VG & M

[2005] FamCA 1015

[2005] FamCA 1015

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal No. EA 125 of 2004
  File No. SYF 3134 of 2004

IN THE MATTER OF:

“VG”

Appellant Mother

AND

“M”

Respondent Father

REASONS FOR JUDGMENT OF THE FULL COURT

Coram:  Finn, May & Boland JJ
Date of Hearing:                10 February 2005
Date of Judgment:            27 October 2005

Appearances:

Mr Harding SC instructed by Slade Manwaring Solicitors, appeared on behalf of the appellant.

Mr Kearney of Counsel instructed by Stuart Fowler and Partners, appeared on behalf of the respondent.

APPEAL SUMMARY

MATTER:  VG and M
APPEAL NUMBER:  EA 125 of 2004 (SYF 3134 of 2004)
CORAM:  Finn, May and Boland JJ
DATE OF HEARING:  10 February 2005
DATE OF JUDGMENT:  27 October 2005

CATCHWORDS:                

FAMILY LAW – APPEALS – CHILDREN – RELOCATION – Expert Witness Opinion – Appeal in relation to date the resident parent may remove the child from Australia to the United Kingdom – Adequate reasons for deviating from the nominated date of the expert witness – Full Court held trial Judge is not bound to slavishly follow the opinion of an expert witness, that adequate reasons were provided – Appeal dismissed – COSTS – Usual for an order to be made that the appellant pay the respondent’s costs of an unsuccessful appeal – Appeal not without substance and substantial future expenses expected in facilitating international contact arrangements – Discretion to make an order for costs not exercised.

CASELAW CITED:

A v A: Relocation approach (2000) FLC 93-035
AMS v AIF (1999) 199 CLR 160
Bennett and Bennett (1991) FLC 92-191 at 78,266
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Pettitt v Dunkley (1971) 1 NSWLR 376
U and U (2002) 211 CLR 238; (2002) FLC 93-112; (2002) 29 Fam LR 74

Appeal dismissed. No order for costs.

1. Introduction

1. This is an appeal by the mother against certain orders made by Steele J on 2 December 2004.  The orders have the effect of permitting the mother, after 1 November 2005, to relocate to the United Kingdom with the child, “FJ”, born in 2003.  

1. The basis of the mother’s appeal is that the trial Judge failed, in the exercise of his discretion, to evaluate the evidence of the Court’s expert witness, “Dr RB”, and the mother’s circumstances in determining the date on which the mother could relocate with the child to the United Kingdom.  The appellant also argues that the trial Judge failed to give any reasons or any sufficient or adequate reasons for selecting 1 November 2005 as the earliest date of relocation.  In addition, the mother asks in the orders sought that different orders for contact be made.

1. The orders presently provide that upon the mother’s relocation to the United Kingdom, the father have block holiday contact with the child as follows:

   8. a)In 2006 for two (2) blocks of five (5) weeks, one in December 2005/January 2006 in the United Kingdom and one in July 2006 in Australia;

   b)In 2007 for two (2) blocks of six (6) weeks, one in July and one in December/January both periods to be in Australia;

   c)From the time that [FJ] commences formal schooling, anticipated to be in 2008, for two thirds of all school holiday periods, such contact to be in Australia;

   d)At such times in England as may be agreed between the parties with the Father giving no less than one (1) month notice of his intention to travel to England to exercise such contact and for the purposes of this Order such contact in England will be for no less than five (5) days;

   e)Periods of contact referred to in sub paragraphs (a), (b) and (c) hereof may at the Father’s option be exercised in the United Kingdom rather than Australia and may be reduced to such lesser periods as the Father can accommodate;

   f)By telephone and internet connection at all reasonable times.

1. Provision was made for the child’s transport and costs of airline tickets:

   9.That for the purpose of the contact in Order 8(a) to (c) inclusive:

   a)The Mother shall deliver the Child to the Father at the commencement of the contact period and the Father shall return the Child to the Mother at the conclusion of the contact period;

   b)The Father shall pay all costs of the airline tickets for the return air travel between England and Australia for the Child and the parties’ economy class travel pursuant to these Orders subject to the Mother first paying to the Father $6,000 per annum towards the total costs involved;

   c)Either the Father or the Mother may nominate a person to accompany [FJ] on the airplane flights until he can fly as an unaccompanied minor in accordance with the airline policy;

   d)The parties shall alternate contact periods in December/January of each year such that in 2005 the Father shall have Christmas Day with the Child and the Mother shall have the Child’s birthday with the Child, and in 2006 the Mother shall have Christmas Day with the Child and the Father shall have the Child’s birthday with the Child.  This may mean that in years when the Mother is to have Christmas with the Child the Father may not be able to accommodate the full contact period during the allocated holiday period.

1. At trial, the father resisted the application for relocation and residence and asked for an order for residence with the mother to have contact.

1. The Trial Judge’s Reasons

1. The following factual background to this matter, as found by the trial Judge, was not the subject of argument in the appeal:

   §The parties met in 2001 and commenced living together in London in 2002.

   §The mother became pregnant in 2002 and the parties returned to Australia later in 2002.

   §The parties who never married separated on or about October 2003, at which time the child was removed by the mother without the father’s consent when she returned with him to the United Kingdom.

   §The father went to the United Kingdom in an attempt to have the mother return with the child.  These attempts failed.

   §The father subsequently commenced proceedings under the Hague Convention.

   §In April 2004, an Order was made by consent in the Family Division of the High Court of Justice in London requiring the mother to return the child to Australia.

   §Consent was given by the mother on the basis of the father’s undertaking to pay for the child’s return airfare and to pay maintenance and a rent subsidy to the mother during her time in Australia pending the determination of parenting proceedings in the Family Court of Australia.

   §In May 2004, the mother returned to Australia with the child and has resided in Sydney since.

   §The mother filed an Application for Final Orders in May 2004 seeking residence of the child and leave to remove the child to the United Kingdom.

2. In paragraph 16 of the judgment the trial Judge set out the issues as follows:

   16.In addition to the issue of residence, the particular issue for determination in this case is whether the Mother should be permitted to relocate with the child to reside in the United Kingdom.  If she is permitted to live with the Child in the United Kingdom there is a question of whether her right to take the Child should be deferred to enable the Father to build a relationship with the Child as a foundation for an ongoing relationship.

1. The trial Judge cited the appropriate provisions of the Family Law Act 1975 (“the Act”) and the applicable principles in relocation matters as set out by the Full Court in A v A: Relocation approach (2000) FLC 93-035 and the High Court in U and U (2002) 211 CLR 238; (2002) FLC 93-112; (2002) 29 Fam LR 74. His Honour commenced by articulating the parties’ competing proposals:

   19. Having regard to the Mother’s evidence that if she is not permitted to  take the child to the United Kingdom she will remain with the Child in Australia the available options appear to be:-

   (i) The Mother residing with the Child in Australia and the Child having regular substantial contact with the Father.

   (ii)The Mother living with the Child in the UK and the Child having irregular contact in the UK and/or Australia with the Father.

   (iii)Option 1 (as above) but limited to the proviso that the Mother not be permitted to relocate for some limited period of time after which she might be permitted to go to the UK.

   (iv)The Child residing with the Father in Australia and having regular contact with the Mother.

   (v)The Mother residing in the UK with the Child and the Father moving to the UK to obtain employment and have regular contact with the Child (the Father contends that this is not a practical option for him).

   …

   28. The Mother’s case is that she proposes to return to live in the UK with the Child [FJ] at a house which she owns…. She says that she wants to return to the United Kingdom where she will have the support of her family although it appears that her father now resides in Switzerland and her mother in Holland.  However her brother with whom she has a close relationship resides nearby to her residence….

   29.The Mother became engaged to [RG] of London [in February 2004].  She had known [RG] for some years, having met him often at a local bar when she was in the company of the Father but renewed acquaintances on New Years Eve 2003 and became engaged to him … later.  The status of their relationship is somewhat uncertain although [RG] has come to Australia to support her in the litigation and to be available for interviews with the Court appointed expert which earlier occurred.  The Mother has said in her most recent Affidavit filed 4 November 2004 that her relationship with [RG] has deteriorated over recent months because of the stress of the litigation.  She says she has felt trapped in Australia and unable to maintain the relationship at its previous level.  She asserts however that they are still very much in love with each other and hope to be together in the future.  She says they have agreed to ‘start again’ if and when she returns to the United Kingdom.

   30. The Mother has said that she feels trapped in Sydney and that she can only survive financially with the help of her mother whom she says is providing funds to pay the mortgages on the two properties she owns in the United Kingdom.

2. In relation to the father –

   60.He said that his proposals were that he would continue to live at his house in [Sydney] where [FJ] would live with him.  He proposed to get a day time carer for [FJ] for three and a half days per week.  He said he leaves for work at 8.00 am so he would expect the lady to be there from about 7.30 am until 6.00 pm each day and that during that time she could feed, bathe and clean the Child.  He currently works four days per week but he proposes to reduce it to three and a half days per week to fit in with the arrangements with [FJ].  He said that if he goes out at night he would propose obtaining a babysitter although one of the ladies who seemed to be most suitable to him as a daytime carer has said she would be happy to stay overnight.

   61.He presently has contact with [FJ] for three out of four weekends from 9.00 am Saturday to 6.00 pm Sunday.  That has been happening since Orders were made in June this year.  He agreed that the longest time [FJ] had been in his care since [FJ]’s return from the UK had been 48 hours.  He agreed that he had a relationship with a lady by the name of [JL] but she did not live with him.  He said her name was [JL] and she is twenty-nine years of age.  She has no children.  He said he didn’t ask her to give evidence in these proceedings because he didn’t want to get her involved.  He said they have not discussed marriage although there has been some discussion about living together.  He said he sees her about three times per week.

3. The father’s income is $7,700 per week which he was able to maintain despite travel to London associated with the child’s removal.  He said that there would be severe implications for his practice and income should he move to the UK.

1. After discussing the evidence of the parties and making findings where there was some controversy, (largely in the father’s favour) his Honour then assessed the advantages and disadvantages of the competing proposals in the context of the factors set out in s 68F(2) of the Act.

1. As to the child’s wishes (s 68F(2)(a)), his Honour noted that the child was only twenty-two months at the time of trial, resulting in no expressed wish.

1. With regard to the nature of the relationship of the child with each of the child’s parents (s 68F(2)(b)), his Honour acknowledged the close bond between the child and the mother.  His Honour did note, however, that the mother “may well have difficulties in putting the importance of the child’s relationship with his father before her own concerns”.

1. As to the relationship between the father and child, the court-appointed expert witness, “Dr RB”, gave evidence that the father and child were in the process of developing a close loving relationship.  As noted by the trial Judge –

   76.Importantly [Dr RB] said that in terms of the bonding between the Child and his parents the critical period is between the period of twelve months and three years of age.  He said children develop a primary attachment and there was no doubt that in this case the Child’s primary attachment was to the Mother.  He said it was possible that the Mother could return to the UK without the Child for a short period of time but any lengthy separation of the Child from the Mother would be considerably more difficult for the Child than any separation from the Father.

   77.He said that if the Child was removed from contact with the Father at this stage of his life then in the short term it would not create any difficulty because his attachment to the Father was not so strong but in the long term it may be significant.  [Dr RB] expressed the view that both parents offer good parenting to the Child.

1. His Honour also noted that the father’s devotion to the child was very clear, as was evidenced in his persistence in bringing the matter before the Court in Australia.

1. With regard to the likely effect of any changes in the child’s circumstances (s 68F(2)(c)), his Honour noted that as the child’s primary attachment was to the mother, “there is a risk that changing that arrangement may be damaging to the child”.  His Honour noted that the child would suffer the loss of his relationship with his father and grandparents should the mother be permitted to live in the United Kingdom.

1. His Honour found, however, that in the event the mother was permitted to remove the child out of Australia, deferring such relocation would enhance the child’s existing relationship with his father to an “acceptable but not ideal level”.

1. With regard to the practical difficulty and expense of contact (s 68F(2)(d)), his Honour noted the obvious expense in the father having contact with the child should the mother be allowed to relocate to the United Kingdom.

1. His Honour then went on to consider the capacity of each parent to provide for the needs of the child (s 68F(2)(e)) and concluded that the child had a closer emotional attachment to the mother, but also acknowledged the significance of the relationship between the child and his father and that he would also be able to provide for the child’s needs.

1. With regards to the parties’ attitudes to the child and to the responsibilities of parenthood (s 68F(2)(h)), his Honour referred to the concerns in relation to the mother’s stability should she be forced to live in Australia. His Honour also noted that the mother gave an impression of her under-valuing of the father-child relationship by taking the child to the United Kingdom in the first place. However, his Honour felt that the mother did have an understanding of the importance of the relationship between the father and the child.

1. In relation to a consideration of s 68F(2)(k) the trial Judge was “inclined to think that if the mother was required to remain long term in Australia there is the likelihood of a previous volatile relationship between the parties re-emerging and further litigation resulting”.

1. His Honour ultimately reached the following conclusion:

   84… (vii) If the Mother as the preferred resident parent was to be permitted to reside with the Child in the UK but only after a period of twelve months in which time hopefully the Father’s relationship with the Child would grow and become entrenched then with a degree of travelling in the years following I believe the Father would be able to keep alive at an acceptable level the relationship with the Child. As the Child begins to mature that relationship could I believe be strengthened.

   (viii) Giving appropriate weight to the Mother’s legitimate wish to live in the UK in circumstances where she clearly would be very unhappy if she was required to remain in Australia without any support then the fact that the Father’s relationship could be sustained once it is sufficiently established at the outset would seem to me to be the fair resolution of a very difficult matter.

   (ix) I have selected a period until 1 November 2005 for the Child to remain in Australia proximate to his Father because he would by that time be two years and nine months of age. I think the additional period at the rate he would be developing at that stage would be significant in enhancing his relationship with the Father with the hope that it will have been established at a level sufficient to be kept alive at a sufficient level in the years following. It has to be balanced against the difficulty it will create for the Mother but deferring her return to the UK for a period of just under twelve months does not seem unreasonable having regard to the benefit for the child.

   (x) I believe the Child’s best interests will be served by being with his mother in her chosen country in circumstances where the Father’s relationship with the Child can be sustained at an acceptable level having regard to the cost and time constraints in having contact. The solution is not perfect but seems to me to be the one which serves the Child’s best interests.

1. Grounds of Appeal

1. The mother’s notice of appeal listed two grounds of appeal. The terms of those grounds are as follows:

   1. That His Honour failed, in the exercise of his discretion, to evaluate the evidence of:

   (i) the Court’s expert witness ([Dr RB]); and

   (ii) the mother’s circumstances,

   in determining the date on which the mother could remove the child, [FJ] born [2003], from the Commonwealth of Australia.

   2. That His Honour failed to give any reasons or any sufficient or adequate reasons for selecting 1 November 2005 as the earliest departure date from Australia for the child.

1. Appellate Principles

1. This is an appeal from a discretionary decision, the principles relating to such appeals are well established. In House v The King (1936) 55 CLR 499, at 504-505 Dixon, Evatt and McTiernan JJ said:

   The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.

1. The circumstances in which the Full Court should interfere with a discretionary judgment are well known,  In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519:

   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.

2. Kirby J said the following in AMS v AIF (1999) 199 CLR 160:

   150.… an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.

1. In relation to the adequacy of reasons, the Full Court in Bennett and Bennett (1991) FLC 92-191 at 78,266 said the following:

   Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.

2. The Full Court in Bennett and Bennett said further at 78,267:

   In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge's discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.

3. Submissions

1. The mother’s position was that she wished to leave Australia with the child as soon as possible.  It was submitted that there was no evidence upon which the trial Judge could safely conclude that it was appropriate for the child and the mother to remain in Australia until November 2005. In particular, that the date chosen by the trial Judge for the child to remain in Australia until 1 November 2005 was not supported by the evidence of Dr RB and is contrary to the recommendation in his report.

1. Counsel for the mother, in submissions, drew the Court’s attention to the following recommendations made by Dr RB in his report dated 22 October 2004:

   1.I recommend the child remain in residence with the mother.  He appears to be developing well in her care.  I formed the view that she was a caring parent.  I recommend that [the mother] be allowed to return to the UK with [FJ] where she will be most stable.

   2.Should [FJ] and [the mother] return to the U.K. then there is of the issue of when should [FJ] and [the mother] return to the UK.  From one point of view it would be advantageous for [FJ] to return to the UK once he has the ability to establish a strong attachment with his father so that this relationship can be continued and built on in the future.  However [the mother] has a life that needs to be re-established and continued back in the UK and I know that she would wish to do this as soon as possible.  [The father] would obviously prefer [FJ] to stay in Australia or at least to stay as long as possible so that he can establish a strong relationship with [FJ].  The next year is a crucial time in his development for [FJ] to establish his attachments.

   3.Perhaps if [FJ] and [the mother] remained in Australia until [FJ] was two and a half in July 2005.  Contact could continue on a regular basis during that time.  After [FJ] and [the mother] return to the UK obviously frequent as possible visits to the UK by [the father] would be encouraged.  In addition it would also be important for [the mother] to bring [FJ] to Australia perhaps once or twice a year.  [The father] may even consider undertaking Fellowships or working in the UK in the future in order to have an opportunity to spend more regular time with [FJ].  I recommend that the father have contact with the child as much as possible.  He appears to be developing a good relationship and attachment with the child.  I believe he is a capable caring parent.

1. The main point being made of course, was that the expert suggested July 2005 whereas the trial Judge ordered 1 November 2005.

1. Counsel for the mother also referred to the oral evidence of Dr RB at trial:

   [Counsel for the mother]  I take it that you’ve said that this critical stage for bonding is from 12 months to 3 years, that if it could be – if her time here could be extended, say, from a period of 12 months from now which would have the child being 2 years and 9 months of age or 2 years and 10 months, that would be better?  [DR RB] --- That would be better in terms of the child developing a strong attachment with the father but…

   [Counsel for the mother] As opposed to the impact on the mother being forced to live somewhere where she is unhappy and has no support?  [DR RB] --- Correct, her mental state may be seriously affected if she’s, you know, living somewhere against her wishes with little support.

2. In summarising Ground 1, the mother’s counsel listed the factors relating to the mother’s circumstances which the trial Judge referred to at trial.

1. Counsel for the mother submitted that the trial Judge failed to take into account the mother’s circumstances in selecting 1 November 2005 as the appropriate date for the mother to return to the UK with the child.  It was contended that this time frame is not supported on the evidence.

1. Upon a consideration of the present and proposed circumstances of the mother, counsel submitted that there was not a proper evaluation of the mother’s evidence, and that of Dr RB, against the enhancement of FJ’s relationship with his father.

1. In relation to the appellant’s second ground of appeal, namely that the trial Judge failed to give adequate reasons for choosing 1 November 2005 as the date on which the mother could return to the UK with the child, counsel for the mother submitted that the selection of that date was an arbitrary conclusion without reference to the evidence. In line with the principles described in Pettitt v Dunkley (1971) 1 NSWLR 376, counsel submitted that the trial Judge failed to expose his reasoning process, especially in such a critical issue relating to the removal of a child to an overseas jurisdiction.

1. The father’s counsel submitted that cross-examination of Dr RB by the mother’s counsel confirmed the view that it was in the best interests of the child that he remain in Australia for a period of time in order to establish secondary attachment between the father and the child. Counsel for the father also submitted that the second ground of appeal was without substance, as the trial Judge’s reasoning was clear and that the matters taken into account by the trial Judge were appropriate and consistent with the evidence.

1. Conclusion

1. The decision of the trial Judge to in effect restrain the mother from leaving Australia with the child until 1 November 2005 was clearly explained by him in an effort to balance the needs of the child, the competing needs of the parents and in his best interests.  It is not necessary for a judge to slavishly follow the opinion of an expert especially as here the reason for making orders not greatly different from the recommendation was explained.

1. As to the question of future contact after the mother leaves Australia the orders she seeks are quite different from those made by the trial Judge. 

1. However, there were no submissions put to us in relation to this issue because it was asked that should the appeal succeed then either the mother should be allowed to depart immediately or in July 2005.

1. The written and oral submissions on behalf of the mother specifically requested that there not be a re hearing on the issue of the departure date.

1. We think that it is therefore best in the circumstances that should either party wish to further litigate the question of contact between the child and father after he leaves Australia the matter be further heard based on evidence in relation to their current circumstances and future plans which may not be the same as those before the trial Judge in December 2004.

1. In the circumstances, it would be appropriate for any such applications to be given priority.

1. Costs

1. In ordinary circumstances an order would be made that the appellant pay the respondent's costs of an unsuccessful appeal such as the present, and indeed such an order was sought by the respondent father. However the appeal was not without substance and involves issues of considerable importance to the parties. It is also appreciated, as Counsel urged upon us, that both parties will have substantial expenses ahead of them in meeting the costs of contact. Overall we are not persuaded that the circumstances of this case justify an order for costs.

1. Orders

1. That the appeal be dismissed.

1. That there be no order as to costs.

I certify that the 44 preceding paragraphs
are a true copy of the reasons for judgment delivered by this
Honourable Full Court.



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