Pengleton and Faram
[2020] FamCAFC 2
•8 January 2020
FAMILY COURT OF AUSTRALIA
| PENGLETON & FARAM | [2020] FamCAFC 2 |
| FAMILY LAW – APPEAL – PARENTING – Where the parents live approximately one hour and forty minutes’ drive apart – Where the parents separated when the child was 6 months old – Where the parents facilitated an equal shared care arrangement without Court orders until the child reached school age – Where both parents sought orders providing for the child to live with them and attend the local primary school – Where the trial judge ordered that the child remain living with the mother – Where a change of care from the mother to the father was not in the child’s best interests – Where the child had been in the primary care of the mother for an extended period of time prior to trial – Where the child had close relationships with her half-brother and the extended maternal family – Where the trial judge found that the mother adequately supported the child’s relationship with the father – Where the father alleges the trial judge gave inadequate reasons and mischaracterised the family report writer’s evidence – Where the father asserts the trial judge made erroneous findings as to the significance of a move from the mother’s care to the father’s and failed to consider s 60CC(3)(l) – Where none of the father’s challenges are established – Appeal dismissed – Where there is no order as to costs. |
| Family Law Act 1975 (Cth) ss 60CC(3), 65DAA |
| Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232 AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gelbvieh & Senepol [2007] FamCA 476 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22 Simmons & Kingley (2014) FLC 93-581; [2014] FamCAFC 47 U v U (2002) 211 CLR 238; [2002] HCA 36 |
| APPELLANT: | Mr Pengleton |
| RESPONDENT: | Ms Faram |
| FILE NUMBER: | BRC | 11319 | of | 2017 |
| APPEAL NUMBER: | NOA | 23 | of | 2019 |
| DATE DELIVERED: | 8 January 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 8 August 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 February 2019 Orders issued: 21 February 2019 |
| LOWER COURT MNC: | [2019] FCCA 277 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person via telephone |
Orders
The respondent mother be given leave to appear by telephone at the hearing of the appeal.
The appeal be dismissed.
There be no order as to costs of the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pengleton & Faram has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 23 of 2019
File Number: BRC 11319 of 2017
| Mr Pengleton |
Appellant
And
| Ms Faram |
Respondent
REASONS FOR JUDGMENT
Mr Pengleton (“the father”) appeals from final parenting orders[1] made in the Federal Circuit Court of Australia (“FCC”) on 21 February 2019 concerning the child, X, who was born in 2013 and is now aged six years. Ms Faram (“the mother”) opposes the appeal.[2]
[1] Made pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).
[2] A determination has been made pursuant to s 94AAA(3) of the Act that in respect of this appeal it is appropriate for the appellate jurisdiction to be exercised by a single judge.
The orders were made in circumstances where the parents were living a driving distance apart of about one hour and forty minutes (Suburb B – Town C). Having regard to the child’s needs with respect to attending school, an equal time/week about care regime as the parents had previously maintained for some years prior to the child reaching school age (prior to 2018) was not feasible whilst the parents continued to live that distance apart.
At trial, the father proposed orders predicated upon him continuing to live in Suburb B, Brisbane. The father proposed that the child live with him and spend alternate weekends/half school holidays with the mother. However, in the event that the mother relocated from Town C to within a 30 kilometre radius of the father’s residence, the father proposed orders providing for an equal time/week about care regime. The father seeks the same orders on appeal.
For her part, the mother proposed orders at trial predicated upon her continuing to live in Town C where she had been living since mid-2016. The mother proposed that the child live with her and spend alternate weekends/half school holidays with the father.
Both parents proposed that there be an order for equal shared parental responsibility.
In the result, the orders made by the trial judge provide for the parents to have equal shared parental responsibility for the child; for the child to live with the mother and for the child to spend time with the father, in summary, on each alternate weekend, for half school holidays and for identified special days.
On appeal, the father contends that the trial judge provided inadequate reasons as to why equal time was not considered (Ground 1) and as to why s 60CC(3)(l) and what he characterised as “contraventions” of orders by the mother were not considered (Ground 5). The father further contends that the trial judge erred in finding that a potential move for the child (from the mother’s primary care to that of the father) would be “significant” (Ground 2). The balance of the father’s challenges (Grounds 3 and 4) are directed to the manner in which the trial judge dealt with the evidence of the family report writer, including a challenge that the trial judge failed to afford the father procedural fairness in “falsely quoting the family report writer”.
For the reasons which follow, none of the father’s challenges on appeal are established with the consequence that the appeal is to be dismissed.
Relevant factual context
The father was born in 1980 and is 39 years old. The mother was born in 1976 and is 43 years old. The parties commenced cohabitation in September 2012 and, as noted, X was born in 2013. The parties finally separated in January 2014 after a cohabitation period of only about 16 months and when their child was only about 6 months old.
As regards post-separation care arrangements for the child, a striking feature of this case, given the child’s age, is that upon separation the parents commenced to facilitate a shared care/week about arrangement, without any Court orders, which subsisted from 2014 until about January 2018. This shared care parenting arrangement was maintained even though the mother relocated from City D to live in Town C in 2016 to be close to her parents, the maternal grandparents of the child.
Taken from the family report prepared by Family Consultant, Ms F and dated 9 May 2018:
12.From early 2014, whilst [X] resided with [Mr Pengleton] she attended child care five days a week due to his work commitments. Initially, [X] also attended child care five days a week whilst living with [Ms Faram]. However, this changed when [Ms Faram] met her then partner, [Mr G], and moved in with him around August 2014. [X] did not attend any child care whilst they resided with [Mr G] (approximately two years).
13.When [Ms Faram’s] relationship ended with [Mr G] around July 2016, she moved to [Town H] where [X] was enrolled in child care two days a week.
The catalyst for the parenting dispute leading to the subject litigation concerning the child’s care arrangements was the anticipated commencement of the child’s prep year of school in 2018. Given the geographical distance between the parents’ respective residences (Suburb B/Town C), the shared care/week about arrangement could not be sustained whilst that geographical distance existed once the child was attending school. Reference has already been made to the parents’ respective proposals/positions.
The parents attempted mediation in July 2017 which was unsuccessful and on 26 October 2017 the father instituted proceedings in the FCC.
An important consequence of the parental dispute concerning the child’s school attendance was a hiatus in the child spending time with her father. In about December 2017, the mother ceased the “week about” arrangement that had subsisted since the child was six months old. On 6 January 2018, the mother sent a text to the father advising him that the child had been enrolled at Town C State School and that she would not be attending a scheduled changeover on 20 January 2018. On 22 January 2018, there was an unfortunate event where the father attended the Town C State School and attempted to remove the child from the school. In the result, it was not until 15 March 2018 that the child spent time with the father.
In advance of the final trial of these proceedings which took place on 29 January 2019, interim orders were made by consent on 12 November 2018 providing, in summary, for the parents to have equal shared parental responsibility; for the child to live with the mother; and for the child to spend alternate weekends with the father.
As at trial in January 2019, the mother and the child had been living in Town C since mid-2016. As already referred to, in the initial stages that was on a week about arrangement which came to an end at the end of 2017. The child commenced attending her prep year at Town C State School in January 2018.
Living with the mother and the child was the mother’s second child born in 2015 from the mother’s relationship with Mr G which had subsisted between about August 2014 and July 2016 when, as earlier noted, the mother returned to live in Town C near her parents. As at trial, whilst working part-time as a cleaner, the mother was seeking to qualify to work in aged care. The mother had then recently purchased acreage in Town C on which she intended to build her home.
With respect to the father, he re-partnered with Ms J in 2014. As at trial, the father’s household at Suburb B also included Ms J’s two children then aged about 13 years and about 10 years respectively. Also, the father’s then six year old son from a previous relationship was spending about six nights per fortnight in the household. The father was engaged in full-time employment, as was Ms J.
Central findings of the trial judge
At [8] of the reasons, the trial judge recorded that from the time the child was six months old the parents had facilitated a shared care/week about arrangement for the child. As to this the trial judge found:
… This is quite an extraordinary achievement by these parents. It is very rarely the case that parents of such a young child are able to agree and are able to facilitate a week about shared care arrangement…
At [11], the trial judge noted that the week about shared care arrangement continued even after the mother’s relocation to Town C in 2016.
At [10], the trial judge found, in relation to the mother’s relocation to Town C in 2016, that the primary reason for the mother’s move was because of her own parents living there; that in circumstances of her father’s ill-health the mother went there to support her parents; and that in addition and “very importantly” the mother derives “significant emotional and other support from the maternal grandmother”. There is no challenge on appeal to any of these findings.
Commencing at [12], the trial judge discusses the disagreement that arose between the parents as to where the child was to attend school and the events which transpired in consequence of that disagreement, including each parent enrolling the child in a school local to the parent. At trial, and on appeal, the father seeks to characterise the mother’s withdrawal of the child from the week about/shared care regime as evidencing the mother’s lack of support for the child/father relationship with potential adverse consequences for a meaningful child/father relationship being maintained into the future. Critical to that attempted characterisation are the following findings of the trial judge:
21.I have had the opportunity, of course, to listen to the mother’s evidence, the father’s evidence and had regard to the affidavits and annexures and the other evidence in the case. I have come to the conclusion that if a changeover had taken place in January 2018 and the child had moved from the mother’s residence to the father’s residence that, it is highly likely, that the father would have placed the child into [Suburb K] State School for the first day of school for 2018. That much is clear enough from the father’s text messages which form part of Annexure – 10. The father stated: -
“There will be a changeover.
It’s certainly not in [X’s] best interest to attend prep in [Town C]. Education is certainly paramount and I have enrolled her in school already.”
…
23.On the available evidence the inference I draw is that the father was going to place the child into [Suburb K] State School in January 2018, if a changeover had occurred.
24.I consider that it is disingenuous of the father to criticise the mother for “holding over” the child and placing her into [Town C] State School. I have come to the conclusion, on the available evidence and in particular having had regard to hearing the father’s evidence in the witness box that if the child had been with the father on the first day of school in 2018 – that [X] would have been attending [Suburb K] State School.
(As per the original)
Commencing at [31] is the trial judge’s discussion of relevant provisions within Part VII of the Family Law Act 1975 (Cth) (“the Act”). At [33] and [36], the trial judge records that the child has a loving and meaningful relationship with both parents.
Importantly, at [36], with reference to s 60CC(3)(b) of the Act, the trial judge records that the child also has a loving relationship with her sibling L and that the child is “also very close to her maternal grandparents – in particular her maternal grandmother”. The trial judge records that the child sees her maternal grandmother “every second day in the town of [Town C]” and that the maternal grandmother cares for the child and her brother L on at least one day per week. It is in this context the trial judge records at [40]:
40.As to section 60CC(3)(d) – it would amount to a significant change for the child if the primary residence was moved from [Town C] (with her mother) to [Suburb B] (with her father). The child would also see her maternal grandparents less than she already does at the moment. The same goes for her brother, [L].
The trial judge also records that the child also has a loving relationship with each of, respectively, the father’s other child; the father’s partner; and each of her children (at [37]).
The trial judge records essentially positive findings about each parent with respect to the applicable and respective additional considerations expressed in s 60CC(3) of the Act (at [39], [42] and [45]). Relevant to one of the father’s complaints on appeal, which will be further discussed, is the trial judge’s finding at [47] with respect to s 60CC(3)(l) that “it is not especially applicable in this case”.
Much of the father’s case at trial rested upon the contention that the mother had demonstrated a failure to recognise the importance of the relationship between the child and the father by ending the equal shared care arrangement in January 2018. The father repeats that contention on appeal in an effort to demonstrate error on the part of the trial judge including with respect to the trial judge’s conclusion about s 60CC(3)(l). However, it can be seen from a review of the reasons for judgment of the trial judge that his Honour gave careful and detailed consideration to the father’s case in this respect.
At [49] of the reasons commences the trial judge’s consideration of the father’s case that the mother failed to recognise the importance of the child/father relationship and/or may not promote that relationship in future. At [49], the trial judge records the central finding that on a proper overview of all of the evidence the opposite of the father’s case was true. That central finding is supported by the findings which commence at [50] and following of the reasons. At [50], the trial judge refers to the mother’s longstanding support of an equal time arrangement from when the child was only six months old, continuing after the mother’s relocation to Town C in 2016. The trial judge records:
50.Without any Court order, and from the very young age of six months – this child lived in a week about shared care arrangement between the parents. The mother maintained this arrangement for four years – even after she had moved to [Town C]. I accept the mother’s evidence that, on occasions, the situation was becoming quite trying because the father would seek to vary arrangements, depending upon [M’s] circumstances. [M] does not live permanently in the household of the father. But the point is – that the mother facilitated this week about shared care arrangement. Clearly, this mother understood – and continues to understand – the importance of the father’s role in the child’s life. The fact that a dispute arose between the parents as the child approached school-age does not diminish the fact that the mother values the father’s role in the life of the child. The mother understands that the child’s relationship with the father is extremely important and, from the time of the child’s birth (until the current dispute arose) the mother facilitated equal time arrangement.
At [52], the trial judge records that notwithstanding that at the time the family initially moved to Suburb B the mother did not particularly want to move there, the mother did so to support the father’s relationship with his other child. The trial judge found that evidence to be “consistent with the view that I have formed in relation to the mother and her understanding of the important role of fathers – and in particular this father – in the life of his children”.
At [53] and [54], the trial judge makes reference to the mother’s withdrawal of her support to the child seeing the father in the context of the parental dispute as to which school the child was to attend and the father refusing to sign an undertaking to return the child to the mother after time spent with him.
At [55] and [56], the trial judge sets out, and considers, the evidence of the family report writer including the family report writer raising in her report, (expressed as a possibility rather than as a probability), that the mother “may not recognise or may be minimising the importance of [the child’s] relationship with [the father]” (emphasis added). The trial judge there sets out his reasoning for coming to a different conclusion as follows:
… For the reasons that I have stated I do not accept that the mother has failed to recognise the importance of the child’s relationship with the father. Furthermore, I do not accept that the mother has minimised the importance of the child’s relationship with the father. The conclusion I have reached is that the mother’s decision to enrol [X] into prep at [Town C] came about because the child was, at that stage, with the mother. The conclusion I have reached is that if the child was with the father at the beginning of 2018 – the father would have placed the child into [Suburb K] State School on the first day of school in 2018 – in accordance with his stated intention and his enrolment of the child in that school. It is true that the mother subsequently ceased the child’s visits with the father. This was during the period of heightened mistrust between the parents. As noted by the report writer, the father would not complete paperwork as requested by the mother. A parent (in this case the mother) does not go from facilitating a week about shared care arrangement for four years to, suddenly, not understanding the importance of [X’s] relationship with her father. Of course the mother understands the importance of that relationship. Her actions over many, many years confirm this conclusion…
Similar findings to those to which specific reference has already been made are repeated in the paragraphs which follow (in particular at [57] to [62]).
At [63], the trial judge records a finding as to the mother having achieved stability in her life and domestic and living circumstances. At [64], the trial judge records findings as to the child being “very well settled in the school of [Town C]”; that her report cards are “glowing”; and that the child has formed friendships in her school that are important to her. It is in this context that the trial judge then gives specific consideration to the significance of moving the child from the mother’s primary care to that of the father. At [65] to [67], the trial judge records:
65.The report writer says that, if the Court considered it in the child’s best interests to move the child’s residence to the father – the child (with the support of both parents) would cope. That is probably correct. However, the family report writer also noted in her evidence in Court that such a move would be significant to the child. The conclusion I have reached is that it would be a very significant adjustment for the child. Based on the available evidence – the conclusion I have reached is that a change of residence and a change of school would be a major disruption for this little girl. The child is well settled in her current living arrangement. The child is well settled in her current schooling arrangement.
66.The evidence discloses that if the child moves to live with the father then the child’s day will commence at 6:00am. The father lives in [Suburb B] but works in [Suburb N] in Brisbane. [Ms J] also works full-time. The older children living in that household, of course, head off to school. [M] goes to [Suburb K] State School but is a few years older than [X], of course. They would not be in the same class. It would be necessary for the child to be placed into before school care and, it seems, after school care. The family report writer said:-
“That could certainly be a big day for a very young child, and if she’s not used to it as well, that could take some time to adjust…. I think it would be another factor, though, in terms of the significance of that change and it being another…difference for her to have to adjust to.” (Note pages 69 and 70 of the transcript of 29 January 2019).
67.It would indeed be a big day for a very young child. I understand that many children have to attend before and after school care but the Court is currently considering where the best interests lie for young [X] – not any other child.
(As per the original)
Grounds of appeal
Ground 1 – The learned trial judge provided inadequate reasons as to why equal time was not considered
Whilst this ground as drawn by the self-represented father constitutes a challenge to the adequacy of the reasons provided by the trial judge, in the manner in which the ground is argued in the father’s Summary of Argument for the appeal, the essential complaint is that the trial judge did not consider the father’s proposal of 50/50 care of the child if the mother and child were living in the Brisbane area.
The fundamental flaw in this contention is that at no point at trial (at which the father was represented by solicitors and experienced counsel) was it ever suggested that a coercive order should be made requiring the mother to relocate to the Brisbane area. Nor could such an extreme order have legitimately been sought on the evidence.
At trial, it was the father’s proposal that he would continue to live in Suburb B. It was the mother’s proposal that she would continue to live in Town C. Neither parent contemplated moving to live sufficiently proximate to the other as would make an equal time order reasonably practicable. Nor did either parent, it needs to be repeated, agitate a case for a coercive order to be made requiring the other parent to relocate, as there was no sufficient evidentiary basis for such an order to be arguable.
As the High Court emphasised in MRR v GR[3] at [15], with respect to s 65DAA of the Act, that section is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time (or substantive and significant time) spent by a child with each parent; and that reality requires a practical assessment of an order for equal time (or an order for substantial and significant time).
[3] (2010) 240 CLR 461.
Further, it follows from the decisions of the High Court in AMS v AIF[4] and U v U[5] that in parenting proceedings there is no requirement for a parent to demonstrate “compelling reasons” to live where the parent proposes to live; and parental rights including the right of freedom of movement only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected so as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
[4] (1999) 199 CLR 160.
[5] (2002) 211 CLR 238.
There was no evidence in this case, including via the expert family report writer, that the best interests of the child would be so adversely affected by a continuation of the geographical distance between the residences of her parents that a coercive order had to be made. Neither party sought such an order. As the Full Court of this Court explained in Adamson & Adamson[6] it is a rare and exceptional exercise of discretion for a coercive order to legitimately be made. However, the point of emphasis here is that neither parent ever sought such an order before the trial judge.
[6] (2014) FLC 93-622.
In this case, the reality of the situation of the parents and the child was that an equal time order could not reasonably be contemplated whilst the geographical distance between the parents existed. So much was clear from the parents’ respective proposed orders and the evidence of the expert family report writer. To repeat, neither party sought a coercive order against the other, in terms of that party’s choice of place of living and, on the central findings of the trial judge summarised above, there existed no basis whatsoever for a coercive order to be contemplated.
It is well settled that the requisite extent and content of reasons depends upon the particular case under consideration and the matters in issue; the reasons must do justice to the issues posed by the parties’ cases.[7]
[7] See, for example, Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 per McColl JA.
As to equal time, the trial judge observed at [41] and [72] of the reasons as follows:
41.There are already practical difficulties and expenses for this child spending time with her parents. This is because the parents live approximately one hour and forty minutes apart. But, of course, it is not an impossible situation.
...
72.As to equal time – (s.65DAA) as matters currently stand it is not reasonably practicable. The parents live too far apart. If the parties lived closer together it would be reasonably practicable and it would be in the child’s best interests.
The trial judge was not required to give any more detailed explanation than he gave for consideration of an equal time order in circumstances where the proposal of each parent was to continue living where each had chosen to live.
There is no substance to this ground of appeal.
Ground 2 – The learned trial judge erred on the facts in finding that a potential move for the child would be significant
Ground 3 – The learned trial judge failed to afford the appellant procedural fairness in falsely quoting the family report writer
As these grounds were addressed together in the father’s Summary of Argument, it is convenient to take that same approach.
As already noted in summarising the central findings of the trial judge, his Honour made a finding at [40], in considering s 60CC(3)(d) of the Act that:
… it would amount to a significant change for the child if the primary residence was moved from [Town C] (with her mother) to [Suburb B] (with her father). The child would also see her maternal grandparents less than she already does at the moment. The same goes for her brother, [L].
The finding made by the trial judge is hardly surprising. Whilst the father seeks to agitate a proposition to the effect that the trial judge relied mainly, or solely, upon a change of school and the loss of school friends as the bases for the finding, that is plainly not so when the reasons for judgment are read as a whole. On the trial judge’s central findings, the proposed change would involve, quite apart from those important schooling issues, at least the following:
a)The child no longer experiencing day to day life in Town C living in the primary care of her mother;
b)The child would no longer be living with her brother L as part of her day to day household;
c)The child would no longer experience the frequent care of her maternal grandmother and her regular contact with her maternal grandparents.
In summary, the subject finding was plainly open to be made on the evidence as a whole before the trial judge and could not sensibly be characterised as wrong by reference to “incontrovertible facts or uncontested testimony”; or as “glaringly improbable” or as “contrary to compelling inferences”.[8]
[8] Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 per French CJ, Bell, Keane, Nettle & Gordon JJ.
Moreover, it bears emphasis that the issue considered, that is, the significance of the proposed change was not a matter susceptible of scientific demonstration or proof. As the plurality of the High Court observed in CDJ v VAJ:[9]
151.… Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order...
[9] (1998) 197 CLR 172 at [151].
With respect to the father’s criticisms of the trial judge’s approach to the evidence of the expert family report writer, it appears the father proceeds on the foundation that the trial judge was somehow bound to accept, and act upon, the evidence of that expert. Clearly, that is not the position. Numerous authorities of this Court have repeatedly emphasised that as a matter of law a trial judge is not bound to accept or act upon the evidence of an expert, this being ultimately a matter for the trial judge in the proper exercise of the discretion as to the weight to be given or the use to be made of expert evidence.[10] As is pointed out in at least some of those same authorities[11] a trial judge hearing all of the evidence on oath or affirmation, tested by cross-examination, enjoys an advantage not shared by the expert.
[10] These authorities are conveniently collected together at [42] of Simmons and Anor & Kingley (2014) FLC 93-581.
[11] See, for example, Gelbvieh & Senepol [2007] FamCA 476 at [114].
As already recorded above, at [65] of the reasons the trial judge recorded the following:
65.The report writer says that, if the Court considered it in the child’s best interests to move the child’s residence to the father – the child (with the support of both parents) would cope. That is probably correct. However, the family report writer also noted in her evidence in Court that such a move would be significant to the child. The conclusion I have reached is that it would be a very significant adjustment for the child. Based on the available evidence – the conclusion I have reached is that a change of residence and a change of school would be a major disruption for this little girl. The child is well settled in her current living arrangement. The child is well settled in her current schooling arrangement.
(Emphasis added)
In her family report, the report writer opines, in summary, that both the proposal of the mother and that of the father are in the child’s best interests (paragraph 106); that the report writer cannot make a recommendation as to which is better for the child (paragraph 109); that the child would “likely cope” transitioning from the mother’s care to that of the father if so ordered (paragraph 107(c)); and that timing is an important factor as the longer the dispute carried on, the harder it would be to transition if required to (paragraph 110).
In that context, it bears emphasis that eight months had elapsed since the family report was prepared over which period the child obviously continued to live in Town C with her mother and brother and to attend the local school. The child had restarted the 2019 school year prior to the subject orders being made.
In her oral evidence at trial, the report writer initially re-emphasised that the child would “probably cope reasonably well” with moving and changing schools.[12]
[12] Transcript 29 January 2019, p.62 lines 18-24.
Review of the trial transcript discloses that when the report writer was giving oral evidence the trial judge sought to update the family report writer on relevant matters since her report was prepared. There were these relevant exchanges between the trial judge and the expert:[13]
Yes. All right. What role in your thinking or your opinion, or to what – how much weight should the court give to the fact that the child has had that first year of prep and established relationships with the children in the area, and has her pony there, and these sorts of things? I mean, have you got a particular view one way or the other about how important those things are?---I think for [X] at the moment I’m sure they are very central in her life, and now it has been a much longer time. This has now become kind of her normal - - -
Yes, I know?---Her normal life. So I think disruption to that is going to have the potential to have some impact, but in saying that I think developmentally she, with the right support – and I’ve noted this in my report, that because of the good relationships with both parents, if both parents are supportive of whatever decision is made, I do think she will cope with that. It just is likely to be a bigger disruption now because there has been more time that she has had to settle into the current living arrangement.
(Emphasis added)
[13] Transcript 29 January 2019, p.68 lines 5-19.
The trial judge then asked the expert to comment upon the potential impact upon the child of the mother not coping with the stress of an order for the child to live with the father. In the course of that there was this exchange between the trial judge and the expert:[14]
… What impact upon the child, [X], might there be if this court was to decide that [X] should live primarily with the father and have alternate weekends with her mother, because the mother’s up in [Town C]? What impact upon the child of this question of the mother’s fragility or emotional stability, or if there was to be a negative impact in that regard? Noting she currently takes anti-depressants for different reasons, when I’m not quite certain precisely why – but health reasons, as prescribed by a general practitioner. When you add that to the other evidence that you elicited about the practical and emotional support she needs from her own mother, is there a risk that – of detriment to [X] in circumstances where her mother is up in Town C and, as it were, not able to adjust to the fact that the child’s no longer living with her, if I can – I’m only using it in broad terms, and there’s certainly no specific evidence about this. But you said your specialty was in – your qualifications were in psychology too, didn’t you?---Mmm.
Are you able to give any comment or assistance to the court about that?---I think for [X] children can – and even children – I think she’s five and a half now, I noted. Even young children are quite sensitive to their parents’ emotions and their parents’ stress, and I think the only concern I would have is if the mother was struggling with that decision and the change, and was having difficulty containing and managing that around [X], that would be potentially a little bit of a concern for [X] because children can be – children can become very worried about their parents and feel, you know, the need to comfort and have some responsibility for that.
[14] Transcript 29 January 2019, p.68 line 40 to p.69 line 12.
Following those exchanges the mother, who represented herself at trial, undertook a short cross-examination of the expert. The mother put to the expert the practical ramifications of the child living with the father in terms of the daily routine in that household in circumstances of the father and his partner leaving home early for work. There was this exchange between the mother and the expert:[15]
[MS FARAM]: Okay. I’ve just got one item. [Mr Pengleton] brought to my attention that if [X] did reside with him she would have to attend before-school care. So he said the daily routine would be getting up at 6 am, going – getting ready, going to before-school care, then school, and then it takes either [Mr Pengleton] or his partner to pick up from after school within half-an-hour. So potentially having an 11 hour day for a five year old, is that going to impact her learning capability and health? Could it?---That could certainly be a big day for a very young child, and if she’s not used to it as well, that could take some time to adjust. It’s – I don’t know if I can comment about how that might impact on her learning capability. I mean, because a lot of kids do have before and after school care. I think it would be another factor, though, in terms of the significance of that change and it being another - - -
Further adjustment?--- - - - difference for her to have to adjust to.
(Emphasis added)
[15] Transcript 29 January 2019, p.69 line 38 to p.70 line 4.
As is clear from the transcript of the oral evidence of the expert, the expert herself referred to the potential change in terms of “disruption”, “risk of detriment” and herself referred to the “significance of that change” for the child.
The father’s contention that the trial judge misquoted the expert is untenable. Moreover, it was quintessentially a matter for the trial judge to determine the question of the likely effect upon the child of such a proposed change which, as already noted, involved a prediction as to the future not susceptible to proof or scientific demonstration. As is clear from [65], the trial judge concluded that a change of residence would be a “major disruption” for the child, a finding plainly open on all of the evidence.
There is no substance to these challenges.
Ground 4 – The learned trial judge failed to take into account a material consideration offered by the family report writer
Because this ground of appeal as stated contains no particulars sufficient to identify the error contended for, it is necessary to supplement the ground by reference to what is contained in the father’s Summary of Argument. In that summary, this ground appears to be described as a “[f]ailure to recognise the importance of the relationship between the child and the father”.
The father’s Summary of Argument selectively quotes from the written report of the expert family report writer where the expert addresses the mother’s suspension of the shared care arrangement; the expert’s commentary upon what the mother reported as X not saying anything or the mother not noticing anything when contact was suspended; the mother’s decision to enrol X into prep and the possibilities raised by the expert as to the mother possibly not recognising or may be minimising the importance of the child’s relationship with the father.
As already noted, the trial judge discussed at some length in the reasons for judgment the father’s case in this respect. The arguments on appeal amount to no more than a re-hash of the case presented to the trial judge which the trial judge carefully considered and dealt with in the comprehensive reasons for judgment already referred to.
It bears repeating that the trial judge was not bound to accept any opinion expressed by the expert. Moreover, it bears emphasis that the expert raised some possibilities, not expressed as probabilities, with respect to some of these aspects which the father seeks to elevate beyond that status.
Notably, in the course of her oral evidence at trial the expert had the following exchange with the trial judge concerning the expert’s observations of the child with the father following the suspension of time:[16]
[16] Transcript 29 January 2019, p. 67 lines 11-32.
… Now, what I wanted to just double-check with you, your observations of the child with the father, and the child with members of the father’s family, were very positive, weren’t they?---Yes.
That’s right. And that’s in the context of the child not having seen the father for some months, wasn’t it? You saw them in April 2018?---Yes.
Is that right?---I think there had been – there had been one visit that was
- - -
That’s right, a March visit?--- - - - semi-recently.
That’s right, yes. Does that indicate to you that notwithstanding that the child had not seen her dad, except for once in the lead-up to seeing you, the good rapport – does that indicate to you that the mother must be encouraging the child’s relationship with the father, notwithstanding that there had been no face-to-face time? I understand that?---Yes, I think it certainly would suggest that there’s not a negative influence there - - -
Yes?--- - - - to try to disrupt that.
Yes?---Yes.
The trial judge had an advantage that the expert did not have, specifically, hearing the witnesses give evidence including under cross-examination. In the case of the mother’s evidence, the father was represented by solicitors and counsel at trial and the transcript reflects that the mother was subjected to a thorough cross-examination by experienced counsel.
The trial judge was entitled, in the exercise of his discretion, to reach the conclusions he reached concerning the mother’s attachment of importance to the child/father relationship. At [57], the trial judge specifically rejected “the argument put forward on behalf of the father that the mother has minimised the importance of the child’s relationship with the father”. When the reasons for judgment are read as a whole it can be seen that this rejection is based on the following:
a)The mother facilitating a week about shared care arrangement for the child from the young age of six months for a period of four years, even after her 2016 move to Town C (reasons at [50]);
b)The mother and father originally moved to Suburb B to enable the father to spend regular time with his other child. The mother was not from that area and did not particularly want to move there but did so as she recognised the importance of the father having a relationship with his child (reasons at [52]);
c)After time resumed the child was observed by the expert family report writer to return happily to the father without any indication of animosity towards him (family report, paragraph 92);
d)In her oral evidence, as referred to above, the report writer agreed that this indicated that the mother must have been encouraging the child’s relationship with the father in the time she did not see him or, at least, that there was no negative influence from the mother in that period (reasons at [60]).
This ground of challenge fails.
Ground 5 – The learned trial judge provided inadequate reasons in relation to why s 60CC(3)(l) and contraventions to orders were not considered
For the reasons already discussed it is nonsensical for it to be suggested that the trial judge gave no consideration to the mother’s suspension of the shared care arrangement in the circumstances in which that occurred. As already noted, the trial judge discussed this issue in detail including at [18], [21], [24], [30] and [53] to [60] of the reasons. Notably, the conclusion the trial judge expressed at [56] was in these terms:
56.… The conclusion I have reached is that the mother’s decision to enrol [X] into prep at [Town C] came about because the child was, at that stage, with the mother. The conclusion I have reached is that if the child was with the father at the beginning of 2018 – the father would have placed the child into [Suburb K] State School on the first day of school in 2018 – in accordance with his stated intention and his enrolment of the child in that school. It is true that the mother subsequently ceased the child’s visits with the father. This was during the period of heightened mistrust between the parents. As noted by the report writer, the father would not complete paperwork as requested by the mother. A parent (in this case the mother) does not go from facilitating a week about shared care arrangement for four years to, suddenly, not understanding the importance of [X’s] relationship with her father. Of course the mother understands the importance of that relationship. Her actions over many, many years confirm this conclusion. It is unfortunate that a dispute arose between these parents. But it is a fact of life.
There is no substance in this complaint.
Conclusion
There being no substance in any of the grounds of appeal the appeal is to be dismissed.
The mother was self-represented on the appeal and appeared by telephone with the leave of the Court. She did not seek any order for costs in the event the appeal was dismissed. There will be no order as to costs of the appeal.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 8 January 2020.
Associate:
Date: 8 January 2020
2
7
1