Pascoe & Larsen
[2022] FedCFamC1A 64
•13 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pascoe & Larsen [2022] FedCFamC1A 64
Appeal from: Pascoe & Larsen [2021] FedCFamC2F 529 Appeal number(s): NAA 78 of 2021 File number(s): WOC 655 of 2021 Judgment of: MCCLELLAND DCJ Date of judgment: 13 May 2022 Catchwords: FAMILY LAW – APPEAL – Where the appeal concerns interim parenting orders for the child to live with the respondent – Where respondent unilaterally changed residences – Whether the primary judge erred in rejecting appellant’s proposal for the child to be returned to the City A region – Whether reasons were adequate – Both respondent and child of Aboriginal descent – Appeal dismissed – Child’s right to enjoy their cultures and traditions with respondent – Respondent’s right of freedom of movement – Submissions as to costs. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(3)(h), 61DA, 65DAA(5)
Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth)
Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth)
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450; [2016] FCA 802
Bolitho & Cohen (2005) FLC 93-224; [2005] FamCA 458
Davis & Davis and Anor (2007) 38 Fam LR 671; [2007] FamCA 1149
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1386
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
Sheldon & Weir [2011] FamCAFC 212
SS & AH [2010] FamCAFC 13
U v U (2002) FLC 93-112; [2002] HCA 36
Number of paragraphs: 70 Date of hearing: 9 March 2022 Place: Sydney (via videolink) Counsel for the Appellant: Litigant in person Counsel for the Respondent: Ms Lioumis Solicitor for the Respondent: Broun Abrahams Burreket Counsel for the Independent Children's Lawyer: Mr Haddock Solicitor for the Independent Children's Lawyer: Venus & Smart ORDERS
NAA 78 of 2021
WOC 655 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PASCOE
Appellant
AND: MS LARSEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
13 MAY 2022
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The respondent mother and the Independent Children’s Lawyer may, if they so choose, within 14 days, file and serve written submissions of no more than two (2) pages in support of an order for costs.
3.In the event of the respondent mother and/or the Independent Children’s Lawyer filing submissions in support of an order for costs, the appellant father may, within a further 14 days, file and serve written submissions of no more than two (2) pages in reply.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pascoe & Larsen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
This matter concerns an appeal of orders made on 30 November 2021 by a judge of Division 2 of the Federal Circuit and Family Court of Australia. The orders concerned the amount of time that the child will spend with each parent until final hearing and the geographic location of where the child would live. Child X was born in 2017 and, during the trial, it was anticipated the she would commence school at the beginning of 2022.
The background to the dispute is that the respondent mother unilaterally moved to City B in May 2021 from City C on the south coast of New South Wales. The appellant father currently resides in City A, which is located a relatively short distance inland from City C.
The essential issue before the primary judge was whether the interim parenting orders should be made on the basis of the mother continuing to reside in City B, or whether orders should be made for the mother to return the child to reside in City A. The primary judge determined it was in the best interests of the child to live primarily with the mother and that orders should not be made compelling the mother to return with the child to live in the City A region.
For reasons which I set out, I have dismissed the appeal.
BACKGROUND
The parties commenced their relationship in 2015 and cohabited for approximately two years prior to their relationship ending in or about 2018.
The appellant father has two children from a previous relationship aged 13 and 17. The latter resides with the appellant whilst the former resides with the appellant’s former partner and spends five nights per fortnight in the appellant’s care, together with half of the school holidays.
The respondent mother is of Aboriginal descent and has one child from a previous relationship, aged 11, for whom she is the primary carer.
In May 2021, the respondent unilaterally relocated with the child from City C to City B. The child did not spend any time with the appellant between May and August 2021.
In June 2021, the appellant filed an application in the Federal Circuit Court of Australia (as it then was) seeking interim orders for the child to be returned to live in the City A region and to spend time with him.
The appellant’s interim application was listed for hearing before a senior judicial registrar on 12 August 2021. The senior judicial registrar made orders for the child to live with each parent on a week about arrangement. The orders did not, however, address the issue as to the child’s primary place of residence.
On 13 August 2021, the respondent filed an application for review of the senior judicial registrar’s decision. That matter was listed for hearing before the primary judge on 12 November 2021 and 30 November 2021, at which time the primary judge delivered ex tempore reasons for judgment.
On 3 December 2021, the father filed a Notice of Appeal against the orders of the primary judge and, on 15 December 2021, the father filed an Amended Notice of Appeal, the terms of which are set out further below.
THE PRIMARY JUDGE’S EX TEMPORE REASONS
The primary judge weighed the parties’ competing proposals concerning where the child should live in the context of the child preparing to commence school in 2022. The primary judge determined that it was impracticable for the child to spend week about time with each parent if he rejected the appellant’s application for the child to be returned to live in the City A region.
His Honour ultimately preferred the respondent’s proposal for the following reasons.
The respondent and the child identify as being of Aboriginal descent and, in those circumstances, the primary judge noted the desirability of the child maintaining her connection to culture, as well as her right to do so in accordance with s 60CC(3)(h) of the Family Law Act 1975 (Cth) (“the Act”). The primary judge determined that this connection was best maintained by the child living with her mother, who is an Aboriginal woman of the D People.
Additionally, while noting his inability to make findings of fact in respect to controversial issues, the primary judge determined that the respondent’s allegations that the appellant had engaged in conduct which constituted family violence could not be ignored.
Further, the primary judge was not prepared to make a coercive order that would effectively require the respondent to abandon her employment in City B, which she found to be worthwhile and which provided her with an income that was greater than that which she would be able to earn in City A (at [11]). His Honour further found that, in considering whether orders should be made requiring the respondent to return the child to live in the City A area, it was appropriate that he consider that the respondent had entered into a new relationship with a person who resided in City B. In respect to those issues, at [25] of the judgment, the primary judge determined that it would be the respondent who would “pay the most substantial price, as between the parents, by being coerced to live and parent [the child] in a place not of her choosing”, which would force her to abandon her new job and place strain on her new relationship.
His Honour granted leave to the parties to file a further interim application in relation to the parenting arrangements for the child once an expert report had been provided to the Court in respect to those matters set out in s 61F of the Act.
GROUNDS OF APPEAL
The appellant’s grounds of appeal, as stated in his Amended Notice of Appeal filed 15 December 2021 and subsequently amended in his Summary of Argument filed 8 February 2022, are as follows:
1.The judge at first instance erred at law by failing to follow the statutory pathway as set out in Goode & Goode [2006] FamCA 1346; FLC ¶93-296 [sic].
2.The judge at first instance failed to provide reasons, or adequate reasons, as to why the orders are in the best interests of the child, including failing to adequately address:
a.
The practicability of either proposal;b.The impact on the child of spending significantly less time with the [appellant]; and/or
c.How the allegations of family violence, legitimately impacted on the assessment of what is in the best interests of the child.
3.The judge at first instance made findings in respect of the child’s Aboriginal culture and the benefit of the [respondent’s] application which were impermissible inferences, and not available on the evidence before him.
4.The discretion of the judge at first instance miscarried in that his Honour relied on material mistakes of fact, including:
a.That an order for the child’s residence to be in the [City A] Region would have a negative impact on her Aboriginal culture ([22]);
b.
That it was not in the child’s interests to live with the [appellant], particularly given the allegations of violence ([24]); and/orc.
That the [respondent] would pay a greater price ([26]).CONSIDERATION
Ground 1 – Failure to follow the statutory pathway set out in Goode & Goode (2006) FLC 93-286 (“Goode”)
Summary of appellant’s argument regarding Ground 1
By way of summary, in respect to this ground of appeal, the appellant’s submissions were as follows.
It is contended that the primary judge did not follow the statutory pathway and, as a result, did not discharge the statutory preconditions to enable him to make the orders, therefore erring at law.
In failing to follow that pathway, it is contended that:
·The Court must consider whether the spend time arrangements would be reasonably practicable to ensure substantial and significant time with each parent.
·The orders for the child to spend time with the appellant during the school term and school holidays are not in line with the above consideration.
·When considering the matter of geography, the primary judge did not properly consider s 65DAA(5), which required his Honour to consider whether it was reasonably practicable for the child to spend equal or substantial and significant time with the appellant.
Rejection of Ground 1
In Goode, the Full Court, at [81]–[82], set out guidance for considering an application for parenting orders on an interim basis, suggesting that a trial judge should determine what orders are in the best interests of a child by:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
…
More recently, in Banks & Banks (2015) FLC 93-637 (“Banks”), the Full Court made it clear that the principles adumbrated in Goode did not require a trial judge to engage in a ritualistic incantation of noting and addressing each and every consideration set out in s 60CC of the Act. Instead, a common sense approach should be taken, having regard to the issues raised by the parties in the proceedings. In that context, at [48]–[50] of Banks, the Full Court stated:
It should also be said that in parenting proceedings as in all civil litigation, it will be the issues that are joined that will dictate which section 60CC factors that are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the children, require determination prior to a proper determination at trial.
… there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
(Emphasis added)
An examination of the primary judge’s reasons indicates that his Honour did take such a common sense and practical approach in giving appropriate weight to relevant considerations. Most relevantly, where each parent wishes to continue living in a different city, the primary judge fulfilled his legislative responsibility of determining what orders are in the best interests of the child in the particular circumstances of this case. His approach was entirely consistent with authority.
In that respect, in SCVG & KLD (2014) FLC 93-582 (“SCVG”), the Full Court stated at [73]:
In our view [82] of Goode makes it clear that that case is not authority for the proposition that a judge must commence his or her deliberations about what interim or final parenting order is in a child’s best interests by reference to s 61DA and, if an order for equal shared parental responsibility is or will be made, to then sequentially address s 65DAA.
(Emphasis added)
Further, in SCVG, the Full Court observed at [74] that “what is significant is that in Goode the determination of what order would be in a child’s best interests commenced with the application of s 60CC.”
In this matter the primary judge, appropriately, in my view, commenced with a consideration of those relevant matters set out in s 60CC, before then considering the matters set out in s 65DAA. He did so in the context of considering the issues that require determination in these proceedings, which were the issues discussed with counsel appearing on behalf of the parties.[1]
[1] Transcript 12 November 2021, p.24 line 29 to p.25 line 3.
His Honour clearly explained why, having considered those relevant matters set out in s 60CC, he determined that it was in the best interests of the child to live primarily with the respondent and not with the appellant. Those reasons were, by way of summary, explained to be the following.
At [18], his Honour states that it is important for the child to live with her mother “in order to maintain and promote her connection with her Aboriginal culture”, in circumstances where it was not disputed that the child is an Aboriginal child. His Honour’s consideration of that issue was entirely consistent with his obligation pursuant to s 60CC(3)(h) of the Act.
While strictly unnecessary, his Honour nonetheless also took into consideration the respondent’s evidence that part of the child rearing practice of the D Nation is that traditions are passed on from mother to daughter, which was a matter that caused him to “err on the side of [the] child who is an Aboriginal and female continuing to live with her Aboriginal mother.” In so doing, the primary judge acknowledged he was unable to make findings in respect to contentious facts however, as noted by the Full Court in SS & AH [2010] FamCAFC 13 (“SS & AH”) at [100], in the context of interim proceedings “[i]t is not always feasible, when dealing with the immediate welfare of children, simply to ignore an assertion because its accuracy has been put in issue.” In this case, the respondent’s evidence was plausible and it was entirely appropriate that it was not ignored by the trial judge.
In considering the issue of risk, his Honour noted at [23] that he could not ignore the respondent’s allegations of family violence which she made against the appellant in rejecting the appellant’s proposal that the child live primarily with him and “only spend time with the [respondent] on alternative weekends – and the resulting long, unbroken periods of time the child would live with the [appellant].” The fact that his Honour did so is, again, entirely consistent with authorities that state, where issues of risk are involved, it is appropriate for a trial judge to take a conservative approach in the context of interim proceedings.[2]
[2] Marvel & Marvel (No 2) [2010] FamCAFC 101.
Thirdly, in circumstances where the respondent stated that, in the event of the Court making an order for the child to live in City A, she would move her place of residence from City B to City A, the primary judge noted at [25]–[26] that such an order would, in effect, “be coercive in nature”, requiring the mother to “abandon the job that she has obtained and the higher salary it brings”, whilst also placing strain on her new relationship.
Again, the approach taken by the primary judge was consistent with authority. In that respect, in U v U (2002) FLC 93-112 (“U v U”) at [142]–[143], Kirby J observed:
… The burden of such injustices will ordinarily fall, as here, on the wife. It will be she, not the husband, who will usually be confined, in effect, in her personal movements, emotional environment, employment opportunities and chances of remarriage, repartnering and reparenting. Effectively, as here, it is she who will be controlled by court orders that require her to live, and make the most of her life, in physical proximity to the husband's whereabouts. In this way, inconvenience to the husband is minimised. But the effect on the wife may be profound.
As has been noted by this Court and courts in other jurisdictions, significant effects on the mother's emotional, residential, economic, employment and personal life have an inevitable impact on the happiness and best interests of the child.
In terms of personal life and, specifically, the respondent having entered into a new relationship with a person who resides in City B, while noting the focus of parenting proceedings is on the best interests of the child, Kirby J, in AMS v AIF (1999) 199 CLR 160, observed that relevant to that consideration may be the impact of a proposed order on a parent, including that parent’s ability to enter into a new relationship. At [145], his Honour said:
… One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships , free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child.
To similar effect, in Bolitho & Cohen (2005) FLC 93-224, the Full Court confirmed at [72] that the proper approach to be adopted in relocation cases, as held by the High Court in U v U, is one involving the:
…weighing of competing proposals, having regard to relevant [s 60CC(3)] factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.
Having given appropriate weight to the relevant considerations as set out in s 60CC of the Act, in particular s 60CC(3)(h) together with s 60CC(2)(b), in determining that it was in the child’s best interests to primarily live with the respondent and not the appellant, the primary judge appropriately also took into consideration the respondent’s right to freedom of movement, her economic circumstances and her personal circumstances including the new relationship which she had formed in City B.
The primary judge then proceeded to consider the practicability of the child spending equal time with each parent in the particular circumstances of the parties’ case and dismissed that as being unrealistic in circumstances where the parents were to live in different cities (at [28]). Again, the approach taken by the primary judge was consistent with authority. In that respect, in MRR v GR (2010) 240 CLR 461, the High Court considered the interrelationship between ss 61DA and 65DAA in the context of the Court’s obligation to regard the child’s best interests as the paramount consideration, pursuant to s 60CA of the Act. Relevantly, the High Court stated at [15]:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. Since such parenting would only be possible in this case if both parents remained in Mount Isa, Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practicable.
(Emphasis added)
Having determined that, in the particular circumstances of the parties living in separate cities, it was not practicable for there to be an order for the child to spend equal time with each parent, the primary judge nonetheless made orders for the child to spend substantial and significant time with the appellant in the form of regular fortnightly time and time during school holidays. This provided the child with the opportunity of having a meaningful relationship with her father in terms of s 60CC(2)(a) of the Act and also with her half-sisters during those times that the children spent with the father.[3]
[3] It is accepted that the unfortunate reference to “stepsisters” at [29] of his Honour’s ex tempore reasons for judgment was an error of expression.
In summary, I am satisfied that the primary judge appropriately applied the pathway set out in Goode as informed by subsequent authorities. His Honour did this by:
·identifying the issues in dispute and the competing proposals of the parties;
·considering the range of relevant considerations as set out in s 60CC of the Act, including the child’s Aboriginality and issues of family violence;
·in applying the paramountcy principle, determining that it was in the child’s best interests to live primarily with the respondent and not the appellant;
·while focusing upon the rights of the child, also having regard to the respondent’s right to freedom of movement and the impact of the appellant’s proposal on her economic and personal circumstances, including the fact that she had established a new relationship in City B;
·having regard to those matters and determining that he would not make an order requiring the child to be returned to live in City A;
·considering the reasonable practicability of the child spending equal or substantial and significant time with the appellant. That consideration was, as sensibly it must have been, clearly influenced by the fact that the parties were to continue to live in different cities.
Accordingly, there is no merit to Ground 1.
Ground 2 – Adequacy of reasons
Summary of appellant’s argument regarding Ground 2
The appellant argues that the primary judge’s reasons were deficient in failing to explain why the orders were in the best interests of the child, including by failure to explain:
·the relevance of the family violence allegations and the considerations the Court gave in preferring the respondent’s proposed orders.
·the impact of the child not spending time with the appellant in accordance with the 12 August 2021 orders, which provided for an equal time arrangement.
Rejection of Ground 2
The reasons of the primary judge are to be read as a whole,[4] and the reasons are not to be construed minutely and finely with an eye keenly attuned to the perception of error.[5] To be adequate, it is necessary for the reasons “to engage with the nature and materiality of the [arguments of the parties] in the context of the issues in the proceedings.”[6] The primary judge adequately explained his decision. He was not required to “write an exhaustive treatise on every aspect of the trial”,[7] or to explain every forensic step in reaching the result. [8]
[4] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
[5] Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30].
[6] Wang v State of New South Wales [2019] NSWCA 263 at [62]–[63].
[7] DW v The Queen [2004] ACTCA 22 at [27], referring to Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at [385]–[386] and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at [259], [269]–[270] and [280].
[8] Cubbin & Cutler [2018] FamCAFC 84 at [13]; Pates & Pates [2018] FamCAFC 171 at [62].
Moreover, as stated in BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450 (“BKL15”), the standard to be applied, particularly in the context of a busy Court considering numerous interim applications, “is not a standard of perfection.” As relevantly noted by Flick J in BKL15 at [16]:
The judicial context in which decisions are made must necessarily be recognised – including (for example) a recognition whether a decision is of an interlocutory or final character and whether ex tempore reasons have been provided. … When an ex tempore judgment is delivered, however, it “should not be picked over” and “appropriate allowance should be given for the pressures under which judges … are placed by the volume of cases coming before them”.
(Citations omitted)
As I have noted, the primary judge specifically conferred with counsel to identify the relevant issues that required consideration in these proceedings. His reasons adequately explained the findings he made in respect to each of those issues.
I respectfully agree with the submissions of counsel for the Independent Children’s Lawyer (“ICL”) as set out in paragraph 16 of their written submissions referencing paragraphs in the judgment:
a. His Honour acknowledged the constraints of an interim hearing and the constraints on his ability to make findings [J2];
b. His Honour outlined the features of the dispute in "broad" terms [J4];
c. His Honour summarised the competing positions [J6-8];
d. His Honour acknowledged that his task was to assess the best interests in a non-piecemeal fashion;
e. His Honour dealt with the issue of disputed motivation for unilateral relocation and the difficulties of making a coercive order [J10-11];
f. His Honour outlined that he was unable to make findings on the evidence on certain contested facts regarding family violence [J12];
g. His Honour outlined the difficulty he had in determining the parties’ factual dispute concerning the [appellant’s] level of involvement in the child's life prior to relocation [J15];
h. From [J17] his Honour outlined why he made the determination he did as follows: -
i.His Honour engaged with the operation of s 61F [J18], consistent with Full Court authority in Sheldon & Weir [2011] FamCAFC 212;
ii.His Honour considered s 60CC(3)(h) and made it explicit this was a consideration apart from other matters at (2) or (3) and his difficulty in engaging with that provision considering the evidence before him [J20-22];
iii.His Honour engaged with the allegations of family violence, tellingly using the phrase 'I cannot ignore' which is derived from statements of principle in SS & AH [2010] FamCAFC 13 at [100] at [J23].
iv. His Honour indicated the issue of the aboriginal culture and interaction of the Act determined the primary person with whom the child reside [J24]. Tellingly, this did not determine the issue of time, nor the issue of location of residence given the matters outlined by his Honour earlier in the decision.
v.His Honour dealt with the reason he would not make a coercive order for the return of the mother whilst also considering the contested family violence allegations and the cultural matters at [J25];
vi.His Honour dealt with the practical consequences of the impact of a relocation decision [J26-28];
vii.His Honour engaged with the outcome of his decision in terms of effect on relationship using the language of 'ideal' and 'optimal', making it clear his Honour was aware of Full Court authority [J29];
viii.His Honour dealt with a number of practical consequences for the child of the decision [J30]; and
ix.His Honour dealt with the issue of equal shared parental responsibility [J33].
With regards to paragraph h(i) of the ICL’s submissions, s 61F was introduced into the Act by the Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth). At [108] of Sheldon & Weir [2011] FamCAFC 212, the Full Court observed, quoting Davis & Davis and Anor (2007) 38 Fam LR 671 at [79]:
The 2006 amendments strengthened the language of the provisions in relation to the cultural needs of indigenous children. They introduced a specific right of the child to, inter alia, ‘explore the full extent’ of his or her culture and ‘to have the support, opportunity and encouragement necessary’ to do so. A child of Aboriginal heritage also has the right to ‘develop a positive appreciation of that culture’. The previous legislation required the court to consider ‘the need’ of an indigenous child to maintain a connection with his or her culture. By comparison, the new language creates a far greater imperative for the court to give consideration to issues of culture. Certainly, the 2006 amendments imbued the notion of ‘connection’ with a stronger and more active meaning.
Further, in respect of paragraph h(iii) of the ICL’s submissions, at [100] of SS & AH, the Full Court stated:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
(Emphasis added)
In summary, in respect to Ground 2, the adequacy of primary judge’s reasons must be considered in the current context, being an application for interim parenting orders. His Honour was required to exercise a broad discretion with a view to making such orders as he considered to be in the best interests of the child, despite acknowledging that:
·further and better evidence was required in respect to the significance of the child’s acknowledged aboriginality; and also
·his Honour was unable to make findings in respect to the respondent’s allegations of family violence.
His Honour’s approach and the reasons he provided were consistent with the guidance provided in SS & AH at [88] that “findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
Accordingly, I find that this ground of appeal is also without merit.
Ground 3 – Findings in respect to the child’s Aboriginal culture
Summary of the appellant’s arguments regarding Ground 3
The appellant contends that the primary judge’s determination that the child should live with the respondent to maintain her “engagement with her Aboriginal culture” was premised “on the [respondent’s] evidence in respect to kinship obligations and the [respondent’s] assertions that ‘traditions are passed from mother to daughter’”.
The appellant further contends that the primary judge erred in inferring that an order refusing the relocation would result in the child being removed from the appellant’s primary care and, hence, the child’s connection with her Aboriginal culture and tradition.
Rejection of Ground 3
While the primary judge acknowledged that additional evidence was required in order for the Court to adequately consider the matters set out in s 61F of the Act, that reservation did not mean that the fact of the child’s Aboriginal culture was irrelevant or that it could be ignored.
Section 4 of the Act defines an “Aboriginal child” as meaning a child who is a descendant of the Aboriginal people of Australia. In this case, it was acknowledged by both parties that the child is an Aboriginal child born of the respondent, who is an Aboriginal woman of the D Nation.
Section 60CC provides that, in those circumstances, that is, where the child is an Aboriginal child, the Court “must consider” in accordance with s 60CC(3)(h):
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right.
While the primary judge acknowledged that there were aspects of the respondent’s culture and kinship that required further evidence, it was entirely proper and, indeed, consistent with his Honour’s obligation pursuant to that sub-section, to have regard to the child’s right to enjoy her Aboriginal culture “with other people who share that culture.” It was unnecessary for the primary judge to make findings in respect to the depth and richness of the culture of the D Nation and how that culture is passed from generation to generation. It was sufficient for the primary judge to be satisfied, to the extent required in the context of interim proceedings, that the child shares her Aboriginal culture with the respondent and the orders which he made for the child to live with the respondent, rather than the appellant, were consistent with the child’s right to enjoy her Aboriginal culture, including with others who similarly enjoyed that culture being, in this case, most relevantly, her mother.
In that respect, s 61F is not to be read as narrowing the rights of an Aboriginal child to enjoy their culture. That is, the mandatory obligation of the Court to consider those matters set out in s 60CC(3)(h) is not constrained by a precondition of the Court being in a position to make a determination in respect to any kinship obligations and, relevantly in this matter, child rearing practices of the D Nation. This is made clear by the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth), the legislation that introduced s 61F, which relevantly provides at paragraph 131:
New section 61F implements recommendation 1 of the Family Law Council's December 2004 Report, Recognition of Traditional Aboriginal and Torres Strait Islander Child-Rearing Practices: Response to Recommendation 22: Pathways Report, Out of the Maze. The purpose of this provision is to ensure that the unique kinship obligations and child-rearing practices (such as the involvement of extended family) of Aboriginal and Torres Strait Islander culture are recognised by the court when making decisions about the parenting of an Aboriginal or Torres Strait Islander child. This provision is consistent with other amendments to facilitate greater involvement of extended family members in the lives of children.
In this matter, his Honour was not concerned with the involvement of extended family members in the life of the child. His focus was on determining which of the parents the child should live with in circumstances where it was impracticable for the existing equal time arrangement to continue while each parent lived in different locations.
The second aspect of the appellant’s argument concerning this ground of appeal is, with respect, without merit. The primary judge did not infer “that an order refusing the relocation would result in the child being removed from the mother’s primary care.” Indeed, his Honour specifically noted the respondent’s stated intention that she would move her place of residence in the event of the Court making an order that the child should be returned to live in the City A region. It was at no stage contemplated that the child would be removed from the respondent’s primary care.
Accordingly, Ground 3 is also wholly without merit.
Ground 4 – Factual error regarding relocation and the associated negative impact on the child experiencing her Aboriginal culture
Summary of appellant’s argument in respect to Ground 4
The appellant acknowledged that this ground is substantially related to the second aspect of Ground 3, to which I have earlier referred.
Essentially, it is contended that the primary judge erred in determining that, if orders were made for the child to be returned to live in the City A region, the child would “be removed from the care of the [respondent] and thereby removed from her ties with her Aboriginal culture.” It was noted, in that respect, that the appellant sought an alternative form of order whereby, in the event of the respondent returning to also live in the City A region, the Court make orders for the child to spend time with the parties on an equal time basis.
Rejection of Ground 4
The trouble with this argument is that at no stage in his decision did the primary judge determine that, if orders were made for the child to be returned to live in the City A region, she would be removed from her Aboriginal culture. As previously noted, what his Honour did find was that the fact that the child is Aboriginal was a factor that he considered as favouring orders being made for the child to live primarily with the respondent rather than the appellant. That consideration, together with the others to which I have earlier referred, was clearly explained by his Honour as underpinning his decision as to who the child should live with.
Having made that decision, his Honour then proceeded to determine whether he should make orders requiring the child to be returned to live in the City A region, in circumstances where it would detrimentally impact upon the respondent in terms of her employment and her new relationship. Having regard to those matters, in particular, his Honour rejected the appellant’s submission that orders should be made that resulted in that detrimental impact upon the respondent.
As earlier noted, after having proper regard to material s 60CC considerations as well as the rights of the respondent, the primary judge then proceeded to determine whether, in circumstances where the respondent was to remain living in City B, it was reasonably practicable for the child to spend equal or substantial and significant time with the appellant. For reasons which I have explained, that was an entirely appropriate pathway for the primary judge to follow and one that is consistent with the decision of Goode and subsequent authorities.
His Honour’s application of that pathway did not include a finding, by inference or otherwise, that an order requiring the child to be returned to live in City A would separate the child from her Aboriginal culture.
Accordingly, this ground of appeal is also without merit.
CONCLUSION AND COSTS
Having found a lack of merit in all of the appellant’s grounds of appeal, the appeal must be dismissed.
As I foreshadowed at the hearing of this appeal, I will make orders facilitating the respondent and the ICL filing respective submissions of no more than two pages in respect to the issue of costs, and for the appellant to have an opportunity to reply with a submission of similar length. The orders will provide for each party to have 14 days respectively for those submissions to be made.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 13 May 2022
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