Vontek v Vontek
[2017] FamCAFC 28
•28 February 2017
FAMILY COURT OF AUSTRALIA
| VONTEK & VONTEK | [2017] FamCAFC 28 |
| FAMILY LAW – APPEAL – CHILDREN – where the trial judge permitted the mother to relocate with the three children 63 km away – where the father opposed the move – where the father appealed – where the appellant contended that the trial judge failed to properly analyse the children’s current relationships with their parents and the impact of any proposed change to the nature and quality of those relationships – where no error demonstrated – where the appellant contended that the trial judge failed to properly analyse the evidence of the family report writer – where no error demonstrated – where the appellant contended that the trial judge made comments critical of the father’s lack of financial support for the children without analysing the evidence – where it was not demonstrated that any such finding had any material impact upon the trial judge’s ultimate findings – where no error demonstrated – where the appeal is dismissed. FAMILY LAW – APPEAL – COSTS – where the appeal was wholly unsuccessful – where orders are made for the appellant to pay the respondent’s costs of the appeal. |
| Family Law Act 1975 (Cth) |
| Adamson & Adamson (2014) FLC 93-622 CDJ v VAJ (1998) 197 CLR 172 De Winter and De Winter (1979) FLC 90-605 Godfrey & Sanders [2007] FamCA 102 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Mazorski v Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Simmons and Anor & Kingley (2014) FLC 93-581 U v U (2002) 211 CLR 238 |
| APPELLANT: | Mr Vontek |
| RESPONDENT: | Ms Vontek |
| FILE NUMBER: | SYC | 7165 | of | 2013 |
| APPEAL NUMBER: | EA | 49 | of | 2016 |
| DATE DELIVERED: | 28 February 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Kent JJ |
| HEARING DATE: | 6 February 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 March 2016 |
| LOWER COURT MNC: | [2016] FamCA 276 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lloyd SC |
| SOLICITOR FOR THE APPELLANT: | Slater & Gordon Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Dura |
| SOLICITOR FOR THE RESPONDENT: | Clear Lawyers |
Orders
The appeal is dismissed.
The appellant father pay the costs of the respondent mother of and incidental to the appeal as agreed or, failing agreement, to be assessed.
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 Vontek & Vontek 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: EA 49 of 2016
File Number: SYC 7165 of 2013
| Mr Vontek |
Appellant
And
| Ms Vontek |
Respondent
REASONS FOR JUDGMENT
The father of three boys, B born in 2006, C born in 2008 and D born in 2012, appeals from the parenting orders made by Benjamin J on 14 March 2016 pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). The children’s mother opposes the appeal.
Central to the father’s challenges on appeal is that the trial judge made orders allowing for the mother to move to live with the children in E Town, located approximately 63 kilometres from the northern Sydney suburb where the children had been living with the mother, and the locality where the father himself proposed to continue living, and where he proposed the children should attend schools.
The orders included an order obliging the parents to do all acts and things to enrol the two older children in a school in the E Town area as and from the commencement of Term 3 of the 2016 school year and to enrol the youngest child in that school when he commences primary school.
Central issues on appeal
Taken from the father’s further amended notice of appeal filed on 23 September 2016 and his senior counsel’s written outline in support of the grounds identified, the father challenges the subject orders on four primary bases:
a)That his Honour failed to properly analyse the children’s current relationships with their parents and the impact of any proposed change to the nature and quality of these relationships (grounds 1, 3, 5 and 6); and
b)Related to the first challenge, his Honour erred in failing to properly analyse the evidence given by Dr Y, a psychologist who prepared a family report in the proceedings, in respect of the issue of the children’s potential resentment to spending time with the father if their move to E Town was permitted, together with Dr Y’s evidence that at the time of preparing his report, the children’s best interests would be served by continuing to spend substantial and significant time with both parents to avoid disruption to their daily lives (ground 2); and
c)That his Honour made remarks critical of the father and his lack of provision of financial support to the mother, without first analysing the mother’s financial position at the time and without adequately particularising how this finding impacted on the orders his Honour ultimately made (ground 4); and
d)That his Honour failed to analyse the evidence given by the mother in respect of her proposed move to E Town, in circumstances where she could not demonstrate a legal entitlement to construct a home on the subject land; and had not properly or adequately investigated the opportunity of being granted permission to construct a home or homes on the subject property and other related practicalities (ground 7).
In the course of argument of the appeal, senior counsel for the father abandoned ground 7 being the challenges directed to the trial judge’s approach concerning the feasibility of the mother’s plans concerning the E Town property. There is thus no need for us to address ground 7 further.
Whilst the father’s further amended notice of appeal purports to appeal from all of the orders made by the trial judge (save for the order for the parents to have equal shared parental responsibility), the subject orders included provision for the youngest child to commence primary school when agreed between the parents with such agreement to be reasonably based upon the advice of teachers at his pre-school. No particular ground of appeal nor submission in support of the appeal is directed to that, or to the findings upon which his Honour based that order.
Following the subject orders being made on 14 March 2016 there was no application to stay the orders pending this appeal. Whilst neither party made application to adduce further evidence on appeal, we were informed at the hearing that the mother had in fact moved with the children to live in E Town and that the subject parenting orders had been adhered to by both parents.
Factual context to the issues at trial
The father was aged 43 years and the mother 42 years at the time of trial.
The parents commenced their relationship in or about 2003 and cohabitation later that year. They married in 2006 and separated on a final basis in early 2013. Whilst they initially remained living separately under the one roof, the father moved from the then family residence in about June 2013 to the rental property at which he continued to live at the time of trial. The mother and the children remained living in the former matrimonial home.
As already noted, the parents’ three children were born in 2006, 2008 and 2012 respectively. They were aged about six years, five years and one year respectively when their parents separated in 2013, and from then they remained in the primary care of their mother in the context of the parental separation.
Following separation, the father commenced a relationship with Ms K to whom he had become engaged by the time of trial and who also resided in his home when the children were spending time with him. The mother had not re-partnered.
Both parents hold tertiary qualifications and both had historically undertaken employment commensurate with their qualifications. As at trial, the father was employed in a senior role with a major bank. The mother had, in the week prior to trial, commenced further study at university involving her attendance at the university campus for four days per week for a total of about 15 hours per week.
Following separation the parents had been able to implement parenting arrangements by agreement without the need for Court orders. Those arrangements saw the children living primarily with their mother and the two older children spending alternate weekend time with their father from after school Friday until Monday morning when they were returned either to school or to their mother’s care. The youngest child would also spend time with his father each alternate weekend but initially, given his young age, he would be returned to the mother’s care on Saturday evening. The two older children would also spend time with their father during the week and he was involved with them in attending extra-curricular activities.
The parents were able to agree on increasing the children’s time with their father from about January 2015, such that the youngest child’s time with the father on alternate weekends was extended to match that of his older siblings. Additionally, the father continued to take the children to their various
extra-curricular activities during the week and spend time with them on those occasions.
Central issues at trial
Both parents contended at trial that it was in the children’s best interests that orders be made for:
a)The parents to have equal shared parental responsibility for the children; and
b)The children to continue living primarily with the mother.
Importantly, it was not in issue at trial that the children would benefit from having a meaningful relationship with both of their parents.
The predominant issues at trial were the orders to be made for the time the children spend with the father and where the children should attend school. Those issues fell to be considered and determined in the context that the mother proposed that the children live with her in E Town. The former matrimonial home in which she and the children had continued to live post-separation was to be sold consequent upon the property settlement proceedings also determined by the trial judge.
Whilst the orders the father sought at trial did not include, specifically, any coercive order directed to where the mother should live, the practical effect of the orders the father sought was that if those orders were made the mother could not feasibly live with the children in E Town. The father sought orders including, inter alia, an order obliging the parents to “immediately” enrol the children in schools located in the north shore area of Sydney where he lived; for the children to commence spending five nights per fortnight with him; and from when the youngest child turned five years of age (in January 2017) for the children to live with each parent on a week about basis.
The mother was, with her parents and brother, a co-owner of a residential property in E Town where she planned to live with the children. As at trial the mother proposed purchasing the interests in the subject property held by her other family members. Thereafter, she proposed to either erect a further dwelling on the property in which she and the children would live, while her parents would relocate from their current residence to live in the dwelling which was already erected on the property. Alternatively, the mother proposed to renovate the existing dwelling. Essentially the mother contended that her financial position would be enhanced by living in E Town, rather than in the north shore area of Sydney, and that there were lifestyle advantages for the children of living in E Town together with advantages to her and the children of the support her parents could provide.
The trial judge’s consideration of the children’s relationships with their father and the effects of the proposed changes to them (grounds 1, 3, 5 and 6)
The father contends on appeal that his Honour failed to:
a)“…adequately evaluate the “benefits” to the children of having a “meaningful” relationship with both of the parents as advanced in their respective proposals, and further that his Honour failed to evaluate the evidence supporting those proposals as required by s.60CC(2)(a)” (ground 1); and
b)“… provide any form of analysis of the evidence touching upon the nature of the children’s current relationships with each of the parents and the consequence of same upon (a) variation of the time spent with the Appellant Father and his parents (b) the proposed full-time residence of the children potentially with the Respondent and her parents s.60CC(3)(b)” (ground 3); and
c)“…to adequately analyse the evidence provided by the Appellant in respect of the effect the changes proposed by the Respondent would have on the children and their relationship with both parents” (ground 5); and
d)“…to adequately analyse the evidence and identify those matters contained within s.60CC(3)(e)” (ground 6).
It bears emphasis as a starting point in considering these challenges that it was common ground on the parents’ respective proposals that it was in the best interests of the children that they continue to live primarily with the mother. It was no part of the father’s case that the children’s best interests would be served by orders placing the children in his primary care either as at the time of trial, or at any point in the future. His future proposal was for orders for a shared, week about, arrangement to be implemented some 10 months or so after the trial.
Moreover there was no issue joined between the parties at trial either as to the existence of a meaningful relationship between each child and each parent nor that there was benefit to the children of having a meaningful relationship with both parents.
As the uncontested primary carer of the children as at trial, the mother’s firm proposal was that she undertake that role living with the children in E Town.
It also bears emphasis that the context of the mother’s proposal was to be considered, as accurately described by the trial judge at [106] in these terms:
It is not as if the wife is proposing to move out of the Sydney area and to another state. The wife ought not to, in effect, be chained to a particular area of the city. She is reasonably entitled to find a home that meets her needs and ambitions and those she has for the children, provided always that it does not unreasonably inhibit the children’s relationship with their father. This move will not, if it occurs, unduly inhibit the husband’s relationship; it will certainly make it more difficult.
In Adamson & Adamson (2014) FLC 93-622 the Full Court discussed the principles applying to a primary carer’s choice to live in a place of that parent’s choosing and when it will be legitimate for the Court to impose upon that choice, as follows:
64.Nor was this a case where each parent presented an alternative proposal or option for the child’s primary residence. The father conceded, whatever other outcome may result, that it was in the child’s best interests that she continue living with the mother and the trial judge reached the same conclusion. The father did not offer the option, nor did the trial judge see it as being in the child’s best interests, that the father would assume primary care of the child if the mother chose not to comply with a coercive order as to the child’s relocation.
65.It follows from the decisions of the High Court in AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238 that in parenting proceedings there is no requirement for a parent to demonstrate “compelling reasons” to live where the parent proposes to live, be that a proposed new location or, axiomatically, in their current place of residence. Here, the mother was no more required to demonstrate “compelling reasons” for her choice to remain living in Town S than was the father to so do with respect to his choice to live in Town C or for either to not live anywhere else. The same may be said of their respective choices of employment, the mother’s in Town S and the father’s in Sydney. The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire. (U v U at [82] citing AMS v AIF)
66.These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
67.Consequently, whilst the Court is not bound by the proposals advanced by parents and can, subject to natural justice considerations, adopt modified proposals, the justification for that is the same and the extent of modification legitimately can only be as far as is necessary to avoid adverse effects upon best interests. As Callinan J observed in AMS v AIF (cited with approval by Gummow and Callinan JJ in U v U (with whom Gleeson CJ, McHugh and Hayne JJ agreed)):
It will generally not be possible for a trial judge to construct a framework and environment for the upbringing of a child. What happens in practice is that those competing for the care and custody of a child will present proposals to the Court to advance the welfare of the child. Judges frequently will be able to mould or adopt such proposals in making orders but rarely will they be able to invent or construct substantially different arrangements for children from those proposed by the parties.
(Footnote omitted)
68.It can thus be seen that it was not the task of the trial judge to mould or create, by the exercise of discretionary powers, the most desirable solution or desirable circumstances, blind or indifferent to each parent’s fundamental right to exercise their respective rights to choose where they lived and worked consistent with the child’s best interests. Rather, those rights were to be respected. Only if the exercise of such parental rights could be seen as so adversely affecting the child’s best interests could interference with their exercise be legitimate; and then only to the extent necessary to avoid such adverse effects, having considered available alternatives.
69.Moreover, if ultimately it was determined that interference with parental rights was called for, all alternatives, including the father’s exercise of his right to choose where he lived and where he worked, would need to be considered. As Hayne J observed in U v U (in the context of a case involving proposed international relocation of a child from Australia to India) at [176]:
It is now recognised as self-evidently true that, apart from some cases of abusive relationships, children benefit from the development of good relationships with both their parents. The right to know and be cared for by both parents and the right of contact on a regular basis with both parents are said to be principles underlying the objects of Pt VII of the Act (s 60B(2)(a) and (b)). If effect is to be given to those principles, it must not be assumed that one parent (the father) cannot move and that the mother must, in every case, subordinate her ambitions and wishes, not to the needs of the child, but to the wishes of the father to pursue his life in a place of his choosing. It is the interests of the child which are paramount, not the interests or needs of the parents, let alone the interests of one of them.
…
78.In this case both parents agreed that they ought have equal shared parental responsibility for the child. Both acknowledged that the mother would continue to perform the role of providing the child’s primary care with the child to spend time with the father. The Court found that agreement, and acknowledgment, to be in the child’s best interests and made orders accordingly.
79.It was unsurprising, given the relatively modest geographical separation between Town S and Town C, that the trial judge found that the child would continue to have the benefit of a meaningful relationship with the father on whatever proposal for time and communication was adopted. However, on that central finding, taken with all the circumstances of this case, no occasion arose for the Court to consider making a coercive order imposing on the mother’s freedom to choose where she lived and worked. That is, no sufficiently adverse effect on the child’s welfare was identified that this had to be addressed by the making of a coercive order.
(Emphasis as in original)
As already noted, it was not in issue in this case that the children would benefit from having a “meaningful relationship” with both of their parents within the meaning of s 60CC(2)(a) of the Act. Whilst as is noted in McCall & Clark (2009) FLC 93-405 (“McCall”) at [109] the Act does not define that term, the Full Court accepted as appropriate the interpretation of “meaningful relationship” set out by Brown J in Mazorski v Albright (2007) 37 Fam LR 518 at 526 – 527 as follows:
I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall the Full Court adopted what it described as the “prospective approach” to interpreting s 60CC(2)(a) as the preferred interpretation “although, depending upon factual circumstances, the present relationship approach may also be relevant” (at [119]).
Those interpretations are set out at [118] of McCall in these terms:
…the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
…
…the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
Notably, in the course of discussing the interpretation of “meaningful relationship”, the Full Court referred to the decision of Kay J sitting in the appellate jurisdiction of the Court as a single judge in Godfrey & Sanders [2007] FamCA 102 and quoted his Honour’s judgment including “…[e]ven if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.”
Senior counsel for the father acknowledged in the course of argument before us the correctness of the proposition that “meaningful relationship” does not mean the optimal relationship achievable.
When the trial judge’s reasons for judgment are read as a whole it can be seen that the trial judge recorded numerous findings supporting the conclusion that notwithstanding the young ages of the children when their parents separated, and the relatively lengthy period since separation, the children’s relationships with their father were well-established and “meaningful”. Whilst specific findings draw their significance from the judgment read as a whole, and discrete reference to specific findings may obscure that, the point is illustrated by reference to the following:
a)At [37] of the reasons in recording the “background” the trial judge recorded a finding of the father being significantly involved in the children’s activities outside his work hours, and spending time with the children during their sporting activities as well as spending half their school holidays with them when he takes time off work;
b)At [80], the trial judge records that each parent acknowledges that the other parent is well able to care for the children and “each have provided care at various levels throughout the course of the relationship”;
c)At [81] and [82] the trial judge recorded:
81.To the credit of both parties, and particularly the wife, each child has a close relationship with the father, or the other parent. The youngest child was quite young at the time of separation. The wife adopted a sensible approach in relation to the child spending regular time with the father, but certainly not to the degree sought by the husband, but on an increasing basis...
82.The husband sees the children on a regular basis, weekends and during the school week. He is extensively engaged in their sporting, social and school activities.
d)At [86] with reference to the evidence of the single expert, Dr Y, the trial judge recorded:
86.Dr [Y] accepted, as I do, that both parents love their children. Unfortunately these parents are somewhat polarised and regard each other’s approach as being unreasonable. To that end, the husband is of the view that the wife’s move to [E Town] is some sort of endeavour by her to limit his time with the children. The parents have managed to keep the conflict away from the children (paragraph 73 of Dr [Y’s] report) and the children’s relationship is evidenced by the comfortable, loving relationship and loving behaviour Dr [Y] observed of them with the parents.
It is in the context of those findings that in specifically addressing s 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both parents – that the trial judge recorded the finding at [90] that “the children have a meaningful relationship with each of their parents”.
In addressing the nature of the children’s relationship with each of their parents (s 60CC(3)(b)) the trial judge recorded the following relevant findings:
95.As I have indicated elsewhere, the wife is the primary carer of the children. The children are closely bonded with both parents. Both parents are engaged in the children’s lives…
…
97.The husband suggested the wife does not facilitate the relationship between him and the children. However, the nature of the children’s relationship with him, particularly after three years since separation, is counter‑indicative of that point of view. Disagreement and unwillingness to adopt the husband’s views is not a failure to facilitate time. The parties have managed, however, in that three years, without the need of parenting orders until the final hearing.
In terms of the “prospective approach” to the interpretation of “meaningful relationship” the trial judge, having recorded the findings referred to, made the following further relevant findings, including when discussing relevant s 60CC considerations, as follows:
101.The husband complains that his relationship with the children will be significantly reduced if the children are allowed to move to [E Town], which is some two hours away by car, and some 63 kilometres. I do not accept the full breadth of the husband’s submission in that regard.
102.It will certainly change their relationship and it will impose, if it occurs, some practical difficulties upon the husband. However, the husband has clearly shown his intention of maintaining his relationship with the children and I believe he will continue to do so.
…
103.In terms of section 60CC(3)(e) of the Act, there will be practical difficulties in the wife moving to a different part of the Sydney metropolitan area, but that is not insurmountable. The children will continue to have relationships with both their parents and grandparents.
104.There may need to be more thought in terms of how that would occur, but the significant relationships with the children will continue. The wife has said, and I accept, that she will endeavour to be more flexible in terms of the arrangements with the husband and how that should occur.
…
112.Each of the parents has in their own ways demonstrated a positive and generally child-focused approach to the parenting of the children from their own subjective point of view. This finding is supported by the evidence of the parties, and more importantly the evidence of Dr [Y].
…
115.The husband has used strong language in terms of the children’s education and social networks, such as “robbed them of their peer support network and destroyed their current routine”. People move and children change schools. Each local community has its own dynamics. I have had regard to the husband’s concerns and his deep and laudable desire to be a meaningful part of their lives. That will continue whatever order I make.
116.The children’s education will continue to be met by the involvement of both parents who are university educated and who both clearly value education.
We interpolate here that the trial judge’s reference in [101] to “some two hours away” is likely to reflect some infelicity of expression. Whilst travel time obviously depends upon traffic conditions and peak travelling times, as was reflected in varying estimates of the travel time given in evidence at trial, we do not discern that there was evidence at trial that the travel time involved uniformly as much as two hours.
This case, unlike cases such as McCall itself, was not a case where the parenting orders were to be determined in the context of the existing relationship between a child and parent being tenuous, or otherwise not meeting the description of “meaningful relationship”. Nor was it a case where the potential geographical distance between the households of two parents was very great or such that physical time spent could only feasibly occur during school holiday periods. As we have noted, the trial judge recorded numerous findings throughout the reasons, including when discussing particular s 60CC “best interests” considerations, supporting the conclusion that the children’s relationships with the father were very well-established and “meaningful” and it is clear that the trial judge considered the future for those relationships in the context of the mother’s proposed move to live in E Town.
Having addressed and made findings about the s 60CC considerations (reasons at [80] to [120]) the trial judge specifically addressed the question of equal time (reasons at [121] to [125]) and there recorded a finding that equal time would not be in the children’s best interests in the short to medium term irrespective of whether the parties lived nearby to each other or whether the mother was living in E Town.
The mother was not obliged to demonstrate compelling reasons for her proposal that she live with the children in E Town. Her right to choose to live in E Town was as legitimate as the father’s right to choose for himself to continue living in the north shore area of Sydney. Necessarily, on the central issues joined between the parties, the focus of the trial judge’s enquiry was whether the children’s best interests overall would be so adversely affected by the mother’s choice as to where she sought to live in continuing to perform her role as the children’s primary carer, as both parents acknowledged to be in the children’s best interests, that some interference with parental rights had to be considered.
As we have sought to demonstrate, the trial judge plainly had regard to the lengthy period of post-separation development, nature and strength of the children’s relationships with the father. Whilst the trial judge did not fully accept the father’s contentions as to how significantly reduced his relationship with the children would be if they lived in E Town (and the father chose to remain living in north Sydney) (reasons at [101]), the trial judge was clearly mindful of the imposition upon, and practical difficulties for, the
children-father relationship (reasons at [102]). As we will shortly refer to, predictions may legitimately play a part in the making of parenting orders for the future. The trial judge found (at [102]) that the father has “clearly shown his intention of maintaining his relationship with the children and I believe he will continue to do so.” As to the mother, having found in effect that she had facilitated the post-separation relationship between the children and the father (reasons at [97]), the trial judge predicted some flexibility in her approach to meeting the practical difficulties (reasons at [103] and [104]). The finding at [106] referred to above reflects the trial judge’s conclusion that the children living in E Town would “certainly make” the father’s relationship with the children “more difficult” but would not “unduly inhibit the relationship”. Balancing that (as [106] reflects) against the mother’s freedom to choose where she wished to live, his Honour plainly concluded that there was no basis for the Court to impose upon the choice of residence of either parent.
The limits upon an appellate court legitimately interfering with a discretionary judgment are well-established, see: House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513. Moreover, the exercise involved in making parenting orders for the future has been recognised by the High Court as “a peculiarly discretionary one” (U v U (2002) 211 CLR 238 at [90] per Gummow and Callinan JJ (with whom Gleeson CJ, McHugh and Hayne JJ agreed)). In CDJ v VAJ (1998) 197 CLR 172 the plurality of the High Court (McHugh, Gummow and Callinan JJ) observed of applications for parenting orders and of their determination as follows (at 218 – 219):
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions…
When the trial judge’s reasons for judgment are considered holistically we are not persuaded that his Honour made any of the errors agitated within these grounds.
The trial judge’s treatment of the evidence of Dr Y (ground 2)
Dr Y, a consultant clinical psychologist, was appointed as single expert for the purpose of preparing a family report. Dr Y conducted interviews in February 2015 and prepared a report dated 13 April 2015.
Much of the preceding discussion dealing with grounds 1, 3, 5 and 6 provides important context to Dr Y’s evidence. In particular, it is to be noted that neither in his written report nor in his oral evidence at trial did Dr Y advance the opinion that if the mother and children moved to live in E Town and the father chose to remain in north Sydney, that a meaningful relationship between the children and their father could not, or would not, be sustainable. So much is clear from the report of Dr Y and he confirmed in his oral evidence at trial to the effect that he did not explore with the father, in the interview process, the prospect of the father moving closer to E Town in order to facilitate time between the children and the father.
Numerous authorities of the Full Court of this Court have emphasised that as a matter of law a trial judge is not bound to accept or act upon any opinion expressed by a family report writer/expert; and it is a matter for the trial judge’s discretion as to what weight is to be given to, or what use is to be made of, expert evidence in the context of all of the evidence. These authorities are conveniently collected in Simmons and Anor & Kingley (2014) FLC 93-581.
It is clear from a reading of the reasons for judgment that the trial judge obviously accepted much of Dr Y’s evidence. For example, Dr Y assessed (report at paragraph 74) that it was clear that the children viewed their mother as their primary attachment figure and also viewed their father as a significant person in their lives. The trial judge clearly accepted these opinions and his reasons for judgment contain many other references to the evidence of Dr Y.
It is notable that Dr Y conducted the interviews for the preparation of his report dated 13 April 2015 on 25 February 2015, more than 12 months prior to the trial. Dr Y had not further interviewed the parties or the children prior to him giving oral evidence at trial. Moreover, at the time of his report it was not the father’s proposal that there ought in future be an equal time (week about) arrangement.
Obviously, by the time of the trial, each of the parents had had significant time to contemplate Dr Y’s report and his opinions.
Central to the father’s complaint within this ground, is that the trial judge accepted the mother’s evidence, in preference to that of Dr Y, as to the children developing “resentment” at having to “endure” a minimum of an hour car trip to spend time with their father. At paragraph 82 of his report Dr Y recorded:
From the children’s perspective, relocation to [E Town] would also place additional stress upon them, as it would involve moving the children away from Sydney, the area in which they have lived since birth, and require them to move from their current school and friends. The children would also have to endure a minimum of an hour car trip to spend time with their father. Such an arrangement would likely precipitate resentment in the children at having to spend a significant amount of time travelling, and this is likely to limit their participation in weekend activities (e.g. soccer or swimming), not to mention the associated exhaustion of the travel. [The mother] contends that this option is being pressed due to her financial difficulties, exacerbated in part by [the father] not being as financially supportive of her as she would like; however [the father] argued that he pays child support, the children’s medical fees, extra-curricular activities fees as well as school fees.
At [70] of the reasons the trial judge recorded:
The wife said she considered the impact of the move on the children and the advice or concerns of Dr [Y] as to the children being resentful. Her view is that given the children’s age and her knowledge of them, they would adjust and they would not be resentful. I accept that evidence.
It was open to the trial judge to prefer the evidence of the mother to that of Dr Y on the question of “resentment” for a number of reasons. First, Dr Y confirmed in his oral evidence at trial that “the issue of resentment” he put forward was “speculative” (transcript 8 March 2016, p. 130, l. 20). That is underpinned by the fact that a reading of Dr Y’s report reveals that there is no subjective or causal connection identified by Dr Y between anything any of the children imparted to him in interview and his postulation of the issue of potential “resentment”. In other words, Dr Y’s oral evidence makes it plain that he was speculating as to a potential risk in general in so-called “relocation” cases as opposed to advancing that opinion by reference to anything specific to this case. Second, and as is reflected in the trial judge’s reference in [70] to the ages of the children, Dr Y referred to “adolescent” children in this context (transcript, 8 March 2016, p. 130, l. 5). These children were aged only eight years, almost seven years, and three years respectively at the time of Dr Y’s February 2015 assessment of them. In the course of cross-examination of Dr Y by counsel for the mother there were these exchanges:
Now, one of the questions that you were asked by my learned friend a few moments ago, again in dealing with paragraph 82 of your report and so far as this issue of any potential resentment, you were asked after you gave your first answer what can it lead to. And I think amongst your evidence was that it could then be a distancing factor so far as the minority parent is concerned. As the children get older and enter adolescence, there becomes the issue of whether or not they want to go and those sorts of things. But given the ages of these three children, we’re a little way off them approaching adolescence, aren’t we?‑‑‑That’s fair.
And it’s fair to say, isn’t it, at the moment they’ve got – at least from the time that you saw the children with their father that they’ve got a secure attachment with him?‑‑‑I believe so.
And from the material that you’ve read yesterday, bringing that up to date, there would be nothing in that material which would lead you to believe that at the moment they’ve got anything other than a secure attachment with him?‑‑‑I will accept that.
Third, the trial judge found (as had Dr Y assessed) that this obviously intelligent, tertiary educated mother was “child focused”, “organised” and made “relatively thoughtful, flexible, child-centred decisions” (reasons at [67]). As already referred to, the trial judge found it was particularly to the mother’s credit (given the children’s ages at, and the period since, separation) that each child “has a close relationship with the father” (reasons at [81]). The trial judge’s finding at [70] reflects his Honour’s satisfaction, on the mother’s evidence, that she had considered the concerns of Dr Y as to the children becoming resentful (which was in fact a matter of speculation) but had reached her own conclusion about the likelihood of that speculative risk being realised, based upon those matters his Honour identified. Finally, having seen and heard the witnesses give oral evidence at trial, the trial judge enjoyed advantages unavailable to an appeal court in assessing the merits of the mother’s evidence vis-à-vis the speculative opinion of Dr Y.
We need not repeat what we have already said about the central task the trial judge confronted on the issues joined in the case in circumstances where both parties proposed, as at trial, that the children should in their best interests continue living in the mother’s primary care. We are not persuaded that the trial judge fell into error in the manner in which his Honour approached the evidence of Dr Y in addressing the central issues in this case. We therefore find no merit in these grounds.
The trial judge’s analysis of the mother’s financial position (ground 4)
The father asserts in support of ground 4 that:
His Honour failed to analyse the evidence and identify the extent of the Wife’s financial position during 2014 before criticising the Husband in his analysis of s.60CC(3)(ca) considerations, and further failing to analyse the evidence of the commitments made by the Appellant as identified in Exhibit H-3 and in his oral evidence. Further, that his Honour failed to identify to what extent his findings (such as they were) impacted upon his decision.
What is characterised as the trial judge “criticising” the father is found at [100] where his Honour said:
The husband has paid child support and each parent has with capital payments provided the accommodation in which the children presently primarily reside. Initially this was [J Street, Suburb K], now it is [L Street, Suburb H]. As I have said elsewhere the husband has a rigid view that the wife should be primarily responsible for her own financial support and he had declined her requests to pay spousal maintenance and disconnected services to the home in which the children resided at a time when he could have easily met those expenses.
The father himself advances, as above, that the trial judge “failed to identify” to what extent this finding impacted upon his decision. With respect, that is of fundamental importance. Even assuming it to be demonstrated, as the father contends, that the mother had ample financial capacity to meet the utility account at the time, and that the trial judge was thus in error in respect of this issue; there is nothing whatsoever to suggest that any such error was material to the trial judge’s determination.
It cannot have had any relevance at all to the trial judge’s conclusions as to the relationship the children enjoyed with the father given the numerous positive findings and overall conclusions by the trial judge in that respect. It can only have been arguably relevant to the degree of acrimony in the relationship between the parents. However, there was ample other evidence that the parents did not communicate well and had a poor relationship and it cannot be said that this error, if it was an error, was material to that conclusion (De Winter and
De Winter (1979) FLC 90-605).There is no substance in this ground.
Conclusion and costs
As we have found no merit in any of the grounds of appeal, the appeal is to be dismissed.
In that event, the mother sought an order that the father pay her costs of and incidental to the appeal. That application was not resisted by senior counsel for the father in the circumstances that the appeal was to be dismissed. We are satisfied that the father having been wholly unsuccessful in the appeal, an order for costs in favour of the mother is justified.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Kent JJ) delivered on 28 February 2017.
Associate:
Date: 28 February 2017
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