Wendland & Wendland
[2017] FamCAFC 244
•21 November 2017
FAMILY COURT OF AUSTRALIA
| WENDLAND & WENDLAND | [2017] FamCAFC 244 |
| FAMILY LAW – APPEAL – PARENTING – Appeal from a final parenting order permitting the child to relocate to wherever the mother is posted by the Australian Defence Force (“ADF”) – Whether the making of the order was unreasonable – Whether the order effectively gives the mother a “blank cheque” – Whether the primary judge failed to properly evaluate the effect a relocation would have on the relationship between the child and the father and paternal grandmother – Weight attributed to the evidence of the family report writer – Whether findings of fact about the mother’s circumstances if she was discharged from the ADF were open to the primary judge – Where the findings and order made by the primary judge were open on the evidence – No error demonstrated – Appeal dismissed – No order as to costs. |
| Family Law Act 1975 (Cth) ss 60CC, 65DAA |
| Gronow v Gronow (1979) 144 CLR 513 Muldoon & Carlyle (2012) FLC 93-513 |
| APPELLANT: | Mr Wendland |
| RESPONDENT: | Ms Wendland |
| FILE NUMBER: | BRC | 9284 | of | 2016 |
| APPEAL NUMBER: | NA | 51 | of | 2017 |
| DATE DELIVERED: | 21 November 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 16 November 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 8 September 2017 |
| LOWER COURT MNC: | [2017] FCCA 2295 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Bertone (by video link from Brisbane) |
| SOLICITOR FOR THE APPELLANT: | Parry Coates Family Law |
| THE RESPONDENT: | In person (by video link from Brisbane) |
Orders
The appeal is dismissed.
There be no order as to costs.
Notation
(A)The parties have agreed that when the matter is next before the Federal Circuit Court of Australia they will jointly seek an amendment to Order 16 made by Judge Vasta on 8 September 2017 to add the words “within the Commonwealth of Australia” immediately after the word “wherever”.
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 Wendland & Wendland 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: NA 51 of 2017
File Number: BRC 9284 of 2016
| Mr Wendland |
Appellant
And
| Ms Wendland |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Wendland (“the father”) and Ms Wendland (“the mother”) have a child who was born in 2013 (“the child”). Since the child’s birth the parties have lived in Town H, Queensland. However, as the mother is employed by the Australian Defence Force (“the ADF”), it has always been possible that she would be posted to another area.
As the prospect of such a posting became more likely and imminent, the mother sought an order that she be permitted to take the child to live with her wherever she is posted. That order was opposed by the father who proposed that if the mother was to relocate, the child should live with him in Town H.
After a hearing on 6 and 7 September 2017, on 8 September 2017 Judge Vasta made the following order (Order 16):
That the Child be permitted to relocate to wherever the Mother is posted by the Australian Defence Force.
The father appeals against the making of that order.
At the outset it is important to record that at the time of the hearing it was not known if, when or where the mother might be posted. Indeed, the father argued that a posting to another area was neither likely nor imminent and therefore the application was premature. Alternatively, he submitted that the mother’s application should be dismissed because until the location of any posting was known, informed decisions could not be made as to what was in the child’s best interests.
It is now known that the mother has received a posting order requiring her to relocate to another State in early 2018. Hence, this appeal has been greatly expedited.
Background
The mother has been employed by the ADF since she was 20 years old. At the time of the hearing she had been working for the ADF for over 18 years.
The father grew up in New South Wales and at the time of the hearing was employed in a service industry in Queensland.
The mother was posted to an ADF facility at Town H in 2008. The parties met at a gym in Town H and in mid-2012 commenced a casual relationship.
A probable posting of the mother to Town Y at the end of 2012 did not occur because the mother was pregnant. After the child was born she took time off from work before returning part-time at first. The child was placed in on-base day care where the mother was working and the paternal grandmother also took care of the child. The father continued to work full time.
The primary judge found that notwithstanding the birth of the child, the parties planned to move as a family in the event the mother was required to work elsewhere.
In late 2014 the parties married. They separated in March or April 2016.
In mid-2016 the mother became aware that she would be posted to Town G from January 2017. On 21 December 2016, after an interim hearing, the primary judge refused the mother permission to take the child to Town G. The posting did not proceed and the mother remained employed by the ADF at the ADF facility at Town H.
At the time of the hearing the child lived with the mother. She spent time with the father every afternoon from Monday to Thursday from after day care to dinner time. In addition, she spent every alternate Wednesday night and each alternate Friday and Saturday night with the father, returning to the mother’s care on Sunday afternoons.
At [26] his Honour found that the mother had approached the hearing in a child-focussed way. Whilst at [36] the primary judge also found that the father approached it “as a battle between he and the mother which he is now determined to win”, his Honour had little doubt that the parties each had a committed involvement with the child and treated her with “the upmost [sic] love and consideration” (at [68]). By and large, they had been able to agree on appropriate arrangements for her.
In the course of opening her argument in the appeal, counsel for the father criticised the breadth of Order 16, saying that it permitted the mother to take the child with her anywhere she may be posted, including overseas, without the knowledge or consent of the father. Whether the mother could in fact take the child overseas, reading the orders as a whole, is doubtful. The orders provided for the mother to inform the father of any changes that would make it more difficult for the child to spend time with him (Order 17(d)) and she was required to consult the father about any exercise of their equal shared parental responsibility (Order 18). In addition the father was to hold the child’s passport and was only required to release it to the mother on the “receipt of the itinerary and return tickets for the child” (Orders 40 and 41).
Nonetheless, the mother informed us that she did not intend to relocate outside Australia and that such a permanent move would not be in the best interests of the child. Accordingly, the parties agreed that Order 16 should be amended so as to make it abundantly clear that any relocation must be within Australia. We will note that agreement, as we consider that the orders, in this case, should be amended by the Federal Circuit Court of Australia and not by this Court.
The Appeal
It is convenient to deal with the grounds of appeal in the manner in which they were approached by the father’s counsel.
Was the decision of the primary judge so unreasonable as to amount to an error of law and did the primary judge err by, in effect, giving a “blank cheque” to the mother? (Grounds 1 and 2)
The father submitted that the following demonstrated the unreasonableness of the order:
·the child had lived her whole life in Town H;
·the child was spending regular time with the father every week; and
·the writer of the family reports did not support the child relocating.
It therefore follows, he submitted, that the finding of the primary judge did not give effect to the best interests of the child because any relocation does not allow for the child to maintain a meaningful relationship with both parents.
Points 1 and 2 are undoubtedly true but, of themselves, cannot operate so as to be an absolute bar to a relocation. The test is what is in the child’s best interests and those are but two of the matters that must be taken into account.
The primary judge also took into account the following matters:
·the mother approaches parenting arrangements in a child-focussed manner (at [26]);
·the mother has provided the bulk of the financial support for the child and, following the finalisation of the property settlement proceedings between the parties by consent pursuant to orders made on 8 September 2017, will be the sole source of financial support for the child (at [49] and [50]);
·that it was not a reasonable proposition to expect the mother to give up her career with the ADF and the significant disposable income it gives her (at [53] and [54]);
·that if the mother was not permitted to relocate with the child there would be significant changes to the child’s life “because of the changes to the mother’s status and to her income” (at [55]). We infer from this that the primary judge accepted the mother’s evidence that she would give up her career and live in Town H in order to continue to be the child’s primary carer if the proposed relocation was refused;
·that it was important for the child to have a meaningful relationship with both parties who were committed parents treating her with love and affection (at [67] and [68]);
·the child has a very close relationship with the paternal grandmother who lives in Town H. She is the child’s only surviving grandparent (at [70(b)]);
·if the mother were permitted to relocate on four occasions per year she would facilitate and pay for the father to travel to where she and the child lived to spend five consecutive nights with the child and would leave her home to enable the father to stay there with the child. She would also facilitate the child spending half of the school holidays with the father. The mother can presently afford this, while the father cannot (at [70(e)]); and
·the fact that the child “will identify as the daughter of a woman who has made good and is a proud member of the ADF is an important consideration” (at [70(g)]).
The primary judge also referred to the evidence of Mr P (“the family report writer”). The primary judge said:
42.In his report, [the family report writer] noted the following in paragraphs 94 and 95:
“In the event that [the child] relocated to [Town G] with [the mother] in early 2017, or relocates before or by earlier 2019, [the father] would be challenged to consider whether or not to also maintain his care opportunities with his daughter. This would entail him leaving his paid work, family, partner, housing, and long-term [Town H] lifestyle and connections, and to locate or create new housing, paid work, relationships and a lifestyle. It seemed reasonable to suggest that an unsought for relocation could adversely affect his global functioning with the removal of his significant structural and relationship connections and hence his parenting of [the child].
It was also proposed that it was possible that in the event that [the mother] were allowed to relocate [the child] and [the father] followed, he may be in a similar situation at a future time if and when [the mother] had a further posting.
In late 2016 it was suggested that in the event that [the mother] were not permitted to relocate [the child] to [Town G] and the girl was in [the father’s] primary care in [Town H], she, that is the mother, would be challenged to consider whether or not to forfeit her own relocation and ADF position in order to maintain her care opportunities with her daughter. This would entail her leaving her secure, established career while preserving her long-term [Town H] housing lifestyle and/or connections. It seemed reasonable to suggest that an unsought for cessation of her ADF career could adversely affect her global functioning with the removal of her established [ADF] structure and relationship connections, and hence, her parenting of [the child].”
43.Those two paragraphs do, in my view, really encapsulate what this trial has been all about.
His Honour recorded the following opinion of the family report writer:
46.At paragraph 103 [the family report writer] says this:
“It was suggested that it seemed reasonable to acknowledge that such shifts in physical and lifestyle locales, peer friendships, schools, housing and routines may assist [the child] to develop resilience, adaptability and flexibility, or they may also present her significant adjustment challenges which erode or compromise her functioning. In a nutshell, the court has to consider whether it will be in the best interests of [the child] to allow her to relocate if the mother is posted to somewhere other than [Town H].
The real difficulty in making such an assessment is that [the child] is still very much a blank slate. She is too young to really understand the enormity of what such a decision will mean. If it is that such a move would help develop resilience, adaptability and flexibility whilst maintaining the lifestyle that she has had, this may be in her best interests. But if such a move would mean that there were significant adjustment challenges which eroded and compromised the functioning, then this would not be in her best interests.”
In a passage of his oral evidence relied upon by the father but not specifically referred to by the primary judge, the family report writer said:
And I certainly – if you don’t have any firm opinions, that’s fine, because in the end the ultimate question is for me, but I thought, given that you’ve had now two reports and you’ve seen the parties over some time, if there were any opinion that you did have, I’m quite happy for you to proffer it? –Your Honour, I can say that at the latter stage of the updated report interviews, I had discussions directly with both [the father] and [the mother], and we talked about the dilemma of trying to – offer them to try to make a decision about relocation without the building blocks of where that posting potentially could be, whether or not it would be for the same duration of time, about the parties’ dilemmas of one leaving [Town H] to follow the other, or one leaving [the child] behind in [Town H] and returning. These were all part of – to both parties’ credits, I think, are fairly direct and transparent discussion, and I think even the parties largely agreed that it was hard to make a peremptory or anticipatory decision without having those – those fundamental bits of information. By default, I would have to say, in response to your question, I would find it difficult to endorse – I’m going to use a colloquial expression, with permission.
Yes. Absolutely? – It’s hard to sign a cheque with no amount or other detail on there without knowing what – the currency of the relationship, co-parenting, father/daughter relationship, mother/daughter relationship, and also what circumstantial changes there could be in the parties’ other adult re-partnerings, stepchildren, half-siblings, so based on all of those unknowns, I was not in a position, in that report, to recommend, in an anticipatory way, a relocation for [the child]. So that’s how – or that was part of the thinking in how I arrived at this recommendation.
(Transcript 7 September 2017, p. 122)
Thus, the family report writer opined that without knowing the proposed destination, the effect on the relationship between the father and the child, for example, could not be determined and therefore he would recommend against the order proposed by the mother.
It was, however, also clear that in his first report the report writer was not in favour of a relocation to Town G, saying he was “unable to endorse [the child’s] removal from [Town H], and the father and others”.
All this led his Honour to conclude:
80.I have carefully considered all of the submissions that have been made. It does seem to me that if I accepted all of the submissions made of the father, it would be very hard to ever justify any child relocating from where the child grew up, especially if there is no risk to the child and especially if the presumption had not been displaced.
81.But Courts order relocations all the time, as long as such a relocation is in the best interests of the child. The main argument that the father advances is that his relationship with [the child] will necessarily be diminished if relocation is allowed.
82.Godfrey & Sanders [2007] FamCA 102 was a case where a single judge of the Family Court constituted a Court of Appeal, following the decision of a then-Federal Magistrate. That case brought together all the relevant authorities in relocation cases. I do not propose to go through all that was said in that case, other than to adopt the ratio decidendi.
83.I accept that, in relocation cases, the best interests of the children remain the paramount consideration. On the issue of whether a relocation will affect the relationship between the children and the parent who will not relocate, at paragraph 36, His Honour said:
“Even if the move results in the diminution of quality of the relationship, what the legislation aspires to is to promote a meaningful relationship, not an optimal relationship.”
84.There is little doubt that allowing [the child] to relocate will diminish the quality of the relationship between the father and [the child]. There will be a loss if [the child] moves away from [Town H]. On the evidence before me, I have no doubt that the mother will do all that is needed to ensure that there is still a meaningful relationship between father and daughter.
85.One of the big factors I have looked at is that the mother has come from a prejudiced upbringing. Through sheer willpower, she has forged a career with the ADF to the extent that the ADF is now part of who she is. The ADF was a part of who she was when she met the father. The ADF was a part of who she was when she conceived [the child]. The ADF was a part of her when she gave birth to [the child], and the ADF is still part of her now as she continues to care for [the child].
86.If the mother were to leave the ADF, I am of the view that it would change who the mother is. It is not simply a case of the mother facing unemployment and having to look for another job. It is actually changing the very being of who the mother is. Such a profound change in who the mother is would also result in a profound change for [the child]. This is in keeping with what [the family report writer] has already observed in the parts of the report that I have already quoted.
87.As it is at the moment, the mother is a fantastic role model for [the child]. She is illustrating to [the child] that an individual does not have to succumb to their environment. An individual can rise above their surroundings and empower themselves. This aspect of the mother is a cornerstone of the relationship of the mother as with [the child].
88.While there is no doubt that whatever decision I make will change the relationship that [the child] has with her mother or her father, I am of the view that the very core of the relationship between [the child] and her father will not change, despite them being separated by distance. While the relationship will not be optimal, it will still be meaningful.
89.This is in contrast to the relationship between the mother and [the child], which would change drastically if the mother were to leave the ADF and, in effect, change her very identity.
The conclusions of his Honour at [80], [81], [83] and [84] clearly take into account the evidence of the family report writer and in particular his opinion that a relocation would diminish the relationship between the child and the father and paternal grandmother. In the balance of those paragraphs the primary judge set out his conclusions as to the other matters he took into account. As the primary judge then said at [90], this was not an easy decision and there were negatives with any decision that might be made. On balance, his Honour considered that the child’s best interests were served by maintaining her relationship with the mother as a member of the ADF.
As can be seen, the challenge of the father relies on but three of the matters that were taken into account by the primary judge. The weight to be given to different considerations by a trial judge is very much a matter for that judge and challenges on this basis face a high bar: Gronow v Gronow (1979) 144 CLR 513.
The father goes further and submits that the decision was so outside the proper exercise of discretion as to be plainly wrong, relying on what was said in Gronow at 519–520.
We do not agree. As the primary judge said, this was not an easy decision to make and was finely balanced. We consider that the findings made by his Honour and his order permitting the mother to move the residence of the child were open on the evidence. The three matters identified by the father cannot simply be taken into account on their own. As the primary judge’s consideration shows, the matter was much more complex than that.
It was submitted that the order simply but erroneously gave the mother a “blank cheque” as to the child’s future, and further that his Honour erred by not making orders that would facilitate the maintenance of the child’s relationship with the father.
As to the first, the primary judge was well aware of the nature of the order he was making. At [19] and [70(l)] his Honour said:
19.This is a difficult matter because the proposal by the mother is still somewhat inchoate. Unlike the interim hearing where there was a definite proposal to relocate to a specific place, this hearing is about whether the Court would, in essence, write the mother a blank cheque to relocate to wherever the ADF sends her. This is because most of her postings will be for a period of approximately two years and it is not practical nor is it in the best interests of [the child] for there to be litigation every time the mother has been given notice of a new posting.
…
70(l).This hearing is almost a pre-emptive hearing. If the mother remains in the ADF, she will be subject to postings to places not of her choosing. These postings may last from one to four years. It cannot be that every time the mother has a posting that litigation must ensue. This is a question that needs to be answered and answered now: is the mother permitted to relocate [the child] to wherever she is posted, or is [the child] to remain in [Town H]?
The primary judge therefore correctly noted the wide nature of the proposed order and the fact that the mother is likely to be subject to further postings. As his Honour identified, s 60CC(3)(l) of the Family Law Act 1975 (Cth) (“the Act”) requires the court to consider “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child”. After undertaking that consideration in conjunction with the other considerations his Honour was of the view that the order he made was supported by s 60CC(3)(l). This course was entirely open on the evidence.
As to the second, after making a number of interim orders by consent, designed to operate until any relocation, the primary judge also relisted the matter on 21 November 2017 and made the following direction:
1.That the parties are to discuss between themselves arrangements for the child to spend time with the Father.
a.That in the event no agreement can be reached the parties are to file and serve proposals as to the time the child spend with the father by no later than 4:00pm on 20 November 2017.
Clearly, the appropriate orders as to the manner in which the father is to spend time with the child remain to be determined. As it is now known that the mother and child will be moving interstate, that process can be attended to with some certainty.
As these orders are yet to be considered the primary judge did not err. After all, it is clear that, in accordance with the parties’ wishes, on 8 September 2017 his Honour was only considering the issue of whether the mother could move the child’s residence.
These grounds have not been made out.
Did the primary judge fail to place adequate weight on the evidence that the child had a meaningful relationship with the father and the impact that relocation would have on their relationship? (Ground 3)
The father submitted that the primary judge gave no reason for not accepting the opinion of the family report writer that the child was attached to both parents and others rather than being primarily attached to one parent, failed to consider the impact on the child of separation from the father and gave no weight to the opinion of the family report writer that the child should live with both parents and see both regularly.
We observe at the outset that the primary judge was not obliged to accept the opinion of the family report writer. The evidence of an expert is simply evidence that must be considered along with all the other evidence in the matter. It is for the trial judge to determine the weight to be given to it: see Muldoon & Carlyle (2012) FLC 93-513 at [105] and the cases cited therein.
The primary judge clearly had in mind both the close and meaningful relationship presently existing between the child and the father and the fact that any relocation of the child would diminish that relationship.
We have already referred to the findings as to the value of the meaningful relationship with the father made by his Honour at [68]. Similarly, the effect of a relocation was recorded at [84] and [88] which was that, in the event of a relocation, “[w]hile the relationship will not be optimal, it will still be meaningful” although the quality of the relationship would be diminished.
Thus it is entirely incorrect to say that the primary judge did not consider the impact of the relocation on the child and her relationship with the father.
As to the balance of the submissions we are unable to see that his Honour made any finding that the child was primarily attached to the mother. Indeed, the findings would point to the contrary – namely, that the child has a meaningful relationship with both parents who have a committed involvement with her and that she also has a very close relationship with the paternal grandmother. This is, in effect, an acceptance of the family report writer’s opinion that the child had multiple attachments but that he could not presume to identify where the greater attachment or dependency lay (Transcript 7 September 2017 p.124, line 30).
The father submitted that it was implicit in [86], [88], [89] and [91] of his Honour’s reasons that there was a finding that the mother was the primary attachment figure. We do not see that as being the case.
Finally, we consider that no error has been shown in the weight that was given to these matters.
This ground has not been established.
Did the primary judge fail to consider, weigh and assess all the evidence relevant to the considerations in s 60CC? (Ground 4)
The father repeated submissions as to the weight to be given to the evidence of the family report writer, the effect on the child of any relocation, the significance of the relationship between the child and the paternal grandmother, that the proposed order meant more than one relocation could take place and the matters raised under Grounds 9 and 10. There is no point in addressing them again.
The submissions that remain to be considered under this ground are therefore twofold. The first is that in the discussion and weighing of the s 60CC considerations his Honour did not refer to the evidence of the father or the family report writer. The second is that because the area of the proposed relocation was not known, the primary judge could not assess the practical difficulty and experience of the child spending time with the father for the purposes of s 60CC(3)(e) or the effect of the change upon the child for the purposes of s 60CC(3)(d).
As to the first matter raised the father’s Summary of Argument did not identify any particular evidence of the father or of the family report writer that should have been taken into account, the particular subsection of s 60CC to which it was said to be relevant and how it was said that the failure to take those matters into account affected the primary judge’s evaluation of the relevant s 60CC factors. It is difficult to take that aspect of the submissions further.
In any event, the submission is based the misconception that all of the evidence was not considered for the purpose of s 60CC. The primary judge’s express consideration of the s 60CC considerations is concise and contained within [70]. That consideration follows an extensive discussion of the issues and the evidence in the preceding 69 paragraphs. Clearly, [70] must be seen in that light and it is fatuous to suggest otherwise. Equally clearly, the reasons contained within [70] are based upon all of the evidence including that of the father and the family report writer. We note too that evidence of the family report writer is specifically discussed and quoted in [70(g)].
Moreover, a trial judge is not required to discuss every piece of evidence in his or her reasons: Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447 at [62].
There is no merit in this aspect of the ground.
As to the second argument raised under this ground, it is obvious that as the site of any proposed relocation was unknown, the precise practical difficulty and expense of the father spending time with the child could not be known.
The primary judge dealt with this by assuming that for the child to spend any time with the father, air travel would be required. His Honour said (at [70(e)]):
I have taken into account the practical difficulty and expense of [the child] living away from the father. The problem is that it is unknown where [the child] would relocate if I made such an order because the ADF have not yet informed the mother. This is compounded by the fact that such a posting for the mother may only have as little as 12 months effect. I have taken into account the mother’s offer that she would pay for the father to travel to wherever the posting is on four occasions a year during the school term so that the father can spend five consecutive nights with the child. The mother has said that she would vacate her residence and allow the father to have full access to the residence and her car for the duration of any stay. She would also facilitate the child spending half of the holidays with the father. Given the meagre wage that the father is now earning, the financial impost upon him would not be great, however the emotional impost is a different story.
That reasoning is applicable to any location to which the mother might be sent and casts the burden of expense on her. In other words, the primary judge found that the order proposed, notwithstanding its breadth, permitted the child to spend time with the father in a manner that was reasonably practicable and could be afforded. We consider that this finding was open on the evidence.
The father submitted that until the destination of any proposed relocation was known, the effect of any change on the child could not be assessed. As we have observed elsewhere, the primary judge proceeded on the basis that wherever the mother was posted, significant travel would be involved. This submission therefore has little force. The father also submitted that the primary judge did not give significant weight to the likelihood of multiple relocations. Both these submissions challenge the weight the primary judge gave these matters.
These matters were taken into account and the weight to be given to them was very much a matter for his Honour. The weight he attributed to them was not unreasonable.
It follows that there is no merit in this ground.
Did the primary judge err in finding that the family report writer does not make any firm recommendations? (Ground 5)
The father submits that the primary judge erred because it is said that, contrary to what his Honour recorded at [38], the family report writer did, in fact, make “firm” recommendations and that if the recommendations had been properly identified and considered as such, the order permitting relocation would not have been made.
We repeat that the opinion of an expert, even a single expert, is not determinative of proceedings. It is up to the court whether or not to accept that opinion and, if accepted, what weight is to be given to it. Even a “firm” recommendation therefore does not necessarily carry the day.
The primary judge said this of the family report writer:
37.I have had the advantage of two reports and viva voce evidence of [the family report writer]. [The family report writer] has thoroughly canvassed all the issues and his reports and evidence have been of great assistance to me.
38.He does not make any firm recommendations, simply because there are too many unknowns about where the mother would relocate and what the situation would be at that place or places. [The family report writer] commented that apart from specific instances surrounding the Christmas and birthday, those two incidents I already mentioned, the parents do seem to be able to reach consensus on many issues since I made the orders on 21 December 2016.
39.[The family report writer] commented that [the child] had a “rich relationship landscape” and that this helps the child establish “who she is” and “what is her story”.
40.[The family report writer] said that the factors that influence the security of a child are “faces, places and paces”. That is, in effect, familiarity with persons around her who are not only there but also do things for her; a familiarity with her home and other significant places and buildings; and, finally, a routine. If those things change, then uncertainties are created and those uncertainties may erode the security of the child.
41.[The family report writer] commented that if [the child] were to move, that would mean that there will significant gaps in her relationship landscape and it would seem that the only person who will be able to “patch” those gaps is the mother; and the question is whether the mother could actually perform those duties.
These paragraphs are a concise summary of the family report writer’s reasons for not favouring a relocation for the child. Thus, it must follow that the primary judge was well aware of the family report writer’s views about relocation and clearly gave them significant weight.
As we have said, on 13 December 2016 the family report writer prepared a report on the basis that the mother was seeking an order permitting the child to live with her in Town G. As we know, the primary judge, on an interim basis, declined to make that order. The report contained the following recommendation:
90.The report recommend the following for others’ consideration-
·Shared parental responsibility for [the child] for [the father] and [the mother].
·[The child] to live inclusively with [the mother] and [the father], promulgated immediately or within a limited, defined, time period through incrementally introduced, further father-child days and nights.
This would suggest that both parents live in close proximity to each other and, it is noted, this has been, for the entirety of [the child]’s life, in the [Town H] area. Further, it is noted that [the father] indicates that he will not relocate to [Town G], and will have limited care of, and contact, with the child if [the mother] and the child relocate, and [the mother] indicates that she will not relocate to [Town G] without [the child]. [The child]’s retention in [Town H] preserves her relationship landscape and routine now, and, prospectively, in some 3 years’ time. The report is unable to endorse [the child]’s removal from [Town H], and the father and others.
On 21 August 2017 the same family report writer completed an updated family report. Due to illness, the child was not seen by the family report writer. The report consisted largely of the text of the original report with additional paragraphs and some amendments. It contained the following recommendation:
105.The December 2016 FR, and this August 2017 UFR, recommend the following for others’ consideration-
·Shared parental responsibility for [the child] for [the father] and [the mother].
·[The child] to live inclusively with [the mother] and [the father], within a defined time period, through incrementally graduated further father-child days and nights.
This was and is suggested in the context of both parents living in some proximity to each other, which was noted for the entirety of [the child]’s life to be in [Town H].
The primary judge also had the benefit of the following oral evidence of the family report writer:
And so if [the child] were to move away – and we don’t know where – but away from [Town H] where she currently lives, [the child] would have that sense of loss, wouldn’t she, for losing that regular contact with her paternal grandmother, wouldn’t she?‑‑‑I think it’s more reasonable to expect that would be the case. Conservatively, I would say, at least, there’s the uncertainty of how she would adjust, and then, if one could be more robust, whether or not we can presume that she will be, in some way, diminished or eroded in her sense of security by that further loss. If I could say it this way – and this is my Sesame Street version, I apologise, but I think children gain a sense of security through the faces, the places, and the paces, so the significant people, the significant environments and the routine, and I think anything that unravels that or dilutes that, does at least I think reasonably have potential to erode or compromise the child’s sense of security. When I look at the faces, places and paces, I have to acknowledge [Town H] and the paternal grandmother as part of that, plus the routine, so I’m looking at the people, environment, and routine, so there are uncertainties created by that.
And there would be, wouldn’t there, the deep loss to this little girl, who’s four and a half, of seeing her father on a regular basis?‑‑‑Yes. I’m acknowledging – and I’m not presuming to quantify where the greater attachment or dependency is, but I’m acknowledging that there are levels of attachment to all of these people. I’m also mindful, when I respond to your question, that we’re not looking at, perhaps, a one-off relocation. As far as I understand from my dealings with the parties, we’re looking at perhaps further subsequent, so it might be how many times does one transplant a plant from one pot to another pot to another pot, and at what juncture do we say that it’s best not to transplant that little plant because it may or may not take root, it may or may not flourish, so they’re the uncertainties, I think, reasonably we can say.
(Transcript 7 September 2017, p. 124, lines 13–39)
Thus the family report writer said that he thought “faces, places and paces” were important to children and in this case suggested that a change could be detrimental. This led his Honour to ask the following questions:
So it’s very, very good, but are anything – out of those faces, places and paces is any one of those more important than the other, or is it really you’ve got to have a look at the child and see what the mixture of those things are?‑‑‑Yes, your Honour. I think it is a matter of – it is hard for me to presume in any way to quantify one more than another.
Yes?‑‑‑It is at least landscaping and saying this is what they are. They are all important to greater or lesser measure and working on the theory that the fewer changes to those landscaped columns the better, as a general rule of thumb.
Yes?‑‑‑I’m also mindful of perhaps that’s even more pressing where we’re dealing with an only child. Where we have a ..... I am mindful, like a turtle, a child can carry some its emotional shell with them, but where a child is a sole, only child I think they actually carry a great more than sometimes we appreciate.
Yes. No, I understand that. Obviously, change is part of life?‑‑‑Yes, your Honour.
And whatever happens here there is certainly going to be changes in, at the very least, the paces part of this. So what the evidence that the mother has presented, and there really hasn’t been any really challenge to this, that if it is that the – all the faces and all the places stay the same it may mean that she has to leave the Defence Force, which will mean that the paces change and may change significantly, because there will be less money in the household. It may mean that there’s more hours to be worked by mum or dad, that is if mum can find somewhere else to work, and those sorts of things. It just seems to me whatever happens we’re going to have some form of change. How ‑ ‑ ‑?‑‑‑Yes, your Honour.
(Transcript 7 September 2017, p. 132, lines 4–29)
The primary judge was therefore aware not only that the family report writer was not in favour of the proposed order, but also that he was not in favour of any relocation that took the child any distance away from the father or paternal grandmother. As his Honour gave reasons the following day, it could not readily be inferred that this evidence was forgotten. As we have said, the primary judge regarded any diminution in the relationship between the child and the father and paternal grandmother as a significant matter.
Whether or not these opinions can be regarded as “firm” and worthy of more weight than a recommendation not described as firm is an idle semantic point. It is clear enough that there were recommendations against any relocation. However, the opinion of the family report writer was not unequivocal. For example, the family report writer said:
103.The preceding FR noted that [the mother] may be subject to further ADF postings which, for [the child] to have an inclusive care and parenting experience, would impose on her and [the father], the need to relocate a further or further times. It was suggested that it seemed reasonable to acknowledge that, while the FR was limited to conjecture, such shifts in physical and lifestyle locales, peer friendships, schools, housing and routines may assist [the child] to develop resilience, adaptability and flexibility or, they may also present her with significant adjustment challenges which eroded or compromised her functioning.
(Family report, 21 August 2017, p.42)
In any event, the family report writer’s recommendations were not firm in the sense that he could only make a “firm” or final recommendation if the location of any proposed relocation could be identified.
Thus it cannot be said that the primary judge erred by saying that the family report writer’s recommendations were not firm.
The primary judge took all of this evidence into account. His Honour said that he found the evidence of the family report writer to be of great assistance. For the reasons set out by his Honour, weight was given to the family report writer’s opinion, but weight was also given to the mother’s freedom to pursue her career and to live where she wished and, most importantly, the effect on the child if the mother were forced to abandon her career and remain living in Town H. Significant weight too was given to the finding that in the event of a relocation the child would still maintain a meaningful relationship with the father, albeit one of a different nature.
The weighing of these matters was quintessentially a matter for the primary judge. There is no basis for finding that there was any error in the way that his Honour approached that task.
No error has been demonstrated.
Did the primary judge err in failing to place any or any adequate weight on the oral evidence of the family report writer as to the detriment to the child due to: (a) relocation to an unknown place, (b) any subsequent relocation, especially as the child is an only child, (c) relocating the child away from her father and the paternal grandmother, and (d) changing schools potentially more than once? (Ground 6)
The father’s submission, as set out in the heading, faces the difficulty with challenges to the weight to be given to various considerations (see above at [30]). It faces the further difficulty, however, that the primary judge clearly had regard to these matters.
The family report writer’s evidence included:
And that’s important for [the child], isn’t it, to have that time with extended family on both sides, isn’t it?‑‑‑I think it’s fair to say that all little ones need a rich relationship landscape, so experiences of lots of important people in order to take those direct experiences – and the ones that parents indirectly also facilitate – to have a sense of who they are, where they come from, who do they belong to, because other people are part of their story. I do subscribe to the maxim that it does take often a village to raise kids, and so [the child]’s sense of self, you would think, with good experiences would only be enhanced by more people contributing more colourful, healthy, robust building blocks for her.
And in fact since she was born, she has lived in [Town H] and lived with – apart from her primary parents, of course?‑‑‑Yes.
But lived with seeing her paternal family, extended family, regularly, hasn’t she?‑‑‑I understand that to be the case with, I think, with [the paternal grandmother] having been, at times, an ad hoc carer, at times part of a structured care routine as well as the – as far as I understand, the only available grandmother.
…
And so in respect of this girl where she is today, her age and her multiple attachments to her parents, you accept, don’t you, that she really should – sorry – would benefit from continuing to see both of her parents as often as resources allow, I think is how you’ve put it in your report?‑‑‑Yes. To – to minimise the disruption, to prevent as far as possible the uncertainties or the possible risks with multiple changes, yes.
(Transcript 7 September 2017, pp. 123 and 128)
The primary judge, in a passage we have already set out at [63] above, quoted directly from the first set of answers at [39]–[41]. The benefit of seeing both parents “as often as resources allow” and the risks associated with multiple changes were noted at [46], [47], [68] and [70(c)], [70(d)], [70(f)] and [70(l)].
It follows inexorably from the fact that the mother may be posted to different places that the child would be obliged to change schools.
Therefore it is entirely wrong to suggest that the primary judge failed to consider these matters.
Again, we consider that the weight given to these matters was not unreasonable. They were but some of many matters that were taken into account.
This ground fails.
Did the primary judge err in making findings that were not open on the evidence? (Grounds 7 and 8)
The father submitted that the following findings were not open on the evidence:
(a)as to the impact on the Respondent Mother if she was required to discharge from the Australian Defence Force;
(b)as to the impact on the child if the Respondent Mother was required to discharge from the Australian Defence Force;
(c)That the Respondent Mother would be required to discharge from the Australian Defence Force should she fail to accept her posting in 2019;
(d)That it would be extremely difficult for the Respondent Mother to ‘transition’ to civilian duties should she be discharged from the Australian Defence Force.
(e)as to the level of remuneration the Respondent Mother would receive should she be discharged from the Australian Defence Force and hold civilian employment; and
(f)That the Respondent Mother has taken on the “lion's share” of the support for the child.
The effect on the mother and the child of the mother leaving the ADF
The primary judge found that there would be a profound effect on the mother and the child should the mother be required to give up her career with the ADF. The father submits that these findings were not open on the evidence.
We have already set out those passages where those findings were made and will not do so again (see [28] above).
In our opinion the following evidence supports the findings:
·From the mother’s affidavit of 1 December 2016:
10.I have been employed with the ADF since … I was 20 years old. My career has been with the ADF to date and I intend for my career to continue to be with the ADF.
…
152.If I am discharged from the ADF, I anticipate I will struggle to find employment equivalent to my current position with the ADF. My current role with the ADF provides a qualification equivalent to a civilian [health professional]. I have never been employed as a civilian [health professional] and I do not have any experience in [the civilian healthcare industry].
…
159.If I am unable to relocate to [Town G] but able to somehow maintain my employment with the ADF, I expect I will have to move into a low skilled job or undertake further study, such as a university degree in order to increase my skillset.
·From the mother’s affidavit of 20 December 2016:
18.If there is an Order made for [the child] to stay here, I will not go to [Town G]. It saddens me that I must make a choice between my career in the ADF, or, remaining in [Queensland]. I realise that my daughter is a priority, but it has always been very important to me to be a positive role model for [the child], and for her to grow up knowing that it is possible for women to have significant careers. By remaining in [Queensland], I will attempt to pursue employment as a civilian, however I am very upset by the fact that I will no longer be in the Armed Services and will not likely transition into an employment role which I find as challenging and rewarding. I do not know where I will find employment, or whether I will have difficulty transitioning into a civilian role where my medic skills will more likely be utilised in the traditional way in a hospital. This uncertainty is something that I will attempt to deal with as best as I am able to in the event that [the child] is not permitted to reside in [Town G] with me when she is not living with her father, however I am bitterly disappointed at the thought of losing my career, which I am very proud of.
…
20.I am realistic enough to accept that I will likely have a range of emotions if I am not able to retain my employment in the ADF. It already angers me at the thought that I will not only lose my career, but that I will not likely be able to afford to provide [the child] with the opportunities that I aspire to be able to give her, such as private schooling, swimming, gymnastics and any other extra-curricular activities that she should desire to participate in. If I lose my ADF career, I also lose my income. Because I will need to sell my investment unit to go towards repayment of the retention benefit, I will no longer have that income as part of my taxable income. At the moment, the unit is usually breaking even in terms of rental income and expenses, and it gives me comfort knowing that I own real property. In the event that my employment is interrupted and I am forced to sell the unit, I will not likely be able to afford to purchase another property until I am settled in suitable employment with a steady income. In the intervening period, I do not know where I will live.
This was confirmed by the following evidence contained in the father’s affidavit of 29 August 2017:
19.From the time I met [the mother], I was impressed by her dedication to her career. [The mother] often said to me during the relationship [sic], her career and promotion within the ADF was one of the most important aspects in her life. I do not believe this has changed post-separation. I received a copy of [the family report writer]’s updated family report on Friday 25 August 2017. I have read paragraph 69 of that report and note the comments attributed as being said by [the mother] to [the family report writer] about her commitment to and remaining with the ADF:
“me maintaining my job is a big thing … me being in the [ADF] is ridiculously important to me … how I see myself … what I’m about … if I’m called to go, it’s a call to ask me to decide between being a parent and being myself … I have no security of income, no job, no control over major aspects of my life, everyone is deciding for me … I have to fight tooth and nail to see my family … it’s very ethno-centric … he discounts my friends who are my [ADF] family … [C], [D] and others are important.”
These findings were well supported by the evidence.
Would the mother be discharged if she did not accept her 2019 posting?
We are unable to locate any finding within the primary judge’s reasons that the mother would be dismissed if she did not take up her 2019 posting. However, the case was run by all parties, including the father, on the basis that the mother was obliged to serve wherever the ADF required her to do so.
The mother deposed that if a member of the ADF could not satisfy the ADF’s capability needs then that member would be considered for discharge from the service (paragraph 108 of the mother’s affidavit of 1 December 2016). Annexure EMW4 was a minute from a Senior Administration and Logistics Officer at the ADF facility at Town H.
That evidence was not challenged and included the following:
·The standard posting period should be three years and members of the ADF should normally be retained at the same location for a minimum of four years. A six year posting period is feasible;
·The mother has had an unusually long posting at Town H (9 years);
·ADF members are expected to offer unrestricted service and members can expect to be regularly posted throughout their careers, including to locations that may not be professionally or personally desirable. The following priorities are followed:
oADF and Service requirement to satisfy the capability needs of the Service;
oCareer development;
oPersonal preference.
· If a member is unable to offer unrestricted service “the member will be considered that they are no loner [sic] able to satisfy the capability needs of the Service and will therefore be considered for discharge from the Service”;
· The mother’s circumstances (as they stood at October 2016) were not sufficiently compelling and demonstrably more severe than those of other personnel to warrant an overriding of Service needs.
A Warrant Officer gave the following evidence:
This means that it is a condition of service that all military members are available to post. If they are unable or unwilling to be posted they would no longer be meeting these conditions of service.
Thus the evidence clearly supports a finding that the posting of the mother to somewhere other than Town H was imminent and if she refused that posting she could be dismissed.
Was there evidence to support the finding that the mother would have difficulty in transitioning to civilian duties and as to the level of her remuneration?
The father submitted that the primary judge’s finding that it would “not be easy” for the mother to transition to civilian employment and that even if she could “the question is would she be able to have the same security of tenure, remuneration and still be able to live in the proximity of her house” were not open on the evidence.
The mother deposed in her affidavit of 11 December 2016 that:
·in the ADF her salary was likely to increase beyond $87,000 per annum whereas as a civilian health professional she would be likely to receive $56,000 to $59,000 per annum (paragraphs 141 and 156);
·that most of the civilian jobs on offer required hospital experience. The mother has never worked as a civilian health professional and last worked in a military hospital in 2008 (paragraph 155); and
·as a civilian health professional it was likely that she would have to do shift work (paragraph 157).
In addition there is the evidence accepted by his Honour, to which we have referred at [86]–[87] above, as to the mother’s passionate involvement with her career.
His Honour’s findings were inferences reasonably drawn from this evidence and accordingly were open to be made.
Was there evidence to support the finding that the mother has taken on the “lion’s share” of the child’s support?
Finally, it was submitted that the primary judge erred by not taking into account the father’s payment of $300 per week towards the mortgage of the property owned by the mother and in which the mother and the child have lived since separation.
The primary judge specifically referred to these payments in [49] of his reasons and the submission is therefore misconceived. These payments were to cease upon the making of the property orders of 8 September 2017. There is no doubt that due to the disparity in the parties’ incomes and the relatively low income of the father, it was appropriate for his Honour to find that the mother would, in the future, bear the “lion’s share” of the child’s support.
This ground fails.
Did the primary judge err in finding that the mother would not be posted to Town H in 2019 or that if she did not accept her 2019 posting she would be discharged? (Ground 9)
The primary judge did find that it was unlikely that the mother would be posted to Town H in 2019. At [53], his Honour said:
After listening to all of the evidence, I find that it is likely that the mother will be posted to somewhere other than [Town H] in January 2019. She has been posted to [Town H] since 2010, and despite the urgings of the father, the simple reality is that she will have to make the choice of relocating to where is [sic] posted by the ADF or resigning from the ADF. I also find that it would not be easy to transition from the duties that she is performing in the ADF to comparable civilian duties.
The father submitted that the findings in this paragraph were not open on the evidence and were the product of the primary judge’s own experience.
The mother gave evidence to this effect and that the maximum permitted time at one location was seven years. This was confirmed by the minute to which we have referred at [90]–[91].
The mother also explained why it was that she had been able to stay at Town H for so long: a proposed posting to Town Y did not proceed because of the pregnancy, the mother elected to undertake a training course at Town H and the primary judge made orders preventing the posting to Town G.
The fact that the mother refused a posting to Town G and was not dismissed does not establish that she would not be dismissed if she were now again to refuse a posting.
The findings of his Honour are clearly supported by the evidence and there is no merit in this ground.
Did Order 16 have the effect of rendering the consent parenting orders nugatory? (Ground 10)
On 8 September 2017 the Court made a number of parenting orders which were described as “[b]y consent until further order”. Those orders included orders for equal shared parental responsibility and for the time that the child was to spend with each party during school holidays and on special days such as Anzac Day, Christmas Day, birthdays, Mother’s and Father’s Day and Easter.
As we have already observed, the proceedings were stood over to 21 November 2017 for the parties to agree on or for the Court to decide the arrangements for the child to spend time with the father in the future.
Whilst the order permitting the mother to move the residence of the child to wherever she is posted limits the parties’ equal shared parental responsibility to that extent, it hardly renders that responsibility nugatory. Important decisions about significant matters in the child’s life will remain to be made by the parties.
It was also submitted that the orders for school holidays and special days “may be rendered inoperative if the child is relocated to a place overseas”.
That may be so, but it is important to recall that the parties proposed those orders in the context of them asking the primary judge to determine only whether or not the mother should be permitted to change the residence of the child. It is therefore not possible to impugn his Honour’s order in this manner.
Did the primary judge err by failing to consider: (a) s 65DAA(2) and whether it was in the child’s best interests to spend substantial and significant time with the father, (b) the parties’ respective proposals as to time, and (c) the reasonable practicability of the parties’ respective proposals? (Ground 11)
In addition to the submissions that the primary judge failed to consider these matters at all, a submission was also made that his Honour failed to consider them properly.
The first part of the submission is untenable. The primary judge devoted at least eight paragraphs of his reasons to these issues (see [74]–[81]).
As to the second it is useful to look again at the orders proposed by the parties. The mother sought an order permitting relocation. It follows that if that order was made she would remain as the child’s primary carer. The father’s response sought that the child should remain in Town H and, in the event that the mother moved away for work, would live primarily with him. In turn, the mother’s response was that if relocation was not permitted she would remain in Town H and, if necessary, give up her ADF career. In this case she would remain as the child’s primary carer, subject to the father’s application for further time with the child leading to an equal time arrangement when she reached six years of age.
His Honour was also well aware of the parties’ proposals for time in the event that there was to be or was not to be a relocation (at [18]).
The two proposals before the Court were, therefore, either that a relocation for the child be permitted or not. It follows that if the relocation be permitted it was very much more likely than not that the distance between the parties would mean, at the least, that neither equal time nor substantial and significant time with the father would be reasonably practicable and due to the age of the child and the need to travel, possibly not in her best interests.
The primary judge had before him a map that showed the locations to which the mother could be posted (noting her rank). None is within easy driving distance of Town H and confirms the finding made by his Honour.
This led to the finding that equal time was neither reasonably practicable or in the child’s best interests (at [75]) and his Honour therefore complied with s 65DAA(1).
His Honour then turned to the consideration of substantial and significant time. His Honour took into account the fact that the relationship between the child and the father would diminish if the relocation was permitted. Against this his Honour weighed the adverse effect on the child of the mother having to give up her ADF career. This led to the conclusion:
91. I have decided that I will allow [the child] to be relocated to wherever the mother is posted. I am of the view that it is in [the child’s] best interests to maintain the relationship she has with her mother, who is a member of the ADF.
This finding implicitly but necessarily rejects the proposal that the relocation be refused so that the child could spend substantial and significant time with the father in Town H. This is confirmed by the fact that [91] is clearly the conclusion of a passage of the reasons which the primary judge entitled “Substantial and significant time”. As the Court said in Ulster & Viney (2016) FLC 93-722 at [127]:
…It would be a triumph of form over substance if, merely because a judge indicated which suite of orders would be in the best interests of the children first, we were to conclude the section was misapplied. The focus of both ss 65DAA(1)(a) and (2)(a) is whether those styles of orders would be in the best interests of the children. Given this commonality of subject matter, where a judge in the position of the primary judge is astute to the obligation to consider s 65DAA and palpably does so, there will be no error merely because the answer to the question of what orders are in the best interests of the children is stated first. For, as the Full Court said in Starr & Duggan [2009] FamCAFC 115 at [38], it is logical (but not mandatory) to consider “best interests” first.
It follows that there was a finding, in accordance with s 65DAA(2)(c), that spending substantial and significant time with each of the parents, in all of the circumstances, was not in the child’s best interests. In that case it was not necessary for the primary judge to proceed to paragraphs (d) or (e) of that subsection: MRR v GR (2010) 240 CLR 461.
It also follows from what we have earlier said that these findings were open on the evidence.
This ground fails.
Conclusion and costs
The appeal will be dismissed.
Although the mother had engaged a lawyer to prepare her Summary of Argument she indicated that in the event the appeal was unsuccessful, she did not seek a costs order against the father. Accordingly there will be no order as to costs.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Aldridge JJ) delivered on 21 November 2017.
Legal associate:
Date: 21 November 2017
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