Oswald & Karrington
[2016] FamCAFC 152
•16 August 2016
FAMILY COURT OF AUSTRALIA
| OSWALD & KARRINGTON | [2016] FamCAFC 152 |
| FAMILY LAW – COMPETENCE OF APPEAL – where the father contended the appeal was out of time and thus incompetent – where ex tempore reasons for judgment were given at trial – where orders were made after the reasons for judgement were given – where the mother’s notice of appeal was filed within 28 days of the orders – where s 94AAA(5) provides the court jurisdiction in an appeal from a “decree” of the Federal Circuit Court of Australia – where reasons for judgment do not constitute a decree – where it was held the formal orders constitute a decree – where the mother’s notice of appeal was filed in time. FAMILY LAW – APPEAL – CHILDREN – RELOCATION – where the mother was the primary carer – where the issue on appeal was whether the trial judge was correct to make a coercive order as to where the mother was to live – where the children lived with the mother and spent time with the father each alternate weekend – where the mother had at separation relocated to receive emotional support and move away from her previous drug habits – where the mother would travel with the children to allow for the father to spend time with the children – where the trial judge found the travel was not safe for the children – where the trial judge assumed the mother would receive the same emotional support should she be ordered to relocate back to the father’s town – where it was held it was not open to the trial judge to make these findings – where the Court’s power to make a coercive order should be exercised only in rare and extreme circumstances, namely for a parent to perform their role as primary carer – where the trial judge was required to consider alternative options available before making a coercive order – where it was held the trial judge erred in failing to consider alternatives to a coercive order – where the trial judge erred in considering s 60CC factors by failing to consider the risk factors for the children should the mother be required to move back to the father’s town – where the mother argued at trial she would likely relapse and abuse drugs if ordered to move back to the father’s town – where the trial judge further erred in applying the factors under s 65DAA – where it was found that the trial judge acted upon wrong principles and failed to take into account relevant material considerations and facts – where this failure led the trial judge to make a coercive order – where the appeal was allowed – where the parenting proceedings were remitted for rehearing – where the coercive orders were set aside. |
| Evidence Act 1995 (Cth) |
Family Law Rules 2004 (Cth)
| Adamson & Adamson (2014) FLC 93-622 Collu & Rinaldo [2010] FamCA 287 D and SV (2003) FLC 93-137 Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145 R v Ireland (1970) 126 CLR 321 |
| APPELLANT: | Ms Oswald |
| RESPONDENT: | Mr Karrington |
| FILE NUMBER: | DNC | 202 | of | 2015 |
| APPEAL NUMBER: | NA | 36 | of | 2016 |
| DATE DELIVERED: | 16 August 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Kent JJ |
| HEARING DATE: | 3 August 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 March 2016 |
| LOWER COURT MNC: | [2016] FCCA 679 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Page QC |
| SOLICITOR FOR THE APPELLANT: | Northern Territory Legal Aid Commission |
| COUNSEL FOR THE RESPONDENT: | Mr Loizou (direct brief) via videolink |
Orders
The appeal against the orders of Judge Young made on 24 May 2016 is allowed and those orders are set aside.
The matter be remitted for hearing by a judge in the Federal Circuit Court of Australia other than Judge Young.
There is no order as to costs as between the parties.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the rehearing ordered.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Oswald & Karrington has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 36 of 2016
File Number: DNC 202 of 2015
| Ms Oswald |
Appellant
And
| Mr Karrington |
Respondent
REASONS FOR JUDGMENT
On 24 May 2016 Judge Young made final parenting orders[1] concerning the children, K born in 2008, Y born in 2012 and Z born in 2014, following a trial of parenting proceedings between the children’s parents on 2, 3, 4, and 15 March 2016.
[1] Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
As at the time of trial, the mother and children had been living in Town B for about a year, since 9 March 2015 when the parents separated and the mother and children moved to Town B. The father had remained living at the property the family occupied prior to separation, at Town A.
Town A is located about 40 kilometres southeast of Town C via a Highway. About a further 285 kilometres southeast on that highway, involving a travel time by car of approximately three hours, separates Town A and Town B.
The final parenting orders included a coercive order (Order (3)) requiring the mother (and the children) to live within an 80 kilometre radius of the Town C Post Office. Orders for the children to spend time with the father were predicated upon the mother herself complying with the coercive order as to where she lived.
The determinative issue in this appeal by the mother against the parenting orders is whether the trial judge erred in the exercise of his discretion to make the coercive order directed to the mother as to where she was to live.
For the reasons which follow we are of the opinion that the trial judge erred in making that order. It follows that the parenting orders made on 24 May 2016 ought be set aside and that the parenting proceedings ought be remitted for rehearing.
Competence of the appeal – a preliminary issue
At the outset of the hearing of the appeal, counsel for the father pursued the contention advanced by the father in his outline of argument that the mother’s appeal was filed out of time and was thus incompetent.
The trial judge delivered ex tempore reasons for judgment on 15 March 2016 and apparently then directed that minutes of draft orders giving effect to those reasons be provided to the Court. Those minutes were subsequently provided and the orders were made on 24 May 2016. The mother’s notice of appeal against those orders was filed on 15 June 2016, within the 28 day period prescribed by s 94AAA(5) of the Act and r 22.03 of the Family Law Rules 2004 (Cth) (“the Rules”).
By s 94AAA(1)(a) of the Act this Court has jurisdiction in an appeal from a “decree”[2] of the Federal Circuit Court of Australia exercising original jurisdiction. By s 94AAA(1)(b) the only “decision” in respect of which an appeal lies is a decision by a judge of the Federal Circuit Court of Australia rejecting an application for disqualification from further hearing a matter.
[2] As defined in s 4 of the Act.
The father’s contention that the trial judge’s reasons for judgment delivered on 15 March 2016 are a “decision” and thereby constitute a “decree” or “judgment” within the definition of “decree” in s 4 of the Act, for the purposes of s 94AAA(1)(a), is misconceived. It is well settled that reasons for judgment are not of themselves a “judgment” in this connection. A judgment is the formal order by which a Court disposes of the matter before it.[3]
[3] R v Ireland (1970) 126 CLR 321 at 330 per Barwick CJ; Moller v Roy (1975) 132 CLR 622; Driclad Pty Ltd v Commissioner of Taxation of the Commonwealth of Australia (1968) 121 CLR 45; Minister for Works (WA) v Civil & Civic Pty Ltd (1967) 116 CLR 273; Yule v Junek (1978) 139 CLR 1; R v Watson; Ex parte Armstrong (1976) 136 CLR 248 and Ah Toy v Registrar of Companies(NT) (1985) 10 FCR 280.
The reasons for judgment delivered by the trial judge on 15 March 2016 did not constitute a “judgment” within the meaning of “decree” as defined in s 4 of the Act, for the purposes of s 94AAA(1)(a) of the Act. The orders delivered on 24 May 2016 constituted the judgment and the mother had 28 days from that date within which to file her notice of appeal, which she did.
It is for these reasons that at the hearing of the appeal we rejected the father’s preliminary contention that the appeal is incompetent.
Challenges on appeal
Mr Page of Queen’s Counsel for the mother acknowledged at the outset of argument of the appeal that whilst there are 10 separate grounds of appeal (and further sub-paragraphs to some of those grounds) in the mother’s notice of appeal, the central and unifying contention within them is that the trial judge made errors in exercising the discretion to make the coercive order in the circumstances of this case. Counsel accepted that the grounds of appeal effectively constitute particulars of the errors underlying that central contention and argument of the appeal proceeded on that basis.
Given counsel’s acknowledgement, and some overlap between the grounds particularising the central contention referred to, we propose to take a similar approach to the discussion of the mother’s challenges on appeal.
The need to consider alternatives to a coercive order
At least by the stage of final submissions at trial when the father’s position as to the orders he was seeking was clarified with his counsel (transcript of proceedings 15 March 2016 pp 335-336), there was no issue as between the parties that it was in the children’s best interests that they remain in the primary care of the mother, a role she had fulfilled throughout the children’s lives including in the post-separation period. That is, the father did not propose, even as an alternative, that the children be in his primary care. In short, the mother was unchallenged as the appropriate primary caregiver of the children (reasons at [25]).
It may be accepted, as it was in this case, that the Court has power to make a coercive order. Importantly though, it is well established that the proper exercise of that power is “at the extreme end of the discretionary range”[4] and there should exist “rare” or “extreme” factors that warrant the Court exercising its discretion to make a coercive order requiring a parent to relocate so as to continue to perform the role of primary caregiver of children.[5]
[4] Sampson and Hartnett (No. 10) (2007) FLC 93-350.
[5] See Adamson & Adamson (2014) FLC 93-622 and the authorities there referred to.
Consequently, as emphasised by the Full Court in D and SV[6] and by the Full Court in Sampson and Hartnett (No 10) (supra), there is an imperative for the Court to explore and consider alternatives to restricting freedom of movement, particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary caregiver undertaking that role in a place not of that parent’s choosing.
[6] (2003) FLC 93-137.
We do not consider that any of the relevant circumstances of this case rendered it unnecessary for the trial judge to carefully explore and consider alternatives to the coercive order ultimately made. To the contrary, a number of circumstances brought that imperative into sharp focus.
For example, the evidence at trial established that whilst living in Town A prior to separation the mother suffered from depression compounded by her use and abuse (with the father) of drugs, particularly methamphetamine. A florid example of the combined effect upon the mother of her depression and drug abuse was an incident in March 2015 when the mother took up a knife and, as found by the trial judge, threatened either or both self-harm and/or the father. The trial judge found that the mother needed help with her mental health at that time (reasons at [12] and [14]). The trial judge found that the historical drug use by both parents “has been harmful for these children” (reasons at [55]).
The trial judge found that following her 9 March 2015 relocation to Town B with the children the mother stopped using methamphetamine, apart from a single occasion (reasons at [8]). As at the trial, the mother had sought medical treatment from a general medical practitioner for her depression and was taking prescribed anti-depressant medication. A substantial component of the mother’s case at trial was that by moving to Town B and securing the support she enjoyed there, the mother had stopped using drugs. Conversely the mother’s case was that a return by her to the Town C region carried the risk of her relapse into drug use.
It is not reasonably open to doubt that in her role as primary carer for the children, any relapse by the mother to drug/methamphetamine abuse would potentially pose a significant risk of compromise to the mother’s parenting capacity and a consequent significant risk to the children’s welfare. In his oral evidence the expert family report writer, Mr R, a psychologist, confirmed that the mother had, prior to and at the time of the parties’ separation, suffered from significant mental health issues in the context of regular use of methamphetamines. The expert confirmed that it would be extremely important to maximise the mother’s prospects of “staying off the drugs” because relapse “could have pretty catastrophic consequences for the children”. Those consequences would potentially include the mother being emotionally unavailable for the children; the children being at an increased risk of being exposed to family violence and conflict and an increased risk of them being seriously neglected; and the consequent risk of the children having to be taken into foster care (transcript of proceedings 2 March 2016 p 106).
Living in Town B, the mother had established the significant emotional support involving financial and child caring assistance deriving from her friendship with Ms V, a witness in the mother’s case. We interpret the trial judge’s finding at [36] that “I think there is a real issue about the mother’s need for emotional support” in the context where that appears following upon the findings at [35] as to the support Ms V provided, as meaning that the trial judge was satisfied that the mother has a real need for emotional support. The trial judge found that the mother had emotional support in Town B (reasons at [35]) but had experienced some hostility from the father’s family, particularly the father’s father (who lives in Town A) (reasons at [36]).
In our judgment, it is readily apparent that on this body of evidence it was incumbent upon the trial judge to explore and consider alternatives to the coercive order requiring the mother to live in the Town C region away from the supports and stability she had achieved living in Town B. It is equally apparent from the reasons for judgment of the trial judge that he erred in failing to properly consider and explore alternatives to the coercive order, and made errors leading to that failure, in a case having circumstances making it imperative for that exploration and consideration to be undertaken.
At [23] of his reasons, the trial judge recorded his own opinion, and his acceptance of his own opinion, that the “road between [Town B] and [Town C] … is not a particularly safe road.” At [24] the trial judge said, “I do not consider the present regime to be practicable or safe in the long term.” By “present regime” the trial judge was referring to the mother and children undertaking return travel between Town B and Town A each alternate weekend to facilitate the children spending time with the father as had occurred since the interim hearing of the proceedings on 30 July 2015. The trial judge continued at [24]:
And as I am satisfied that if these children, including two young children - three and one - who are at an important developmental stage in forming primary relationships - if they are to have a meaningful relationship with both parents, then it is desirable that the children live in the same place and the same town as both parents.
In that context the trial judge said at [25]:
The question, therefore, becomes in my view whether the father should live in [Town B] or the mother should live in [Town C]. These were really the competing proposals. It was agreed, in substance, that the children should continue to live with the mother. Certainly, at the point of final submissions, counsel for the father was not suggesting anything different.
It may immediately be observed that the above statement that “[t]hese were really the competing proposals” misdescribes the mother’s proposal. It was not the mother’s proposal that any coercive order be made, including a coercive order that the father live in Town B. The mother’s proposal, for herself and the children to continue living in Town B whether or not the father lived there, was plainly identified in her outline of case document filed on 29 February 2016 upon which the mother’s case at trial proceeded. That remained the mother’s proposal throughout and consistent with it her counsel submitted in final submissions “[t]here is a constitutional freedom of movement, and it can only – it can be curtailed, but only if the best interests of the children require it. I submit that it’s not appropriate to exercise the court’s coercive power in this case …” (transcript of proceedings 15 March 2016 p 293).
It was only in the context of the Court determining to exercise the coercive power, contrary to the mother’s proposal, that the mother contended that the coercive power be exercised in favour of the father being compelled to relocate to Town B rather than the mother being compelled to relocate to the Town C region.
Counsel for the mother submitted, in support of the mother’s proposal, that orders providing for the children to spend alternate weekends and half school holiday periods with the father would be “adequate for the children to have a meaningful relationship with the father” and that “… allowing the children and the mother to remain in [Town B] is an appropriate balance between supporting the mother in her primary role of parenting the children and allowing the children to spend regular and substantial time with the father.”[7]
[7] Transcript of proceedings 15 March 2016 p 293.
Whilst the Court was obviously not bound by the proposal of either party, by misstating the mother’s proposal or misapprehending that proposal and by posing for himself the question to be answered in the form expressed in [25] referred to above, the trial judge wrongly eliminated from the Court’s exploration and consideration alternatives to the coercive order directed to the mother.
If an imperative was to reduce highway travel by the children, particularly at night as seems to be reflected at [23] of the reasons, then alternatives such as the father (short of being ordered to relocate permanently to Town B) spending weekends in Town B to facilitate the children spending time without the need for them to travel, fell for consideration. Likewise, more expansive holiday periods of time with the father, in lieu of weekends, would be another alternative falling for consideration. If night time travel on the highway was of particular concern as to safety, as the trial judge seems to have identified for himself, orders could be fashioned to eliminate or minimise the need for travel at night to be undertaken having regard to the times of sunset in the Northern Territory.
The only alternative to a coercive order directed to the mother, which was considered by the trial judge, was a coercive order directed to the father requiring him to live in Town B. Having excluded the option of the father being compelled to live in Town B, the trial judge made the coercive order directed to the mother, without any exploration or consideration of other alternatives, or at least any exposed in the reasons for judgment.
Errors in fact-finding
We seriously doubt the legitimacy of the trial judge apparently relying upon his own experience and observations of the highway between “[Town B] and [Town C]” to conclude that “it is not a particularly safe road”; which in turn seems to have operated as a significant reason for the trial judge’s formulation of the “question” he posed for himself in [25] of the reasons, as referred to above.
Whilst the trial judge did not expressly refer to s 144 of the Evidence Act 1995 (Cth) (“the Evidence Act”), we assume he relied upon that provision, rather than the common law doctrine of judicial notice, as it would seem now settled that the legislative provision covers the field in relation to judicial notice of facts.[8] It bears emphasis that s 144 only permits a court to take into account “knowledge that is not reasonably open to question” with the other requirements imposed by the section being additional to that precondition.
[8] Gattellaro v Westpac Banking Corporation (2004) 78 ALJR 394 at [17] per Gleeson CJ, McHugh J, Hayne and Heydon JJ; Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145 at [103].
During submissions counsel for the mother acknowledged that the “commute” involved on the mother’s proposal “isn’t optimal but it is achievable” (transcript of proceedings 15 March 2016 p 330). That led to the trial judge’s observations as to the dangers of night driving on the highway and the potential for animals to be upon the carriageway at night. Counsel for the mother submitted (correctly it would seem) that there was no evidence before the Court about that particular road being less safe than other roads; which drew the trial judge’s conclusion “I consider it a dangerous stretch of road”, and the trial judge’s apparent proposal to take “judicial notice” of that consistent with his personal opinion (transcript of proceedings 15 March 2016 p 331).
Whilst it is correct, as the trial judge records at [23] of the reasons, that when the trial judge made these observations during submissions by counsel for the mother, he offered the mother the opportunity to reopen her case, an opportunity not taken up, there must be real doubt about the utility of the mother attempting to advance evidence after the trial judge had so robustly expressed his own opinion on the topic during final submissions.
This noted, even if it was legitimate for the trial judge to hold concerns about the safety, and thus practicability, of travel on that highway, particularly at night (and it may be accepted that there is a degree of danger inherent in any highway travel), this ought to have drawn emphasis to alternatives to be explored and considered. Only when such alternatives could be eliminated for good reason could the exercise of coercive power be legitimate. This the trial judge did not do.
Turning to the question of emotional support, we have already observed that the trial judge found that the mother had, living in Town B, the support of Ms V and that this was important to the mother, and consequently, to the benefit of the children.
At [37] of his reasons, the trial judge recorded the following finding as to the mother if she lived in the Town C region:
37.… I think that she is likely to find friends perhaps old friends and friends who have moved on from methamphetamine use, as she has. I am not satisfied that the fact that she is more comfortable in [Town B] and feels more emotionally secure there is a reason why she is unable to move back to the [Town C] region.
With respect to the trial judge, there was no evidentiary foundation for the speculative finding as to the likelihood of the mother finding friends as described, and the trial judge does not explain in his reasons for judgment what that finding is based upon.
It bears emphasis that the mother lived with the father on his family’s property at Town A from 2004 (when the parties moved there from Town B where they had lived together since 2002) until separation on 9 March 2015. Importantly, as already referred to, as at separation the mother was suffering depression, likely compounded by methamphetamine abuse, and both parents were using drugs and were associating with drug users.
There was simply no evidence before the trial judge to support the finding he expressed. Moreover, the finding seemingly assumes that if a friend or friends in Town C were available to the mother that would somehow equate to the nature, quality and level of established emotional, financial and practical child caring support the mother was receiving in Town B from Ms V.
We consider that the fact that the mother had, for many months leading up to the trial, been making return trips from Town B to Town A on the Friday and again on the Sunday of each alternate weekend (the mother did not stay in Town B/Town C on those weekends), was tangible evidence not only of the mother’s commitment to the children spending time with the father, but of the mother’s apparent lack of available support in Town A/Town C and/or a reflection of her commitment to keep herself away from that locale.
We find merit in the challenges that the finding at [37] was not open on the evidence, and that the trial judge failed to adequately explain in his reasons that finding or how the hypothetical existence of friends would furnish to the mother support equivalent to the actual support she and the children were receiving in Town B.
The errors in fact-finding discussed above were as to matters of substance which the trial judge apparently acted upon and thereby infected the discretionary exercise.
Errors of principle
(a) Consideration and application of s 60CC
We have already identified that the trial judge erred in principle in failing to explore and consider alternatives to the making of a coercive order.
The mother’s challenges on appeal include challenges as to the manner in which the trial judge applied (or failed to apply) Part VII of the Act to the determination.
Whilst some authorities refer to the application of Part VII of the Act as prescribing a “legislative pathway” and the obligation upon a court applying it as an obligation to follow a legislative pathway (see, for example, Sayer v Radcliffe (2013) 48 Fam LR 298), properly understood, such authorities emphasise that the statutory considerations relevant to a particular case must be considered and applied as directed by the statute. Discussed below are the principles in relation to the application of s 65DAA as expounded by the High Court in MRR v GR (2010) 240 CLR 461.
In relation to the application of the s 60CC considerations by which the Court determines a child’s or children’s best interests, there is no error per se in a trial judge addressing the “additional considerations” specified in s 60CC(3) of the Act before addressing the “primary considerations” in s 60CC(2), and indeed there may be good reasons for taking that approach.[9] Provided all relevant considerations identified in the statute are considered and ultimately balanced in the reasoning process to the overall determination of the paramount consideration of best interests (s 60CA), no error will be demonstrated despite the consideration of the various statutory provisions out of their sequence or conventional order.
[9] See Collu & Rinaldo [2010] FamCA 287.
That noted, the structure of these reasons for judgment of the trial judge of itself gives rise to the concern that the trial judge has failed to properly consider at least some of the fundamental considerations the trial judge was bound to consider in determining what was in the children’s best interests as required by s 60CC of the Act. By structure, we refer to the feature that by [46] of the reasons, the trial judge has already expressed and recorded his determinations in the case in advance of addressing, specifically, any of the s 60CC considerations and then at [46] the trial judge records:
46.Just for the sake of completeness, I will make some reference to the legislative pathway …
Thereafter is set out some remarkably brief observations directed to the mandatory s 60CC considerations, the discussion of which is largely confined to cross-references to the determinations, including the proposed orders, the trial judge has already expressed. The clear impression is that the trial judge’s discussion of the s 60CC considerations is confined to addressing those matters in the limited context of determinations already reached, rather than consideration of them as the means by which the trial judge arrived at those determinations.
We are mindful that the trial judge delivered reasons for judgment extemporaneously and it follows that it would be wrong to apply fine criticisms about any infelicities of expression or of anything perceived to be falling short of completeness, but not having any real substance.
However, testing of the impression referred to by reading the reasons for judgment as a whole confirms, rather than dispels, that impression. That is, as we will demonstrate, it cannot be seen that the central determinations expressed by the trial judge in his reasons for judgment are informed by consideration and determination of the matters required by s 60CC to be considered, in arriving at a best interests determination.
Early in the reasons for judgment (at [8]) in addressing both parents’ use of drugs historically, the trial judge observes this:
8.I think that raises one of the very concerning issues in this case: the use by the parties of drugs, particularly methamphetamine, past and, I think there is some possibility, present use. The mother, I might say, says that she has stopped her methamphetamine use. She was frank with this court in her first affidavit, where she deposed to her use of methamphetamine. She said that after she moved to [Town B] she stopped using methamphetamine, apart from a single occasion. I am inclined to accept what she says about that.
As drug use is, correctly we observe, identified as a “concerning issue in this case”, it is inconsistent that when ultimately addressing the second of the two primary considerations in s 60CC(2)(b) – the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence – all the trial judge says of it is “[t]his is not an issue in this case.”
We have already made reference to the evidence that was before the trial judge of the potentially “catastrophic” consequences for the children if the mother were to relapse and abuse drugs.
Moreover, as regards the father, the trial judge specifically found at [9]:
9.The father, on the other hand, who commenced these proceedings, did not disclose to the court until after the mother had made her disclosures that he had been a drug user, certainly a user of cannabis, and a frequent user of methamphetamine. I have, as a consequence, some real doubts about the father’s frankness with this court about his drug use, past and possibly present.
That led to the trial judge concluding at [10]:
10.That is why I am satisfied that it is appropriate in this case to make orders for the parties to have counselling about their drug use. I was, I might say, particularly surprised by the evidence of the father’s mother that it did not appear to her out of the ordinary for the father to roll a joint in the kitchen while one or more of the children were present. I think there is a serious issue that these parties need to address for the sake of their children.
Despite his adverse credit finding regarding the father concerning the significant issue of the father’s drug use, the trial judge makes no further reference at all to that potential risk factor for the children, including none when purporting to specifically address the s 60CC considerations.
In relation to the mother, this inconsistency is not resolved by the fact that the trial judge recorded the following findings at [33] and [34] of the reasons as follows:
33.So, the fact is that she has avoided drugs for a year or so since the move to [Town B]. And I am not persuaded that there is a high risk of her returning to methamphetamine use, should she return to [Town C]. It was put to her, really as an issue of credibility, that she had not mentioned to the family report writer that this fear of returning to the drug world was a principal concern in her unwillingness to return to [Town C]. It was said by her that she didn’t have the opportunity to put that to the family report writer for various reasons.
34.I do not accept that submission. In my view, the mother had opportunities to discuss her drug use with the family report writer and she did discuss her methamphetamine use with the family report writer. So, my suspicion is that after the initial reason advanced by the mother, that is, the expense was questioned by the author of the family report, she turned to a slightly different explanation of her reluctance. I am, as I’ve said, sceptical about that, not least because the mother failed to raise that with the family report writer, when she had the opportunity, as a principal reason for her reluctance to return.
First, a finding expressed in terms of the balance of probabilities (ie “high risk”) is not the test to be applied in assessing future hypothetical events which may or may not occur.[10] With respect to the assessment of future potential risk to children, the assessment requires identification of the nature and magnitude of the risk and whether or not the risk posed is unacceptable.[11] Second by focusing upon, as a credit issue, whether or not the mother held genuine fears of “returning to the drug world” should she return to Town C, the trial judge distracted himself from the essential task of risk assessment. Quite apart and independent from the mother’s subjective fears or beliefs, what was required was an objective assessment of the mother’s risk of relapse if she remained in Town B, compared with her being compelled by order to live in the Town C region. Only if, upon a proper risk assessment, were it to be concluded that the mother being ordered to live in Town C did not carry with it any unacceptable risk posed to the children (not the absence of “high risk” or an assessment on the balance of probabilities with an assessed risk not meeting that standard being ignored), as compared with her position living in Town B, could a coercive order, otherwise legitimately made, be an appropriate exercise of discretion.
[10] Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.
[11] M & M (2009) FLC 98-047 and Donaghey & Donaghey [2011] FamCA13.
Risk assessment aside, given the mother’s unchallenged role as primary carer, a proper assessment had to be made as to the benefits for the mother, and thus her capacity to perform her primary caring role for the benefit of the children under her proposal that she and the children live in Town B, as compared with her living in the Town C region, contrary to her desires. Consideration had to be given to the consequences for the children if the mother did not comply with the coercive order, and enforcement was pursued. By failing to examine and consider the s 60CC considerations as the means by which the children’s best interests were to be determined, by reference to the parties’ competing (primary) proposals, the trial judge fell into error.
(b) Application of s 65DAA
The errors infecting the trial judge’s exercise of discretion thus far discussed resonate also with this topic.
In MRR v GR (supra) the High Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ) examined and discussed the proper interpretation and application of, inter alia, s 65DAA of the Act.
The following statements of principle by the High Court are particularly apposite:
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n 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.
…
12.His Honour concluded that the father’s proposals of equal shared parental responsibility with the child living in Mount Isa most appropriately ensured the child’s best interests and welfare would be met and on that basis made the orders in question.
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 …
14.His Honour treated the answer to the firstmentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made. His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances …
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent … Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
(emphasis added) (footnotes omitted)
What then follows from the passages quoted is the High Court’s consideration of the mother’s circumstances living in Mount Isa, where the father also lived as compared with the mother’s position if she relocated to Sydney, as she sought to do.
It is well to remember that in MRR v GR the subject child was five years of age at trial. At [11] the High Court referred to the father’s position that he would not move from Mount Isa and that the only possibility for equal time parenting would arise if the parties both remained in Mount Isa and that the trial judge concluded that they should do so. It is noted that the trial judge relied upon the expert evidence of a family consultant who had recommended a continuation of the existing arrangements for equal time. The High Court there also noted:
… His Honour said that he too did not consider it would be beneficial to the child if the parents lived “thousands of kilometres apart”; it was in the child’s interests that there be equal time spent with each parent.
(footnote omitted)
As MRR v GR thus makes clear, the application of s 65DAA does not mandate that a trial judge focus upon, as a first or primary objective, constructing by orders the situation or framework to facilitate orders for equal time or substantial and significant time. The realities of the parties’ situations, as they present and underlying their respective proposals, require proper consideration.
In Adamson & Adamson (supra) the Full Court (Ainslie-Wallace, Murphy and Kent JJ) said at [64] to [68]:
64.Nor was this a case where each parent presented an alternative proposal or option for the child’s primary residence. The father conceded, whatever other outcome may result, that it was in the child’s best interests that she continue living with the mother and the trial judge reached the same conclusion. The father did not offer the option, nor did the trial judge see it as being in the child’s best interests, that the father would assume primary care of the child if the mother chose not to comply with a coercive order as to the child’s relocation.
65.It follows from the decisions of the High Court in AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238 that in parenting proceedings there is no requirement for a parent to demonstrate “compelling reasons” to live where the parent proposes to live, be that a proposed new location or, axiomatically, in their current place of residence. Here, the mother was no more required to demonstrate “compelling reasons” for her choice to remain living in Town S than was the father to so do with respect to his choice to live in Town C or for either to not live anywhere else. The same may be said of their respective choices of employment, the mother’s in Town S and the father’s in Sydney. The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire. (U v U at [82] citing AMS v AIF)
66.These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
67.Consequently, whilst the Court is not bound by the proposals advanced by parents and can, subject to natural justice considerations, adopt modified proposals, the justification for that is the same and the extent of modification legitimately can only be as far as is necessary to avoid adverse effects upon best interests. As Callinan J observed in AMS v AIF (cited with approval by Gummow and Callinan JJ in U v U (with whom Gleeson CJ, McHugh and Hayne JJ agreed)):
It will generally not be possible for a trial judge to construct a framework and environment for the upbringing of a child. What happens in practice is that those competing for the care and custody of a child will present proposals to the Court to advance the welfare of the child. Judges frequently will be able to mould or adopt such proposals in making orders but rarely will they be able to invent or construct substantially different arrangements for children from those proposed by the parties.
(Footnote omitted)
68.It can thus be seen that it was not the task of the trial judge to mould or create, by the exercise of discretionary powers, the most desirable solution or desirable circumstances, blind or indifferent to each parent’s fundamental right to exercise their respective rights to choose where they lived and worked consistent with the child’s best interests. Rather, those rights were to be respected. Only if the exercise of such parental rights could be seen as so adversely affecting the child’s best interests could interference with their exercise be legitimate; and then only to the extent necessary to avoid such adverse effects, having considered available alternatives.
(emphasis in original)
In our judgment having regard to the manner in which the trial judge arrived at the central determinations he expressed, as earlier discussed, we find merit in the mother’s challenges that the trial judge failed to apply these principles in assessing the s 65DAA considerations and in exercising the discretion to make the coercive order.
Conclusion
We are satisfied that the trial judge acted upon wrong principle; did not take into account material considerations; and mistook substantial facts in exercising the discretion to make the coercive order.
The parenting orders made on 24 May 2016 will be set aside and the parenting proceedings remitted for rehearing by a judge other than the trial judge.
On 24 June 2016 Judge Young made interim orders including that the subject coercive order (Order (3) of the 24 May 2016 orders) be stayed pending the determination of this appeal. Order (3), the coercive order, will now be set aside by our orders.
Otherwise, the orders made by Judge Young on 24 June 2016 provide for parenting arrangements that will operate pending any further interim or final orders made in the Federal Circuit Court upon the rehearing.
Costs
The mother sought an order for costs against the father in the event the appeal was allowed and alternatively, if no costs order was made between the parties, the mother sought certificates under the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”) both in respect of the appeal and the rehearing.
In the event the appeal was allowed, the father opposed the order for costs against him sought by the mother. Notably, in addressing us as to the father’s financial circumstances, his counsel referred to the feature that the father’s income was now approximately half that which it was found to be as at the time of trial, only in March of this year. That is notable because it seems that the father’s financial circumstances was significant in the conclusion reached by the trial judge that it was not reasonably practicable for the father to relocate to Town B. No doubt, the parties’ respective financial circumstances will be a matter that comes into focus at any rehearing of the matter.
The father likewise sought certificates under the Costs Act both for the appeal and the rehearing based upon the contention that if the appeal was allowed it would be allowed by reason of errors of law made by the trial judge.
Given that the appeal is allowed by reason of errors of law and having regard to the relatively modest financial circumstances of each party, we propose to make no order as to costs as between the parties and to grant each party certificates under the Costs Act both for the appeal and the rehearing.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Kent JJ) delivered on 16 August 2016.
Associate:
Date: 16 August 2016
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