Read and Oakley and Anor
[2008] FamCAFC 77
•6 June 2008
FAMILY COURT OF AUSTRALIA
| READ & OAKLEY AND ANOR | [2008] FamCAFC 77 |
| FAMILY LAW - APPEAL – From decision of Family Court judge – CHILDREN – With whom a child lives – RELOCATION – Mother has three children each with a different father – Two children lived with the mother in a different town to where the fathers lived – Fathers of two children are brothers – Brothers jointly sought orders that the children return to the place where the brothers lived, and where the children had lived previously with the mother – The fathers’ preference in the orders sought was that the mother would also return and that the children would live with her and that each father would spend time with his child five nights out of every fourteen – Fathers willing to take on primary care of their respective child if the mother did not relocate – Mother sought orders permitting her to relocate to another city or to remain where she was currently living – The mother’s case before the trial Judge was that she would not relocate to the town where the fathers were living – The trial Judge made orders for equal shared parental responsibility and for the children to live in the town where the fathers resided – Options were given in the orders for the mother’s relocation– Mother appealed – The essential point argued on appeal was whether the trial Judge had failed to properly weigh relevant factors – Consequences for the children considered – Appeal dismissed – No order as to costs |
| Family Law Act 1975 (Cth), s 60CC |
| Norbis v Norbis (1986) FLC 91‑712 Sampson and Hartnett (No. 10) [2007] FamCA 1365 |
| APPELLANT: | MS READ |
| FIRST RESPONDENT: | MR P OAKLEY |
| SECOND RESPONDENT: | MR G OAKLEY |
| APPEAL NUMBER: | NA | 9 | of | 2008 |
| FILE NUMBER: | TVF | 1731 | 2002 |
| DATE DELIVERED: | 6 June 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, Warnick and Boland JJ |
| HEARING DATE: | 14 May 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 December 2007 |
| LOWER COURT MNC: | [2007] FamCA 1520 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hibble |
| SOLICITOR FOR THE APPELLANT: | Purcell Taylor Lawyers |
| FIRST RESPONDENT: | In person |
| SECOND RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Benson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Cope Family Law |
Orders
That the appeal be dismissed.
That there be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Read & Oakley & Oakley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 9 of 2008
File Number: TVF 1731 of 2002
| MS READ |
Appellant
And
| MR P OAKLEY |
First Respondent
And
| MR G OAKLEY |
Second Respondent
REASONS FOR JUDGMENT
Ms Read has three children, each having a different father. In July 2007, the eldest child (14 years of age) moved from living with the mother to live with his father. The mother remained living in the town T with the two younger children, K (10 years) and L (nearly eight). K’s father is G Oakley who lives in the town C and L’s father is G Oakley’s brother, P Oakley, who lives south of the town C.
In proceedings before Moore J in October 2007, both G and P Oakley sought orders that their children return to the town C, where they had lived until mid-2004. Their preference was that the mother would also return to the town C and that each father would spend time with his child, five nights out of 14. This position was proposed in a Family Report and was supported by the Independent Children’s Lawyer. However, the fathers were willing to take on primary care of their respective child, if the mother did not return to the town C. That proposition was also supported by the Independent Children’s Lawyer.
The mother sought orders that would see her free to relocate with the children to the town B, but if not successful in that goal, that permitted her to remain living in the town T. At least at the outset the mother’s case before Moore J was that she would not live in the town C, in any event. As to the prospect that orders might direct that the children live in the town C, she proposed that she spend time with the children “…in [the town B] one weekend per month as per the mother’s amended response and school holidays as per mother’s response.”
Her Honour ordered:
·that the mother and each father have equal shared parental responsibility for their child and that the children live in the town C;
·that the mother elect whether she would live in the town C or not within 21 days of the orders and if she then lived in the town C, the children live with her effectively for nine nights out of each 14 and that school holidays be equally shared; and
·that if the mother elected not to live in the town C, each child live with his father and spend time with the mother one long weekend per school term and half of school holidays.
The proceeding before us is the mother’s appeal against those orders. Both the fathers and the Independent Children’s Lawyer oppose the appeal.
In the outline of argument relied upon by Mr Hibble, counsel for the mother, the grounds were grouped into three areas as follows:
(i)those involving a consideration of the principles upon which the competing proposals of the parties (including those not pursued or abandoned by a party) should be evaluated by a trial judge pursuant to the Family Law Act Act 1975 as amended by the Family Law (Shared Parental Responsibility) Act 2006 [sic] (and thus a consideration of the application in this instance of the decision in Taylor v Barker (2007) 37 Fam LR 461) (Grounds a, b, c, d, e and j);
(ii)those involving a consideration of the treatment of evidence by the learned trial judge in the particular case (Grounds a, b, e, f, g, h, i, k); and
(iii)those involving a consideration of how the learned trial judge justified the removal of the children from their long term carer (the Mother), placing them in separate households and having a regime of spending time with the Mother as against keeping the children together with their long term carer in [the town B] with the Fathers having what would be a very similar spend time with the children regime as the Court has proposed for the Mother, as being in the best interest of the children (a combination of all grounds including Ground l).
Notwithstanding this conflation of the grounds and also what, at the outset of oral submissions, Mr Hibble described as the essential point, Mr Hibble later accepted that in effect, the only argument was an assertion that the trial judge failed to properly weigh relevant factors.
To give context to this contention, we set out the following facts derived from the reasons for judgment; indeed, in many instances we do so by way of quotes from her Honour’s reasons. We also set out passages exemplifying the “structure” of her Honour’s critical reasoning.
The witnesses before the trial judge in the fathers’ case were each of the fathers and their mother and T Oakley, the wife of G. The mother was the only witness in her case. There were three independent witnesses of whom her Honour said:
Dr [K], psychiatrist, provided a report after evaluating each parent for psychiatric or personality disturbance. He found no area of functioning wanting and he was not required for cross-examination. …
A Family Consultant provided a Family Report. …
Finally, there is evidence from a school guidance officer, Ms [S], who saw [K] and [L] individually a number of times from mid-2006 until February of this year.
Moore J found that “the evidence of both fathers impressed as being far more reliable than the mother’s.”
Of the fathers, the trial judge said:
10.[P] and [G] are two of five brothers. Their family has always lived in [the town C], they have a supportive and close relationship with their mother and brothers, and there are other family connections in [the town C].
11.[P] … lives … in a home he purchased about seven years ago. He lives alone except when [L] visits. …
12.[G] … is married to [T]. They have a son, [J], aged 15 months … and are expecting the birth of their second child … .
13.[Ms Read] … is one of five children born to her mother. She was placed in foster care as a young child following the mother’s death from an hereditary illness. Her siblings and half siblings are scattered and a close connection has not been maintained.
In 2002 the fathers had instigated court proceedings about the children’s arrangements, it then being the mother’s proposal to move (again) to [the town N]. These proceedings were concluded by consent orders made 2 October 2003.
21.…They provided for the children to live with their mother, she was permitted to relocate with the children from [the town C] to [the town T] at the end of the 2003 school year, and provision was made for the children to have contact with their father [in [C]] every second weekend from 6pm Friday to 5pm Sunday [extended on long weekends] and for half of the school holidays as well as providing for regular telephone contact. Visits were to be implemented by changing over the children’s care at [a small town], located about half way between [the town T] and [the town C], unless otherwise agreed. …
22.That is` not to say the fathers consented to the move to [the town T] without misgivings.
Some time around the end of 2005, on an overnight stop-over to [Z]… on her way to South Africa, the mother met a [foreign] man, Mr [X]. She returned to [Z] for short periods on two separate occasions to see him but:
15.…apparently related to his visa not being renewed, last year he was obliged to leave [Z] and he returned to [his place of birth]. She then went to [his home town] for a short visit in September last year when they married. He remains living there and efforts to obtain the necessary visa for him to join her in Australia have so far been to no avail. She has not seen him since the trip … when they married and their communications have lessened recently. While the children have spoken to Mr [X] by phone, they have never met him. …
…
24.The children’s visits during school terms occurred for a time according to the October 2003 orders. However, they ceased for several months in early 2006 in circumstances to be mentioned shortly and over time they fell from fortnightly to every three weeks to the point where more recently they have been monthly. Both fathers consider the tapering off of their time is impacting on the quality of their relationship with their son. Telephone communication was not seen as a satisfactory substitute by either father, more particularly [P] who explained that [L] is easily distracted and not all that interested in talking on the telephone.
As to identification of the path of her Honour’s reasoning to the end result, we refer to the following:
54.As for moving to [the town C], her position is she will not return though she does convey some uncertainty about what she would do in the face of a decision requiring the boys to be returned to live in [the town C]. …
…
59.As for relocating to [the town B] or to [the town T] [P] does not see either as an option for himself. From his point of view, all the contacts he has built up for his business are in [the town C] and could not be duplicated elsewhere and he would also lose his close connection with family and friends. [G] says he had considered relocating to [the town B] but ‘then every time she decides to move away, I’d have to move my family’.
During her consideration of the factors set out in s 60CC of the Family Law Act 1975 (Cth) as amended (”the Act”) her Honour said:
73.… On that basis, each of these children presently has a meaningful relationship with both parents and that is of considerable benefit to them because both parents have a lot to offer in their own separate ways.
…
75.… The quality of their relationship with their mother and the benefit to them of that also requires her availability and input.
…
81.… [L] articulated an unambiguous wish to continue living with his mother and still visit his father …
82.[K] was much less committed in his views. … He added he would prefer to go to [the town B] with his mother because he likes his mother. Asked about his father’s, [sic] he said there was nothing he did not like about his father’s place …
…
84.As for the weight to be given to the views they expressed, at [their] ages … neither could be expected to have the level of maturity to comprehend fully the implications of the options to be considered here. That is more so in circumstances where there are quite complicated dynamics involved … Therefore their views – as distinct from their attachments - do not attract a great deal of weight. That is not to say their views are ignored, they are not, they are taken into account and are present considerations when each option is weighed.
The following further paragraphs are pertinent not only to the “structure” of her Honour’s reasoning to the final orders, but also in assessing the merit of the particulars provided by Mr Hibble of the contention that the trial judge had not properly weighed relevant factors. These particulars were:
·that Moore J did not give adequate consideration to the consequences for the children, if they were ordered to return to the town C and the mother elected not to move there;
·an element of that particular was the fact that if each child was to live with his father, they would be separated; and
·that her Honour gave excessive weight to the issue of the involvement of each father with his child, there being already a meaningful relationship between father and child (notwithstanding some recent deterioration in the frequency of time spent together) as against the effect of the orders, in the event that the mother did not relocate to the town C, on her involvement with the children.
The further paragraphs are:
85.If [the children] were to move to [the town B] no doubt they would make the adjustment to another environment … Similarly, they would make the adjustments required of a move back to [the town C]. But if their mother elected not to return in that event it can be expected they would experience her absence as distressing, perhaps more so [L] who is that bit younger and bearing in mind his reaction to events last Christmas. That said, he is a year older and his belief that he would not be seeing his mother again was not correct and nor would it be so if he were living in [the town C] and she elected to move nonetheless to [the town B] or elsewhere. Even so, it is a reminder of the extent of [L]’s attachment to his mother, whether it is a secure or anxious attachment is another matter, and undoubtedly he would be distressed by her absence were she to make that decision. To their credit, both fathers have a keen appreciation of the impact of such a decision on the boys.
…
87.There is no doubt these boys have a close relationship with each other.
…
107.… If they were living in [the town C] and their mother made the election to live elsewhere, including [the town B], that would be a choice of some significance for the children and the effect on them of separation from their mother would in all likelihood be quite difficult for them while they made the necessary adjustments, possibly more so for [L] who is that much younger than [K].
…
119.Overall it can be said that the children are attached to each other, they are attached to their parents though their stronger attachment is to their mother who has been their primary carer, they have committed parents who are able to provide adequately for their needs, including their need for a satisfactory relationship with each other and with their other parent. While there is no doubting her love for them, their mother has struggled at times with her parental responsibilities reflecting some fragility and vulnerability, and her commitment by marriage to Mr [X] has presented the children with an uncertain future where there can be no assurance they will be in a settled and happy environment. The fathers agreed to allow the move to [the town T], albeit reluctantly, but the distance has had practical implications for the children’s opportunities to spend time with their fathers and have them more involved in their upbringing. Those difficulties will remain if they stay in [the town T] and be more acute if they go to [the town B]. The fathers could have supplemented the visits to [the town C] with more trips down to [the town T], even accepting [G]’s added responsibilities, and yet there can be no doubting their commitment to the children. Nor is there any doubt that they have genuine concerns about where the mother is leading the children and they are both well equipped to take a more significant role with the boys who would benefit from the steady stability and mature sensibilities they both have on offer. If their involvement with the boys is diminished any further than is possible now, the boys’ best interests will not be met and would be considerably enhanced by an increase in their day to day involvement.
Moore J concluded that there were no facts in place which excluded the application of the presumption of equal shared parental responsibility. Accordingly, she then moved to address the question of equal time and said:
122.Putting distance aside as a factor, if equal time were to be applied the particular circumstances of these two boys mean they would be living in two separate households with their different fathers for half of their time, and that outcome would have to be considered in that light. Having said that, the history shows their fathers are close to each other and to their extended family, so there would be many opportunities to come together in those times, no doubt enhanced also by the children attending the same school.
123.If it were reasonably practicable, the best interests of these children would be met by an arrangement where they spend if not equal time with each parent then certainly substantial and significant time with their fathers.
Her Honour turned to the mother’s proposal to move with the children to the town B and concluded:
126.In my assessment the disadvantages for the children inherent in the move far outweigh any advantage for them. One disadvantage is that the environment their mother proposes for them is variously unsupported, vague, unrealistic, or unknown. Added to that, there is the further considerable disadvantage by reason of the probable implications it has for the children’s time with their fathers, despite the alternatives that might be available to ameliorate it, and the probable inroad the change will have on the quality of their relationships. It is a scenario that removes the fathers that much more from their day to day circumstances when there is an uncertain future ahead, and it would not alleviate concerns about their need for the stability and guidance their fathers are well equipped to provide.
Her Honour next considered the mother’s fallback position, namely living with the children in the town T and concluded:
131.But it is not ideal and nor is it to be preferred when other considerations earlier discussed are put on the scales and weighed in the balance. There is no escaping the conclusion that the mother has struggled with the demands of her responsibilities she has for the children or that she has made seemingly spontaneous important decisions with significant implications for the children, and potentially adverse ones, without having sufficiently weighed in the balance those implications. Both children have mature, stable and loving fathers with the capacity to contribute more to their upbringing than is now possible given the distance involved, which would have the added advantage of giving their mother further support with responsibilities and possibly even minimise the prospect of a repeat later down the line of what has occurred with [the eldest child]. If distance were not involved, substantial and significant time, as defined, would be the very least outcome that is consistent with the best interests of these children and the disadvantage of the [T] option is that it does not sufficiently allow this.
Her Honour then moved to the proposal that the mother move back to the town C with the children. She referred to the decision of the Full Court in Sampson and Hartnett (No. 10) [2007] FamCA 1365 and the majority’s conclusion that the Court has power to order a parent to relocate, but that the exercise of that power would be rare. Her Honour then considered the consequences if the mother felt “required” even indirectly to live in the town C, because of an order that the children live there, and said:
134.But in the final analysis I have concluded the children’s return to [the town C] is the preferable option amongst those discussed, including variations or re-arrangements within the two earlier options, and aligns squarely with their best interests. With the children returned to [C], it will be for the mother to elect whether she also returns or whether she continues with her proposal to go to [the town B]. I am satisfied the evidence as a whole supports that outcome because the advantages for the boys outweigh the disadvantages. Without repeating all that has been said before, the fathers’ closer involvement is seen as vital to their future stability and well-being, by their parental support they will be able to assist in more ways with the demands of parenting, and it will allow more time and parental involvement in the children’s lives than would be possible if they were living in either [B] or in [T].
…
142.If the mother does not elect to return to [C], there is no doubt the children would experience the separation from her with a sense of loss and possibly initially some distress, perhaps more so [L] given his younger age, taking into account his attachment to his mother, and the fact that he would not be living in a household with other children around. Certainly for each boy it will represent a fundamental change to their living circumstances to this point. Yet if that is her decision there is every reason to be confident the children will make the necessary adjustments and that both fathers will cope with any difficulties in a sensitive and supportive way. The children would have familiar surroundings and a supportive family network, including their grandmother, to ameliorate any difficulties.
143.In that event the children would be living in separate households, something neither father wants. But if the situation arises there can be confidence they will address the issue sensibly and make what arrangements between them are necessary to see that the children attend the same school and that they spend as much time together as possible, including [G] moving after the birth of the baby to accommodate the change in the children’s circumstances.
In our view, the quoted passages of her Honour’s reasons clearly demonstrate that she gave close attention both to the consequences for the children of a return to the town C, with the mother not returning there and to the need for significant and substantial involvement of each father in the life of his child, an involvement that she found was not otherwise achievable.
We have in mind what Brennan J said in Norbis v Norbis (1986) 161 CLR 513 at 540:
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.
We see no error in the way in which her Honour has dealt with the issues presented to her.
The particulars provided by Mr Hibble and set out above subsumed what he had initially described in oral submissions as the essential complaint in the appeal. That complaint was basically another way of expressing his subsequent submissions but nonetheless we address it. It was couched in terms that the order that Moore J made about where each child would live and the time that each child would spend with the other parent, was the mirror reverse of the order sought by the mother, but whereas her Honour directed herself to the need for the fathers to be involved in the lives of the children, she did not sufficiently consider the need for the mother to be so involved.
In addition to what we have already said of her Honour’s close attention to the consequences for the children, we make two further observations in respect of this manifestation of the argument.
Firstly, the overall orders that Moore J made are not simply the mirror reversal of the mother’s proposals. Her Honour’s orders enabled the mother to choose to remain the primary parent, with both children living together. The “mirror reversal” provisions accordingly only came into operation at the mother’s election.
Secondly, if there is any strength in this aspect of Mr Hibble’s argument, it may follow, given her Honour’s findings, that the order that would have been in the children’s best interests was an injunction requiring the mother to live in the town C. However, no doubt understandably from the mother’s standpoint, no attack was made on the mother’s behalf on her Honour’s consideration of that prospect. The remaining option for Moore J was to permit the mother to choose her involvement.
Conclusion
The inevitable result of what we have said is that the appeal should be dismissed.
Costs
The fathers do not seek costs in the event. The Independent Children’s Lawyer felt bound to do so because of the position of the Legal Aid authority, but put no arguments in support of the request.
The mother was legally aided in respect of the appeal.
We are not satisfied that any order for costs is justified.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 6 June 2008
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