ORPHEUS & ORPHEUS
[2014] FamCAFC 70
FAMILY COURT OF AUSTRALIA
| ORPHEUS & ORPHEUS | [2014] FamCAFC 70 |
FAMILY LAW – APPEAL – CHILDREN – Where the trial judge made orders permitting the mother to relocate the children’s residence from Geelong Suburb L to Melbourne and providing that the father see the children on part of six days each fortnight during school terms – Where the trial judge did not expressly discuss the matters in ss 65DAA (1)(a) and (b) of the Family Law Act 1975 (Cth) – Where the Full Court was satisfied that the trial judge had “considered” an equal time option given the findings made in relation to the matters in s 65DAA(2) – Where the trial judge did not discuss the competing proposals for the day to day care of the children – Where the trial judge clearly anticipated that the parents would be able to make the proper arrangements for the care of the children – Where the trial judge made orders different to those sought by each party – Where the Full Court did not consider these deficiencies warrant appellate intervention – Where the trial judge made findings permitting relocation based on the mother’s mental health and consequential detrimental effect on the children – Where these findings were open to the trial judge on the evidence – Where no appealable error demonstrated – Appeal dismissed.
FAMILY LAW – APPEAL – COSTS – Where the complaints agitated by the appellant father are not entirely without merit – Where it is appropriate that each party bear their own costs.
Family Law Act 1975 (Cth) s 60B, s 60CA, s 60CC, s 65DAA
AMS v AIF; AIF v AMS (1999) 199 CLR 160
McCall & Clark (2009) FLC 93-405
MRR v GR(2010) 240 CLR 461
SCVG & KLD [2014] FamCAFC 42
U v U (2002) 211 CLR 238
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
| APPELLANT: | Mr Orpheus |
| RESPONDENT: | Ms Orpheus |
| APPEAL NUMBER: | SOA | 44 | of | 2013 |
| FILE NUMBER: | MLC | 9641 | of | 2011 |
| DATE DELIVERED: | 30 April 2014 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thackray, Strickland & Ainslie-Wallace JJ |
| HEARING DATE: | 7 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Mort |
| SOLICITOR FOR THE APPLICANT: | Perisic Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Teicher |
| SOLICITOR FOR THE RESPONDENT: | Nicolaides & Associates |
Order
The appeal be dismissed.
There be no order as to the costs of the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Orpheus & Orpheus has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
APPEAL NUMBER: SOA 44 of 2013
FILE NUMBER: MLC 9641 of 2011
| Mr Orpheus |
Appellant
And
| Ms Orpheus |
Respondent
REASONS FOR JUDGMENT
Introduction
On 7 June 2013, Judge Connolly made an order permitting Ms Orpheus (“the mother”) to move from Geelong Suburb L to Melbourne with the two children of her marriage to Mr Orpheus (“the father”).
The children, N and A, were aged nine and six at the time of trial. The mother had been their primary carer until the father and mother agreed to share their care in a week-about arrangement after they separated.
The father has appealed the orders, which allow him to see the children on six days each fortnight during school terms (each alternate weekend from Friday until Monday and every Wednesday after school) and half the school holidays.
Brief background
The mother and father married in 2001 and separated in 2011. Child N was born in 2004 and child A was born in 2006.
The father was 40 years of age at the time of trial. He was living in Suburb L, a suburb to the east of Geelong, where he was managing a food shop owned by his family. The father has lived in the Geelong area all his life, as have his parents and other members of his immediate family.
The mother was 33 years of age at the time of trial. She was living in Geelong Suburb L, but was unemployed. She had plans to rent accommodation in Suburb P, a suburb of Melbourne, not far from Suburb B where her parents live.
The mother, who has an undergraduate degree with a legal studies major, planned to obtain full-time work in a Melbourne law firm if permitted to relocate. She had given up her career with a law firm in Melbourne after the marriage, having found the travel to and from Geelong arduous.
In June 2011, the mother and father signed a parenting plan, which provided for a week-about shared care arrangement in relation to the children. The plan recorded that:
In the event of [the mother’s] move to Melbourne becoming a viable option, both parents will fully discuss this matter and return to the Geelong Family Relationship Centre if they require assistance.
In September 2011, the mother’s solicitors informed the father’s solicitors that the mother “needs to relocate to Melbourne to find suitable employment”.
In October 2011, the father commenced proceedings, seeking orders in the terms of the parenting plan. In response, the mother applied for permission to relocate. In December 2011, interim orders were made as sought by the father.
In March 2012, the children and their parents were interviewed by a social worker, Mr D, in his capacity as a Regulation 7 Family Consultant. He provided a report recommending the continuation of the week-about arrangement in Geelong. The recommendation was repeated in a second report provided after another set of interviews in October 2012.
Mr D expressed concern in his second report that the mother might be “quite depressed”. Although the mother insisted at trial she was not suffering from depression, the trial Judge expressed his own concerns and, when the evidence was completed, ordered a report about her “mental health … and what effect various orders might have” (Transcript, 21 November 2012, p 111).
A psychiatric report was tendered when closing addresses were made in February 2012. The psychiatrist found the mother had “suffered from a major depressive disorder with two episodes in the post natal period” (his emphasis), but said he did “not believe there was “any ongoing depressive illness”. Having opined that the mother did not require treatment “at present”, the psychiatrist continued:
6.In terms of [the mother’s] move from Geelong to Melbourne I note that Melbourne is a source of support for her and [it] is of course a matter [for] the court to determine whether this is workable and what arrangement should be made in relation to it.
7.I see no psychiatric reason why her care of the children should not increase should that be the desire of the court.
The appeal against the orders of 7 June 2013 was expedited, but could not be heard in the November 2013 sittings as the father’s counsel was not ready.
In the meantime, the mother and children have moved to Melbourne.
The orders sought at trial
The father’s proposal was that the week-about regime should continue, and that the children should remain at their school in Geelong. His case at trial was that the arrangement could still continue if the mother obtained work in Melbourne or even if she went to live in Melbourne.
The mother agreed, albeit reluctantly, that the week-about regime should continue in Geelong if she was not permitted to relocate. She rejected the suggestion that such an arrangement would be feasible if she lived in Melbourne, and she was adamant she would not move without the children.
The mother’s original proposal, if relocation was permitted, was for the father to have the children from 5pm Friday until the start of school on Monday each alternate weekend, as well as for half of school holidays and half of the Greek Easter. The mother amended her position as the matter progressed. Thus:
·she told the report writer she would be agreeable to the father spending a few hours with the children in between the weekend visits;
·at trial, her counsel said she would be “amenable” to continuation of a week-about regime if the father moved to Melbourne; and
·during re-examination, she said if the father did not move to Melbourne, she would be agreeable to the alternate weekends extending through to Tuesday morning, as the father does not work on Mondays.
The mother sought an order that “the parties share the travel of the children for changeover equally to a location as agreed”. The father did not put forward any transport proposals in the event the relocation was permitted.
The mother also sought that both parties be restrained from removing the children from Victoria without written approval or an order of the Court. The father proposed that both parents be able to remove the children from Victoria for holidays, subject to certain conditions.
The orders made
The father and mother agreed there should be an order for equal shared parental responsibility and the trial Judge so ordered. His orders went on to give permission to the mother to relocate to Melbourne; for the children to live with her; and for the father to spend time with them:
·each alternate weekend from 5 pm on Friday until the start of school or 9 am on Monday;
·each Wednesday, in Melbourne, from after school to 7.30 pm; and
·for half of school holidays and half of the four day Greek Easter.
Although the father had sought orders dealing with birthdays, Christmas and other special occasions, as well as daily telephone contact, no orders were made dealing with these topics.
Order 4(c) required the mother to deliver the children to the father’s residence on Fridays and the father to return the children to school on Mondays. Order 6 provided that “the parties share the travel of the children for changeover equally to a location as agreed”. The apparent inconsistency in these orders was not drawn to our attention, although complaint was made about Order 4(c).
An injunction was granted, as requested by the mother, restraining both parties from removing the children from Victoria.
Section 65DAA
The making of the order for equal shared parental responsibility triggered s 65DAA of the Family Law Act 1975 (Cth) (“the Act”), which relevantly provides:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)… if a parenting order provides … that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide … for the child to spend equal time with each of the parents.
Substantial and significant time
(2) … if:
(a)a parenting order provides … that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order … for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide … for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
The trial Judge’s reasons
Having set out some of the factual background, his Honour recited or described the operative provisions of Part VII of the Act. In particular his Honour:
·recited s 65DAA in full and correctly recorded its effect;
·noted that s 60CA provides that the Court must regard the best interests of the children as the paramount consideration; and
·recited in full the “primary considerations” in s 60CC(2), and the “additional considerations” in s 60CC(3), which he said he had to take into account in deciding what would be in the children’s best interests.
His Honour also recited this passage from the judgment of the High Court in MRR v GR (2010) 240 CLR 461:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order ...
The trial Judge observed that “this is a finely balanced case in that there is little criticism of either of the parties’ parenting abilities”. He also noted that both parents clearly loved, and were loved by, the children. He went on to record that the mother’s main criticism of the father was that he left the care of the children to his parents and allowed them to spend too much time at the food shop. His Honour said he had been left with the impression that the time the children spent at the shop was probably considerably more than the father conceded.
His Honour also found that both parties had involved the children in the dispute, but said the father’s acknowledged behaviour in crying with them when they said they did not want to move to Melbourne was “highly likely” to have influenced the desire they had expressed to stay in Geelong.
The trial Judge next recited lengthy extracts from the reports of Mr D. Indeed, these extracts occupied 10 pages of his 30 page judgment. His citation concluded with the following paragraphs from the second report dated 10 November 2012:
56. In summary, at the time of writing, the writer does not consider that [the mother] has established a sufficient reason for the court to agree to her relocating to Melbourne with the children. What has emerged from the second round of interviews is that [the mother] might in fact be quite depressed; for which, if it is the case, is it is suggested she receive some skilled counselling support.
…
58. At the end of the day the children themselves have told the writer that, for quite obvious reasons to do with their attachments to family and school friends, they prefer to continue to live in [Geelong Suburb L] in the care of each of their parents, as they presently do. Again, it is not surprising that the 2 children choose the routines they are familiar with.
59. Since, in the writer’s opinion, [the mother] has not established a sufficient reason to move the children to Melbourne, entailing as it does a change of school, plus a diminution in their time with their father and the paternal family, it is respectfully suggested a judicial decision will need to be made.
The trial Judge observed that Mr D’s opinion about the mother not having established a “sufficient reason” to move the children to Melbourne “really diminishes the impact of [his] reports, and the assistance that his recommendations provide to the Court”. His Honour went on to say, citing as authority the decision of the High Court in AMS v AIF; AIF v AMS (1999) 199 CLR 160:
40. The law, however, is quite clear that it is erroneous to require ‘compelling reasons’ to relocate a child.
His Honour also said, at [41], that it appeared the report writer, “in requiring the mother to indicate compelling reasons, has ignored or overlooked a number of significant facts”. He listed these facts, which we summarise below:
(a)the mother had intimated in the first report that she might have entered into the parenting plan under duress, at a time when she was not well.
(b)the mother felt emotionally oppressed, as described in the first report, in which Mr D said he had gained the impression the mother had felt “enveloped by a strong, organised paternal Greek family, which, at times, seemed to have overwhelmed her”.
(c)the mother’s view, as set out in the first report, about the “emotionally oppressive atmosphere” she encountered in working with the father in the family business.
(d)the mother was the primary carer of the children until the separation, while the father was the bread-winner.
(e)it was clear the mother was not prepared to leave Geelong without the children, while the father, on the other hand, had initially been prepared to seriously consider moving to Melbourne but then had entered into a new business with his parents, knowing that the mother wanted to relocate to Melbourne.
(f)the children are happy and well-adjusted and would, as the report writer conceded, be able to cope with the move.
(g)while the children had indicated a desire to the report writer for things to remain as they were, they were “clearly … not old enough to make that determination themselves” and their motivation for wanting the arrangement to continue was, at least in part, their “desire to continue to be involved in the [food] shop”.
(h)the father crying with the children would be likely to have had a significant impact upon their motivation in not wanting to relocate and that the report writer seemed to have had “scant regard to what impact it might have had on the children’s wishes”.
Importantly, his Honour concluded his survey of the matters said to have been ignored or overlooked, by saying the report writer also seemed:
… to have overlooked the effect that requiring the wife to remain in Geelong will have, despite recognising (in para 56) that what has emerged from the second round of interviews is that [the mother] might, in fact, be quite depressed and that if she is, she should receive counselling. The psychiatric report … states that the wife is not suffering from any clinical depression or depressive illness at present and nor does she need any treatment. It seems clear, then, that what the [report writer] is talking about is that the wife has indicated sadness or depression is likely to be the result of her continued requirement to remain in Geelong. Ultimately that is likely, in my view, to have a detrimental effect upon the children having regard to the fact that the wife has always been unhappy in Geelong.
His Honour went on to express his satisfaction that the mother “has a genuine desire to relocate to Melbourne, where she is confident she would be able to maintain employment, and where she has the support of her family”.
His Honour found that the mother would facilitate and encourage the children’s relationship with the father and his extended family, which he considered was clear from the fact the parties had agreed the week-about regime, albeit the mother may have been under “some duress” when doing so. He compared the mother’s attitude to that of the father who, he said:
… was initially prepared to consider a move to Melbourne if the wife moved with the children. He then went into business with his parents and sister and now says he would not be able to move to Melbourne because it would have a disastrous financial impact. It is also clear that the wife has put the children first, and indicated that she will not leave the Geelong area in any circumstances without them. I have no doubt that she would encourage the husband to have considerably more time with the children in the event that he was prepared to travel to Melbourne.
Most importantly, his Honour then said:
43.The effect on the wife of requiring her to remain in [Geelong] will, in my view, be quite devastating. She said on numerous occasions since separation that she feels oppressed, sad and depressed while being required to live in Geelong. To continue to require her to live there is ultimately likely to impact substantially upon the welfare of the children. Mr [D] also saw her as being sad and depressed.
His Honour noted, at [44], that as the parents would have equal shared parental responsibility, it was necessary to consider whether an order for equal time or substantial and significant time would be in the children’s best interest and whether it would be reasonably practicable. His Honour then recorded the primary considerations he had to consider, which he described as, “firstly, the children having a meaningful relationship with both parents and, secondly, that they are protected from any physical or psychological harm”. He noted that it was the case of both parents that the children had a meaningful relationship with them and it was in their best interests to continue to have such a relationship.
His Honour said he had been assisted by a number of judgments in determining the meaning of the expression “meaningful relationship”. His Honour did not say how these had assisted, but his citations from the judgments were largely to the effect that it is possible for a “meaningful relationship” to be sustained even when children are living some distance from a parent, and that there is a difference between a “meaningful relationship” and an “optimal relationship”.
His Honour did not discuss the second “primary consideration”. Nor was there any discussion of an equal time order. Instead, the discussion moved to whether it was in the children’s interests “to have substantial and significant time with their father, by requiring [the mother] to remain in [Geelong]”.
In discussing that question, his Honour accepted the mother’s evidence, which he said was supported by that of Mr D, that she found it “oppressive, sad and distressing to continue to reside in the [Geelong Suburb L] area”. His Honour said:
46.… It is clearly in the children’s best interests for their mother to be happy, healthy and emotionally secure. In this regard, it is worth bearing in mind what the Full Court had to say in Hepburn & Noble [[2010] FamCAFC 111] in dismissing an appeal against the trial judge’s decision to allow the mother to relocate with the children. At para 43, the Full Court found the inference was open upon the evidence that the mother would be “extremely unhappy, bitter and resentful if she were not able to relocate with her partner, and that would impact upon her capacity to parent the children.” There are also the general comments in B & B [[1997] FamCA 33]:
The ordinary common experience indicates that long term unhappiness by a resident parent is likely to impinge in a negative way upon the happiness and therefore the best interests of the children who are part of that household.
His Honour found, at [47], that if the mother was not permitted to relocate, there would “ultimately [be] a detrimental effect upon the children”. He also expressed his satisfaction that it was not “reasonably practicable to require [the mother] to remain in [Geelong] in circumstances where she lacks the support [of] her parents and is unable to obtain full-time employment …”
His Honour therefore found that relocation should be permitted, going on to observe that:
42. [The mother] has been their primary carer and I have no doubt she would do all she could to facilitate the children spending as much time as possible with their father.
His Honour found that the mother’s proposed contact regime, plus time after school until 7.30 pm one day each week, would “provide the children with the benefit of having a meaningful relationship with their father”. He said the father “should readily be able to travel to Melbourne for this additional night, given the flexibility and support he says he has from his family”.
His Honour noted Mr D’s opinion that if the children moved, “there is no reason why they won’t do well [and] will probably rise to the challenge”. He acknowledged that Mr D had said the question was “whether the challenge is required or desirable”, but his Honour found there was “no doubt” it was.
The trial Judge said that while he accepted the father may not want to move to Melbourne, he considered he would be able to do so. He also cited Hayne J in U v U (2002) 211 CLR 238 who said that when one parent wishes to relocate “it should not be assumed that the other parent cannot, or should not, contemplate moving to be near the child”.
Finally, his Honour expressed satisfaction that his orders would satisfy “the provision for the children to spend time with both parents in their daily routine and on occasions and events with special significance”. He also expressed satisfaction that “it is in the children’s best interests to make the orders sought by the wife and it is reasonably practicable to do so”.
The Grounds of Appeal
The father was given leave to amend his Notice of Appeal to rely upon four grounds set out in a document attached to his Summary of Argument.
For reasons given at the time of the hearing of the appeal, neither counsel was otherwise permitted to rely upon their overly lengthy Summaries of Argument and the matter proceeded on the basis of oral submissions (see Orpheus & Orpheus (Summaries of argument) [2014] FamCAFC 39).
Ground 1 – Failure to “adopt the statutory imperatives”
Ground 1 asserts that the trial Judge:
… erred in law and in fact, such that the Orders cannot be supported in law, by failing or neglecting to adopt the statutory imperatives in a parenting case and to provide adequate and proper reasons, in terms of how the Orders would meet with the best interests of the children.
This ground appears to address two different issues. The first concerns the failure to “adopt the statutory imperatives”, and the second concerns the adequacy of the reasons. However, as we understood the submissions, the two issues were linked because the complaint about the reasons related to the failure to address “the statutory imperatives”.
There can be no doubt that the trial Judge was well aware of the “statutory imperatives”, given that he recited and/or accurately paraphrased the relevant provisions of the Act. The question we must determine is whether he properly applied the statutory provisions in arriving at his conclusion.
The only criticism made of the trial Judge’s exposition of the law was his failure to mention s 60B, which sets out the objects and underlying principles of Part VII of the Act. However, the father’s counsel did not explain how the failure to mention s 60B led to error. It is not obligatory for a trial Judge to set out s 60B, and we have difficulty in understanding how it could be argued that his Honour did not have regard to s 60B, especially given the outcome which allows the children to see their father on six days a fortnight.
We have observed already that the trial Judge did not discuss the second “primary consideration”. However, there was no complaint about this, since neither party asserted there was any risk of “physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
We have also observed that his Honour failed to discuss whether an equal time order would be in the children’s best interests and reasonably practicable. Section 65DAA(1) mandates consideration of these matters where an order is made for equal shared parental responsibility. At first glance, it is surprising this requirement was overlooked, given that the trial Judge not only recited s 65DAA, but also paraphrased it, and went on to say that it was necessary for him to consider equal time as well as substantial and significant time.
However, on reflection, it was not essential for his Honour to discuss whether an equal time care regime was in the children’s best interests and reasonably practicable, since both parents accepted that such an arrangement would be in the children’s best interests and reasonably practicable. The father proposed such an arrangement in Geelong, as had been the position up to that point, and the mother was amenable to such an arrangement in Melbourne. The mother also accepted there should be an equal time arrangement in the event she was not permitted to move to Melbourne.
These proposals provide the context for consideration of the trial Judge’s reasons. As has been recently pointed out by another Full Court in SCVG & KLD [2014] FamCAFC 42:
78.… it is useful to recall that the necessary content of reasons for judgment depends upon the context in which they are given. Thus, factual and legal concessions, if accepted by the court, may conclusively deal with factors that legislation requires be considered and, as a consequence of which, the judgment needs to address only the contentious factual and legal matters which remain outstanding.
As can be seen in the present case, it was common ground that, given certain circumstances, an equal time order would be in the children’s best interests and reasonably practicable. However, this does not lead automatically to the making of an order for equal time. Any suggestion to that effect would be erroneous, since it is not the law that there can be only one regime of care that will promote the best interests of children. This is recognised by s 65DAA itself. The section merely provides that if an equal time regime would be in a child’s best interests and reasonably practicable, then a court must “consider” making an order for equal time. Self-evidently, after considering the equal time regime, the court is left with a discretion to order some alternative arrangement which is also in the child’s best interests.
Here, the contentious issue was not whether an equal time regime was in the children’s best interests, since each parent was making such a proposal or was “amenable” to it in certain circumstances. Instead, the contentious issue was whether the mother could move to Melbourne with the children and, if so, the time the children should spend with the father. The option of an equal time order if the mother was permitted to move had been eliminated by the father’s insistence on staying in Geelong. The question of an equal time order with both parents in Geelong would logically arise only if the mother’s application was refused. In these circumstances, it is understandable why the trial Judge’s reasons focussed on whether the mother should be permitted to move.
We do accept that it would have been desirable for the trial Judge to have expressly discussed the matters arising under ss 65DAA(1)(a) and (b), if only to avoid any doubt as to whether those matters had been “considered”, as the Act demands. However, as explained in SCVG & KLD at [81], the statutory requirements will be satisfied if examination of the judgment as a whole demonstrates, if necessary by inference, that they have been “considered”.
It would defy logic to suggest that the trial Judge had not considered the equal time option, given that he recited s 65DAA(1) in full; paraphrased it accurately; and recorded that he had to consider such an option. Quite apart from the fact that an order for equal time was the relief sought in the husband’s application, all of the findings his Honour made in discussing s 65DAA(2) lead inexorably to a conclusion that he considered the equal time scenario – and rejected it.
Furthermore, given the father’s refusal to move to Melbourne, his Honour’s finding, when discussing s 65DAA(2), that it was not reasonably practicable for the mother to remain in Geelong Suburb L, eliminated the equal time option. This follows from what was said in MRR v GR.(His Honour properly did not deem it necessary to discuss the suggestion that the children could live in an equal time regime, attending school in Geelong, while the mother lived in Melbourne).
We turn now to his Honour’s treatment of the factors in s 60CC(3) of the Act, which he recited in full when setting out the relevant law, but which he failed to discuss when addressing the evidence, at least by overt reference to each of those factors.
The father’s counsel relied on authority suggesting that “a logical approach” in relocation cases is to first “make findings concerning the relevant s 60CC factors”. He claimed that, when examining the reasons here, the father “has to go hunting for matters relevant to section 60CC”. Counsel for the mother conceded that the factors were not discussed by reference to each of the relevant parts of s 60CC, but argued that all had been properly considered.
There is no doubt the trial Judge dealt adequately with many of the s 60CC factors. He discussed at length the only relevant primary consideration, namely the benefit to the children of having a “meaningful relationship” with both parents. He also clearly dealt with some of the “additional considerations”. For example, he discussed the children’s views, which was a factor of significance, given Mr D’s reports. The other s 60CC(3) factors were not the subject of much, if any, discussion, since they were not relevant or not contentious in this case where parenting capacity was not in dispute. Failure to discuss a specific factor cannot reasonably be seen as a failure to “consider” that factor if the factor is irrelevant or not contentious.
The real thrust of the father’s argument was that there was “a lack of proper consideration of the competing proposals … and an assessment of the advantages and the disadvantages to the children inherent in those proposals”. We consider there is substance in this complaint. Regrettably, in negotiating the legislative labyrinth, some trial judges seem to overlook the mundane, but nevertheless important, matters that impinge on the day-to-day care of children.
In the present case, it is unfortunate the trial Judge did not identify the proposals for the day-to-day care of the children. This is especially so because the transcript reveals that both parties were critical of the extent to which the other proposed to rely on assistance from relatives (although the father denied he would be relying on his family to the extent the mother claimed).
Examination of the transcript also provides a basis for the father’s assertion at trial that the mother had not thought through some details of her proposed care arrangements. Thus, for example, it was only after she searched the Internet overnight that the mother was able, in re-examination, to modify evidence she gave in cross-examination about the time she would have to leave the children with her parents on workdays if she obtained full-time work in Melbourne.
The father’s counsel had put to the mother in cross-examination that “what is going to happen to these children if you are successful is not only are they going to barely see their father, they are barely going to see their mother … and spend half their life with their grandparents”. His argument was that the children would be better off in Geelong where they would (allegedly) have more time with at least one parent. In his closing address, counsel for the father reminded the trial Judge about this argument and submitted that “the quality of [the mother’s] proposal needs to be considered by your Honour”.
The trial Judge did not, in his reasons, expressly discuss the “quality” of the mother’s proposals, but the complaint about this must be considered in the context of this case where there were two competent parents, both of whom had family willing and able to assist them. It can be seen from his reasons that the trial Judge anticipated that the parents would make proper arrangements for the care of the children, albeit expressing doubts about the father’s evidence about the extent to which the children would spend time at the shop. And as was said in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at 62, the trial Judge was not “required to mention every fact or argument relied on by the losing party”.
Examination of the reasons reveals that the factor of most importance to the trial Judge was the “devastating” impact on the mother, and hence on the children, if she was not permitted to move. We will later discuss the complaint about the evidentiary basis for that finding; however, if there is an evidentiary basis, that fact alone provides the rationale for the decision, and explains
his Honour’s focus on that issue at the expense of discussion of the day-to-day care arrangements of a loving and competent mother, who has strong family support (as described in the unchallenged affidavit of the maternal grandfather).
The father’s counsel also complained about the failure to give reasons for the order relating to transport for the regular weekend visits, which requires the mother to deliver the children to the father at 5.00pm on Friday and for the father to return the children to school on the following Monday morning. As we have earlier recorded, this was not an outcome sought by either parent.
The mother’s proposal for handovers to occur at the times ultimately ordered was made in the context of her request for an order that “the parties share the travel of the children for changeover equally to a location as agreed”. The practicality of this was never put to either party at trial, as counsel for the father conceded in submissions before us. However, the mother did not appeal the order requiring her to deliver the children each alternate Friday at 5.00pm. The father appears to have not advanced any transport proposals, but his entire case was based on the flexibility of his work, and he does not work on Mondays.
While it would normally be expected that a trial Judge would explain why he has made orders different to those proposed by either party, and give each an opportunity to comment before making the orders, we do not consider the failure to do so on this occasion warrants appellate intervention. If practical difficulties are encountered with the transport order, either party could make a further application at first instance, no doubt after first seeking assistance from the Geelong Family Relationship Centre to help them reach a solution.
It might also have been expected that the trial Judge would have provided short reasons for not having made orders as asked by the father concerning contact on special occasions and for telephone contact. It appears the father’s proposals were not the subject of any disputation at trial, and we note also that an agreement about contact on special occasions was included in the parenting plan. However, there was no ground of appeal directed to this issue. Given the parents’ proven ability to resolve issues (save for the relocation) it could be anticipated they could resolve these matters. However, if they cannot agree, the matter could be relisted before the trial Judge, since this part of the father’s application has not been formally dismissed.
Although, in our discussion of this ground, we have found deficiencies in the trial Judge’s reasons, we conclude they do not warrant appellate interference.
Ground 2 – Making orders that were not reasonably practicable
By this ground it was asserted that his Honour:
… erred in law in making Orders for substantial and significant time that were not reasonably practicable or in the children’s best interests.
Counsel for the father nearly abandoned this ground at the commencement of his argument, but then elected not to. The difficulty with the ground is that it fails to state how the orders were not “reasonably practicable” or how
his Honour erred in determining they were in the children’s best interests.
Counsel for the father argued that it was not reasonably practicable for the father to travel to Melbourne each Wednesday and spend four hours with the children there. However, that argument cannot be sustained in face of:
·the repeated claims made by the father (and his sister) at trial concerning the flexibility of his work and the extent to which he can rely upon family for support when he is spending time with the children;
·the mother’s unchallenged evidence that, apart from his immediate relatives, the father’s family lives in Melbourne; and
·the opportunities for amusement of the children in a city the size of Melbourne, even assuming that the father’s relatives could not provide a venue to spend time with the children during his Wednesday visits.
We find no merit in this ground.
Ground 3 – Failure to have proper regard to the s 60CC factors
Ground 3 was expressed as follows:
With “best interests” as the paramount consideration, the learned trial Judge erred in failing to have proper regard to:
(a)Section 60CC(2) – insofar as the benefit to the children of having a meaningful relationship with both parents;
(b)Section 60CC(3) – insofar as the applicable additional considerations material to the making a parenting order [sic] for:
(i) equal time; or
(ii) substantial and significant time; or
(iii) some other order.
The father’s counsel properly conceded there was no merit in the first part of this complaint, although recognising the father would not agree. The second part of the complaint has been dealt with above.
Ground 4 – Mother’s happiness and the report writer’s recommendations
By this ground it was asserted that the trial Judge had given:
… excessive or unreasonable weight:
(i)to the Mother’s happiness and emotional security in terms of the proposed relocation; and
(ii)to the [report writer’s] recommendations insofar as the mother’s inability to establish a “sufficient reason’ for relocating
instead of directing himself to the legislative requirements, other material considerations and providing proper and adequate reasons in terms of the competing proposals for parenting orders.
It will be seen that this ground contains three separate complaints. The first concerns the weight given to the mother’s happiness and emotional security. The second concerns issues related to the report writer’s views about the mother’s reasons for wanting to move. The third is a rolled up complaint dealing with the issues we have already discussed in disposing of Ground 1. We will therefore discuss only the first two complaints.
The mother’s happiness and emotional security
It will be recalled that the trial Judge expressed himself in strong terms in discussing the impact on the mother if she was not permitted to relocate. He did not say she would be “unhappy”, rather he found that the effect of her staying in Geelong would be “quite devastating”. Importantly, he also found that requiring the mother to remain in Geelong would “ultimately … have a detrimental effect upon the children”. It is therefore wrong to suggest that the focus on the mother’s health was not directed “to the legislative requirements”, since the Act is concerned with the best interests of children and the finding expressly connected the mother’s health and the children’s welfare.
It is ironic that the father would now, on appeal, seek to minimise the significance for the children of matters relating to their mother’s mental health. Our examination of the transcript reveals that much of the cross-examination of the mother was devoted to this issue in an attempt to establish that she was unable to cope with the children living primarily with her (see Transcript
20 November 2012, pp 71 to 73, and 21 November 2012, pp 77 to 85. See also the cross-examination of the report writer at Transcript 21 November 2012, pp 100 and 101).
The father had expressed strong concern about the mother’s mental health. The report writer also expressed concerns. These were echoed by the trial Judge during the trial. The mother denied that she was still suffering from depression, but while the psychiatric report confirmed this, the report confirmed she previously suffered from a major depressive illness.
The trial Judge had the opportunity to observe the mother and clearly, at [43], accepted her evidence about feeling “oppressed, sad and depressed while being required to live in Geelong”. In order for us to interfere with his assessment of the long-term effect on the mother (and the children) of being forced to remain in Geelong, we must be satisfied that the finding was not available on the evidence.
We acknowledge that in McCall & Clark (2009) FLC 93-405 at [133], the Full Court found, on the facts of that case, that the Federal Magistrate was not:
… entitled on the mother’s evidence, and absent any expert evidence, to find that the mother’s quality of parenting would be so compromised or adversely impacted because she may be required to live in Australia, that it would impact on the child.
However, we do not read that passage as suggesting that in every case there is a need for expert evidence before a judicial officer can conclude that the emotional state of a parent is likely to have an adverse impact on the welfare of children in their care. Here, the mother had suffered from a major depressive illness, and the father’s own case proceeded on the basis that her mental health was a highly relevant consideration in determining the outcome. Thus, for example, he attached to one of his affidavits what he said were letters from the mother threatening suicide. In the same affidavit he said (father’s affidavit sworn 2 December 2011 at [13]):
I am concerned … [the mother’s] depressive and unpredictable actions will have a negative effect on the health and well-being of the children.
The mother had also given evidence (at [14] to [16] of her affidavit sworn 21 November 2011) of the depression she had experienced during the marriage. In the same affidavit she claimed that:
17.It was in this fragile mental state that I signed the Parenting Plan, with the husband telling me that I effectively had to sign it. I did not have the will power to deny the husband’s request at that time.
Albeit self-serving, this evidence, considered along with the other evidence, provided a sufficient basis for the finding his Honour made about the mother having originally entered into the equal time regime under duress, which was another of the findings criticised by counsel for the father.
Although the trial Judge had flagged his intention to seek a report concerning not only the mother’s current mental health but also “what effect various orders might have” on her, ultimately the report which he ordered dealt only with the mother’s current health. In any event, even had the expert been requested to opine on the likely impact on the mother of “various orders”, there would clearly be an element of speculation involved.
We are not persuaded that his Honour’s finding about the likely effect on the mother of being refused permission to relocate was not open to him. Nor are we persuaded that it was not open to him to find that there would be an adverse impact on the children if the mother’s mental health was to decline.
The report writer’s recommendation
Although the complaint in Ground 4 relating to the report writer is confined to one issue, the thrust of the father’s argument was that the trial Judge should have accepted the recommendation that the children remain in Geelong Suburb L.
It will be seen from our summary of the reasons that his Honour considered the report writer had ignored or overlooked matters in making his recommendation, and his Honour also felt the value of the report had been diminished by the remarks about the adequacy of the mother’s reasons for wanting to move.
At the outset of this part of our discussion we should say that one noteworthy feature of his Honour’s reasons is the extent to which they consist of recitation of the two reports. It would appear that, having devoted a third of his judgment to reciting the reports, his Honour felt obliged to explain why he arrived at a result contrary to the report writer’s recommendation. We accept that it was desirable to do so, but it was not necessary to find that the expert had overlooked or ignored anything before coming to a different view, since it was his Honour who was entrusted with the discretion conferred by the legislation. It was for him to decide which parts of the evidence would be accepted and which would be rejected, including the evidence of the report writer.
We consider, with respect, that the trial Judge went further than was appropriate in saying the report writer had overlooked or ignored so many matters. On our reading of the two reports, it could not be said that the report writer had overlooked or ignored all of them. One example will suffice. The trial Judge included in his list of matters said to have been overlooked or ignored the mother’s feeling of being emotionally oppressed by the “strong, organised paternal Greek family”. However, in his first report, the report writer:
·at [45], referred to the “overall controlling context of the paternal family” as if it were a fact;
·at [56], said the father appeared to be “very close to, and, possibly, under the significant influence of, his own parents”, and the father seemed to have little understanding about the mother’s dissatisfactions with the marriage, longer term work and career prospects; and
·at [89], referred with apparent acceptance to the mother’s concerns about the marriage and the father’s expectations of her as well as the expectations of both sets of grandparents.
It is difficult, in our view, to accept that the report writer ignored or overlooked this matter when he had been at some pains to describe it in his report. It seems to us to be more a case of him having placed less weight on those matters than his Honour thought was appropriate. However, this does not mean that appellate interference is warranted, since the ultimate decision was always for the trial Judge to make, not the report writer.
For not dissimilar reasons we find no substance in the claim that his Honour erred in assuming that the report writer had decided the mother should not be permitted to relocate because she had not given any “compelling reasons” for wishing to do so. The basis upon which the report writer reached his conclusion on what was clearly the ultimate issue is immaterial, provided the trial Judge has advanced a sufficient explanation for arriving at his decision.
In any event, it seems to us that his Honour was doing no more than drawing attention to the fact that a parent does not have to have any reason, let alone “compelling reasons”, before being permitted to relocate (although of course failure to give a reason would be likely to assume significance in assessment of the s 60CC factors). We should also observe that the father’s counsel unequivocally accepted at trial that the proposition implicit in the report writer’s remark about the mother’s reasons was contrary to the law (Transcript 18 February 2013, p 12, and 20 November 2012, p 27).
Before concluding our discussion, we should also address a complaint made by counsel for the father concerning his Honour’s view that the report writer had ignored or overlooked the fact that the father had initially been prepared to seriously consider moving to Melbourne, but then had entered into a new business with his parents, knowing that the mother wanted to relocate to Melbourne. It will be recalled that his Honour contrasted this behaviour with that of the mother, who had “put the children first, and indicated that she will not leave the Geelong area in any circumstances without them”.
There was controversy between counsel on the hearing of the appeal about factual matters relevant to this issue. Counsel for the father asserted that the mother’s case originally was for a week-about arrangement with the children remaining at school in Geelong and that it had only been partway during the proceedings that she altered her position, by which time the father was committed to the new family business. Counsel for the mother strongly disagreed with this version of events, claiming that the new business had commenced well after the mother had made known her desire to relocate.
Our own examination of the record shows that counsel for the father was mistaken in his understanding of the chronology. The father would have been aware at the time of the execution of the parenting plan that the mother had a desire to move to Melbourne. Just a few months later, in September 2011, her solicitors informed the father’s solicitors that she needed to relocate. This was presumably the catalyst for the father instituting the proceedings. The mother’s plans were confirmed when she filed her response on 21 November 2011, in which she sought permission to relocate and proposed that the father have the children each alternate weekend and half the holidays. In her first affidavit, also sworn on 21 November 2011, the mother said, at [20], that she proposed the children attend primary school in Suburb P.
The new business did not commence until 29 August 2012, shortly prior to the trial. At the time he swore his first affidavit, the father said, at [2] that he was unemployed, although he was “currently assisting [his] father in a new business he is preparing to commence in [Geelong Suburb L]”. Although the trial Judge recorded that the father was a part owner of the business, this is inconsistent with the father’s evidence that he is merely one of two managers (Father’s affidavits, sworn 6 December 2011 at [24] and 28 September 2012 at [19(i)]).
In any event, the father gave somewhat conflicting evidence about his intentions if the relocation was permitted. For much of the time, as his Honour recorded, the father was asserting that it was financially impossible for him to move to Melbourne, yet at one point the following exchange occurred in his cross-examination (Transcript 20 November 2012, p 40, emphasis added):
[COUNSEL FOR THE MOTHER:] And the children are clearly intelligent children, that’s the fact, isn’t it?---Yes, absolutely.
And they will do well at any school that they go to, won’t they?---I think they’re capable of going, yes - doing well, sorry.
And they are sociable children?---Yes, yes.
And they make friends easily?---Yes. They’re very close to their family unit, very, very close, so - - -
So, the family is - - -?---Yes. I think they really adapt to their family unit probably more than probably what - more than their friends.
But they would make friends wherever they would go to school, won’t they?---Yes, I would say at that age, yes.
And if the children were to move to Melbourne and change school, they will do well at a new school, won’t they?---I think they will do well at a new school, but their family aspect of what they’ve known for so long would be dramatic effect, I think - my opinion would be.
And they would make friends at any new school?---Yes.
And if they were to move to Melbourne, you would still have, and your family would still have, significant involvement with the family, wouldn’t they?---They would want to be, yes, absolutely.
So it’s not as if you would have no contact with the children when they moved to Melbourne, is it?---It would be less contact, yes.
Less contact, but still be a significant amount of time?---Depends on the amount of time we’re talking about, yes.
HIS HONOUR: Well, if it was the same time as you currently have - - - ?---Correct.
- - - would you move to Melbourne?---Would I move to Melbourne?
Yes?---Look, I think I’ve made it clear, if it’s in the best interests of the children - - -
No, no, I’m asking you, what would you do if I make an order the wife be permitted to relocate and you be permitted to continue to have week and week about in the event that you move to Melbourne, would you move to Melbourne?---I would have to seriously consider it, yes.
This is consistent with paragraph 48 of Mr D’s first report dated 19 April 2012 where he recorded that:
… when asked by the writer what he might do if the court agreed to [the mother] relocating to Melbourne with the children, [the father] said that he too would then have to seriously consider moving to Melbourne.
Accordingly, at [91] of the same report, Mr D concluded:
For his part [the father] has also told the writer that, if the court agrees to [the mother’s] relocation to Melbourne, in all likelihood he would follow her; so that he can be close to the children and enjoy as much time with them as possible. In this sense the responses of the parents to the relocation question cancel themselves out.
Notwithstanding the statements he made to the report writer, and the answers given in response to questions from the bench, the father’s ultimate position was that he would not move. In these circumstances we find no error on the part of the trial Judge in drawing a distinction between the mother, who would not leave Geelong if the Court determined that the children should remain at school in Geelong, and the father, who would not move to Melbourne in the event that the Court determined the children should go to school in Melbourne.
We therefore find no merit in this ground.
The outcome and costs
Although the complaints made on behalf of the father are not entirely lacking in merit, we have determined that there is no basis for appellate intervention.
The appeal will therefore be dismissed.
Counsel for the mother sought an order for costs if the appeal was dismissed. Although the father has been unsuccessful, we repeat that the appeal was not without merit. We also recognise that the orders brought about a major change in the care arrangements, involving a significant reduction in the time the father is able to spend with the children.
In these circumstances, we consider both parties should bear their own costs.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 30 April 2014.
Associate:
Date: 30 April 2014
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