Panneton & Delauder
[2021] FamCAFC 102
•25 June 2021
FAMILY COURT OF AUSTRALIA
Panneton & Delauder [2021] FamCAFC 102
Appeal from: Panneton & Delauder [2020] FCCA 3137 Appeal number(s): NOA 86 of 2020 File number(s): BRC 10322 of 2018 Judgment of: STRICKLAND, WATTS & TREE JJ Date of judgment: 25 June 2021 Catchwords: FAMILY LAW – APPEAL – INTERNATIONAL RELOCATION – Appeal from final parenting orders permitting the mother to relocate with the child to the United States of America – Inadequacy of reasons – Where the primary judge made premature determinations before an adequate consideration of relevant matters – Where the primary judge’s findings on issues are inconsistently expressed – Failure to consider the reasonable practicability of the child spending substantial and significant time with the father if the child was permitted to relocate – Justice not seen to have been done – Appeal allowed and orders set aside – Costs certificates issued to each party. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60CC, 65DAA, 65DAC
Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court, 12 April 2013, cl 2
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
House v The King (1936) 55 CLR 499; [1936] HCA 40
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Re K (1994) FLC 92-461; [1994] FamCA 21
Sun Alliance Insurance Ltd v Massoud (1989) VR 8
Division: Appeal Division Number of paragraphs: 64 Date of hearing: 12 May 2021 Place: Heard in Brisbane, delivered in Cairns Counsel for the Appellant: Mr Linklater-Steele Solicitor for the Appellant: Naughton McCarthy Family Lawyers Counsel for the Respondent: Mr Drysdale Solicitor for the Respondent: Hopgood Ganim Lawyers ORDERS
NOA 86 of 2020
BRC 10322 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR PANNETON
Appellant
AND: MS DELAUDER
Respondent
ORDER MADE BY:
STRICKLAND, WATTS & TREE JJ
DATE OF ORDER:
25 JUNE 2021
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders made by the primary judge on 18 November 2020 be set aside.
3.The matter be remitted to the Federal Circuit Court of Australia before a judge other than the primary judge for arrangements (including any consideration of transfer to the Family Court of Australia) to be made for its rehearing.
4.The Court grants to the appellant a costs certificate pursuant to 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 in respect of the costs incurred by the appellant in relation to the appeal.
5.The Court grants to the respondent a costs certificate pursuant to 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 in respect of the costs incurred by the respondent in relation to the appeal.
6.The Court grants to the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to them in respect of the costs incurred in relation to the re-hearing.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Panneton & Delauder has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, WATTS & TREE JJ:
INTRODUCTION
By his Amended Notice of Appeal filed on 11 March 2021, Mr Panneton (“the father”) appeals from final parenting orders made in the Federal Circuit Court of Australia on 18 November 2020. Those orders provide, inter alia, for Ms Delauder (“the mother”) to relocate with the presently four year old child of the parties, X born in 2016 (“the child”) to the United States of America (“USA”) on and from 19 December 2021. Prior to then, the child is to live with the mother in Brisbane and spend substantial and significant time with the father. Upon relocating, the child is to spend block periods of time with the father during school holidays in either the USA, Brisbane or the United Kingdom, and up to three or four blocks of time during school terms in the USA.
Final property settlement orders were also made by the primary judge on 18 November 2020, however those orders are not the subject of appeal.
The mother resists the appeal, however for the reasons which follow, the appeal must succeed.
BACKGROUND
The father was born in 1981 in the United Kingdom and is presently 40 years of age. He is a permanent resident of Australia.
The mother was born in 1985 in the USA and is presently 36 years of age. She currently resides in Australia under a Temporary Skill Shortage Visa.
The parties commenced living together in October 2014 in Brisbane, and separated on a final basis in May 2018. Following separation, the then 17 month old child remained living with the mother, and spent periods of unsupervised day time with the father.
Between 7 June 2018 and 20 June 2018, with the father’s consent, the mother and child travelled to the USA to spend time with her family. Upon the mother and child’s return, it appears the mother applied for a protection order in July 2018, as did the father, which resulted in cross protection orders being made in relation to both parties.
The child did not spend any time with the father between 6 June 2018 and 11 November 2018.
On 7 September 2018, the father instituted parenting proceedings in the Federal Circuit Court of Australia.
Two family reports have been completed for the purpose of the proceedings; the first in November 2018 and the second in July 2019. The mother’s application for relocation was not before the Court prior to the first family report, and that proposal is only canvassed in the second updating family report.
Since the proceedings commenced, the child’s time with the father has gradually increased, however it has not been without difficulties and limitations as a result of the parental conflict, allegations of family violence and the mother’s concerns relating to the father’s capacity to parent. By the time of trial before the primary judge, the child was spending time with the father each weekend from Sunday morning to Monday morning, and each Tuesday evening.
As outlined by the primary judge, the father’s proposal at trial was for the child to remain living in Australia and that his time with the child would incrementally increase, such that by September 2021, the child would be living in a week about arrangement between the parents.
The mother sought that she be permitted to relocate with the child to the USA on and from 19 December 2021, and sought orders for the child to spend time with the father at times consistent with the orders that the primary judge ultimately made. In the event the mother was not permitted to relocate, she sought orders that the child live with her in Brisbane and spend gradually increasing time with the father ultimately, culminating in five nights per fortnight and half of the school holidays.
THE PRIMARY JUDGE’S REASONS
The primary judge commenced his reasons for judgment with an introduction, an outline of the issues requiring determination and a recital of the material each party relied upon. His Honour then set out the law to be applied in such a parenting case, and referred to what the Full Court has said applies to relocation cases, namely, that the relocation aspect must not be dealt with as a separate issue and the Court is still bound by the legislative pathway contained in Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
Thereafter, under the heading “Consideration and Findings”, the primary judge discussed the “Primary considerations” pursuant to s 60CC(2) of the Act.
Although acknowledging that the mother has not always supported the relationship between the father and child, his Honour concluded that the mother’s view has evolved over time, and now is that it is in the child’s best interests to have a meaningful relationship with both his parents. In relation to the second limb of s 60CC(2), the primary judge was satisfied that the family violence during the relationship was limited to “situational couple violence”, and that the child was not in need of protection as a result. Further, in relation to the mother’s allegations of the father’s drug use, his Honour was not satisfied that the child has ever been neglected by his father, and thus the father does not present a risk to the child in this respect (at [67]).
Under the heading “Additional Consideration[s]”, the primary judge addressed the factors under s 60CC(3) of the Act. Within that discussion, after finding that a shared care parenting arrangement would not be in the child’s best interests due to the parental conflict, his Honour opined that “there would be a benefit to the child in remaining in Australia in spending substantial and significant time with his father provided that to remain in Australia the mother’s ability to parent was not compromised” (at [93]).
The mother’s anxiety and ability to parent were then discussed, including by reference to a medico-legal report the mother obtained for the purpose of the proceedings. The primary judge ultimately gave weight to the opinions of the author of that report, and found that the mother’s anxiety levels would diminish if she were living in the USA, supported by her parents and having less dealings with the father (at [105]).
In discussing the prospect of the father moving to the USA, his Honour said this:
107The other important aspect when considering likely effect of any change is whether the father has the ability to move to the [USA].
108He was asked on a number of occasions under cross-examination whether he would move and he repeatedly stated that he would have to “cross that bridge” in the future and that he would like to discuss any move with the mother.
109Currently the father is engaged in primary industry. He has a good deal of experience within the industry. His evidence is that he has great potential in his current project in Australia.
110The mother gives evidence as to how she suggests the father could move to the [USA]. It would require a change to work within his industry. There is no evidence that the father has any experience in that aspect of the industry.
111The mother is also of the view that the father would likely gain permanent residency. I am not satisfied that there is any foundation for that view. Accordingly I cannot make that finding.
112The father makes no proposal in relation to his time with the child in the event the mother is permitted to relocate [to the USA]. His evidence is clear however that he wants to spend as much time as possible with the child whether the child lives in the [USA] or remains in Australia.
113When it was put to him that spending as much time as possible with the child would include him moving to the [USA] the father responded that he would like to discuss this with the mother. The father gave evidence that he had concerns that if he moved and could not find work then he would not be able to support his son.
114I am satisfied on the evidence that the father is committed to spending as much time as possible with this child and that he would make any and all attempts necessary to remain living in close proximity to the child in order to fulfil this commitment.
115I am not satisfied on the evidence that the father would not move to the [USA]. His answers in cross-examination were consistent in my view with a finding that he would move and that when the time came he would discuss such a move with the mother.
116HAVING MADE THOSE FINDINGS I am satisfied that the mother's proposal to relocate to the [USA] although having some disadvantages to the child is nevertheless the proposal that would meet the best interests of the child.
(Emphasis and Capitalisation added)
The primary judge went on further to say of the arrangements for the child spending time with each parent:
117I am not satisfied that it is in this child’s best interests for there to be an equal time arrangement. I am also not satisfied that it is in this child’s best interests for there to be substantial and significant time between he and his father in Australia in circumstances where that time would be impacted upon the ongoing level of anxiousness present in the mother.
118I am satisfied that the mother would become less anxious in her dealings with the father, even if he were to move to the [USA], because she would have the benefit of close family supporting her on a day-to-day basis.
Notwithstanding the determination of the mother’s relocation proposal in [116], the primary judge thereafter continued to address the remaining s 60CC(3) factors, including the practical difficulties of each parties’ proposal, the parties’ capacity to parent, the proposal least likely to lead to further litigation, and, significantly, the mother’s likely facilitation of the relationship between the father and the child.
The primary judge then addressed the issues of parental responsibility and s 65DAA of the Act. Although his Honour ultimately determined that the parents should exercise equal shared parental responsibility under the orders, in the event the father fails to make a genuine attempt to come to a joint decision with the mother, the mother is at liberty to make a sole decision. Whilst not raised directly in the appeal, we must express doubt that such an order in fact establishes equal shared parental responsibility (see s 65DAC(2) of the Act).
His Honour then finds that, due to the parental conflict, it would not be in the child’s best interests to spend equal time with each parent (at [152]). This same finding was, of course, first made earlier at [117].
As to substantial and significant time, and in concluding his Honour’s reasons as to the parenting orders ultimately made, he said:
155[The Family Report Writer] supports an arrangement whereby this child would be spending substantial and significant time with both of his parents, living with his mother and spending time with his father.
156As I said previously I am satisfied that such an arrangement is in the best interests of this child. I am satisfied on the evidence that the mother’s capacity to support such an arrangement if she were to remain in Australia is impaired and that this would have a negative effect on the child.
157With appropriate support, a strengthened financial position and less anxiety the mother could no doubt support such an arrangement in the future. I am satisfied that the mother would be better supported and have a strengthened financial position if she were to live in the [USA] and in those circumstances should the father move to the [USA] I am satisfied that it is in the child’s best interests for him to spend substantial and significant time up to and including five nights per fortnight and half holiday time with the father. Indeed the mother gave evidence that she would support such an arrangement in the event the father moved to the [USA] with sufficient proximity to the child’s residence.
158In my view such an arrangement would be reasonably practicable in the [USA] but not in Australia. In Australia the arrangement would be negatively impacted upon the continued anxiety the mother would suffer due to her lack of support, more strained financial position and the overall unhappiness in Australia.
159With appropriate familial support I am satisfied that the mother’s overall anxiety would reduce and as a result the parent’s ability to communicate would be positively affected such that a substantial and significant involvement in the child’s life by the father would be reasonably practicable.
160For these reasons I am satisfied that the orders the mother seeks at annexure A to her case outline filed on 18 May 2020 in relation to her permitted relocation to the [USA] are in the best interests of the child.
(Emphasis added)
THE APPEAL
At the outset, it is useful to restate the relevant principles which govern appeals from discretionary judgments. Particularly, it is well settled that error of the type identified in House v The King (1936) 55 CLR 499 at 504–505 must be established. There, the majority of the High Court said:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
This appeal principally challenges the adequacy of the primary judge’s reasons. In Bennett and Bennett (1991) FLC 92-191, the Full Court adopted the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud (1989) VR 8 (“Sun Alliance”) as to when reasons will be adequate:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:
(a)The appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) Justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
The reasons must enable the parties to understand the basis of the primary judge’s decision and the extent to which the parties’ arguments have been accepted (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]–[59]).
The grounds of appeal are numerous, particularly given that each ground contains many sub-grounds, albeit often cast in the form of contentions. However as shall be seen, we only need address several of the themes raised by them, and it would be unhelpful to consider all of the grounds seriatim.
Premature determination of issues – Ground 1
A fundamental difficulty with the judgment arises from its structure. Particularly, as we have already observed, the primary judge determined the question of relocation at [116], whilst midway through a traverse of the s 60CC(3) additional considerations. Significantly, no advertence to a most significant consideration, namely whether the mother would facilitate a relationship between the father and child, preceded that conclusion, but rather that factor is only addressed later at [134]–[135].
In a similar vein, at [144] the primary judge said:
144.As a result of the orders I have made the child will predominantly live with his mother. Whilst I accept that both the mother and father are desirous of improving their co-parenting relationship the evidence as it currently stands does not give me much confidence that they will not fall into dispute again [sic] the future.
(Emphasis added)
It is again troubling that this conclusion precedes the primary judge’s consideration of parental responsibility, and hence the application of s 65DAA (as indeed did the determination in relation to relocation at [116]). Moreover, notwithstanding the determination that the child should primarily live with the mother, the primary judge then went on to consider whether the child should live on an equal shared care basis (at [149]–[154]), before considering the proposal for substantial and significant time (at [155]–[159]).
It is perplexing why, having already determined that the child should primarily live with the mother, his Honour then addressed matters relevant to that determination, and more, did so having already determined the issue of relocation favourably to the mother.
The mother’s suggestion that we should, in effect, unscramble the omelette, and read the judgment so that the relevant determinations appear at the conclusion of the reasoning which should pertain to them, cannot dispel the clear impression that the conclusions at [116] and [144] were made before a consideration of all of the relevant factors. Particularly, the fact that [116] explicitly refers to “those” findings, logically being the ones made in [107]–[115], makes it impossible to construe it as necessarily incorporating later findings relevant to the issue. We are mindful that we should not be overly pernickety, and should take the reasons as a whole, but even cognisant of those exhortations, we cannot see how the judgment can stand.
Here, although both limbs of Sun Alliance are engaged, it is the second limb which gives emphasis to the difficulty attending the reasons. Particularly, we are not satisfied that the reasons adequately demonstrate that justice is seen to have been done, in the form of an adequate consideration of relevant matters being undertaken before the particular determinations were made.
It follows that Ground 1 succeeds insofar as it raises challenges based upon the primary judge’s premature determination of matters.
Inconsistent findings re child’s best interests – Grounds 1 and 7
At [86] and [87] the primary judge said as follows:
86.The mother’s proposal in relation to the child’s time with the father should she remain living in Australia is consistent with the recommendations of [the Family Report Writer] in his second report. That is; the child would live with the mother predominantly and spend five nights per fortnight with the father and ultimately share holiday time between the parents.
87.I am persuaded by [the Family Report Writer’s] evidence and find that such an arrangement should the child remain in Australia would support a meaningful relationship with the father and would therefore be in his best interests as well.
(Emphasis added)
The primary judge reiterated that position at [155] and [156]:
155.[The Family Report Writer] supports an arrangement whereby this child would be spending substantial and significant time with both of his parents, living with his mother and spending time with his father.
156.As I said previously I am satisfied that such an arrangement is in the best interests of this child. I am satisfied on the evidence that the mother’s capacity to support such an arrangement if she were to remain in Australia is impaired and that this would have a negative effect on the child.
(Emphasis added)
However earlier at [117] the primary judge had contradictorily said:
117.I am not satisfied that it is in this child’s best interests for there to be an equal time arrangement. I am also not satisfied that it is in this child’s best interests for there to be substantial and significant time between he and his father in Australia in circumstances where that time would be impacted upon the ongoing level of anxiousness present in the mother.
(Emphasis added)
We cannot see how it is possible to reconcile [117] with what is said in [86], [87], [155] and [156].
Even if it might be thought the answer lay in the mother’s anxiety if required to remain in Australia, unfortunately there is further inconsistency in the primary judge’s reasons. Particularly at [124] his Honour said:
124.The father submits that there is no evidence to suggest that the mother has a limited capacity to care for the child for any reason but in particular due to any anxiety she may be suffering and I accept that.
(Emphasis added)
Contrary to that however, earlier at [106] the primary judge had said:
106.It is submitted on behalf [sic] the father that there is no evidence to suggest the mother is not coping as a parent currently in Australia. I accept that as a proposition however I also accept the mother’s own submissions where she states that she is able to effectively remain strong because there is a glimmer of hope she will be permitted to relocate [to the USA].
(Emphasis added)
Then at [117] recited in full above, the primary judge refers to the mother’s “anxiousness” potentially being “impacted upon” by the child spending substantial and significant time with the father in Australia.
These paragraphs are not susceptible of sensible reconciliation.
Finally, in this respect, we should note that the primary judge did not, in reaching his conclusions in relation to the mother’s anxiety in Australia, traverse her expert’s evidence if the mother remained in Brisbane, namely:
…If [the mother] is actively engaged in ongoing psychological therapy, and improves her communication with [the father], the prognosis for her mental health in the long term is favourable.
(Annexure “Ms S-3” to the affidavit of Ms S filed 8 May 2020, page 27)
That omission is significant because the primary judge appears to have generally treated the therapist’s evidence favourably (at [105]).
Thus in summary, the primary judge’s findings about where the child’s best interests lie are inconsistently expressed, as are his Honour’s conclusions about the mother’s capacity to cope with continued living in Australia.
Absent some coherent explanation as to how those inconsistent views were reconciled by the primary judge, the judgment is inadequate to enable us to ascertain the reasoning upon which the decision is based.
It follows that, insofar as they allege inconsistent findings, these grounds are established.
The reasonable practicability of substantial and significant time in the USA – Ground 10
There is further difficulty in understanding the primary judge’s reasoning in relation to permitting relocation. Particularly, and significantly, at [157]–[160] (which bear repeating notwithstanding we have already set them out) the primary judge said:
157.With appropriate support, a strengthened financial position and less anxiety the mother could no doubt support such an arrangement in the future. I am satisfied that the mother would be better supported and have a strengthened financial position if she were to live in the [USA] and in those circumstances should the father move to the [USA] I am satisfied that it is in the child’s best interests for him to spend substantial and significant time up to and including five nights per fortnight and half holiday time with the father. Indeed the mother gave evidence that she would support such an arrangement in the event the father moved to the [USA] with sufficient proximity to the child’s residence.
158.In my view such an arrangement would be reasonably practicable in the [USA] but not in Australia. In Australia the arrangement would be negatively impacted upon the continued anxiety the mother would suffer due to her lack of support, more strained financial position and the overall unhappiness in Australia.
159.With appropriate familial support I am satisfied that the mother’s overall anxiety would reduce and as a result the parent’s ability to communicate would be positively affected such that a substantial and significant involvement in the child’s life by the father would be reasonably practicable.
160.For these reasons I am satisfied that the orders the mother seeks at annexure A to her case outline filed on 18 May 2020 in relation to her permitted relocation to the [USA] of America are in the best interests of the child.
(Emphasis added)
We have already noted that this discussion is after the primary judge had already determined at [116] to permit the mother to relocate, as being in the best interests of the child, albeit in advance of a determination of where parental responsibility should lie, and any consideration of s 65DAA of the Act.
However for present purposes, we wish to focus on the finding that a substantial and significant time regime between the father and the child of up to five nights per fortnight, and half school holidays, was reasonably practicable in the USA.
Leaving aside the complete absence of evidence as to the likely proximity of the parties’ residences in the USA, there was a more fundamental difficulty in the conclusion of reasonable practicability, namely, whether the father could live and work in the USA at all. That is because at [109]–[111] the primary judge had said:
109Currently the father is engaged in primary industry. He has a good deal of experience within the industry. His evidence is that he has great potential in his current project in Australia.
110The mother gives evidence as to how she suggests the father could move to the [USA]. It would require a change to work within his industry. There is no evidence that the father has any experience in that aspect of the industry.
111The mother is also of the view that the father would likely gain permanent residency. I am not satisfied that there is any foundation for that view. Accordingly I cannot make that finding.
How, against that inability to make positive findings as to the father’s right to permanent residency in the USA, and his prospects of employment there, the conclusion that the child spending up to five nights a fortnight, and half school holidays, with the father in the USA was reasonably practicable, is impossible to discern. The reasons are manifestly deficient in that regard.
Finally, there is a further significant difficulty in understanding the primary judge’s reasoning, in that, even if the judgment were to be read as concluding that the child’s best interests lie in living with the mother in the USA, and spending up to five nights a fortnight and half school holiday time with the father there, in fact that was not what was ordered, even by way of an alternative. That is all the more curious given the primary judge’s apparent satisfaction that the father would relocate to the USA (at [115]).
True it is that the father did not deign to articulate a fall-back position to cover the eventuality of his relocation, but that did not preclude the primary judge from so ordering, albeit after affording appropriate procedural fairness to the parties.
However, as we say, the primary judge did not make orders for up to five nights a fortnight and half school holidays to cover the eventuality of the father relocating, but only made orders predicated on him remaining living in Australia. Hence, having initially concluded that the child spending five nights a fortnight with the father in Australia was in his best interests and then (contradictorily) concluded that the child spending a similar time arrangement with the father in the USA was in his best interests, the primary judge proceeded to then make orders which on no view afforded the father anything like a five night per fortnight and half school holidays regime with the child in either country.
One looks in vain for any reasoning in the judgment to support the conclusion that the orders as made are in the child’s best interests; true it is that there is the bald assertion in [160] that they are, but that immediately follows the conclusion that the child spending up to five nights a fortnight and half school holidays with the father in the USA, is both in the child’s best interests, and reasonably practicable.
Nowhere in the reasons is there any consideration of the mother’s actual proposal for the child to spend time with the father if she relocated; it is not assessed at all, whether from a best interests perspective, or whether it was reasonably practicable. The latter consideration necessarily was front and centre stage, in that whether the father could afford, and his employment permit, him spending long blocks of holiday time with the child, and several blocks of school term time with the child in the USA, must be doubtful. Moreover, given the primary judge’s view that his orders established equal shared parental responsibility, he was obliged to consider the reasonable practicability of the contemplated orders which potentially did afford a regime of substantial and significant time. He did not do so.
This ground therefore has merit.
Other Grounds
Given that, as has been seen, we are satisfied that the appeal must be allowed, it is unnecessary, and indeed not appropriate, for us to consider the remaining appeal grounds.
DISPOSITION OF APPEAL
The appeal will be allowed. In that event, the father ultimately sought that all the primary judge’s orders, not just those pertaining to relocation, be set aside, and the matter remitted for rehearing. We agree that this matter is not readily susceptible of partial remitter, and therefore will set aside all of the primary judge’s orders, so that the new judge may rehear the totality of the matter. The effect of that will be that the orders made on 13 December 2019, which provide for the child’s time with the father to be as agreed between the parties, will be operative. As the father indicated before us, if the parties cannot agree, then he will need to make a further application for interim orders pending the rehearing.
COSTS
In the event the appeal succeeded, both parties accepted that costs certificates covering the appeal and rehearing should issue. We agree, and will so order.
OTHER MATTERS
We should not allow the opportunity to comment on two matters to pass by without addressing them. The first is that, according to the Court’s Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court, cases involving international relocation of children should be dealt with by the Family Court of Australia (clause 2). Even given that the issue of international relocation only arose late in the litigation, it should nonetheless have then been transferred to the Family Court of Australia.
The second is that the complexity which attended this matter well and truly justified the appointment of an Independent Children's Lawyer, consistent with the Full Court’s decision of Re K (1994) FLC 92-461, particularly given the level of conflict between the parties, and the mother’s proposed permanent relocation of the child to the USA.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Watts & Tree. Associate:
Dated: 25 June 2021
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