SMG v RAM
[1999] FamCA 1845
•24 December 1999
[1999] FamCA 1845
FAMILY LAW ACT 1975
IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT PARRAMATTA
Appeal No. EA 77 of 1999
File No. CA 1529 of 1997
IN THE MATTER OF:
“S.M.G”
Appellant/Father
- and -
“R.A.M”
Respondent/Mother
REASONS FOR JUDGMENT
BEFORE: Ellis, Coleman and Watt JJ
HEARD: 8th day of December 1999
JUDGMENT: 24th day of December 1999
APPEARANCES: Mr Lethbridge of Counsel, (instructed by Farrar Gesini & Dunn, Solicitors, 17-21 University Avenue, Canberra ACT 2601),
appeared on behalf of the appellant father.
Mr Brewster of Counsel, (instructed by Legal Aid Office, 4 Mort Street, Canberra City ACT 2601) appeared on behalf of the respondent mother.
Matter “G” AND “M”
Appeal Number EA 77/99 (CA 1529/97)
Coram Ellis, Coleman and Watt JJ
Date of hearing 8 December 1999
Date of Judgment 24 December 1999
Catchwords RELOCATION – B v B – AMS v AIF – Effect of those decisions – Best interests of the children
The father was 24 years of age at the date of hearing whilst the mother 21 years of age at the date of the hearing. Cohabitation between the parties commenced in about 1995 when the father was 20 years of age and the mother 18 years of age.
The first child of the parties, “J”, was born on 18 July 1996.
In July 1997 the parties separated, “J” remaining in the care of the mother. In September of that year the father began to see Ms “I”, his present partner, and they commenced to live together in November of that year. In December 1997, consent orders were made providing for the father to have contact to “J”.
The parties’ second child, “N”, was born on 30 January 1998.
At a New Year’s Eve function in December 1998 the mother and Mr “S C” met. A relationship formed between them. The mother’s application to relocate was filed in June 1999. On 15 July 1999 interim consent orders were made providing for overnight contact between the father and “J”. The orders provided for the father to have single day contact to “N”, that single day contact coinciding with contact periods provided for in the same orders with respect to “J”.
The trial Judge took into account section 65E and also had regard to a number of additional matters as being applicable to cases in which a parent with whom children principally reside sought to move to a different place.
His Honour noted the Full Court in B and B (1997) FLC and draw attention specifically to the fact that the Full Court had suggested that principally these matters are children matters and must be regarded in that way.
Reference was made to the decision of the High Court in AMS v AIF (1999) 24 FLR 756.
“His Honour referred to the judgment of “general majority” of the Judges of the High Court (Gleeson CJ, McHugh and Gummow JJ) in AMS v AIF (supra) who had rejected any suggestion that a party seeking to relocate should produce “...‘compelling reasons’” for “...disturbing what was thought to be the status quo”, and suggested that the inquiry to be made in relocation cases ‘...should not be directed to simply whether or not someone should go, but rather to the broader picture of what would be the consequences for the child or children in either case.’”
The only issue identified by the trial Judge as exclusively a child related issue was the way in which the move would affect the relationship between the children and their father. His Honour accepted that if there were to be a move by the mother to “Pr......”, that this would adversely affect the relationship between the children and their father.’”
The trial Judge considered the question of the genuineness of the reasons for the move. His Honour found that the mother did not wish to move by reason of an ‘intention to frustrate contact’. His Honour found that the mother saw the move as “...towards a more secure relationship and to a job which will provide her ultimately with economic independence”.
The trial Judge found that the relationship between the children and their mother was, on the report of the counsellor, was a good and effective one. Further, it was found that the relationship between the children and their father, particularly “J” and his father was said within the context of the contact that has existed, to be good. The relationship between “N” and her father was, ‘by any measure, fundamental and embryonic’.
The trial Judge noted that the most significant factor for consideration was the likelihood that if there were to be a move, there would be a diminution in the children's relationship with their father. In conclusion, the trial Judge was in favour of the decision that the children should be permitted to go to “Pr......” with their mother.
It was submitted on appeal that: -
1.The learned Trial Judge was acting upon a wrong principle and failed to properly apply the law in the following manner:
1.1In failing to have regard to the best interests of the children as the ‘touchstone’ of the proceedings;
1.2In his failure to have proper regard to the effect on the children of a separation from their father;
1.3In failing to enable the father to play a significant role in the children’s lives, notwithstanding the father’s relationship with the child “J” and the development of his relationship with the child “N”.
2.The learned Trial Judge failed to give any weight or any adequate weight to the following matters:
2.1The evidence of the Court Counsellor with respect to the profound impact upon the children’s relationship with their father if the children were relocated to “Pr......”;
2.2The evidence of the Court Counsellor with respect to the importance of the frequency of contact between the children (particularly “N”) and their father;
2.3The evidence of the Court Counsellor with respect to the parties’ recent capacity to resolve matters by way of consent orders;
2.4The evidence of the Court Counsellor with respect to the inadequacies of Mr “S C” as a parent;
2.5The evidence of the Court Counsellor regarding the mother ‘running away’ from the “Pa......” area;
2.6The evidence of “S G” regarding the mother’s engagement;
2.7The evidence of Mr “S C” that he was multi-skilled and would, if necessary, move to the “Pa......” area;
2.8The issue of what relationship (if any) existed between Mr “S C” and the children.
3.The learned Trial Judge erred in law and acted upon a wrong principle in relation to the following matters:
3.1Finding that there was ‘no substantial reason’ for them other and children not to relocate to “Pr......”;
3.2By concluding that it was a ‘fine balance’ between the factors both operating ‘for’ and ‘against’ the mother relocating the children to “Pr......” but without indicating in his judgment which factors had ‘balanced’ the decision in favour of the mother relocating to “Pr......”.
During the course of submissions by counsel for the father, application was made to add an additional ground of appeal. The terms of the additional ground provided:
4.That the learned trial judge erred in law in failing to approach and determine the mothers [sic] application for residence by considering whether the interest [sic] of the children were better served by them remaining resident with the mother in “Pa......” or by comparison becoming resident with her in “Pr......” in Queensland”.
Held: -
The additional Ground of Appeal subsumed Grounds 1 and 3. The Court found that His Honour determined the relocation issue on the basis of his assessment of whether or not the mother should be allowed to relocate to “Pr......” with the children, rather than whether, having considered all of the evidence as to the implications for the children in either eventuality as he was required to do, doing so was in the best interests of the children. In approaching the matter on the basis of “...substantial reasons” for permitting, rather than refusing, relocation, the trial Judge misdirected himself in the manner described by Kirby J (page 805 paragraph 188) and Hayne J (page 812 paragraph (218) and (219)) in AMS v. AIF (1999) 24 Fam LR 756. The Court determined that the conclusion expressed by the trial Judge suggested that whilst, in accordance with authority, rejecting any suggestion that it was for the mother to provide compelling reasons in support of being allowed to relocate the children, the trial Judge had instead imposed on the father an obligation to provide compelling reasons, or at least a preponderance of reasons, for not permitting the mother to relocate the children. By adopting that approach, the trial Judge necessarily failed to have regard to the evidence before him as to the implications for the children of allowing, or refusing, the mother permission to relocate. As a consequence, the trial Judge’s decision was not based on what was in the best interests of the children. In these circumstances, the Court allowed the father’s appeal and ordered that there be a re-hearing.
Having regard to the Court’s conclusions in relation to Ground 4, it was unnecessary to consider Ground 2. As there will be a re-hearing, it was preferable that the Court refrained from commenting on the evidence before the trial Judge.
Appeal was allowed.
The Court granted a costs certificate to the father.
Reportable
On 25 August 1999, Faulks J made orders in proceedings between the present parties, in the following terms:
“1.THAT all existing orders about residence and contact in relation to “J.S.G” born 18 July 1996 and “N.L.G” born 30 January 1998 are discharged.
2.THAT the children “J” and “N” will live with their mother.
3.THAT the children and their mother may relocate from “Pa......” to “Pr......” in Queensland.
4.THAT the question of the children’s contact with their father are adjourned before me at 2.00pm on the 8th September 1999 for further determination on that day if agreement has not been reached between the parties prior to that day.
5.THAT until the matter is next before the court the children will have such contact with their father as the parties may agree, it is expected that contact will be more extensive then [sic] that which would have been the case under existing orders and in any event, such contact will be not less than that presently applicable under the existing orders.
6.THAT the Order 3 made above in relation to relocation is stayed until the matter is next before the court on the 8th September 1999.
7.THAT all material produced sub poena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
8.THAT any material produced sub poena which became and [sic] exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned to the party at the expiration of the appeal period”.
By Notice of Appeal filed 9 September 1999, the father has appealed against Orders 1, 3 and 4 made on 25 August 1999. If successful in his appeal, he seeks that these orders be set aside. However, he does not seek that, in that event, this Court re-exercise the trial Judge’s discretion and the appeal proceeded on the basis that, if the orders were set aside, the matter would be remitted for rehearing.
BACKGROUND
The father was born on 18 April 1975 and was thus 24 years of age at the date of hearing whilst the mother was born on 16 November 1977 and was, accordingly, 21 years of age at the date of the hearing. Cohabitation between the parties commenced in about 1995 when the father was 20 years of age and the mother 18 years of age.
“J.S.G”, the first child of the parties, was born on 18 July 1996.
In July 1997 the parties separated, “J” remaining in the care of the mother. In September of that year the father began to see Ms “I”, his present partner, and they commenced to live together in November of that year. In December 1997, consent orders were made providing for the father to have contact to “J”.
On 30 January 1998 “N.L.G”, the parties’ second child, was born.
At a New Year’s Eve function in December 1998 the mother and Mr “S C” met. A relationship formed between them. The mother’s application to relocate was filed in June 1999. On 15 July 1999 interim consent orders were made providing for overnight contact between the father and “J”. The orders provided for the father to have single day contact to “N”, that single day contact coinciding with contact periods provided for in the same orders with respect to “J”.
THE TRIAL JUDGMENT
By way of introduction, the trial Judge set out relevant background facts. There has been no challenge to the accuracy of such outline.
When dealing with “THE NATURE OF THE APPLICATION AND RESPONSE”, the trial Judge observed that “The issue between the parties is principally about whether the mother may locate to “Pr......” in Queensland to live with her fiancee, Mr “C”, (referred to throughout these reasons as Mr “S C”) and to take the children with her”. His Honour recorded that:
“For his part the father is opposed to this move, saying that it would in essence destroy his relationship with the children, and he requires that there be an injunction in effect against the mother’s leaving, and that there be contact on a regular basis between him and both of the children, including what I might loosely term, ‘Normal weekend contact and school holiday contact’”.
The mother had, as the trial Judge stated, put forward proposals for contact in the event that she was permitted to relocate the children to Queensland, such contact periods being essentially on four occasions in each calendar year, coinciding with school holidays.
The mother had proposed that:
“...there should be four periods of contact in each year if she is permitted to move. These include her travelling to “Pa......” where the parties presently live on the south coast of New South Wales twice, and for the father to travel to Queensland twice during school holiday periods to see the children. The mother proposes in relation to the trips by the father to Queensland, that he should pay for these but that he should be otherwise relieved from his obligation to pay child support. That would provide at least notionally a fund of some $3,000 a year to contribute to such expenses”.
Before this Court there has been no suggestion that the positions of the parties were other than as the trial Judge referred to them.
The trial Judge made a series of observations as to “THE RELEVANT LAW”, recording that s.65E of the Family Law Act required that any order made “...must be an order which must have the best interests of the children as my paramount consideration”.
His Honour referred to the decision of this Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 remarking that “...the Full Court has suggested that principally these matters” (that is, cases in which a parent with whom children principally reside seek to move to another place) “are children matters and must be regarded in that way”.
Reference was made to the decision of the High Court in AMS v AIF (1999) 24 Fam LR 756. The facts of AMS v AIF differ from the present, particularly in so far as issues of residence and custody which arose in AMS v AIF did not arise in the present case, the mother being the undoubted custodial/residence parent, the issue being whether she should continue in that role at “Pa......” or at “Pr......”. His Honour referred to a number of matters, discussed in the judgments of the members of the High Court in that case, which were:
“...not factors which bear upon this decision. Those matters included the question of freedom of movement and whether the constitutional guarantee under section 92 permitted a party to move from one place to another with the children, and whether any law which purported to restrict that movement or any operation of any law which purported to restrict that movement, was a breach of that section of the Constitution and hence invalid”.
His Honour referred to the judgment of “...general majority” of the Judges of the High Court (Gleeson CJ, McHugh and Gummow JJ) in AMS v AIF (supra) who had rejected any suggestion that a party seeking to relocate should produce “...‘compelling reasons’” for “...disturbing what was thought to be the status quo”, and suggested that the inquiry to be made in relocation cases “...should not be directed to simply whether or not someone should go, but rather to the broader picture of what would be the consequences for the child or children in either case”. The effect of the High Court’s decision was accordingly said to be that the mother in the present case was not required to produce “...‘compelling reasons’” for her proposed move and that the Court should “...consider all of the implications of the move or the decision not to move, for the best interests of the children involved in each of the proposed places of residence”. His Honour cited portions of the judgments of the “...primary majority”, and of the judgments of Gauldron, Kirby and Hayne JJ. Necessarily, we will return to the decision in AMS v AIF (supra) and to the various judgments of the members of the High Court in that case.
The trial Judge posed the question “What then are the issues before the Court in this matter?”, suggesting that:
“...most issues are not exclusively child issues in the way in which that term is considered in section 68F(2) of the Family Law Act 1975. Nor are such issues, generally speaking, exclusively parent issues or matters that are particularly and peculiarly related to the individual circumstances of the adults or parents in these proceedings. For example, the economic independence of the mother may be an important consideration for the child”.
The only issue identified by the trial Judge as “...exclusively a child related issue is the way in which the move would affect the relationship between the children and their father”. His Honour accepted that “...there can be little doubt on the evidence that if there were to be a move by the mother to “Pr......”, this would adversely affect the relationship between the children and their father”.
The question of “...the genuineness of the reasons for the move” was considered by the trial Judge who found that the mother did not wish to move by reason of an “...intention to frustrate contact”, whilst the mother “...obviously wants to distance herself from the stress and what she describes as ‘imprisonment’ of her existence in “Pa......” with her ex-partner and his family”. His Honour found that the mother saw the move as “...towards a more secure relationship......and to a job which will, she says, provide her ultimately with economic independence. These are properly matters to be considered in the general context of this decision”. The trial Judge stated that “...the decision about moving and the questions about why a move might be desirable, must be objectively tested and determined by the presiding judge”.
Other matters referred to by the Full Court in B and B (supra) were discussed by the trial Judge, including “...the degree and quality of the existing relationship between the children and the residence parent” and “...the degree and quality of the existing contact between the children and the contact parent”. His Honour found “The relationship between the children and their mother is, by any measure, and on the report of the counsellor, a good and effective one”. The relationship between the children and their father was found to be “...good”, particularly in the case of “J”, whilst the relationship between the father and “N” was said to be “...fundamental and embryonic”, one that was “...certainly at risk if there should be a move as suggested by the mother”.
The distance and permanency of the proposed move was discussed by the trial Judge. The implications of the distance, if the mother relocated to Queensland, were referred to by the trial Judge, as was the “...dislocation” of the children from other aspects of their former environment. It was found by the trial Judge that “There can be no doubt, in this matter, that as the counsellor points out, the desirable time, if there were to be one, for such a dislocation would be in a couple of years time when the children had had a more substantial development of their relationship with their father”.
The costs associated with travel were described by the trial Judge as “...substantial”, there remaining “...a risk that the distance may prove to be prohibitive at some point”, although the arrangements for contact proposed by the mother were regarded by the trial Judge as being, in all the circumstances, “...relatively satisfactory”.
Section 68F(2) was discussed by the trial Judge, the trial Judge referring to the various provisions of that section having regard to the findings of fact which he had made, none of which findings of fact has been the subject of challenge in this appeal.
Under the heading “SUMMARY OF FACTORS LEADING TO THE CONCLUSION”, the trial Judge referred to “...those factors that appear to be in favour of the move to “Pr......””, those including “...a better economic opportunity for the mother, both in the short term in her joining an economic unit with her fiancee, and in the long term because of her chance to complete her apprenticeship”, “...a move by the mother to a secure, economic and emotional opportunity with Mr “S C””, the “...psychological freedom that would be afforded to the mother by her going”, the “...escape from the controlling influence which she says she feels from both the children’s father and from the children’s father’s family”, that “...contact of some sort” would occur if the mother were permitted to move and that, although “...scraping the barrel of reasons”, the move may constitute “... a return by the mother to some previously ‘known’ environment”.
“The factors in favour of there being no move” were seen by the trial Judge as being “...the children would have more time and probably better time with their father”, “...the children would probably have more time and better time with their families in an extended sense”, that the children “...with their mother in “Pa......”, are not significantly financially worse off, if at all, particularly if Mr “S C” were to move to “Pa......”. It is at least more likely than not, if he got a job there”, that the move “...represents a significant reduction in contact between the children and their father and their family”, and that the move “...may be an impetuous move on the part of the mother, given the perhaps uncertainty of the relationship”. The trial Judge then referred to factors “...against staying in “Pa......””, suggesting that “...there would continue to be tension between the parties” if the mother and the children remained in “Pa......”, that the mother would be “...worse off in the short term” although, seemingly, no worse off in the long term. Requiring the mother to stay in the “Pa......” area was regarded by the trial Judge as likely to “...perhaps put the relationship between the mother and Mr “S C” at some risk”.
The trial Judge said:
“In this regard, all of these factors weighed together with the desire of the mother to go, and the desire of the father not to go, and the desire of the father that the children not go with their mother, brings back the question of which of the factors, if any, should represent a final and determining consideration in the situation where many factors need to be balanced”.
His Honour found that:
“...the factor which really stands out as being the most significant, for consideration (and certainly the fact to which most attention is drawn by all relevant parties) was the likelihood that if there were to be a move, there would be a diminution in the children’s relationship with their father”.
Ultimately, the trial Judge concluded:
“In my opinion, in this matter, there is a difficulty in saying with any confidence, that there are substantial reasons opposed to the move to “Pr......”, except for the fact that this will involve a diminution of the children’s relationship with their father. The balance is by any measure, a fine one. But in my opinion the balance is resolved in favour of the decision that the children should be permitted to go to “Pr......” with their mother”.
THE GROUNDS OF APPEAL
The Notice of Appeal, filed on behalf of the father, raised three Grounds, which provided:
“1.The learned Trial Judge was acting upon a wrong principle and failed to properly apply the law in the following manner:
1.4In failing to have regard to the best interests of the children as the ‘touchstone’ of the proceedings;
1.5In his failure to have proper regard to the effect on the children of a separation from their father;
1.6In failing to enable the father to play a significant role in the children’s lives, notwithstanding the father’s relationship with the child “J” and the development of his relationship with the child “N”.
4.The learned Trial Judge failed to give any weight or any adequate weight to the following matters:
4.1The evidence of the Court Counsellor with respect to the profound impact upon the children’s relationship with their father if the children were relocated to “Pr......”;
4.2The evidence of the Court Counsellor with respect to the importance of the frequency of contact between the children (particularly “N”) and their father;
4.3The evidence of the Court Counsellor with respect to the parties’ recent capacity to resolve matters by way of consent orders;
4.4The evidence of the Court Counsellor with respect to the inadequacies of Mr “S C” as a parent;
4.5The evidence of the Court Counsellor regarding the mother ‘running away’ from the “Pa......” area;
4.6The evidence of “S G” regarding the mother’s engagement;
4.7The evidence of Mr “S C” that he was multi-skilled and would, if necessary, move to the “Pa......” area;
4.8The issue of what relationship (if any) existed between Mr “S C” and the children.
5.The learned Trial Judge erred in law and acted upon a wrong principle in relation to the following matters:
5.1Finding that there was ‘no substantial reason’ for them other and children not to relocate to “Pr......”;
3.2By concluding that it was a ‘fine balance’ between the factors both operating ‘for’ and ‘against’ the mother relocating the children to “Pr......” but without indicating in his judgment which factors had ‘balanced’ the decision in favour of the mother relocating to “Pr......””.
During the course of submissions by counsel for the father, application was made to add an additional ground of appeal. Leave was opposed by counsel for the mother, on the basis that he was not prepared to meet the additional ground, of which no notice had been given, and could not properly do so in those circumstances. The Court adjourned to enable a minute of the proposed additional ground to be prepared by counsel for the father and for counsel for the mother to consider his position. On the resumption of the hearing, no application for an adjournment was made by counsel for the mother, nor were any further submissions made in opposition to the granting of leave to amend in terms of the minute submitted by counsel for the father. It is apparent from its terms that the additional ground of appeal which, leave having been granted became Ground 4, raised matters which are particularised in Grounds 1 and 3 of the Grounds of Appeal originally filed on behalf of the father. In the circumstances, the Court was satisfied that allowing the amendment could not prejudice the mother.
The terms of the additional Ground provided:
“4.That the learned trial judge erred in law in failing to approach and determine the mothers [sic] application for residence by considering whether the interest [sic] of the children were better served by them remaining resident with the mother in “Pa......” or by comparison becoming resident with her in “Pr......” in Queensland”.
As the additional Ground of Appeal (Ground 4 as it became) raised a fundamental issue, and, effectively, subsumes Grounds 1 and 3, it is convenient to deal with that ground first.
Counsel for the father submitted that the trial Judge had, though referring in his judgment to matters relevant to the determination of the relocation issue, misdirected himself as to the test to be applied to determine the issue. It was submitted that the trial Judge had, in effect, proceeded on the basis that the mother should be permitted to relocate unless the father established that the mother ought not be permitted to relocate. It was submitted that the true test was that laid down by the High Court in AMS v AIF (supra) and that, in applying the test which he did, the trial Judge had erred in law.
Counsel for the father referred to the finding of the trial Judge that there could “...be little doubt on the evidence that if there were to be a move by the mother to “Pr......”, this would adversely affect the relationship between the children and their father” . It was submitted that, although accepting the evidence, his Honour had failed to have proper regard to the counsellor’s evidence as to the potential impact on the welfare of the children of being relocated to Queensland. The trial Judge referred to portions of the Family Report. The Court counsellor expressed the opinion that “If the children were two or three years older and had been seeing their father regularly, they would be more able to accommodate seeing their father less frequently and being absent from their mother for longer periods”. The Court counsellor had further noted that “If Ms “M” were to move to Queensland, the children may go through a period of grieving for the loss of their father and their maternal and paternal grandparents”. Further the counsellor had expressed the opinion that “The children would need to make many adjustments to accommodate such a move; the major one would be the loss of existing relationships in which Ms “M”’s parents figure prominently” . The counsellor expressed the further opinion that if the mother relocated, “It may be difficult for “N” to attain the same level of closeness with her father as “J”. “N” has only recently started spending regular time with her father”. Counsel for the father referred to the observations and findings of the trial Judge at paragraphs 50 and 51 of AB 24 to which we have earlier referred.
It was submitted by counsel for the father that the reasoning process adopted by the trial Judge commenced to emerge at paragraph 80 of his Honour’s reasons for judgment. In the preceding paragraphs his Honour had referred to the evidence. It was not submitted that the trial Judge’s references to the evidence before him were other than accurate. Counsel submitted that the correct approach was to have compared two situations: the mother and the children at “Pa......” and the mother and the children at “Pr......”. The mother had given evidence that she would remain at “Pa......” with the children if the Court did not permit her to relocate. The submission on behalf of the father was that, although the trial Judge referred to all the factors relevant to the comparative evaluation which he was called upon to make, his Honour in fact failed to do so. It was submitted that, whilst not requiring the mother to provide “compelling reasons” for relocating, the trial Judge had imposed upon the father the onus of establishing that the mother should not be permitted to relocate.
Having reviewed the evidence, and identifying factors which supported the rival positions of the parties, the trial Judge said:
“In this regard, all of these factors weighed together with the desire of the mother to go, and the desire of the father not to go, and the desire of the father that the children not go with their mother, brings back the question of which of the factors, if any, should represent a final and determining consideration in the situation where many factors need to be balanced”.
It was submitted that his Honour commenced to misdirect himself as to the test to be applied by seeking to ascertain “...which of the factors, if any, should represent a final and determining consideration” (our emphasis). It was submitted that the statement by his Honour that:
“It (the decision) has to be made in the context of the best interests of the children, but not disregarding the rights or interests of the parents. It is significant in this regard that the factor which really stands out as being the most significant, for consideration (and certainly the factor to which most attention is drawn by all relevant parties) was the likelihood that if there were to be a move, there would be a diminution in the children’s relationship with their father”.
was not inconsistent with the correct test to be applied following the decision of the High Court in AMS v. AIF (supra) but that a different, and erroneous, test had been applied.
Counsel submitted that, to the extent that his Honour’s identification of the factors, if any, which should “...represent a final and determining consideration” was justified, paragraph 84 left no room for doubt that the trial Judge regarded the “...diminution of the children’s relationship with their father” as “...the most significant, for consideration”. It was asserted, on behalf of the father, that the trial Judge’s conclusion:
“In my opinion, in this matter, there is a difficulty in saying with any confidence, that there are any substantial reasons opposed to the move to “Pr......”, except for the fact that this will involve a diminution of the children’s relationship with their father. The balance is by any measure, a fine one. But in my opinion the balance is resolved in favour of the decision that the children should be permitted to go to “Pr......” with their mother”.
could not be reconciled with the statements contained in paragraph 84 set out above. It was thus submitted that, to the extent that the trial Judge purported to apply an approach which focused on the best interests of the children, he had not done so on a reading of his own findings and observations appearing at paragraph 84. Paragraph 85 did not provide a nexus between paragraphs 84 and 86 nor did it provide a transition from the statements in paragraph 84 to the conclusion appearing at paragraph 86.
So far as paragraph 86 was concerned, it was submitted on behalf of the father that the trial Judge had, in effect, imposed upon the father the obligation to demonstrate reasons why, on balance, the mother ought not be permitted to take the children to “Pr......” to live, such test being inconsistent with statements of the Justices of the High Court in AMS v AIF (supra). Counsel submitted that such approach moved the focus of inquiry away from the best interests of the children to issues of entitlement, or otherwise, as between the parties, a consequence of that approach being that the matter regarded as “...most significant, for consideration” in paragraph 84 was regarded in paragraph 86 as a “...factor” outweighed by the preponderance of “...substantial reasons” for permitting the mother to go to “Pr......”. Regarding the “...diminution of the children’s relationship with their father”, as the only “...substantial” reason against allowing the mother to relocate with the children was submitted to be inconsistent with the trial Judge’s findings and an approach which, in effect, obliged the father to provide compelling reasons for not allowing the move.
Notwithstanding his opposition to the granting of leave to amend the Grounds of Appeal, counsel for the mother made detailed submissions with respect to the added ground. It was submitted on behalf of the mother that the decision of the High Court in AMS v AIF (supra) did not alter the law or that, if it did, it did not do so to the detriment of the mother’s case. It was submitted that the trial Judge’s statements, in paragraph 86 of his reasons, were consistent with the decision and the greater recognition given by the High Court in AMS v AIF (supra) to the mother’s entitlement to freedom of movement than was the case in the decision of the Full Court in B v B (supra). It was asserted that the submissions, on behalf of the father, involved little more than semantics in relation to the true construction of paragraph 86 of the trial Judge’s judgment and that, when one looked at earlier passages in the judgment, it was apparent that the trial Judge was taking into account all relevant aspects of the two alternate proposals. It was thus submitted that the trial Judge’s approach in paragraph 86 was not inconsistent with looking at the matter in terms of the best interests of the children but rather a realistic recognition of the reality that those interests did not exist in a vacuum and that there were many aspects of the interests of the children which related to the parties themselves, including the mother’s entitlement to freedom of movement within the Commonwealth of Australia as the unchallenged custodial, or residential, parent.
In AMS v AIF (supra) the judgment of Gleeson CJ, McHugh and Gummow JJ provides no specific guidance as to the test applicable in relocation cases although their Honours stated (page 769):
“...the State Family Court erroneously exercised its discretion by requiring the demonstration by the mother of ‘compelling reasons’ to the contrary of the proposition that the welfare of the child would be better promoted by him continuing to reside in the metropolitan of Perth. The Full Court should have intervened on this ground and, for that reason, the mother’s appeal to this court should be allowed”.
In her judgment Gaudron J (page 779) stated:
‘The mother’s case that she should have custody regardless of where she lived was one that required a consideration of the competing claims of each parent and the arrangements that each could make for J to maintain contact with the other. In this last regard, the mother proposed that, on her return to Darwin, the father should have very considerable access during school holidays and, had those proposals been examined, it may have been ascertained that they were as much in the interests of the child, particularly as he grew older, as those which would obtain if he stayed in Perth.
The mother’s case was one which permitted of two possible outcomes. The first was that she should have custody regardless of where she lived. The second was that she should have custody only for so long as she resided in Perth. Each of those possibilities had to be assessed against the alternative for which the father contended, namely, that the child live with him and his new family. A decision then had to be made as to which of those possibilities was preferable, the welfare of J being the paramount but not the only consideration to which regard was to be had in making that decision”.
In the present case, there was no issue as to the mother continuing to have the residence of the two children but whether such residence would continue at “Pa......” or be at “Pr......”.
In a portion of his judgment headed “Relocation of a child’s residence – general principles”, Kirby J suggested a series of “...general propositions from the authorities” (page 791 paragraph 141). Relevant for present purposes, his Honour noted that “...the facts of each case are unique” and that the facts “...call forth a ‘careful and delicate analysis’ which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approach” (page 791 paragraph 142).
His Honour considered (page 792 paragraph 144) that:
“...a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is a conflict between these considerations, priority must be accorded to the child’s welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule”.
Freedom of movement was discussed by Kirby J (page 792 paragraph 145). His Honour noted that our society:
“...attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child”.
His Honour suggested (page 793 paragraph 145) that:
“Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected”.
Albeit referred to by Kirby J in relation to the distinction between relocation overseas and relocation within the Commonwealth of Australia, his Honour’s observations in relation to “...the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community” (page 794 paragraph 147) clearly remain potentially relevant matters for consideration in relocation cases such as the present.
Kirby J discussed (page 794 paragraph 148), as a relevant factor, the reality that the very fact of disturbing residence arrangements, particularly if likely to alter contact with the other parent,:
“...will present a consideration that must be taken into account in judging whether new arrangements should be approved. If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child. Because the child’s access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times”.
Kirby J’s discussion of general principles concluded (page 795 paragraph 150) with a caveat to appeal courts:
“Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial”.
Such caution was particularly required “...given the large element of judgment, discretion and intuition which is involved” on the part of the trial Judge.
In a passage upon which counsel for the father placed considerable reliance, Kirby J said (page 805 paragraph 188):
“To treat the determination of the residence of the child, and the connected issue of custody, as dependent upon the giving or withholding of ‘permission’ to a parent to relocate his or her residence may divert attention from the child’s welfare, to the competing needs and demands of the parents in conflict”.
In addition, his Honour suggested (page 806 paragraph 191) that:
“Parents enjoy as much freedom as is compatible with their obligations with regard to the child. The freedom continues, including with respect to their entitlement to live where they choose. At least in the case of a proposed relocation within Australia, the need to demonstrate ‘compelling reasons’ imposes on a custodial parent an unreasonable inhibition. It effectively ties that parent to an obligation of physical proximity to a person with whom, by definition, the personal relationship which gave rise to the birth of the child has finished or at least significantly altered”.
His Honour reiterated that the best interests of the child, though paramount, are not the sole consideration.
As did the other members of the Court, Kirby J rejected the requirement that a custodial parent, intending to relocate, be obliged to show “...compelling reasons” (page 807 paragraph 195).
The test advanced by Kirby J (page 807 paragraph 196) required consideration of:
“...the acceptability of the alternate proposals which she (the party proposing to relocate) advanced for different, but longer, periods of contact between the child and the father. If this was not judged satisfactory, it possibly necessitated consideration of whether a different regime, devised by the Family Court, would adequately fulfil the child’s rights to regular contact with his father although no longer living permanently in close physical proximity. If such arrangements were still judged insufficient for the welfare of the child, that might necessitate, despite the life-long role of the mother as the primary care-giver, reconsideration of the entire issue of custody (or residence) and whether some joint arrangement was not appropriate”.
Hayne J, having agreed with Gleeson CJ, McHugh and Gummow JJ, said of the nature of the inquiry which courts, determining cases involving relocation issues, should undertake (page 812 paragraph 218):
“To translate the question into this form – has the mother shown a good, or good enough, reason for wanting to move - focuses attention upon the reasons and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child ........ That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer ........ The circumstances to be considered would include not only the fact of relocation but also all of the consequences that would follow - separation from the non‑custodial parent, the creation of a new family in which the child would thereafter live (with all the concomitant advantages and disadvantages), the better economic position of the custodial parent, and so on. In that sense, inquiring about why the mother wished to move was relevant but it was only one inquiry among the many that go into deciding the ultimate question. The complexity (and difficulty) of the inquiries required by that question is well illustrated (in a different legislative context) by the decision of the Full Court of the Family Court of Australia in B and B: Family Law Reform Act 1995. But as that decision rightly shows, the inquiries are directed to ascertaining what is in the best interests of the child”.
Whether or not residence be in issue within the context of relocation, “...the alternative proposals” required consideration.
It is apparent, from reading the judgments of Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ, that consideration of the alternatives advanced by the parties to a relocation case is undertaken against the background of the constitutional guarantee of freedom which can only be impinged upon when necessary to do so in the public interest, and then, only to the extent reasonably required to achieve the object of legislation which itself is within power (see Cole v Whitfield (1988) 165 CLR 360 Cunliffe v The Commonwealth (1994) 182 CLR 272). A restraint upon freedom of movement, in the best interests of a child’s welfare in appropriate cases did not offend s.92 of the Commonwealth Constitution
We deduced from the passages to which we have referred that, in deciding a relocation case such as the present, the trial Judge was obliged to consider the “...competing claims”, or “...alternate proposals” and to do so on the basis that the ultimate question was the ascertainment of what was in the best interests of the child. So doing involved, in the present case, a consideration of the various matters identified by the trial Judge in the course of his reasons for judgment.
We have previously referred to paragraph 80 of the trial Judge’s reasons. Having referred to many aspects of the competing proposals, his Honour suggested that such factors were to be weighed together “...with the desire of the mother to go, and the desire of the father not to go, and the desire of the father that the children not go with their mother”, suggesting that the question became “...which of the factors, if any, should represent a final and determining (our emphasis) consideration in the situation where many factors need to be balanced”. To the extent that the “desire” of either party, in relation to relocating or not relocating, was a reference to reasons or motives, those matters could not properly have become the focus of inquiry or “...represent a final and determining consideration”. The “...final and determining consideration” was what was in the best interests of the children. We do not perceive this to be a single issue, but rather the outcome of considering all relevant aspects of the “...competing claims” or “...alternate proposals” and thereby concluding which was, in all the circumstances, more conducive to the best interests of the children.
At paragraph 84 of his reasons, the trial Judge identified as the “...most significant” factor for consideration the “...likelihood that if there were to be a move, there would be a diminution in the children’s relationship with their father”. It was incumbent upon the trial Judge to consider all relevant matters in order to determine whether, on balance, relocation was, or was not, in the best interests of the children. Beyond identifying the “...most significant factor for consideration”, the trial Judge did not discuss the comparative significance, or otherwise, of the various facts and circumstances correctly identified and described by him in the earlier passages of his judgment to which we have referred. It is tempting to infer that his Honour was, in paragraph 84, suggesting that “...diminution in the children’s relationship with their father” was the decisive or “...determining” factor. Such an interpretation is not open having regard to the terms of paragraph 86 of his Honour’s reasons.
Paragraph 86, where the trial Judge reached his conclusion in relation to the relocation issue, is not expressed in terms of a comparative analysis of the alternative proposals. It is to be remembered that the trial Judge had, subject to limited arguments about the weight appropriate to be given to certain evidence, correctly identified all matters relevant to the evaluation which he was obliged to undertake. In our view, the statement that:
“...there is a difficulty in saying with any confidence, that there are any substantial reasons opposed to the move to “Pr......”, except for the fact that this will involve a diminution of the child’s relationship with the father. ........the balance is resolved in favour of the decision that the children should be permitted to go to “Pr......” with their mother”.
suggests that his Honour determined the relocation issue on the basis of his assessment of whether or not the mother should be allowed to relocate to “Pr......” with the children, rather than whether, having considered all of the evidence as to the implications for the children in either eventuality as he was required to do, doing so was in the best interests of the children. In approaching the matter on the basis of the preponderance of “...substantial reasons” for permitting, rather than refusing, relocation, the trial Judge misdirected himself in the manner described by Kirby J (page 805 paragraph 188) and Hayne J (page 812 paragraphs 218 and 219).
The conclusion expressed by the trial Judge in paragraph 86 suggests that whilst, in accordance with authority, rejecting any suggestion that it was for the mother to provide compelling reasons in support of being allowed to relocate the children, the trial Judge has instead imposed on the father an obligation to provide compelling reasons, or at least a preponderance of reasons, for not permitting the mother to relocate the children. By adopting the approach which he did, the trial Judge necessarily failed to have regard to the evidence before him as to the implications for the children of allowing, or refusing, the mother permission to relocate. So doing turned the case into “...an inquiry about whether the mother should be permitted to move. By turning it into an inquiry about whether she should be permitted to move, attention was distracted (wrongly) from what would promote the welfare of the child” as Hayne J said in AMS v. AIF (paragraph 219, page 812). As a consequence, the trial Judge’s decision was not based on what was in the best interests of the children.
In the circumstances, this Court must allow the father’s appeal and order that there be a re-hearing. It has not been suggested by either counsel that, if the appeal were successful, any other course would be properly open to this Court.
Having regard to the Court’s conclusions in relation to Ground 4, it is unnecessary to consider Ground 2. Indeed, as there will be a re-hearing, it is preferable if this Court refrain from commenting on the evidence before the trial Judge.
COSTS
It was submitted on behalf of the father that, if the appeal was successful, the mother should be ordered to pay his costs of and incidental to the appeal. In the alternative, if the appeal was allowed on a question of law, he submitted that it would be appropriate to grant to him a certificate pursuant to s.9 of the Federal Proceedings (Costs) Act 1981.
On behalf of the mother, it was submitted that, if the appeal was allowed, there should be no order as to costs and, if allowed on a question of law, that it would be appropriate to grant to her a certificate pursuant to s.6 of the Federal Proceedings (Costs) Act 1981.
We note that the mother was in receipt of a grant of legal aid but not the father. In coming to our decision, we have had regard to the financial circumstances of the parties as outlined and to our conclusion. We do not, however, consider that the circumstances justify the making of an order for costs against the mother. We consider that it is appropriate, in the whole of the circumstances, to grant the father a costs certificate but not to the mother.
THE COURT ORDERS:
That the appeal be allowed.
That Orders 1, 3 and 4 made on 25 August 1999 be set aside.
That the mother’s amended application filed 30 June 1999 and the amended response of the father filed 16 August 1999 be remitted to the Canberra Registry of the Court for hearing before a single Judge of the Court other than Faulks J.
That the appellant father be granted a certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981, 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 father in respect of the costs incurred by the appellant father in relation to the appeal.
I certify that the preceding 69 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.
Associate
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