WHITCOMB & WHITCOMB
[2019] FamCAFC 226
•27 November 2019
FAMILY COURT OF AUSTRALIA
| WHITCOMB & WHITCOMB | [2019] FamCAFC 226 |
| FAMILY LAW – APPEAL – PARENTING – Relocation – Appeal against orders allowing the mother and child to relocate from Sydney to Queensland – Where the primary judge took into account a myriad of considerations to determine what orders were in the best interests of the child – Where the primary judge gave proportionate weight to the considerations – Where the primary judge’s findings were open on the evidence – Where all ground of appeal are unsuccessful – Where the father also filed an appeal against the primary judge’s orders refusing to grant a stay of the orders allowing the mother and child to relocate from Sydney to Queensland – Where the appeal against the substantive orders is dismissed so there is no point in the appeal from the stay orders – Both appeals are dismissed – The father to pay the mother’s costs of and incidental to the appeal in a fixed sum. |
| Evidence Act 1995 (NSW) s 39 Family Law Act 1975 (Cth) ss 60CC, 61DA Family Law Rules 2004 (Cth) sch 3 |
| AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 De Winter & De Winter (1979) FLC 90-605 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Whitcomb and Whitcomb [2018] FCCA 3486 |
| APPELLANT: | Mr Whitcomb |
| RESPONDENT: | Ms Whitcomb |
| FILE NUMBER: | PAC | 6361 | of | 2017 |
| APPEAL NUMBERS: | EA | 156 | of | 2018 |
| EA | 20 | of | 2019 |
| DATE DELIVERED: | 27 November 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Aldridge & Austin JJ |
| HEARING DATE: | 1 July 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 7 November 2018 & 30 January 2019 |
| LOWER COURT MNC: | [2018] FCCA 3486 [2019] FCCA 584 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Pierce |
| SOLICITOR FOR THE RESPONDENT: | Glenn R Walters & Co |
Orders
Appeal no. EA 156 of 2018 be dismissed.
Appeal no. EA 20 of 2019 be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal fixed in the sum of $18,123.33, such sum to be paid within twenty-eight (28) days of this order.
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 Whitcomb & Whitcomb 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 Numbers: EA 156 of 2018 & EA 20 of 2019
File Number: PAC 6361 of 2017
| Mr Whitcomb |
Appellant
and
| Ms Whitcomb |
Respondent
REASONS FOR JUDGMENT
Introduction
This appeal concerns the parenting arrangements for X who was born in 2016 (“the child”). Ms Whitcomb (“the mother”) wished to move from Sydney to Queensland and proposed orders that the child live with her in Queensland. Mr Whitcomb (“the father”) did not agree and sought orders that the child live with the mother in Sydney. Alternatively, if the mother insisted on moving to Queensland, the father submitted that the child should stay in Sydney and live with him.
A judge of the Federal Circuit Court of Australia found that the best interests of the child were served by the child living with the mother in Queensland and orders were made to that effect. The parties were given equal shared parental responsibility for the child and orders were made for the child to spend time with the father.
The father appeals against these orders.
Background
In order to place the father’s submissions in a helpful context it is necessary to set out some of the history of the matter.
The parties commenced a relationship in 2009 and began living together that same year in New Zealand, which was where the father was then living.
In December 2011, the parties returned to Australia and lived in Town L, New South Wales. In August the following year, they moved to Suburb P in Sydney.
Shortly after the child’s birth in 2016, difficulties in the relationship emerged. From June to November 2017, the parties lived separately but still in the one house at Suburb P.
The mother left the house at Suburb P with the child on 19 November 2017 and stayed for some days at different friends’ homes.
On 22 November 2017, she moved with the child to Town E, Queensland.
On 8 February 2018, interim orders were made by a judge of the Federal Circuit Court of Australia requiring the mother to return the child to live within 20 kilometres of Suburb P by 8 March 2018. The father was obliged to pay the mother rental assistance of $385 per week.
The proceedings before the primary judge were heard on 5 and 6 November 2018. Oral reasons were given and orders made on 7 November 2018.
It is convenient now to look briefly at his Honour’s reasons.
The primary judge found that both parties were good parents (Whitcomb & Whitcomb [2018] FCCA 3486 (“Whitcomb”) at [117]) but that the mother “would be better able to parent if she were able to live where she desired” because she would have “family support, employment, better financial prospects and ready assistance”, if she needed it (Whitcomb at [118]).
Whilst the father would also be “better able to parent” in Sydney where his connections are (Whitcomb at [119]), his “evidence in relation to his inability to move” did not satisfy the primary judge that he could not do so if he wished (Whitcomb at [120]). His Honour found that it was “no more onerous for the father to move than for the mother to stay or be required to stay in Sydney” (Whitcomb at [123]).
The primary judge referred to the Family Report dated 29 June 2018 and noted that the “optimal outcome” was for the parties to live in close proximity so that they could each spend substantial time with the child (Whitcomb at [131]). Nonetheless, his Honour recorded the following opinion at [127]:
… The more radical change was seen as [the child] leaving his mother’s care, she having been a full-time carer to him save for a few weeks in early 2018 whilst in … Queensland when she was participating in paid employment and remained his predominant carer.
After referring to s 61DA of the Family Law Act 1975 (Cth) (“the Act”) his Honour found that there was no basis to rebut the presumption in favour of equal shared parental responsibility, noted that neither party sought an order for equal time and turned to consider the s 60CC factors.
The primary judge found that the child had a good relationship with both parents and that the mother was supportive of the relationship between the child and the father (Whitcomb at [168]).
This consideration was said to “lend little support to either parent but, to the extent they do, they favour the mother's case” (Whitcomb at [174]).
The following considerations were also considered to be relevant:
·The child has a close relationship with both parents (Whitcomb at [177]);
·It would be easier for the child to maintain a relationship with his adult paternal step-sisters (from an earlier relationship of the father) if he stayed in Sydney which lent some “slight support” to the father’s position (Whitcomb at [178]);
·The cost of the parties and the child travelling between Sydney and Queensland to facilitate time between the child and the father was practicable (Whitcomb at [181]);
·The time that the child would spend with his father in Queensland would be somewhat artificial because it would not be at the father’s home and would not be ideal but it was practicable (Whitcomb at [182]);
·Any separation of the child from the mother would be significant, and we infer, not in his best interests (Whitcomb at [183]);
·There was “no real impediment to [the father] relocating to Queensland” (Whitcomb at [184]); and
·There was a “practical difficulty if the mother is required, against her will to live in Sydney, with no employment or family support” (Whitcomb at [185]).
This led his Honour to conclude:
198.If the mother is compelled to remain living in Sydney, because of an Order that [the child] live with the mother conditional upon her being resident in Sydney, the mother will perceive that as frustration of her legitimate interests and expectations. That will bring disadvantage for the mother, and whilst the child's best interests are paramount, a child’s interests are not disconnected from parents. This little boy cannot function for himself in the world. He needs care, nurture and support. I do not suggest that the mother has given evidence - she plainly has not - that she cannot and will not cope if required to live in Sydney. But such a requirement will diminish her experience of life. She will be socially isolated, to a large extent. She will be financially disadvantaged. Thus, [the child] would, in her care, be financially disadvantaged, and it is conceded that if the mother were in Sydney, [the child] would predominantly live with his mother.
199.I am not satisfied that there is evidence to support the submission of the father that the mother has gone to great lengths to retain [the child] from the father, whether in the period of the initial relocation or since. Quite the contrary. I am not satisfied that there is any pessimism as to the mother's support of the relationship between the child and [the father] or her proposal that she meet one half of the father's air fares in doing so.
The Appeal
Were the orders unreasonable and plainly unjust (Ground 1)
Whilst this ground of appeal is very broadly worded, the submissions made under it were quite constrained.
The father submitted that the primary judge erred by:
·Finding that the mother would have no employment in Sydney;
·Finding that the mother did not have family support in Sydney;
·Failing to permit the father to explain why he could not move to Queensland; and
·Failing to take into account the deleterious effect of relocation on the relationships between the child and the father and the child and his paternal step-sisters.
Was the mother employed?
It is necessary to identify precisely the findings of the primary judge which the father seeks to impugn. They are:
·The mother would have employment if she moved to Queensland (Whitcomb at [118]);
·There is “practical difficulty if the mother is required… to live in Sydney with no employment” (Whitcomb at [185]); and
·The mother will be “financially disadvantaged” if she remains in Sydney (Whitcomb at [198]).
In the mother’s affidavit filed 6 July 2018 (that is whilst she was living in Sydney) the mother said:
87.I have been operating a … business for the past few years, mainly as a sub-contractor. I am currently working as a sub-contractor for a business based in [Town F] (near [Town E]).
The mother also said:
170.In addition, I have been offered a business opportunity were I to return to Queensland. I have been offered the opportunity to enter into a business partnership with [the owner of] … a well known … business in Queensland. The opportunity has good prospects of providing a substantial income as I have a large number of friends and family who are my main referral source for work. This income will provide for [the child] and I, and it would likely facilitate the repayment of the current debts owed by my company to the ATO, accountants, and other lenders.
171.In addition to the above, the opportunity of being a business owner and co-Director provides an opportunity to work flexible hours, thus ensuring that I am available to share with [the child] in his significant milestones.
(Mother’s affidavit filed 6 July 2018)
The mother’s evidence was confirmed by her prospective business partner during cross-examination at the hearing before the primary judge (Transcript 6 November 2018, p.99 lines 27–30).
This evidence supports the finding that the mother had better financial prospects in Queensland rather than in Sydney where there was no equivalent opportunity available. The primary judge’s finding was therefore open on the evidence and no error has been identified.
Whilst it is clear that the mother was working at the time of the hearing (albeit remotely as the employment was in Queensland), there was no evidence of any employment prospects in Sydney. Whilst the reference to “no employment” in Sydney at [185] might have been better expressed, it remains literally correct.
When the reasons and evidence are taken as a whole, any mis-description is entirely of no moment. If it was an error, it was not a material one (De Winter & De Winter (1979) FLC 90-605).
The point of significance was that the mother would be financially better off in Queensland than in Sydney.
Did the mother have family support in Sydney?
The father submitted that the mother would have family support in Sydney because the maternal grandmother said in evidence that “[the maternal grandparents] will support [the mother] wherever she is” (Transcript 6 November 2018, p.95 line 37) and thus the primary judge erred in making a finding to the contrary.
The father further submitted that the maternal grandmother’s evidence that she and the maternal grandfather would move to Town E and had lived in a number of towns in the last ten years demonstrated that they could just as easily move to Sydney.
There is no suggestion that the last proposition was put to the maternal grandparents or that they agreed with it. There was no evidence that they would move to Sydney if the mother remained living there.
The unchallenged evidence was that the mother’s extended family, including her parents, lived in Queensland where the mother had lived for most of her life.
The evidence supports the primary judge’s finding that the mother would have better family support in Queensland and would not be as socially isolated.
Was the father not allowed to explain why he could not move to Queensland?
The father’s affidavit evidence on this topic consisted of the following:
111.It would be impractical for me to relocate to Queensland from New South Wales. My business and business contacts are established in New South Wales. [The paternal step-sister] also resides in New South Wales and I hope to maintain our close relationship. I also continue to compete in [shooting events], and New South Wales is where a majority of these competitions take place.
(Father’s affidavit filed 29 June 2018)
The following exchanges occurred during the father’s cross-examination:
[COUNSEL FOR THE MOTHER]: And I suggest to you that you haven’t made any inquiries at all about the practicality of moving to Queensland; would you agree with that?
[THE FATHER]: I have no intention [of] moving to Queensland.
[COUNSEL FOR THE MOTHER]: Okay?
[THE FATHER]: I’ve never considered it, never discussed it.
[COUNSEL FOR THE MOTHER]: So you’ve got no intention of moving to Queensland?
[THE FATHER]: No.
[COUNSEL FOR THE MOTHER]: but you’ve never thought about the idea that perhaps if this [C]ourt allows the respondent – that’s [the mother] – to live in Queensland with [the child], that you would go to that state?
[THE FATHER]: That would be something I would have to consider at that point in time.
[COUNSEL FOR THE MOTHER]: But?
[THE FATHER]: but at this point in time I don’t consider it.
[COUNSEL FOR THE MOTHER]: Yes. You don’t consider it at all?
[THE FATHER]: No.
[COUNSEL FOR THE MOTHER]: but, you see, I’m suggesting to you that you’ve known now since certainly November last year what the intention of [the mother] is, isn’t it, and in seeking the permission of the [C]ourt?
[THE FATHER]: Are you talking early November or late November?
[COUNSEL FOR THE MOTHER]: Does it really matter?
[THE FATHER]: Yes, it does.
[COUNSEL FOR THE MOTHER]: Well, let’s come back, then, to late November. You’ve known at least since late November that [the mother’s] position is that she wants to live in Queensland with [the child]; that’s so, isn’t it?
[THE FATHER]: That’s correct.
[COUNSEL FOR THE MOTHER]: But you say that you’ve – and notwithstanding also that you’ve seen her application before the [C]ourt – or the orders that she is seeking through the [C]ourt, you’ve made no thoughts at all about moving to Queensland if she is permitted to reside there with [the child]?
[THE FATHER]: No. Not at all.
[COUNSEL FOR THE MOTHER]: You see, that would certainly be an alternative, wouldn’t it?
[THE FATHER]: Well, it’s not an alternative, unfortunately.
[COUNSEL FOR THE MOTHER]: You just don’t see it?
[THE FATHER]: No. I don’t.
(Transcript 5 November 2018, p.17 line 43 to p.18 line 30)
In re-examination of the father, he was asked why he did not want to move to Queensland (Transcript 6 November 2018, p.51 line 21). The question was the subject of objection by counsel for the mother on the ground that, effectively, it was not re-examination but an attempt to lead evidence in chief. His Honour allowed the objection in the following manner:
HIS HONOUR: But [the father] gives three reasons why it’s impractical: his business is here; [the paternal step-sister] is here living with him – and I don’t put it in those terms to discount it, it’s important – and [shooting events are] predominantly in New South Wales, but it is at other places too so the last is probably the least, but the paragraph gives his reasons why he says it’s impractical. If he’s going [to] say there are other reasons, they should have been in his affidavit.
[COUNSEL FOR THE FATHER]: Very well. I have nothing further, your Honour.
HIS HONOUR: Thank you.
(Transcript 6 November 2018 p.51 lines 37–46)
As can be seen, no leave was sought by the father to adduce further evidence in chief or under s 39(b) of the Evidence Act1995 (NSW).
The question asked in re-examination did not arise out of evidence given by the father in cross-examination (he was not asked about his reasons for not wanting to move to Queensland by counsel for the mother) and therefore it was rightly rejected.
Did the primary judge fail to take into account the deleterious effects of relocation on the relationships between the child and his father and the child and his paternal step-sisters?
The father’s submissions on this aspect of the ground are predicated on the success by him on all of the earlier aspects of this ground. As the earlier aspects of this ground, as discussed above, were not successful, this challenge loses much of its force.
The father submitted that the best interests of the child would be served by him living in Sydney because he would have weekly time with his father and step-sisters, whereas if the child was living in Queensland his time with the father would be less and his relationship with his step-sisters would be significantly curtailed (Father’s Summary of Argument filed 29 May 2019, paragraphs 10.4.1 and 10.4.2).
As the earlier discussions of the primary judge’s reasons make plain, these were matters that were expressly considered. The challenge then becomes one as to the weight that was given to them. Such challenges face a high bar (Gronow v Gronow (1979) 144 CLR 513).
The findings of his Honour were clearly open to him and no disproportionate weight has been given to these considerations. As is clear from the reasons, many other considerations were also taken into account.
This ground of appeal fails.
Could the parties afford the cost of travel between Sydney and Queensland? (Ground 2)
The father submitted that the primary judge failed to take into account the cost implications of any relocation which would then lead to the father not spending any time with the child.
The father did not adduce any evidence as to his financial position. The closest the father came was to attest that he travelled to New Zealand in December 2017 and not to Queensland to see the child because “he did not have the money” to be able to do both (Transcript 5 November 2018, p.31 lines 23–26).
In the course of cross-examination, the father suggested that each trip between Sydney and Queensland would cost “easily $1,000 each trip” (Transcript 5 November 2018, p.41 line 44).
It is to be recalled that at the time of the hearing the father was paying $385 per week rental assistance to the mother. He proposed to continue these payments pending the determination of the appeal (Annexure “B” to the father’s affidavit filed 7 December 2018).
He did not depose to any difficulty in meeting this obligation.
The only other evidence as to the father’s financial position was his 2013/2014 tax return (not signed or dated and possibly a draft) which showed a limited income but it is not relevant to his financial circumstances in late 2018.
The father proposed an order that if the child lived with him in Sydney and the mother lived in Queensland “the cost of travel be shared equally between [the father] and [the mother]” (Father’s affidavit filed 29 June 2018, paragraph 118). Obviously, the father did not consider the cost of travel to be a significant obstacle at the time that proposal was formulated.
As the father did not disclose his income or assets, there was no basis on which the primary judge could find that the father could not afford the cost of travel which would lead to the child not seeing him.
However, the fact that the father had the apparent ability to pay rental assistance of $385 per week to the mother and he had proposed a set of orders which would see him paying half the cost of regular travel between Sydney and Queensland, point to the conclusion that the father could afford the cost of travel.
Further, as both parties proposed orders for the shared costs of travel if they resided in different states, it is hardly surprising that the primary judge did not regard it as an issue that required resolution.
There is no merit in Ground 2.
Did the primary judge misunderstand the evidence of the Family Report writer (Ground 3)?
Again, the father’s submissions did not entirely correspond with the ground of appeal.
The submission was that the primary judge erred by considering the Family Report writer’s evidence as to the disadvantages that would be suffered by the child if his relationship with either parent was curtailed to any extent, in the light of only two proposals and not the three that were before the Court.
The father’s submissions continued:
19.The primary judge has taken these statements and applied them to only two of the proposals before him, both of which allowed relocation, one with the child and one without. By applying the recommendation this way the primary judge has seen relocation with the child as the only option to be in his best interest.
[200.]“I am satisfied that the mother's proposal should be favoured, not through any overwhelming weight of evidence or any individual consideration. I am satisfied that this is the arrangement that is in the child’s best interests. It will continue a continuity and consistency of care, not suggesting that the developed status quo, as it might historically have been referred to, is in any way relevant to the determination of the issue. It is simply by reference to [the family consultant’s] evidence that the more dramatic the change, the more disadvantageous it will be for … [the child]”…
20.If he had correctly considered ALL three proposals before him, instead of just two, then it would have been abundantly clear that the least dramatic change [and] disadvantage, would have been [the child] living in Sydney, with his mother, spending time with the father on a graduating and building arrangement, ensuring weekly face to face time, as being in the “Child's Best Interest”.
(Father’s Summary of Argument filed 29 May 2019) (As per the original)
The passage of reasons (Whitcomb at [200]) quoted by the father in that submission make it plain that his Honour considered that the greatest disruption that could occur in the child’s life was not to live with the mother. This is consistent with his Honour’s earlier finding, accepting the Family Report writer’s opinion, that the child leaving his mother’s care was “[t]he more radical change” (Whitcomb at [127]).
These findings are an implicit consideration of the father’s proposal that the child live with him and a rejection of it in favour of the mother’s proposal that the child live with her.
However, the father’s alternative proposal that the child live with the mother in Sydney (the third proposal) was also expressly considered by the primary judge and rejected as follows:
198.If the mother is compelled to remain living in Sydney, because of an Order that [the child] live with the mother conditional upon her being resident in Sydney, the mother will perceive that as frustration of her legitimate interests and expectations. That will bring disadvantage for the mother, and whilst the child's best interests are paramount, a child’s interests are not disconnected from parents. This little boy cannot function for himself in the world. He needs care, nurture and support. I do not suggest that the mother has given evidence - she plainly has not - that she cannot and will not cope if required to live in Sydney. But such a requirement will diminish her experience of life. She will be socially isolated, to a large extent. She will be financially disadvantaged. Thus, [the child] would, in her care, be financially disadvantaged, and it is conceded that if the mother were in Sydney, [the child] would predominantly live with his mother.
Thus, whilst living in Sydney would be less disruptive to the child’s relationship with the father, that was not the only consideration. The child’s best interest would be adversely affected in the manner identified above.
No error has been established in this ground of appeal.
Did the primary judge prioritise the mother’s interests over those of the child? (Ground 4)
The father’s submission was that it was “only the mother’s preference” that she live in Queensland. He pointed to the mother’s evidence that she would remain in Sydney if the child could not move to Queensland and that she believed that she “could overcome [her] sadness and depression with further [counselling] and over a period of time” (Father’s Summary of Argument, paragraphs 24 and 25).
This submission gives little regard to the legitimate interests and desires of the mother and her right to live where she chooses, as discussed by Kirby J in AMS v AIF (1999) 199 CLR 160 at [144]–[145], which were matters that should properly be considered.
The father was found to have no reason not to move to Queensland, yet his preference to remain in Sydney was also taken into account.
In any event, and more importantly, as these reasons demonstrate, his Honour took into account a myriad of considerations to determine what orders were in the best interests of the child.
The father submitted that this determination was flawed because of his incorrect findings as to the mother’s employment, financial disadvantage, family support and social isolation. The challenges to his Honour’s findings in that regard have failed. It follows that this ground of appeal must also fail.
Did the primary judge err in his Honour’s findings as to the mother’s financial disadvantage and social isolation in Sydney? (Ground 5)
The submissions made under this ground of appeal have been considered and rejected in our earlier discussions.
Was the hearing time wrongly restricted by the primary judge?
This was not the subject of a ground of appeal. Nonetheless, the father said that only two days were allocated to the hearing before the primary judge when he sought three days and that adjournments for lunch and for the judge to deal with other matters took longer than they should thereby depriving him of proper hearing time.
The father was represented by counsel at the hearing before the primary judge. Counsel for the father did not seek any extension of time to finish the hearing. The father accepted that the transcript does not reveal any occasion where counsel for the father was precluded from exploring any issue as he saw fit.
There is no merit in this complaint.
The Stay Appeal (Grounds 6 to 10)
On 30 January 2019, the primary judge refused to grant a stay of the orders made on 7 November 2018. The stay appeal was consolidated with the appeal from the substantive orders.
The appeal from the substantive orders will be dismissed. Therefore, there is no point in the appeal from the stay orders which will also be dismissed.
Costs
In the event that the appeal was unsuccessful, the mother sought an order that the father pay her costs of the appeal in the amount of $18,123.33 as calculated in accordance with Schedule 3 of the Family Law Rules 2004 (Cth).
The appeal was wholly unsuccessful. No other matters were raised in opposition.
There will be an order for costs of the appeal as sought by the mother.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Austin JJ) delivered on 27 November 2019.
Associate:
Date: 27 November 2019
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