Starr & Duggan
[2009] FamCAFC 115
•8 July 2009
FAMILY COURT OF AUSTRALIA
| STARR & DUGGAN | [2009] FamCAFC 115 |
| FAMILY LAW – APPEAL – PARENTING – INTERNATIONAL RELOCATION – Whether Federal Magistrate fell into appealable error in his approach to determining the application for parenting orders – Where Federal Magistrate announced determination that spending ‘substantial and significant time’ with the father was in the child’s best interest at the commencement of his reasons – Suggested approach for consideration of an application for parenting orders involving international relocation explained in McCall & Cark [2009] FamCAFC 92 – Where Federal Magistrate carefully weighed all relevant evidence – Where Federal Magistrate considered all relevant s 60CC(2) and s 60CC(3) factors before reaching conclusions on appropriate parenting orders– No appealable error established. FAMILY LAW – APPEAL – PARENTING – INTERNATIONAL RELOCATION – Whether Federal Magistrate erred in finding that the very young child’s relationship with the father would be adversely affected by the proposed international relocation – Where the excellent relationship of the child and father at the time of the hearing was not in dispute – Where there was no dispute that it was in the child’s best interests to have a meaningful relationship with both parents – Where independent children’s lawyer not appointed – Where no expert report prepared – Where it would have been appropriate / preferable for the Federal Magistrate to have had the benefit of expert evidence of the type referred to in McCall & Cark [2009] FamCAFC 92 – Where Federal Magistrate’s determination not directed to clinical attachment – No appealable error established. FAMILY LAW – APPEAL – PARENTING – INTERNATIONAL RELOCATION – Whether Federal Magistrate erred in weight given to mother’s happiness and financial security – No appealable error established. FAMILY LAW - COSTS – Where appeal brought bona fide – Where mother’s financial position considered – No order as to costs. |
| Family Law Act 1975 (Cth) – s 60B, s 60CA, s 60CC, s 61DA, s 65DAA, s117(1) |
| Goode & Goode (2006) FLC 93-286 Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 McCall & Clark [2009] FamCAFC 92 |
| APPELLANT: | Ms Starr |
| RESPONDENT: | Mr Duggan |
| FILE NUMBER: | BRC | 2947 | of | 2007 |
| APPEAL NUMBER: | NA | 25 | of | 2008 |
DATE DELIVERED: | 8 July 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Boland, Thackray & Watts JJ |
| HEARING DATE: | 11 August 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 26 February 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 187 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Page SC |
| SOLICITOR FOR THE APPELLANT: | Georgeson & Company |
| SOLICITOR FOR THE RESPONDENT: | Mr Cooper, Barry & Nilsson Lawyers |
Orders
That the appeal against the orders of Federal Magistrate Howard made 26 February 2008 is dismissed.
No order as to costs.
By consent
The orders made 26 February 2008 be varied to provide the following additional order:
11A. In the event the child is spending time with the father on Mother’s Day that such time be suspended, and that the child spend a period of not less than four hours with the mother on Mother’s Day.
IT IS NOTED that publication of this judgment under the pseudonym Starr & Duggan 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 BRISBANE |
Appeal Number: NA 25 of 2008
File Number: BRC 2947 of 2007
| Ms Starr |
Appellant
And
| Mr Duggan |
Respondent
REASONS FOR JUDGMENT
Introduction
C, who was born in January 2006, is the only child of Ms Starr and Mr Duggan. The mother, father and child live in Brisbane. The father applied to the Federal Magistrates Court for orders increasing the time the child should spend with him. The mother sought orders that would enable her to relocate with the child to live in New Zealand. Federal Magistrate Howard rejected the mother’s relocation proposal. At the date of hearing before the Federal Magistrate the child was nearly 22 months old. This is the mother’s appeal against the Federal Magistrate’s orders made 26 February 2008.
The mother’s senior counsel argued the appeal under four broad topics, although the main thrust of his submissions was directed to the first two topics. He submitted the learned Federal Magistrate fell into appealable error:
· in his approach to the parenting orders by determining under s 65DAA of the Family Law Act 1975 (Cth) (“the Act”) that it was in the best interests of the child to spend substantial and significant time with the father prior to a consideration of the factors in s 60CC relevant to the child’s best interests;
· by finding without objective or expert evidence that the child’s relationship with the father would be adversely affected if the child moved to New Zealand;
· in failing to give sufficient weight to the mother’s role as the child’s primary caregiver and the impact on her financial circumstances and happiness if unable to live in New Zealand; and
· in making orders which had the effect that the mother was precluded from having a full weekend with the child on any weekend.
In developing his arguments in respect of the first identified topic above, the mother’s senior counsel submitted that the Federal Magistrate had not followed the approach outlined by the Full Court in Taylor & Barker (2007) FLC 93‑345. Senior counsel for the mother, although not submitting that we should overrule Taylor & Barker, advanced a different interpretation of s 65DAA to that which he contended was the interpretation of the section by Bryant CJ and Finn J (with whom on this topic Faulks DCJ agreed).
At the time we heard this appeal we were aware that another Full Court had reserved its decision in an international relocation case also involving a small child and which raised similar issues and arguments to those raised in this appeal. As the arguments advanced in both this appeal and the reserved appeal were substantially identical, no issues of procedural fairness arose, and we did not consider it necessary to re-open this appeal in the light of the now published decision in McCall & Clark [2009] FamCAFC 92.
Background
The background appears in the Federal Magistrate’s reasons, and is not controversial.
The child was nearly 26 months old when the orders, which are challenged in this appeal, were made.
The father was born in England in 1964 and currently is 44 years of age.
The mother was born in [a small town in] New Zealand in 1976 and is currently 33 years of age.
The father lived in New Zealand between 1970 and 1984 and then moved to California for eight years. He returned to New Zealand in 1993 and came to Australia in July 1999.
The mother has lived in Australia since November 1998. The mother said that ever since she came to Australia it was her intention ultimately to return to New Zealand.
The child’s parents commenced to live together in Sydney in July 2004 and moved to Brisbane in December 2004. The father worked full time during the relationship and the mother ceased working during her pregnancy with the child and had not returned to paid employment after the child was born. The child was primarily cared for by his mother with significant involvement by his father. The father works as a service manager.
The child’s parents separated finally in March 2007.
At the date of the hearing before the Federal Magistrate, the child was spending time with his father, in accordance with consent orders made in June 2007, as follows:-
a)Each Tuesday from 5.30 pm to 7.00 pm;
b)Each alternate weekend from 5.30 pm Friday to 4.30 pm Sunday, or Monday if it was a public holiday; and
c)In the intervening week from 5.30 pm Thursday to 8.00 am Friday.
That is, the child was with his father overnight for three nights a fortnight and saw his father on seven different days in each fortnight.
The federal magistrate’s reasons
The Federal Magistrate, having set out some brief background material, explained he was guided in his approach to this “relocation” case by various passages from the judgment of the Full Court in Taylor & Barker which he cited at paragraph 9 saying:
I have had regard to the recent decision of the Full Court of the Family Court in Taylor & Barker [2007] FamCA 1246. At paragraphs 61 – 63 it was stated:-
‘61. It is also apposite to say in connection with Ground 5, that there was considerable discussion before us as to the appropriate order in which the presently relevant provisions of Part VII of the Act (notably s 60CC and s 65DA) should be considered by a Court in determining a case such as the present.
62. The legislation gives no express direction or guidance on this issue. However given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
63. We make it clear, however, that a failure to follow what we see as the logical approach would not lead to appealable error unless such error arose from a failure to give adequate reasons or to have regard to the matters which the legislation requires must be considered.
Later at paragraphs 81, 82 and 83 the Court stated:-
‘81. We acknowledge that his Honour’s approach to the application of s 65DAA, which we have endorsed, does require that the matters which the court has to consider under that section (being ‘equal time’ or ‘substantial and significant time’), must initially be considered without regard to any relocation proposal which might also be before the court. However any relocation proposal will then have to be balanced against the option of “equal time” or of “substantial and significant time” if either of those options has been found to be in the child’s best interests, with the outcome normally emerging from a consideration of whether such an arrangement was “reasonably practicable”.
82. We also acknowledge that this approach involves, at least initially, treating the relocation proposal as a separate and discrete matter, and that at least prior to the 2006 legislative amendments, the preferred approach was not to consider a relocation proposal separately from other proposals in relation to the child’s living arrangements.
83. However consistent with what the Full Court said in Goode, the options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way, would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.’ [Federal Magistrate’s emphasis]
At paragraph 10 of his reasons the Federal Magistrate said:
Having regard to paragraph 82 of the decision in Taylor I do not find it necessary (in this case) to refer to the earlier authorities concerning relocation cases… I find it more appropriate and convenient in this case to deal with s.65DAA of the Family Law Act at the outset. …
Having noted there was no dispute between the parties that the presumption of equal shared parental responsibility applied, his Honour, at paragraph 12, recorded that in his application the father sought an order that the child eventually live in an equal time arrangement with each parent, and that he proposed this should commence in 2010 when the child would commence his “prep” year at school.
Thereafter the Federal Magistrate set out s 65DAA(3) which section defines what is encompassed by the phrase “substantial and significant time”. His Honour then moved to record, albeit briefly, in paragraphs 16 and 17, that both parties had demonstrated good parenting skills, and each had a good relationship with the child. Howard FM then said at paragraph 18:
In my view, there should be an order that enables the child to spend substantial and significant time with both parents in accordance with s.65DAA(2) and s.65DAA(3). I am of the view that an order that the child spend substantial and significant time with both parents is in the best interests of the child in this case, [C]. My reasons for reaching these conclusions are (essentially) stated in paragraphs 16 and 17 herein and from paragraph 19 onwards herein. [our emphasis]
At paragraphs 19 to 24, the Federal Magistrate examined the mother’s proposal that she be permitted to relocate the child’s residence to New Zealand and to come to Australia “for 4-6 weeks each year”. His Honour found this proposal would “[e]ssentially, therefore, [have the effect that] the child will be ‘holidaying’ in Australia.” Having explained his understanding of what is encompassed in a child’s daily routine, including having a parent attend at pre-school and at special parent days, the Federal Magistrate concluded at paragraph 25:
This could not be achieved if the child is living in New Zealand and the father is in Australia. If the child lives in New Zealand and comes to spend time in Australia the child will essentially be “holidaying overseas” for 4 – 6 weeks per year while spending time with the father (as proposed by the mother). In my view, this proposal does not allow compliance with s.65DAA(3)(b)(i).
His Honour then turned his consideration to s 65DAA(3)(b)(ii) (which provision sets out the requirement that a parent spend time with a child on occasions and events which are of particular significance to the child) and found it was unlikely this requirement could be satisfied if the mother relocated to New Zealand. He said although the mother proposed an order which was predicated on the father being entitled to participate in all aspects of the child’s schooling, that this order “could not possibly be achieved if the father is in Australia and the mother and the child are in New Zealand”.
At this point in his reasons, his Honour set out the objects and the principles underpinning the provisions of Part VII of the Act (ss 60B(1) and (2)). He thereafter set out s 60CA (which section provides that a court, when deciding whether to make a particular parenting order, must regard the best interests of the child as the paramount consideration), and then set out the primary and additional considerations found in ss 60CC(2) and (3) of the Act.
The Federal Magistrate recorded there was no controversy that it was “to the child’s benefit to have a meaningful relationship with both of the child’s parents”. He also noted that violence or abuse were not relevant in this case.
In his consideration of the first primary consideration his Honour said at paragraph 36:
Having regard to the child’s age (he is currently only two years old) I do not consider that contact of the type proposed by the mother in this case would be conducive to the child having a meaningful relationship with the father. I will refer to this point again later in these Reasons.
Immediately thereafter the Federal Magistrate turned to the additional considerations (s 60CC(3)) and made findings that the child had a close and loving relationship with:
· his parents;
· the mother’s brother and his family (who live in Brisbane); and
· the father’s sister and her partner and his young cousins (who also live in Brisbane).
His Honour then recorded (paragraph 41) that he accepted the evidence of the father to the effect that the mother had many friends in Brisbane with young children.
Later, at paragraphs 43 to 49 of his reasons, the Federal Magistrate dealt with the effect of any changes in the child’s circumstances as required under s 60CC(3)(d). We will set out relevant parts of these paragraphs when dealing with the second challenge identified by us, namely that there was no evidence before the Federal Magistrate on which he could find what was necessary to maintain a meaningful relationship between the child and the father.
His Honour then turned to examine factors relevant to s 60CC(3)(e) (the practical difficulty and expense of the child spending time with and communicating with a parent). Significantly, his Honour recorded at paragraphs 50 to 53 of his reasons that neither party could themselves afford the costs associated with international travel, and (referring to the mother’s evidence) that even if the mother’s parents generously assisted with the provision of airfares for the child’s flights to Australia, the reality was the child would, during the next two years, only spend four periods each of one week with the father in Australia each year. His Honour took the opportunity at this point in his reasons to explain that the child was currently spending time with the father every week including overnight time.
The Federal Magistrate continued his examination of other relevant factors under s 60CC and found that the parties both had “an exemplary attitude” to the child and their actions demonstrated they were responsible parents.
The Federal Magistrate concluded his consideration of factors under s 60CC by referring to the mother’s assertion of isolation in Australia. Again, we will consider that aspect of his Honour’s reasons when dealing with the third identified challenge to Howard FM’s findings.
At paragraphs 67 and 68 of his reasons the Federal Magistrate set out his conclusions as follows:
67.It will be apparent that I have reached the conclusion that it is in the child’s best interests for the mother and the child to remain living in Brisbane, Australia.
68.I have already concluded that it is in the child’s best interests to spend substantial and significant time with both parents. The child will live with the mother and spend time with the father as per the orders stated at the front of these Reasons.
Relevant provisions of part vii of the act
The issues in this appeal were directed to specific provisions of Part VII of the Act which part is described in the heading to the Part as “Children”.
It will aid understanding of the relevant issues and the principles discussed below if we set out the sections of Part VII germane to this appeal:
Section 60CA
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60B(1) and (2)
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CC(2) and (3)
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
Section 61DA
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note 1: Behaviour of a parent that is relevant for paragraph (c) may also be taken into account in determining what parenting order the court should make in the best interests of the child. Subsection 60CC(3) provides for considerations that are taken into account in determining what is in the best interests of the child. These include:
(a) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (paragraph 60CC(3)(c));
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (paragraph 60CC(3)(i)).
Note 2: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
Approach to applications involving relocation of a child
The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.
The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-286.
In McCall & Clark the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.
The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).
Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility)Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.
However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:
· first make findings concerning the relevant s 60CC factors;
· then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and
· then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.
Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.
Asserted error in approach (grounds 5 and 6)
5.Gave improper emphasis to the need for substantial and significant time in terms of section 65DAA(2);
6.Failed to consider the proposal to relocate as a factor considered with others in section 60CC;
In both his written and oral submissions senior counsel for the mother submitted that the Federal Magistrate had adopted “a very unorthodox manner” in considering the provisions of the legislation, and there was an “inherent danger” in that approach. His criticism of the approach adopted by Howard FM was succinctly summarised by him in his oral submissions as follows:
Because, the child’s best interests must be determined and ascertained by a consideration of the objects and principles in section 60B, and the primary additional – and additional considerations in section 60CC. The learned Magistrate had not determined any of those issues at the time that he determined that substantial and significant contact was in the best interests of this child.
He further submitted that although the Federal Magistrate had, in paragraph 18 of his reasons, referred to his later consideration of matters under s 60CC, he had determined:
…the type of contact that was necessary, before he considered the questions under section 60CC(3), and then confined his concerns in relation to section 60CC(3) to those findings which he’d made…
In the course of oral argument we sought to ascertain whether or not grounds 5 and 6 were designed to raise an issue concerning the adequacy of the reasons for the decision that both parents should spend substantial and significant time with the child. Senior counsel for the mother responded by saying that in combination these grounds assert that adequate reasons for that decision were not given “in the first part of his Honour’s reasons” [emphasis added]. We apprehend that in making this submission senior counsel was referring to that part of the reasons preceding paragraph 18, where his Honour announced his decision that the child should spend substantial and significant time with both parents.
Discussion
Although we have previously set out paragraph 18 of the Federal Magistrate’s reasons, it aids understanding of the complaints raised by the mother if we now repeat that paragraph:
In my view, there should be an order that enables the child to spend substantial and significant time with both parents in accordance with s.65DAA(2) and s.65DAA(3). I am of the view that an order that the child spend substantial and significant time with both parents is in the best interests of the child in this case, [C]. My reasons for reaching these conclusions are (essentially) stated in paragraphs 16 and 17 herein and from paragraph 19 onwards herein.
We have already set out extensive portions of the Federal Magistrate’s discussion of matters he found to be of particular relevance when considering the primary and additional considerations (s 60CC(2) and s 60CC(3)). Those matters included the following findings:
·the child enjoyed close and loving relationships with both parents, the mother’s brother and his family, the father’s sister and her family and his young cousins (all of whom live in Brisbane);
·that the mother had many friends in Brisbane who have young children;
·both parents were willing and able to encourage and facilitate a close and continuing relationship between the child and the other parent;
·that if the mother relocated to New Zealand there would be a considerable reduction in the time the child could spend with the father and the likely effect of this was that the child’s relationship with the father would be adversely affected;
·that the mother had a close and loving relationship with the child which would continue whether she lived in Brisbane or New Zealand;
·there would be a substantial expense involved in organising for the child to spend time with the father if the mother relocated, and neither party had the financial capacity to pay the airfares between Australia and New Zealand;
·even if the mother’s parents paid airfares, on the mother’s proposal the child would spend only four periods each of one week per year with the father in the forthcoming two year period. If the mother remained in Brisbane there would be no practical difficulties or expense to the child maintaining a personal relationship with each parent;
·both parties were able to provide for the child’s emotional and intellectual needs, and both had an exemplary attitude towards the child;
·that as the child became older changes would be likely to be necessary to the proposed orders;
·that the mother appeared resilient, was likely to obtain employment in Brisbane, and had been visited regularly by her parents;
·that the mother would receive support from the paternal family, particularly the paternal grandmother, to assist with childcare if the mother obtained employment; and
·the father had agreed to pay the cost of childcare two days per week.
We have already referred to relevant authorities concerning parenting orders involving a relocation proposal determined after the commencement of the 2006 amendments. In our view the principles relevant to determine a parenting application involving relocation are not in doubt. It is also clear to us, as we explained briefly earlier in these reasons, that those authorities suggest a logical approach to consideration of the evidence in such cases.
In this case, the structure of the Federal Magistrate’s reasons had the potential to raise the concern of pre-determination of an outcome by dint of his conclusions on s 65DAA being set out at the commencement of his reasoning process. This concern could have been avoided if the Federal Magistrate had, as is suggested in Taylor & Barker at paragraph 62 (and endorsed in Sealey & Archer), first discussed the evidence and made findings of relevant matters (including those relating to the relocation proposal) under s 60CC, and then moved to consider the equal time and substantial and significant time scenarios mandated by s 65DAA, and weighed the advantages and disadvantages to the child of all proposals. But as is pointed out at paragraph 63 of Taylor & Barker the approach recommended in paragraph 62 of that judgment is a guideline. It is not a binding principle, and failure to follow the approach does not constitute appealable error (see Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91-712 per Mason & Deane JJ at 519 and Brennan J at 537).
On a fair, overall reading of Howard FM’s reasons we discern no appealable error. We are satisfied he carefully weighed all the relevant evidence, and after his consideration of relevant s 60CC(2) and s 60CC(3) factors, concluded it was in the best interests of this very small child that he spend substantial and significant time with the father on a regular basis, and that the proposal which best enabled this to occur was for the child to remain living with the mother in Brisbane. Accordingly we find no merit in this challenge to the Federal Magistrate’s reasons.
Asserted error in respect of meaningful relationship (grounds 8 and 11)
8.Made the finding that the child’s relationship with the father would be adversely affected by the appellant’s proposal when there was no evidence that supported such a finding;
11.In making the orders the trial magistrate erred in that he made findings as to the inability of the child to form a relationship with the husband in the absence of any evidence which supported such a finding.
In dealing with this challenge, we note that it is necessary to read the Federal Magistrate’s reasons as a whole to give proper consideration to matters raised under this topic.
At paragraph 17 of his reasons, the Federal Magistrate recorded the mother’s very proper and appropriate concession that the relationship between the father and child was “fantastic”.
At paragraph 34 Howard FM recorded that “[t]here is no dispute in this case that it is to the child’s benefit to have a meaningful relationship with both of the child’s parents”, and later at paragraph 36 of his reasons he said:
Having regard to the child’s age (he is currently only two years old) I do not consider that contact of the type proposed by the mother in this case would be conducive to the child having a meaningful relationship with the father. I will refer to this point again later in these Reasons.
However the real examination by the Federal Magistrate of the issue is found in his discussion under s 60CC(3)(d). There the Federal Magistrate referred to the submissions made by each party’s counsel at trial, which included a summary of the submissions of senior counsel for the mother as follows:
Mr Page of Senior Counsel appearing on behalf of the respondent mother touched on this issue when he submitted that there was no evidence to suggest that there is any difference between a ten year old child and (as in this case) a 22 month old child when a Court is considering a question of relocation.
His Honour agreed with submissions made by the father’s counsel at trial that the age of the child did make a difference, but significantly based his ultimate findings on the evidence of the parties which he set out in his reasons. That evidence included the mother’s evidence of the “fantastic” relationship of the child with the father, the child’s behaviour exhibited at change-over, the routine adopted by the father and his observations of the child, as well as the Federal Magistrate’s acceptance of the father’s evidence (recorded in paragraph 61 of his reasons) of the routine implemented by him to care for the child.
In McCall & Clark, a case where it was not in issue that the father did not, at the time of trial, have a meaningful relationship with the child, the Full Court referred to it being appropriate in a parenting application involving a proposal for international relocation concerning a young child for an independent children’s lawyer to be appointed, and for there to be expert evidence before a court hearing such an application by way of a Family Report or other expert evidence.
At paragraphs 125 and 126 of McCall & Clark the Full Court further said:
125.Although the parties did not call or seek to tender any evidence from an expert, the Federal Magistrate could have done so of his own volition (see s 69ZX(1)(d)). But in addition, s 69ZX(3) which is found in Division 12A (which division is concerned with the principles for conducting child related proceedings) provides as follows:
(3) The court may, in child‑related proceedings:
(a) receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
Note: This subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.
126.There is no suggestion in this case that the Federal Magistrate was referred to any matter which would fall within the purview of s 69ZX(3) to inform himself of matters relevant to establishing a meaningful relationship for a three year old child with a parent, where the child has experienced a significant period of time with little interaction with that parent. Neither party tendered to the Federal Magistrate any of the well recognised peer reviewed research on the establishment of primary and significant attachments of infants and young children, nor did the Federal Magistrate raise with the parties that he could have recourse to such material. Absent such evidence the Federal Magistrate could not have informed himself of such matters since the type of research required would not, in our view, fall within the term ‘common knowledge’ in s 144(1)(a) of the Evidence Act 1995 (Cth). It may have been admissible under s 144(1)(b) after giving the necessary notice prescribed in s 144(4) of that Act.
We accept this case was determined prior to the decision of the Full Court in McCall & Clark. It is not in doubt that it would have been appropriate in this case for the Federal Magistrate to have had the benefit of the type of evidence discussed in paragraphs 125 and 126, or at a minimum, the evidence discussed in paragraph 125, of McCall & Clark. The question we pose now is did the failure to have such expert evidence vitiate the Federal Magistrate’s findings about what was necessary for the child to have the benefit of a meaningful relationship with both his parents?
We were referred by senior counsel for the mother to the decision of Boland J exercising appellate jurisdiction of the Court in Morgan & Miles (2007) FLC 93-343. At paragraph 91, in the course of discussing the distance involved in a proposed relocation, her Honour said:
…In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.
His Honour did not have evidence which would demonstrate the frequency of time necessary to form or maintain an attachment (in the sense that term is understood by psychologists and other social scientists) between a toddler and a parent where a long distance relocation is proposed.
However, the evidence before his Honour was not in doubt. The child was spending periods every week with the father and otherwise living with the mother. He had an age appropriate settled routine in his parents’ care and was thriving. The mother acknowledged the relationship between the father and child was fantastic. Although not specifically mentioned by his Honour (and we do not suggest it was necessary for him to do so), in submissions the father’s counsel had pointed out that the young age of the child precluded effective telephone or other electronic contact. His Honour found, not surprisingly, that the mother’s proposal would have the effect of significantly reducing the periods of time the child spent with the father from a weekly basis (i.e. 52 weeks of the year) to four weeks per year.
We do not consider that his Honour fell into appealable error in determining, on the balance of probabilities, having regard to the evidence before him, that the likely effect of a significant reduction in regular and frequent time spent by the father with this child was that their relationship would be adversely affected, and that this was contrary to the child’s best interests. Again, we discern no appealable error by the Federal Magistrate in respect of this issue.
Weight grounds (grounds 1, 3 and 4)
1.Failed to consider the [sic] sufficiently or at all the happiness and contentment of the appellant as the mother of the child that would not exist if her relocation was not possible;
3.Made a finding that the mother had a resilient nature without indicating any finding that such nature would of itself overcome the reasons provided by her for her proposal to relocate;
4.Failed to consider that the proposal of the mother was that she move to a better life than that presently enjoyed by her and the child;
The thrust of these grounds is that the Federal Magistrate had not taken into account or had given insufficient weight to the deleterious impact on the mother in the event that she was not allowed to relocate to New Zealand, where she would be living near and have the support of her family.
In McCall & Clark (at paragraph 135) the Full Court made these observations which deal with the same type of contentions as are agitated in these grounds:
We accept that the availability of family support including such things as reliable quality child care, financial assistance, and emotional support for a parent and a child, can be very important considerations in any parenting case particularly one involving relocation, and are all matters to be balanced and weighed when considering competing proposals. But those factors, or a lack of them, do not automatically support a finding that a party’s parenting capacity will be compromised particularly when they may be counterbalanced, at least in part, by other benefits, including the sharing of day to day care of a child. …
Although the mother submitted in the present proceedings that she would benefit by financial assistance from her family including employment, and that they would also assist with childcare, she adduced no evidence of psychological or other impediments to her ability to care for the child if she was not permitted to relocate.
In this case the Federal Magistrate carefully weighed factors relevant to the mother’s happiness as part of his overall consideration of what was in the best interests of the child. He found on the evidence the mother would not be isolated – she had family and friends in Brisbane and her parents had visited Australia regularly. He also found the mother’s family was likely to pay for the mother and child to enjoy holidays in New Zealand each year. He further found the mother would be able to find employment in Brisbane, and the paternal grandmother could provide childcare (and the mother did not oppose that proposal). Further, he accepted the father’s evidence that he would provide financial assistance for the child’s day care costs.
These were all matters to be weighed and measured by his Honour. In considering the way he did so, it must be firmly kept in mind that this was a discretionary judgment. The limits on appellate interference in such cases are aptly described by Stephens J in Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 at 519 [emphasis added]:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
We discern no appealable error by his Honour in his assessment of any of the matters referred to in these grounds.
Asserted error regarding time on weekends and special days (grounds 2, 9 and 10)
2.Failed to consider the nature of and extent of any status quo represented by the existing arrangements for the care of the child;
9.That in ordering that time be spent with the father as he did in paragraph 3(b)(ii) of his orders, the trial magistrate erred in that such order was not sought by either party and was not seen to result in the mother having no uninterrupted weekend with the child
10.That in providing order for time spent with the father the trial magistrate erred in that he failed to provide for time spent on mother’s day or the mother’s birthday and provided no reciprocal right of the mother to travel overseas in the terms provided to the father.
The argument in respect of other “special days” can be disposed of shortly. While the Federal Magistrate made provision for the child to spend time with the father on Father’s Day he had not made a provision for the child to spend time with the mother on Mother’s Day or on her birthday. Further complaint is raised because it is asserted that Order 3(b)(iv)B of the Federal Magistrate’s orders “contemplates that the father be permitted to travel overseas with the child and is included clearly on the basis that the written consent of the mother would not be required”. (Mother’s submissions, p 8, paragraph 21)
Order 3(b)(iv)B provides as follows:
B.if the father is travelling overseas, an accurate itinerary detailing the travel plans with the child and a copy of the plane tickets associated with that travel.
No orders for Mother’s Day time or time on the mother’s birthday were sought by the mother. However, the father readily conceded that the child should spend time with mother on Mother’s Day, and we will by consent make such an order. His submissions were silent on the question of the mother’s birthday. If such an order is agreed between the parties it can easily be made by consent.
We do not accept the construction asserted by the mother’s solicitor in respect of Order 3(b)(iv)B. Order 8, which provides that the parties are restrained from removing the child from the Commonwealth of Australia “without the express written consent of both parties” [our emphasis], is clear in its terms. Order 3(b)(iv)B provides an obligation on the father, but not on the mother, to supply her, as the parent with whom the child lives, with written notification of an itinerary if the father proposes to take the child overseas.
The remaining argument focused on Order 3(b)(ii) of the Federal Magistrate’s orders. That order provides as follows:
(ii)in the intervening week from 5.30 pm Friday until 8.00 am Saturday;
Senior counsel for the mother submitted that neither party had asked for such an order and that it “seemed to come from nowhere because no party had applied for them, and it was inconsistent with [sic] the Federal Magistrate to impose an order”. He submitted the effect of the order was that the mother had “each weekend taken up, in part, by the contact in Brisbane. Whereas, in the existing regime, there was one weekend that was left free to each of the parties”.
It was agreed that, at the time of the trial, the interim consent orders provided the child spend each Thursday night with the father, as well as each alternate weekend from Friday evening until Sunday evening. Those orders were summarised by Howard FM in paragraph 8 of his reasons.
The father’s further amended application is contained in the appeal book. In paragraph 3 of the orders sought on a final basis the father sought orders to take effect from November 2007 to January 2008 which included each Friday night. He sought different orders from February 2008 when the child would be three years until he commenced school when he sought a week about shared care arrangement. There, he sought orders the child live with him each alternate weekend from Friday night until Sunday night, as well as every Tuesday night from 5.30 pm until Wednesday morning and every Thursday night until Friday morning. However in his outline of case document, which is contained in the appeal book the father set out the orders he ultimately sought at trial in paragraph 4 as follows:
4.That from February 2008 and until the child commences school (prep year)
(a)The [child, C] born [in] January 2006 live with the Mother.
(b)That the child spend time with the Father as agreed, but failing agreement as follows:
(i)Each alternate weekend from 5.30pm Friday until 5.00pm Sunday, or in the event that Monday is a public holiday 5.00pm Monday;
(ii)In the intervening week from 5.30pm Friday until 8.00am Saturday;
(iii)Every Tuesday from 5.30pm until 8.00am Wednesday morning;
(iv)For four weeks a year upon the father providing to the mother:-
1. Written notification of his intention to spend time with the child, not less than one month prior to the intended care period commencing;
2. If the Father is travelling overseas, an accurate itinerary detailing his departure and return with the child and a copy of the plane tickets associated with that travel. [our emphasis]
Ultimately the orders made by the Federal Magistrate were almost identical to those sought by the father in his outline of case document.
The Federal Magistrate’s discussion of appropriate orders if the child remained living in Brisbane was brief. At paragraph 62 of his reasons, he declined to make a shared parenting order which would not come into operation for two or three years. Having regard to the way the case was conducted, this is explicable. No lack of adequate reasons ground was agitated in respect of this challenge, rather the identified complaint was procedural fairness.
We are satisfied that this challenge to his Honour’s orders cannot be sustained. The orders sought were clearly set out in the father’s outline of case document. No issue of procedural fairness, as alleged in the submissions, is established. This ground has no substance.
Ground 7
7.Failed to have any or any proper regard to the evidence as to the proposals of the appellant for the time the child would spend with the respondent;
Although not formally abandoning ground 7, senior counsel for the mother did not address this ground in his oral submissions, and in his written submissions he cross-referenced his submissions to ground 6 (which ground is directed to the asserted error in approach adopted by the Federal Magistrate and which we have dealt with earlier in these reasons). In these circumstances it is unnecessary we say anything further about ground 7.
Costs
At the conclusion of the hearing we sought submissions from the parties’ legal representatives in respect of the costs of the appeal. Senior counsel for the mother submitted that if the appeal was dismissed there should be no departure from s 117(1), that is, both parties should bear their own costs of the appeal. Senior counsel submitted that the mother was in financial difficulties, her income being derived from Centrelink benefits and child support. The father’s solicitor sought that the mother pay the father’s costs of the appeal.
Although we have dismissed the appeal, we are satisfied that the appeal was brought bona fide, and was not without arguable grounds of appeal. We also take into account the mother’s financial position. The father’s evidence is that he is engaged in full-time employment as service manager of a successful company. He pays $128.00 per week by way of child support. In these circumstances we are satisfied there should be no order for costs.
I certify that the preceding seventy nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date:
197
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