Sigley & Evor
[2011] FamCAFC 22
•10 February 2011
Family Court Of Australia
| SIGLEY & EVOR | [2011] FamCAFC 22 |
| FAMILY LAW - APPEAL – Parenting – Intrastate Relocation – Whether the Federal Magistrate made a number of critical findings that were not supported by the evidence – Whether the Federal Magistrate failed to consider the provisions of s 60CC(4) and s 60CC(4A) of the Family Law Act 1975 (Cth) – Whether the Federal Magistrate failed to consider the provisions of s 65DAA of the Family Law Act 1975 (Cth) – Whether the Federal Magistrate erred in relation to his consideration of s 60CC(2)(a) and what is required by the term “meaningful relationship” – Where the Federal Magistrate was obliged to consider, weigh and assess the evidence touching upon each of the relevant matters and after a consideration of all those matters, indicate to which of the matters he attached greater significance and how all of the relevant matters balanced out when determining the best interests of the child – Error established FAMILY LAW - COSTS – Appeal successful based on an error or law – Costs certificates granted to both parties in respect of the appeal and of the rehearing |
| A v J (1995) FLC 92-619 Dunstan v Jarrod and Another (2009) 41 Fam LR 535 Gronow v Gronow (1979) 144 CLR 513 M and S (2007) FLC 93-313 Marsden and Winch (No 3) [2007] FamCA 1364 McCall & Clark (2009) FLC 93-405 Norbis v Norbis (1986) 161 CLR 513 |
| Family Law Act 1975 (Cth) – s 60B, s 60CA, s 60CC, s 60CC(4), s 60CC(4A), s 60CG, s 61DA(1), s 64B, s 65D, s 65DAA, s 65DAE, s 117 Federal Proceedings (Costs) Act 1981 (Cth) – s 6, s 8, s 9 Federal Magistrates Court Rules 2001(Cth) – r 15.09 |
| APPELLANT: | MS SIGLEY |
| RESPONDENT: | MR EVOR |
| FILE NUMBER: | BRC | 488 | of | 2007 |
| APPEAL NUMBER: | NA | 83 | of | 2009 |
| DATE DELIVERED: | 10 February 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O’Ryan, Strickland & Benjamin JJ |
| HEARING DATE: | 31 May 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 25 August 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 933 |
Representation
| COUNSEL FOR THE APPELLANT: | Mr N. McGregor |
| SOLICITOR FOR THE APPELLANT: | J.B. Stevenson & Company |
| COUNSEL FOR THE RESPONDENT: | Ms C. Carew |
| SOLICITOR FOR THE RESPONDENT: | Edgar & Wood Solicitors |
Orders
The appeal is allowed.
The applications for final parenting orders are remitted to the Federal Magistrates Court for redetermination by a Federal Magistrate other than Federal Magistrate Howard.
The Appellant is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant in respect of the costs incurred by the Appellant in relation to the appeal.
The Respondent is granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent in respect of the costs incurred by the Respondent in relation to the appeal.
The Appellant and the Respondent are each granted a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to both parties in respect of such part as the Attorney-General considers appropriate of any costs incurred by both parties in relation to the new trial granted by these orders.
IT IS NOTED that publication of this judgment under the pseudonym Sigley & Evor 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 SYDNEY |
Appeal Number: NA 83 of 2009
File Number: BRC 488 of 2007
| MS SIGLEY |
Appellant
And
| MR EVOR |
Respondent
Reasons For Judgment
Introduction
This is an appeal by Ms Sigley (“the Mother”) against parenting orders made by Federal Magistrate Howard pursuant to the provisions of Pt VII of the Family Law Act 1975 (Cth) (“the Act”). The respondent is Mr Evor (“the Father”). The Father opposes the appeal.
This was a difficult intrastate relocation parenting case involving a child who was born in 2005. The Mother sought to relocate with the child from a country town X in southwest Queensland to north Queensland. The Father opposed the relocation and sought that the Mother and the child reside in the X area so that during the school term the child could spend time with the Father every second weekend. The Mother is and always has been the primary carer of the child.
On 22 October 2009 the Federal Magistrate made the following final orders:
1.That the child […] born on […] 2005 remain living in the [X] area.
2.That the child live with the Mother.
3.That the parties have equal shared parental responsibility in respect of the child.
4.That the child spend time with the father at all times agreed between the parties but failing agreement as follows:
(a) For a period of two months from the 25th of August 2009 each Saturday from 10.00am until 4.00pm; and thereafter;
(b)For a further period of three months commencing 31 October 2009 each alternate weekend from 10.00am on Saturday until 4.00pm on Sunday; and thereafter;
(c)Each alternate weekend from 4.00pm on Friday until 4.00pm on Sunday;
(d)From 4.00pm Christmas Eve 2010 until 4.00pm Christmas day 2010 and from 4.00pm Christmas day until 4.00pm Boxing day in Christmas 2009;
(e)For all school holidays in the 2010 school year commencing after Easter three week nights in each week of each school holiday period commencing at 4.00pm on a day nominated in writing by the Husband not less than 28 days prior to the commencement of the school holiday period and concluding at 4.00pm three days thereafter;
(f)For the school year of 2011 and each year thereafter one half of all Queensland school holiday periods with the Father to have the second half of the school holiday periods in 2011 and each alternate year thereafter and the first half of each school holiday period in 2012 and each alternate year thereafter;
(g)For a period of not less than three hours on the Fathers birthday in each year at times agreed between the parties failing agreement from 4.00pm to 7.00pm on that day;
(h)If the child’s birthday falls on a school day in an even numbered year for a period of not less than 3 hours at times agreed between the parties or failing agreement from 4.00pm to_7.00pm [sic] on that day and in an odd numbered year the father shall be entitled to visit the child for the purpose of giving presents. If the child’s birthday falls on a day that the father is spending time with the child then the mother shall be entitled to visit the child for the purpose of giving presents.
5.For the purposes of the time the Father is to spend with the child other than pursuant to paragraph 4(a) above such time is contingent upon the Father obtaining appropriate child friendly accommodation in which he and the child can stay overnight. In the event that the Father has not obtained suitable accommodation the Father is until 31 December 2009 at liberty to spend overnight time with the child at the residence of the paternal Grandparents.
6.For the purposes of the changeover for the Father to spend time with the child the Father will collect the child from the Mother’s residence at the commencement of the time he is to spend with the child and the Mother will collect the child at the Father’s residence at the conclusion at the time he is to spend with the child.
7.Notwithstanding the Orders set out above the Father will be entitled to spend time with the child for the weekend which includes Father’s day at the times set out in clause 4(c) above and will not spend time with the child on the weekend which includes Mother’s day or the Mother’s birthday.
8.That the Father will be primarily available to supervise the child during any periods of time that he is spending with the child pursuant to these Orders.
9.That the time the Father is to spend with the child on weekends as set out in paragraph 4 hereof shall be suspended during any period of time of school holidays.
10.That the Mother and Father be responsible for taking the child to any scheduled activities in which the child regularly participates such as sporting or hobby events or to special events to which the child is invited by the child’s friends whilst he is in their respective care.
11.Each parent shall provide the other with information regarding the child’s activities as referred to in paragraph 10 promptly.
12.Each parent shall be at liberty to telephone the child at all reasonable times whilst the child is with the other parent. Until the child has and can manage a _telephone [sic] on his own these telephone calls will be made to the parent having care of the child at the time.
NOTATION:
A.That in reference to finding “child-friendly accommodation” as referred to herein the Father is to find accommodation that provides proper fencing, a clean and appropriate yard, as well as a separate bedroom for the child.
His Honour included in the orders the particulars required by s 65DA(2) of the Act.
The Mother appeals against orders 1, 4, 5, 6, 7, 9, 10 and 11.
The Federal Magistrate made an order for the appointment of a court expert and psychologist, Mr J (“the court expert”) was retained. The court expert prepared a report dated 30 July 2009 in which he stated that he had “no specific recommendations to make with respect to this matter”.
The paternal grandmother gave evidence on behalf of the Father. She swore two affidavits dated 28 May 2009 and 20 July 2009.
The trial before the Federal Magistrate only occupied one day and the Mother, the Father and the court expert were cross-examined.
Before us it was agreed by both parties that if the appeal was successful then we should decline to re-exercise the discretion and remit the proceedings for redetermination by a Federal Magistrate.
Background
The Mother was born in 1967 and the Father was born in 1972.
The Mother previously married in 1999 and divorced in 2001.
The parties began living together in 2003 in X and were married in late 2003.
The Father was employed as a truck driver and in earthmoving in the surrounding district. The Mother worked full-time as an enrolled nurse at the X Hospital, until six weeks prior to the birth of the child. The Mother took long service leave and then maternity leave and was on full pay until June 2005.
As we have already observed, the child was born in 2005. The child was born at 38 weeks gestation by elective caesarean section.
The Federal Magistrate observed at [3] of his reasons for judgment that the child’s name was registered with the surname of the Father, however, the Mother subsequently sought the Father’s permission to change the child’s name by adding her maiden name and that occurred.
When the child was 10 days old he developed respiratory distress. The child was seen by a specialist at T and admitted to hospital for three nights. The child was noted to suffer tachypnoea, a condition of the respiratory system. The child was then readmitted to the hospital at X with ongoing tachypnoea and feeding difficulties.
In May 2005 the child was transferred by Air Ambulance to the Royal Children’s Hospital in Brisbane. The child was in hospital for three weeks during which time he underwent numerous lung investigations. After months of investigation the child was diagnosed with Para-influenza II.
As well, for a period, the child exhibited a heart murmur and investigation revealed mitral regurgitation which eventually resolved without surgery. The child also experienced significant gastro-oesophageal reflux which required acid suppression. The gastric reflux caused the child to vomit after almost every meal and he was placed on medication. As well, the child had bouts of tonsillitis and bronchitis.
The Mother attached to an affidavit she swore on 22 July 2009 three medical reports. The first report dated 27 May 2005 is from Dr B, Paediatric Registrar at a Brisbane hospital. The second report dated 29 June 2009 is from Dr P, Consultant Paediatrician at T Specialist Centre. The third report dated 1 July 2009 is from Dr T of the X Medical Centre. These reports are instructive in relation to understanding the health problems the child experienced.
The Mother deposed in her affidavit sworn on 22 July 2009 that for the first year of the child’s life he screamed almost constantly. The Mother also said that in the first two years of the child’s life she made many trips to T and Brisbane to see specialists in regard to the child’s ongoing medical conditions. From the birth of the child to the early part of 2007 the investigation and treatment of the various conditions occupied a lot of time and travel. The Mother said, and it was not disputed, that the child “had a difficult first few years and it was a harrowing experience for [the Mother]”. The Mother deposed that during this period of the child’s life the Father “took no part in dealing with these stressful matters and he did not contribute financially to the extra costs for medical treatment, travel, accommodation and all the other incidentals”. The Mother further deposed that the child “is now keeping good health and does not require ongoing medical attention”.
In an affidavit sworn on 28 May 2009 the Father admitted that during the child’s “early life he was very ill”. We observe that in this affidavit the Father denied that he was not involved in the care of the child, he deposed at paragraph 2(b): “In relation to my involvement in looking after [the child] during this period I was working approximately 70 km’s from home and travelling home each second night”. The Father made a number of references to his unavailability because of his employment, contending that he was unable to “give up work”. We also observe that in this affidavit the Father deposed at paragraph 2(e) that in relation to “medical matters” the Mother was an “enrolled nurse” and that he “was driven away from being involved in these matters by the [Mother] and [the maternal grandmother]”.
During cross-examination of the Mother there was the following exchange with the Federal Magistrate (Transcript, 24 August 2009, pp 54 to 55):
And how do you mean – I want you to explain in your own words what you mean when you say you are the sole carer with not much backup? --- Well ---
Not much backup from who? --- Well, from his father. I get a lot of backup from my family. I don’t get – from – even when we were married, from when [the child] was a baby, I never really got any support from [the Father]. There was once when [the child] was sick that he came down to Brisbane with him but, other than that, he has never come to appointments, he has never – even after he left he sought of would never ring and say, “Well, do you want me to come around and look after him while you go and get your hair cut?” or, like he was just never there. I couldn’t rely on him so, in the end, I just started making my own, like, decisions and I will still try and involve [the Father], but he didn’t want to participate.
…
And during that time – all the time you were together, what was his working hours like? How were they structured? --- They were – he was always working. I worked full time then, too, so I probably did not notice it as much as then once we had [the child].
And after you had [the child] did his work hours change or not? --- No.
The Mother returned to work one day per fortnight (one shift each alternate weekend) prior to the separation. When the Mother was working, the maternal grandmother cared for the child, as the Father was generally working.
The parties separated on a “final basis” in December 2005. At the time the child was approximately eight months old.
Upon separation the Mother remained living with the child in the family home in X. The Father moved into a flat in X. The Father deposed at paragraph 2(f) of his affidavit sworn on 28 May 2009 that the day before the parties separated they had an argument “about the fact that the [Mother] was interfering with my employment”.
In paragraph 24 of her affidavit sworn on 22 July 2009 the Mother deposed that after separation the Father “would call in on a sporadic basis to visit. Given the demands upon me in terms of being the sole full-time carer for [the child] it was very difficult to accommodate these sporadic visits. In or about April 2006 I talked to [the Father] about the fact that he would have to make some appropriate arrangements and we wrote out an agreement”.
The Mother then deposed at paragraph 25 of her affidavit that the April 2006 agreement provided that the Father would see the child every second weekend from 10:00am until 12 noon on Saturday and from 3:00pm to 5:00pm on Sunday. The Mother offered to include time for the Father with the child on Wednesday evenings but the Father did not want to see the child on that day. The agreement also required that each party give the other notice if either of them were unavailable. The Mother contended that the Father made no regular effort to see the child and did not bother to give her notice when he could not attend. The Mother deposed that despite the agreement the Father continued to make sporadic visits to see the child. The Mother recalled that in May 2006 the parties had an argument about the Father’s responsibilities “and he hung up on me after he told me that he had signed legal aid forms and if I didn’t agree to everything ‘they’ wanted he would take me to court”.
The Mother was cross-examined about the April 2006 agreement particularly in relation to her proposal for the Father to see the child every Wednesday evening. The Mother told the Father that he could come on a Wednesday between 4:00pm and 6:00pm. In cross-examination it was suggested to the Mother that she imposed that condition knowing that the Father did not finish work until nearly 6:00pm and this was denied by the Mother. There was then the following exchange (Transcript, 24 August 2009, p 36):
All right. Well, I am putting it to you that that was a condition that you imposed and I understood you, a moment ago, to agree that you did, in fact, impose that condition because of the age of [the child]? --- Well, I probably said, “It is probably the best time for [the child] – for you to have quality time with [the child,]” is between four and six.
Okay? --- I did not say that it had to be that less do not bother coming.
Well, that is exactly what I am suggesting, that you imposed conditions. You always have imposed conditions on the basis that you know, because you have lived with him, that he has certain commitments to work and you when [sic] out of your way to impose conditions that would mean he could not come? --- No.
That was what you did? --- No.
At the hearing before the Federal Magistrate the Father relied upon three affidavits he swore dated 13 February 2009, 28 May 2009 and 20 July 2009. The Father gave no evidence in these affidavits in relation to the Mother’s proposal that he see the child on a Wednesday evening or his inability to see the child before 6.00 pm. We observe that in April 2006 the child was only approximately 12 months old and the Father was unable to make arrangements with his brother to visit the child on a Wednesday evening before 6:00 pm. We observe that no evidence was given on behalf of the Father by his brother. We also observe that in his affidavit filed on 25 February 2009 the Father deposed at paragraph 20 that his brother “is prepared to be flexible about my work arrangements”.
On 17 August 2006 the parties signed an “agreement” in relation to the child’s living arrangements. The agreement provided that the child live with the Mother and spend time with the Father as agreed by the parties but to include:
· For three months each second weekend at the Mother’s residence from 9:00am until 11:00am on Saturday;
· Then each second weekend at the residence of the Father’s brother from 2:00pm until 4:00pm on Saturday to be supervised by the Mother;
· Then for a period of two months every second weekend on Saturday from 9:00am until 11:00am at the residence of the Mother and supervised by the Mother and on Saturday from 2:00pm until 4:00pm at the residence of the Father’s brother without the supervision of the Mother;
· Thereafter for a period of three months every second weekend on Saturday from 9:00am until 2:00pm on an unsupervised basis;
· Thereafter for a period of three months every second weekend on Saturday from 9:00am until 4:00pm and on Sunday from 9:00am until 2:00pm on an unsupervised basis; and
· Thereafter each alternate weekend on Saturday from 9:00am until 4:00pm and on Sunday from 9:00am until 4:00pm on an unsupervised basis.
It was also agreed that the time the Father spent with the child would “be reviewed with a counsellor” when the child attained the age of three years “with a view for such contact to increase to overnight on an unsupervised basis”.
In her affidavit of 22 July 2009 the Mother deposed at paragraph 56 that she consistently maintained a diary regarding the Father’s contact with the child. The Mother made diary entries about events as they occurred and no later than a day after the events described. The Mother had entries in the diary for each day the Father saw the child and she recorded the duration of the visit. From her diaries for the 2006 calendar year the Mother extracted a summary of the dates and duration of all of the Father’s contact with the child. The Mother attached to her affidavit a copy of the summary which revealed that in the 2006 calendar year the Father spent a total of approximately 58 hours with the child over 49 occasions on an average duration of one hour and 19 minutes.
It was put to the Mother in cross-examination that shortly after the 17 August 2006 agreement she “withdrew” her consent to the agreement and the Mother said: “I think I wanted to add some things to it” (Transcript, 24 August 2009, p 37). The Mother was asked questions about a letter dated 19 September 2006 that was written by her solicitors to the solicitors for the Father. The Mother said: “I wanted to change the times to fit in with [the child’s] routine” and also that “it was not so he could have less time with the child. It was to fit in with the child” (Transcript, 24 August 2009, p 37).
During the cross-examination of the Mother there was the following exchange with the Federal Magistrate (Transcript, 24 August 2009, p 37):
HIS HONOUR: Well, just explain to me why you wanted to make the changes within a month? --- Only because – we were actually all at this conference. We had so many hours to complete everything. [The Father’s] solicitor was to write out the contact orders and he faxed it to us. My solicitor, she added a couple of things on that, at the time, I thought was necessary and then after – like, after I had gone home and thought about it and [the child] – because – well, a child, every few weeks, their routine changes because they are getting older and things change – I said that I would like to change some of the times of when he – so he got – he could come and see him when he was not going to be sleeping all afternoon. It was – was not to change that he could not see him. It was to change – that would be more beneficial for [the child] to see his Dad.
We observe that at this time the child was approximately 16 months old. We also observe that the Father gave no evidence in his three affidavits about the changes.
An incident occurred on 28 October 2006. In cross-examination it was put to the Mother that on that day she and the Father were having a disagreement about a television set. The Mother wanted the Father to bring back a television set that had a remote control and she wanted to put it in the child’s bedroom. The Father, however, did not want to discuss it and he told the Mother that she had a television set. There was the following exchange (Transcript, 24 August 2009, p 35):
Then on 28 October 2006 he and his parents actually came to your house and you met them at the gate and you said something like, “Well, if you haven’t got the TV and you won’t talk about the TV, then you’re not seeing [the child]?” --- No, that wasn’t what was said.
But he did turn up on 28 October 2006? --- Yes, with his parents.
Yes, and he did not see [the child] did he? --- Yes, they came around to the back door and saw [the child] and I did say that I wasn’t happy the way he speaks to me and hangs up on me and that if he didn’t bring the TV back, that he couldn’t see him today.
That is right, and see, that is, of course, not one of the days – 28 October 2006 is not in your record of visits, is it? --- No, because he didn’t stay and spend time with [the child].
Well, he did not stay because you said, “If you’re not prepared to talk about the TV and your [sic] didn’t bring it back, you’re not seeing him.” So he left. That is right, is it not? --- Yes.
That was an event that occurred on a number of occasions? --- No
We observe that the Father gave no evidence in his three affidavits about this incident and nor did the paternal grandmother in her affidavits.
On 22 January 2007 the following parenting orders were made by consent in the Family Court:
1. ARRANGEMENTS FOR THE CHILD
1.1That the child of the marriage [the child] … shall continue to live with the mother.
1.2The father will spend time with and communicate with the child at all such times as agreed between the parties.
We observe that in his report the court expert said:
7.9 I am not in a position to determine whose account is more accurate. However, I do note the parents signed agreements in April 2006, on 17 August 2006, and on 9 January 2007. The first two of these agreements provided for the father to spend gradually increased periods of time with [the child]. However, it appears incongruent that the agreement signed on 9 January 2007 provided for the father to spend time and communicate with [the child] at all such times as agreed between the parties. [The Mother] makes the point that this was a clear indication that the father was unable to commit to the previous structured arrangement. [The Father], at interview, stated that the previous arrangements were not working so he changed the arrangement to “as agreed”. I find it very difficult to understand, if [the Father] were genuinely wanting to spend more time with his son, why he agreed to an arrangement in January 2007 that was less definitive in terms of the time that he could spend with [the child] than the previous two agreements.
On 22 January 2007, by consent, a property settlement order was also made which required the Father to transfer his interest in the former matrimonial home to the Mother and the Mother indemnify the Father in relation to a mortgage secured on the title of the property. The Mother was to also indemnify the Father against her personal car loan and pay $8,100.00 towards the Father’s credit card debt.
The court expert observed at paragraph 3.4 of his report that up to the making of the above orders, the Mother was working as a nurse six shifts per fortnight. The court expert stated that the Mother:
needed to work so that she could refinance and take over the mortgage. She later dropped back to working one day per week after a few months because more time than that was too difficult for her with [the child]. [The maternal grandmother], who lives 100 kilometres outside of [X], was having to come into town to look after [the child] while [the Mother] worked and this proved too onerous.
The court expert observed at paragraph 3.6 of his report: “While [the Mother] worked one day per week, [the child] was cared for by a private day care mother for one day per week. This continued until December, 2008”.
We also observe that at paragraph 3.5 of his report the court expert said: “Since the separation, [the Father] has continued to work for his brother as both a truck driver and heavy machinery operator in earth moving in [sic] around the surrounding district but also interstate at times. He is often away from home during the week but states that he is available every second weekend to spend time with [the child]”.
In her report of 1 July 2009 Dr T said that in 2007 the child “was investigated for gastro-oesophageal reflux (upper endoscopy – [Dr C], Brisbane). This condition caused significant discomfort related to eating and [the child] required a prolonged period of acid suppression”. Dr T went on to say that the child is now symptom free. However, it demonstrates the ongoing difficulties with the health of the child.
It was put to the Mother in cross-examination that on 9 March 2007 the Father told her that “he was going to apply to the court for access with [the child]”. It was put to the Mother that she said: “Well, why don’t we go to mediation and set out some times” and her response was that she could not recall these conversations. It was then put to the Mother: “So do you agree, though, that as early as March 2007 [the Father] indicated that he was going to go to court about his time with [the child]? --- Somewhere in my affidavit I did state, because [the Father] told me that he – I’m not sure if – I think it was to do with the settlement and the contact, that might have been before that” (Transcript, 24 August 2009, p 43).
The Mother was cross-examined about an incident which is alleged to have occurred on 13 April 2007. It was put to the Mother that on that day she said to the Father that he could not see the child on the Sunday morning because she was “washing” and that he had to come after 4.00pm. The Mother said that she did not recall saying that. There was then the following exchange (Transcript, 24 August 2009, p 40):
And he told you that he could not come then because he was working later in the day, but you did not change your mind. So he missed out on seeing him on that occasion, I suggest? --- The only time [the Father] missed out on seeing [the child] was if he would ring five minutes before he wanted to come because he had a spare half hour.
See, 13 April, I suggest, is a Friday of 2007, and he rang to line up some time on the Sunday, and you said you would not agree because you would be washing. And he had to come – but he could come after 4. That is what you said? --- I’ve never stopped someone from coming to see [the child] because I’m washing.
And if he did not give you three days notice, for instance, you would often refuse a visit, would you not? --- No. I would ask him – on numerous occasions, I would ask him could he – if he wanted to spend the weekend with [the child] to let me know by Thursday. If not – if he couldn’t let me know by Thursday, I would make other plans. And even when he did ring me on a Saturday, he would – I would say – both times more than not, I would say, “Yes, you can come,” but sometimes I would cut the visit short because we had already made – I’d say, “You can come, but we’re leaving at 10 or 11 to go swimming or fishing or to a birthday party.” But I thought it was better for [the child] to at least see him for that hour than not at all. So I would – more than many occasions, I would let him come when we did have other things, but I would still let him have that time with him before we went. Or a lot of the time I would invite him to pony club, to the park. [The child] would even say, “Dad, come swimming tomorrow with us.” He never turned up. I ---
We observe that the Father gave no evidence in his three affidavits about this incident.
On 1 August 2007 the parties were divorced.
In or around October 2007 the Mother deposed in her affidavit sworn on 22 July 2009 that she informed the Father that she would like to live in north Queensland and take the child with her. The Mother also informed the Father that she wanted to sell her house and asked him whether he wanted to work it out between them directly or go through solicitors. The Mother contended that despite her efforts the Father made no response. The Mother explained to the court expert that “she had in mind to move to [north Queensland] from around October 2007”.
During 2007 the paternal grandparents commenced to reside in X. They were previously residing at a property that was approximately a two hour drive from X.
The Mother’s evidence was that during 2007 the Father only saw the child for a total of approximately 38 hours. During cross-examination of the Mother there was the following exchange (Transcript, 24 August 2009, pp 58 to 59):
So last year, 2008 – and I think the affidavit there is – your own affidavit – puts the number of hours in that you have calculated that [the child] spent with his father. What were those hours? Thirty – one hours was it? --- Thirty-eight, I think it was.
Thirty-one, last year; 38 the year before. Do you say that [the child] spent more time with his paternal grandparents, with [the Father’s] parents – did he spent [sic] more time with [the Father’s] parents than he did with [the Father] last year? --- Yes, I would say that it was – I’ve got it written down how many, like – I can’t just – off the top of my head, but they went 14/15 months without even having contact with [the child] or myself before they moved to [X]. And then when they moved to [X], quite regularly, I would either take [the child] around to their place, or they would come around to our place. When their rellies came over I used to, like, if I’m away, I used to invite them around for a cup of tea to see [the child], and a couple of times I took [the child] around to their house. Like, it was – I thought it was working quite well, but I think that [the child] saw his grandmother more than he saw his father last year. Not the year before, because they went 14 months without any contact whatsoever.
In July 2008 the Mother took the child to Brisbane to see a specialist about his penis. In her affidavit of 22 July 2009 the Mother deposed at paragraph 45 that “[a]pparently the hole was not large enough and this would cause urinary problems in the future”. The Mother was advised that the child should have an operation “sooner rather than later”. The operation was arranged for 1 August 2008. In the report dated 1 July 2009 Dr T said that the child “required a urethral meatotomy for urethral meatal stenosis”. The Mother telephoned the Father the night before the operation to tell him about it. The Mother deposed that the Father said he would ring the following evening to see how it went, however, he failed to do so. The maternal grandmother caught the bus down to Brisbane to provide support for the Mother. The Mother was out of pocket about $1,100.00 with respect to the expenses and the Father said “that he would work something out on a future visit but that has not happened”.
In relation to the attempts of the Mother to discuss with the Father her relocation to north Queensland, in August 2008 the Mother spoke to Legal Aid Queensland about it and it was suggested to her that she await a response from the Father.
In September 2008 the Mother received a letter from Family Relationships and arrangements were made for her to take part in a telephone hook up. The Mother attempted to discuss relocation to north Queensland.
In September 2008 the Mother informed the paternal grandparents that she wanted to move to north Queensland.
On 9 October 2008 the parties had further mediation by telephone hook up and an agreement was reached. However, the Father would not allow the subject of relocation to north Queensland to be discussed. The agreement provided that the Father spend time with the child at all reasonable times as agreed by the parties but failing agreement every weekend for a period of one month for four hours to be supervised by the Mother. Then, for the second month, every weekend for an eight hour period to be supervised by either of the paternal grandparents and telephone “contact” at all reasonable times. It was agreed that it was “an interim arrangement” that would be reviewed in two months with a view to the Father spending more time with the child and also discussing the Mother’s relocation to north Queensland, the child’s school and any other issues that needed to be resolved. It was also agreed that the parents would use a communication book to “talk about all parenting issues concerning [the child], specifically his medical and health requirements”.
The Mother deposed in her affidavit sworn on 22 July 2008 that in November 2008 she “received a letter from mediation and organised a further mediation and this time insisted that relocation had to be on the agenda for discussion”. It was contended by the Mother that the mediator raised the issue of relocation but the Father refused to discuss it. The Mother then deposed that a “family dispute resolution agreement pro-forma was issued and dated on 25 November 2008”.
By letter dated 1 December 2008 the solicitors for the Father wrote to the Mother. In the letter it was stated that the Father had no objection to the Mother relocating to north Queensland on the basis that the child live with the Father. In the letter it was said: “Should it be the case that it is your intention that [the child] relocate with you then we are instructed to indicate that our client objects to the relocation and requires that you seek the consent of the Court to relocate [the child] from [X]”. It was further said that any application by the Mother would be opposed by the Father and “it will be indicated to the Court that [the Father] would be seeking that [the child] reside with him should you relocate yourself from [X]”. We observe that nothing was said by the solicitors as to how the Father would be able to care for the child.
By letter dated 5 December 2008 the Mother wrote to the solicitors for the Father and said that “it has always been my intention to apply to the court before relocating [with the child]. I will shortly be making that application”.
In December 2008 the Mother ceased working one day per week and was on fully paid annual leave.
The Mother contended, and it was not disputed, that during 2008 the Father only saw the child a total of approximately 31 hours.
In mid-January 2009 the Mother completed the sale of the former matrimonial home at X and commenced to reside with her parents on their cattle station which is located about 100 kilometres from X.
In her affidavit of 22 July 2009 the Mother deposed at paragraph 35 that her home in X “sold faster” than she expected. Further, the Mother said that she sold the home because she thought “it was unfair to [her] parents as they had been contributing $500 per month towards the mortgage repayment since [the Mother] took over the property under the terms of the property settlement”. The Mother contended that the drought had continued and her parents were experiencing financial stress.
In cross-examination the Mother testified that when she was younger her parents’ property comprised 30,000 acres and is now about 14 to 15,000 acres (Transcript, 24 August 2009, p 63). Both the Father and the Mother attended boarding school (Transcript, 24 August 2009, p 61). However, the Mother informed the court expert that she does not want to send the child to boarding school: see (Paragraph 3.13.2.9 of the court expert’s report) and (Transcript, 24 August 2009, p 61).
During submissions to us it was suggested that the Mother sold her home in X because she wanted to move to north Queensland and not for the reasons the Mother gave in her affidavit, namely the financial circumstances of her parents. We have considered the transcript of the cross-examination of the Mother and we are unable to see where this proposition was ever put to the Mother at the trial.
In an affidavit sworn by the Father on 13 February 2009, he contended at paragraph 11 that he had not seen the child since Christmas Day 2008.
On 25 February 2009 the Father filed an application with the Federal Magistrates Court in which he sought orders inter alia that would allow him to spend time with the child every second weekend from 5:00pm on Friday to 5:00pm on Sunday and if the Mother were to relocate more than 150 kilometres from X then the child live with him. The Father sought these orders on an interim and final basis. At the hearing the Father abandoned his application that the child live with him.
During cross-examination of the Father there was the following exchange with the Federal Magistrate (Transcript, 24 August 2009, pp 28 to 29):
HIS HONOUR: Well, I do not think we need worry about that. I do not think he – he actually said in the witness box that he was not seriously contending that the child live with him.
[THE FATHER]: No.
HIS HONOUR: Are you? --- No.
You are not, are you? --- No. I did make the statement in my ---
I know it is in there. I understand that? --- Yes, if she did - yes.
And you said before you would hate to see a situation where the child was not living primarily with the mother. You just want them to stay in [X]? --- Yes, so I can have a relationship ---
I understand. And the mother wants to go to [north Queensland], and she has got good reasons why she wants to go there, and you have got good reasons why you want him to stay in [X]? --- That’s correct.
So we do not need to spend time on that, Mr Shoebridge.
Notwithstanding what was said in the letter of 1 December 2008 by the Father’s solicitors to the Mother, and also in the Father’s application, at the hearing he readily conceded that not only was the Mother the primary carer of the child, but that the child should continue to ordinarily reside with the Mother and be cared for by her. We also observe that the Father also conceded that the Mother had supported the relationship between the Father and the child and would continue to do so in the future.
In March 2009 the Mother deposed in her affidavit sworn on 22 July 2009 that the Father informed the Mother that “for the past several months” he had been working at Y near the border of New South Wales. In March 2009 the Mother and the child travelled to north Queensland for an extended holiday and remained there until early June 2009, but returned to X for two weeks over the Easter vacation period in April 2009.
In April 2009 the Mother returned to her parents’ property. In her affidavit of 22 July 2009 the Mother deposed at paragraph 61 that she had previously told the Father when she would be in X and that he could see the child on the weekends of 18/19 April 2009 and 25/26 April 2009 if he wanted to. The Mother said that the Father told her that he would let her know his arrangements and as the Father had not contacted her by Friday, 17 April 2009 she telephoned the Father and asked him what he was doing. The Mother said that the Father told her that he still did not know what he was doing and that he would contact her later. The Mother also informed the Father that she would be going back to north Queensland where she would probably remain until June 2009.
Between 15 and 30 April 2009, when the Mother and the child were in the X area, there was no contact between the child and the Father. However, the Mother went with the child to X on two occasions, namely on 18 and 23 April 2009, and took him to see the paternal grandparents.
The Mother was cross-examined at some length about what happened in April 2009 when she returned to X and there was the following exchange (Transcript, 24 August 2009, p 46):
Well, what you said to him, I suggest, is first that you would bring him home for his birthday. You say you did not. You then asked [the Father] when he would be available to see [the child] over the Easter break, remember that? --- Yes.
And he said that he could see him Friday, Saturday and Sunday over Easter. That is what he told you, that is right? You are nodding; is that yes? --- Yes. Over Easter – Yes, he told me when he would be – and I told him ---
Just stop there? --- Yes. Okay.
Yes, he said, “I can see him Friday, Saturday or Sunday”, right, that is what he told you? And you arrived home the following Tuesday, did you not? --- No, I think it was a little bit later than that. It was ---
So you missed the time that he was available to see [the child]? --- Because he told me that the weekend – not the weekend straight after Easter, but the one after that, he would be home. He told me that that is when he would be home. And I said, well, I have decided not to travel over Easter so I will be home in that Easter vacation period of – I can’t remember the dates, it’s in my affidavit, but it was a two-week period. I told him a week before Easter when I would be home. And I - he told me, well, he’d have the weekend off after that I got home. There would be a weekend that he would’ve seen [the child].
But he certainly did tell you, you have told us, that he was available over Easter and you did not come home until after Easter. Those are the facts? --- That’s right.
In his affidavit filed on 4 June 2009 the Father deposed at paragraph 2(q) that on about 6 or 7 April 2009 the Mother asked him when he would be having time off over the Easter period and he told her that he would not be working on Friday, Saturday and Sunday. The Father said that the Mother told him that she would let him know when she was home and that later in that week he received a message on his mobile phone from the Mother saying that she would be leaving north Queensland on the Tuesday after Easter and this meant that he was unable to spend any time with the child over the Easter break.
The Federal Magistrate asked the Mother some questions about what happened over Easter 2009 and there was the following exchange (Transcript, 24 August 2009, pp 48 to 49):
HIS HONOUR: But what happened … in relation to the two weeks that you were there in April? Why did he not - why did [the child] not spend time with [the Father] then? --- I let him know a few weeks before we came home and I - when I came home - like, I told him the weekends I’d be home and when I’d be in town and he was over working at [Y] and wasn’t home on either of those two weekends that ---
So over at [Y]? --- Yes. I did let him know that we would be home then.
So this was during that? I think you said it was a five month job in [Y]? --- Yes.
And he was working during the week days in [Y], was he? --- And the weekends, because on both of those weekends I actually went to [X] and on the Thursdays I went to [X] - I went to [X] about, a [sic] least, four times, it could have been five or six, in that two week period and [the Father] knew what days I was going to be in [X].
And when you went to [X] did you stay overnight in [X]? --- No.
You were just there for the day? --- Yes.
And did you have discussions with the father about making arrangements during that time for [the child] to see the father? --- Yes. After one week had passed I hadn’t heard when he wanted to see [the child]. Like, yes, I hadn’t heard anything from him, so I rang him - it was on a Friday about 11 o’clock, I think, and asked what was his plans and he told me that he was working. And I said, “Well, we’re going back after the weekend” and I hadn’t - the two weeks came and went and we went back and he hadn’t seen [the child].
And I just want to clarify something with you. With the Easter long weekend - right? --- Yes.
With the Easter long weekend I understood the evidence was that you had made an arrangement with him for three particular days, was it, Thursday, Friday, Saturday? --- No, he had told me that - I said, “Are you working over Easter?” He said, “No, I’ve got three days off”.
Right? --- And I said, “Well, I will let you know when we’re coming home”.
Right? --- And I decided I didn’t want to travel over Easter, but I made sure that I was home in, like, school holiday time and I went back the - I think I left on the Tuesday and arrived home on the Wednesday.
So this was the - this two weeks you were then in [X], that is the two weeks - this is the time you are talking about, is it not? --- Yes.
On 6 May 2009 the Mother filed an amended response seeking an order that she be “permitted to relocate permanently to [north Queensland]” with the child and the Father “be entitled to spent [sic] time with the child at such times and places as to the Court seems fit”.
On 15 June 2009 the matter came before the Federal Magistrate and he made the following orders:
1. That the child […] born […] 2005 live with the mother.
2. That the child spend time with the father each Saturday from 10.00 a.m. until 4.00 p.m. Such time is to commence on 20 June 2009.
3. That changeover is to take place at the father’s parents’ house in [X].
4. That the child not be taken near any heavy machinery or any farm machinery.
His Honour also made a number of procedural orders including an order for the appointment of a court expert pursuant to r 15.09 of the Federal Magistrates Court Rules 2001(Cth) and the preparation of a family report.
On 14 July 2009 the court expert interviewed the Mother and also had an opportunity to observe the child with the Mother. The interview and observations with the Mother and the child occurred in Brisbane. The Mother left X on 13 July 2009 with the child and the maternal grandmother. The maternal grandmother accompanied the Mother and the child so there would be someone to look after the child while the Mother spent time with the court expert. On 14 July 2009 the Mother received a telephone call from the court expert to say that the Father had not arrived and that the Father said he did not know of the appointment. It was then arranged for the Mother to continue on and be interviewed by the court expert.
The Father had an appointment to see the court expert on 14 July 2009, however he did not attend. The court expert telephoned the Father to enquire about his whereabouts. The Father informed the court expert that he had not been informed of a report interview. The court expert pointed out to the Father that a letter had been sent to his lawyer on 23 June 2009. The court expert recorded that the Father said that he had been out of town for two weeks and had not checked his mail. The court expert said the Father subsequently telephoned to advise that he was in receipt of the letter having checked his mail. The Mother’s solicitor then had a telephone conversation with the court expert and said that the Father had been in [X] on the two weekends prior to the family report interviews as he had spent time with the child on those dates.
In her affidavit of 22 July 2009 the Mother deposed that the Father was in X on 20 and 27 June 2009 and also 4 and 11 July 2009 and she had seen him on those days because he spent time with the child. In cross-examination the Father admitted that he was in X but suggested that his parents were to collect his mail and then when they went on holidays his sister in law was to collect his mail. The Father said something about “working out of town” at a place about 65 or 85 kilometres from X. (Transcript, 24 August, 2009, p 28). In cross-examination of the Mother it was suggested by counsel for the Father that the Father’s brother also owns a farm which the Father works on (Transcript, 24 August 2009, p 51).
On 18 July 2009 the court expert conducted a telephone interview with the Father. The court expert said that time restrictions precluded scheduling a face to face interview. In addition, it was the court expert’s view that it would have been unreasonable to expect the Mother to travel again from X with the child to attend for the purpose of an observation session with the Father. In her affidavit of 22 August 2009 the Mother deposed that, with the maternal grandmother and the child, it took three days to participate in the process of being interviewed by the court expert. They stayed overnight in T for two nights and drove over 1000 kilometres.
In paragraphs 68 to 97 of her affidavit sworn on 22 July 2009 the Mother provided extensive evidence in relation to the reasons why she was seeking to reside in north Queensland with the child. The Mother also gave evidence during cross-examination explaining why she would like to live in north Queensland. For example, it was put to the Mother: “Giving you the opportunity to tell his Honour why should you be able to take [the child] and live in [north Queensland]?” and the Mother provided a lengthy response (Transcript, 24 August 2009, p 53).
The report of the court expert is dated 30 July 2009 and is very comprehensive. It is necessary to consider what is in the report at paragraph 7 under the heading ‘Evaluation’. The court expert at paragraph 7.12 said that in his opinion “the mother makes a reasonable argument”.
On 24 August 2009 the hearing commenced before the Federal Magistrate. As we have already observed, the hearing only occupied one day. Included in the appeal books are affidavits of the Father and the Mother. On behalf of the Father there are also affidavits of the paternal grandmother, Mrs Evor who was not cross-examined. The court expert was very briefly cross-examined (Transcript, 24 August 2009, pp 69 to 71).
On 25 August 2009 the Federal Magistrate made the following orders:
1. That the child […] born […] 2005 remain living in the [X] area.
2. That the child live with the Mother.
3. That the parties have equal shared parental responsibility in respect of the child.
4. That the child spend time with the Father at all times agreed between the parties but failing agreement as follows:
a)For a period of two (2) months from the date of these Orders each Saturday from 10.00am until 4.00pm; and thereafter;
b)For a further period of three (3) months, each alternate weekend from 10.00am on Saturday until 4.00pm on Sunday; and thereafter;
c)Each alternate weekend from 4.00pm on Friday until 4.00pm on Sunday;
4. That paragraphs 4(b) and 4(c) herein are contingent upon the Father obtaining appropriate child-friendly accommodation in which he and the child can stay in overnight. In the event that the Father has not obtained suitable accommodation, the Father is at liberty to spend overnight time with the child at the residence of the paternal Grandparents.
5. That within fourteen (14) days of the date of these Orders, the parties are to submit to the Court draft orders to reflect the Reasons for Judgment.
NOTATION:
A. That in reference to finding “child-friendly accommodation” as referred to in paragraph 5 herein, the Father is to find accommodation that provides proper fencing, a clean and appropriate yard, as well as a separate bedroom for the child.
B. That a copy of the Reasons for Judgment will be settled and distributed to the parties prior to final orders being pronounced in chambers.
C. That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.
On 22 October 2009 the Federal Magistrate delivered reasons for judgment and made final orders. It is from these orders that the Mother is appealing. A notice of appeal was filed on behalf of the Mother on 16 November 2009.
The Reasons Of The Federal Magistrate
The Federal Magistrate under the heading “Best Interests” dealt with the relevant considerations in s 60CC of the Act. At [7] he set out the terms of s 60CC(2) and at [8] said that s 60CC(2)(b) “is not relevant in this case”.
At [9] the Federal Magistrate said that it was the Father’s submission that in order for the child “to have a meaningful relationship with the father it would be preferable for the child to remain living in [X], or in the [X] district”.
In considering s 60CC(2)(a) of the Act, the Federal Magistrate had regard to the evidence of the court expert that it was important for the child to see the Father regularly, at least fortnightly, to establish a meaningful relationship. It was the court expert’s view that at that time there was “almost a fledgling type relationship” between the Father and child. His Honour drew an inference from the evidence that there was not yet a bond between the Father and child sufficient to ensure the long term relationship between the Father and child in the event they were separated for long periods of time.
As to s 60CC(3)(a) of the Act the Federal Magistrate noted at [16] that because of the child’s age “no weight could be given to any such views” of the child.
In relation to s 60CC(3)(b) of the Act at [17] the Federal Magistrate observed that the Mother “has been and continues to be the primary carer of the child” and has “a close and loving relationship” with the child.
At [18] the Federal Magistrate observed that although the Father’s “relationship with the child is to some extent in its early and formative stages … the mother confirms that the child has a good relationship with the father” and concluded that “on the evidence available before me ... the child has a close and loving relationship with the father”.
The Federal Magistrate observed at [19] that the child has a close and loving relationship with the maternal and paternal grandparents.
In relation to s 60CC(3)(c) of the Act the Federal Magistrate at [20] noted that the Father has “the insight to conclude that the child will be best off if the mother remains as the primary carer”.
At [21] the Federal Magistrate observed that the Father “will continue to facilitate and encourage a close and continuing relationship between the child and the mother”. The Federal Magistrate observed that the Mother has “proven that she is both willing and able to facilitate and encourage a close and continuing relationship between the child and the father”, although the mother “has had her patience tested” which his Honour stated he would return to later in his reasons.
The Federal Magistrate then turned to s 60CC(3)(d) of the Act and at [22] noted that with the Father’s proposal there would “be no issues about separation from either of the parents” but that there would be an issue with the Mother’s proposal. His Honour concluded from the evidence of the court expert, regarding the relationship between the Father and child that it would be “less than optimal” for the child to relocate with the Mother. Relocation would also impact on the child’s relationship with both sets of grandparents who live in or near X. There would also be significant difficulties and expense associated with the child spending time with the Father if the Mother were permitted to relocate and significant travel involved for the child.
The Federal Magistrate from [26] to [30] dealt with s 60CC(3)(e) of the Act. His Honour found at [26] that with the Father’s proposal “there will not essentially be any practical difficulties or expenses associated with the child spending time with each parent” and observed that “there will be no undue practical difficulties or expenses associated with the child spending time with each parent”.
The Federal Magistrate observed at [26] that with the Mother’s proposal the position would be otherwise. At [27] his Honour noted that it is a 15 hour drive from X to north Queensland, not including overnight breaks “which it seems to me would be essential when travelling with a young child”. At [28] his Honour noted that the Father said that travel by road is the quickest option, the other option being a flight from north Queensland to Brisbane and then a “seven to eight hour car trip from Brisbane to [X]”. His Honour observed that there was a suggestion made that the parties could meet half way at M although his Honour said that the Father “pointed out that neither party has any particular connection with the town of [M]”.
The Federal Magistrate continued:
29. The proposal by the mother on any consideration would require a substantial amount of travelling for [the child] in order to continue regularly seeing his father. Furthermore, the father indicated that if the mother was to be allowed to relocate that he would take steps to attend in [north Queensland] approximately six times a year. But because of the distance the father would need to take a week off work at a time in order to achieve this and make it worthwhile. I infer from the evidence this would leave him without the opportunity to take other leave during school holiday periods. One of the issues in the case revolved around the father’s employment, his devotion to his job and his inability in the past (on occasions) to obtain free time for himself to spend time with the child. I will address that matter later in these reasons.
His Honour then concluded at [30]:
It goes without saying that there would be considerable fuel expenses, travel costs, accommodation costs, airline costs and so on associated with the child spending time with the father should the child and the mother relocate to [north Queensland].
At [31] the Federal Magistrate dealt with s 60CC(3)(f) of the Act and was “satisfied” that both the Mother and the Father “have the capacity to provide for the emotional and intellectual needs” of the child. Further that the “grandparents are also able to provide for the needs of the child as stated”.
The Federal Magistrate then proceeded at [32] to consider s 60CC(3)(i) of the Act, namely the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the parents, and commenced by stating that he thought “it is appropriate at this stage to refer to some more of the history between the parties”.
In considering the parties’ attitudes towards the child and parenthood, the Federal Magistrate recorded at [33] that from 2006 to 2008 the Father only saw the child “sporadically”, ultimately finding that both parties were somewhat to blame for the small number of times the Father saw the child during this period. His Honour found at [36] on occasions the Mother had “chosen a course of action which would prevent the child from spending time” with the Father. His Honour also considered at [38] that the father’s attitude towards the child had been somewhat “laid back” in the past. His Honour concluded at [39], however that he was satisfied the Father will in the future ensure orders are followed and that he spends appropriate and substantial time with the child in accordance with such orders.
The Federal Magistrate at [36] dealt with what happened at Easter 2009. The Mother returned to the X area for two weeks, although it was not at a time when the Father said he would have been available to see the child. The Father told the Mother what days he would be available to see the child which was during the Easter long weekend, but the Mother “decided she did not want to travel” on the long weekend and arrived in X area when the Father was working at Y His Honour concluded that this is “another instance that shows that unfortunately on occasions the mother has chosen a course of action which would prevent the child from spending time with the father”. These findings assume an acceptance of the Father’s version of what transpired.
Notwithstanding the findings of the Federal Magistrate about the Mother because of a television set incident on 12 April 2007 and what happened in April 2009, his Honour observed at [37] that he was “not unduly critical of the mother in this regard”.
As to the Father the Federal Magistrate observed at [37]:
The father has a laidback and laconic style and manner about him which is, some people might suggest, a characteristic of many western Queenslanders. I am no way critical of him because of his style or character. He prefers to avoid conflict and in those situations where the mother was refusing to allow him to see the child, he was more inclined to let it pass rather than to press the point and create a fight.
The Federal Magistrate continued:
38. On one view of the evidence the father’s attitude to the child has been too laidback. But on a proper consideration of the mechanics that were operating between this father and this mother, I have formed the view that the father did try to establish a relationship with the child. On those occasions that he tried, sometimes he was successful, sometimes not. When he was rebuffed by the mother, the father tended to then avoid the question or the issue for a longer period of time. It seems to me there was a cumulative affect on any occasion when the mother rebuffed the father in his attempts to see the child. It seems to me that the father would then bury himself in his work until the next occasion arose where he felt it was appropriate to approach the mother about spending time with the child.
39. The father’s attitude towards the child, if it was, at one stage, laidback, is considerably less laidback now. It may be that this family law litigation has motivated the father and galvanised him into action. A court order was made in June this year and the father has adhered to it by seeing the child each weekend, each Saturday. I am satisfied that the father’s attitude to the child is, from an overall perspective, appropriate, and I am satisfied that the father will in the future ensure that court orders are followed and that he spends appropriate and substantial time with the child in accordance with orders made.
40. As to the accepting of the responsibilities of parenthood, there is no doubt that the mother is accepting of the responsibilities of parenthood. I am satisfied that once the father is given the opportunity for the child to spend overnight time with him, that he will be then able to demonstrate that he has accepted the responsibilities of parenthood. I have concluded that essentially both of these parents have a quietly spoken and gentle nature (the father in particular) that leads me to conclude further that both of these parents have a substantial amount to offer this child.
The Federal Magistrate at [41] observed that the considerations in s 60CC(3)(j), (k) and (l) of the Act were not relevant.
The Federal Magistrate then discussed at [42] to perhaps [53], s 60CC(3)(m) of the Act being any other fact or circumstance the Court thinks is relevant. His Honour’s treatment of this consideration is somewhat confusing.
At [42] to [44] the Federal Magistrate dealt with the Mother’s association with the X area and found at [44] that “both sides” of the child’s family have a “long history or tradition in the [X] district”.
The Federal Magistrate then discussed at [45] and [46] the Mother’s “work opportunities”. His Honour observed at [45] that the Mother is a nurse and currently works one shift per week and when the child turns five years of age she “has to make a decision about whether or not she will take a full-time position again at the [X] hospital”. His Honour inferred from the evidence that “there are employment opportunities available to the mother in the town of [X]”.
The Federal Magistrate then at [45] briefly discussed accommodation and observed that the Mother gave evidence that she could rent premises in north Queensland for approximately $155 per week. His Honour then said that “[t]here is, however, also evidence that was put to the mother, and which is before the court, that the mother could rent in the town of [X] for approximately $170 to $190 a week”. His Honour also noted at [46] that the Mother has approximately $95,000 “in cash which was her remaining share of the property settlement”.
In passing, we observe that in cross-examination of the Mother it was put to her that there were three bedroom properties in X which she could rent from $170 to $190 a week, however, there was no evidence of the availability of rental properties, the cost of rent or the condition of those properties in X (Transcript, 24 August 2009, pp 56 to 57). Thus, what the Federal Magistrate said was not entirely accurate.
The Federal Magistrate then at [47] and [48] discussed “Education and Extracurricular activities” for the child. His Honour was satisfied there were sufficient facilities in X for the child to pursue extra curricular activities, such as swimming and pony club, and was satisfied the parents would take all steps necessary to ensure the child has every opportunity to reach his full potential with respect to his education. It was noted that the child would not be attending high school for some time and that by then the parties may decide boarding school is appropriate or the Mother and/or the Father may have moved to a larger centre for the child’s schooling.
At [49] the Federal Magistrate discussed the Father’s employment and observed that the Father earns $68,000.00 per year and is an “extremely diligent and hard worker”. His Honour concluded: “I am satisfied, having listened to the father in the witness box, that he will take the necessary steps to ensure he spends appropriate time with [the child] in the future, and he will curtail his work hours accordingly”.
The Federal Magistrate then at [50] to [53] addressed the impact on the Mother’s parenting and mental health if she was not permitted to relocate. His Honour found that staying in X where the Mother has a close family network would not prevent the Mother carrying out her parenting role appropriately and that there was no evidence to support a finding of the likely mental health impact on the Mother if she was not permitted to relocate.
At [54] the Federal Magistrate discussed “Other matters” and observed that: “There was a good deal of time during the trial spent seeking to apportion blame or otherwise as to why the father has not seen [the child] as often as he might have done in the past”. His Honour accepted the evidence of the court expert that from the child’s point of view “it does not matter whose fault it was that the father might not have spent a great deal of time with the child in the past”.
From [55] to [59] the Federal Magistrate discussed the issue of the child spending overnight time with the Father. His Honour outlined that overnight time would be introduced after two months of the child spending each Saturday with the Father. His Honour in this context addressed the Mother’s concerns regarding the Father’s accommodation, finding the Father should find more appropriate accommodation for the child to spend overnight time, but that in the meantime such overnight time could take place at the paternal grandparents’ home if possible. Following three further months of spending alternate weekends with the Father from 10:00am to 4:00pm on both Saturday and Sunday, the Father’s time was to increase to two nights, from Friday afternoon to Sunday afternoon.
At [59] and [60] the Federal Magistrate made very clear that the Father would have to make arrangements to ensure that he was “personally available on those occasions” and that he would “have to make arrangements with his employer to ensure his availability”. His Honour observed that this was “the only way that the father and [the child] will be able to develop a proper and meaningful relationship”. His Honour concluded that he was “confident” that the Father would take “all steps necessary to ensure that happens”. Importantly, his Honour also observed that he was confident that the Mother “will continue to promote the father’s relationship with the child”.
The Federal Magistrate observed at [61] that the Father did not pursue his proposal that the child should live with him if the Mother relocated to north Queensland because he acknowledged that the child was “better off, from a primary care of [sic] point of view”, in the care of the Mother. His Honour observed that “again this has shown to the court that the father does have insight in relation to the child’s situation and the importance of the mother in the child’s life”.
The Federal Magistrate observed at [62] that he was “satisfied that [the Mother] will be able to afford to rent in [X] once she takes up her further work at the hospital in [X]”
Then, under a heading “Conclusion on the Best Interests of the Child”, the Federal Magistrate at [63] observed:
Having gone through the considerations in section 60CC and referred to them in this decision … it will be apparent that I have concluded that it will be in the best interests of [the child] if he remains living in the [X] district. This will necessarily mean that the mother and [the child] will remain living in the [X] district because at no time has the mother contended that she may move and leave [the child] in [X].
The Federal Magistrate then at [65] and [66] considered s 61DA and s 65DAA of the Act. As to s 61DA, his Honour simply stated at [65]: “There is nothing in this case that would suggest the presumption should be rebutted. Accordingly there will be an order for equal shared parental responsibility”.
As to s 65DAA the Federal Magistrate simply stated at [65]: “Considering [the child]’s young age, considering the orders sought by the parties, and considering in general the evidence of [the court expert], it is not appropriate for there to be an order for equal time” and at [66]: “Once again, having regard to the orders sought by the parties and the evidence generally, I have formed the view that it is not appropriate for there to be an order for substantial and significant time”.
The Federal Magistrate from [67] to [71] under the heading “Holidays” said that he proposed that the child spend time with each parent at “Christmas time”, the child’s birthday, Father’s Day, Mother’s Day, the parents’ birthdays and “other special family occasions” and outlined the orders he proposed to make in relation to time the child would spend with each parent during school holidays.
At [72] the Federal Magistrate observed:
I will put it this way, I will give to the parties the right - I don’t want to pronounce final orders right now - I would say that the parties within seven days I would ask the mother’s solicitor and the father’s solicitor or counsel to submit to the court appropriate orders that reflect the Reasons for Judgment. I will actually give the parties fourteen days and to assist the parties I will obtain a copy of the reasons and have them settled prior to pronouncing the final orders, but some orders will be operative from now.
Then, in the final three paragraphs of his reasons for judgment at [73] to [75], the Federal Magistrate returned to the circumstances of the Mother. His Honour noted at [73] that the Mother indicated that “a move to [north Queensland] would be close to a university that would enable her to embark on further study” and that the Mother has “no present intention to engage in any further study, but that I do note that she has also not made any inquiries in relation to some form of external studies, which, of course, may also be available to her”.
The Federal Magistrate then at [74] resumed dealing with the Mother’s employment opportunities and observed: “I am satisfied, though, that the mother will be able to obtain appropriate working hours in [X], at the [X] hospital, that will enable her with the assistance of [the child]’s family and friends on both sides, with their assistance that will enable the mother to attend to her work commitments”. His Honour had already dealt with the Mother’s employment opportunities and capacity at [45] and [46].
The Federal Magistrate concluded his reasons for judgment by observing that there was no reason why the Mother could not take the child to north Queensland for holidays or to see friends and for the Father to take the child on “appropriate holidays at the appropriate time”.
Notice Of Appeal
Introduction
The Mother’s grounds of appeal identified in the notice are as follows:
1. The learned Federal Magistrate erred in finding that there was not a bond established between the father and child sufficient to ensure the long-term relationship between the father and child in the event the child was separated from the father for long periods.
2. Alternatively to Ground 1 hereof, the learned Federal Magistrate ought to have found that in the light of the father’s past history of lack of commitment to spending time with the child it was not in the best interests of the child and he was not justified in making an order which effectively required the mother to remain in the [X] district.
3. The learned Federal Magistrate failed to consider the matters in section 60CC(4) or alternatively, failed to give weight to those matters.
4. The learned Federal Magistrate ought to have concluded that it was unlikely the father would remain committed to an order that provided he could spend regular time with the child.
5. The learned Federal Magistrate erred in finding that there was no evidence to support a finding of a likely mental health impact upon the mother of being required to stay in the [X] district.
6. The learned Federal Magistrate erred in finding that the mother was likely to have prevented (or was not willing to allow) the father and, or alternatively, the paternal grandparents, to see the child.
7. The findings by the learned Federal Magistrate:
1.that the father could (or would) move from his present accommodation.
2.that the mother had employment opportunities available to her at the [X] hospital.
3.that the mother was likely to, would, or could move closer to [X] if she was not permitted to relocate to [north Queensland]; and/or
4.that the father would curtail his involvement in work and, or alternatively, that he would reduce his working hours
were not open on the evidence.
8. The decision of the learned Federal Magistrate was wrong in fact and in law.
We are concerned about the manner in which this appeal was presented on behalf of the Mother. In the written outline of argument filed on behalf of the Mother, and also the oral submissions presented to us by counsel for the Mother, the grounds of appeal were not referred to. All that was said was that they did not propose to address grounds 6 and 7.1. In discussion before us grounds 6 and 7.1 were abandoned (Transcript, 31 May 2010, p 2). We also observe that ground 8 does not articulate an appealable ground of appeal. There is also, to some extent, an overlapping of the complaints in the grounds of appeal. For example, there is an overlapping of issues raised by grounds 2, 3 and 6. We therefore do not propose to address seriatim the grounds of appeal as they appear in the notice of appeal.
However, during discussion before us counsel for the Mother contended that the grounds of appeal fell into two broad areas of complaint. The first area of complaint was that the Federal Magistrate made a number of critical findings that were not supported by the evidence. The second area of complaint was that his Honour failed to consider the provisions of s 60CC(4) and s 60CC(4A) of the Act.
We observe that in the written outline of argument filed on behalf of the Mother it was suggested at paragraph 25 that there was a third area of complaint, namely that his Honour failed to consider the provisions of s 65DAA. However, in discussion before us, counsel for the Mother conceded that it was not a ground of appeal that his Honour did not properly consider this statutory provision (Transcript, 31 May 2010, p 15).
Principles To Be Applied
Discretionary judgment
This is an appeal against a discretionary judgment and the principles to be applied are well established: House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513 and CDJ v VAJ (1998) 197 CLR 172.
We are mindful of the position of the Federal Magistrate in relation to complaints about assessment of weight where no error of law or fact is obvious: see GronowvGronow at 519-20 per Stephen J. We are also mindful of the necessity to avoid “an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved”: see AMS v AIF (1999) 199 CLR 160 per Kirby J at 211; A v J (1995) FLC 92-619 per Full Court (Fogarty, Lindenmayer and O’Ryan JJ) at 82,232 and Rollings v Rollings (2009) 230 FLR 396 per Full Court (Boland, O’Ryan and Murphy JJ).
It therefore becomes necessary to consider what the evidence was and what findings were made by the Federal Magistrate. The Father, in his affidavits of 13 February 2009, 28 May 2009 and 20 July 2009, made allegations about the behaviour of the Mother. However, there was no, or very little, evidence put forward by the Father to support his contentions about the behaviour of the Mother. As we have observed, consideration of the affidavits of the Father reveals that the only incident about which he gave evidence was in paragraph 2(q) of his affidavit of 28 May 2009 in relation to the 2009 Easter period. The Mother, however, was cross-examined about four incidents, which we have already referred to, being the time she volunteered the Father to see the child on a Wednesday evening, the alleged incident on 13 April 2007, the argument about the television set and what happened over the 2009 Easter period (Transcript, 24 August 2009, pp 34 to 65). We observe that at the trial the Father was orally examined before the Mother was orally examined and the Father gave no evidence in chief about the four matters referred to (Transcript, 24 August 2009, p 3).
The findings of the Federal Magistrate about these matters relating to the behaviour and attitude of the Mother are contradictory. When his Honour was dealing with s 60CC(3)(i) of the Act, he made findings at [34], [35] and [36] about the television set argument and the 2009 Easter period. His Honour found at [34] that because of the Mother’s admission about the television set argument there were occasions when the Mother “denied the child the right to see the father” and this lead his Honour to conclude that “there were likely to have been other such similar incidents where the mother was not willing to allow the father to see the child”. His Honour then at [35] found that each party “has been somewhat to blame in relation to the relatively small number of times that the father has seen the child throughout 2006, 2007 and 2008”. His Honour then at [36] dealt with the 2009 Easter period and found that it was an instance that demonstrated that the Mother “has chosen a course of action which would prevent the child from spending time with the father”. We observe that it would also have been open to his Honour to find that in the 2009 Easter period the Father chose a course of action not to spend time with the child when he had the opportunity to do so.
In any event, putting aside the issue as to whether or not the evidence enabled the Federal Magistrate to make the above findings about the behaviour and attitude of the Mother, the evidence was that the Father has a very good relationship with the child. The Federal Magistrate found at [18] that the evidence established that the child “has a close and loving relationship with the father”. Adopting the present relationship approach described by the Full Court in McCall & Clark the Father and the child have a meaningful relationship.
What the Federal Magistrate found about the Mother not being willing to allow the Father to see the child and preventing the child from spending time with the Father and so on, was undermined by a number of matters including his Honour’s findings, the evidence of the court expert and the Husband’s own evidence.
When dealing with s 60CC(3)(c) of the Act the Federal Magistrate observed at [21] that the Mother “has proven that she is both willing and able to facilitate and encourage a close and continuing relationship between the child and the father”. Then when considering the orders he proposed to make his Honour found at [60] that he was “confident that the mother will continue to promote the father’s relationship with the child” (emphasis added).
The court expert observed, and it was not put in issue, at paragraph 5.2.1.4 of his report:
[The Mother] was not disparaging of the father in any way and was at pains to point out that she would try to facilitate [the child] spending time with his father as much as possible if she is able to relocate. [The Mother] appeared very genuine in expressing that she believes that [the child] will benefit from having a meaningful and positive relationship with his father. [The Mother] acknowledged that [the child] loves his father but at the same time expressed disappointment that [the Father] has not prioritized his relationship with his son over his work”.
The court expert also observed at paragraph 5.2.2.4 of his report: “[The Mother] said that [the child] loves his Dad and loves his ‘Nonna and Pop’ (maternal grandparents)”. Then the court expert said at paragraph 7.11: “I note the mother’s comments that [the child] loves his father. At interview, [the Mother] did not say anything to indicate that she does not consider [the child]’s relationship with his father to be important”. During his cross-examination, the court expert gave evidence that “there was nothing to indicate to me, apart from [the Father]’s claims that [the Mother’s] been obstructionist in the past” (Transcript, 24 August 2009, p 69).
Finally and significantly, during cross-examination of the Father there was the following exchange (Transcript, 24 August 2009, pp 25 to 26):
Your little boy, on any account – [The court expert]’s account, [the Mother]’s account, your own account – clearly has a loving relationship with you. No one suggests otherwise. … what credit do you give [the Mother] for that? --- She’s been a very – he’s a very well-mannered kid. I’ve never criticised [the Mother] in the way she has brought [the child] up or nothing. She’s done a very good job. He’s very well-mannered.
It’s more than that, isn’t it? She has ensured that he knows his dad, that he loves his dad, that he wants to come and spend time with his dad. She’s done all of that, hasn’t she? --- Yes
And if she moves to [north Queensland], there is no reason why that will stop, is there? --- It’s a lot further away. It’s a lot more travel for a little boy of his age. Even-it’s only seven hours---
I accept all that. Just listen to my question, though. You agree with me that she has done all that? She has made sure that [the child] knows you and that he loves you and that he wants to spend time with you? --- Yes.
There is no reason to believe that that is going to change if she is in [north Queensland], is there? She is not going to stop making [the child] love you? --- We won’t - I - the four hours that ---
Forget the time, with respect, because all I am asking you now is about attitude. You have no reason to believe ---? --- That [the Mother] would just make - tell him that - no, that - yes, I don’t say [the Mother] would ever tell [the child] that.
No? --- Well, I’d hope not. I’d hope she wouldn’t ---
No? --- because I’ve never told [the child] and never would, because ---
No. And there is nothing in the case advanced by you to suggest that? --- No.
But you are accepting in front of his Honour now that ---? --- [The Mother] would ---
--- she will continue to make sure [the child] loves you and that he wants to spend time with you, will she not? --- Yes.
So you want [the child] - you have already agreed that [the child]’s mum has done a good job of raising him to this point? --- Yes.
You do not seriously want [the child] to be removed from her primary care, do you? --- Not fully, no.
And you want [the child] to be in a household where his mum is content and happy, do you not? --- Yes. (emphasis added)
In conclusion, the Father has a meaningful relationship with the child. Further, the Mother is willing and able to facilitate, and encourage, the relationship of the child and the Father. So also, the Mother has an appropriate attitude to the child, and to the responsibilities of parenthood. These were the findings that the Federal Magistrate should have made when considering the matters in s 60CC(3)(b), (c) and (i) of the Act.
So far as the Father is concerned, again the findings of the Federal Magistrate are perhaps contradictory. Without referring to any evidence, his Honour at [38] found that “the father did try to establish a relationship with the child” and at [37] said something about the “laidback and laconic style and manner” that is said to be “characteristic of many western Queenslanders”. If this has any meaning it could hardly be said that the Mother has such a “style and manner”. Earlier at [21] his Honour observed that the Mother “at times has had her patience tested”. His Honour never explained what these findings meant.
When dealing with s 60CC(3)(i) of the Act the Federal Magistrate found at [39] that “the father’s attitude to the child is, from an overall perspective, appropriate, and I am satisfied that the father will in the future ensure that court orders are followed and that he spends appropriate and substantial time with the child in accordance with orders made”. Then at [40] his Honour found that once the Father was “given the opportunity for the child to spend overnight time with him, that he will be then able to demonstrate that he has accepted the responsibilities of parenthood”. In other words, his Honour made findings about what he considered may happen in the future but failed to provide an evidentiary foundation for these opinions given what had happened in the past.
As we have observed, on 15 June 2009 the Federal Magistrate made an order that the child spend time with the Father each Saturday from 10:00am until 4:00pm commencing on 20 June 2009. In the written summary of argument filed in these proceedings on behalf of the Father it was contended at paragraph 12 that the Father “said he would reduce his working hours to accommodate his spending time with his son and he had done so in the six weeks prior to the trial when an order set out with particularity the time he was to spend with the child”. We observe that there was no evidence that in the period from May 2005 to June 2009 the Father made an attempt to change his hours of work and then in June 2009, when the applications were fixed for final hearing, he allegedly changed his hours of work so that he could see his son for six hours each Saturday. We observe that the trial was in August 2009.
Consideration of what the Federal Magistrate said at [20] and [21] in relation to s 60CC(3)(c) of the Act and at [32] to [40] in relation to s 60CC(3)(i) reveals that his Honour made no mention of s 60CC(4). Although it is obviously a preferred practice because it readily identifies the relevant statutory provisions that were addressed and considered by a trial judge, we accept the submission on behalf of the Father that it is not necessary for a trial judge to have “headings” in his or her reasons for judgment, nor make specific reference to the relevant statutory provisions. However, in the circumstances of this case, we find that the Federal Magistrate did not undertake the assessment that he was required to undertake by reason of s 60CC(4).
If his Honour had undertaken the assessment he was required by s 60CC(4) of the Act to undertake, then it would have demonstrated, given what had happened in the period May 2005 to June 2009 and in the six weeks between June and August 2009, that there were concerns about the Father’s capacity to commit to being available during the school term to care for the child for two nights in each fortnightly period and also about the capacity of the Father to care for the child and also about his attitude to the child and to the responsibilities of parenthood.
We are also of the view that it has been established that the Federal Magistrate gave undue weight to the evidence about the television set incident and the 2009 Easter period and failed to give sufficient weight to the unchallenged evidence about the Father’s lack of involvement in the care of the child and the little amount of time the Father has spent with the child, particularly given the arduous task the Mother had in caring for the child. The evidence did not establish the contention of the Father about the attitude and behaviour of the Mother and this was a significant matter. The evidence did establish that, notwithstanding the efforts of the Mother, the Father had very little involvement in the care of the child and had spent very little time with the child and this was a significant matter.
In relation to the reasons the Mother gave as to why it would be in the best interests of the child that she be able to relocate with the child to north Queensland the Federal Magistrate made a number of findings about various matters. His Honour found at [43] and [44] that the Mother has family in the X area; at [42] and [51] that the Mother has a support network in X; at [45] and [74] that the Mother could obtain employment in X; at [45] that the Mother could obtain accommodation in X; at [47] that there is a pony club in X; at [48] that there is a swimming pool in X; at [48] that it is too early to resolve secondary schooling for the child and at [73] that the Mother has no present intention of further education.
In his affidavit filed on 4 June 2009 the Father contended at paragraph 2(u) that the Mother has a network of friends in X and would be able to obtain employment in X. The Father also in paragraph 4 alleged that X has all the necessary educational and health facilities for the child.
The Mother was cross-examined about accommodation, and, as we have already observed, there was no evidence of the cost of accommodation or what properties were available. The Mother was not cross-examined about employment. However, given the findings of the Federal Magistrate, a number of submissions were made before us on behalf of the Mother in relation to her employment. It was submitted that the only evidence was that the Mother would have to work full time between ‘unfriendly’ hours. Further, that the Mother was not challenged about her employment and nor was there any evidence from which the Federal Magistrate could determine there was employment available in X other than that deposed to by the Mother. It was also submitted that his Honour did not address the practicality or desirability of the Mother taking on such employment.
It is not necessary for us to deal with each of the matters referred to by the Federal Magistrate. For example, to contend that the Mother would have the continued support of her family fails to consider that the maternal grandparents reside a considerable distance from the township. The court expert at paragraph 7 of his report referred to the reasons given by the Mother as to why she sought to relocate with the child to north Queensland and he was satisfied that the Mother had made “a reasonable argument”. The important matter is that there was no issue that the Mother’s desire to relocate to north Queensland was genuine and motivated by a belief that she would have better opportunities to care for the child.
The Mother contends that the Federal Magistrate erred in finding that there was no evidence to support a finding of a likely mental health impact upon the Mother of being required to stay in the X district (Ground 5). During cross-examination of the court expert by counsel for the Mother there was the following exchange (Transcript, 24 August 2009, p 70):
Can I ask you this, now, if – if his Honour exercised the discretion in such a way that [the Mother] was obliged to stay in the [X] area, do you have any concerns about how that might impact upon her parenting? --- There’s – there’s certainly an argument that it could impact – it could impact negatively upon her parenting, in that it could impact negatively to some degree on her mental health. She may feel isolated. She may feel thwarted and frustrated. She may feel as though she’s not being able to provide her son with – the full range of options that she’d like to provide him with. I understand she lives in a pretty isolated area at the moment. It is a fair way from [X] where she is living with her parents. She would have the option, of course, of moving into [X], but I gather that’s quite expensive in terms of rent. She’s in a better financial position where she is with her parents, and I believe she is able to – to get a much more reduced rent in [north Queensland]. It – it could affect her mental health some degree and that could affect her parenting. That’s as much as I can say.
We observe that the evidence of the court expert was not challenged. However, in final submissions on behalf of the Father, it was submitted that there was no evidence that the Mother “will suffer any mental or psychological illness if she remains in [X]” (Transcript, 24 August 2009, p 79).
This evidence of the court expert about the impact on the Mother was dealt with by the Federal Magistrate when dealing with s 60CC(3)(m) of the Act. His Honour found at [50] that the Mother had wanted to move to north Queensland for a couple of years and there was no evidence of any negative medical impact or mental health impact upon the Mother in that period. His Honour found at [51] that given the “extensive, strong and close family network in the [X] district” that the Mother has, that “being obliged to remain in the [X] district, will not prevent the mother from carrying out her parenting role appropriately and successfully”. His Honour also found at [52] that there was no evidence to support a finding of a likely mental health impact upon the Mother of being required to stay in the X district.
On behalf of the Mother it was submitted that the Federal Magistrate failed to properly consider the effect on the Mother of, effectively, requiring her to remain in the X district and ignored the evidence of the court expert. The court expert went much further than family and friends and child care options and testified to the Mother feeling “isolated”, “thwarted” and “frustrated” at not being able to provide the child with a full range of options and of having to continue to reside with her parents unless she moved and incurred the expense of doing so. In our view, the Federal Magistrate was in error in that he failed to place any weight on the unchallenged evidence of the court expert.
The only remaining relevant matter appears to be what the Federal Magistrate found in relation to a meaningful relationship between the Father and the child. His Honour appears to have founded his view on what the court expert said during cross-examination when there was the following exchange (Transcript, 24 August 2009, pp 67 to 68):
All right. So at this age, is it important for [the child] to see his father on a regular basis? --- That’s the ideal situation, yes. Yes, it’s important for him to have a good strong relationship with each parent.
And - all right. And would the minimum or I suppose the maximum break you would suggest would be fortnightly? --- The maximum break from each parent.
Well, obviously he is seeing his mother every day? --- Yes.
The father is proposing that he see him fortnightly. Any less than that, I am suggesting, really would not be enough time for [the child] to really develop the relationship with his father? --- In - ideally, yes, yes. He should be seeing his father more regularly than he has in the past.
All right. And at least fortnightly? --- To establish a meaningful relationship, yes.
Okay? --- I think that’s - that’s a reasonably - a value that most people would hold, a belief that most people would hold ---
All right? --- that the court would generally agree with, certainly my - my view.
All right. All right. And obviously if --- ? --- It is the case that older children can go for longer periods without seeing one parent. You know, for example, in relocations, and it doesn’t necessarily affect the quality of the relationship if the relationship has been well developed.
Okay. So in this case I would suggest that [the child] would, at a minimum, need a time to build a firm bond with his father? --- Ideally.
Right. And when you say older children can cope with perhaps a longer time away from their - a parent, what age do you say that that is generally, if they have got a firm bond with each parent, what age would you say the child could cope with longer periods away? --- I think probably school age, school age children, and I would tend to think around about the age of eight, when they’re - they’re starting to get a little bit more maturity and cognitive ability to be able to cope with that more lengthy separations.
The Federal Magistrate referred to this evidence at [11] to [13] when considering s 60CC(2)(a) of the Act and also at [23] and [24] when considering s 60CC(3)(d). Although his Honour did not specifically say so, it is clear that this was a matter on which he placed significant weight.
However, the Federal Magistrate failed to consider other relevant evidence given by the court expert. For example, during cross-examination of the court expert there were the following exchanges (Transcript, 24 August 2009, pp 69 to 70):
And the - the father, in his own evidence, accepted that it was at mum’s prompting that the boy had this close loving relationship with him, and the dad did not dispute that - sorry, he did not say that there was any reason he could give to think that mum would change if she moved to [north Queensland]. So on that basis, there is nothing you say, is there, that would alarm his Honour in terms of the boy’s relationship with his father simply by stint of mum moving to [north Queensland] per se, is there? --- No, no, and I did not get the - there was nothing to indicate to me, apart from dad’s claims that she’s been obstructionist in the past. Apart from that, there’s nothing to indicate to me that she’s in any way not supported the child’s relationship with the father.
Well --- ? --- She made it very clear to me at the assessment that she wanted to encourage that relationship.
…
Lastly, you - in response to a question by [counsel for the Father], you gave evidence that, for example, in relocation cases older children, and you then clarified that by saying “School age children”. You then clarified it further to say “Perhaps eight years and over can cope better with the longer breaks between spending time with one parent or another”. In the history of this case, where this little boy on anybody’s case has not seen his father at times for those longer stretches, do you say that this little boy, on that basis probably can cope with those longer - longer breaks between visits? --- Given that it’s been a relatively short period where he’s seen his - seen his father regularly, I wouldn’t have thought that there’d be a major impact if he were to relocate at this time.
As was submitted on behalf of the Mother the court expert was comforted by his view that the Mother would not discourage the relationship between the Father and child and would adhere to orders which were made to ensure that the child saw his father regularly.
It was submitted to us on behalf of the Mother, which we accept, that the court expert made clear that ideally the child should be seeing the Father more often that he had in the past. However, the child has a meaningful relationship with the Father already and in circumstances where there were other considerations that had to be taken into account it has to be remembered that a meaningful relationship does not mean an optimal relationship: see Kay J in Godfrey & Sanders at 33 and 36).
Given that the Father did not seek equal or substantial and significant time with the child there is no reason on the evidence why a meaningful relationship between the Father and the child could not be maintained if the child resided with his primary carer in north Queensland.
Conclusion
We propose to allow the appeal. We are satisfied that the Federal Magistrate made a number of errors.
The Federal Magistrate failed to consider the matters in s 60CC(4) of the Act and alternatively, failed to give weight to the matters in that section that, in the circumstances of this case, had to be considered (Ground 3). Given the evidence, his Honour failed to consider whether the Father would remain committed to an order that provided he spend regular time with the child and would curtail his involvement in work and, or alternatively, that he would reduce his working hours.
The Federal Magistrate erred in finding that there was no evidence to support a finding of a likely mental health impact upon the Mother of being required to stay in the X district (Ground 5). His Honour erred in relation to his finding about the employment opportunities available to the Mother at the X hospital.
The Federal Magistrate erred in relation to his consideration of s 60CC(2)(a) and what is required by the term “meaningful relationship” (Ground 1).
Finally, the Federal Magistrate erred in that he failed to consider, weigh and assess the evidence touching upon each of the relevant matters and after a consideration of all those matters, indicate to which of the matters he attached greater significance and how all of the relevant matters balanced out.
The Mother submitted that if the appeal was successful then the proceedings should be remitted. Given the nature of the errors we have identified we agree with that submission. Accordingly, we propose to remit the proceedings for redetermination by a Federal Magistrate other than Federal Magistrate Howard. We would propose that pending the redetermination of the applications, the regime for the time that the Father will spend with the child will be in accordance with the orders of the Federal Magistrate.
Costs
At the conclusion of the hearing of the appeal we received submissions in relation to costs of the appeal. Neither party sought an order for costs in the event that the appeal succeeded and thus it was accepted by both parties that, in those circumstances, the provisions of s 117(1) of the Act apply and no order for costs should be made pursuant to s 117(2).
As the appeal has succeeded because of an error of law, we propose to grant to each party a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) both in respect of the appeal and of the rehearing.
I certify that the preceding one hundred and ninety-one (191) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court O’Ryan, Strickland and Benjamin JJ delivered on 10 February 2011.
Associate:
Date: 10 February 2011
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