Parks & Farmer
[2012] FamCAFC 12
•3 February 2012
FAMILY COURT OF AUSTRALIA
| PARKS & FARMER | [2012] FamCAFC 12 |
| FAMILY LAW – APPEAL – CHILDREN – Appeal against interim parenting orders made by a Federal Magistrate – Not established that the learned Federal Magistrate’s exercise of discretion miscarried – Appeal dismissed APPEAL ─ PRACTICE AND PROCEDURE ─ Change of venue ─ Not established that the learned Federal Magistrate’s exercise of discretion miscarried with respect to her Honour’s decision to transfer the proceedings ─ Appeal dismissed APPEAL ─ COSTS ─ Where the appeal was wholly unsuccessful ─ Where despite the absence of merit in the mother’s challenges, the utility of her appeal was always questionable ─ Where there was an absence of any evidence as to the financial circumstances of the parties ─ No order for costs made |
| Family Law Act 1975 (Cth) ss 60CC, 60I, 61B, 61C, 65DAA, Part VII |
| Bennett and Bennett (1991) FLC 92-191 Goode & Goode (2006) FLC 93-286 Gronow v Gronow (1979) 144 CLR 513 Morgan & Miles [2007] 38 Fam LR 275 MRR v GR (2010) 240 CLR 461 Norbis v Norbis (1986) 161 CLR 513 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 |
| APPELLANT: | Ms Parks |
| RESPONDENT: | Mr Farmer |
| FILE NUMBER: | DNC | 28 | of | 2009 |
| APPEAL NUMBER: | NOA | 45 | of | 2011 |
| DATE DELIVERED: | 3 February 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane by video link from Melbourne and Darwin |
| JUDGMENT OF: | Bryant CJ, Faulks DCJ & Coleman J |
| HEARING DATE: | 5 September 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 4 May 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 400 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Jodi Truman |
| SOLICITOR FOR THE APPELLANT: | Cecil Black Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Panayiota Karnis |
| SOLICITOR FOR THE RESPONDENT: | De Marco Lawyers |
Orders
That the appeal be dismissed.
That there be no order for costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Parks & Farmer has been approved by the Chief Justice 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: NOA 45 of 2011
File Number: DNC 28 of 2009
| Ms Parks |
Appellant
And
| Mr Farmer |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Notice of Appeal filed 1 June 2011 Ms Parks (“the mother”) challenged orders made by Federal Magistrate Turner in parenting proceedings between herself and Mr Farmer (“the father”) on 4 May 2011.
The orders of the learned Federal Magistrate provided that pending further order, the child of the parties T (“the child”) born in December 1999 live with the father in Melbourne and have telephone contact with the mother on the basis defined by her Honour’s orders. The further hearing of the parenting proceedings was transferred to the Federal Magistrates Court in Melbourne.
In lieu of the Federal Magistrate’s orders, the mother seeks that the child lives with her in Darwin, and spend each alternate weekend with the father, inferentially in the Darwin region. The mother sought that the parenting proceedings continue to be heard and determined in the Federal Magistrates Court at Darwin.
The father resisted the mother’s appeal and sought to maintain the orders of the learned Federal Magistrate.
MATERIAL FACTS
Some matters of background, which find expression in the Reasons for Judgment of the learned Federal Magistrate and are not controversial for present purposes, are instructive.
The mother was born in Darwin and is aged 31.
The father was born in Melbourne and is aged 35.
The parties’ commenced cohabitation in Melbourne in about 1998, married in 2004, separated in early 2008, and were divorced in March 2009.
At the commencement of cohabitation, the mother had a daughter of a previous relationship, S (“the child’s sibling”), who is presently aged 14 years.
In late 2007 or early 2008 the parties moved with the children to live in Darwin.
In November 2010 the child’s sibling moved to live with her father in Melbourne. Whether that was to be a temporary or long-term arrangement was controversial in the proceedings before the learned Federal Magistrate.
In February 2011 the father relocated to Melbourne with the child. That was without the consent of the mother.
On 3 March 2011 the mother commenced parenting proceedings in the Federal Magistrates Court at Darwin.
On 28 March 2011 parenting proceedings on an interim basis and the father’s application for a change of venue were heard.
In support of his contention that relocating the child’s residence to Melbourne was in the child’s best interests, the father relied upon his allegation of domestic violence by the mother, his allegations that he and the child were at risk of violence from the mother if they returned to Darwin, his allegations that the mother was mentally unstable and lacked the capacity to look after herself or the child, the fact that he had employment and family support in Melbourne, the fact that the child’s sibling was living in Melbourne, and the fact that the child was attending school in Melbourne and allegedly happy and settled there.
In support of her contention that the child’s best interests would be served by his returning to the Darwin area and residing with her, the mother asserted that she had been the child’s primary carer, that the child’s education had been disrupted, that she was concerned for the child’s safety whilst he was in the father’s care and that she has family support for the child in Darwin.
It is not in doubt that no oral evidence was given before the learned Federal Magistrate. No party was cross-examined in relation to any affidavits sworn and read in the proceedings. The learned Federal Magistrate concluded that the child the child’s best interests would be served by his continuing to reside with the father in Melbourne on an interim basis, and that the parenting proceedings should be heard there.
THE GROUNDS OF APPEAL
The appellant agitated nineteen grounds of appeal, some of them in groups.
Grounds 1 and 2 of the Notice of Appeal provided:
1.That her Honour erred in failing to consider the mother’s ability to relocate to Melbourne and the practical considerations associated with such move pending final hearing;
2.That her Honour erred in failing to consider the father’s ability to return to Darwin pending final hearing;
In support of these grounds, a number of submissions were made by reference to the authorities relating to the adequacy of judicial reasons for judgment (See Bennett and Bennett (1991) FLC 92-191 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247).
Ultimately, a number of discrete complaints were agitated in the context of these grounds. The matters complained of in support of the mother’s challenge to the adequacy of his Honour’s reasons do not establish that challenge. The reasons why we so conclude follow.
Nothing to which we have been referred suggests that the case was conducted other than on the basis that the competing proposals were: 1) that the child would live with the mother in Darwin, and see the father whilst he was living in the Darwin area or 2) the child would live with the father in Melbourne and, in the absence of any suggestion that the mother would relocate to Melbourne or travel to Melbourne to spend time with the child (and we have been referred to none), the child have telephone contact with the mother. The learned Federal Magistrate considered each of the options which were raised before her.
In the absence of any suggestion, and we have been referred to none, that there was any question of the mother relocating to Melbourne, or being able to do so, the learned Federal Magistrate had no reason to engage with that possibility in her reasons. It has not been suggested that the learned Federal Magistrate misunderstood the competing proposals of the parties. Nor is the path of her Honour’s reasons to her ultimate conclusion in relation to the competing proposals before her in doubt. Neither party adduced any evidence in relation to his or her ability to travel interstate. Thus there was no need, or ability to consider the options complained of.
It was further complained that the learned Federal Magistrate had failed to have regard to evidence before her as to the ability of the father to return to Darwin and the comparative inability of the mother to relocate to Melbourne.
It was thus submitted:
14.… that with such an application before her, and with consent to such relocation clearly being an issue between the parties, it was incumbent upon the learned Federal Magistrate to consider such an issue.
In what way the learned Federal Magistrate’s asserted failures were asserted to have vitiated the exercise of her discretion has not been identified or articulated. Nothing to which we have been referred establishes that the learned Federal Magistrate misconceived the issues before her. As her Honour clearly, and carefully, recognised, at various places in her judgment, her ability to make findings with respect to disputed issues of fact was quite limited.
We have not been referred to any submissions made to the learned Federal Magistrate in relation to the comparative ability of the parties to relocate. It is plain that the learned Federal Magistrate did not find that the father would be unable to relocate to Darwin if so doing was found to be in the child’s best interests. Nor did her Honour find that the mother could readily relocate to Melbourne, or travel there on any regular basis.
In the absence of these matters being asserted to have significance in the exercise of the learned Federal Magistrate’s discretion, or there having been any evidence before her to which regard could have been had, we do not understand any basis upon which her Honour can fairly be criticised for not having referred to them.
As the submissions on behalf of the mother acknowledged, the learned Federal Magistrate uncontroversially found that the child had a meaningful relationship with both parents.
The submission that the learned Federal Magistrate should have given consideration “to an alternative which would result in both parties being in the same location, thus allowing for the child to spend as much time with either party as possible, pending final hearing and determination of the myriad of issues that her Honour identified were unable to be determined at the interim stage” ignores the reality that the father did not suggest that it was realistically likely that the mother could relocate to Melbourne.
It is clear from the mother’s proposals before the learned Federal Magistrate, as her Honour recognised, that the mother’s proposals inferentially involved the father living in the Darwin area. The learned Federal Magistrate engaged with that proposal, and found that:
79.I find that I have insufficient evidence to be able to make a finding that any relationships have been impacted upon by the relocation, as I do not know what the true situation was with the relationship between the child and the mother and the child prior to relocation or the true situation was with the relationship between the child [sic] the father prior to relocation.
It was further submitted on behalf of the mother that:
17.Given this acknowledgement, it is submitted this further reinforced the necessity for an order to be made for the child to return to Darwin pending final hearing, rather than making orders permitting a situation to continue in relation to the arrangements for the child which had only commenced after the Appellant commenced proceedings and about which there was no clear evidence as to whether there had been agreement.
It has not been suggested that any findings of fact made by the learned Federal Magistrate in relation to this issue was other than reasonably open to her.
The learned Federal Magistrate made the following relevant findings of fact:
88.As the effect on the child as to separation from either parent, I am in the absence of evidence, unable to make any findings as explained previously in this judgment.
89.Prior to separation the child had lived and attended school in Melbourne.
90.At the time of separation, the child had moved to Darwin.
91.As to other changes, the child since separation up until the relocation in February 2011 has undergone many changes in his young life, including:-
a) his sister moving away;
b)living in various accommodations, although the number of moves is in dispute; and
c)changing schools.
92.As at the date of the interim hearing the child had been living in Melbourne for a month and had been attending schooling for some weeks.
93.By the time of the delivery of judgment, the child has been living in Melbourne for two months.
94.The mother has now moved into new accommodation at [suburb near Darwin], after staying sometime with her cousin.
95.If an order is made for the child to return to Darwin, the child in effect will be experiencing another lot of changes:-
a)The child will be moving to live in premises that he has never lived in before in Darwin;
b)The child will be changing schools and it is unclear from the mother’s evidence as to whether it will be the same school that he attended previously.
Those findings of fact remain undisturbed.
Notwithstanding that the child has a meaningful relationship with both parents, nothing to which we have been referred suggests or establishes the “necessity” for an order to be made for the child to return to Darwin pending the final hearing of the proceedings.
The learned Federal Magistrate was obliged to consider the various factors to which s 60CC and s 65DAA of the Family Law Act 1975 (Cth) (“the Act”) referred in the light of such findings of fact as she was able to make on the evidence before her.
The fact that the child had a meaningful relationship with both parents, albeit, as the learned Federal Magistrate recorded, she was unable to make definitive findings in that regard, did not render an order which potentially maximised the time that the child spent with each parent in his best interests or was reasonably practicable on the interim basis with which her Honour was concerned. It cannot be seriously suggested having regard to her reasons that the learned Federal Magistrate did not appreciate that living with the mother in Darwin had greater potential for the child to spend more time with both parents than if he were to reside with the father in Melbourne.
As a balanced reading of her Honour’s findings of fact reveals, there were matters other than those referred to in this challenge which properly assumed considerable significance in the exercise of the Court’s discretion.
Nothing to which we have been referred establishes that the learned Federal Magistrate erred in any of the ways asserted in the submissions in support of this challenge.
Grounds 3 and 13
Grounds 3 and 13 provided:
3.That her Honour erred in failing to give sufficient weight to the effect of the separation of the child from his mother as opposed to the effect on the child in having to once again move;
…
13.That her Honour erred in finding that the child had been subject to numerous changes since separation;
It is convenient to commence our consideration of these grounds by reference to the challenge to the learned Federal Magistrate’s finding of fact with respect to the changes to which the child has been subject since the separation of his parents.
Counsel for the mother asserted that:
27.Although noting that the “number of moves” in accommodation was in dispute, it was in fact the case that it was also in dispute as to whether the child’s sister had moved away. It was in fact the evidence of the Appellant that her daughter “usually” lived with her, although she was “in Victoria on a 4 month scholarship, attending leadership training”. Further there was evidence before her Honour of only one occasion when the child’s school changed whilst residing in Darwin since 2008. (footnotes omitted)
No particular finding of fact with respect to the changes which the child has been subjected since separation was submitted to have been erroneous. In what way the matters to which Counsel referred were asserted to have been erroneously regarded by the learned Federal Magistrate has not been identified.
Not insignificantly, the learned Federal Magistrate found that “at the date of the hearing” the child’s sibling was living in Melbourne. We have not been referred to any finding made by her Honour as to the likelihood or otherwise of that situation continuing. Nor have we been referred to any erroneous finding of the learned Federal Magistrate as to the number of changes in the child’s schooling whilst he was residing in Darwin.
The findings made by the learned Federal Magistrate with respect to changes, which remain undisturbed, established that prior to his parents’ separation the child had lived and attended school in Melbourne. At the time of separation the child moved to and commenced to attend school in Darwin. In February 2011, the child relocated to Melbourne. In March 2011 the child changed to a school in Melbourne. In February 2011, the child’s sibling moved to Melbourne.
If an order was made that the child live with the mother in Darwin he would be moving to live in premises in which he had not previously lived and attending either the school he previously attended or a different school, the mother’s evidence being unclear in that regard.
There were numerous changes with respect to the arrangements for the child’s care subsequent to the separation of the parties. The learned Federal Magistrate referred to those changes. Nothing to which we have been referred establishes that she erred in fact in relation to them, or that the descriptions she afforded them were not supported by the findings themselves.
We turn to consider the “weight” challenge. As Counsel for the respondent’s submissions clearly recognise, the obstacles to success of challenges of this kind are substantial (see Gronow v Gronow (1979) 144 CLR 513).
With respect to the submissions of Counsel for the mother, the weight which was able to be given to the various factors to which those submissions refer was very much a matter for the learned Federal Magistrate. That was particularly so given that, as her Honour repeatedly acknowledged, she lacked expert opinion evidence which would have informed a determination of many aspects of the child’s best interests. Such evidence as there was before her Honour was highly conflictual and untested. It has not been demonstrated that the learned Federal Magistrate failed to adequately consider any of the factors which were referred to in support of Ground 3.
With respect to the submissions in relation to the single judge decision in Morgan & Miles [2007] 38 Fam LR 275, the learned Federal Magistrate was not obliged to have regard to that case, or anything said in it. As is not in doubt, the decision pre-dated the decision of the High Court in MRR v GR (2010) 240 CLR 461 to which the learned Federal Magistrate referred. There is no suggestion that her Honour erred in her approach to the legislative pathways governing the proceedings before her. Other Federal Magistrates or the members of this Court may have given greater weight to this factor than her Honour did, but that is not the test for present purposes as the High Court has repeatedly made clear (see Gronow v Gronow (supra) and Norbis v Norbis (1986) 161 CLR 513 at 539-40).
Nothing to which we have been referred persuades us that either of these complaints has merit.
Grounds 4 and 5
Grounds 4 and 5 provide:
4.That her Honour erred in failing to give sufficient weight to the mother’s allegations of family violence;
5.That her Honour erred in merely ignoring allegations of family violence alleged by the mother on the basis that such evidence was untested and therefore she was unable to make a finding;
With respect to Counsel for the mother, both parties sought that the learned Federal Magistrate resolve the parenting dispute on an interim basis.
In support of these grounds the mother argued that:
31.The case of Morgan & Miles provides that, in considering an interim relocation application, the court must be satisfied that the parties have attempted to alternatively resolve their dispute, unless an exclusionary circumstance applies (i.e. family violence). It is submitted that given the seriousness of the allegations made by both parties against the other of family violence it was of primary importance that any independent evidence in relation to the “exclusionary circumstances” be available for consideration by the court. This was all the more so in light of the fact that the Appellant had sought orders in her Initiating Application for the parties to participate in primary dispute resolution. (footnotes omitted)
With respect to this argument we think it misunderstands the gravamen of Morgan & Miles (2008) 38 Fam LR 275. In that case Boland J simply indicated that in considering whether a child should live with the parent who proposes to relocate, the Court should consider, unless an exclusionary circumstance applies, whether the parties have genuinely attempted to resolve the dispute. Boland J had previously pointed out that s 60I requires parents, “if no exclusionary factors such as abuse, family violence or urgency apply, whether there is an order under s 61C or 61B is operative, to make a genuine effort to resolve the dispute with a family dispute resolution practitioner.” Both parties in this case alleged family violence as well as urgency. No issue suggesting the exclusion of primary dispute resolution was a significant factor was agitated before her Honour.
Furthermore in the mother’s Application her request for an order for primary dispute resolution came after interim orders were sought and the precise order sought was “that the parties shall participate in primary dispute resolution in preparation for final orders”. Her Application indicates that the mother was not seeking dispute resolution prior to the interim orders being made. The allegations raised by the parties leave little scope for doubt that participation in primary dispute resolution would have been unlikely to result in an agreement. We have not been referred to any application to the learned Federal Magistrate that she defer the parenting and venue disputes so that the parties could participate in interim dispute resolution.
Not surprisingly in the circumstances, the parties were not able to resolve, even on an interim basis, parenting arrangements for the child. In those circumstances, it was in the child’s best interests that he and his parents have some certainty.
There may, as the submissions on behalf of the mother assert, have been a good deal of “independent” or other evidence, including testing of the evidence which was before her, which may have assisted the learned Federal Magistrate to determine the interim parenting proceedings. We have not been referred to any application to her Honour to do that, or to adjourn the proceedings so that that might occur.
As she made clear on numerous occasions in her Reasons, the learned Federal Magistrate was acutely aware of the limitations which the state of the evidence imposed upon her. The complaint that the learned Federal Magistrate should have “sought such evidence from the parties” as that to which Counsel for the mother referred, in the absence of any request or suggestion by them that her Honour do so, at least for the purpose of determining the interim parenting proceedings, denies this complaint substance.
The submissions with respect to the learned Federal Magistrate’s approach to domestic violence do not identify any erroneous finding of fact by her Honour. Nor do they identify any matter to which her Honour should, but failed to have regard. Nor is any asserted error of principle identified in relation to the issue.
The cases to which Counsel for the mother referred cannot advance these complaints. Whether or not the challenges raised by Counsel for the mother are established is determined by reference to the findings of fact made by the learned Federal Magistrate and the inferences drawn or conclusions reached by her in reliance upon such findings in this case. As Counsel for the mother correctly identified at the commencement of her submissions, the principles governing these challenges are not in doubt and, as articulated in support of these grounds, are not able to be advanced in the absence of reference to the evidence before the learned Federal Magistrate.
It was asserted on behalf of the mother that:
40.Here her Honour did not conduct any assessment of risk when determining the matters that should have been determined in relation to the Appellant’s allegations concerning family violence. Simply because her Honour was not able to make a finding as to whether family violence had actually occurred, should not have prevented her Honour from assessing the level of risk to the child given the Appellant’s allegations and particularly given the geographical location of the child, which meant there could be no capacity for the Appellant to have any time with the child to assess whether the child was safe.
There is, as is apparent from reading them, a logical difficulty in relation to this complaint. There is however a more fundamental difficulty, and that arises from the learned Federal Magistrate’s consideration of family violence.
Her Honour recorded:
194.Serious allegations have been made by both the mother and the father.
195.The mother paints a picture of the father as violent, as an abuser of alcohol and substances and the child as being at harm whilst in his care.
196.The father paints a picture of the mother as mentally unstable, as an abuser of alcohol and substances, as being violent and as being unable to meet the needs of the child.
197.On an interim basis with little or no evidence to support these concerns, I am unable to make many findings to support either party.
As her Reasons made clear, the learned Federal Magistrate was aware that the mother asserted that the father had been violent to her during the course of their relationship, and that she had sustained serious injuries at his hands. It is not asserted that her Honour inaccurately recorded that the mother had not placed before the Court previous domestic violence orders, or her medical records in relation to those matters.
Her Honour recorded the mother’s concerns with respect to the father having possibly subjected the child to domestic violence. Her Honour recorded, again it is not asserted to have been inaccurately, that no evidence corroborative of those allegations had been tendered, and that the allegations had not been reported to the police.
After referring to the mother’s claims that the father had a “criminal record for drug and assault matters”, which the father denied, in respect of which no evidence was tendered before her, the learned Federal Magistrate concluded:
157.I am unable at an interim hearing where limited evidence is untested and where there is no independent evidence to support the allegations, to make findings as to whether there has been family violence by the father against either the mother or the child.
It having been acknowledged that such finding was reasonably open to her, in what way the learned Federal Magistrate could or should have found or inferred more than she there did has not been suggested.
The learned Federal Magistrate proceeded to set out in some detail the father’s allegations of violence on the part of the mother.
By reference to definition of “Family Violence”, her Honour found that the mother’s own text messages, sent in August 2010, and admitted by her, fell “within the definition of family violence”, although such family violence was “in relation to threats only”. Again, no error of fact, or discretion or principle is asserted in relation to anything her Honour there recorded.
In support of the mother’s complaints with respect to the learned Federal Magistrate’s conclusions as to the history of the child’s primary care, it was submitted that:
45.… failing to give consideration to such matters, and such objective evidence, her Honour fell into error and failed to consider matters directly relevant as to whether she could be satisfied of the evidence given before her by both the Appellant and the Respondent. Her Honour therefore made a decision without proper consideration to the whole context of the evidence before her as to arrangements for the child.
The learned Federal Magistrate recorded in that regard:
178.The mother submits that as she was in receipt of family support payments and child support that this is proof that the child has been in her primary care.
179.I disagree.
180.Without testing the evidence, receipt of such payments is evidence of payment only, and is not conclusive evidence as to the living arrangements for the child.
Nothing to which we have been referred establishes that her Honour erred in any of the findings which she there made. Nor has it been established that her Honour erred in suggesting that receipt of payments for child support was not “conclusive evidence as to the living arrangements for the child”.
Having considered the question of the child’s best interests, in a manner which has not excited challenge, the learned Federal Magistrate summarised the factors which resulted in her conclusion that, on an interim basis, the child should continue to live with the father in Melbourne and have telephone time with the mother. Those factors were:
· The child has been subjected to numerous changes since separation;
· The child has spent the majority of his life living in Melbourne;
· The child has stability in both living arrangements and schooling in Melbourne and this stability should be preserved in the interim;
· Concerns exist as to the mothers mental health;
· Concerns exist as to the mother’s ability to meet the needs of the child, and questions exist as to her attitude to her responsibility as a parent;
· There has been threats made by the mother against the father, and the issue of domestic violence needs to be determined in the state courts; and
· The child’s views need to be captured.
Her Honour had earlier at some length, and largely by reference to text messages which emanated from the mother, made findings of fact which supported her conclusion that “concerns exist as to the mothers mental health”, that “concerns exist as to the mother’s ability to meet the needs of the child” and that “questions exist as to her attitude to her responsibility as a parent”. Not insignificantly, no ground of appeal agitated on behalf of the mother challenges those conclusions or the findings of fact upon which they were based. That is unsurprising having regard to the evidence before the learned Federal Magistrate. As is not in doubt from a balanced reading of her Honour’s Reasons, those two factors weighed heavily in favour of her ultimate conclusion with respect to the child’s best interests.
These two challenges lack substance.
Ground 6
Ground 6 provided:
6.That her Honour erred in failing to give sufficient weight to the financial implications and short-term immediate realities for the mother of the orders, and the impact of the orders upon the welfare of the child;
As Counsel for the mother sensibly acknowledged, this ground, and the submissions in support of it, overlap Grounds 1 and 2 which we have earlier considered. It is unnecessary in the circumstances to say more than we earlier have, other than to reiterate that the learned Federal Magistrate is clearly aware of the implications of the orders she made.
Ground 7
Ground 7 provided:
7.That her Honour erred in failing to give sufficient weight to the nature of the relationship between the mother and the child and although the extent of the time spent between the mother and the child was in dispute, even on the father’s case the mother spent 2 nights per week with the child;
In support of this challenge it was submitted that:
51.… to then determine that in such circumstances the child should remain in Melbourne with the Respondent, when there was clear evidence that the child has resided in Darwin with both parents available to him since 2008 (and even on the Respondent’s case was spending two (2) week nights with the Appellant from November 2010) was erroneous and did not give any weight whatsoever to the relationship between the Appellant and the child, only to the Respondent and the child. (footnotes omitted)
As the submissions of Counsel for the mother properly acknowledge, the learned Federal Magistrate was unable to determine the nature of the relationship between the mother and the child. Her Honour found that the child had a meaningful relationship with both his parents but, in the absence of any ability to test the evidence of the parties and their witnesses, and in the absence of a Family Report, could not purport to make findings beyond the finding that the child had a good relationship with both his parents.
Whilst, as this complaint recognises, the learned Federal Magistrate recognised that the parties did not agree as to with whom the child had been primarily living between separation and the father’s relocation of the child’s residence to Melbourne in February 2011, her Honour was obliged to find:
74.As most of the facts are contested, including who has been the primary carer of the child since separation, and the extent of the time the child has had with each parent, I am limited in respect to any findings as to the nature of the relationship the child has with the mother, the father or extended family members.
Her Honour also found:
79.I find that I have insufficient evidence to be able to make a finding that any relationships have been impacted upon by the relocation, as I do not know what the true situation was with the relationship between the child and the mother and the child prior to relocation or the true situation was [sic] with the relationship between the child the father prior to relocation.
None of the above findings of fact have been shown to have been other than reasonably open to the learned Federal Magistrate.
Nothing to which we have been referred substantiates this complaint. It is difficult to see how, given the concession properly made by Counsel for the mother in relation to the implications of the learned Federal Magistrate’s inability to make findings in the terms we have set out above, this complaint could be made out.
Ground 8
Ground 8 provided:
8.That her Honour erred in failing to give sufficient weight to the need for the child to have a meaningful relationship with the mother;
This challenge and the submissions in support of it are logically flawed. In the absence of findings of fact, and it has been conceded that the learned Federal Magistrate could not make such findings with respect to a number of matters which impacted upon determining the child’s best interests, it was not possible for the learned Federal Magistrate to definitively determine how best to facilitate the child having a meaningful relationship with both his parents.
Moreover, the issues which her Honour accurately identified, particularly those relating to family violence and the parenting capacities of each of the parents, which were undoubtedly unable to be determined on the evidence before her, precluded her Honour from engaging in greater or more meaningful detail than she did with this topic.
The learned Federal Magistrate was obliged to make a decision with respect to the immediate parenting of the child the child. That is what the parties asked her to do. The evidence was, as all parties acknowledged, limited in the many ways which her Honour identified. With respect to Counsel for the mother, in the circumstances of this case, it was simply not an option for her Honour to decline to determine “issues of relocation” at the time and in the context in which she did.
It was also submitted on behalf of the mother:
57.It is acknowledged that prior to the amending Act there was a focus on maintaining stability in arrangements for a child pending a final hearing. Accordingly, at the interim stage, courts exercised considerable caution, in respect of relocation issues, particularly unilateral relocations, which occurred independently of the other parent concerned.
We are unable to accept that in an interim hearing such as this, on incomplete and untested evidence, determining the child’s best interests in accordance with the provisions of Part VII would not, or should not be significantly influenced by questions of the comparative stability of the parties’ proposed arrangements for the child. As the authorities, and the terms of Part VII of the Act make clear, whilst the Court does not condone “unilateral relocations”, such actions are but one of the factors which, by reference to the provisions of Part VII, are relevant to determining the child’s best interests on an interim basis after a circumscribed hearing (see Goode & Goode (2006) FLC 93-286).
Whilst, in the circumstances of this case, the father’s unilateral relocation of the child’s residence could not be condoned, the learned Federal Magistrate made findings, which remain undisturbed, in relation to both that and all other issues relevant to determining the child’s best interests on an interim basis. It has not been established that the learned Federal Magistrate erred by not concluding that the father’s unilateral relocation of the child’s residence tipped the balance of the child’s best interests in favour of the mother’s proposal for his care on an interim basis.
In concluding that the child’s best interests would be best served by remaining with the father, the learned Federal Magistrate relied significantly on text messages which the mother herself had sent to the father between 21 February 2011 and 23 February 2011. Her Honour recorded:
108.On Monday 21 February 2011 there is one text at 10.24am:-
“There is no getting better don’t you understand that. I got nothing left to hope for now. I’m over. Have fun explaining that to [the child].”
109.On Tuesday 22 February there are a series of texts the first at 10.26am:-
“[The child’s sibling] is messed up and doesn’t want to know me and now you have taken [the child]. No fucking point in being alive now is there. Going to sort funeral shit out. You are responsible for the end of my life.”
110.Then at 10.41am:-
“Fuck you all what you don’t understand about what I have nothing left to live for. U all thing I’m fucking around, you will find out differently and none of yous are welcome to my funeral.”
111.Then at 10.53am:-
“You’re a dead set cunt. You will be the first person I come back to haunt cunt. I am going to make your life and dreams hell, fuck you you fucking cunt you just nailed my coffin. You will pay for this I promise you.”
112.Then at 7.07pm:-
“Fuck you dog. Game on now if you take [the child] I will kill myself and you can live with that cunt. And that’s a promise.”
113.Then at 7.16pm:-
“I got no reason to live cunt so stop your shit and leave me alone. My death is your fault. And you guys will pay. And no cunt is allowed at my funeral made sure of that today.”
114.On Wednesday 23 February there are a series of texts the first at 9.05am:-
“Wont be going will be dead by then.”
115.Then at 9.23am:-
“You all win, cant live and wont live, so congrats, ill be dead very soon and u blokes can be happy im gone for good. You and the kids will never see me again. Plus I will get to see … and dad again. Not bad after all aye.”
116.Then at 10.55am:-
“Please make sure my babys know how much I love them I only ever wanted the best for them. I cant handle lift its time for me to go now. I really did try but I have no reason to live anymore and I don’t have the strength.”
As her Honour also recorded, and it is not controversial, the mother did not dispute that she had sent the text messages or that they said as her Honour recorded them as saying. Those messages were material to the risks assessment which the learned Federal Magistrate was clearly obliged to undertake in this case.
In fairness to the mother, the learned Federal Magistrate accepted that “the texts were written at a time the child was being taken to Melbourne and the mother would no doubt have been upset”. Her Honour also accepted that she did not “have the benefit of the context in which the texts were written” and had not “been provided by either the mother or the father with details of any texts from the father, if any, at the time the texts from the mother were sent”.
Nevertheless, her Honour observed that:
120.Nonetheless the texts are chilling and disturbing.
The evidence before her Honour provided ample support for that observation.
Ultimately, the learned Federal Magistrate concluded:
123.I find that these texts raise real concerns as to the mother’s mental health and her capacity to meet the needs of the child, and in the interim, until further evidence is before the court as to the mother’s mental state of mind, I find that it is in the child’s best interest to remain with the father in Melbourne.
Nothing to which we have been referred establishes that the learned Federal Magistrate erred in finding as she did with respect to the texts sent by the mother. The inferences she drew in reliance upon them were reasonably open to her Honour. They were material to determining the child’s best interests on an interim basis.
It was reasonably open to her Honour in the circumstances as they were revealed to adopt a more benign view of the father’s actions in relocating the child’s residence to Melbourne than might otherwise have been the case. Even so, we do not understand her Honour to have excused the father from relocating without necessarily having the mother’s consent to doing so.
Her Honour recorded in that regard:
181.Father’s unilateral decision to relocate to Melbourne.
182.The father submits that the mother knew about his intention to relocate to Melbourne for some time.
183.The mother agrees that she had knowledge of the move but that she was not in agreement.
184.In a text message sent by the mother to the father on 7 January 2011, which appears as Annexure “MAF9” the mother states:-
“Yeah yeah yeah you have said over eight different times you are moving, now [Mr Farmer] stop putting him through hell, if your going to leave then fucken leave, don’t keep doing this to [the child]. How fucken fair is it that u keep doing this to him.”
185.The issue of whether there was agreement by the mother to the relocation will be an issue for the final hearing.
The learned Federal Magistrate also made a number of findings with respect to the photographs which were tendered in evidence before her, none of which has been challenged. Those findings were also relevant to the risk assessment which her Honour undertook, and to determining the child’s best interests on an interim basis.
Her Honour was entitled to and clearly did rely upon the evidence in relation to those matters in support of her conclusion that:
145.I find that these incidents raise real concerns as to the mother’s attitude to being a parent and the responsibilities associated with being a parent.
It has not been established that the learned Federal Magistrate failed to give appropriate or adequate weight to the father’s unilateral relocation of the child’s residence. Albeit an important one, it was but one of a number of factors which her Honour balanced in determining the child’s best interests. This complaint fails.
Grounds 9 and 10
Grounds 9 and 10 provided:
9.That her Honour erred in failing to give due regard to the likely duration of the interim orders made, particularly in light of her Honour’s findings concerning her inability to determine the allegations concerning family violence;
10.That her Honour erred in ordering the transfer of the proceedings to Melbourne without evidence about whether an earlier hearing could be provided in either Darwin or Melbourne;
Having regard to the exchanges between Counsel for the mother and the Court during the course of the hearing of the appeal, very little needs to be said about these complaints. It was properly conceded by Counsel for the mother that there was no evidence before the learned Federal Magistrate as to when the final hearing of the parenting proceedings would be likely to occur in either Darwin or Melbourne.
As Counsel for the mother, at least inferentially, acknowledged, in circumstances where there was no evidence before the learned Federal Magistrate of these matters, failure to take them into account could not enliven appellate intervention.
Ground 11
Ground 11 provided:
11.That her Honour erred in failing to give any, or insufficient consideration to the affidavit of [Mr G];
As is apparent from reading it, Mr G’s affidavit, or at least the parts of it which were capable of safely being relied upon, do not render any finding of fact made by the learned Federal Magistrate other than open to her.
Ground 12
Ground 12 provided:
12.That her Honour erred in failing to give sufficient weight to the mother’s evidence that she did not consent to the father’s relocation with the child to Melbourne;
In support of this challenge it was submitted:
71.Given the inability to determine whether there had been agreement by the Appellant to the move to Melbourne, combined with the inability to make findings as to:
(a)With whom the child has been living primarily whilst residing in Darwin since 2008.
(b)The extent of time the child has spent with either party; and
(c)The number of moves of accommodation the mother has had in Darwin.
It is submitted that her Honour fell into error in allowing the child to remain in Melbourne.
72.In permitting that arrangement to continue, her Honour did not provide for a level playing field vis a vis the parties respective positions until the stage of final hearing, thus raising the very real risk of making a final hearing futile. (footnotes omitted)
The Court rarely condones “unilateral relocation” of a child’s place of residence. The submissions in support of this challenge overlook the reality that the learned Federal Magistrate did not find that the father’s relocation of the child’s residence to Melbourne had been unilateral. Nothing to which we have been referred establishes that her Honour should have found that it was. Nor however did her Honour affirmatively find the father’s actions to have been justifiable, or vindicated. As she clearly recorded, the learned Federal Magistrate could not make findings about such matters on the untested evidence before her.
Her Honour clearly recognised that an issue between the parties was whether or not the father had unilaterally relocated the child’s residence to Melbourne. Her Honour identified as “agreed or non-contested” fact that “in late 2010 the father informed the mother of his intention to relocate to Melbourne with the child”. Her Honour also identified amongst the “[c]ontested facts where findings cannot be made at the interim hearing” whether there was any agreement.
As we have earlier recorded, two matters which emerged from the mother’s own evidence, the findings of fact in respect of which have not been challenged in this appeal, weighed heavily in the father’s favour in the exercise of her Honour’s discretion.
Even if, which her Honour did not find, the removal of the child had been unilateral, her findings with respect to family violence and the mother’s attitude to the child and to the responsibilities of parenthood, and with respect to the mother’s mental health were able to be relied upon to outweigh the adverse inferences which could have been drawn from the father unilaterally relocating the child’s residence to Melbourne. This challenge fails.
Grounds 14 and 15
Grounds 14 and 15 provided:
14.That her Honour erred in placing undue weight on the circumstances of the child having spent the majority of his life living in Melbourne particularly in light of the age of the child and the uncontested fact that the child had lived for the last 3 years in Darwin;
15.That her Honour erred in finding established that the child had stability in both living arrangements and schooling in Melbourne, particularly in light of the uncontested fact that the child had only been living in Melbourne for a maximum of 5 days by the time the mother filed her application seeking the recovery of the child and the child’s return to Darwin;
It is convenient to first address the complaint articulated in Ground 15.
At the date of judgment, as the learned Federal Magistrate clearly recognised, the child had been living in Melbourne for approximately 3 months. We have not been referred to any evidence that his living arrangements and schooling in Melbourne had been other than stable during that period. The learned Federal Magistrate was not under any misapprehension as to the longevity of those arrangements as at the date of her judgment.
Ground 14 does not assert that the learned Federal Magistrate erred in fact in finding that the child had “spent the majority of his life living in Melbourne”. In what way “too much weight was placed by her Honour upon his earlier years spent in Melbourne” has not been identified.
As is not in doubt from a balanced reading of her Reasons for Judgment, the factors which emerge as having been most influential in the exercise of the learned Federal Magistrate’s discretion were in relation to family violence, the mother’s mental health and the mother’s attitude to duties and obligations of parenthood.
The findings with respect to the second and third of those topics, which have not been challenged in this appeal, were based upon material emanating from the mother herself. As the learned Federal Magistrate recorded, that evidence was cause for considerable concern, at least on an interim basis, for the welfare of the child were he to reside with the mother.
These challenges fail.
Ground 16
Ground 16 provided:
16.That her Honour erred in finding that the issue of domestic violence needs to be determined in the state courts;
In support of this challenge it was asserted:
77.It is respectfully submitted that there was no basis for her Honour to find that “the issue of domestic violence needs to be determined in the state courts”. Federal Magistrates Courts across the country deal with allegations of domestic violence daily whilst outstanding applications remain in the state courts. It is not and should not be a basis relied upon for finding that a child should remain in Melbourne pending final hearing. (footnotes omitted)
With respect to Counsel for the mother, the proceedings which the parties had apparently instituted against each other were in state courts. Those proceedings could only, as a matter of law, be determined by those courts.
Albeit in the very limited terms made by her, the learned Federal Magistrate made a finding adverse to the mother with respect to family violence. Nothing to which we have been referred establishes that the learned Federal Magistrate erred in that regard, or that her Honour erred by not making a finding with respect to family violence which was adverse to the father. Nor was excessive weight given to the facts as found by her Honour.
This complaint fails.
Ground 17
Ground 17 provided:
17.That her Honour erred in placing undue weight on the father’s evidence that the child’s sister was located in Melbourne when it was a contested fact as to whether this was on a permanent basis;
It was conceded that the child had a “close relationship with his sibling” S.
The focus of this complaint is that the learned Federal Magistrate placed too much weight on the child’s sibling being located in Melbourne when it was not conceded, or otherwise established, that her presence there was likely to be more than temporary.
The learned Federal Magistrate’s reiteration of the factors which led her to conclude as she did with respect to the child’s best interests did not include any reference to the child’s sibling’s presence in Melbourne. That is unsurprising having regard to her Honour’s carefully worded finding that, as at the date of the hearing before her, the child’s sibling was living in Melbourne.
It is also significant that her Honour recorded as a contested issue in respect of which she was unable to make findings on the evidence before her:
64.…
h)Where [the child’s sibling] has been living during the period since separation and the child moving in to live with her father in November 2010.
And later:
81.This consideration therefore provides little assistance in what interim arrangements are in the child’s best interests, although I find that it would be in the child’s best interests to be in close proximity and to have regular contact with his sister [S], who at date of the hearing is living in Melbourne.
Nothing to which we have been referred establishes that the Federal Magistrate erred in any finding of fact with respect to the child’s sibling. Nor have we been referred to anything which establishes that the learned Federal Magistrate gave excessive weight to the fact that the child’s sibling was, at the date of the hearing before her, living in Melbourne with her father.
This challenge fails.
Ground 18
Ground 18 provided:
18.That her Honour erred in failing to give sufficient weight to the question of the father’s ability to meet the needs of the child and his attitude to his responsibilities as a parent;
The submissions in support of this complaint relate to inferences drawn by the learned Federal Magistrate in reliance upon undisturbed findings of fact, which were in large measure made in reliance upon the mother’s own evidence. Nothing to which we have been referred establishes that the learned Federal Magistrate erred in any conclusion she reached with respect to the capacity of the mother.
So far as the capacity of the father was concerned, it is relevant to note her Honour’s finding that:
125.Because of the extensive factual dispute in this matter I am limited on an interim basis in making any findings as to the attitude of the parents to the child, or to the responsibilities of parenthood as demonstrated by both parties.
It was submitted by Counsel for the mother that:
91.Whilst her Honour referred to these matters and made such findings, her Honour completely ignored the evidence relating to the Respondent’s ability to meet the needs of the child and his attitude to his responsibilities as a parent. In this regard, there was evidence before her Honour of a letter purportedly prepared by the child and an email purportedly from the sibling, [S]. (footnotes omitted)
The letter purportedly prepared by the child read:
I want to be with my DAD and see my mum on school holiday and I want mum to get bettle [sic] I like my new school and I haveing [sic] a tag battle with my new friends and starting soccer.
I told mum it [sic] January I’m moveing [sic] with Dad down Melb [sic] to live.
The email “purportedly” from the child’s sibling said:
[Mr Farmer], has been my step dad for most of my life, since i was about one years old. He has always been around for me and my brother [the child] and has always made sure that we had a good childhood, well the best he could give. Through thick and thin, he has always shown support to me aswell as my brother, and has always treated me as one of his own. It wouldnt [sic] have been easy raising somebody elses kid and loving them as your own but he managed and personally i think that he succeded. I see him as my dad, and always, it takes anyone to be a father but a special man to be a daddy and to me he is my daddy. Even when him and my mum had their divorce he and his family still take care of me, check up on me, spend time with me they still treated me as their blood family. I too see them as my real family. In darwin my mum and [Mr Farmer] has gotten a divorce, and still his house was my home, as i spent alot of the time there. He has never done anything wrong by me or my little brother and I know that he would never do anything to hurt either us, all he has done is try and do the best thing by us, and do what he thinks is the best for us and any man or women would do that to protect their kids and guide them in their life to have a life they wouldnt be ashamed of. I’ve accomplished many things in my life, and I think that dad has played alot in that, I am at a leadership school at the moment, and his always telling me about how much his proud of me and that his always their for me. It was easy for him to say that and easy for him to make that promise that he will always be their for me, but so far he has not broken one promise that he has ever made to me, and I don’t think he will anytime soon. [Errors as in original]
In reliance upon those documents it was submitted on behalf of the mother that:
92.… that these documents were arguably far better and more extreme examples of using the children as a means of communication, and indicative of a lack of understanding as to the responsibilities of parenthood by the Respondent, than those identified and used by her Honour against the Appellant.
The submissions in reliance upon these documents assume that they were generated at the direction of, or in response to encouragement by the father. Nothing to which we have been referred establishes the probability of that having been the case.
In the absence of such findings, if accepted, the terms of the documents were potentially unhelpful to the mother’s case. Significantly, as the submissions of the mother acknowledge, the learned Federal Magistrate did not have regard to any of those documents to the mother’s detriment. On what basis her Honour could or should have taken them into account to the detriment of the father’s case has not been made clear.
Ground 19
Ground 19 provided:
19.That her Honour failed to consider whether the father’s relocation with the child was commensurate with the degree of risk constituted by the mother’s alleged behaviour towards the father.
The crux of this challenge was that the text messages upon which the learned Federal Magistrate relied were sent in August 2010, seven months prior to the father relocating the child’s residence to Melbourne. As is clear from the learned Federal Magistrate’s Reasons for Judgment, the texts sent by the mother which weighed more heavily in the exercise of discretion were sent between 21 February 2011 and 23 February 2011. The mother did not dispute that she had sent the texts in that period.
With respect to Counsel for the mother, as recorded earlier, the learned Federal Magistrate accepted that the texts were written “at a time the child was being taken to Melbourne and the mother would no doubt have been upset”. Her Honour also accepted that “I do not have the benefit of the context in which the texts were written and I have not been provided by either the mother or the father with details of any texts from the father, if any, at the time the texts from the mother were sent”.
Nothing to which we have been referred establishes that the learned Federal Magistrate gave excessive weight to the texts sent by the mother.
APPEAL AGAINST CHANGE OF VENUE
Ground 10
Ground 10 of the appellant’s Notice of Appeal asserted:
10.That her Honour erred in ordering the transfer of the proceedings to Melbourne without evidence about whether an earlier hearing could be provided in either Darwin or Melbourne.
This ground was agitated in conjunction with Ground 9 in the context of the challenges to the orders made by the learned Federal Magistrate in the parenting proceedings.
We have earlier dealt with the primary complaint raised in support of this challenge which was:
64.… it is clear that in ordering the transfer of the proceedings to Melbourne, Her Honour did so without any evidence of the likely duration of waiting time before a final hearing could occur in either Darwin or Melbourne and therefore without any consideration of the likely duration of the limited arrangements provided for her under orders, which was an important matter in considering the issue of practicalities. (footnotes omitted)
As we have earlier noted, there was no evidence before the learned Federal Magistrate in relation to where the proceedings were likely to be more expeditiously determined.
The learned Federal Magistrate extensively considered the question of venue. In the course of her deliberations, the learned Federal Magistrate referred to the relevant rules, and proceeded, in the light of the evidence before her, to exercise her discretion by reference to those rules.
We have not been referred to any erroneous finding of fact upon which her Honour relied for the purpose of determining the question of venue. Nor did her Honour fail to have regard to any relevant fact or circumstance, or have regard to any irrelevant fact or circumstance. Her Honour’s exercise of discretion was not vitiated by any error or principle.
As is not in doubt, the learned Federal Magistrate’s determination of the venue issue was significantly influenced by her conclusion with respect to the parenting proceedings, challenges which, for the reasons we have indicated earlier, this Court has rejected.
Nothing to which we have been referred establishes appealable error in the learned Federal Magistrate’s decision with respect to venue. That appeal should also be dismissed.
COSTS
The respondent sought an order for costs in the event of the appeal being unsuccessful.
The appellant is apparently on Legal Aid. This Court knows nothing of the financial circumstances of either party.
It is not in doubt that the appellant has been wholly unsuccessful. Apart from the absence of merit in the appellant’s challenges, the utility of her appeal was always questionable given that, if successful in relation to the parenting orders made by the learned Federal Magistrate, as the appellant’s Counsel properly conceded, that issue would have to be remitted for rehearing on an interim basis.
As is not in doubt, during the months whilst this appeal has been pending, the opportunity to apply for an expedited final hearing of the proceedings in Melbourne has been lost. It is improbable that any rehearing of interim parenting issues which would have followed upon success with this appeal would occur prior to late this year or possibly early in the New Year. By that time, had expedition been sought, which would likely have been granted, the parties could well be approaching a final hearing of the parenting proceedings.
It is a concern, particularly as the appellant is apparently in receipt of a grant of Legal Aid, which is likely to be capped, that such grant has been reduced in the manner in which it has, rather than seeking expedition of the final hearing.
Notwithstanding that the father’s claim for costs is compelling, in the absence of any evidence as to the financial circumstances of the parties, we are not disposed to make an order for the costs of the appeal.
I certify that the preceding one hundred and fifty six (156) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Faulks DCJ & Coleman J delivered on 3 February 2012.
Associate:
Date: 03.02.2012.
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