PJ & NW
[2005] FamCA 162
•15 March 2005
[2005] FamCA 162
FAMILY LAW ACT 1975
IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT MELBOURNE
Appeal No. SA 26 of 2004
File No. MLF 1347 of 2002
IN THE MATTER OF:
PJ
Appellant Father
and
NW
Respondent Mother
REASONS FOR JUDGMENT OF THE FULL COURT
Coram: Bryant CJ, Holden & May JJ
Dates of Hearing: 20 October 2004
Date of Judgment: 15 March 2005
APPEAL SUMMARY
MATTER:PJ & NW
APPEAL NUMBER: SA 26 of 2004
(MLF 1347 of 2002)CORAM:Bryant CJ, Holden and May JJ
DATE OF HEARING: 20 October 2004
DATE OF JUDGMENT: 15 March 2005
CATCHWORDS: FAMILY LAW – APPEALS – CHILDREN – Residence – Relocation of resident parent interstate – Whether the trial Judge failed to appropriately consider the family report writer’s view that a relocation order would have an adverse impact upon the children and their relationship with the non-resident parent – COSTS – Circumstances justifying order - Appeal directed towards discretion of trial Judge and held little merit – Application to pay Child Representative’s costs refused.
CASELAW CITED:
A and A (2000) FLC 93-035
Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343
Gronow v Gronow (1979) FLC 90-716
Norbis v Norbis (1986) 161 CLR 513
Re David: costs (1998) FLC 92-809
Telfor and Telfor (1996) FLC 92-688
The Legal Aid Commission of Tasmania and Fish and Anor [2004] FamCA 844
Appeal dismissed.
Appellant ordered to pay respondent’s costs relating to the appeal.
Child Representative’s application for costs dismissed.
This is an appeal by the father against orders made by Dessau J on 25 March 2004. The orders have the effect of permitting the mother to relocate to Darwin with the two children, “S”, born in 1996, and “N”, born in 1998. Upon the mother’s relocation to Darwin, the orders provide that the father have block holiday contact with the children in Victoria as follows:
a)For a period of 7 days in the first or third term holidays starting on the first Saturday of such holidays;
b)For a period of 14 days in the second school holidays;
c)For a period of 4 weeks from 26 December 2004, and in each alternative year thereafter;
d)For a period of 4 weeks from 24 December 2005, and in each alternative year thereafter;
e)From 2 March 2005 to 9 March 2005 for the purposes of allowing the children to attend the father’s wedding at his expense; and
f)At such other times as may be agreed between the parties.
The father is also to have contact for up to one week on up to three separate occasions in Darwin upon providing written notice to the mother, telephone contact once per week and on special occasions, and contact via letters and e-mail. For the purposes of contact in Victoria, the parties are to share equally the costs of the children’s airfares.
The basis of the father’s appeal is that the trial Judge failed to give sufficient weight to the recommendation of the family report writer that the mother remain in Geelong with the children. In response, it is the mother’s case that her Honour gave appropriate weight to the family report writer’s opinion in the context of the totality of the evidence. The Child Representative, who supported the mother’s proposal to relocate at trial, resists the appeal.
The father’s solicitor attempted to file an application seeking permission to introduce fresh evidence. The application was not accepted for filing by the appeals registrar as it was not delivered within the time specified by Rule 22.51 of the Family Law Rules 2004. In any event, counsel for the father did not pursue this application during the proceedings.
As the mother and children have relocated to Darwin, both parties agreed that should the appeal be allowed, it would be appropriate to remit the matter for rehearing.
The Trial Judge’s Reasons
The following factual background to this matter, as found by the trial Judge, was not the subject of argument in the appeal:
§The parties met in Darwin and commenced living together in 1993.
§The parties and children moved to Geelong in 1997.
§The parties married in April 1996 and separated in August 2000.
§Following separation, the children have resided with the mother.
§From October 2001 to October 2002, the father had contact with the children on each alternate weekend from Thursday to Sunday and, in the alternate week, overnight on Thursday.
§In October 2002, the father agreed that the mother could take the children to Darwin for a holiday.
§While in Darwin the mother commenced proceedings to relocate from Geelong with the children.
§The father subsequently commenced proceedings for her to return to Geelong.
§In December 2002, the mother returned with the children pursuant to court orders.
§The father has since had contact on each alternate weekend, for half of school holidays, on special occasions and by telephone.
The trial Judge cited the applicable principles in relocation matters as set out by the Full Court in A and A (2000) FLC 93-035. Her Honour correctly undertook the three stages of analysis established in A and A (supra), commencing with articulating the parties’ competing proposals:
“19.[The mother] wants to take the children to Darwin. There is no doubt that she would enjoy the support of close family there.
20. Her proposals for life in Darwin are fluid. She has no clear proposal as to where she and the children will live, where they will go to school, or as to her employment. She says those arrangements will be addressed once there, and that she has not made more certain arrangements in the light of the uncertainty surrounding this case.
21. Her claims that she could live with a friend were not impressive given the vagueness and the fact that no evidence was produced from the friend. However, she does have close family who will help her establish herself, and support her with housing, at least to start. And there was nothing in the evidence to suggest that, as the unchallenged residence parent, she would not house herself and the children properly, that they would not attend an appropriate school, and that she would not be able to gain employment as she claims. She was not seriously challenged about that. In addition, the father ultimately conceded that there would be appropriate medical and counselling facilities for the children in Darwin.
22. There was some uncertainty as to whether her partner, [“F”], will join her there. I accept his evidence that he intends to join her once he has attended to practicalities in Melbourne, such as selling or letting his house. I had the impression that [the mother’s] priority is to go to Darwin, even if [F] ultimately remains in Geelong.
23. The parties seemed to agree that two visits to Melbourne each year will be feasible. It was common ground that they will share the cost of the children’s air-fares. [The mother] is happy for [the father] to have contact in between in Darwin.
24. [The father] is concerned that the children will be adversely affected if they move to Darwin, away from regular and accessible contact with him. He proposes they continue to reside with their mother, close to him in the Geelong area, and that his alternate weekend contact shall also continue. Both parties agree that if that is the outcome, contact will be extended until Monday before school so that the parties need not see each other at change-overs. [The father] wants contact for dinner one night in the intervening week, but that is in issue. He also wants a restraining order presently forbidding him to go within two kilometres of the wife’s home relaxed to 200 metres, to enable him to visit the children’s school”.
Her Honour then assessed the advantages and disadvantages of the competing proposals in the context of the factors set out in s 68F(2) of the Family Law Act1975 (“the Act”).
As to the children’s wishes (s 68F(2)(a)), her Honour noted that while S expressed a desire to move to Darwin in her first interview with the family report writer, in the second interview she expressed her wish to live with whichever parent allows her to remain at her present school, with a preference for her mother, provided she remains in the Geelong area. Her Honour found that S’s view must be considered in light of her age and level of maturity, and the family report writer’s observation that school for S is a neutral, conflict-free environment.
10. With regard to the likely effect of any changes in the child’s circumstances (s 68F(2)(c)), her Honour regarded this as being “at the heart of the case”. Her Honour accepted that moving to Darwin would affect the children’s relationship with their father but found that provided there were substantial blocks of contact in Geelong, and possibly in Darwin as well, “a close relationship, though different, can still be maintained”.
11. Her Honour noted that in making a determination, she was required to:
“36.… [W]eigh up the likely effects on the children of a change in the contact arrangements, with the likely effects on their primary carer, and on them, if [the mother] is forced to remain in the Geelong area”.
12. With regard to the practical difficulty and expense of contact (s 68F(2)(d)), her Honour did not accept the father’s case that it would be financially impossible to maintain the level of contact required for an effective parenting relationship.
13. Her Honour addressed a number of issues in considering the capacity of each parent to provide for the needs of the children (s 68F(2)(e)). First, her Honour noted that the father did not proceed with his residence application. Her Honour said, “it is implicit that he accepts [the mother] has the capacity to provide properly for the children’s needs”.
14. As to the father’s post-traumatic stress disorder, her Honour observed that “when pressed, he had to concede that it must have been very difficult for the wife living with that trauma”.
15. With regards to the mother’s case that she suffers an anxiety disorder as a result of her experiences during the course of the marriage, her Honour accepted the evidence of her treating doctor, Dr H, that her anxiety is genuine. Her Honour also accepted the doctor’s evidence that her anxiety “is unlikely to be caused by her abuse as a child, but by her experiences during the marriage”.
16. Her Honour accepted the mother’s case that she is well supported and less anxious when surrounded by her mother and sister in Darwin.
17. Her Honour found that the mother’s belief that longer periods of contact less often would be less unsettling for the children was reasonable given the counsellor’s acknowledgment that the children are caught in their parent’s conflict.
18. While the trial Judge was critical of the mother’s conduct in taking the children to Darwin in October 2002, her Honour found that she has the capacity to foster contact, “[w]ithin the limitations of the conflict and difficulties between the parties”. In this regard, her Honour said:
“62.There has always been contact. Since the December 2002 orders, although she was angry at having to return, although she did not return initially, and although she had made an interim application for no contact, she has at all times honoured the face-to-face contact orders”.
19. Her Honour ultimately reached the following conclusion:
“76.This is a difficult case. Neither parent’s proposal is without its drawbacks.
77.[The father]’s proposal would ensure that his improved relationship with the children can continue to develop, as it has since late-2002. [S] would have her wishes met, living with her mother, seeing her father, and remaining at her present school.
78.With an end to this litigation, some of the mother’s anxiety would be alleviated, although she is likely to feel distressed and possibly “trapped” in Geelong. The children's behavioural issues, whatever their level of seriousness, and [L]’s speech difficulties, can finally be addressed. If successfully treated, that may in itself alleviate some of the mother’s anxiety.
79.With the mother’s proposal, she would be exercising her freedom of movement, something she is entitled to do, subject of course to the children's best interests. She would return to her home-town and to the family support she is yearning. She believes she would have better employment prospects so that her grim financial position would be improved. She would have a significant source of anxiety removed with less inter-action with the father and less frequent contact changeovers. She would still seek help there for the children.
80.Although [S] has expressed the strong wish to remain at her present school, she is only aged seven, and I assess that wish in the light of the family report writer’s observation that school for her is a neutral, safe, conflict-free zone. That gives me some insight into the impact of the conflict on [S], and it is probable that another school will offer that same security, once she is settled. I respect the family report writer’s view that it is preferable for a child not to change schools until starting secondary school in Year 7. That may be an ideal. Of course many children need to change earlier, for a variety of reasons, and they do so without ill-effect.
81.The major drawback in the mother’s proposal is that the children would see their father less frequently.
82.I am persuaded that [the mother] should be permitted to relocate the children to Darwin. I am conscious that although that decision is supported by the chid (sic) representative, it is contrary to the opinion expressed by the Family Court counsellor. It was her view that to change the current contact regime would be extremely detrimental to the children. Again, I respect the family report writer’s expertise and take into account her opinion, but I have had the benefit of hearing the case in its entirety. I was concerned that the family report writer could not move beyond a position that virtually no contact regime between Darwin and Geelong could ensure that the children’s relationship with their father would continue appropriately.
83.I bear in mind s 60B and the children’s rights to contact with their father. I accept that contact from or in Darwin will be different in nature to the present regime, but the move need not irreparably damage or undermine the established relationship between the father and children, and block times will offer some compensations.
84.I have had to weigh up the prospect of the difference in that relationship, with the unchallenged residence parent’s understandable desire to be close to family support, in the city in which she grew up, in which she and the father met, and from which she moved only in 1997 (just three years before separation), and the impact on her if she is stopped from returning. It is not just her freedom of movement that I take into account, or her anxiety, but her unchallenged evidence that her financial situation in Darwin would be easier – an important consideration in light of little financial assistance by way of child support payments. Importantly, I accept that these children have felt the full effect of their parents’ conflict and their mother’s anxiety. Any steps that can be taken to alleviate that anxiety must benefit them. The detail of the evidence helps me reach that view. That detail was not available to the counsellor.
85.I am conscious that [the father] will feel saddened by this decision. I want to emphasise that it in no way suggests that he is a bad father or that he is other than essential to his children’s lives. The parties suggested two visits per year would be feasible. The child representative proposed more. As it was not specifically raised, I will allow any submissions upon it, but my preliminary view is that together they should be able to afford for the children to come to Melbourne three times per year. The costs should be shared. That would ensure that the children could spend extensive holiday time with their father.
86.I conclude that holiday contact should be for 10 days at Easter and in the July school holidays, and for four weeks in the long summer break. The family report writer suggested contact in Melbourne for the full holiday periods. In my view that would not be appropriate. The children need the majority of holiday time with their father, but short periods of leisure “at home” outside their school routine. In addition though, the husband should be able to see the children at other times in Darwin at his expense, provided that he gives reasonable notice to the mother. There should also be telephone contact, letters and e-mail if possible”.
Grounds of Appeal
20. The father’s notice of appeal listed three grounds of appeal. Ground three was abandoned at the commencement of the appeal. The precise terms of the remaining grounds are as follows:
1. The Court failed to take into account or failed to take into account properly the recommendations of the Family Report Counsellor.
2. The Court disregarded the Family Report and the recommendations of the Family Report writer.
21. The father’s counsel appropriately conceded that the trial Judge did take the family report writer’s views and recommendations into account. The appeal was argued on the basis that her Honour gave insufficient weight to the family report writer’s evidence. While the appellant’s summary of argument appears to broaden the grounds of appeal, counsel for the father limited his oral submissions to the issue of the weight given to the family report writer’s evidence.
Appellate Principles
22. In Gronow v Gronow (1979) FLC 90-716 at pp 78,848-78,849, Stephan J clearly encapsulated the difficulties confronting appeals based on matters of weight:
“The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight” (our emphasis).
23. In Norbis v Norbis (1986) 161 CLR 513 at pp 539-540, Brennan J referred to Bellenden (formerly Satterthwaite) v. Satterthwaite [1948] 1 All ER 343 at 345, in which Asquith LJ stated the rationale of an appellate court’s approach:
“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere”.
24. Brennan J then said:
“The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference”.
Submissions
25. It is the appellant’s case that in giving insufficient weight to the family report writer’s views and recommendations, the trial Judge determined the application against the preponderance of evidence that suggested the relocation order would have an adverse impact upon the children and their relationship with their father.
26. The father’s counsel submitted that the trial Judge did not appreciate the strength of the family report writer’s views. Reference was made to specific sections of the family report writer’s two reports, dated 23 May 2003 and 3 February 2004, respectively, and parts of her oral evidence.
27. Counsel for the father drew our attention to the following sections of the family report writer’s first report:
“94.A return to Darwin would seriously impact on these children’s relationship with their father, and quite probably mean that they would, in the future, have a very limited relationship with him, by telephone. [the mother] suggested only one telephone call per week, which would certainly not help him maintain his good relationship with his children, and it is unclear as to whether holiday contact would occur, and if so, who would pay for it.
95.Given that already there are problems with telephone contact with [S] and her father, and that [S] so obviously craves a better relationship with her father, a move such as this would be very detrimental to her, and could mean that she is never able to establish a secure relationship with him in which she knows that he loves both her and [L] equally.
….
102.Thus, in the Counsellor’s opinion there are three options in this matter. The first is to allow [the mother] to re-locate, which would mean the children would have little contact with their father. The second is to order [the mother] to remain in Victoria, if she wishes to be the primary carer of the children, preferably close enough to Geelong to enable [the father] to have regular face to face contact with the children. The third option is to grant [the father] residence of the children.
103.The Counsellor believes that re-location would not be of benefit to the children, although it may benefit [the mother], and that at the moment the children should remain living with their mother in Geelong.
104.However, when [the mother] tells [S] that she will be lonely if holiday contact occurs, this puts [S] in the very difficult position of having to choose between her parents. This lack of contact just reinforces [S]’s opinion that her father prefers [L], which is very damaging to her feelings of self worth and self-esteem. [The mother] needs to understand that [S] is vulnerable and that she must make sure that [S] has contact with her father, as this is clearly what she needs and wants. Perhaps [the father] could spend extra time with [S], and be very careful he does not allow [L] to spend more time on the computer than [S] does.
….
108.Thus the Counsellor respectfully suggests that at the moment it is too early to make a final decision, and that an update of this report should be done in 6 months time. At this time the Counsellor will be able to observe [F] with the children, and ascertain [the father]’s ability to care for the children for longer periods of time, and his mental health. Also, by this time [L] will have been tested and treatment begun for this speech and behavioural difficulties.
109.Thus, contact should continue to be fortnightly weekends, plus half of each school holiday period, and telephone contact twice per week, with [S] not being given a choice in either telephone or holiday contact. Also, it may be helpful to include in the orders that no person be allowed to administer any form of physical punishment to either [S] or [L]”.
28. Counsel for the father highlighted the following parts of the family report writer’s second report:
“30.This interview was in marked contrast to the Counsellor’s previous interview with [S]. In that [S] was more dissatisfied with her father, whom she saw as favouring [L], and her preference was to live in Darwin.
31.In summary it seems that [S] does want to have contact with her father, and speak to him on the phone, but her primary focus is her school, where she is very happy. Thus, she wants to live with whatever parent allows her to remain at her present school, with a preference for her mother, provided she remains in the Geelong area.
….
52.It is still the Counsellor’s opinion that it is not in the best interests of the children for her to live in Darwin. As stated previously, this would seriously impact on the children’s improving relationship with their father, and could also seriously impact on [S].
53.As [S]’s teacher told [the mother], [S] craves the attention of her father, and tells lies to get this attention. To remove [S] to Darwin where she would see little of her father, and have to move schools, where perhaps for the first time she feels free of conflictual situations, could be very damaging for her.
54.However, there seems to be no valid reason for removing the children from the care of their mother, except if she is intent on moving to Darwin. Thus, it is the Counsellor’s opinion that the children should remain with [the mother], who has been their primary carer for the past 3 years. This opinion takes into account that [the father] has demonstrated that he can care for the children over an extended period of time to the satisfaction of [the mother], and that his health problems have improved, and he is still attending the relevant doctors to ensure that he remains in good health.
….
57.In the Counsellor’s view it does not make sense for [the mother] to uproot the children at this time in their lives. She knows that they are very vulnerable at the moment, need a good relationship with their father, and that [S] is overly attached to her school as her way of coping with the conflict in her life. To remove her at this stage could be detrimental to her well being.
….
61.Finally, there seems to be no reason for [the father]’s contact with his children to change, other than if [the mother] decides to live in Darwin. If the latter takes place it is the Counsellor’s opinion that [the father] should have residence of the children, and [the mother] have contact at least every holiday period, and at other times by agreement.
29. Counsel for the father also referred to pp 257-258 of the transcript:
[COUNSEL FOR THE FATHER] … Now, … [the mother] is proposing that the children relocate to Darwin and that they have two periods of two to three weeks contact with their father during the year. It’s my understanding that [the mother] is saying that one of the reasons why she wants to change the contact arrangements, so that there are larger blocks on few occasions is because the children are very unsettled either before or after these alternate fortnightly contact periods. Did she discuss this with you? [THE FAMILY REPORT WRITER] --- No, I didn’t know that that’s what she was going to ask for. But how could she have three-week blocks during the year when there’s only two weeks in a holiday period.
[COUNSEL FOR THE FATHER] They’d only be two blocks: one of three weeks and one of two.
[HER HONOUR]: In fairness, the holidays are different, I’ve been told. The holiday configuration is different in Darwin? [THE FAMILY REPORT WRITER] --- Right.
[HER HONOUR] If what you’re concerned about is how could she be suggesting three if the holidays are only two weeks and anyway at Christmas time you can easily have three weeks? [THE FAMILY REPORT WRITER] --- Yes.
[COUNSEL FOR THE FATHER]: She seems to be saying that she feels that the children will be more settled or less unsettled if they see their father for longer periods of time but less frequently. If that was to occur, what in your view would be the effect on the children? [THE FAMILY REPORT WRITER] --- I think that there would be great difficulty in maintaining a good relationship with their father.
[COUNSEL FOR THE FATHER] If they were unable to maintain a good relationship with their father what effect would that have on the children’s future development? [THE FAMILY REPORT WRITER] --- I think that it has a huge effect on their future development. Already [S]’s [sic] showing that she needs and wants a good relationship – a better relationship – with her father. [L] is all over the place and certainly needs a good relationship with him as well. He needs a father-figure, although he has got one in [F], but [F] does not take the place of his father in my view and I think that would be extremely detrimental to both children, both emotionally and developmentally.
[COUNSEL FOR THE FATHER] If [S] [sic] went to Darwin and saw her father on ---? [THE FAMILY REPORT WRITER] ---Sorry? [MS COOKE] If she - - -
[COUNSEL FOR THE FATHER] If [S] [sic], the little girl, went to Darwin and saw her father on – well, if she went to Darwin she obviously could not see her father each fortnight? [THE FAMILY REPORT WRITER] --- No, that’s right.
[COUNSEL FOR THE FATHER] What would be the minimum number of occasions in a year that a child of [S]’s [sic] age should see a father to be able to maintain a good relationship or a productive relationship with her father? [THE FAMILY REPORT WRITER] --- Well, I can say that the minimum amount would be 12 or something, but I know that wouldn’t be possible if the relocation was to Darwin. I think the younger the child, the more important it is that the contact’s frequent. [L] is the younger of the children; I think he certainly needs a lot more contact than twice or three times a year, but [S] does too because she’s got different needs from him.
[COUNSEL FOR THE FATHER] If [L] did not have that regular contact with his father what effect on him is that likely to have? [THE FAMILY REPORT WRITER] --- Well, I can’t say because I’m not sure of the diagnosis on him anyway – whether he is autistic. If he’s autistic, it’s likely to have a huge effect on him I would think, trying to re-establish a relationship every time he saw his father again, when there’s been no continuity or not the continuity that they’ve got at the moment.
30. In support of his assertion that the trial Judge did not fully appreciate the strength of the family report writer’s view, counsel for the husband submitted that her Honour made a factual error at para 43 in finding that the family report writer recommended that the children continue to reside with the mother (whether or not she relocated to Darwin).
31. Counsel for the father also asserted that in para 61 the trial Judge accepted the mother’s position that substantial periods of contact would be less unsettling for the children without balancing the counsellor’s opposing view.
32. The mother’s counsel submitted that the trial Judge gave sufficient weight to the family report writer’s findings and recommendations and provided adequate reasons for departing from them. She stressed that the family report writer’s findings were not the only evidence before her Honour.
33. The submissions of the mother’s counsel challenged the strength of the family report writer’s evidence. She drew our attention to page 267 of the transcript (lines 30-40) where the family report writer acknowledged the need to balance competing factors in determining whether a relocation order is in S’s best interests. The report writer recognised the importance of weighing up the fact that there would be no day-to-day conflict between the parents upon relocation against the impact that the relocation would have upon the children’s relationship with their father and the fact that S would be required to change schools.
34. The mother’s counsel also stressed that the family report writer declined to comment on Dr H’s opinion that the mother has an anxiety disorder directly related to the “custody” issues and that her anxiety would continue as long as she stayed in close proximity to him. Upon questioning by her Honour, the family report writer said:
“… The problem for me in commenting with that is that he’s only seen her; he’s only heard from her and no doubt she believes that her depression is caused by [the father], but I can’t say whether that’s true or not. I just hesitate when he has not heard anything other than her presentation of her feelings”.
35. Counsel submitted that Dr H’s’ evidence was consistent with that given by the mother and the father’s concession that it must have been very difficult for the mother living with his trauma.
Discussion
36. While the trial Judge did not set out all the details of the family report writer’s views and recommendations, her Honour clearly gave them careful consideration.
37. Her Honour turned her mind to the potential impact that the relocation would have upon the children’s relationship with their father and considered how that impact might be ameliorated:
“34.If the children move to Darwin, it is likely to affect their relationship with their father. I accept the family report writer’s evidence in that regard. The nature of the relationship would be different, with less frequent face-to-face contact, even if for substantial periods. Telephone contact, letters and e-mails could certainly add to the involvement in each-other’s lives, but it would still be different from being together each alternate weekend, and possibly a night in between, with more immersion in the minutiae of day-to-day life.
35.Having said that, provided there are substantial blocks of contact in Geelong, and if possible in Darwin as well, a close relationship, though different, can still be maintained. Telephone calls, letters and e-mails could enhance it further”.
38. We are satisfied that it was open to the trial Judge on the evidence to depart from the family report writer’s recommendations and that her Honour provided adequate reasons for doing so. Her Honour noted that, unlike the family report writer, she had the benefit of hearing the entirety of the case, including the evidence of Dr H. Her Honour addressed the family report writer’s concerns that Dr H was only acting upon what the mother had told him:
“Although [Dr H] did not have the advantage of interviewing the father and children, he has been [the mother]’s treating doctor since 1998, well before separation, and well before these proceedings were contemplated”.
39. Her Honour also noted that the family report writer “could not move beyond a position that virtually no contact regime between Darwin and Geelong could ensure that the children’s relationship with their father would continue appropriately”.
40. In forming the view that the father could not maintain an appropriate relationship with the children if they moved to Darwin, the family report writer assumed that the father would have significantly less face-to-face contact than that ultimately ordered by the trial Judge. As previously outlined, in the family report writer’s first report, she said:
“A return to Darwin would seriously impact on these children’s relationship with their father, and quite probably mean that they would, in the future, have a very limited relationship with him, by telephone. [The mother] suggested only one telephone call per week, which would certainly not help him maintain his good relationship with his children, and it is unclear as to whether holiday contact would occur, and if so, who would pay for it”.
41. In her second report, the family report writer does not convey the amount of face-to-face contact she anticipated that the father would have in the event of the mother’s relocation to Darwin. She did note, however, that S would “see little of her father” upon relocation.
42. During cross-examination by the father’s counsel, the family report writer was asked her opinion regarding the impact of relocation upon the father’s relationship with the children in light of the mother’s proposal of block contact for a three week and two week period each year.
43. Under cross-examination by the Child Representative, the family report writer stated that the maximum amount of face-to-face contact the father could possibly have was four times a year if the mother and children were living in Darwin. That is, during the three term holiday periods and the Christmas holiday period. She did not consider the possibility of the father travelling to Darwin for contact. In this regard she said, “I didn’t have any indication from him that he would be doing that or that his finances would allow that”.
44. As discussed previously, her Honour was unimpressed with the father’s evidence concerning his financial position. Her Honour’s finding that the father’s financial position was “not as bleak as he claimed” was not challenged in this appeal.
45. Her Honour ultimately made orders for a more extensive contact regime than the family report writer considered possible.
46. There is little merit in the submission of the father’s Counsel, that in para 61 the trial Judge accepted the mother’s position that substantial periods of contact would be less unsettling for the children without balancing the counsellor’s opposing view. The precise terms of para 61 are as follows:
“[The mother] genuinely believes that if there were substantial periods with their father, but less changeovers between the households, it would be less unsettling for the children. That is a reasonable view given the counsellor’s acknowledgment that the children are caught in the conflict”.
47. In response to the assertion that longer periods of contact less often would be “less unsettling” for the children, the family report writer stated that such a contact regime would cause “great difficulty in maintaining a good relationship with their father”. Her Honour appropriately addressed the family report writer’s concerns regarding the impact of relocation on the children’s relationship with their father.
48. The trial Judge considered the Child Representative’s submission that the children might receive better protection if the parents were to live a long way apart given the parent’s inability to protect the children from conflict while living close together. Her Honour found this scenario was “probable”. This finding was open to her Honour given the family report writer’s evidence that the children were exposed to their parent’s conflict while living in Geelong.
49. We accept the mother’s counsel’s submissions challenging the strength of the family report writer’s evidence. In our view, her evidence is not unequivocal as the appellant submits.
50. We are mindful of the fact that the family report writer was not asked whether her opinion had changed in any way following the father’s decision not to pursue the residence application. The father was seeking residence of the children when the family report writer prepared both family reports. In the first report, the family report writer noted that there were three possible options:
“The first is to allow [the mother] to re-locate, which would mean the children would have little contact with their father. The second is to order [the mother] to remain in Victoria, if she wishes to be the primary carer of the children, preferably close enough to Geelong to enable [the father] to have regular face to face contact with the children. The third option is to grant [the father] residence of the children”.
51. Her Honour informed the family report writer, prior to her cross-examination, that the father was no longer pursuing the residence application. However, the family report writer was not asked whether this had any effect on her position.
52. We accept the submissions of the mother’s counsel that Dr H’s evidence was consistent with that given by the mother and the father’s concession that it must have been very difficult for the mother living with his trauma. It was reasonable for her Honour to place emphasis upon Dr H’s evidence.
53. As to the submission of the father’s counsel, that her Honour made a factual error in finding that the family report writer recommended that the children continue to reside with the mother whether or not she relocated to Darwin, we accept that her Honour was mistaken in this regard. The family report writer clearly expressed her opinion in the second report that in the event the mother was to relocate to Darwin, the father should have residence of the children and the mother should have contact at least every holiday period. We note that this mistake of fact was not a ground of appeal pressed by the father. In any event, this factual error would have had a negligible effect on the final result as the father was not seeking residence.
Conclusion
54. We are not persuaded that the trial Judge failed to give proper weight to the views and recommendations of the family report writer. It is clear her Honour was mindful of the need to give appropriate weight to the family report writer’s opinion. Her Honour turned her mind to the likely effect that the relocation order would have on the children’s relationship with their father and balanced this appropriately with the mother’s desire to be close to family support. It was open to her Honour to find that it would be possible for the father to maintain a close “though different” relationship with the children with substantial blocks of contact in Geelong and Darwin, if possible, and through telephone calls, letters and e-mails.
55. We are not satisfied that the trial Judge’s discretion miscarried and the appeal must accordingly be dismissed.
Costs
56. We heard submissions from counsel in relation to the costs of the appeal at the conclusion of the hearing. In the event that the appeal was dismissed, the mother and the Child Representative asked for an order for costs against the father, which he resisted.
57. Counsel for the mother asked that we take into account the fact that the mother is funded by Victoria Legal Aid. At trial, the mother represented herself.
58. Counsel for the father relied upon the father’s financial circumstances in opposing an order for costs. He stressed that the father receives a war veteran’s pension and that he has significant debts. He also submitted that there were bona fide reasons for the appeal.
59. We will first address the mother’s application for costs.
60. The making of a costs order is governed by s 117 of the Act. Pursuant to s 117(2A)(a), we are required to consider the parties’ relative financial positions. The trial Judge found that the father receives a higher pension than that of the mother and that the father pays minimal child support at $21 per month. Her Honour also noted that it is possible that the father receives funds beyond just his pension.
61. The fact that the mother is in receipt of assistance by way of legal aid is a relevant consideration pursuant to s 117(2A)(b).
62. The father was wholly unsuccessful in these proceedings (s 117(2A)(e)). The appeal had little merit, it was an appeal where no matters of principle were argued. The argument was directed to the weight given to evidence in a discretionary judgment.
63. In our view, all these circumstances justify an order that the father should pay the mother’s costs.
64. As to the Child Representative’s application for costs, it is necessary to consider in addition to ss(2A), subsections (3), (4) and (5) of s 117 (those latter sections commenced operation on 14 January 2004).
3. To avoid doubt, in proceedings in which a child representative has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the child representative in respect of the proceedings.
4. However, in proceedings in which a child representative has been appointed, if:
a)a party to the proceedings has received legal aid in respect of the proceedings; or
b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the child representative;
the court must not make an order under subsection (2) against that party in relation to the costs of the child representative.
5. In considering what order (if any) should be made under subsection (2) in proceedings in which a child representative has been appointed, the court must disregard the fact that the child representative is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
65. As Hannon J noted in the unreported decision of The Legal Aid Commission of Tasmania and Fish and Anor [2004] FamCA 844 at para 23, subsection (3) makes it clear that the Court has jurisdiction to exercise a discretion to make a costs order in favour of a Child Representative in appropriate circumstances, while subsection (4) sets out those circumstances in which such a costs order should not be made.
66. Prior to the introduction of subsection (5), the correct approach was that adopted by Lindenmayer J in Telfor and Telfor (1996) FLC 92-688 (and approved by the Full Court in Re David: costs (1998) FLC 92-809). In awarding costs in favour of the Child Representative, Lindenmayer J took into account the fact that the Child Representative’s costs would otherwise be born by the limited resources of the Legal Aid Office:
“…[T]he funds of the Legal Aid Office are finite; they are subject to very heavy demands in all areas, not the least of which is the area of legal aid for separate representatives for children in proceedings before this court. I think it is relevant for the court to consider, in the exercise of discretion as to costs, that the funds of such a body ought not to be exhausted in proceedings where there are other available means of providing the funds for the representation of the relevant children, and particularly where the necessity for that representation arises essentially out of conflict between the parties, rather than out of any deep-seated issues relating to the welfare of the children” (p 83,141).
67. In this case, it was necessary for the Child Representative to appear in the appeal. Submissions were made in support of the judgment and orders made at trial. The basis of the appeal to which we have referred did not raise any real issues of substance. In addition to the fact that the mother is legally aided, there is no basis for the respondent mother being required to contribute to a proportion of the costs of the Child Representative.
68. Taking these factors into account, were it not for the relatively poor financial position of the father, we are of the view that it would be appropriate that the father contribute to the costs of the Child Representative. To order that the father pay the Child Representative costs is likely to place him in a position of financial hardship by reason of a combination of factors including the costs already met by the father, the order for payment of the respondent’s costs of the appeal and the ongoing cost of the travelling expenses for the children.
69. The formal orders of the Court will be as follows:
That the appeal be dismissed.
That the appellant pay the respondent’s costs of and incidental to the appeal as agreed or in default of agreement as assessed under Division 19.6.2 of Chapter 19 of the Family Law Rules 2004.
That the application of the Child Representative for costs is dismissed.
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