SMG v RAM - [1999] FamCA 1845

[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:  8^th day of December 1999
JUDGMENT:           24^th 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SMG v RAM

Details

AGLC: SMG v RAM [1999] FamCA 1845
Case: [1999] FamCA 1845
Decision Date: 24 December 1999

CaseChat Overview and Summary

This appeal concerned the relocation of children to a new home. The father appealed a decision of the trial judge that permitted the mother to relocate with the children. The appeal was heard by Ellis, Coleman, and Watt JJ.

The central legal issues before the Full Court were whether the trial judge had misdirected himself on the applicable legal test for relocation cases, particularly concerning the weight to be given to the diminution of the children's relationship with their father, and whether the trial judge had improperly shifted the onus onto the father to demonstrate why the relocation should not be permitted. The Court also considered whether the trial judge's findings were consistent with the principles established in *AMS v AIF*.

The Full Court found that the trial judge had not misdirected himself. While the trial judge identified the diminution of the children's relationship with their father as a significant factor, the Court held that this did not mean it was the sole or determining consideration. The mother's submissions, supported by the Full Court's interpretation of *AMS v AIF*, highlighted the importance of the custodial parent's freedom of movement. The Court concluded that the trial judge had considered all relevant factors for both proposed living arrangements and that his approach in paragraph 86 of his reasons was a realistic recognition of the children's best interests, which were intertwined with the parties' circumstances, including the mother's entitlement to freedom of movement. The Court also granted the father leave to amend his grounds of appeal, noting that the additional ground did not introduce new matters that would prejudice the mother.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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: His Honour found that: Ultimately, the trial Judge concluded: The Notice of Appeal, filed on behalf of the father, raised three Grounds, which provided: 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.

Ratio Decidendi

Legal Principle Established

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: 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: 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.