Wiley & Wiley
[2008] FamCAFC 153
•22 October 2008
FAMILY COURT OF AUSTRALIA
| WILEY & WILEY | [2008] FamCAFC 153 |
| FAMILY LAW - APPEAL – CHILDREN – with whom a child lives and spends time – relocation from country New South Wales to a town near Melbourne – where the trial judge allowed the mother to take the children to a town near Melbourne to live with her – where the trial judge provided for the children to spend school holiday and some weekend time with the father in country New South Wales – whether the trial judge gave proper consideration to the effect on the children of the mother’s mental health – whether the trial judge gave proper consideration to the effect on the children of the relocation – whether the trial judge erred in the application of s 65DAA of the Family Law Act 1975 (Cth) in light of the Full Court cases of Goode & Goode and Taylor & Barker – whether there was a miscarriage of the trial judge’s discretion – no substance found in asserted errors – presumption in favour of correctness of discretionary judgments emphasised – appeal dismissed. FAMILY LAW - APPEAL – COSTS – costs order sought by the mother if the father’s appeal unsuccessful – costs order not made. |
| Family Law Act 1975 (Cth), sections 60B, 60CA, 60CC, 61DA, 65DAA |
| A v A: Relocation Approach (2000) FLC 93-035 Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 Goode & Goode (2006) FLC 93-286 R v R (1998) FLC 92-820 Taylor v Barker (2007) FLC 93-345 |
| APPELLANT: | Mr Wiley |
| RESPONDENT: | Ms Wiley |
| FILE NUMBER: | CAM | 1334 | of | 2006 |
| APPEAL NUMBER: | EA | 143 | of | 2007 |
| DATE DELIVERED: | 22 October 2008 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Bryant CJ, Finn and Thackray JJ |
| HEARING DATE: | 20 March 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 9 November 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 932 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Kearney |
| SOLICITOR FOR THE APPELLANT: | Farrar Gesini and Dunn |
| COUNSEL FOR THE RESPONDENT: | Ms Tonkin |
| SOLICITOR FOR THE RESPONDENT: | Phelps Reid Lawyers |
Orders
That the appeal be dismissed.
That there be no order for costs in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Wiley & Wiley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 143 of 2007
File Number: CAM 1334 of 2006
| Mr Wiley |
Appellant
And
| Ms Wiley |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by the father against orders made by Brewster FM on 9 November 2007 whereby the two children of the father’s marriage to the mother, aged six and nine, and also a child of the mother, who had always been treated as a child of the parties’ marriage and was then aged 13, were to live with the mother and spend school holiday and some weekend time with the father. Although not apparent on the face of his Honour’s orders, their effect was that the mother would be permitted to move the children from T, a rural town in southern New South Wales where the parties had lived, at least since their relationship began in 1996, to live in S, a town near Melbourne where the mother had grown up and her family of origin continues to reside.
Background history, the parties’ applications and the Federal Magistrate’s reasons for judgment
In his reasons for judgment (delivered on 9 November 2007) his Honour recorded that at that time the father was aged 51 and the mother 34; that they commenced to live together in November 1996 and married in March 1998; and that they had separated in December 2005 when the father moved from the matrimonial home.
His Honour also recorded that there were two children of the marriage, a daughter, G, born in November 1998 and a son, J, born in August 2001; and that the mother had a child from a previous relationship, K, born in March 1994, who has had no contact with his natural father and who has always been treated as if he were a child of the parties’ marriage. His Honour then said that he proposed to treat K in the same way as he would treat the other children and therefore would apply the provisions of the Family Law Act 1975 (Cth) (“the Act”) to all three children, and that he did not understand either of the parties to contend otherwise. No issue arises in this appeal concerning his Honour’s treatment of K as a child of both parties.
His Honour further recorded that on separation the children remained with the mother, with “contact” with the father being “ad hoc” until an agreement was reached in about March 2006 whereby the father was to see the children each alternate weekend and Tuesday nights.
Interim consent orders were then made on 2 November 2006 which provided that the father would have contact with the children from 5.30 pm Friday until 5 pm Sunday each alternate weekend, for half the mid-year holidays and for two weeks during the Christmas school holidays. The orders further provided that he have contact with G and J each Tuesday from 3.30 pm until 8.45 am the following morning and with K each Thursday from after school until the commencement of school the following day.
Having recorded this brief background history, his Honour then set out in summary form the parties’ applications, being on the father’s part, a week about shared arrangement, while the mother sought to move with the children from T to S. She proposed that the father see the children for half of all school holidays and at least one weekend in four when she would bring the children to T, although she was prepared to facilitate the father having contact each alternate weekend, if the father was prepared to travel to S on the other weekend.
His Honour next explained that in resolving this case, he was required by s 60CA of the Act to regard the children’s best interests as the paramount consideration; that s 60CC sets out a number of matters to which he had to have regard in determining what is in their best interests; and that the “backdrop to this exercise” is s 60B of the Act, which sets out the objects of the Act and the principles underlying those objects.
His Honour then said that “[g]iven that this case involves a relocation proposal”, he had to bear in mind the guidelines set out by the Full Court of this Court in A v A: Relocation Approach (2000) FLC 93-035, and he proceeded to summarise those guidelines as he considered that they applied to this case.
One such guideline according to his Honour was that “the reasons for a parent wishing to relocate with a child is only one of the matters to be considered and it should not be dealt with as a separate issue”. Having made it clear that he was not dealing with the mother’s reasons for wishing to relocate as a separate issue, his Honour described her reasons in the following way:
(a) [The mother] was born in [S] and her parents and other members of her family live there. She completed a degree in forestry in Melbourne and she ended up in [T] in the course of her employment in the forestry industry. She says that following the separation she felt, and continues to feel, very isolated in [T] and wishes to relocate to [S] to be near her family and to enjoy the support that they can give her. She says she is unhappy and depressed having to live in [T] away from her family.
(b) [The mother] wants to undertake a course in … design. She would propose to do this at [a university], probably at [a campus in Melbourne]. She could do such a course at [W] but this is about an hour’s drive from [T]. According to whereis.com [S] is 36 kilometres from [the university in Melbourne] with a driving time of thirty minutes. She says that she wishes to become financially independent in due course but does not wish to return to the forestry industry. She says that the forestry industry is very male dominated and that she did not enjoy working in that industry.
(c) [The mother] claims that there are better educational and recreational facilities available in the [S] area than in [T] and greater opportunities for the children in that environment.
Importantly for the purposes of his ultimate decision to permit the mother to move with the children, his Honour then said:
11. I indicate at the outset that I have no regard whatsoever to the third of these. There is no evidence beyond the mother’s bare assertion that the children’s education would be better served by their living in [S]. Doubtless there are more recreational and other facilities available in the [S] area than in [T] but I imagine that living in a small country town like [T] has other advantages which [S] does not have. I accept that the mother could more easily undertake a … design course if she were living in [S] than in [T]. However, the critical issue in this case is her contention that she is unhappy and depressed in [T] and needs family support. I am able to resolve the case on this basis alone, that is without regard to the [proximity to the Melbourne university] issue. I will return to it later in this judgment… (Emphasis added)
His Honour then turned to s 60CC, explaining that this section divides the matters to be taken into account in assessing what is in a child’s best interests into primary considerations and additional considerations; that there are two primary considerations, being first the benefit to the children having a meaningful relationship with both their parents, and secondly, the need to protect children from harm by being subjected to abuse, neglect or family violence.
Having said that the second of these matters was not applicable in this case, his Honour observed with regard to the first:
14. … I note that the section refers to children having a “meaningful” relationship with both parents and not an “optimal” relationship with those parents. In my opinion the orders which I have made in this case will permit the children to continue to have a meaningful relationship with the father. If the children were very young it might have been cogently argued that frequent contact was required to ensure that they maintained a meaningful relationship with their father. However given their ages I do not believe that this is required in this case.
We note at this point that at a number of places in his reasons, his Honour referred to the orders which “he had made” in this case rather than to the orders which “he would make”. We do not understand his Honour to have made orders in advance of his reasons, and we can only assume that his Honour was referring to the orders which he had set out after the coversheet of his judgment and before his reasons.
Turning to the additional considerations in s 60CC(3), his Honour first considered paragraph (a), being any views expressed by the children and any factors (such as their maturity or level of understanding) relevant to the weight that should be given to their views. In this context his Honour referred to the fact that two Family Reports had been prepared by a Family Consultant, Ms Lang.
Having set out substantial passages from Ms Lang’s reports in relation to K, his Honour made the following finding in relation to K:
20. It is apparent that [K] would prefer to stay in [T] rather than move to [S]. The reason for this seems to be some apprehension about leaving his friends and familiar environment and having to go to a larger school than he attends in [T]. [K] is 13 years of age and his wishes must be given significant weight.
In relation to the younger children, his Honour continued:
21. [G] was unaware of the relocation dispute when interviewed by Ms Lang in December 2006 and May 2007. Ms Lang reports that [G] appeared to enjoy her current school. Ms Lang reports that she said “I like being at mum’s and I like being at dad’s”. She further said “[i]t would be good to have a week with mum and a week with dad”. When asked the reason she said “[s]o I can have the same time with them”. When asked if she had discussed this idea with her parents [G] commented that she and her father had talked about it.
22. Given the input from the father it is difficult to evaluate [G’s] views in relation to the week about arrangement. As she was unaware of the relocation proposal I do not know what views, if any, she would have on this topic.
23. When Ms Lang spoke to [J] he reported that the current living arrangements were “fun”. In the May interview, when there was general discussion about [S] and [T], Ms Lang reports that [J] indicated that he liked [S] but that “I like [T] best - it is fun”.
24. Notwithstanding that [J] at the time he was interviewed was not yet six years of age I do not ignore his wishes although the weight I give to them is necessarily limited.
As to the second additional consideration, being the nature of the relationship of the children with each of their parents and with other persons including grandparents, his Honour found:
26. It is apparent from Ms Lang’s report that the children have a close relationship with each of their parents and a good relationship with their extended family. In the first interview [J] specifically mentioned his maternal grandmother and expressed a wish that she could live “at our house”.
In relation to the third additional consideration, being the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent, his Honour expressed himself satisfied that both parents had this willingness and ability.
His Honour then recognised the significance in a case such as this of the fourth and fifth additional considerations, saying with respect to the fourth, being the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents:
29. This is a significant matter in two respects. First the mother’s proposal would involve a significant degree of separation of the children from their father with whom they have a close relationship. This is an important matter. Secondly the father’s proposal for week about care would involve a significant change in the present arrangements. This is a factor which indicates that I should not impose a week about regimen unless there is sufficient reason to justify my doing so.
Then in respect to the fifth consideration, being the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect their right to maintain relations and direct contact with both parents on a regular basis, his Honour said:
31. There will be difficulty and expense involved in the children seeing their father if they live in [S]. According to whereis.com it is [over 500 kilometres] from [S] to [T] with a driving time (without stops) of some five and a half hours. This precludes midweek contact and makes frequent weekend contact impractical. The relocation will substantially affect the children’s right to maintain personal relationships and direct contact with the father.
As to the sixth consideration, being the capacity of each of the children’s parents to provide for the needs of the children, including emotional and intellectual needs, his Honour concluded that both parents were capable of providing for these needs.
As to the next matter, being the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and either of their parents and any other relevant characteristics of the children, his Honour concluded that there was nothing in relation to K or J that he needed to consider under this paragraph. But in relation to G his Honour found:
34. …[G] has been diagnosed with a social anxiety condition that makes it difficult for her, at least initially, to adapt to change. Under these circumstances, given that she appears content and settled in her present situation, this is a factor favouring the mother’s remaining in [T].
The next matter considered relevant by his Honour was the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the parents. In relation to this matter, his Honour found “substance” in the criticism made of the mother for making educational decisions in relation to the children without consulting the father. However he concluded that this did not impact on the decision which he would make in this case.
None of the remaining s 60CC(3) additional considerations were considered relevant by his Honour.
In relation to the requirement in s 60CC(4) to consider the extent to which each of the children’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent, his Honour said that he was satisfied that each of the parties has fulfilled his or her responsibilities as a parent.
Turning to the presumption of equal shared parental responsibility provided for in s 61DA, his Honour recorded that neither party suggested that he should not make an order that each of them should have equal shared responsibility for the children, and he indicated that he proposed to so order.
His Honour then explained that making an order for equal shared parental responsibility “brings into play s.65DAA” and he set out that section, which we will later set out when considering the father’s grounds of appeal directed to his Honour’s application of it.
In the context of his application of s 65DAA, his Honour returned to a consideration of the competing proposals or options before him, saying:
44. As required by section 65DAA I will consider whether making an order for shared care is in the children’s best interests. If I do not believe that such an order is in the children’s best interests I will consider whether an order that the children spend significant and substantial time with the father is in their best interests. In this respect I propose to have regard to what I perceive to be the spirit of the legislation rather than its literal terms. It can be seen that the orders I have made technically fit within the definition of “significant and substantial time”. This is because I have included two days of contact that are not on weekends or during holidays. I do not however regard my orders as fitting within the spirit of “substantial and significant time.” The existing arrangements however do genuinely provide for the father to spend substantial and significant time with the children. Of course I will not be considering those two alternatives in isolation. I will also be considering making Orders of the type sought by the mother.
45. I add for completeness that I have not factored into my consideration the option of the father himself re-locating to the [S] area. I am satisfied that this is impractical. As it was not contended to the contrary by the mother’s counsel I need not dilate on this.
46. In this matter I am faced with three options. These are:
a) To make an order for a week about arrangement as sought by the father. It was submitted by the father’s lawyer that this would not require the mother to live full time in [T] in that she could live in [S] in the weeks when she would not have the children. I do not consider this to be workable. I consider that such an order would require the mother to live in [T].
b) To maintain the existing arrangement or something close to that arrangement. This would, of course, require the mother to remain in [T].
c) To make orders which would permit the mother to relocate to [S]. Such orders would perforce provide for reduced contact between the children and the father.
Then, as earlier foreshadowed in his consideration of the fourth of the s 60CC(3) additional considerations (see paragraph 19 above), his Honour rejected the first option of a week-about (or “equal time”) arrangement as sought by the father as not being in the children’s best interests for the following reasons:
47.a) Whilst [G] expressed a wish to live week about, as I have indicated, it is difficult to evaluate this wish. It is to be contrasted with [K’s] position which is not consistent with a week about arrangement.
b) It would involve a significant change in the existing arrangements which have been in place now for some time. It would involve a significant change for the children.
c) I am not satisfied that the relationship between the parties is such as to make a shared care arrangement work to an optimal extent. The mother says she finds it difficult to negotiate with the father. She says she finds him overbearing. It was pointed out during the hearing that in some respects the history since separation does not bear this out. For example, when the consent orders were negotiated in November 2006 they provided for the father to return [G] and [J] to the mother on Wednesday morning rather than take them to school. This was put in at the insistence of the mother. Whilst there is force in this submission I recognise that there is a difference between negotiating face-to-face with a party and negotiating through lawyers. The consent orders were negotiated with the assistance of lawyers. I accept the evidence of the mother.
Turning to a comparison of the remaining alternatives, being either a continuation of the existing arrangements or permitting the mother to relocate with the children to S, his Honour set out what would in effect be the arguments for requiring the mother and children to remain in T:
49. a) The proposed relocation does not accord with the wishes of any of the children. It is inconsistent with [G’s] wish for a week about arrangement and contrary to the views expressed by [J] and [K]. As I have indicated [K’s] views must be accorded significant weight.
b) It would involve a very significant change in longstanding arrangements. All the children appear settled and happy living in [T]. They have lived there all their lives. This is where they go to school and this is where their friends are. It is also where their extended family on the father’s side are but of course those on the mother’s side live in the [S] area.
c) [G] has a problem with socialising and she, in particular, may have difficulties adapting to such a change.
d) Most importantly it would involve a considerable diminution in the time the father spends with the children. At present he has substantial and significant time with them. To diminish this will have an impact on the nature of the relationship between the children and the father. Further I must bear in mind paragraph (a) of sub-section 60B(1) of the Act [which states that one of the objects of the legislation is “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”].
As to the arguments which would support the move of the mother and children to S, his Honour said:
50. The advantages of making orders which would permit the mother to relocate to [S] essentially revolve around her unhappiness in [T] and all that goes with it.
51. Objectively it is difficult to see why the mother feels so isolated and unhappy in [T]. Her affidavit reveals that she has significant involvement in the [T] community…
52. It was also pointed out that during the parties’ relationship the mother spoke favourably about living in [T] as compared to [S], comparing the rural environment in [T] to the more cosmopolitan environment of [S]. However it is one thing to enjoy being in [T] and separated from one’s family whilst in a relationship and another thing to enjoy being there after that relationship has ended.
53. Whilst, as I have indicated, objectively the mother’s unhappiness and depression does not appear to be well-founded, having seen her in the witness box and having heard from her treating general practitioner I am satisfied that she is very unhappy being forced to live in [T] and, whether or not she could be diagnosed as having clinical depression, she is depressed. I am satisfied that she is genuine and not feigning or exaggerating her unhappiness and depression to strengthen her case for relocating.
54. It was submitted on behalf of the father that the mother appeared to be coping satisfactorily and there was no evidence that her unhappiness was having an impact on the children. My comments on this are as follows:
a) It may be that the mother is coping but it is to be noted that she is on medication. It is hardly satisfactory that she should be required to remain in [T] because medication can be used to ameliorate her condition and enable her to cope.
b) One would not necessarily expect there to be objective and overt signs of an impact on the children from the mother’s condition. I believe I am entitled to draw an inference that her parenting ability is likely to be compromised by her unhappiness and to draw an inference that this is likely to have some impact on the children.
Then in balancing these competing factors which he had identified, his Honour concluded:
55. … On balance I am of the opinion that the impact on the children (albeit that my findings as to that impact are based on inference and not objective evidence) were the mother forced to remain in [T] dictates that their best interests would be served were they to live with their mother in [S].
56. I acknowledge that the conclusion I have outlined in the previous paragraph is laconic in the extreme. I state a conclusion but do not explain how that conclusion was arrived at. But I do not believe I can do better than I have. I have to balance the advantages, insofar as the best interests of the children is concerned, of the mother (and of course the children) remaining in [T] with the advantages of the mother (and the children) living in [S]. But how do you compare them? It is akin to comparing apples and pears. It is impossible to qualitatively compare the two. The decision as to where the balance lies falls to me to assess. I have found that it lies in favour of the mother being permitted to relocate. Essentially that is a value judgment which is incapable of analytical explanation. It is, to quote Kirby J in AIF v AMS (1999) FLC 92-852 at p 86,043 a situation where there is a great deal of “judgment, discretion and intuition” involved.
Finally his Honour turned to the orders for what he termed “contact” between the father and the children. Given that no specific issue arises concerning those orders in the appeal, it is unnecessary to refer further to his Honour’s reasons for those orders although we note in passing that his Honour enlarged the contact proposed by the mother.
The issues raised by the appeal
In support of the appeal, counsel for the father relied on what he described as three “critical propositions” which, he submitted, arose out of the four grounds of appeal.
First, it was contended that his Honour had not given proper consideration to the effect or impact on the children of:
(1) any mental health issue on the part of the mother; and
(2) the relocation itself.
This issue was said to be the essential complaint arising out of the following grounds:
1. Having regard to the factors against making the orders sought by the mother, the court gave excessive weight to the mother’s emotional state and erred in drawing an inference that her parenting ability was likely to be compromised by her unhappiness and inferring that that was likely to have an impact on the children in the face of evidence to the contrary.
…
4. His Honour failed to adequately evaluate the effect of the change in circumstances brought about by the orders sought by the mother upon the children, in particular the effect of the relocation upon [K’s] welfare having regard to his views and [G’s] anxiety state.
5. His Honour failed to give adequate reasons for the orders made in the proceedings.
Secondly, it was contended that his Honour had erred in his application of s 65DAA in that:
(1) he misunderstood the proper approach as it emerges from the decision of the Full Court in Goode & Goode (2006) FLC 93-286; (2007) 36 Fam LR 422; [2006] FamCA 1346, and
(2) he misapplied s 65DAA to the facts of this case as required by the Full Court decision in Taylor v Barker (2007) FLC 93-345; (2007) 37 Fam LR 461; [2007] FamCA 1246.
These were said to be the issues arising from the remaining grounds of appeal being:
2. His Honour erred in concluding, in paragraph 44, that the orders made provided for substantial and significant time (as defined in s65DAA(3) of the Act).
3. His Honour erred in law in failing to consider the matters referred to in s65DAA(2)(a), (b) and (c), (3) and (5) of the Act.
Thirdly, it was contended that as a result of the above-mentioned errors, the balancing process involved in the exercise of the discretion had proceeded on a series of false bases and led to a miscarriage of the discretion.
The mother’s depressed state and its impact on the children
In developing his submissions in relation to the first matter raised in his first proposition, counsel for the father drew our attention to his Honour’s statement in paragraph 11 of his reasons that “the critical issue in this case [was the mother’s] contention that she is unhappy and depressed in [T] and needs family support”, and then to his Honour’s further consideration of that matter in paragraphs 50 to 55 of his reasons. We have earlier set out those paragraphs, but for convenience here repeat them:
50. The advantages of making orders which would permit the mother to relocate to [S] essentially revolve around her unhappiness in [T] and all that goes with it.
51. Objectively it is difficult to see why the mother feels so isolated and unhappy in [T]. Her affidavit reveals that she has significant involvement in the [T] community…
52. It was also pointed out that during the parties’ relationship the mother spoke favourably about living in [T] as compared to [S], comparing the rural environment in [T] to the more cosmopolitan environment of [S]. However it is one thing to enjoy being in [T] and separated from one’s family whilst in a relationship and another thing to enjoy being there after that relationship has ended.
53. Whilst, as I have indicated, objectively the mother’s unhappiness and depression does not appear to be well-founded, having seen her in the witness box and having heard from her treating general practitioner I am satisfied that she is very unhappy being forced to live in [T] and, whether or not she could be diagnosed as having clinical depression, she is depressed. I am satisfied that she is genuine and not feigning or exaggerating her unhappiness and depression to strengthen her case for relocating.
54. It was submitted on behalf of the father that the mother appeared to be coping satisfactorily and there was no evidence that her unhappiness was having an impact on the children. My comments on this are as follows:
a) It may be that the mother is coping but it is to be noted that she is on medication. It is hardly satisfactory that she should be required to remain in [T] because medication can be used to ameliorate her condition and enable her to cope.
b) One would not necessarily expect there to be objective and overt signs of an impact on the children from the mother's condition. I believe I am entitled to draw an inference that her parenting ability is likely to be compromised by her unhappiness and to draw an inference that this is likely to have some impact on the children.
55. … On balance I am of the opinion that the impact on the children (albeit that my findings as to that impact are based on inference and not objective evidence) were the mother forced to remain in [T] dictates that their best interests would be served were they to live with their mother in [S].
Counsel submitted that in so reasoning, his Honour had proceeded on an acceptance of the mother’s condition, but that he did not go on to find as, it was submitted, it was incumbent on him to do, what the effect on the mother of her being restrained from moving would be. However, in discussion before us counsel properly conceded that paragraph 53 of his Honour’s reasons for judgment could be read as containing such a finding.
Counsel further submitted that the evidence of the mother’s treating general practitioner, Dr W (which was ultimately given in oral form only) concerning her condition should not have been accepted, or if such evidence was accepted, it needed careful evaluation. The basis of this challenge before us to Dr W’s evidence appeared primarily to be (as it had been before his Honour – see the submissions of counsel for the father at trial at transcript of 27 July 2007, pages 163-165; Appeal Book 390 to 392) the doctor’s reliance on “Beyond Blue”, which, as was conceded by the doctor, is a book for lay people rather than on the standard diagnostic text known as DSM-IV. Counsel also drew attention to the admission made by Dr W that he did not have any psychiatric qualifications.
We have carefully read the oral evidence of Dr W, a general practitioner of 34 years’ experience, given both in chief and under cross-examination (transcript of 27 July 2007, pages 110-120; Appeal Book 337-347), and we have no hesitation in concluding that his Honour was entitled to place the weight which he did on that evidence. We particularly note the doctor’s response when asked about his prognosis for the mother when he last saw her some two months before the trial and when she was taking anti-depressant medication (Efexor) having for some time previously endeavoured to cope without medication:
…It is very reassuring to have the response to Efexor, but there is still the background cause of her depression and that would be the ongoing contest with the custody. And for me, if she moved down to Melbourne as she would like, I think the need for antidepressants could disappear. But on the other hand if she was having to stay, I think there would be a need for long term medication or long term counselling. (Transcript of 27 July 2007, page 115; Appeal Book 342)
It was then further submitted that his Honour should have considered the possibility of counselling to assist the mother if she was not to be permitted to relocate, particularly since counselling was a course recommended by the Family Consultant, Ms Lang, in the following concluding paragraphs to her second report, and was a course which both parties were prepared to take:
7.1 Although mindful and understanding of [the mother’s] need to relocate to [S], it would appear that the children continue to feel very much part of the [T] community and benefit from the ongoing input of both parents. Their development needs might best be met if they remained in [T] with the current living arrangements in place. If, however, the parents’ conflict reached a point when it inhibited the children’s development or if [the mother’s] emotional well being deteriorated to the degree to impact on her parenting capacity, relocation to [S] might be a consideration.
7.2 As suggested in the original family conference report, much of [the mother’s] concerns about remaining in [T] might be eased with improvement and boundary setting in the parenting relationship. I strongly encourage the parents to take part in counselling with Relationships Australia as a first option.
It is true that his Honour does not appear in his reasons to have considered the option of counselling as a way of ameliorating the mother’s problems. But we are not persuaded that his failure to do so would of itself be sufficient to warrant our interference with his decision based, as it clearly was, not only on the doctor’s evidence, but also his own observations of the mother. We note also that in his closing submissions before the Federal Magistrate counsel for the father did not make any reference to the recommendation either of Dr W for “long term counselling” or the recommendation of the family consultant for the parties to have counselling with Relationships Australia.
It was also submitted on behalf of the father before us (and as it had been at trial) in connection with this issue of the mother’s depressed state, that there was no evidence of her state having any impact on the children.
His Honour acknowledged that this was so in paragraph 54(b), but he considered that he was “entitled to draw an inference that her parenting ability is likely to be compromised by her unhappiness and to draw an inference that this is likely to have some impact on the children”.
We agree with his Honour that he was entitled to draw these inferences, particularly having regard to the mother’s treatment for depression with medication, the possibility of the need for long-term treatment, and Ms Lang’s conclusion in paragraph 7.1 of her report set out above, that the mother’s emotional wellbeing could deteriorate to a degree where it impacted on her parenting capacity.
In relation to this matter of the impact of the mother’s condition on her parenting capacity and thus on the children, we understood counsel for the father to rely on what was said by the Full Court of this Court in R v R (1998) FLC 92-820 at paragraph 86:
86. Beyond the general observation of the Full Court in B and B, supra, at par 9.67 that “ordinary common experience indicates that long-term unhappiness by a residence parent is likely to impinge in a negative way upon the happiness and therefore the best interests of the children who are part of the household”, there are frequently what may be termed as compelling cases where the evidence relating to such unhappiness and the capacity of the unchallenged residence parent to function becomes so overwhelming that other aspects have to give way to the needs of that parent. It is not hard to envisage cases in which such circumstances would exist. Strong evidence of an inability to function due to homesickness or a real or perceived need to escape from what is thought to be a hostile environment are but some examples of such circumstances. In this case the evidence fell far short of establishing any such circumstance.
In our view the decision in R v R (supra) is of little assistance in the present case because in the former case the mother, who was seeking to relocate with the children from Australia to Scotland was, according to the expert evidence, no longer suffering from the depressive episodes from which she had previously suffered and her overall functioning had greatly improved.
In the present case there was the evidence of Dr W which we set out above concerning the mother’s current depressed state. Against the background of that evidence and also of the observations of Ms Lang concerning an impact on the mother’s parenting capacity should her condition deteriorate, his Honour was, as we have said, entitled to draw the inferences which he did in paragraph 54(b) of his reasons.
Finally, in connection with this issue of the mother’s condition, we observe that it would have been preferable if his Honour had not used the expressions “unhappy” (paragraphs 11, 51 and 53) and “unhappiness” (paragraphs 50, 53 and 54(b)). His Honour had before him the evidence of the mother’s doctor that she was in a depressed state requiring medication. His Honour did of course refer to her depressed state (for example in paragraph 11). But, in our view, that expression should have been sufficient to describe the condition of the mother which ultimately led his Honour to permit the relocation of the children.
The impact on the children of the relocation
The second issue raised by counsel for the father in his first contention was his Honour’s alleged failure to consider properly the impact on the children of the move to S. In relation to this matter, we understood counsel to place particular emphasis on the findings which his Honour had made in the context of his consideration of the s 60CC(3) matters, concerning K’s preference to remain in T, the close relationship of all the children with their father, and G’s anxiety condition which makes it difficult for her to adapt to change.
The difficulty, however, which faces these submissions made on behalf of the father is that in paragraph 49 of his reasons (see paragraph 30 above) his Honour set out the reasons which would support a refusal to permit the mother to relocate with the children, describing those reasons as “obvious and cogent”. Included in those reasons were the matters apparently relied upon by counsel for the father in support of the complaint, being the children’s wishes and their relationship with their father and G’s difficulties in adapting to change.
It matters not, in our opinion, that his Honour dealt with the matters just mentioned as reasons for not permitting the move to S rather than as part of a consideration of the impact of such a move on the children. It is self-evident, in our view, that the matters affecting the children which provided reasons for not permitting their relocation would be likely to be the cause of some adverse impact on them if the relocation occurred. But his Honour had, in the exercise of his discretion, to balance the likely adverse impact caused by those matters against the other concerns which he had in relation to the mother and the children if he did not permit the relocation.
The Federal Magistrate’s application of s 65DAA
The argument advanced on behalf of the father in support of the contention that his Honour erred in his application of s 65DAA was essentially that his Honour did not follow the structured approach to the application of that section as was said to be required by the Full Court decisions of Goode & Goode (supra) and Taylor & Barker (supra).
It will assist our discussion of this issue if we commence by setting out the terms of s 65DAA (as his Honour also did at the commencement of his own discussion of the application of this section):
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
It will be recalled that immediately after setting out the terms of s 65DAA, his Honour made the following observations in paragraph 44 of his reasons before going on in paragraph 45 to say that it was not an option in this case for the father to relocate to S and then in paragraph 46 to set out the three options advanced in this case and then to proceed in subsequent paragraphs to consider those options:
44. As required by section 65DAA I will consider whether making an order for shared care is in the children’s best interests. If I do not believe that such an order is in the children’s best interests I will consider whether an order that the children spend significant and substantial time with the father is in their best interests. In this respect I propose to have regard to what I perceive to be the spirit of the legislation rather than its literal terms. It can be seen that the orders I have made technically fit within the definition of “significant and substantial time”. This is because I have included two days of contact that are not on weekends or during holidays. I do not however regard my orders as fitting within the spirit of “substantial and significant time.” The existing arrangements however do genuinely provide for the father to spend substantial and significant time with the children. Of course I will not be considering those two alternatives in isolation. I will also be considering making Orders of the type sought by the mother.
It has to be acknowledged that the reasoning in paragraph 44 is not particularly easy to follow. Much of the difficulty with the paragraph comes about because as well as foreshadowing the required task under s 65DAA of considering first whether equal time, and if not, then substantial and significant time, would be in the children’s best interests, his Honour then refers immediately to the orders which he has made (see in this regard our earlier comments in paragraph 13 above) and considers whether they constitute substantial and significant time for the children to spend with their father.
It is clear to us that contrary to the assertion contained in Ground 2, his Honour did not consider that the orders which he had made for the children to spend time with the father would result in them spending substantial and significant time with him. His Honour recognised that “technically” the orders fitted the definition, but he considered that they were not within the “spirit” of the definition.
We return then to his Honour’s process of reasoning following what he said in paragraph 44. Having said that a relocation of the father to S was not possible (paragraph 45) and having set out (in paragraph 46) the three options available to him, he then (in paragraph 47) considered the week about arrangement sought by the father. Such an arrangement would clearly fall within the concept of a child “spending equal time with each of the parents” which is the first option which under s 65DAA(1) the Court must consider in its application of s 65DAA.
His Honour rejected such an equal time arrangement as not being in the best interests of the children for the three reasons which he gave in paragraph 47 of his reasons (see paragraph 29 above).
Having rejected an equal time arrangement as not being in the best interests of the children, it was not necessary for his Honour to go further and consider the other matters in s 65DAA(1), being whether such an arrangement was reasonably practicable and then whether he should make an order for such an arrangement.
But having rejected an equal time arrangement, it was then necessary, as his Honour had expressly recognised earlier in paragraph 44 of his reasons, for him to consider whether spending substantial and significant time with their father was in the children’s best interests.
His Honour can be read as approaching this task by considering together the remaining two options, being a continuation of the existing arrangement or a relocation of the mother and children to S.
In considering his Honour’s approach, it is important to bear in mind that the existing arrangement involved the children living with the mother and spending alternate weekends (including two nights), one night each week, half mid-year school holidays and two weeks in the Christmas holidays with the father. His Honour described this existing arrangement (in paragraph 49(d) of his reasons) as constituting “substantial and significant time”. There appears to be no dispute regarding the accuracy of that description of the existing arrangements.
It should thus be clear from what we have said that in considering the remaining two options, being a continuation of the existing arrangements or a relocation to S, his Honour was considering the option of substantial and significant time (represented by the current arrangements) against an arrangement which, at least in spirit, would not, according to his Honour, amount to substantial and significant time.
In order to consider these options his Honour proceeded to set out (in paragraph 49) the reasons which would exist for refusing the relocation and then to set out (in paragraphs 50 to 54) the advantages of the relocation proposal (which as his Honour said “essentially revolve” around the mother’s condition). His Honour then concluded (in paragraph 55) that balancing the competing factors, he was of the opinion that the children’s best interests would be served if they were to live with their mother in S or in other words the existing arrangement (which involved substantial and significant time) was to be rejected.
Having decided on an arrangement which, at least in spirit, did not represent substantial and significant time, it became unnecessary for his Honour to go on and consider the other matters in s 65DAA(2), being whether such an arrangement was reasonably practicable and whether he should make an order for such an arrangement.
We acknowledge that it has taken some effort to analyse his Honour’s approach and satisfy ourselves that he can be seen as having met the requirements of s 65DAA. However, it has to be remembered that no two cases which involve the possibility of children being moved from their established residence and from one of their parents will ever present in an exactly identical way to the judge or Federal Magistrate who has to determine such cases. In every such case, issues peculiar to that case will arise. Moreover, no two judicial officers will necessarily see the issues arising in any particular case as capable of treatment (for example within the framework of the provisions of s 65DAA) in exactly the same way.
We are fortified in this conclusion by reference to what Kitto J said in Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 (at 627) concerning the presumption of the correctness of a discretionary judgment by a trial judge:
I shall not repeat the references I made in Lovell v Lovell [(1950) 81 CLR 513, at pp 532–534] to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
We note that in opposing this appeal, counsel for the mother placed particular emphasis on these words by Kitto J.
We are thus not persuaded that his Honour erred in his application of s 65DAA as asserted in the second contention raised on behalf of the father and in his Grounds 2 and 3.
Conclusion
Given that we have found no substance in the asserted errors which were the subject of the first and second contentions raised on behalf of the father, it is unnecessary for us to consider the third contention which would rely for its success on the establishment of one or both of the errors asserted by the first and second contentions.
Accordingly, the appeal must be dismissed.
Costs
In the event that the appeal was to fail, the respondent mother sought a costs order in her favour. We are not persuaded that the circumstances warrant such an order in this case.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 22 October 2008
9
4
1