 22 May 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 10 October 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 1113 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Sara |
| SOLICITOR FOR THE APPELLANT: | Hopgood Ganim Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Byrne |
| SOLICITOR FOR THE RESPONDENT: | Sharma Lawyers |
Orders
That the appeal be dismissed.
That the mother pay the father’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Olney & Lander is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
File Number: BRC 10470 of 2007
Appeal Number: NA 101 of 2008
| Ms OLNEY |
Appellant
And
| Mr LANDER |
Respondent
REASONS FOR JUDGMENT
When in October 2008 Wilson FM decided a dispute between Mr Lander and Ms Olney, about the parenting arrangements for their daughter, B, born June 2005, he said of the dispute: “The principle issue for my determination is whether the mother should be allowed to move, with [B], to [the Sunshine Coast]. Inextricably intertwined with that issue is the amount of time that [B] should spend with each of her parents. The mother and the father currently live close to each other … . They separated in May 2007.” As later in his judgment Wilson FM also said that the mother’s current and proposed residences are about 100 kilometres apart. At trial, the mother’s secondary proposal was that she live with the child part way between where she was living and the Sunshine Coast.
Interim orders made on 26 November 2007 had provided for the child (then two years old) to live with the mother, but spend time with the father overnight each Tuesday and Thursday and from Saturday morning until Sunday evening on alternate weekends.
At trial the father sought effectively an equal care arrangement, though structured differently before the child commenced school to his “week about” proposal for after she began school.
The orders of the Federal Magistrate, made 10 October 2008, provide that the parents share equal parental responsibility for all major long term issues affecting the welfare of the child and that the father spend time with B in a fortnightly cycle, two nights in one week and three nights in the other until she commenced school, when she would spend two nights with him in one week and four nights in the other. The last order provides:
14.That the mother be restrained from relocating the residence of the child to [the Sunshine Coast], or to a distance greater than 20 kms from the father’s current residential address, without the written consent of the father, or an order of the court first obtained.
The mother appeals the restraint upon her changing the child’s residence and the two orders for the father to spend time with the child, of which at least that to operate after the child begins school is obviously founded on the premise that the parties lived proximate to each other.
The mother has a son, T, from a previous relationship with a Mr O. T was 7 years of age at trial. He lived primarily with the mother, but spent time with his father. Mr O opposed the mother relocating to the Sunshine Coast and foreshadowed an application to the Court to prevent that from occurring.
Wilson FM recorded that the mother’s reasons for wishing to move to the Sunshine Coast, as given to Ms Waterman, the family consultant who prepared the family reports, were:
(a)to pursue a relationship with Mr G;
(b)to enjoy a healthier lifestyle; and
(c) to be closer to her mother, who has retired to live on the Sunshine Coast.
The Notice of Appeal contains 17 grounds, many with subparagraphs, and 19 grounds are addressed in the mother’s summary of argument. Three grounds (9, 18 and 19) were abandoned at the hearing. However, it seems to us that the arguments in respect of grounds 9 and 19 are deployed elsewhere. In any event, the remainder can be grouped, effecting some numerical reduction, into arguments asserting that the Federal Magistrate:
(i) made insufficient findings as to the factors set out in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) and did not properly apply the approach mandated by the provisions of the Act;
(ii) wrongly approached the mother’s case for relocation by:
(a) requiring her to justify the relocation;
(b) failing to give proper weight to the advantages of the mother’s proposal;
(c) failing to consider the prospect of the father’s relocation;
(d) failing to give weight to means by which the father could be involved with the child, even if the mother and child relocated;
(e) placing weight upon the submissions of the father’s counsel “that the mother’s track record so far as long term relationships go is not a particularly good one”.
(iii) erred in rejecting the approach of permitting the relocation but making orders for substantive and significant time with the father until the child commenced school;
(iv) erred in placing too much weight upon the father’s desire for an equal time arrangement in the future because such an arrangement would not be possible if the mother relocated, when he rejected equal time as appropriate;
(v) failed to give sufficient weight to factors bearing upon the father’s attitude towards parental responsibility and his parenting capacity;
(vi) incorrectly drew conclusions about the mother’s credit;
(vii) erred in restricting the mother’s residence to within 20 kilometres of that of the father, when neither party sought such an order;
(viii) failed to consider issues raised about school holiday arrangements and the child’s enrolment in child care and school.
We will leave consideration of the first argument in the above list, asserting a failure by Wilson FM to address the terms of s 60CC and comply with other provisions in Part VII of the Act, until after we have discussed the other contentions.
that the Federal Magistrate wrongly approached the mother’s case for relocation by:
(a) requiring her to justify the relocation;
(b) failing to give proper weight to the advantages of the mother’s proposal;
(c) failing to consider the prospect of the father’s relocation;
(d) failing to give weight to means by which the father could be involved with the child, even if the mother and child relocated; and
(e) placing weight upon the submissions of the father’s counsel “that the mother’s track record so far as long term relationships go is not a particularly good one”.
General comments on these arguments
As seen, much of the above argument asserts that incorrect weight was given to particular factors. Such arguments are often best assessed by examining the consideration at trial of the comparative weight of all relevant factors.
As will be seen, Wilson FM ultimately accepted many of the opinions and recommendations of the family report writer. We therefore commence our discussion of his Honour’s reasons by setting out parts of what he recorded of Ms Waterman’s evidence:
30.…In her first report…, Ms Waterman states that:
(q)In her assessment [B] is attached to both parents and also to the father’s stepmother;
…
(x)Considering that [B] is already spending five overnights per fortnight with her father she does not recommend reducing this time;
…
66.In her second report, Ms Waterman states:
…
n)The preferred option is that the mother does not relocate at all as this will necessarily involve some level of disruption to [B] and she has already had to face significant changes in her short life. That is not to say that [B] would not cope with further change, but it would place further emotional stress upon her at an age where she is quite vulnerable;
…
r)She is concerned that suddenly introducing a gap of 10 days between visits is likely to detract from the relationship between father and daughter over time;
…
74.Secondly, Ms Waterman was concerned that if the mother relocates, [B] is going to have “two different worlds”. Ms Waterman said: “She’s going to have her world down in Brisbane and her world up on the coast and I think that increasing it (sic) that’s going to become more and more difficult for her to manage.”
Shortly after these passages, Wilson FM turned to consider aspects of the mother’s proposals, a section of his reasons of particular significance to the propositions that he required the mother to justify the relocation and failed to give proper weight to the advantages of the mother’s proposal. The learned Magistrate continued:
76.The mother commenced a relationship with [Mr G] in December 2007. Both the mother and [Mr G] describe their relationship as secure and solid. That may be so. Only time will tell. The father’s counsel pointed out that the mother’s track record so far as long term relationships go is not a particularly good one.
…
81.The mother says the move to [the Sunshine Coast] and the relationship with [Mr G] will provide her with additional security and stability. She says she will have greater financial security and will be happier and more supported.
…
85.The mother says that a move to [the Sunshine Coast] will provide her with financial security. However, there was no evidence that [Mr G] was able, or willing, to financially support the mother and her two children. Further, although the mother said that her employer was supportive of her wish to move, there was no evidence that the mother could obtain suitable employment at the Sunshine Coast. The mother has been with her employer for five years. Her employer apparently has regional offices at Caboolture and North Brisbane’s Bayside area. The mother says she has discussed the move with her employer and has been informed that it would support her in her move. She has been informed that staff with her level of experience are in demand in the company’s northern offices. Curiously, no evidence was called from the mother’s employer. That is a telling omission. Even if the mother could secure employment at one of the other offices of her current employer it seems that considerable travel would be involved.
…
87.Further, in her affidavit evidence, the mother said:
“If I am not able to move, I would find it very difficult to accept and believe it may damage my relationship with [Mr Lander] further as I believe I will find it difficult not to hold [Mr Lander] responsible.”
In the final stages of his judgment, Wilson FM weighed the factors that he had, for the most part, earlier identified and discussed. He said:
91.In my consideration, the desire of the mother to relocate demonstrates a certain unwillingness of the mother to facilitate and encourage a close and continuing relationship between the father and his daughter. The mother was dismissive of the father’s objections to her relocation. …
…
93.The mother’s proposal would see the father spend alternate weekends with his daughter. Although more time could be fashioned in orders leading up to [B] commencing her formal education, the effect of the mother relocating would be to eventually to revert to alternate weekend and school holiday time. In my view, that is not in [B]’s best interests.
94.If the mother relocates, it will effect a change in [B]’s circumstances. The effect of her separation from her father, and paternal grandmother, will affect the meaningfulness of their relationship. Whilst I accept that a meaningful relationship does not necessarily equate to the amount of time involved, or the frequency of contact, in the case of a young child like [B], where the relationship with both parents is being nurtured, these are important factors.
95.If the mother relocates to [the Sunshine Coast], that will impose practical difficulty and expense on the continuation of the relationship between [B] and her father. Ms Waterman has commented on the negative effect of the travel involved. More importantly, she has described the problems that [B] will confront with the “two worlds” in which she will be required to live.
96.There is no dispute that both parents have the capacity to provide for the needs of the child. The mother’s complaint is that the father relies on his mother to provide for [B]’s needs. Whilst that is undoubtedly correct to a certain extent, it is not such that the father is himself incapable of caring for [B], and I am satisfied that he does.
97.The mother gives as one of her reasons for wanting to move to [the Sunshine Coast] that she will have the support of her own mother. No evidence was called from the maternal grandmother as to her availability or willingness to assist. The absence of such evidence is surprising, given that the mother advances the need for her mother’s support as one of the reasons for her wishing to relocate.
98.Because I consider that it is in the best interests of [B] to spend substantial and significant time with her father, I do not consider that permitting the mother to relocate to [the Sunshine Coast] is in the child’s best interests.
We return to the arguments listed in the heading to this section of our reasons.
(a) that Wilson FM erred by requiring the mother to justify the relocation
Neither in written nor oral submissions does Mr Sara, counsel for the mother on appeal, point to any statement by the Federal Magistrate in support of the proposition that he required the mother to justify the relocation.
In those passages of his Honour’s judgment set out, when he addresses the mother’s claims about her reasons for, and circumstances upon, relocation, we see nothing more than an assessment of their factual soundness.
In short, we see no merit in this argument.
(b) asserted failure by Wilson FM to give proper weight to the advantages of the mother’s proposal
There are a number of aspects to this argument.
Mr Sara contends that Wilson FM failed to give sufficient weight to the mother’s evidence to the effect that she was “unable to obtain definitive written evidence from her employer until she knew whether she was permitted to relocate and could inform her employer of likely relocation dates”.
In paragraph 85 quoted above, Wilson FM in effect found that the mother’s employment prospects on the Sunshine coast were uncertain. Recognition of her incapacity to obtain definitive evidence would not have pointed to any other conclusion.
Mr Sara also challenges the Federal Magistrate’s treatment of the mother’s evidence about her wish to be near the maternal grandmother (paragraph 97 quoted above). He submits “The mother’s evidence was that it was important to her to foster the grandparent relationship between the child and the maternal grandmother by regular time…”. In her affidavit of evidence in chief, the mother deposed that it was “not uncommon for me to have to call upon my mother for additional support, particular if [B] is ill” and “…my mother has been invaluable in her support”.
However, in the circumstances, of both grandmother and mother (if permitted) living in new locations (about 45 minutes drive apart), we consider that the Federal Magistrate’s observation in paragraph 97 that there was no evidence “from the maternal grandmother as to her availability or willingness to assist”, was unobjectionable.
The mother’s written submissions assert that Wilson FM failed to give sufficient weight to better schooling and lifestyle opportunities for the child on the Sunshine Coast, but we do not see that, while the mother’s preferences were clear, any distinction of moment was made, let alone established, between schooling and lifestyle opportunities on the Sunshine Coast and those in Brisbane.
Written submissions also assert that the learned Magistrate failed to give sufficient weight to the improved mental state of the mother following relocation. However, though the mother had said, as noted above in the quote in paragraph 87, that she would find it difficult to accept a rejection of her application and it may damage her relationship with the father, Mr Sara pointed to no evidence led by the mother that if she were not permitted to relocate with the child, her parenting skills and abilities would be adversely affected.
Written submissions also contain the argument that Wilson FM failed to give proper weight to the evidence that the mother had been the child’s primary carer and that the child viewed her mother as her main attachment figure. Beyond this assertion however, the proposition is not developed. In particular, there are no submissions seeking to demonstrate that, because of the primary attachment between mother and child, all other factors, including the relationship between father and child, were overwhelmed to the extent that relocation should be permitted.
Another argument in the written submissions was that the trial judge had placed insufficient weight on the relationship between the child and her half-sibling, T. Again however, there was no development of this contention by way of argument about the comparative importance of that factor and other factors.
In summary, we are not satisfied that his Honour failed to give proper weight to the claimed advantages of the mother’s proposal.
(c) that Wilson FM failed to consider the prospect of the father’s relocation
Some questions on this subject were asked in cross-examination of the father:
MS LYONS: Is there any valid reason why you mightn’t be able to move closer to the [the Sunshine Coast] area in the future?---My work is pretty specialised. I do just commercial office fit outs. I don’t do any domestic work, ceilings, cornice work. I purely do office constructions and the bulk of my work is in Brisbane city.
MS LYONS: But while I am exploring it; if his Honour determines that mum could move to [the Sunshine Coast] with [B] would you then consider possibly moving closer:---No.
The Federal Magistrate also asked the father some questions:
WILSON FM: And the second is whether the mother is permitted to move a distance away from where she is now. Assume that the second occurs?----That she moves to [the Sunshine Coast]? Sorry.
WILSON FM: To [the Sunshine Coast] or wherever; but otherwise it would be in the best interests of [B] to spend seven days out of 14 with you. The only way that can occur if the mother has moved is for you to move and I think what Ms Lyons was asking you; is there any reason why you couldn’t do that?---I would prefer to stay in Brisbane with my friends and my family and I see my partner needs to stay in Brisbane too, the bulk of her work is down the Gold Coast.
WILSON FM: I see?---We want to have a family together. We want [B] to be a part of it and, you know, less change the better – the more familiarity we’ve all got.
The only reference in final submissions to this issue that we can locate was:
MS LYONS: …The father on his own evidence, hasn’t even driven to [the Sunshine Coast]. He has kept his head in the sand in relation to this issue and the hasn’t looked into a move himself.
The learned Magistrate indicated in his reasons that he was aware of the issue of relocation by the father. He said:
91.… She claimed he could easily relocate and obtain work on the Sunshine Coast, but offered no evidence to support that contention. …
While that reference is brief, we are not, in the context of the evidence and, significantly, what was made of it at trial, of the view that any appellable error has occurred.
(d) that Wilson FM failed to give weight to means by which the father could be involved with the child, even if the mother and child relocated
The mother’s written submissions include:
The mother gave evidence in relation to undertaking a more significant portion of the driving, organising Skype electronic communication facilities, ensuring regular telephone and email contact…
In paragraph 91 of his reasons, Wilson FM said:
91.…She said their relationship could continue through the use of Skype. However, that is not a substitute for face to face contact. …
In some cases, especially with older children with very firmly established relationships with a parent from whom they are to move some distance, electronic and other means of communication may offer a worthwhile part of a package of arrangements designed to maintain a relationship but, having regard to all of the other findings made by Wilson FM, we see no error in his assessment of the utility of these alternatives in this case.
(e) that Wilson FM erred in placing weight upon the submissions of the father’s counsel “that the mother’s track record so far as long term relationships go is not a particularly good one”
As seen, the remark here called into question was part of paragraph 76, repeated here:
76.The mother commenced a relationship with [Mr G] in December 2007. Both the mother and [Mr G] describe their relationship as secure and solid. That may be so. Only time will tell. The father’s counsel pointed out that the mother’s track record so far as long term relationships go is not a particularly good one.
We firstly observe that, literally, all that the last sentence of the paragraph does is record the submission of the father’s counsel. Assuming however that the recording of the submission implies acceptance of it, Mr Sara makes two submissions. One, that there was a lack of evidence before the court supporting the finding. In cross-examination, the mother acknowledged that she had had a relationship with T’s father which broke down after about twelve months of cohabitation and her evidence of the relationship with the father was that her relationship had broken down after a very short period of cohabitation. The evidence of the mother and Mr G was that they had not commenced cohabitation at the time of trial.
We think that his Honour’s cautious and limited use of this evidence was open to him.
Mr Sara’s next submission is that “the finding” lacks relevance and fails to take into account the evidence of the mother and Mr G about the nature of their relationship. The second part of this argument to some extent negates the first proposition. Further, in the paragraph containing the statement called into question, Wilson FM noted the evidence of the mother and Mr G about their relationship. In any event, we do not accept that some consideration of the prospects of a relationship, put forward as a major reason for relocation, was irrelevant.
that Wilson FM erred in rejecting the approach of permitting the relocation but making orders for substantive and significant time with the father until the child commenced school
The arguments here seem to be that orders could have provided for substantive and significant time with the father even if the child lived on the Sunshine Coast, because the drive between the father’s residence and the Sunshine Coast would only be one to two hours, depending on traffic.
This, and the next argument discussed, touching on the prospect, sometime in the future, of an equal sharing of time with the child, are connected, for the commencement of the child at school would affect the practicability of arrangements that could continue.
Relevant to this argument, Wilson FM said:
44.The mother accepts that the father and [B] have a close and loving relationship. The mother said that her daughter “adores” her father. I accept that the mother and [B] have a close and loving relationship. I consider that it is in [B]’s best interests that she maintains a meaningful relationship with both parents.
…
71.The difficult question in this case arises not so much at the present time, because travelling time and cost aside, [B] could spend time in the father’s care for such periods as the court ordered, whether the mother lived at [the Sunshine Coast] or in Brisbane. The difficulty will arise in 2010 when [B] commences her formal schooling. At that stage if the mother were to live at [the Sunshine Coast] and the father in Brisbane, it would be very difficult to fashion orders other than for the father to spend alternate weekend and school holiday time with [B]. This does not conform to what s.65DAA(3) requires for there to be substantial and significant time.
72.What Ms Waterman was unable to assist the court with was whether it was appropriate and in [B]’s best interests to make orders now for substantial and significant time, and to reduce the time the father spends with his daughter from 2010 onwards, because that would be the practical effect of relocation. In my view that would not be appropriate. A relationship would be developed between the father and his daughter, and by subsequently reducing the time that they spent together there would be a real risk that the relationship would suffer.
His Honour commented further on these considerations in his concluding paragraphs, as earlier seen:
93.The mother’s proposal would see the father spend alternate weekends with his daughter. Although more time could be fashioned in orders leading up to [B] commencing her formal education, the effect of the mother relocating would be to eventually to revert to alternate weekend and school holiday time. In my view, that is not in [B]’s best interests.
…
95.If the mother relocates to [the Sunshine Coast], that will impose practical difficulty and expense on the continuation of the relationship between [B] and her father. Ms Waterman has commented on the negative effect of the travel involved. More importantly, she has described the problems that [B] will confront with the “two worlds” in which she will be required to live.
Mr Sara argues that the Federal Magistrate erred in making the finding in paragraph 72 that, in a reduction of the father’s time with the chid when the child commenced school “there would be a real risk that the relationship (with the father) would suffer”. He submits that there was no evidence to support this finding, but that the evidence was to the contrary, and his Honour also failed to give adequate reasons for the finding.
Mr Byrne, counsel for the father, argues that there was evidence supporting the learned Federal Magistrate’s finding in the second family report, where Ms Waterman said:
If [B] was only spending this one block of time with her father each fortnight … then I would be concerned that the closeness and familiarity that currently exists between them (father and daughter) would be diminished. …I am concerned that [B] will be quite confused and potentially anxious about the increased separation from each parent that the mother is proposing.
We earlier set out his Honour recording that Ms Waterman said:
r)She is concerned that suddenly introducing a gap of 10 days between visits is likely to detract from the relationship between father and daughter over time;
In our view his Honour’s discussions here and elsewhere in his reasons, indicate that he accepted Ms Waterman’s opinions.
Accordingly, we do not accept that the finding was unsupported by evidence or that no reasoning was given in support of it.
that Wilson FM erred in placing too much weight upon the father’s desire for an equal time arrangement in the future and the fact that such an arrangement would not be possible if the mother relocated, particularly in circumstances where the effect of his Honour’s orders was not to make orders for the child to spend equal time with each parent
Relevantly, apart from the passages quoted in discussion of the immediately preceding argument, the learned Federal Magistrate said:
68.In answer to written questions from both counsel Ms Waterman referred to the work of Vincent Papleo in 2002 “Developmental Considerations in Contact and Relocation Disputes” and paraphrases this research as follows:
“At the age range of 3-5years, children generally are more able to tolerate longer periods away from the primary carer without adverse effects. They are more able to maintain a mental image of the parent they are leaving and an internal representation of the attachment figure. At around 3 years, they would be likely to tolerate having blocks of 2/3 days at a time, however, this can increase at the upper end of this age range, closer to 5 years, to up to about 5 days, provided the parenting is consistent and the child is not exposed to conflict between parents”
69.This led Ms Waterman to opine that, at her current age, it was not in [B]’s best interests for her to spend equal time with both parents. I accept Ms Waterman’s opinion. Further, based on the research to which she had referred, Ms Waterman opined that [B] should not spend more than three consecutive days away from her mother until she was at least four years old. I also accept that expert opinion.
…
75.Ms Waterman was not prepared to rule out an equal time regime when [B] was older. That would obviously not be possible if the parents lived apart at [the Sunshine Coast] and Brisbane. Interestingly, as noted at paragraph 114 of Ms Waterman’s report, the mother herself was not averse to the concept of an equal time arrangement, provided the father spent more time caring for his daughter, and was less reliant on his mother. That flies in the face of a proposal to relocate, which carries with it the inevitable (when [B] commences formal education) impracticability of such a regime.
As recognised in considering the immediately preceding argument, it and the argument that we presently address, are connected.
In our view, it is clear from the passages just quoted and those quoted and the evidence referred to in relation to the preceding argument, that the Federal Magistrate recognised several circumstances which rendered an "equal time regime" a real prospect in years ahead and one which might well be in the child's best interests. The father's desire for an equal time arrangement was only one of those factors.
We consider it entirely appropriate for Wilson FM, in framing current orders, to take account of realistic possibilities in relation to the child's future care.
that the Federal Magistrate failed to give sufficient weight to factors bearing upon the father’s attitude towards parental responsibility and his parenting capacity
The factors to which Mr Sara points are:
(a)the father’s heavy reliance on the paternal grandmother;
(b)the father’s lack of insight into the relationship between the child and her half-sibling;
(c)the father’s working hours.
(a) the father’s heavy reliance on the paternal grandmother
This argument really is that the Federal Magistrate failed to place sufficient weight on evidence of the report writer about the child’s attachment to her paternal grandmother and to infer therefrom that the father did not undertake the primary care of the child when the child spent time with him.
As summarised by Wilson FM, Ms Waterman had said:
(r)It appears that [B] views her mother as her main attachment figure;
…
(t)It appears that in the absence of the mother [B] substitutes her paternal grandmother as her attachment figure rather than her father;
The Federal Magistrate said:
92.The mother claimed that the father did not spend much time with [B] and left most of his care to his mother. I do not accept that claim. Whilst I do accept that the father probably works more than 33 hours a week, and that he does rely on his mother for assistance, that is a fact of life in many separated families. The father should not be criticised for working hard. I am satisfied that he has reduced his working hours, and is available to spend time with [B] in the afternoons and evenings after work, and for all or most of each weekend. Ms Waterman considers this time to be important to their relationship. I agree. Both the father and his father gave evidence, which I accept, that the father does most of the care of [B] when he is at home. The father undertakes most of the primary care of [B] when she is in his household. His mother corroborated this.
While the inference to which Mr Sara points may have been available, Wilson FM preferred direct evidence to support his findings. We discern no appellable error in his Honour’s approach.
(b) the father’s lack of insight into the relationship between the child and her half-sibling
As summarised by Wilson FM, Ms Waterman said:
(s)The sibling bond between [B] and [T] is a strong one and consideration needs to be given to ensuring that the children are able to maximise the benefits of this relationship as they grow and develop;
As has been seen, Ms Waterman’s own recommendation as to the time to be spent between father and child and the Federal Magistrate’s orders had the result that the parties’ child and T would be apart for the time the child spent with the father. Thus the necessary implication is that the relationship between the child and T was but one of a number of factors to be weighed in reaching the conclusion as to the proper orders.
Mr Sara points to nothing to demonstrate that the “insight” of the father into the relationship between the child and her half-sibling differed in any significant way from that of the views taken by the family reporter or Wilson FM.
(c) that Wilson FM failed to properly weigh up the evidence relating to the father’s working hours
Wilson FM recorded that, according to Ms Waterman:
30.…
e) The father told her he works as a plasterer from 6:30 am until around 5:30 pm each day. He said that during [B]’s time with him he tries to finish work earlier, around 4 pm;
And, in respect to Ms Waterman’s second report:
66.…
d) The father told her he continues to be in the same employment and works from 6:30 am until around 5:30 pm;
e) The father made no mention of altering his working hours if [B]’s time with him was increased. He says that he usually finishes work at around 4 pm when [B] is in his care and sometimes he leaves as early as 2pm;
As seen in the discussion of the allegedly heavy reliance by the father on the assistance of the paternal grandmother, Wilson FM said:
92.…Whilst I do accept that the father probably works more than 33 hours a week, and that he does rely on his mother for assistance, that is a fact of life in many separated families. … I am satisfied that he has reduced his working hours, and is available to spend time with [B] in the afternoons and evenings after work, and for all or most of each weekend. …
Mr Q, the father’s employer deposed:
4.When [Mr Lander] separated from his partner at the end of May 2007, he asked for a change in his working hours to accommodate the time he needed to spend with his daughter. I myself have two young daughters and fully understood his request.
5.Since we have made our new Workplace agreement, [Mr Lander] has worked an average of thirty-three hours a week.
Mr Q was not cross-examined.
The father’s cross-examination included the following exchanges:
MS LYONS: And what are your typical hours of work?---I work on the days I don’t have [B] from 7 till 5, and on the days I have [B] I work 7 till 4 that’s maximum hours. Quite often because of – when jobs finish early or there’s a strike or there’s no work in between jobs there’s days off or half days.
…
MS LYONS: Give me an example of how you have changed your work hours in the last two months?---Since the last family report I have changed the days I’ve had [B] – I knock off an hour early.
…
What I am getting at, [Mr Lander], is how flexible really are your work hours? You say you work 36 hours a week?---I’ve worked on average 33 hours a week since the first family report.
We think the learned Magistrate’s findings open to him.
that Wilson FM incorrectly drew conclusions about the mother’s credit
Of the credit of each party, his Honour said:
37.Regarding the evidence of the parties generally, I prefer the evidence of the father to that of the mother. There are cases in which I prefer the mother’s evidence and I will refer to these in due course. …
38.[Mr Q] was not required for cross examination. His evidence stands unchallenged. I appreciate that tactical decisions are made during the course of a hearing as to what questions to ask of a witness, and whether to ask any questions at all. However, in my view, the failure to challenge [Mr Q] evidence at all on what was a crucial aspect of the mother’s case is critical. In my view, it amounts to a tacit acceptance of the evidence by the mother. Yet she continued to assert that the father worked long hours. In my view this detracts from her credibility.
39.The second matter that causes me to generally prefer the father’s evidence is the mother’s willingness to make very serious accusations of drug use and supply against the father and the paternal grandmother, but not to give either of those witnesses the opportunity to meet those allegations.
40.The mother claimed that the maternal grandmother [it seems, paternal grandmother] was a user of marijuana, and that the father, or people with whom he was associated, supplied the drug, in return for which the father’s board was reduced. These scurrilous accusations were made without a skerrick of evidence to support them. More importantly, they were made against a woman to whom the mother entrusted the care of her young child every Monday, even after separation. The paternal grandmother gave evidence and none of the accusations were put to her. The mother gave evidence after the paternal grandmother. When she was squarely asked in cross examination whether she was prepared to retract the allegations, the mother refused. Her conduct in making the allegations, not putting them to the persons concerned, and then refusing to retract them is, in my opinion, discreditable.
41.There is the additional matter of the failure by the mother to call her own mother to give evidence. I will deal with some of the other consequences of that in due course. However, at this stage it is sufficient to observe that until recently the maternal grandmother lived in Brisbane and was a regular visitor to the mother’s home. One would have expected that she could have given evidence as to the existence or otherwise of a de facto relationship between the father and the mother. The maternal grandmother was not called as a witness. There was no evidence that she was unavailable to give evidence. I infer that her evidence would not have assisted the mother.
The first point that Mr Sara raises is that, in the documents prepared for the hearing, each party had lodged objections to material upon which the other party sought to rely. In particular, Mr Sara drew attention to allegations by the mother about drug use and involvement in the supply of drugs of the father’s mother and the father. Mr Sara contended that as a result of an exchange at the outset of the hearing, the position in relation to whether the material objected to was in evidence or not was left uncertain. Thus, the Federal Magistrate should not have relied upon assertions in the mother’s material and the subsequent conduct of her case in relation to those assertions, to draw any conclusions against the mother’s credit.
At the outset of the hearing Ms Lyons, then counsel for the mother, said:
There are objections to evidence noted in the Court Book. My friend and I have had preliminary discussions and given the spirit of the legislation and the nature of his application we’ve agreed to set those objections aside for the purposes of getting on to trial today.
Ms Lyons went on to indicate that an objection to the affidavit of the father of the child T, Mr O, was pursued. Towards the end of the exchanges dealing with Mr O’s affidavit, Mr Byrne, counsel for the father, said in relation to his attitude to objection to particular paragraphs of Mr O’s affidavit, as opposed to objection to the whole of it:
I don’t press them in terms of – given that [Mr O] is not required for cross-examination and given that my view his testimony is relevant to what happens within the whole context of a relocation press for the affidavit to be dealt with and that’s the way I proposed that your Honour deal with my objections that were raised and my learned friend’s objections that were raised that we don’t argue each of the paragraphs otherwise we would waste the Court’s time and we leave it to your Honour’s discretion. I am happy to deal with it on that basis as to how you treat those other matters.
Ultimately, the Federal Magistrate ruled on the objection to Mr O’s affidavit.
After he had ruled, Mr Byrne said, immediately prior to the father being sworn:
Does your Honour agree with – I understand my learned friend in relation to how you deal with the other objections that have been identified, thank you. I call [Mr Lander].
Notwithstanding what we accept as a lack of clarity in the position with regard to objections to affidavit material, for present purposes we assume that what the parties did (and what they were understood to have done) before the Federal Magistrate was to leave it up to him as to whether he accepted and if so what weight he put upon, passages in the material of one party objected to by the other party.
The essence of the attack on the learned Magistrate’s conclusions with regard to the mother’s credit is not that the state of the evidence did not entitle the Federal Magistrate to make findings about the subject matter of that evidence, but rather that, in the circumstances described above, he ought not have drawn conclusions about the mother’s credit.
We think therefore it unnecessary to deal with questions raised in the submissions for the father about the application of the rule in Browne v Dunn (1893) 6 R 67 and discussions about the principle derived from that case in Kemp & Kemp (1986) FLC 91-709.
The mother was cross-examined about her allegations that the father’s mother was a user of drugs and also the absence of cross-examination of the father’s mother about those assertions. The mother was then asked if she retracted the allegation. She said she did not. In our view, in those circumstances, it was open to the learned Magistrate to draw the conclusions that he did.
that Wilson FM erred in restricting the mother’s residence to within 20 kilometres of that of the father, when neither party sought such an order
Mr Sara submits that this order was imposed without any request by either party and without the opportunity for either party to address upon it. However, Mr Sara acknowledges that, from the mother’s point of view, the issue for the learned Magistrate’s determination was whether the mother could relocate with the child to the Sunshine Coast, to an alternate mid point suburb, or not. Thus, if her application for permission to relocate was dismissed, then the necessarily implied consequence would have been that she was to remain living at her current residence in outer Brisbane.
Moreover, the issue of the future residence of the mother was raised, albeit briefly, in cross-examination of the father, in this exchange:
MS LYONS: Is it your case that you want the mother to stay within a certain short radius of [her current residence]?---Yes.
Measured against the orders impliedly or expressly sought by the father, it is difficult to see how the mother is directly aggrieved by a restriction that she live within 20 kilometres from the father’s residence. However, there may be other aspects of the restraint which less directly seem and/or are unfair to the mother.
The actual terms of the order were set out earlier. The restraint impliedly prevents the mother from moving until the child is eighteen years, irrespective of whether the father moves himself.
Another point may also be that, while a restraint is (effectively) imposed on the mother as to the location of her residence, no such restraint is imposed on the father.
While Mr Sara does not suggest that any order was sought in relation to the father’s place of residence, we think that those points are probably indicative of some uncertainty in and/or perhaps unintended consequences of the order as framed. However, we doubt that a change of any significance to the location of the father’s residence would not enable the mother to have the restriction upon her deleted or altered. Nonetheless, orders of the intent of the order here might be better crafted to recognise that they only operate so long as the other parent resides at the residential address nominated.
In the end though, we conclude that the mother is not presently aggrieved by the restraint itself, certainly not in any way that, if a relevant change of circumstance occurs, she is without a remedy, namely the right to seek variation.
(viii) that Wilson FM failed to consider issues raised about school holiday arrangements and the child’s enrolment in child care and school
At trial, the mother sought orders about time that the father spend with the child during school holidays. She also sought an order that the father sign any documents necessary to enrol the child in a childcare centre on the Sunshine Coast.
Wilson FM made no orders expressly directed to these matters.
The mother’s written submission maintain this contention, but in effect simply state the complaint that orders sought were not addressed. Oral submissions did not expand argument.
Given Wilson FM’s decision on the proposed relocation, no order about child-care on the Sunshine Coast was needed.
As to school holidays, we accept the argument on the father’s behalf that given the young age of the child, now and for a time ahead, the orders for her fortnightly arrangements render further orders to cover holiday periods unnecessary.
that the Federal Magistrate made insufficient findings as to the factors set out in s 60CC of the Family Court Act 1975 (Cth) (“the Act”) and did not properly apply the approach mandated by the provisions of the Act
The submissions in support of the first of these propositions do no more than say that necessary findings ought be made under s 60CC, and be made before a judicial officer considers the other matters mandated by the provisions in Part VII of the Act.
No attempt was made under either proposition to demonstrate that Wilson FM took an approach inconsistent with any requirements in Part VII, save that, as to Wilson FM’s consideration of s 60CC factors, Mr Sara, counsel for the mother submitted that his Honour had not considered some factors in appropriate depth. Asked to nominate any factor which fell for consideration, but which was not adequately considered, Mr Sara chose not to.
As to the assertion that Wilson FM had not approached his determination in accordance with the Act’s requirements, Mr Sara relied upon his written submissions, all of which relate to matters of weight and have already been considered.
The approach taken by Wilson FM can be discerned from the following.
The learned Magistrate prefaced the final summary of his reasons as follows:
90.The considerations in s.60CC(3) of the Act favour the mother not being permitted to relocate. [B] has a close and loving relationship with her father and paternal grandmother. These relationships will inevitably suffer if the mother relocates. That is not in [B]’s best interests.
As already seen from those parts of his Honour’s reasons set out, he had earlier identified and discussed various factors described in the subparagraphs of s 60CC of the Act.
As to the requirements of other provisions of Part VII of the Act, Wilson FM said:
45.It is convenient to consider at this stage whether the parties should have equal shared parental responsibility for [B]. Both parents ask for such an order to be made. …
Nonetheless, his Honour considered some reservations he had about the parties’ proposal, and concluded:
51.In the absence of any persuasive evidence that the presumption in s.61DA(1) of the Act is rebutted, because of my being reasonably satisfied that circumstances set out in s.61DA(2) of the Act have occurred, I will make an order for equal shared responsibility.
52.I should add that I would have made such an order even if the presumption was rebutted.
His Honour then discussed his reasons for the conclusion expressed in paragraph 52, saying:
59.In order to determine whether an order for equal shared parental responsibility is appropriate, the court must consider a number of matters, against the paramount consideration of best interests. Without attempting to be exhaustive I refer to the most obvious matters that the court needs to consider. First, regard should be had to the principles and objects in s.60B of the Act. In particular s.60B(1)(a) and (d) and s.60B(2)(c) and (d) which provide: …
60.The court should also consider the matters in ss.60CC(3)(i), 60CC(4), and 60CC(4A) of the Act.
Then, his Honour said:
63.The making of an order for equal shared parental responsibility triggers the need for me to consider parenting orders that would see [B] spending equal time with both parents, or living with the mother and spending substantial and significant time with her father.
Wilson FM then set out the terms of s 65DAA(1) to (5), before returning to the evidence.
We consider that his Honour followed a correct path in reaching his ultimate conclusion for the orders made.
CONCLUSION OVERALL
None of us comprising this Full Court might have reached the same conclusions about the appropriate orders, as did the learned Federal Magistrate. However, this being an appeal from a discretionary decision, that observation by no means leads to the result that the appeal should be allowed. As Asquith LJ said in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345:
… It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.
And, as Brennan J said in Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178:
The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
And, as Kirby J said in CDJ v VAJ (1998) FLC 92-828 at 186.2:
Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision- makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction. (footnotes omitted)
In view of these principles and what we have said of each of the arguments presented to us, we conclude that the appeal should be dismissed.
Costs
Mr Byrne sought an order that the mother pay the father’s costs of and incidental to the appeal and, indeed, on an indemnity basis. We see no justification for any costs order that might be made to be on an indemnity basis.
We consider the nature of the proceedings, namely an appeal and of course the result, to have relevance to the question of costs.
We do not say that the appeal was without merit, in the sense that no ground was arguable, however, a number of the grounds were insubstantial and the appeal essentially came to an argument that the trial judge had given incorrect weight to relevant factors.
We know fairly little of the parties’ comparative financial circumstances but the mother, who has only been in part-time employment, seems at best to have modest means. Mr Sara advised us that he and his instructor appeared pro bono.
We are nonetheless of the view that the balance of the factors identified support an order that the mother pay the father’s costs.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 19 June 2009
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