ROSE & BAUDIN
[2012] FamCAFC 171
•30 October 2012
FAMILY COURT OF AUSTRALIA
| ROSE & BAUDIN | [2012] FamCAFC 171 |
| FAMILY LAW – APPEAL – CHILDREN ─ international relocation. |
| Family Law Act 1975 (Cth), s 69ZT(1) |
| Fox v Percy (2003) 214 CLR 118 Gronow v Gronow (1979) 144 CLR 513 |
| APPELLANT: | Mr Rose |
| RESPONDENT: | Ms Baudin |
| FILE NUMBER: | SYC | 5135 | of | 2011 |
| APPEAL NUMBER: | EA | 110 | of | 2012 |
| DATE DELIVERED: | 30 October 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Ainslie-Wallace & Austin JJ |
| HEARING DATE: | 20 September 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 August 2012 |
| LOWER COURT MNC: | [2012] FamCA 724 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Gillies |
| SOLICITOR FOR THE APPELLANT: | Hamish Cumming Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Campton |
| SOLICITOR FOR THE RESPONDENT: | Cameron Gillingham Boyd |
Orders
The appeal be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rose & Baudin 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 110 of 2012
File Number: SYC 5135 of 2011
| Mr Rose |
Appellant
And
| Ms Baudin |
Respondent
REASONS FOR JUDGMENT
Introduction
By notice of appeal filed on 31 August 2012, Mr Rose (“the father”) appeals against orders made by Forrest J on 28 August 2012 which permitted
Ms Baudin (“the mother”) to return to France taking their child, M (born in June 2009), with her. His Honour granted a stay of his orders pending the disposition of the appeal.
The trial Judge’s findings of fact are not the subject of challenge on the appeal. The father challenges not so much his Honour’s findings but the complexion or weight that his Honour put on the facts found by him. In that event, we may briefly set out the uncontroversial matters found by his Honour.
Background
The father was born and raised in the United Kingdom and in 2003 he moved to live and work in Australia. The mother is French and in 2007 she came to Australia. The parties soon afterwards entered into a relationship. In mid 2007 when the mother returned to France, the father went with her. In April 2008, the parties returned to live together and work in Australia. They purchased a residence in Sydney. In November 2008 they were married and in June 2009 the child was born.
The mother believed that she and the father had agreed that they would return to live in France as a family. The father, in the result, did not agree to a return and the relationship between them broke down.
In August 2011 the mother sought orders that she be permitted to return to France, taking the child with her. The father opposed the orders.
The mother proposed that, if she were permitted to return with the child to France, she would facilitate contact between the child and the father on two occasions of four weeks each year; one period to be spent in France and the other in Australia.
The father proposed that the child remain living with the mother but that they live in Sydney. He indicated that he wished to live neither in France nor in the United Kingdom. It seems however that, during the trial, proposals were formulated by the father which canvassed the time to be spent by the child with him should the mother be permitted to return with the child to France and he remained in Australia, he lived in the United Kingdom or he lived in France.
Apart from the evidence of the parties, the maternal grandparents and the paternal aunt, his Honour had the benefit of a report and oral evidence from a family consultant, Ms B.
The Trial Judge’s Reasons for Judgment
The trial Judge found that the child has a significant attachment to her mother and it is to the mother that she is principally attached (at [36] and [38]). Ms B’s opinion, accepted by his Honour, was that the child’s interests are best served by being in her mother’s care for the majority of time (at [38]).
His Honour found that the child has a “loving and warm relationship” with her father (at [37]).
As to the child’s relationships with her extended family, his Honour found that she has significant relationships with her maternal grandparents and paternal aunt (at [39]). He observed that the child had spent time with the maternal grandparents in France and found that she had a significant relationship with the maternal grandmother (at [40]). He found that while the relationship with the maternal grandfather was not of the same order, there was every reason to expect that the relationship would develop (at [41]).
In considering the relationship between the child and her paternal aunt, his Honour observed that there had been difficulties in the relationship between the father and his step-sister in the past and, while they had reconciled those difficulties in the recent past, his Honour was not confident that the relationship then existing was close and secure (at [42]). He found the relationship then existing between the child and her paternal aunt was not as significant as the father asserted although he left open the question as to whether it could develop in the future.
His Honour turned to the evidence of Ms B and the effects on the child were she be taken to live in France (at [43]). The family consultant said that in that event, there would be significant changes in the child’s relationship with each of her parents. His Honour said:
44. She considered the child’s relationship with her mother would be likely to improve because of the expectation that the mother’s physical and mental health will improve if she is again living in France and near her family.
His Honour said that this opinion was based on Ms B’s assessment that the mother’s psychological state was “fragile” (at [45]). His Honour then listed the matters on which the family consultant had reached that conclusion and observed that during the trial he had made observations of distress consistent with that seen by the family consultant (at [45] and [46]).
The mother told Ms B that she had been referred by her general practitioner to a psychologist and also a psychiatrist for assistance. The psychiatrist had recommended that the mother commence using antidepressant medication but she told Ms B that she was not amendable to that course, preferring to have recourse to homeopathic treatments.
His Honour said:
47. … Ms [B] herself opined that the mother met criteria for diagnosis with depression…
His Honour found:
48. I was left convinced that the mother has been completely struggling with life in Australia since the breakdown of her relationship with the father. I accept that she is very close to all other members of her family, all of whom live in France. I accept that she misses them and her life in France terribly. I am satisfied that she never came to Australia with the intention of living here permanently… I do not consider she ever emotionally committed to living in this country long-term. I am satisfied that she believed that she and the father and their child would be moving back to France as a family to live at some time and that as her unhappiness increased, the father, who had already given her cause to believe that they would move to France to live at some time in the future, actually caused her to believe that they would move to France to live as early as this year, 2012.
His Honour considered the position if the child went to live in France and the father remained in Australia. He referred to the evidence of the family consultant and said:
53. … Ms [B] opines that the big risk for the child would be that the attachment relationship that she currently has with her father would undergo “significant and deleterious” change. At her age, says Ms [B], the child relies on the continuity and quality of her attachment relationships. As it is, she currently spends time with her father every few days and she has not been deprived of that regular contact with him for any significant length of time in her life.
He accepted the opinion of Ms B that for the child to move to France would put the nature of her relationship with the father at risk and he could, potentially, become more peripheral in her life. He said, “…She says the child is yet too young to have the language or cognitive skills to maintain a close relationship with her father without regular contact” (at [54]).
His Honour considered the expert’s opinion that if the child remained living in Sydney with her mother she would continue to benefit from the “…current close and significant attachments relationships she enjoys with each parent” (at [55]). He said:
55. …However, Ms [B] identified the risk with this scenario being that the mother’s mental and physical health would continue to deteriorate thus placing the child at significant risk due to the disturbance this would potentially cause to the attachment relationship she has with her mother.
His Honour accepted that the father’s ability to maintain his relationship with the child in the event that she moved to live in France depended on the mother’s continued cooperation but accepted Ms B’s view that there were no particular reasons to conclude that the mother would not cooperate (at [59]).
His Honour was well aware that if the child moved to live in France there would be practical difficulties and expense associated with the father maintaining his relationship with her (at [67]).
His Honour said:
71. Having offered the opinion that the child’s relationship with her mother would be best facilitated if they were both able to move to France, Ms [B] went on to say that if they remain living in Sydney the mother would need to receive ongoing social and psychological support focused on improving her current state of mental health for her relationship with her child to be optimally maintained. She opined that if the mother is not permitted to take the child to live in France that her mental health would remain poor and might possibly deteriorate to the point where she might require hospitalisation at some point.
His Honour considered the family consultant’s suggestions of other therapeutic supports that might be put in place for the mother and found that it unlikely that the mother would adhere to all of those suggested supports. He found that, if the mother’s mental health deteriorated to the point where she required hospitalisation, it would not be conducive to the maintenance of the attachment by the child (at [74]). He noted:
74. … Ms [B] said that the mother’s ability to meet the child’s emotional, physical and intellectual needs under these circumstances would be severely compromised, placing the child herself then at risk of increased stress, anxiety and mental health disorder herself. I am quite sure that is correct.
His Honour then turned to the question of balancing the matters to which he had earlier referred. He considered the risk of the mother’s mental health deteriorating and its impact on the child if she remained living in Australia and the risk of the child losing a close, meaningful relationship with her father if she goes to France and he remains living in Australia (at [77]).
He found:
78. …there is a real prospect of the mother’s health not improving, or actually deteriorating further, if she stays in Australia. Therefore, I am satisfied that the child would likely be exposed to a level of risk to her emotional well-being high enough to be considered unacceptable in that event.
His Honour acknowledged the risk of the child losing her relationship with her father if she and the mother moved. He accepted the evidence of Ms B that the child’s age and cognitive development would pose difficulties in maintaining that relationship over a long distance even with block periods of time in school holidays. His Honour found that there were matters which could ameliorate the risk; if the father moved to live and work in France or England (at [79]). His Honour accepted that such a move was a matter entirely for the father (at [80]).
However, on the basis of the father’s asserted position before his Honour, that he would remain living and working in Australia, his Honour found:
81. …I am satisfied that with sufficient commitment on the father’s part to the maintenance of a relationship with the child and the active, willing support of the mother and her extended family, a meaningful relationship between the father and the child could be achieved and maintained, albeit not one of the same nature as if they lived near each other.
He said:
82. A balancing of these most significant competing considerations leads me, ultimately, to the conclusion that it is in the child’s best interests for her mother to be permitted to take the child with her and to relocate back to France to live in close proximity to her immediate and extended family and wider network of friends. I am convinced the mother will benefit enormously from such a move. That will, I am satisfied, provide the child with optimal parenting from her principal carer, upon whom she is so clearly dependent for her own physical and emotional wellbeing at this stage of her life. Those same circumstances still offer her the potential for regular, frequent time with her father, if he chooses to make decisions that are open to him to make that a reality. Even if he does not decide to follow the mother and child to France or to move to the UK so as to facilitate more regular, frequent time with the child, I expect that the mother and the father will determine to act in a child-focused manner in the future and that the child will be able to maintain a relationship with the father that is meaningful for them both.
His Honour made orders to that effect, providing for the father to spend different regimes of time with the child depending on where he was living.
The Appeal
The notice of appeal asserted eight grounds of appeal. Grounds 3 and 5 were abandoned. Those which stand are as follows:
1. His Honour erred in determining that the Mother be permitted to relocate to France with the child, by giving too much weight to the finding that the Mother would “benefit enormously” from such an international relocation.
2. His Honour erred in determining that the Mother be permitted to relocate to France with the child, by giving too much weight to the finding that the parties would be able to determine to act to maintain a relationship between the child and the father that would be meaningful to both.
…
4. His Honour erred in making findings of the Mother’s mental health based on opinions expressed by the Court appointed Family Consultant, without properly identifying the facts on which the opinions were, or the assumptions as to fact on which the opinion is based.
…
6. His Honour erred in making orders that the… Mother be permitted to relocate to France with the child, by not giving insufficient (sic) weight to the likelihood that the child’s relationship with her paternal aunt would diminish as a consequence of an international relocation.
7. His Honour erred in making orders that the Father spend time with the child for two months per year, in the absence of any reasons why such a period was in the best interest of the child.
8. His Honour erred in making orders that the Father spend time with the child for two months per year, in failing to consider on the evidence before the Court, the likelihood that such a period of spend time could be fully satisfied, and if it could not, whether or not that was in the best interest of the child.
The written argument sought to advance the following ninth ground of appeal:
His Honour erred in not following the legislative pathway mandated by Goode & Goode.
During the hearing of the appeal, leave was granted to the father to orally amend the grounds of appeal. A minute of “additional grounds for appeal”, since received, asserts the following:
1aHis Honour erred in finding the “enormous benefit” to the Mother of relocating would impact on her ability to parent.
1bTherefore, having made that determination, His Honour erred in failing to give adequate or proper consideration to the deleterious effect on the child’s relationship with the Father.
2His Honour erred in failing to prioritise the child’s ability to continue to have a meaningful relationship with the Father over the “enormous benefit” to the Mother in permitting her relocation.
Grounds 1 and 2 and Additional Grounds 1a, 1b and 2
These grounds relate to his Honour’s findings at [82].
It was first argued on behalf of the father that, although it was open to his Honour to find that the mother will benefit enormously from being able to return to France, there was no evidence that such a move would have a consequent, positive effect on her parenting capacity and his Honour therefore erred in so finding.
We find no force in that argument. There was, in our opinion, abundant evidence before his Honour to support his Honour’s finding that the mother’s present emotional distress would have an adverse impact on her capacity to care for the child and, consequently, an adverse impact on the child.
In her report, Ms B commented on the mother’s mental health. She said:
127. As opined earlier, the mother’s current mental health is extremely poor. She meets diagnostic criteria for depression; she is socially isolated and exhibits acute anxiety. I anticipate that if she is not permitted to reside in France with [the child] that her mental health would remain poor and possibly deteriorate further. In her interview with me the mother could barely countenance the possibility of living in Australia on a permanent basis.
128. Under these circumstances, her ability to meet the emotional, physical and intellectual needs of [the child] would be severely compromised. It appears that the mother currently functions primarily because she has a duty and responsibility towards her daughter. She appears to have little or no motivation to self-care; she has no apparent friendships, interests or social support. She appears to have clung to her work, although she attests to breaches in her patient care. She has lost significant weight, reports no appetite, has ceased menstruating and reports difficulties with concentration and motivation. These are all signs and symptoms of significant and acute stress.
129. The risks to [the child] if her mother continues to experience poor mental health are significant. Her mother is paramount to providing a sense of stability and security and to assist [the child] regulate her emotional states. As a primary attachment figure in her young life, a disruption to these basic organisational and psychological functions could place [the child] at risk of increased stress, anxiety and mental health disorder herself.
During cross-examination, counsel then representing the father asked Ms B whether “…the mother has more than adequate capacity right now to care for [the child]”. The family consultant confirmed the views expressed by her in her report [.13]:
---No, actually I wouldn’t say that; I think her capacity – her capacity is impaired by her psychological health…
She however said [.15]:
…despite that I think that she has been able to extract reasonably good parenting despite her psychological health.
Ms B explained that, while “…[the mother] was able to put on a happy mummy face…”, she remained concerned that “…[the mother’s] psychological health would impede her ability to respond to the [child’s] cues and be available to her”.
Ms B, referring to a comment by the mother to her that “[the child] gives [the mother] a reason to go on living”, further explained:
…She said she was able to hold it together because [the child] gave her a reason to go on living and so she was able to hang on to some kind of composure in the parenting stance…
Both in her report and in her oral evidence, Ms B clearly explained what she considered to be the connection between the mother’s situation in Australia and her mental health.
To put the matter beyond doubt, she said, in response to then counsel for the father putting it to her that “[s]urely [the mother] is in a position that the problems she is having living in Australia may more relate to… an inherent mental illness problem…”:
---No. I wouldn’t agree with that. I think that there are, I mean, I think that there may be genetic vulnerabilities that contribute to the mother’s capacity to copy (sic) with, you know, living in geographic isolation or cultural isolation or whatever you want to call that. That had she had a different set of genetics, if you like, that may have made her more able to cope with this, and I think that in personality the mother is perhaps anxiously temperamented and probably doesn’t cope with situations such as this very, very well, but… I don’t think that having a skype relationship or text or email or telephone relationship with a friend or a relative is the same, or compensates for the daily lived experience of being in a place where you are longing for something else. You know, the language is one thing that springs to mind first of all. To, you know, of course, she would, I imagine, be speaking in French to her friends, but as soon as the skype call disconnects or the telephone finishes she has to change languages.
We then turn to the second limb of counsel for the father’s argument which is that his Honour, having found that the mother will benefit enormously from being able to return to France and that such a move would have a consequent, positive effect on her parenting capacity, erred in failing to properly consider the deleterious effect such a move would have on the child’s relationship with the father.
We reject that argument. It is palpably clear from his Honour’s reasons that his Honour was acutely aware that, if the mother was permitted to return to France with the child, such a move would have a significant effect on the child’s relationship with the father should he remain living in Australia. Indeed, his Honour considered this very question under the heading, “How do all these matters balance out?”
At [79], his Honour found that “…there is [a] risk of the child losing her relationship with her father if she goes to live in France with her mother and does not spend frequent, ongoing time with her father”. His Honour there opined that there are a number of matters which would significantly ameliorate the seriousness of such a risk, including the father relocating to France or the United Kingdom. However, his Honour, as he was obliged, considered the father’s position that he would remain living in Australia and determined what would be in the best interests of the child in that event.
Further challenges were brought on behalf of the father to his Honour’s discretionary judgment. Specifically, it was argued that his Honour erred in giving too much weight to the findings that the mother will benefit enormously from being able to return to France and the parties would be able to determine to act to maintain a meaningful relationship between the child and the father. As a corollary, it was argued that his Honour erred in prioritising the benefit to the mother of being able to return to France over the child’s meaningful relationship with her father.
Again, we are not persuaded by these arguments. In determining that it is in the child’s best interests for her to relocate with her mother to France and “…live in close proximity to [the mother’s] immediate and extended family and wider network of friends”, his Honour balanced, on the one hand, the risk to the child of the mother’s continuing or deteriorating mental health if she was not permitted to return with the child to France and, on the other hand, the risk to the child of losing a meaningful relationship with her father as a result of such a move should the father remain living in Australia.
The balancing of these considerations and the ultimate determination of where the child’s best interests lie were entirely matters for his Honour in the exercise of his discretion. Applying well known principles governing an appeal from a discretionary judgment, no error in the exercise of his Honour’s discretion has been demonstrated.
Grounds 1 and 2 and Additional Grounds 1a, 1b and 2 therefore fail.
Ground 4
This ground, although not maintained on appeal, challenged his Honour’s reliance on what was said to be a medical “diagnosis” of the mother’s mental health by Ms B, the family consultant; and which, it was said, Ms B did not have the necessary expertise to make.
We simply observe that Ms B resisted making any diagnosis, saying that, while she was able to do so, she chose not to. However, in response to questions asked of her by counsel for the father, she said:
…I think that she clearly has a major depressive disorder and she also meets [the] diagnostic criteria for an anxiety disorder… What I mean is she presents with both disorders, and I think that she has said that she is not going to take medication for those disorders and that they are likely to have an impact on her functioning.
After discussing possible treatments and supports that might assist the mother were she to remain living in Australia, Ms B confirmed her opinion that, based on her observations of the mother, the severity of her presenting symptoms were such as to make the need for hospitalisation likely.
His Honour at [72] referred to s 69ZT(1) of the Family Law Act 1975 (Cth) and said, correctly in our view:
72. …I am entitled to give such weight as I think fit to evidence admitted as a consequence. I am, in the circumstances, having regard to the evidence of Ms [B’s] qualifications and experience and my observations of her in the witness box under cross-examination by experienced counsel, satisfied that Ms. [B] does indeed, in any event, have specialised knowledge based on her training, study and experience and that her opinions were wholly or substantially based on that knowledge. I have no difficulty accepting them into evidence and giving them substantial weight in this case, even though Ms [B] is not a psychiatrist.
Ground 6
For the mother, it was argued that although the evidence established that the child enjoyed a relationship with her paternal aunt, “No consideration appears to have been given on the effect on the paternal family relationships if the child was to relocate to France with the Respondent” [written argument paragraph 24]. The written argument sought to extend this point to other members of the father’s family.
As we have already indicated, his Honour referred to the relationship between the child and her paternal aunt. He said:
39. Ms [B] did not get the opportunity to observe the child with any of her extended family, such as her grandparents or aunts and uncles. Nevertheless, she stated that reports from the parents suggest that the child has significant relationships with her maternal grandparents and with her paternal aunt [R].
He continued and observed that the child had been spending time with the aunt, “…particularly since the separation of the parents in May last year…” (at [42]) after referring to difficulties in the relationship between the father and his sister in the past said:
42. …I am left unsatisfied that the relationship between the child and her paternal aunt is currently as significant in the child’s life as the father contends. That is not to say that it could not develop as such in the future but that, in my view, would greatly depend on the maintenance and further improvement of the father’s current relationship with his step-sister and that is not something that I can say with any certainty I am confident of.
His Honour was astute to the impact not only on the father but his extended family if the mother and the child were permitted to live in France. The evidence on the child’s relationships with the paternal family, such as it was, is a matter that his reasons disclose was taken into account. The weight to which his Honour attached to that evidence was a matter for him.
No appellate error has been demonstrated in relation to this ground.
Grounds 7 and 8
These grounds relate to his Honour’s orders providing for the child to spend two months each year with the father.
It was argued that his Honour erred in making those orders “…in the absence of any reason why such a period was in the best interest of the child” (Ground 7) and that in making the order, his Honour failed to take into account whether the period “…could be fully satisfied, and if it could not, whether or not that was in the best interest of the child” (Ground 8).
Before we move to consider the arguments advanced for each ground, it is important to observe that the father’s proposals before his Honour were shifting sands.
The father’s response to the mother’s application sought orders for time with the child only contemplating the mother’s application to move to France was dismissed.
At the start of the trial he made further proposals if the mother’s application to live in France was successful and should he decide to live in England or France.
Although the exhibits were not included in the appeal papers, it seems uncontroversial that in his minute of orders, the father proposed that he spend 4 weeks each year with the child if she was living in France and he in Australia. The mother’s written argument contends that the father told Ms B that he was entitled to only 4 weeks leave each year.
His Honour determined the issue, as we have observed from the position that the father would remain living in Australia.
However, when he came to make orders for time to be spent between the father and the child, his orders contemplated all of the proposed contingencies.
It is asserted by the father in the written argument that his Honour’s reasons do not indicate sufficiently “…why that configuration of time, as opposed to some other configuration…” was in the best interests of the child.
His Honour determined that if the father did not move from Australia, the father had sufficient commitment to his relationship with the child to maintain it and it could be, with support of the mother, maintained (at [81]). His Honour reflected on this where he discussed how he proposed to craft the orders providing for time to be spent with the child (at [83]).
His Honour’s reasons demonstrate his reasoning process to the orders he made.
No error has been demonstrated in this ground.
As to whether the orders could be accommodated by the father, the written argument asserted:
Further, the Respondent’s evidence was to the effect that she would come to Australia over our winter for a period of about 4 weeks. It was evident from her evidence that she contemplated the Appellant would take leave during that time whether it be unpaid or otherwise. It is unclear what the Respondent’s continuing attitude to bringing the child to Australia for a month each year might be if the Appellant was unable to comply with her expectation.
It is perhaps as well to consider the submission on this issue made by counsel then appearing for him:
MR JACKSON: …Well, in terms of the exact times and periods and nights that [M] will spend with her father, whatever decision your Honour makes, I’m not going to address you at length here. You have the advantage, of course, of some very, I think, good evidence from Ms [B] about that aspect and I would leave the matter for your Honour’s discretion as to what you think is the appropriate times and dates, subject, of course, that your Honour can make your own decision here and not be bound by the proposals of the parties.
In the light of those submissions and that, apparently, none of the asserted arguments were made to his Honour; it is difficult to see how the father’s arguments on this ground could have any force.
In any event, his Honour was bound to make orders that, in his discretion met the best interests of the child. Nothing was put to us that persuades us that his Honour’s exercise of discretion miscarried.
This ground of appeal will fail.
Additional Ground
This ground asserts that his Honour erred in “…not following the legislative pathway mandated by Goode & Goode”.
The father argued that his Honour’s reasons do not reveal what factors were taken into consideration or what weight was given to each of them.
As we have earlier recorded, it has not been demonstrated that the trial Judge erred in relation to the “benefits” which his Honour found the mother would receive if she were able to relocate the residence of the parties’ child to France. As we have also explained, and as the trial Judge’s reasons for judgment clearly reveal, the issue was not limited to the beneficial impact on the mother’s parenting capacity of relocation to France. The trial Judge clearly recognised, and made findings of fact with respect to the detrimental impact on the mother’s parenting capacity of her not being permitted to relocate the child’s residence to France. No basis for disturbing any findings of fact made by the trial Judge in that regard has been established.
Notwithstanding the limitations upon the “trial Judge’s advantage” (see Fox v Percy (2003) 214 CLR 118), the beneficial and detrimental aspects of the mother being permitted, or not permitted to relocate the child’s residence to France were matters which were extensively agitated before the trial Judge, and able to be evaluated by his Honour in ways not open to this Court. Nothing to which this Court has been referred persuades us that, having permissibly found, as the trial Judge did, with respect to relevant benefits and detriments, excessive or inappropriate weight was afforded any of such matters. As the authorities recognise (see Gronow v Gronow (1979) 144 CLR 513), the weight able to be given to those factors was a matter for the trial Judge. It cannot be successfully asserted that excessive weight was given to either the benefits of relocation, or the detriments of refusal of relocation.
Under the heading “section 60CC considerations”, the trial Judge carefully considered the evidence, which he permissibly accepted, establishing that “…the child’s attachment relationship with her mother is significant to her psychological and developmental health” (at [36]), and that the child was “…currently principally attached to the mother and that her interests are best served being in her mother’s care for most of the time at this stage of her development” (at [38]). His Honour also had regard to the evidence with respect to the child’s relationship with her maternal grandparents, both of whom reside in France (at [40] and [41]), and to the child’s relationship with her paternal Aunt who resides in Australia (at [42]).
After referring to the evidence of the family consultant, acceptance of and reliance upon which gives rise to the first, and unsuccessful challenge in this appeal of the father, the trial Judge recorded:
48. I was left convinced that the mother has been completely struggling with life in Australia since the breakdown of her relationship with the father. I accept that she is very close to all other members of her family, all of whom live in France. I accept that she misses them and her life in France terribly. I am satisfied that she never came to Australia with the intention of living here permanently, either the first time she came out in 2007 or when she moved here in 2008, after agreeing to marry the father. I do not consider she ever emotionally committed to living in this country long-term. I am satisfied that she believed that she and the father and their child would be moving back to France as a family to live at some time and that as her unhappiness increased, the father, who had already given her cause to believe that they would move to France to live at some time in the future, actually caused her to believe that they would move to France to live as early as this year, 2012.
Significantly, the trial Judge also recorded:
53. Should the mother be permitted to take the child to France to live, and the father were to stay in this country, Ms [B] opines that the big risk for the child would be that the attachment relationship that she currently has with her father would undergo “significant and deleterious” change. At her age, says Ms [B], the child relies on the continuity and quality of her attachment relationships. As it is, she currently spends time with her father every few days and she has not been deprived of that regular contact with him for any significant length of time in her life.
54. If the child lives in France and the father lives in Australia, Ms [B] gave evidence that the nature of her relationship with her father would be put at risk and the father would potentially become more peripheral to the sphere of influence in her life. She says the child is yet too young to have the language or cognitive skills to maintain a close relationship with her father without regular contact. I do not doubt any of that opinion.
In relation to the implications of refusing to allow the child’s residence to be relocated, the trial Judge recorded:
55. If the mother is not permitted to take the child to live in France and she and the child stay living in Sydney, Ms [B] opines that the child would continue to benefit from the current close and significant attachments relationships she enjoys with each parent. Continuing cognitive and language development should see the child more easily managing separation from her mother and spending more and more time with her father. However, Ms [B] identified the risk with this scenario being that the mother’s mental and physical health would continue to deteriorate thus placing the child at significant risk due to the disturbance this would potentially cause to the attachment relationship she has with her mother.
Later, the trial Judge recorded the following caveat:
59. Ms [B] acknowledged that the mother’s motivation to continue to facilitate and encourage a close and continuing relationship between the child and her father, should the child be living in France and the father elsewhere, is untested. She also acknowledged that, in such circumstances, the continuation of the child’s relationship with the father would be heavily dependent upon the mother’s continued cooperation. Ms [B] said she could see no particular risk factors or any reasons to say the mother would be predisposed to not cooperating in this regard and she went on to express the opinion that the mother genuinely wishes for the child to have a positive relationship with the father.
In a number of ensuing paragraphs of his reasons ([60], [61] and [62]), the trial Judge recorded a number of concerns articulated on behalf of the father, and the reasons why his Honour was not generally persuaded that the complaints there identified had been established on the evidence. It has not been established that his Honour erred in so finding. In continuance of the “balancing act” which the evidence before him obliged the trial Judge to undertake, a number of adverse findings, none of which has been disturbed, or sought to be disturbed, with respect to the father were recorded (at [64], [65] and [66]). His Honour then considered the attitudes of the parties. A balanced reading of his Honour’s reasons reveals that attitudes did not materially advance or impede the case of either party (at [68] and [69]).
Having exhaustively considered what were undoubtedly the relevant facts and circumstances revealed by the evidence before him, the trial Judge concluded his deliberations by asking, “How do all these matters balance out?” In the paragraphs which followed (at [77] to [83]), the trial Judge reiterated the matters of greatest significance emerging from the analysis of the evidence which he had earlier recorded. It is not suggested that his Honour there omitted to have regard to any relevant fact or circumstance. Nor is it suggested that his Honour there had regard to any irrelevant fact or circumstance. The findings of fact by reference to which his Honour there referred remain undisturbed.
As the trial Judge clearly identified, issues relating to the mother’s wellbeing supportive of allowing her to relocate the child’s residence required balancing with the reality that permitting such relocation created the risk of the child’s relationship with her father being compromised. The trial Judge’s finding that “…the child would likely be exposed to a level of risk to her emotional well-being high enough to be considered unacceptable…” in the event that the mother was not permitted to relocate the child’s residence to France was reiterated by the trial Judge (at [78]). So was “…the risk of the child losing her relationship with her father if she goes to live in France with her mother and does not spend frequent, ongoing time with her father” (at [79]).
Significantly, although the trial Judge found that, albeit “…not his preferred position…” (at [80]), the father had the capacity to live closer to the child, whether that be by living in France or in England, that finding was not relied upon to the father’s detriment. Properly, the trial Judge regarded that state of affairs neutrally.
The trial Judge’s ultimate conclusion that “[a] balancing of these most significant competing considerations…” (at [82]) was, on the undisturbed findings of fact made by him, a conclusion well open to his Honour. Other conclusions may also have been reasonably available, but that is not the test for present purposes.
Nothing to which the Court has been referred, either with respect to the trial Judge’s findings of fact, the conclusions reached in reliance upon them, or the weight given, or not given to those findings of facts, has been shown to be erroneous.
No error has been demonstrated.
We thus propose to dismiss the appeal.
Costs
As is our custom, at the end of the hearing, we sought submissions from the parties on costs.
In the event that the appeal failed, the mother sought an order that the father pay her costs of and incidental to the appeal.
The order was resisted by the father.
This is a matter in which we are of the view that, notwithstanding the appeal has failed, there should be no order as to costs. The father’s appeal was brought in circumstances where the order made by the trial Judge had the effect of allowing his three year old daughter to move to live in France. Even though his Honour made orders for contact, the decision brings with it such consequences that his appeal was almost inevitable.
Thus we will not make an order that the father pay the mother’s costs of the appeal.
I certify that the preceding ninety eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace & Austin JJ) delivered on 30 October 2012.
Associate:
Date: 30 October 2012
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