SADBERRY & JABLON
[2015] FamCAFC 27
•27 February 2015
FAMILY COURT OF AUSTRALIA
| SADBERRY & JABLON | [2015] FamCAFC 27 |
| FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the mother relocated with the child interstate – Where the father had no relationship with the child at the time of relocation – Where the mother has other children in her care – Where the trial judge made interim orders requiring the mother to return to the father’s state of residence with the child – Where a meaningful relationship with the father is in the child’s best interests – Where returning to the father’s state of residence would facilitate a meaningful relationship between the father and the child – Whether the trial judge followed the proper approach in determining what time the child would spend with the father – Whether the trial judge applied the proper approach in determining the issue of relocation at an interim hearing – Whether the mother was afforded procedural fairness – Whether the trial judge had regard to the reasonable practicability of relocation – Where the mother adduced no evidence as to reasonable practicability before the trial judge – Whether the trial judge erred in the exercise of discretion – Whether the trial judge provided proper reasons for decision – Appeal dismissed. |
| Family Law Act 1975 (Cth) |
| Bennett and Bennett (1991) FLC 92-191 House v The King (1936) 55 CLR 499 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 |
| APPELLANT: | Ms Sadberry |
| RESPONDENT: | Mr Jablon |
| FILE NUMBER: | DUC | 300 | of | 2013 |
| APPEAL NUMBER: | EA | 45 | of | 2014 |
| DATE DELIVERED: | 27 February 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 1 December 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 March 2014 |
| LOWER COURT MNC: | [2014] FCCA 913 |
REPRESENTATION
| THE APPELLANT: | In person by telephone |
| COUNSEL FOR THE RESPONDENT: | Ms Obradovic |
| SOLICITOR FOR THE RESPONDENT: | Peacockes Solicitors |
Orders
Appeal against the orders of Judge Dunkley made on 30 May 2014 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sadberry & Jablon 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 45 of 2014
File Number: DUC 300 of 2013
| Ms Sadberry |
Appellant
and
| Mr Jablon |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 16 April 2014 Ms Sadberry (“the mother”) appeals against orders made by Judge Dunkley on 20 March 2014 which required her to relocate the residence of the child of her relationship with Mr Jablon (“the father”), X (“the child”), from far north Queensland to country NSW.
His Honour’s orders were made after an interim hearing of the father’s application brought on 20 March 2014.
Background
So as to give context to the appeal it is necessary to provide some background facts.
The father was born in 1970. The mother was born in 1974. The parties commenced their relationship in 2011. The child was born in mid-2012. The parties separated in 2013.
Up until April 2013, the mother and child were living in central west NSW, near Town B. While there is some dispute about whether and when the mother informed the father that she had left her previous accommodation, it seems undisputed that up until the mother notified the father, he did not know that she intended to leave NSW. In any event, after leaving central west NSW the mother and child went to far north Queensland and were living there at the time of the hearing before the judge.
It was uncontentious that the father had almost no relationship with the child before the mother left the area in which they were both living.
The mother has three other children from another relationship in her care. Those children are in their teenage years. Two of them were attending high school in far north Queensland.
On 16 August 2013 the father filed an Initiating Application seeking interim and final parenting orders. The case was adjourned several times until
19 November 2013 when it had its first directions hearing in the Federal Circuit Court. There was no appearance by the mother and the matter was adjourned to 26 February 2014.
On 6 December 2013 the father filed an Amended Initiating Application which sought an order that the mother relocate to the Town B area with the child. On 26 February 2014 the case was adjourned and listed for interim hearing on
20 March 2014, prior to which the mother was ordered to file and serve a response and any relevant affidavit. The mother filed affidavits and was represented by a solicitor who appeared by telephone at the hearing before
his Honour.
Following the interim hearing on 20 March 2014, his Honour made the following parenting orders by consent:
(1)The parties shall have equal shared parental responsibility for [the child].
(2)By not later than the conclusion of the Term 1 school holidays in Queensland, the mother is to cause [the child] to be resident in [Town W], NSW.
(3)As and from the first Saturday after the mother’s return, the father shall spend time with [the child] from 9:30am to 10:30am on each Saturday and Sunday.
His Honour also ordered the parties and the child to attend a family consultant for the preparation of a family report. On 16 April 2014 the mother filed a Notice of Appeal.
On 30 April 2014 the mother filed an Application in a Case in the Federal Circuit Court seeking a stay of the orders made on 20 March 2014. The stay application was heard on 27 May 2014 and refused. His Honour considered the principles relevant to the determination of a stay application. He held that the child’s best interests were the most significant consideration and that they would be best met by facilitating the establishment of a relationship with her father. In his Honour’s view, this was only reasonably practicable if the child lived in the central west of New South Wales. Accordingly, he dismissed the mother’s application for a stay but varied the orders so as to require the father to meet the mother’s reasonable relocation costs and to contribute $100 per week as urgent spousal maintenance. The mother was given until 6 July 2014 to find accommodation and complete the relocation process.
In contravention of the orders made on 20 March 2014, the mother remained in far north Queensland with the child and the other children in her care. At the time of the appeal hearing she was preparing to move to an area near Town B in compliance with the orders and she expected to have moved the child’s residence before 18 December 2014.
The final hearing of the parenting issues between the parties is listed for hearing in the Federal Circuit Court on 23 April 2015. Notwithstanding that the mother was in the process of returning to the Town B area in compliance with the orders of the judge and the imminence of the final hearing, the mother pressed the appeal against his Honour’s interim order requiring her to return the child to the area from which she was removed.
Trial judge’s Reasons
It is to be understood that his Honour’s orders and his consideration of the issues in the case is against a background of the parties consenting to an interim order that they have equal shared parental responsibility for the child.
His Honour identified the principal issue in the case as being the determination of appropriate parenting orders for the child. He noted that the father had virtually no relationship with the child and that as the mother had been her primary carer, there must be an order that the child live with the mother [14].
The judge then stated that, pursuant to s 60B of the Act, he must make orders with the child’s best interests as the paramount consideration. In determining what orders would be in the child’s best interests, his Honour had regard to the primary and additional considerations set out in s 60CC of the Act.
In assessing the primary considerations in s 60CC(2), his Honour determined that it was not possible to conclude at that stage that there was a risk to the child or a need to protect her from psychical or psychological harm [17].
His Honour then turned to a consideration of how a meaningful relationship for the child with both of her parents could be implemented and concluded that the only relationship the child had was with the mother and her siblings. The judge found that if the child returns to live in the Town B area, it would facilitate the establishment of a relationship between the child and the father.
The mother had proposed a regime of time to be spent between the child and the father while she remained living in far north Queensland. His Honour found that the time between proposed visits was such that the child was unlikely to build a relationship with the father. However, his Honour considered that if the mother was living in or near Town B, the proposal for regular short periods of time spent by the child with the father would likely enable a relationship to begin.
Thus his Honour concluded that the child being returned to live in or near Town B “gives the possibility of the beginning of a relationship” [33].
His Honour found that:
34. …short periods of time of regular frequency are more likely rather than less likely to be sustainable and to enable the development of a relationship between the child and the father, and are therefore in [the child’s] best interest.
His Honour then concluded that this pattern of contact would only be reasonably practicable if the distance between the parties’ residences was less than the distance between Town B and far north Queensland. It was on this basis that his Honour ordered that the mother relocate with the child to an area close to Town B.
The judge found that practical difficulties in a move of the child’s residence from far north Queensland to Town B was ameliorated because the mother had accommodation owned by her parents in a nearby town available to her and where she was in fact living prior to her move away.
Grounds of appeal
There were seven grounds of appeal contained in the mother’s Notice of Appeal filed on 16 April 2014. She also provided a written Outline which unfortunately does not apparently support all of the grounds. The mother also made oral submissions on the appeal.
Ground 1
Ground 1 of the Notice of Appeal provided that:
The Learned Trial Judge erred in that he misdirected himself as to the proper approach to be followed in determining the child application in this case with regard to time to be spent with the Father.
Ground 2
Ground 2 of the Notice of Appeal provided that:
The Learned Trial Judge erred in that he misdirected himself as to the proper approach to be followed in determining the child relocation application in this case.
No submission, either oral or in writing was apparently directed to either of these grounds. In the absence of any support for the grounds it is impossible to know how the mother asserts that the judge misdirected himself in both respects.
However, having regard to his Honour’s reasons I am not persuaded that he misdirected himself as to the approach to determining what time the child would spend with the father nor that any error in his approach to the issue of the return of the child to the Town B area. Thus these grounds are not made out.
Ground 3
Ground 3 of the Notice of Appeal provided that:
The Learned Trial Judge erred in that he misdirected himself as to the proper approach to be followed in determining child relocation cases in that he has allowed a final determination of such question at an interim hearing without the full evidence of the parties and without allowing cross-examination of any witness and without engaging the assistance of a Family Report writer.
His Honour, dealing with an interim hearing, was entirely correct to proceed on the basis of the information contained with the parties’ affidavits. Rule 5.10(2) of the Family Law Rules 2004 provides that cross-examination will be allowed in an interim hearing “only in exceptional circumstances”. The mother was represented by a solicitor in the hearing before his Honour. No application was made on the mother’s behalf that his Honour allow cross-examination. Further, given the nature of the case, it is difficult to imagine that it would give rise to exceptional circumstances.
Neither was any request made of his Honour as to the provision of a Family Report. His Honour was well aware that he was dealing with an interim application brought by the father that the child be brought back to live in Town B. Having determined the issue of the relocation of the child, his Honour then made orders which provided, amongst other things, for the preparation of a Family Report.
His Honour did not determine the issue of the child’s location on a final basis as is clear from his reasons. That matter and the other issues relevant to the child’s welfare will be considered in the final hearing of the parenting dispute between the parties.
No error has been shown.
Ground 4
Ground 4 of the Notice of Appeal provided that:
The Learned Trial Judge erred in that he has not afforded the Mother procedural fairness.
In argument, the mother said that inconsistencies and inaccuracies between the father’s account and hers were not able to be investigated because there was no cross-examination in the matter.
Essentially this point repeats the contention in Ground 3. Within a short time, there will be a final hearing of the issues in dispute between these parties in which there will be an opportunity to cross-examine the deponents of affidavits. An interim hearing does not permit of that process. His Honour was well aware of the limitations imposed by a hearing without the testing of evidence and recognised that, in some respects, the evidence did not permit of a finding (see for example [17]).
No error has been demonstrated.
Ground 5
Ground 5 of the notice of appeal provided that:
The Learned Trial Judge erred in finding that the circumstances of this case impelled him to make an order for the child to become a resident of different state [sic] to which the Mother was resident to facilitate limited time with the Father without having regard or any proper regard to the personal and financial circumstances of the Mother and/or the circumstances of the Mother’s three (3) children from an earlier relationship.
One paragraph in the mother’s affidavit in response to that of the father is devoted to the mother and child’s present circumstances. At paragraph 154 she said:
154. We now live in [far north Queensland]. [The child] attends playgroup for two hours once a week and weekly swimming lessons. She has a daily routine and is happy and contented. She has regular doctor’s (sic) visits and her immunisations are up to date. She enjoys playing with her siblings and has made friends here in [far north Queensland] at playgroup and at the pool. [W] and [Z] are enrolled at [P] high School. [W] is in year eight and [Z] in year ten.
In oral submissions, the mother raised matters which she said demonstrated that her circumstances were such that the order for the child to be returned to the Town B area should not be made. She conceded that none of the matters to which she referred, for example that she did not have a car, was put to his Honour. She further argued that the trial judge did not consider the financial practicalities in her moving back to the Town B area. Nothing about her financial circumstances were in evidence before his Honour.
While it might be relevant to his Honour’s enquiry into the practicalities of ordering such a move to consider the mother’s financial capacity to comply with the order, where there was no issue raised with his Honour about that capacity, his Honour was entitled to assume that it did not pose an impediment to compliance with any order to relocate.
The trial judge turned his mind to the practicalities of requiring the child to be relocated to the Town B area. He considered that if the child returned to the Town B area, so too would the mother and the other children. He was satisfied that the mother had accommodation available to her. While the mother sought to challenge this finding on appeal, his Honour’s finding was based on her own evidence in which she said that the particular house was purchased by her parents to provide her with long term accommodation. The mother argued that there was no evidence before his Honour that it was still available to her. Again, the mother put no such evidence to the court and
his Honour was entitled to make the findings he did.
His Honour was aware of the deficiencies in the evidence before him concerning the other children and their circumstances in far north Queensland but concluded that the child’s best interests required her to relocate to the Town B area where she could build a meaningful relationship with her father.
No error has been established.
Ground 6
Ground 6 of the notice of appeal provided that:
The Learned Trial Judge erred in failing to exercise or properly exercise his discretion.
The determination of the return of the child on an interim basis was the exercise of his Honour’s discretion. The bar to successful appellate intervention is set high on asserted errors in the exercise of discretion. In order to succeed, the mother must establish that the 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.
She has demonstrated none of those and the ground will fail.
Ground 7
Ground 7 of the notice of appeal provided that:
The Learned Trial Judge failed to provide adequate or proper Reasons for Judgment.
A judge is required to give reasons for decision so as to enable a party, and indeed an appeal court, to discern either expressly or by implication the path of reasoning to the ultimate conclusions (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24 and Bennett and Bennett (1991) FLC 92-191).
His Honour’s reasons demonstrate his reasoning based on the evidence before him to the conclusions he reached.
No error has been shown.
Thus, the appeal will fail.
Costs
At the conclusion of the appeal hearing, the parties made submissions as to the costs of the appeal to save the time, trouble and expense of making those submissions once the reasons were delivered. The father sought no order for costs against the mother if the appeal failed.
Thus no costs orders will be made.
I certify that the preceding fifty four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
27 February 2015.
Associate:
Date: 27 February 2015
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