STAFFORD & BUCHANAN - [2014] FamCAFC 102

FAMILY COURT OF AUSTRALIA

STAFFORD & BUCHANAN

[2014] FamCAFC 102

FAMILY LAW – APPEAL – INTERIM – Children – Best interests – Where the mother unilaterally relocates with the children – where there are existing orders – where the parties had equal shared parental responsibility – where the father had limited involvement in the children’s lives for the period leading up to relocation – whether the trial judge failed to consider the best interests of the children – where the orders were interim – where the matter should proceed to final hearing – where there was limited evidence before the trial judge – where none of the evidence is tested – whether the trial judge placed adequate weight on the circumstances of the mother – where the appeal is dismissed.

Family Law Act 1975 (Cth)

APPELLANT:

Ms Stafford

RESPONDENT:

Mr Buchanan

FILE NUMBER:

SYC

1076

2010

APPEAL NUMBER:

2014

DATE DELIVERED:

19 June 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Ainslie-Wallace & Watts JJ

HEARING DATE:

17 June 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

2 April 2014

LOWER COURT MNC:

[2014] FCCA 939

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Johnston

SOLICITOR FOR THE APPELLANT:

Couper Geysen Family & Animal Law

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

Orders Made on 17 June 2014

The Amended Application in an Appeal filed on 12 June 2014 be dismissed.
The Appeal against the orders of Judge Donald made on 2 April 2014 be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stafford & Buchanan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 50 of 2010
File Number: SYC 1075 of 2014

Ms Stafford

Appellant

And

Mr Buchanan

Respondent

REASONS FOR JUDGMENT

Ms Stafford (“the mother”) appeals against orders made by Judge Donald on 2 April 2014. On that day his Honour made orders that, inter alia, required the mother to cause the two children of her relationship with Mr Buchanan (“the father”) to return to live in Sydney from where the mother unilaterally moved them on or about 14 March 2014 to live with her in Brisbane. The children were then aged eight and five. The mother did not tell the father of her proposed move with the children to Brisbane nor did she seek an order from the court that she be permitted to move the residence of the children to Brisbane.
The father opposed the appeal and sought to maintain the trial judge’s orders.
At the conclusion of the appeal hearing, conscious that on 7 July 2014 the matter is to be before the Federal Circuit Court judge in whose docket the matter is listed, we made orders dismissing the appeal. We indicated that we would deliver our reasons later. These are those reasons.
Shortly after the mother and children moved to Brisbane the father brought an application in the Federal Circuit Court that the mother bring the children back to live in Sydney within a 20 kilometre of the school they previously attended.
In December 2010, by consent of the parties, orders were made that the parties have equal shared parental responsibility for the two children and that the children spend time with the father. It was uncontentious that since about December 2011 the father had not spent time with the children, nor was it contentious that at least so far as the older child was concerned, he had been distressed when he encountered the father. At the time of the hearing before the primary judge, the father’s only connection to the children was through their school passing information to him about them. Earlier attempts by him to pass gifts and messages to them through the school had been opposed by the mother.
The matter was determined on an interim basis by his Honour relying on the applications and materials filed by the parties.
His Honour’s articulation of the law and his application of it was not challenged in the appeal, rather the grounds of appeal asserted that the primary judge made findings of fact which were unsupported by the evidence

(Ground 1); failed to give sufficient focus to the children’s best interests (Ground 2); challenged the weight attached by his Honour to various matters (Grounds 3, 4 and 5).
As to Ground 1, the written submissions of counsel for the mother set out the findings said to have been made by the trial judge and which are impugned in this ground. It is unnecessary to traverse the particular findings to dispose of this ground. We do not accept that his Honour made the asserted findings. Indeed a reading of his Honour’s reasons makes it clear that he was well aware of the constraints imposed on what findings can properly be made in the context of an interim hearing in which none of the evidence is tested [9]. Further, in a number of places, his Honour recognised that significant issues were raised by each party which would need to be resolved after a final hearing, some with the assistance of expert evidence (see for example [12]).
This ground was not made out.
In articulating the challenge to his Honour’s decision found in Ground 2, the written submissions contend that the primary judge’s determination of the matter was based not on the best interests of the children but on a consideration of “…any strategic advantage that the respective parties may gain or lose in the proceedings…”. We do not accept this submission. It is clear that his Honour was astute to the difficulties in the relationship between the children and the father. Part of his consideration was that if the children returned to Sydney, such avenue as the father had to receive information about them would not be available and, further, that any opportunity to address the difficulties would be enhanced. He said:
17. But what is clear, as I’ve indicated already, is that the father has attempted to maintain some contact with the children, or at least their affairs, by involvement with the children’s school, and speaking with staff at that school. If the mother was to remain with the children in the Brisbane area, then this opportunity would be lost. If the children are to return to live in Sydney, then, subject to Judge Harman’s decisions, some sort of therapy could commence in which the relationship would be addressed. The father could continue, at least, to involve himself in the children’s school.
His Honour then accepted the father’s concern that if the children remained in Brisbane and settled into their new schools and environment, with the workload of the Federal Circuit Court it could be “a significant time before the question of the location of the residence of the children is again addressed.” [18].
By this passage we understand his Honour to have meant that to allow the children to become settled in Brisbane before a trial could remove options, particularly the option of trying to re-establish a relationship between the father and the children which a judge may find to be in their best interests, especially leading up to a hearing. Alternately, to allow them to become settled and then, after trial it be decided that they should return to Sydney might cause unnecessary disruption and distress to the children.
In our view, his Honour’s comments need to be read through the prism of what might ultimately be found to be in the children’s best interests.
To the extent that this paragraph could be interpreted as his Honour considering any “strategic advantage” to any party, an interpretation which strains the ordinary meaning of the paragraph, it could not possibly be given that interpretation when read in the context of his Honour’s reasons as a whole.
We therefore reject the contention that his Honour failed to direct the focus of his determination to the children’s best interests. This ground is not made out.
Grounds 3 to 5 concern the weight or importance given to issues by his Honour which were decided by him. The written submissions assert that the primary judge “failed to consider” certain matters in coming to his conclusion. In fact those matters were considered by the judge. Challenges to the weight attributed to evidence by a primary judge are difficult and the bar to success high.
His Honour considered the evidence to which these grounds are directed. He decided the matter taking them into account. The decision did not favour the conclusion sought by the mother. Nothing was raised that demonstrated that his consideration was erroneous or his discretion miscarried.
Thus these grounds are not made out.
The appeal was therefore dismissed.

Application to adduce further evidence in the appeal.

On 12 June 2014, the father filed an application seeking to adduce further evidence in the appeal. After discussion with the bench, the father’s lawyer, sensibly, did not press the application and it was therefore dismissed.

Costs

We sought submissions from both parties as to the costs of the appeal. The father sought an order for costs against the mother. Given the circumstances of the case and the Mother’s obligation to return the children to Sydney, we decided that there were no circumstances justifying a departure from the position in s 117(1) of the Family Law Act1975 (Cth) that each party bear his or her own costs. We therefore made no order as to costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ainslie-Wallace & Watts JJ) delivered on 19 June 2014.

Associate:

Date: 19 June 2014