RADCLIFF & MATHIESON - [2014] FamCAFC 200

FAMILY COURT OF AUSTRALIA

RADCLIFF & MATHIESON

[2014] FamCAFC 200

FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the appellant mother relocated the child from Sydney to the Gold Coast without consent after the respondent father had applied to the Court to prevent her doing so – Appeal against an interim order for the child to be returned to Sydney – No error demonstrated save that the primary judge failed to give reasons in relation to an order which might require the child to spend half of the Christmas school holidays with the father in one block – Appeal allowed only in part.

Family Law Act 1975 (Cth), s 60CC

House v The King (1936) 55 CLR 499
Gronow v Gronow (1979) 144 CLR 513

APPELLANT:

Ms Radcliff

RESPONDENT:

Mr Mathieson

FILE NUMBER:

2014

APPEAL NUMBER:

PAC

5352

2013

DATE DELIVERED:

14 October 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray, Ainslie-Wallace & Watts JJ

HEARING DATE:

14 October 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

25 May 2014

LOWER COURT MNC:

[2014] FCCA 1446

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

SOLICITOR FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

In person

Orders

The appeal be allowed in part.
Paragraph 4(d) of the orders made by Judge Donald on 29 May 2014 be amended to read as follows:
d. For three weeks during the summer school holidays, to be taken in one period of one week and one period of two weeks, unless otherwise agreed.
There be no order as to the costs of the appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Radcliff & Mathieson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 73 of 2014
File Number: PAC 5352 of 2013

Ms Radcliff

Appellant

And

Mr Mathieson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Thackray J

Ms Radcliff has appealed against orders made in the Federal Circuit Court on 29 May 2014 by which she was required to return her seven year old daughter, L (“the child”), to live in Sydney pending the final hearing of her application to relocate to Queensland.
The appeal is opposed by Mr Mathieson, who is the child’s father, and who proposes that the child continues to live in Sydney.
For convenience, in these reasons I will refer to Ms Radcliff as “the mother” and Mr Mathieson as “the father”.

Brief background

The reasons of the primary judge are brief and contain relatively little background information. However, the following matters appear not to be controversial.
The mother is 46 years of age and works in hospitality.
The father is 50 years of age and is a technician. He lives with Ms J in a home they have purchased in Sydney. Together they have one child, T, who will turn 2 early next year.
The child L was born in August 2007 as a result of what the primary judge described as a “calculated conception” pursuant to “an arrangement entered into between the father and the mother”. The parties have not cohabited since the child’s birth, although they were in a relationship for a period prior to her conception.
When the child was born the mother was living in Queensland and the father was living in Sydney. In March 2010, the mother and the child moved to Sydney as a result of what the primary judge called “financial pressures”. The mother says she intended to remain here for only two years, but ended up staying almost four. In any event, after her arrival, the father spent regular time with the child, although the precise details are in dispute.
In the latter part of 2013, the father was informed that the mother was planning to return to Queensland. In September 2013, he wrote to the mother making it clear he did not agree with her proposal. After the mother made clear she still intended to move, the father commenced proceedings seeking to restrain her from changing the child’s address to any place outside the intake area of the school she was attending.
The father’s application was served on the mother on 14 December 2013. Over the father’s objection, and without permission from the Court, the mother left Sydney with the child in January 2014 and moved to the Gold Coast. The father then amended his application to seek an order that the mother return the child to a place within the intake area of the school she previously attended, although he later informed a Family Consultant that he did not insist she go back to the same school.
The father’s application came before Judge Donald on 29 May 2014, at which time his Honour made the orders which are the subject of this appeal.

The orders appealed

Although the orders were not expressed to be interim, it is apparent from his Honour’s reasons and from the content of some of the orders that they were intended to be interim only. Regrettably, the mother did not appreciate that the orders were only temporary until we explained this to her at the commencement of the argument today.
Order 1, which is the order primarily challenged, required the mother to return the child “to reside at a place within the greater Sydney area within 28 days from the date of this Order”.
Order 3, which is not the subject of challenge, provided that the child should live with the mother.
Orders 4(a) and 4(b), both of which are challenged, provided that the child spend time with the father each second weekend from after school Friday until before school on Monday, and from after school each Wednesday until commencement of school the following day. In other words, during school terms, the child would spend five nights each fortnight with her father and the remaining time with her mother.
Order 4(c), which is not challenged, provided for the child to spend half of each of the three mid-year school holidays with the father.
Order 4(d), which is challenged, provided for the child to spend half of the summer holidays with her father “as agreed”, but in the event there is no agreement then the time is to be spent in the second half of the holidays.
Order 4(e), which is also challenged, provided that the child would spend time with her father “from 3pm on 24 December until 4pm on 25 December in each year commencing on 24 December next following the date of this Order”.
Order 5 is also challenged. It provides that for those changeovers which occur at the commencement or conclusion of school, the handover is to be at the school, but other handovers are to occur at the mother’s residence, unless otherwise agreed.
The final order which is the subject of challenge is Order 8, which provides that “the Father refrain from smoking within 10 metres of the Child and whilst in his care the Father endeavour to keep the Child at least 10 metres clear of smokers and smoking environments at all times”.
I observe that although the primary judge found that the presumption in favour of equal shared parental responsibility had not been rebutted, his Honour did not make an order dealing with parental responsibility. This was presumably because the father had not sought such an order if the mother was made to return the child to Sydney, although he does seek such an order on a final basis.

The primary judge’s reasons

It is unnecessary to discuss the primary judge’s ex tempore reasons in any detail. It is sufficient to say that his Honour:
·had regard to the objects and principles of the Family Law Act 1975 (Cth) (“the Act”);
·found that the best interests of the child were the paramount consideration;
·discussed briefly each of the relevant matters in s 60CC of the Act;
·placed significant weight on the unchallenged fact that the father and the child had a good relationship, and that the time the father and child would be able to spend together would be greater if she returned to Sydney, thereby improving the prospects of them maintaining and developing a “meaningful relationship”;
·accepted that the mother would not be happy living in Sydney and that the “real basis for the relocation” appeared to be that she “simply doesn’t like Sydney”;
·recorded that there was “no evidence before the court of [the mother’s] current financial circumstances and how a move to Queensland has improved or otherwise those financial circumstances”;
·noted that “[t]here is no evidence as to lack of support [of the mother] in Sydney; no evidence as to lack of employment prospects; no evidence as to any other factor that would militate against such a move back”;
·observed that there were no allegations of family violence or family violence orders;
·found there was insufficient evidence to conclude that an equal time arrangement would be in the child’s interests, but accepted that an order for substantial and significant time would be appropriate if the child was living in Sydney; and
·concluded that the mother should return the child to Sydney, on the basis that orders should be made which maintain the relationship between the child and the father as it was prior to the mother’s departure.
I do not consider it to be a fair criticism that his Honour overlooked that the mother had said she wished to relocate to Queensland to provide a better life for the child. As I understand his Honour’s reasons, that is one of the matters he did have in mind when he stated that the mother “simply doesn’t like Sydney”. No doubt his Honour had other matters in mind when making this observation, including the mother’s email to the father of 16 September 2013 explaining her reasons for wishing to relocate, some of which she alluded to today in her oral submissions.

Appellate principles

This is an appeal from a discretionary judgment. Absent complaints about procedural fairness or adequacy of reasons, in order to succeed, the mother must establish that the primary judge acted upon a wrong principle, allowed extraneous or irrelevant matters to affect his decision, mistook the facts, failed to take into account a material consideration or reached a result that is unreasonable, unjust or plainly wrong: House v The King (1936) 55 CLR 499.
As Stephen J stated in Gronow v Gronow (1979) 144 CLR 513 at 519:
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…
As both parties are self-represented, it is important I stress just how limited the circumstances are in which we can interfere with a decision made in the exercise of the wide discretion the law confers on a judge.

The Grounds of Appeal

The mother relies on seven grounds of appeal, some of which contain more than one complaint.
As can be expected from someone who does not have the benefit of legal representation, the Grounds of Appeal are poorly drawn. In some instances, the grounds clearly assume that the primary judge determined the matter on a final basis, when in fact, as we have been at pains to point out, the orders are designed only to deal with the position until the matter reaches a final hearing.
In a number of instances, the grounds also assume the existence of evidence which is not referred to in the reasons of the primary judge and which I have been unable to locate in the affidavit material.
Furthermore, in her written submissions in support of the appeal, the mother’s complaints extend well beyond those set out the Grounds of Appeal and also, as the father points out, impermissibly seek to introduce further evidence that was not before the primary judge and is not properly before this Court.
In most instances, the Grounds of Appeal assert the “wrongful exercise of judicial discretion and unfairness” without identifying a legal basis for that assertion. At best, many of the complaints can be seen as directed to matters of weight, but not in a way that considered individually, or collectively, would lead to a conclusion that the decision was unreasonable, unjust or plainly wrong.
In particular, the mother complains that the orders, especially Order 1 requiring her to return to Sydney, will have a detrimental effect on the relationship she has with the child. However, I accept the father’s submission that there was no evidence before the primary judge that the relationship between the mother and the child would be altered if the child was to return to Sydney with the mother. In this context it is important to observe that the Family Consultant reported in her Conference Memorandum that both parties told her that during 2013 the child had generally spent time with the father on alternate weekends and one mid-week night each week, which is same regime the primary judge ultimately ordered.
The mother’s next complaint is about Order 4(a), which she says will interfere with the child’s “established schedule of religious observations and celebrations” and her “extracurricular developmental activities”. The activities to which the mother refers are presumably those in which the child has become involved since moving to Queensland in January 2014; however, upon her return to Sydney, there appears no reason the child could not engage in whatever activities she was pursuing before her removal. In reality, questions about the choice of activities for the child are matters more properly to be considered at the final hearing, rather than as part of a complaint concerning interim orders.
The complaint about Order 4(b) concerns what the mother describes as the “negative effects on the child’s educational schedule” arising out of the order for the father to have the child living with him each Wednesday night. The parties themselves, prior to the mother’s departure, had put in place a visiting regime whereby the child was to spend each Wednesday night with the father. Although the mother expressed concerns about that arrangement in her submissions to the primary judge, there was no evidence on this topic, which in my view is also a matter more appropriately to be considered at the final hearing.
The mother’s complaint about Order 4(d) was expressed in these terms:
Detrimental and degrading effects that this arrangement would have on the ongoing relationship the child has with the mother. Negative effects that this arrangement will have on the child’s ability to maintain her personal relationships with Mother’s family and her own friends. Unfairness to the child and negative effects of periodical long-term detachment from the mother.
It will be remembered that Order 4(d) provided for the child to spend half of each Christmas school holiday with the father at times to be agreed between the parents, but if not agreed, in one block in the second half of the holidays. In considering the mother’s complaint, it should be observed that in her Amended Response the mother had proposed, in effect, that there be an equal sharing of the Christmas school holiday periods. Her only complaint therefore is about the possibility that the time could be taken in one block.
This complaint needs to be considered in the context of the mother’s evidence, which I do not understand to be challenged, that until now the child has not spent a period of more than five consecutive nights in the care of the father. However, the complaint also needs to be considered in light of the mother’s proposal that in 2015 the child should spend a three-week block with the father during the Christmas school holidays.
This issue was not the subject of any submissions before the primary judge; nor was there any evidence relating to the likely impact on the child of spending up to half of the 2014 Christmas school holidays with the father; nor was the issue mentioned expressly by the primary judge in his reasons. However, given that the child has only recently turned seven years of age, and given the mother’s unchallenged evidence that the child has, until now, not spent more than five consecutive nights away from her, I am of the view that the mother’s proposal for somewhat shorter periods of time in the coming summer school holiday contact is prima facie to be preferred and that the primary judge’s failure to give any reasons for making the order he did constitutes appealable error – albeit not an error expressly identified in the mother’s Notice of Appeal.
In her oral submissions today, the mother proposed that the father’s time with the child during the forthcoming Christmas holidays be taken in two periods; one of one week and one of two weeks. The father said he was “open” to such a proposal. In my view, this would be an appropriate way to share the time.
Ground 4(e) asserts a “wrongful exercise of judicial discretion in that this order ignores the child’s right to participate in religious observation of Christmas with her Mother and maternal grandparent, as has been established in her everyday lifestyle and past Christmas celebrations”.
This ground is directed to Order 4(e), which was in precisely the same terms as the father’s proposed Order 6(e), which sought that the child be with the father “from 3.00pm on 24 December to 4.00pm on 25 December in each year commencing on 24 December next following the date of this Order”.
The mother in her Amended Response proposed that:
Christmas Day Dec 25th be alternated between parents so that in odd numbered years the child spend Breakfast & Lunch with the Mother & Dinner & Stayover with the father until 5pm December 26th. That the reverse be the arrangement for even numbered years.
This proposal by the mother was inconsistent with the more detailed proposal contained in her detailed schedule of proposed contact, where she sought that the child be with the father from 5.00 pm on 20 December 2014 to 10.00 am on 26 December 2014 – i.e. the child would spend all of Christmas Eve and Christmas Day with the father this year.
The primary judge did not give any reasons for preferring the father’s proposal for Christmas over the mother’s proposal. However, I do not consider there is any basis for complaint by the mother in light of her own proposal in her detailed schedule. It turns out, in any event, that the mother’s understandable concern was that this would be the arrangement for every Christmas in the future. The father made clear in his submissions that he did not consider this would be appropriate and he anticipates that there will be some form of alternating arrangement each Christmas. Long-term arrangements for Christmas can be made at the trial, which I anticipate would be heard sometime in the coming year, and certainly before Christmas 2015.
Order 5, which deals with the issue of handover arrangements, is challenged on the basis of the mother’s assertion that it was a “wrongful exercise of judicial discretion given the Father’s previous record of being physically damaging and emotionally/mentally aggressive toward the mother and child in the absence of other parties”. I note there was no challenge to the specific finding of the primary judge at [20] that there were no relevant allegations of family violence. Furthermore, I note that in one of her affidavits, the mother described how she had given the father the keys to her apartment, prior to the commencement of the proceedings, in order to facilitate him bringing the child to her residence for the purpose of handover. I also observe that no submissions were made to his Honour relating to this issue and that the mother’s own proposal at the hearing was for handovers to occur at the father’s residence. Finally, I observe that the bulk of the handovers will take place at the child’s school pursuant to the terms of the orders. There is therefore no merit in this complaint.

The final order challenged is Order 8, which contains the injunction relating to the father smoking or allowing others to smoke in the vicinity of the child. Nothing put in the submissions persuaded me there was any error on the part of the primary judge in making the injunction. I note, in particular, that the mother’s own response at [16] sought a similar injunction. Accordingly the mother’s complaint can only be that the primary judge failed to make the further injunction she sought, namely that the father “wait at least 10 minutes before extinguishing a cigarette and physically lifting [the child] to be carried inside while sleeping or lifted into a car seat or other similar actions where the stench of residual tobacco/smoke may cause [the child] to become nauseous or feeling unwell”.
No submissions were put to the primary judge relating to this proposed order and in any event it is difficult to see how this, or indeed the injunction actually made, could ever be the subject of effective enforcement. I accept that the primary judge did not provide any reasons for failing to make the further injunction proposed by the mother, but I also observe this was only an interim hearing where both parties had sought extremely detailed orders. It would not be expected that in ex tempore reasons at an interim hearing a judge would deal with each and every item of relief sought by the parties in circumstances where it can be readily inferred he thought the injunction he actually made was sufficient for the purpose.

The outcome

I have identified what I perceive to be one minor matter where I consider the primary judge erred, namely in failing to give reasons relating to the possibility of the child spending half of the forthcoming Christmas school holidays with the father in a block period. I would therefore allow the appeal in part and vary Order 4(d) to provide as follows: “for three weeks during the summer school holidays, to be taken in one period of one week and one period of two weeks, unless otherwise agreed”.
In conclusion, I would stress that the outcome of the interim proceedings and the outcome of this appeal ought not in any way be regarded as indicating the likely outcome of this matter when it proceeds to a trial, where there will be an opportunity for much more evidence to be given and for the evidence to be tested and considered in greater detail.

Ainslie-Wallace J

I agree with the orders proposed and the reasons for them.

Watts J

I agree with the orders proposed and the reasons for them.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 14 October 2014.

Associate:

Date: 16 October 2014