Palmer & Hammer (No.2)
[2011] FamCAFC 196
•30 September 2011
FAMILY COURT OF AUSTRALIA
| PALMER & HAMMER (NO 2) | [2011] FamCAFC 196 |
| FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the Federal Magistrate allowed the mother to relocate the child’s primary place of residence – Where the father’s time with the child was limited due to the geographical distance between the parent’s homes – Where it was said the best interests of the child would be best met in the mother’s care and where the mother had support, permanent employment and where the mother was able to assist with the care of her sick mother – Where it was considered the father’s relationship with the child could be sustained. FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the appeal is from a discretionary judgment – Where it was said that the Federal Magistrate did not properly consider the child’s right to spend time with the father on a regular basis and for the parties to share in their duties and responsibilities in caring for the child – Where the father contended that the Federal Magistrate placed the best interests of the mother and the grandmother above those of the child – Where it was said that the evidence was uncertain and vague and failed to demonstrate circumstances which would warrant such a significant change in the child’s living arrangements – Where it was contended that the orders were impracticable given the geographical burden and financial implications involved in facilitating the child’s time with the father – Where it was found that the Federal Magistrate properly appreciated and considered the competing cases of the parties – Where the mother’s proposal was in the best interests of the child, primarily due to the nature of the relationship between the mother and the child, the need for the mother to have stability both financially and emotionally and for the mother to be able to care for her critically ill mother – No error established – Appeal dismissed. FAMILY LAW – COSTS – Where the mother sought an order for costs against the father –Where the father resisted an order for costs due to his financial circumstances and the high costs associated in spending time with the child – Where the costs associated with the child moving between the parties is also borne by the mother – Where the father has been entirely unsuccessful in the appeal – Where there are circumstances that justify an order for costs against the father – Father to pay the mother’s costs of the appeal to be agreed and failing agreement to be assessed. |
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 Clivery & Conway [2007] FamCA 1435 Gallo v Dawson (1990) 93 ALR 479 Gronow & Gronow (1979) 144 CLR 513 Rice v Asplund (1979) FLC 90-725 |
| APPELLANT: | Mr Palmer |
| RESPONDENT: | Ms Hammer |
| FILE NUMBER: | NCC | 1669 | of | 2007 |
| APPEAL NUMBER: | NA | 10 | of | 2011 |
| DATE DELIVERED: | 30 September 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Coleman, May & Strickland JJ |
| HEARING DATE: | 6 September 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 17 January 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 14 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Dura |
| SOLICITOR FOR THE APPELLANT: | Rice More & Gibson Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Kelly |
| SOLICITOR FOR THE RESPONDENT: | Bridge Street Lawyers |
Orders
The appeal is dismissed.
The father pay the mother’s costs of the appeal to be agreed and failing agreement to be assessed.
IT IS NOTED that publication of this judgment under the pseudonym Palmer & Hammer (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 10 of 2011
File Number: NCC 1669 of 2007
| Mr Palmer |
Appellant
And
| Ms Hammer |
Respondent
REASONS FOR JUDGMENT
Introduction
On 10 March 2011 the father was granted leave to appeal out of time against the orders made on 17 January 2011 by Federal Magistrate Lapthorn. The notice of appeal was subsequently filed on 14 March 2011.
The orders made by the Federal Magistrate relate to the parenting arrangements for J Hammer-Palmer (“the child”) who is 7 years old.
The orders allowed the mother to relocate with the child from a place near T, New South Wales to B, Victoria, and provided for the child to spend time and communicate with the father. Orders 5 to 8 made specific provision for this time and the associated arrangements:
(5)That the child spend time and communicate with the father as follows:
(a)On the fifth weekend of each school term in Melbourne from Friday 6.30pm to Sunday 5.00pm;
(b)From 12 noon on the first day after the child’s last day at school for terms one and three each year until 12 noon on the day immediately prior to the day on which the child is required to return to school for the commencement of terms two and four;
(c)For ten days at the end of the second term each year from 12 noon on the first Monday of the holidays to 12 noon on the tenth day thereafter;
(d)For half of all Christmas school holidays being the first half in even numbered years and the second half in odd numbered years;
(e)By telephone and internet communication at all reasonable times;
(f)Other times as agreed between the parties.
(6)That for the purposes of facilitating the father’s time with the child, the mother or her nominee shall meet the father or his nominee at Sydney Airport at the start and end of each period of time spent in order 5(b), (c) and (d).
(7)That for the purposes of the father spending time with the child in order 5(a), the mother or her nominee shall meet the father at Southern Cross Railway Station in Melbourne at the start and conclusion of the time spent.
(8)That each party bear their own costs in delivering/collecting the child to/from Sydney Airport and Southern Cross Railway Station in Melbourne.
It can be seen from these orders that a substantial amount of the child’s school holidays are to be spent with the father.
At the time of the trial, consent orders made on 28 May 2008 were in existence. These included that the mother and child be permitted to relocate from where she had been living in A to the T area and that the father spend time with the child each alternate weekend from Friday at 6.30pm to Sunday 5.00pm and for one week of all school holidays. Provision was also made for the mother and child to be permitted to travel to Victoria on two occasions each year for between four to six weeks on each occasion. In addition, a specific provision allowed the mother and child to travel to Victoria in the event of a family or medical emergency and to stay for a period of up to four weeks upon 48 hours written notice to the father.
The application before the Federal Magistrate asked that the mother move with the child to live on a farming property with her parents for a combination of three reasons - to assist her terminally ill mother, to obtain employment and that such a move would relieve her feelings of stress.
The mother’s position was supported by evidence given by experts and persons unrelated to the parties.
The maternal grandmother (V Hammer) is being treated by Professor K, Neurologist. The following information can be extracted from his affidavit:
6 In 2006, [V] was diagnosed with a brain tumour.
7Since 2006, the brain tumour has grown and is now a large tumour, although it is a slow growing tumour.
8The brain tumour is inoperable as surgery would leave [V] as a vegetable.
9The brain tumour causes [V] to suffer for (sic) epileptic seizures. The seizures are very difficult to control. As a result of the seizures [V] has been prescribed anticonvulsant medication. The anticonvulsant medication needs to be changed about every six months or so as [V’s] body adapts to the medication and its effect becomes demonstrably lessened.
10When [V] suffers from the seizures which occur regularly, she has a lot of difficulty speaking.
11It is difficult to give [V] a time line as to her life expectancy. The brain tumour that she has is a slow growing tumour although it is quite large at the present time. [V] could suffer from a grand mal seizure at any time which could be fatal. [V] has suffered from two such major seizures in the last 18 months.
In relation to the mother’s employment, in her own affidavit she explained her efforts to obtain employment. Separately there was an affidavit of Ms D of Jobs Australia explaining the many applications for employment made by the mother and her excellent approach to employment, including presentation and compliance with any requests for example completing TAFE qualifications. As Ms D explained, unfortunately the mother had only been able to secure employment on a casual basis for short term contracts:
7.… The feed back that I have received from these employers has been very positive and include comments that [the mother’s] work ethics are of a high standard, but unfortunately due to the nature of the contracts were not able to keep [the mother] on other than on a short term casual basis.
…
9.One area that I am aware of that causes some problems in securing employment is that she has the care of a young child. This can create difficulties for her as there is a clear lack of immediate family support in the [T] area to assist her in the care of the child and on short notice if the child becomes ill.
The evidence before the Federal Magistrate was that the mother had obtained employment at a business near her parents’ home. The affidavit of one of the owners of the business, Mrs C, explains that the position is available for the mother and that they are aware that she has a small child who will be attending school. The future employers are prepared to employ her on a flexible basis to allow her to work school hours. They are also aware of the grandmother’s serious illness and that the need may arise for the mother to remain at home to care for her mother.
As to the mother’s emotional state, the report of Ms J, a psychologist, reveals that she has been treating the mother since February 2010. In the report attached to her affidavit Ms J said:
[The mother] speaks positively about her relationship with her parents, saying they provide essential emotional and financial support. [The mother] has also expressed worry about her mother’s brain tumour and the stress the family face in running the family farm. [The mother] reports feeling very isolated from her parents and siblings in living interstate, and has talked at length about her desire to live closer to her family both for reciprocal emotional support and for the physical support of [the mother] in working on the family farm. [The mother] has said she feels very alone in her care of [J] in [T], and said she longs to raise [J] closer to her parental family for more support.
…
Prognosis
During treatment [the mother] has reported an improvement in mood and general coping style, saying she has begun to make positive relationships with peers and enjoying social contact. However [the mother’s] strong desire to live closer to her immediate family is unlikely to lessen and creates significant emotional distress for [the mother] in her current circumstances.
In the reasons granting the father an extension of time to appeal a short history was provided. It is useful to repeat that summary here:
6.The mother and father commenced living together in 1998 and separated in 2007. They are apparently first cousins.
7.The father has a child from a previous relationship. Currently the father does not see his son, although he has recently commenced court proceedings to resume a relationship with him.
8.On 28 May 2008 final orders were reached by consent. These orders provided that both parties were to have equal shared parental responsibility for the child and that the child was to live with the mother. Pursuant to the order the father had been spending time with the child from Friday afternoon to Sunday afternoon each alternate weekend and for one week in each school holiday period.
9.Orders were also made permitting the mother to travel to Victoria for periods of up to 4 weeks in cases of family or medical emergencies, upon notice of 48 hours to the father. The order was made as the maternal grandmother, who resides in [B] was diagnosed with a malignant brain tumour in early 2006.
10.On 11 October 2011 the mother filed an initiating application seeking orders permitting her to relocate the child’s primary place of residence to [B]. The mother proposed orders to vary the time the child would spend with the father. It was clear that should the mother be permitted to relocate with the child the child’s time with the father would be limited to periods during the school holidays and at other times in the [B] area.
11.In response, the father sought a continuation of the orders made in 2008. He also sought that his time with the child be increased during the Christmas holiday period. Despite the father seeking orders that the child live with him if the mother relocated, the case proceeded on the basis that the mother would not relocate if the child was not permitted to move with her to [B].
The father relies on 8 grounds of appeal. In summary the grounds provide that his Honour erred in:
1. Failing to consider or apply the objects and principles of s 60B of the Family Law Act 1975 (Cth) (“the Act”).
2. Failing to make orders that provided for the child to spend substantial and significant time with the father.
3. Failing to consider or adequately consider s 60CC(3)(e) of the Act in respect of ensuring that the child would be able to spend substantial and significant time with the father.
4. Placing the mother’s and the maternal grandmother’s needs above those of the child.
5.Placing greater weight on his own assumptions rather than the evidence.
6. Finding that the mother would “be in a better position to parent the child” if she were allowed to relocate with the child.
7. Failing to adequately consider whether the orders were reasonably practical.
8. Failing to consider and make findings as to the benefits to the child of the father’s proposal that the child lives with him.
Should the appeal be allowed the father seeks that the mother’s application be dismissed, or in the alternative, that the child live with him and that the parents have equal shared parental responsibility. The father also sets out the times he proposes the child spend with each of them.
This is an appeal against a discretionary judgment. The principles governing appeals of this nature are well known (see House v R (1936) 55 CLR 499 and Gronow & Gronow (1979) 144 CLR 513).
Reasons of the Federal Magistrate
At paragraph 10 of his reasons the Federal Magistrate summarised the issues as he appreciated them:
In determining what parenting orders would be in the child’s best interests the court was asked to consider a number of issues the most significant being:
(a)The effect on the mother should she not be permitted to relocate;
(b)The ability of the child to maintain a relationship with her father and maternal grandmother if she was to live in Victoria; and
(c)The desirability of the child developing a closer relationship with the maternal grandmother by living in [B].
The decision of the Federal Magistrate was not influenced by a decision to prefer one witness over another, the Federal Magistrate said of them:
15. … All witnesses impressed as honest and forthright in their evidence.
The medical evidence about the maternal grandmother was accepted by the Federal Magistrate. The evidence revealed that the maternal grandmother was in need of assistance. The Federal Magistrate also accepted that it was intended that in addition to helping with her care, the mother would also work at a shop where she had been offered employment.
The Federal Magistrate was satisfied that:
19.The mother has not had full time permanent employment since she relocated to the [T] area in 2008. She has been assisted in finding work through her case worker at Jobs Australia, [Ms D]. Ms [D] was not required for cross-examination. She gave evidence of the mother being proactive and diligent in seeking employment and completing courses but being only able to obtain short term casual contract work. Although she has been able to work for a significant period in 2010 I am satisfied the job offer in [B] would provide the mother with full time permanent employment and place her in a better financial position than she currently experiences. This is especially so given she will be able to live rent free on her family’s property. In making that finding I have taken into account the financial support the mother’s family have given her since separation and are likely to continue to do so whether she is living in [T] or [B].
Of some relevance to the mother’s financial position the Federal Magistrate found that:
20.The father has not been paying sufficient child support however I am satisfied he has tried to remedy that with the Child Support Agency.
As to the third part of the mother’s case the Federal Magistrate explained:
21.A significant aspect of the mother’s case is her need for emotional support from her family. She said she feels lonely and isolated in [T]. She has no family ties in the area although she has had a good relationship with the paternal grandmother until recent times. The mother says she is sad that she is not able to be closer to her mother to support her through her illness. The mother has been seeing psychologist, [Ms J] since February 2010. [Ms J] was of the view that the mother has experienced situational stress which is unlikely to lessen unless she is living closer to her mother. Her opinion was formed solely on the mother’s self report and her observations of the mother. She did not consider the mother to be suffering from depression as defined in the DSMIV but has suffered from depressed moods. She did not consider the mother to be embellishing her symptoms in any way as she has seen a consistent presentation through out nine sessions. I find that the mother has found life in [T] isolating since her separation from the father. Despite not living with her parents since she was around 16 years of age she is seeking emotional support from them and also to provide emotional and physical support to her mother. There is no evidence the mother’s ability to parent the child is currently compromised. However I find that the mother’s emotional welfare would improve if she was living with her parents and working full time. This would have a positive flow on effect for her parenting of the child.
The Federal Magistrate found the father equally sincere in relation to the child and his proposals:
23.The father’s evidence, which I accept, was that he has never sought to stop the mother travelling to [B] to assist her mother at times of need. The consent orders made in 2008 provided for that. His primary concern is in relation to a permanent relocation.
His Honour accepted that the father could not move to B.
Reference was made in the reasons to the provisions of s 60CC of the Act and to a number of well known authorities.
As final orders had been made relatively recently the Federal Magistrate considered whether the mother’s application should first be considered by reference to principles extracted from a decision Rice v Asplund (1979) FLC 90-725. The Federal Magistrate found there had been a significant change in circumstances, in particular the deterioration of the maternal grandmother’s health, the inability of the mother to obtain employment and the personal stress to the mother of her current living circumstances. Thus, it was open to the Federal Magistrate to hear and determine the application.
The Federal Magistrate correctly referred to a number of cases dealing with relocation of parents and children.
His Honour decided there should be an order for equal shared parental responsibility. That the Federal Magistrate understood the need to then consider substantial and significant time, as in this case equal time was not viable (nor sought by either party) should the mother be permitted to move, is quite clear from the reasons as follows:
35.In the event that the court orders the parties to have equal shared parental responsibility the court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. In determining this issue the court must be satisfied that it is both in the child’s best interests and reasonably practicable. If the court finds that equal time is not in the child’s best interests or reasonably practicable then the court must consider the child spending substantial and significant time with the parents and in doing so must be satisfied that such an arrangement is both in the child’s best interests and reasonably practicable.
36. This legislative approach must be followed in all parenting cases.
(footnotes omitted)
The Federal Magistrate appreciated that the principles relating to decisions about where children should live and spend time with their parents are to be applied without dealing with the questions of relocation as a discrete issue:
37.This particular case has as one of its elements the issue of relocation. Much has been written and said about relocation cases such that there may be a perception that they are a unique type of case to be determined differently from others. The jurisprudence however is clear that such cases remain to be determined like all parenting matters by considering the best interests of the child in the context of the legislative framework. In Taylor v Barker their Honours Bryant CJ and Finn J said:
[53] …… when dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U & U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
38. Their Honours went on to say:
[83] However consistently with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or substantial and significant time” with each parent.
(original emphasis) (footnotes omitted)
The Federal Magistrate carefully dealt with the evidence under the various headings of s 60CC of the Act grouping together some of the considerations. As to the child’s relationships the Federal Magistrate found:
44.There was no doubt in this case that the child has a close and loving relationship with both parents. Neither party sought to argue otherwise. The mother has been the child’s primary carer all of her life and as such is likely to be the child’s primary attachment figure. The significant involvement by the father in the child’s life has helped her to develop that close relationship they enjoy.
45.It was also clear that the child enjoys a close and loving relationship with the paternal grandmother developed when the parties were living together and since separation. Although the child has a relationship with the maternal grandparents, it is not as close as that which she enjoys with the paternal grandmother because she has never lived in close proximity to the extended maternal family seeing them only on holiday visits.
46.The mother’s proposal would provide an opportunity for the child’s relationship with the maternal grandparents to develop by living in the same household.
47.The child enjoys a more distant relationship with her paternal grandfather as she sees him for a few days each school holiday period that the father is able to take the child to Queensland where he lives.
48.The father is most concerned that the mother’s proposal would see the child’s relationship with him and the paternal grandmother compromised because they will not get to see each other every fortnight as they do now but would have only holiday time and one weekend a school term if he could afford to travel to Victoria.
49.There can be no doubt that the child would benefit from having a meaningful relationship with both her parents. Care needs to be taken however when considering this factor. A “meaningful relationship” is not necessarily one that is achieved by ensuring a child spends a certain amount of time with a parent. It is more likely to be achieved by the quality of that time. In Mazorski v Albright Brown J said:
[26] ………I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible in their best interests, substantial and significant.
50.Given the child is six and a half years of age and has a close relationship with the father I am satisfied she would be able to maintain a close relationship with him if she saw him for extended periods of time during the school holidays. If she was much younger or had not already established the close relationship this might not be possible. The solicitor for the father argued that:“If it isn’t broken don’t fix it” in relation to the child’s relationship with him. Whilst there is always merit in taking such a conservative approach and there will be times when such an approach outweighs all other considerations the court must consider the child’s best interests in the context of the parent’s circumstances including their legitimate interests and desires.
51.The father was concerned that the mother may not be willing to promote the relationship between him and the child especially if she is living interstate. I saw no evidence to warrant such a finding although I accept the father honestly holds that view no doubt formed in the context of his separation from the mother.
52.When I weigh all of these considerations I am satisfied that the child is likely to maintain her relationship with her father under either proposal albeit if the mother’s proposal is adopted the time the child spends with the father will by necessity take on a different form.
(original emphasis) (footnotes omitted)
Considerable attention was given to s 60CC(3)(e) being the practical difficulty and expense of a child spending time with and communicating with a parent. The Federal Magistrate described this as “a significant issue” (paragraph 56).
Based on the proposals of the parties and the distances involved the alternatives were that the child remain where she was in [T], which the Federal Magistrate said was one hour and 20 minutes away from the father’s residence or on the mother’s proposal 1,500 kilometres apart.
The Federal Magistrate discussed the various methods of transport and its associated cost. In an important finding in this matter his Honour said:
59.Although the mother’s proposal raises the significant practical considerations I am not satisfied they are insurmountable such that the child would not be able to spend time with the father on a sufficient regularity to maintain her relationship with him. Having said that the father’s proposal would not see any change in the current circumstances and the weighing of the two proposals in this context would see the father’s proposal as the preferable one.
The Federal Magistrate found that the child was safe in either household and that both parties were able to meet her needs. Not surprisingly, in the absence of allegations about either party’s ability to care for the child or other concerns, neither party sought that a family report be prepared. This decision was consistent with a memo from a Family Consultant dated 1 November 2010 where it was recommended that further dispute resolution was unlikely to assist the parties and that “a judicial decision be made as soon as possible”.
After referring to the therapeutic assistance the mother had been receiving from Ms J, the Federal Magistrate found he was “satisfied the mother is likely to benefit emotionally if she was to live with her mother and accordingly she will be in a better position to parent the child without the added burden of these stressors”.
The principal reasons the Federal Magistrate made the orders are revealed in the following paragraphs:
67.Relocation cases are often difficult cases to determine. This case is no exception. The father is most concerned his relationship with his daughter will be adversely affected by any move further away. His view is understandable and legitimate. The mother wishes to be able to support her mother as her health deteriorates as well as being in a position to be able to financially support the child through full time employment. Her position is also understandable and legitimate. Ultimately my decision must be based on the best interests of the child.
68.Turning to the issue of the child spending substantial and significant time with the parents, I find that it would be in her best interests to do so. She has a close and loving relationship with them both. They both have lots to offer her. By living in the relative close proximity to each other that the current circumstances allow, substantial and significant time is more achievable than it would be if the child was to live in [B].
69.A child is taken to spend substantial and significant time with a parent if they not only spend weekend and holiday times with that parent but also other times, and the times enable the parent to be involved in the child’s daily routine and special occasions and events for both child and parent. The mother’s proposal could not be said to be one providing substantial and significant time between the father and child. The current arrangements might be said to be closer to that definition although given the distance between [A] and [T] it is difficult for the father to be involved in the child’s daily routine. Although I have found it to be in the child’s best interests to spend significant and substantial time with both parents I find it is not reasonably practicable in the circumstances especially if the mother’s proposal is adopted.
70.I find that the child’s best interests would be served if she continues to live primarily with her mother. I am also satisfied the mother would be relieved of stress if she was living with her mother and working in permanent employment. Such relief would be of great assistance in her parenting of the child which would have a flow on benefit to the child. The child would also benefit from developing a closer relationship with her maternal grandparents if she and the mother were able to live with them in [B] The child’s relationship with the father should be able to be sustained given her age and development and the current strength of that relationship. The practical difficulties in moving the child between the two homes whilst significant can be overcome as the mother is confident of assistance from her family. When I weigh all of these considerations I am persuaded it would be in the child’s best interests to live with her mother in [B].
71.I am persuaded the child should spend extended block periods of time with the father during the school holidays as well as mid term weekend. The mid term weekend would need to take place in Melbourne or another place close to [B] so that the child is not burdened with significant travel for only a short period of time with her father. I propose to order the father be responsible for the costs of transporting himself to Melbourne and the mother is to ensure the child is delivered to the father and collected from him at her expense.
72.I am persuaded the child should spend virtually all of the holiday time with the father at the ends of terms one and three and for 10 days at the end of term two. Ordinarily a child should spend holiday time with their primary carer as well as their other parent but in the circumstances of this case I am persuaded the child’s best interests require her to spend as much time with her father as can be realistically arranged. The evidence of [Ms C] was that she would not require the mother to work on weekends so the child would benefit from spending regular time with her mother then. In relation to the Christmas school holidays I am persuaded they should be split equally to enable the child to have block holidays with each parent. The costs associated with school holidays should be met by the mother paying for any transport from [B] to Sydney and return and the father paying for the costs of any transport from Sydney to [A] and return.
The Appeal
Submissions of the father
It is not suggested that the Federal Magistrate mistook the facts nor misstated the law, but that he failed to properly apply the principles in s 60B of the Act and did not properly consider the father’s case.
At the commencement of the father’s written submissions, a summary of the primary issues said to have been raised before the Federal Magistrate was provided:
The primary issues between the parties, as identified in their respective Application and Amended Response, were as follows:-
(a)Whether the child should relocate with the Mother;
(b)If the child was to relocate, what time arrangements should be in place between the child and the Father;
(c)If the relocation was not permitted, whether the Orders of 28 May 2008 (“the 2008 Orders”) should be varied to increase the Father’s time with the child; and/or
(d)If the relocation was not permitted, whether the child should predominantly live with the Father.
It was submitted that although the Federal Magistrate summarised the proposals of both the father and the mother, his Honour failed to indentify in his summary of issues at paragraph 10 of the reasons, “the consideration of the child living with the father and the impact that such an arrangement would have on the child”.
Ground 1: Failing to consider or apply the objects and principles of s 60B of the Family Law Act 1975 (Cth) (“the Act”)
It was submitted on behalf of the father that the Federal Magistrate did not consider the impact of the orders in light of the objects of Part VII of the Act. In particular, the child’s right to spend time with her father on a regular basis and for the parties to share jointly in their duties and responsibilities in caring for the child.
It was said in the father’s written submissions:
Having regard to the background of the parties and the child leading up the trial (sic), together with the evidence of the Mother as to (sic) current well-being of the child and the nature of the relationship between the child and the Father, it cannot be said that the learned Federal Magistrate duly and properly considered the objects of the Act when considering all relevant factors and ultimately being persuaded that the relocation was in the best interests of the child…
We have referred at some length and quoted parts of the reasons of the Federal Magistrate. It is clear to us that the Federal Magistrate properly considered the relevant provisions of the Act.
Grounds 2: Failing to make orders that provided for the child to spend substantial and significant time with the father
Ground 3: Failing to consider or adequately consider s 60CC(3)(e) of the Act in respect of ensuring that the child would be able to spend substantial and significant time with the father
Counsel for the father submitted that in circumstances where the Federal Magistrate made a positive finding that it was in the child’s best interest to spend substantial and significant time with the father it was then not open to his Honour to make orders inconsistent or contrary to the best interests of the child.
It was also explained that even if the orders could be described as providing for substantial and significant time, the financial circumstances of the parties were that “neither of the parties [have] the capacity to sustain the costs of travel associated with the Mother’s proposal on anything other than a short term basis”. In oral submissions it was said that the orders were not realistic or sustainable.
In relation to the alleged inconsistency between his Honour’s finding and the ultimate orders, the simple answer is that although the ideal is to put in place orders that will provide substantial and significant time, the practical ramifications may make that impossible. As can be seen from paragraphs 68 and 69 of his Honour’s reasons for judgment that was his Honour’s conclusion.
In relation to the submission that the orders were unsustainable, we have not been taken to anything that persuades us that his Honour erred in proceeding on the basis that the parties would not be able to carry out these orders in the interests of their child. Indeed his Honour said this at paragraph 59 of his reasons:
Although the mother’s proposal raises significant practical considerations I am not satisfied that they are insurmountable such that the child would not be able to spend time with the father on a sufficient regularity to maintain her relationship with him.
We also observe that the maternal grandmother gave evidence that she would continue to provide financial support to the mother, and that evidence was not challenged.
Ground 4: Placing the mother’s and the maternal grandmother’s needs above those of the child
In considering this ground it is necessary to refer to the reasons of the Federal Magistrate where he considered the mother’s proposal:
17.The mother wishes to be there to provide that assistance. She would like to live on the family property which is a farm of some 1,780 acres with another 1,100 acres leased. Her father and brother work the farm. The maternal grandmother’s evidence was that the mother and child could live in their home rent free. The maternal grandmother’s evidence, which I accept, was that she is experiencing trouble doing common housework tasks and would like the assistance of her daughter both physically and emotionally. She said she has some good days but there are other days when she is just unable to do housework.
18.The mother’s proposal would not see her being present with her mother full time as she has a job offer at a … store in [B]. [Ms C], the proprietor of that store gave evidence of needing assistance in the store as her husband has cancer requiring her to be away from the business at times. She had difficulty finding someone suitable until she interviewed the mother. She was aware of the maternal grandmother’s health and that there may be times when the mother would need to provide assistance to her mother.
19.The mother has not had full time permanent employment since she relocated to the [T] area in 2008. She has been assisted in finding work through her case worker at Jobs Australia, [Ms D]. [Ms D] was not required for cross-examination. She gave evidence of the mother being proactive and diligent in seeking employment and completing courses but being only able to obtain short term casual contract work. Although she has been able to work for a significant period in 2010 I am satisfied the job offer in [B] would provide the mother with full time permanent employment and place her in a better financial position than she currently experiences. This is especially so given she will be able to live rent free on her family’s property. In making that finding I have taken into account the financial support the mother’s family have given her since separation and are likely to continue to do so whether she is living in [T] or [B].
20.The father has not been paying sufficient child support however I am satisfied he has tried to remedy that with the Child Support Agency.
21.A significant aspect of the mother’s case is her need for emotional support from her family. She said she feels lonely and isolated in [T]. She has no family ties in the area although she has had a good relationship with the paternal grandmother until recent times. The mother says she is sad that she is not able to be closer to her mother to support her through her illness. The mother has been seeing psychologist, [Ms J] since February 2010. [Ms J] was of the view that the mother has experienced situational stress which is unlikely to lessen unless she is living closer to her mother. Her opinion was formed solely on the mother’s self report and her observations of the mother. She did not consider the mother to be suffering from depression as defined in the DSMIV but has suffered from depressed moods. She did not consider the mother to be embellishing her symptoms in any way as she has seen a consistent presentation through out nine sessions. I find that the mother has found life in [T] isolating since her separation from the father. Despite not living with her parents since she was around 16 years of age she is seeking emotional support from them and also to provide emotional and physical support to her mother. There is no evidence the mother’s ability to parent the child is currently compromised. However I find that the mother’s emotional welfare would improve if she was living with her parents and working full time. This would have a positive flow on effect for her parenting of the child.
It was submitted that “[a]ll of those reasons centre around the interests of the mother and the maternal grandmother” and that the evidence relied on by the mother to provide a basis for the reasons for her wanting to relocate “was largely without foundation and/or lacking in certainty”. We have referred earlier in this judgment to the evidence about the grandmother’s health, the mother’s emotional well being and her employment prospects. In our view that evidence was clear and convincing.
It was also said that there was no evidence that the maternal grandfather or the maternal aunt were unable to provide the necessary assistance to the maternal grandmother in her household duties and general care. The father had always agreed that the mother and child could visit the maternal grandmother and that as this assistance could continue there was no proper basis to allow the mother’s relocation with the child.
We were referred to the evidence of the maternal grandmother as to the availability of her husband, her son and the maternal aunt to assist her, and as the mother’s counsel pointed out there was no challenge to this evidence. Thus there is no merit in this complaint.
It was also apparent from the medical evidence and the evidence of the assistance that the maternal grandmother required that the proposal of the mother and child visiting her when necessary was not a viable option. In any event, it is plain that such an arrangement would affect the child adversely. For example, it would create difficulties with her schooling.
It was submitted that his Honour placed greater weight on the child’s relationship with the maternal grandparents than with the father in circumstances where the child did not have a close relationship with her grandparents. Again, we are not persuaded that that was how his Honour approached that issue.
It was accepted in making the submissions connected with grounds 4 and 5 that they are a challenge to the exercise of the discretion of the Federal Magistrate and that the limits on appellate interference with such a judgment must be recognised. Reference was made to CDJ v VAJ (1998) 197 CLR 172.
In part that concession also provides an answer to these grounds. In our view, the reasons of the Federal Magistrate reveal that the focus was primarily on the best interests of the child, as those interests were connected with the important adults in her life.
Ground 5: Placing greater weight on his own assumptions rather than the evidence
In asserting this error the assumptions identified by counsel for the father are:
a.That the child does not have a close relationship with the maternal grandparents as a result of not having lived in close proximity to them – paragraph 45;
b.That the child’s relationship with the father, taking a different form upon the relocation occurring, is in the best interests of the child – paragraph 52;
c.That the practical difficulties as to travel and cost between the parties’ respective homes were not insurmountable – paragraph 59; and
d.That her mother was suffering in her parenting whilst living in [T].
It was submitted that the Federal Magistrate did not evaluate the competing evidence in relation to the assumptions made. Consequently, it was said “that by forming these assumptions, absent evidence to support same, and then relying on them in determining what was in the best interests of the child, was erroneous.”
As part of the task of determining this matter and making final orders, the Federal Magistrate decided a number of factual issues. We do not see that these were assumptions but rather conclusions open to his Honour on the evidence.
Ground 6: Finding that the mother would “be in a better position to parent the child” if she were allowed to relocate with the child
It was submitted that the Federal Magistrate made a positive finding, absent evidence to support same, that “…the mother is likely to benefit emotionally if she was to live with her mother and accordingly she will be in a better position to parent the child without the added burden of these stressors”.
Counsel for the father submitted that no consideration was given to the impact on the child and/or the mother, of the mother’s proposal to live with the maternal grandmother.
Further, it was submitted that there was no evidence which suggested that the mother’s parenting of the child in [T] was compromised in any way as a result of the maternal grandmother’s health.
In concluding the written submissions on this ground it was said:
The evidence adduced by the mother as to the child’s stability, level of adjustment and performance and acceptance at school suggests that a move to [B] was not in her best interests and did not support the finding his Honour made as to the benefits to the mother’s parenting.
These submissions ignore the evidence of Ms J as to the mother’s emotional state. It was not necessary for his Honour to find that the current living circumstances of the mother were intolerable.
Ground 7: Failing to adequately consider whether the orders were reasonably practical
Counsel for the father explained that it was an agreed fact that should the mother be allowed to relocate, the travel associated with the child spending time with the father would be “problematic, expensive, lengthy in time and difficult”.
It was submitted that the Federal Magistrate erred in not properly considering “the impact on the child of the tyranny of distance between the parties’ homes”, particularly travelling on a continual basis.
It is clear from the reasons and the orders that the Federal Magistrate was mindful of the impact of the travelling. It can also be seen that the orders place a burden on both parents in this respect.
Ground 8: Failing to consider and make findings as to the benefits to the child of the father’s proposal that the child lives with him
It was submitted that the father’s alternative proposal was properly placed before the court and therefore should have been considered.
It was said in the father’s written submissions:
52.Despite the mother’s evidence that she would not relocate without the child, it was still incumbent upon his Honour to consider the Father’s alternate proposal.
53.Furthermore, his Honour, not being bound by the proposals of the parties, failed to consider any other proposal in light of the mother’s relocation.
The submissions of counsel for the mother to which we will refer provide the answer to this complaint. The case as presented to the Federal Magistrate was that the mother be permitted to relocate with the child to B or she would remain where she was living.
In response to the submission that the Federal Magistrate failed to consider the option of the child living with the father it can be seen from the transcript that the father did not vigorously pursue such an option. His employment was full time and little detail was given as to how he would care for the child.
It is the submission of the mother that as there was no final submissions to the Federal Magistrate on behalf of the father that the child live with him, the Federal Magistrate was relieved from a detailed consideration of the application of the father in terms of Part VII of the Act. It is said however that the Federal Magistrate did consider all the relevant provisions of Part VII.
Counsel submitted that the father produced no evidence that would have enabled the Federal Magistrate to assess his application that the child live with him. Reference was made to two paragraphs in the father’s affidavit filed 20 December 2010:
31.I say that should [the child] come to live with me I will enrol her at the [D] Primary School which is a public school. I have yet to make enquiries regarding the availability of places at the school. Unfortunately the school is now on holidays and I will do so at the earliest opportunity.
32.I say that [the child] is good friends with [A] and [M] … in [A]. [A] is 6 years of ages and [M] is about 3 years of age. We often spend half a day a [C]’s ([A] and [M]’s Mother) as the girls love playing together. [The child] will often ask; “Can we go to [C]’s”. They have a swing set at [A]’s which they often play on together. They love to play in the outdoor cubby house; they often play with the tea set and play with the dolls in [A]’s bedroom. (original emphasis)
As explained no submissions were made in relation to the father’s application and no cross examination on behalf of the father was directed to this proposal. It was said that the only reference can be found during the following exchange where the father was cross examined by Mr Kelly, the mother’s solicitor:
MR KELLY: Have you given any thought to the effects on [the mother’s] parenting if she feels trapped in [T]?
FATHER: I don’t understand.
MR KELLY: Well, do you think – have you given any thought to any possible impacts on [the mother’s] parenting if she is feeling trapped living in [T]?
FATHER: If she’s having trouble parenting, I’m quite happy to look after [the child] for a while.
MR KELLY: You would agree with me that [the mother] has done well in facilitating a good relationship between you and [the child]?
FATHER: How do you mean, “She’s done well”? I stopped her from moving to Victoria so I could have a decent relationship with my daughter. She didn’t want to, she was forced to stay.
HIS HONOUR: Putting aside for a moment where both of you and the mother live, you recall I made orders a couple of years ago – probably two and a half years ago now. Since that time you haven’t had any difficulty with the mother ensuring that [the child] goes to see you?
FATHER: No.
(our emphasis)
In relation to this evidence we observe that even if the father cared for the child for a short period it would necessitate changing schools. In addition, as correctly submitted by counsel for the mother, the grandmother’s medical condition is not a short term problem capable of assistance by the mother for a term of weeks and then to return to normal living circumstances.
Further, it was correctly submitted that the father did not seek a family report or other evidence supporting the father’s proposal that the child living with him could be an acceptable alternative.
Counsel for the mother correctly submitted that the father failed to demonstrate an appellable error.
Conclusion
In our view the Federal Magistrate appreciated and considered the competing cases of the parents.
It is clear from the paragraphs we have quoted that the Federal Magistrate considered that ideally the child should have substantial and significant time with the father. However, it was simply not reasonably practical.
Although substantial and significant time would not be possible, the Federal Magistrate accepted that the mother’s proposal accorded with the child’s best interests. This primarily was because of the nature of the relationship between the mother and the child, the need for the mother to have stability both financially and emotionally and the mother’s reasonable wish to assist her critically ill mother.
It has not been demonstrated that the Federal Magistrate made an error in the application of the provisions of the Act nor by reference to established principles in reaching the conclusions on the evidence and making the orders.
Costs
At the conclusion of the appeal submissions as to costs were heard.
As we have determined that the appeal should be dismissed and as counsel for the mother asked for costs we will consider whether there are circumstances which would justify such an order being made.
The mother asks for costs as the appeal was wholly unsuccessful.
The legal expenses of resisting the appeal have been met by the mother’s parents as she has no assets and an income of $500.00 per week net. The mother pays board of $150.00 per week.
The father’s counsel resisted an order for costs on the basis that the father’s financial circumstances are poor and the high cost of facilitating the time spent with the child in accordance with the order. As to the second of those matters it can be seen that the costs associated with the child moving between the parents is also borne by the mother.
We were informed that the father’s annual income is $35,000.00 per annum or $700.00 per week. He pays $220.00 per week in rent and $40.00 per week to the Child Support Agency for this child and an older child from another relationship.
Although the father has no assets and it cannot immediately be seen how he would meet an order for costs, the costs of the appeal to the mother met by her parents is no doubt substantial. The father has been entirely unsuccessful on appeal. Although there were some matters which Mr Dura urged upon us, ultimately this is an appeal from a discretionary judgment and the reasons of the Federal Magistrate were soundly based.
In this case there are circumstances which would justify an order that the father pay the mother’s costs. Despite the father’s financial circumstances, an order for costs should be made.
I certify that the preceding eighty seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, May & Strickland JJ) delivered on 30 September 2011.
Associate:
Date: 30 September 2011
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