Stringer & Nissen (No. 2)
[2019] FamCAFC 185
•23 October 2019
FAMILY COURT OF AUSTRALIA
| STRINGER & NISSEN (NO. 2) | [2019] FamCAFC 185 |
| FAMILY LAW – APPEAL – PARENTING – RELOCATION – Appeal against interim parenting orders as to with whom the child should live, contingent on where either party would reside – Failure to engage with evidence as to child’s best interests – Where the mother unilaterally decided to relocate with the child and the father unilaterally decided not to return the child to the mother’s care – Family violence – Where the approach to evidence of family violence was flawed – Challenges made out – Appeal allowed – Matter remitted for rehearing – Cost certificates granted for the appeal and rehearing. |
| Family Law Act 1975 (Cth) ss 60CC, 61DA and 65DAA Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8 and 9 |
| Morgan & Miles (2008) 38 Fam LR 275; [2007] FamCA 1230 Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100 Sampson & Hartnett(No 10) (2007) 38 Fam LR 315; [2007] FamCA 1365 |
| APPELLANT: | Ms Stringer |
| RESPONDENT: | Mr Nissen |
| FILE NUMBER: | SYC | 1926 | of | 2019 |
| APPEAL NUMBER: | EAA | 81 | of | 2019 |
| DATE DELIVERED: | 23 October 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 23 October 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 5 April 2019 |
| LOWER COURT MNC: | [2019] FCCA 1159 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Cotter-Moroz |
| SOLICITOR FOR THE APPELLANT: | John Hertz & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Apelbaum |
| SOLICITOR FOR THE RESPONDENT: | Legalworks Pty Ltd |
Orders
The appellant be granted leave to file and rely on the Further Amended Notice of Appeal received on 9 October 2019.
The appellant be granted leave to file and rely on the Amended Summary of Argument and List of Authorities received on 18 October 2019.
The respondent’s Application in an Appeal filed 9 October 2019 to adduce further evidence by the issue of a subpoena be dismissed.
The appeal against the Orders of Judge Morley made on 5 April 2019 is allowed.
Orders 1–13 and 15 of the Orders made on 5 April 2019 be set aside.
The matter be remitted for rehearing by a judge of the Federal Circuit Court other than Judge Morley.
There be no order as to costs.
The Court grants to the appellant costs certificates pursuant to ss 9 and 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the appellant in respect of the costs incurred by her in relation to the appeal and the new trial in the matter.
The Court grants to the respondent costs certificates pursuant to ss 6 and 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the respondent in respect of the costs incurred by him in relation to the appeal and the new trial in the matter.
IT IS FURTHER ORDERED THAT:
Pending further order, the appellant mother have sole parental responsibility for X, born in 2014 (“the child”).
Pending further order, the child live with the appellant mother.
Pending further order, the child spend time with the respondent father as agreed between the parties.
The respondent father will deliver the child to the appellant mother at 12 noon in the car park at B Street McDonalds, Town A on Sunday 27 October 2019.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stringer & Nissen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 81 of 2019
File Number: SYC 1926 of 2019
| Ms Stringer |
Appellant
and
| Mr Nissen |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
AINSLIE-WALLACE J
From his birth in 2014 until his father, Mr Nissen (“the father”), refused to return him on 21 March 2019, X (“the child”) had lived with his mother, Ms Stringer (“the mother”).
The parties commenced a relationship in 2013, married in 2014 and separated in 2015 when the child was about six months old. Following the separation, the child spent time with his father on an ad hoc but reasonably frequent basis. In 2015, the parties entered into a parenting plan and settled into an arrangement whereby the child spent time with the father from 4.00 pm each Tuesday until 4.00 pm Wednesday and each alternate weekend from 4.00 pm Friday until 4.00 pm Sunday. On a couple of occasions, the child stayed with the father for a week or more.
On 19 February 2019 the mother and the child moved from Town A where they had previously lived, to live in Sydney in accommodation provided to her by her brother.
At the time the mother moved she was living in rented accommodation in Town A and was in receipt of Centrelink benefits. She was not receiving child support payments. Her brother, who lives in Suburb C in Sydney, offered her the rent free use of a flat on his property.
The mother did not tell the father that she was leaving Town A, she said because she was afraid of what he might do to her or to the child and said that during the relationship the father had been aggressive to and abusive of her.
Nevertheless, after leaving Town A, on 13 March 2019, the parties made arrangements for the child to spend time with the father until 21 March 2019. At the conclusion of that time, the father refused to return the child to the mother.
Following the father’s refusal to return the child, the mother sought orders for the child’s return to her. In response, the father sought orders that the child return to live in Town A in which case the child would live with the mother and, if the mother declined to return to Town A then he would have the child live with him.
On 4 April 2019 the parent’s competing applications were heard by Judge Morley in the Federal Circuit Court who ordered that the parties have equal shared parental responsibility for the child and ordered that if the mother returns to live in Town A, then the child will live with her. If, however, the mother does not return to Town A then the child will live with the father. His Honour made orders for the time that the child would spend with either parent depending on with whom he was living.
The orders and reasons for judgment were delivered orally on 5 April 2019.
On 8 April 2019, the mother’s solicitor sought a settled copy of the reasons for judgment from the primary judge’s chambers. Despite that request, no reasons were forthcoming. The solicitor made further requests to the primary judge’s chambers on 18 and 23 April 2019 and, again on 28 May 2019. The reasons for judgment were apparently settled on 24 May 2019 and, somewhat curiously, posted to the parties rather than being delivered in a more expeditious way to the parties’ solicitors. Of course, through this process, the time for filing an appeal against his Honour’s orders had expired and the mother was required to seek an extension of time in which to bring the appeal.
However, I am at a loss to understand why those advising the mother did not move expeditiously to bring the application on for hearing and the reasons of Ryan J in relation to both the application for extension of time and in granting expedition set out regrettable and frankly avoidable delay.
Thus the appeal hearing is conducted against a context of the child having lived apart from his principal care giver for some seven months.
The appeal
Although 11 grounds of appeal are contained in the mother’s Further Amended Notice of Appeal, the challenges devolve to a number of broad themes.
However, before turning to the individual themes, it is helpful to set out his Honour’s findings to give them context.
There was no dispute that the mother had been the child’s primary carer at least since separation, which took place when the child was some six months old.
His Honour’s reasons are full of quotes from the authorities relevant to this issue before him, namely an interim hearing to determine where and with whom a child will live. Shortly then, the issue for his Honour was what was in the best interests of this child.
His Honour considered the calculus provided by s 60CC of the Family Law Act 1975 (Cth) (“the Act”) and accepted that the mother had been the child’s primary carer and that the child had a loving and meaningful relationship with her and the father. His Honour found that the mother had been able to provide for the child’s emotional and intellectual needs, a finding he was prepared to infer in relation to the father.
However, his Honour turned at [142] and following to consider the “attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents” (Emphasis removed) and said:
142.This may well be the principal consideration in this particular matter. Firstly, the mother made a unilateral decision to change [the child’s] place of residence from [Town A], where he had spent the whole of his life up to that time, to [Suburb C] in the Sydney area. The mother didn’t advise the father of that intended move until that move was actually happening on 19 February 2019…
His Honour then described the mother’s actions and said her actions:
143.… can be seen deliberately or without consideration as an attempt to, in effect, hold to ransom the Court’s decision now and in the future in that it attempts to make the relocation of [the child’s] place of residence a fait accompli and to argue backwards from there that her circumstances, financial and relationship-wise with her available relatives in both the Sydney area and the [Town A] area and financially, now make it impractical or impossible for her to reverse that relocation and return with [the child] to [Town A].
His Honour continued in this vein, but mentioned and apparently accepted the mother’s position that she had no intention of moving back to Town A nor had she any intention that the father would take the primary care of the child.
His Honour concluded:
150.The mother’s unilateral action in that regard cannot be condoned by the Court and in the fullness of time I will be making orders to deal with that in such a manner that the Court is not, in effect, held to ransom by the fait accompli.
True to his indication, his Honour said:
161.On the balance of the section 60CC considerations, and as I said at the time in paying particular attention to consideration (3)(i), the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents, and also in view of the comments that I made about the unilateral decision made by the mother to relocate without following the proper course, which is to consult with the father and seek some agreement, failing which she makes application to the Court rather than proposing to present the father, and, if action is taken by him, as it has been, the Court, with a fait accompli, I consider that it is best in the interests of [the child] that he continue to reside in the [Town A] area, and that he continue to so reside with his mother.
(Emphasis added)
Apparently conscious of the mother’s clear indication that she would not return to live in Town A, his Honour turned his attention to whether he would make a “coercive order” that is one which obliges a parent to live in a particular place. Although there was no application by the father for such an order, it would seem that his Honour sought to construct a set of circumstances which would give effect to his conclusion that it was in the best interests of the child to “continue to … reside with his mother” albeit in Town A (at [161]). In any event the primary judge concluded that he would not “coerce” the mother to return. But, instead ordered the child to live in Town A, finding that it was in this child’s best interests that he lived there (at [162] – [163]).
It is useful at this juncture to observe that having properly decided against a “coercive order” the question to be answered was whether it was in the best interests of the child to live with his mother in Sydney or with his father in Town A. That decision could only be answered by giving careful attention to the disadvantages and advantages of each. However, what could not be ignored was the effect on the child of his being deprived of his mother’s ongoing primary care. Sadly it was.
The mother’s unilateral decision
His Honour’s reasons make it clear that his denunciation of the unilateral move was the pivot to his ultimate finding that it was in the child’s best interests to live in Town A.
Although his Honour included in his reasons lengthy extracts from the authorities on this point, it seems that his Honour did not heed from those extracts the caution and caveats expressed to be quintessential to the determination of a child’s best interests in this context. For example while it is undoubted that the Court’s function is not fettered by a unilateral relocation by a parent, the determination of whether such a move is in a child’s best interests involves a careful consideration of all of the factors relevant to that determination (see Morgan & Miles (2008) 38 Fam LR 275 (“Morgan & Miles”) at [55]). Indeed, in his Honour’s reasons at [100], he quotes, again from Morgan & Miles at [74]:
74.The Act does not contain any presumption against a parenting order which involves relocation, nor any presumption in favour of a parent, with whom a child lives predominately at the time of the application obtain such an order. The Act provides for the careful exercise of a structured discretion to determine the appropriate order to be made.
His Honour did not engage in a careful analysis of the evidence as to what would be in the child’s best interests. For example his Honour did not consider the significance of the mother’s evidence that she did not tell the father she was going for fear of him, which set against her evidence of family violence and the extant Apprehended Domestic Violence Order was a telling matter. Indeed at [103] it appears that his Honour rejected the mother’s reasons for not telling the father through fear, finding instead, that she did not tell him because he speculated, perhaps she felt sure of his reaction.
Neither did his Honour take into account that this child had been in his mother’s primary care since separation nor did he turn his mind to the effect his orders might have on the child if that separation, already some seven months, was to continue until there was a final hearing easily more than a year hence. Counsel for the father asserted that despite there being no findings about the effect of separation of the child from his primary carer, his Honour was “acutely aware” of this most important matter. I disagree. Even parsing the selected paragraphs of the reasons as counsel invited, I see no consideration of this by the primary judge. It is to be remembered that it was not the father’s primary position that he should care for the child, only that the child move closer to him, but only if the mother would not move, then he would assume the care of the child.
In fact, a reading of his Honour’s reasons makes it plain that, rather than determine these issues, his Honour concluded for unexplained reasons, it would be in this little boy’s best interests to live in Town A. It might be thought however, that his Honour’s conclusion that it is in the child’s interests to live in Town A was in fact opaquely a conclusion that the mother should live in Town A with the child.
Were his Honour in truth making that order, despite his disavowing it, it would be a coercive order which requires significant and careful consideration of the circumstances of the parent to be compelled to move (see Sampson & Hartnett(No 10) (2007) 38 Fam LR 315). His Honour’s reasons show that he understood that the mother, living in Town A was renting, in receipt of Centrelink benefits and not in receipt of any child support from the father who was employed full time. Her evidence was that she had, before accepting her brother’s offer of the rent free use of a granny flat on his property, downsized her accommodation several times. Further, there was no evidence before his Honour that the father would or could offer the mother financial support in Town A to obtain accommodation and to live from day to day. His Honour referred to the fact that the maternal grandmother lived in Town A, noting however, the mother’s evidence that they had very different personalities. If this was intended to convey the notion that the mother had someone with whom she and the child could live in Town A, without more, this evidence was insufficient to permit that inference to be drawn.
It was argued that his Honour elevated obiter taken from relocation cases to principle which he applied, denouncing the mother’s attempt to present the father and the court with a fait accompli. I am of the view that his Honour failed to heed to adjurations to caution and careful analysis of the facts going to best interests in determining where the child would live derived from those cases.
Before I pass from this challenge, I observe that the primary judge did not consider the father’s unilateral decision not to return the little boy to his mother after spending time with him was as worthy of denunciation as apparently the mother’s unilateral decision to relocate without telling the father. I find this unequal treatment of the parties somewhat perplexing.
In my view this challenge to his Honour’s orders is made out.
Family Violence
It was further contended that the primary judge misapprehended the nature and the extent of the family violence and misapplied the legal principles referrable to allegations of family violence in the context of an interim hearing.
His Honour commenced his consideration of family violence at [24]:
24.In paragraph 9 of the mother’s affidavit, she refers to certain matters under a heading ‘My Concerns About the Safety of [the child] and Myself’. In that regard, the mother attaches to her affidavit as Annexure B, a statement given by the mother to police, and dated 6 January 2019, in which she details in various paragraphs, in this regard she refers specifically in her evidence to paragraphs 7 and 8 paragraphs 13, 20, 22, 25, 26, 27, and 28, of assertions of family violence towards her, and on occasions in the presence of the child, by the father.
25.I note at this point that the practice of attaching police statements or witness statements to affidavits as annexures is to be avoided in the interests of the weight of the evidence. Annexing a document to an affidavit does not, in any way, provide sworn evidence of what is contained in the annexed document. Attaching a document to an affidavit does not render any of the contents thereof sworn truth in the context of the affidavit, as, for example, when a letter from the opposing party’s solicitor is annexed in the course of correspondence to an affidavit, statements in that document made on behalf of the other party are, of course, not sworn to as the truth by the deponent to the affidavit.
His Honour’s remarks at [25] as to the evidentiary value and the prudence of the practise of attaching police statements as annexures to affidavits are curious in the context where, as here, the mother’s affidavit in effect affirms the correctness of her allegations and where the father made no challenge to her account. I do not agree that his Honour’s comments on the admissibility or weight to be given to that evidence were correct and his views in this regard should not be adopted.
Notwithstanding his Honour’s evidentiary concerns, he took into account a number of facts, including that on 15 January 2019 a final Apprehended Domestic Violence Order (“ADVO”) was made in protection of the mother and the child which was expressed to be for two years, and, further that the father consented to the making of that order.
His Honour said:
64.In this matter, as in so many interim hearings, and it is a rare interim hearing where it does not occur, there are disputed facts between the parties. On an interim hearing the Court is not in a position in almost all cases to make any findings of fact on the disputed facts, though the Court on the authorities can do so in cases where there is sufficient corroborating or supporting evidence for the Court to make a finding on the balance of probabilities on a disputed fact.
His Honour continued and turned his mind to the presumption of equal shared parental responsibility and adverted to the mother’s allegations of family violence and said:
86.In this case there are assertions of family violence made by the mother in her evidentiary material. Those are contested facts.
87.If there were findings made that the mother’s assertions of domestic violence were found established, then the presumption would not apply. However, as I say, those being contested matters and the Court not being in any position whatsoever to make a finding thereof, there being no other material before the court by way of evidence other than the competing affidavits of the parties, it is not open to the Court, to make a finding of family violence.
It must be observed that, in fact, there was no direct challenge by the father to the mother’s account of the episodes of family violence on which she sought and later received the protection of an ADVO. The father’s affidavit in reply to that of the mother did not deal with her allegations in any way. The father merely said that his agreement to the making of the ADVO was on the advice of his lawyer.
Whether or not the father agreed to the making of the order on advice or not, the fact is that the order was made in protection of the mother and the child.
His Honour’s conclusion that there was no evidence other than the competing assertions of the parties as to the family violence, was wrong. First, the mother made those assertions which were not challenged by the father. Secondly, a two year Apprehended Domestic Violence Order was made based on the assertions made by the mother and with the consent of the father. Thirdly, to conclude, as his Honour did that but for other evidence he could not make findings on the issue of family violence is to fall into the error identified in Salah & Salah (2016) FLC 93-713 where the Full Court said:
43.His Honour’s comment “given no other evidence” suggests that his Honour required corroboration or objective support for the mother’s allegations in proof of them. To so suggest is an error. Family violence often takes place in private in circumstances where no corroboration is available.
Finally, his Honour said:
151.I have adverted to the evidence of the mother in relation to family violence including that found in her attached statement to police, which refers to various occasions, those occasions being, by and large, somewhat historical. No family violence is acceptable. All Family violence is to be deplored.
…
154.In this case, there are disputed issues of family violence, and the Court is not in a position at all to decide those matters of disputed fact on the basis of the matters referred to earlier in these reasons, and in that regard, the additional considerations at (j) does not have any great bearing on this patter, particularly as those matters of family violence adverted to by the mother in her affidavit, and despite the submission made on her behalf by her counsel that she will not return to the [Town A] area out of fear of the father, nevertheless do not amount in this case to a risk consideration, let alone an unacceptable risk consideration, because, as I have said several times, of the very proposal the mother puts in her application for interim orders if the child is to reside with her in the [Suburb C] area and the father resides in [Town A], to spend up to eight days per month in the father’s sole care.
Although I have concluded that his Honour’s approach to the mother’s assertions of family violence was flawed, so too is his Honour’s comparison between the mother’s allegations of violence and the orders she sought, cannot pass uncorrected.
The allegations of family violence, together with the mother’s concern as to the father’s alcohol abuse were matters on which she relied to demonstrate that it would not be in the child’s best interests to live with the father and his Honour ignored a fundamental integer of the mother’s case which was that there was a risk to the child from being exposed to family violence. The orders she sought for time would however, provide for the maintenance of the child’s relationship with the father while he remained living with his mother. His Honour’s approach was erroneous in principle and to the facts. The father’s counsel eventually conceded that there was indeed before his Honour unchallenged evidence of family violence albeit he contended that it was not evidence which ought to have been afforded any or perhaps any significant weight but he conceded that the presumption of equal shared parental responsibility did not therefore apply. However he contended that his Honour’s error was immaterial to his other findings. I disagree. His Honour’s errors infected his approach to the application of s 61DA of the Act and his assessment of the s 65DAA considerations and they are such as to go to the heart of his Honours findings and conclusions and in my view, would dictate that the appeal should be allowed.
It is thus unnecessary in my opinion to consider the other grounds of appeal.
RYAN J
I agree.
ALDRIDGE J
I also agree.
AINSLIE-WALLACE J
Therefore the orders of the court will be:
(1)The appellant be granted leave to file and rely on the Further Amended Notice of Appeal received on 9 October 2019.
(2)The appellant be granted leave to file and rely on the Amended Summary of Argument and List of Authorities received on 18 October 2019.
(3)The respondent’s Application in an Appeal filed 9 October 2019 to adduce further evidence by the issue of a subpoena be dismissed.
(4)The appeal against the Orders of Judge Morley made on 5 April 2019 is allowed.
(5)Orders 1–13 and 15 of the Orders made on 5 April 2019 be set aside.
(6)The matter be remitted for rehearing by a judge of the Federal Circuit Court other than Judge Morley.
RYAN J
In seeking to resist the appeal, counsel for the father emphasised that the interim orders under appeal provide for the child to live with the mother if she returned to live in Town A. The point being, as counsel for the father said, that the mother could have the child in her primary care within 72 hours. Self-evidently, the father sought to uphold those orders. It necessarily follows that as at today, the father can be taken to have conceded that it is in the best interests of the child to live with his mother provided they are living in the same town.
Indeed it seems to me that that was his Honour’s view and I reference the final sentence of [161] of the trial reasons which is set out in the reasons of the Presiding Judge. It has just been settled that there will need to be a further interim hearing in the Federal Circuit Court. However, as the parties are unable to agree about the child’s living arrangements going forward, there needs to be some order in the child’s life and thus some orders in place pending that remitted rehearing.
The orders that I propose would give effect to the concession as between the father and the mother that the child should live with the mother but, I would not propose that it be constrained in the way that his Honour did and the father seeks to maintain, that is upon condition that she and the child live in Town A. That is a question for another day.
It was acknowledged in the course of the hearing today that the unchallenged evidence as to family violence means that the presumption of equal shared parental responsibility does not apply. In relation to parental responsibility going forward, the parties are as I indicated, in strong disagreement about important aspects of the child’s care, and it is necessary for there to be an order for sole parental responsibility in favour of one of them. In my view, the child’s best interests presently require that he lives with his mother. It follows that an order for sole parental responsibility should be made in her favour.
The parties have demonstrated, in the years since separation, some real capacity to agree on arrangements for the child to spend time with the father when he has been in his mother’s primary care. It is my view that there should be an order that the child spend time with the father as agreed between the parties, pending that further interim hearing. These orders in my view provide for the child’s best interests pending that further rehearing.
ALDRIDGE J
I agree.
AINSLIE-WALLACE J
I too agree.
Therefore the further orders of the court will be:
(7)There be no order as to costs.
(8)The Court grants to the appellant costs certificates pursuant to ss 9 and 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the appellant in respect of the costs incurred by her in relation to the appeal and the new trial in the matter.
(9)The Court grants to the respondent costs certificates pursuant to ss 6 and 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payments under that Act to the respondent in respect of the costs incurred by him in relation to the appeal and the new trial in the matter.
IT IS FURTHER ORDERED THAT:
(10)Pending further order, the appellant mother have sole parental responsibility for X, born in 2014 (“the child”).
(11)Pending further order, the child live with the appellant mother.
(12)Pending further order, the child spend time with the respondent father as agreed between the parties.
(13)The respondent father will deliver the child to the appellant mother at 12 noon in the car park at B Street McDonalds, Town A on Sunday 27 October 2019.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered ex tempore on 23 October 2019.
Associate:
Date: 29 October 2019
3
0
2