Wilson and Wilson
[2013] FamCAFC 43
•22 March 2013
FAMILY COURT OF AUSTRALIA
| WILSON & WILSON | [2013] FamCAFC 43 |
FAMILY LAW – APPEAL – CHILDREN – RELOCATION – Appeal from a decision of a Federal Magistrate allowing the respondent mother to relocate the child’s residence from Sydney to Newcastle – Where the child has ADHD – Where the orders reduced the child’s time spent with the father from weekly to fortnightly and required lengthy car travel – Where the Federal Magistrate made orders for time to be spent with the father in Newcastle, which were not sought by the parties and her Honour had accepted at the trial as impossible – Whether the Federal Magistrate erred in allowing the relocation application when the expert evidence was that such a course would negatively impact on the child’s meaningful relationship with the appellant father – Whether the Federal Magistrate made findings not available on the evidence – Where the possibility and certainty of a negative impact on the child-father meaningful relationship as a result of relocation were plainly demonstrated by the expert’s evidence – Where the expert’s opinion was also that relocation itself held other risks for the child, independent of the meaningful relationship and time spent with the father – Where in oral evidence the expert provided further evidence which she used to reinforce the opinions she express in her report – Where there was no contrary expert opinion – Where the reasons amounted to an oversimplification of the expert’s evidence – Where the weight of the expert evidence was contrary to the material findings of the Federal Magistrate – Where the Federal Magistrate failed to provide adequate reasons for not accepting the expert’s opinion – Appealable error established – Appeal allowed and relocation matter remitted for rehearing.
FAMILY LAW – APPEAL – PROPERTY – Where the father appealed against property orders which reflected a 15 per cent adjustment to the mother for s 75(2) factors – Whether the adjustment to the mother was manifestly excessive – Where the Federal Magistrate adopted a one pool approach – Where neither party asked for a split of superannuation assets – Where it is difficult to see how the composition of the property was taken into account – Where the outcome of a new trial regarding the relocation issue may have a significant impact on the parties’ financial circumstances – Where fairness to both parties requires the appeal against the property orders to be allowed and the matter reheard at the same time as the parenting proceedings – Appeal allowed and matter remitted for rehearing.
Family Law Act 1975 (Cth) ss 60CC, 75(2)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9
| Bennett and Bennett (1991) FLC 92-191 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 Friscioni & Friscioni [2010] FamCAFC 108 Hall and Hall (1979) FLC 90-713 Heaton and Heaton [2012] FamCAFC House v The King (1936) 55 CLR 499 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 MRR v GRR (2010) 240 CLR 461 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSW 247 Sun Alliance Insurance Ltd v Massoud (1989) VR 8 U v U (2002) 211 CLR 238 |
| APPELLANT: | Mr Wilson |
| RESPONDENT: | Mrs Wilson |
| FILE NUMBER: | PAC 1167 of 2011 |
| APPEAL NUMBER: | EA 63 of 2012 |
| DATE DELIVERED: | 22 March 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, May & Ryan JJ |
| HEARING DATE: | 22 November 2012 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 5 April 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 313 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lloyd SC with Mr Livingstone |
| SOLICITOR FOR THE APPELLANT: | Clive Mills & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Anderson |
| SOLICITOR FOR THE RESPONDENT: | Etheringtons Solicitors |
Orders
The appeal be allowed.
The orders in paragraphs 3, 4, 5, 6, 7, 8, 9, 12(d) and 13 made by
Federal Magistrate Henderson on 5 April 2012 be set aside.
The proceedings in relation to property settlement and the mother’s application to change the residence of the child to Newcastle (and consequential orders) be remitted for rehearing by a Federal Magistrate other than Federal Magistrate Henderson.
There be no order as to the costs of the appeal.
The appellant father be granted a costs certificate pursuant to the provisions of
s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by him in relation to the appeal.The respondent mother be granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by her in relation to the appeal.
The parties be granted a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father and respondent mother in respect of the costs incurred by them in relation to the
rehearing.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilson & Wilson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 63 of 2012
File Number: PAC 1167 of 2011
| Mr Wilson |
Appellant
And
| Mrs Wilson |
Respondent
REASONS FOR JUDGMENT
Finn J
This is an appeal by the father against certain orders made by Federal Magistrate Henderson on 5 April 2012 in proceedings between the father and the mother in relation to parenting arrangements for the parties’ son (who was born in 2001 and suffers from ADHD and the difficulties caused by that condition) and also in relation to property settlement.
Her Honour’s parenting orders provided for the child to live with the mother (Order 1) and for the parties to have equal shared parental responsibility for him (Order 2). The father does not appeal those orders. However, he does appeal her Honour’s order (Order 3) which permitted the mother to move the child’s residence from the northern suburbs of Sydney to Newcastle, and also certain consequential orders (Orders 4 to 9) including orders providing for the time which he was to spend with the child.
Her Honour found the parties’ property (including their superannuation interests) had a net value of $1,173,848. Her orders provided for the sale of the former matrimonial home, which was the parties’ most valuable asset, and for the mother to receive 87 per cent of the net proceeds, with the father receiving the balance (Orders 11 and 12(d)). Each party was otherwise to retain any property (including superannuation interests) which was in that party’s name (Order 13). The only property order appealed by the father is that which provides for the percentages in which the net proceeds of sale of the home are to be divided (Order 12(d)).
The factual background to the proceedings between the parties and also the relatively lengthy reasons for judgment of the Federal Magistrate are well explained in the reasons for judgment of May and Ryan JJ, and I need not add to what their Honours have said about those matters.
Their Honours have also explained the evidence of an expert psychologist,
Ms B. That evidence did not support a move by the child to Newcastle because of the impact that the move would have on the relationship between the child and the father.
It is fair to say, and as will be seen from the reasons of May and Ryan JJ, that the father’s six grounds of appeal which are directed to the orders permitting the child’s move to Newcastle and to the consequential orders, and the submissions made in support of those grounds, are all directed to the Federal Magistrate’s apparent failure to accept, or give appropriate weight to, the expert’s opinions, or to explain why she did not do so.
I agree with May and Ryan JJ that there is substance in all those grounds of appeal and I do so essentially for the reasons given by their Honours.
The appeal against the parenting orders in issue must therefore be allowed, with those orders being set aside and a new hearing of the mother’s application to relocate the child’s residence to Newcastle, ordered.
I also agree with May and Ryan JJ that arrangements pending the outcome of a new trial be left to the parties to determine; if they are unable to do so, there will have to be an application for interim orders.
So far as the appeal is directed to the order providing for the percentage division of the net proceeds of the house, the only ground ultimately relied on by the father related to her Honour’s 15 per cent adjustment on account of the matters specified in s 75(2) of the Family Law Act 1975 (Cth). It was submitted in support of that ground that the adjustment was excessive, having regard to the capital division between the parties, their respective income earning capacities, the child’s age, and to factors relating to the permitted move of the mother and child to Newcastle (which included a cheaper location for housing and living expenses for the mother and the accommodation costs which would be incurred by the father in spending time with the child).
I consider that there is force in these submissions and therefore agree that the appeal against the property order relating to the distribution of the proceeds of sale must also be allowed and that order set aside.
Having regard to the fact that the mother’s application to be permitted to move the child to Newcastle has to be the subject of a further hearing, it is also appropriate that the property proceedings be re-heard because of the impact that a move to Newcastle would (if permitted) have on the financial situation of each party. For this purpose, the order concerning the parties’ property other than the home (Order 13) should also be set aside, although the orders concerning the sale of the home and distribution of the sale proceeds (other than to the parties) (Orders 11 and 12(a), (b), and (c)) could remain in place for the reasons given by May J and Ryan J.
I agree that there should be no order for costs and each party should receive the appropriate costs certificate for the appeal and the new trial.
May & Ryan JJ
This is an appeal by the father from final orders made by Federal Magistrate Henderson on 5 April 2012 following a trial between the father and the mother. The final orders, the subject of the appeal, concern property settlement and parenting arrangements for the parties’ only child, X, born in January 2001
(“the child”).
The Federal Magistrate allowed the application of the mother to move the child’s residence from Sydney to Newcastle. The Federal Magistrate made orders for equal shared parental responsibility and specified time to be spent with the father after the relocation.
In relation to the parenting orders, the thrust of the father’s appeal is that her Honour erred in making orders allowing relocation, when the expert evidence was to the effect that such a course would negatively impact on the meaningful relationship of the child with the father. It is said the Federal Magistrate erred in making findings which were not available on the evidence and contrary to the evidence of the Court appointed expert.
The Court appointed expert, Ms B, provided a lengthy report dated 18 October 2011 and gave oral evidence at the trial.
The parenting orders from which the father appeals are as follows:
3.That the mother be permitted to remove the child’s permanent place of residence, from Sydney to Newcastle.
4.The mother is to notify the father 30 days prior to the move to Newcastle, of the residential address at which she and the child will be living, her telephone contact details, the school at which the child will be enrolled, the name of the Principal and the name of the child’s teacher.
5.Thereafter the father be permitted to attend the child’s school, contact the school and make such inquiries at the school concerning his son’s education as he deems appropriate.
6.The mother to forthwith inform the father of the child’s paediatrician in Newcastle and any other health professional he is to attend and the father thereafter is permitted to contact the child’s health professionals to obtain information about his son’s treatment and ongoing prognosis.
7. The child spend time with his father as follows:
a.Each alternate weekend in Sydney, with the parents to meet after school at [T] on Friday and on Sunday at times as agreed and failing agreement at 6.00pm Friday and 6.00pm Sunday;
b.On one additional weekend each calendar month in Newcastle as agreed and failing agreement the second weekend of the month. The child to spend time with the father on those weekends from after school Thursday to the commencement of school Monday morning or such other times as agreed;
c.For one half of each school holidays as agreed between the parties; and
d. At other times as agreed.
8.Upon the father determining to exercise his rights under order 7(b) herein he is to give the mother details of where he will be staying in Newcastle with the child and his telephone contact details 14 days before his time is to commence;
9.In the event that the father does not take exercise his rights under order 7(b) within two months of the child moving to Newcastle, order 7(b) is discharged.
The father also appeals from final orders providing for property settlement. In essence, the orders provided that the former matrimonial home be sold, and from the net proceeds the mother is to receive 87 per cent and the father the balance.
The primary complaint in the property appeal is that the adjustment to the mother pursuant to s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) was manifestly excessive. As will be seen, the appeal is to be allowed by reason of error in the judgment leading to the parenting orders. In these circumstances where the property orders made by the Federal Magistrate were partly informed by the parenting arrangements, we consider it necessary for the appeal against both to succeed. We will nonetheless address the father’s grounds of appeal against the property orders.
No application for a stay of the parenting or property orders made on 5 April 2012 was made. Counsel for the mother confirmed that the mother’s intended move to Newcastle was delayed until the sale of the property.
Background
For the purposes of considering the father’s grounds of appeal, it is important to set out some background to the parties’ relationship, essential facts relating to the child, and the circumstances prompting the mother’s application to relocate to Newcastle.
At the time of trial the father was aged 57 and the mother aged 52. They had commenced a relationship in October 1998 and married in 2000. The child was born in January 2001.
In September 2004 the parties purchased the former matrimonial home, located at suburb M in Sydney. The property was purchased for $830,000, with the parties applying approximately $300,000 of joint funds towards the purchase.
The parents then separated in July or August 2007. At the time of trial the mother was working from home as a bookkeeper/accountant. The father worked as a contractor for a consultancy company in North Sydney.
The parties were able to agree about arrangements for the child until the mother asked the father’s consent to permanently move with the child from Sydney to Newcastle. The father did not agree. The mother applied to the Court for final parenting orders allowing her relocation. The father sought orders, restricting the mother and child to living in the Sydney metropolitan area.
At the time of trial the child was aged 11. In 2005 at age four, the child had been diagnosed with ADHD. It is common ground between the parties that as a result the child has behavioural and learning difficulties. These were being managed with some success. However, it was apparent that problems with
self-regulation and behaviour, and interaction with peers remained. The child has attended the same school since kindergarten.
From separation, the child lived with the mother in the former matrimonial home and spent regular time each weekend with the father on an agreed basis, as mentioned, without the need for court orders. At the trial, that time was from Friday afternoon after school to Sunday morning each weekend and on occasion longer. It was uncontroversial that the father and son had developed a weekly ritual of activities, which was structured and predictable. Ms B emphasised the Friday night ritual, where the father collects the boy from school, they walk to the shops, collect and then watch a video, as being very important to the child.
The mother presented numerous reasons in support of her application for relocation. They were described by the Federal Magistrate as “lifestyle reasons”. The first was a desire to obtain appropriate and affordable accommodation for her and the child to live in without taking on a mortgage. The parties agreed the former matrimonial home was to be sold in order to effect a property settlement. The mother believed she could not afford to buy a house with a backyard in an area of Sydney of her choosing.
The second reason was a desire to reduce her work hours in order to spend more time with the child and also to supervise his education as he gets older. The mother also wished to be closer to two friends who lived in the Newcastle area, it having been noted by the Court appointed expert that the mother appeared socially isolated in Sydney.
The mother sought orders that the parties have shared parental responsibility, that the child reside with her and spend time with the father every second weekend, from 3 p.m. Friday until 2 p.m. Sunday, and for half of the school holidays. The mother’s proposed orders did not specify whether the child’s time with the father was to be spent in Sydney or Newcastle.
The father sought orders that the parties have equal shared parental responsibility, that the child live with the mother within a 15 kilometre radius of North Sydney, and spend time with him three out of four weekends for three nights at a time.
Neither party sought an order like order 7(b) made by the Federal Magistrate, which provided for a possible third weekend per month between the father and child in Newcastle.
The mother also applied for property orders for the sale of the former matrimonial home and a distribution of the proceeds as 67 per cent to her and 33 per cent to the father. The father sought orders for a 70 per cent distribution to him and 30 per cent to the mother.
Reasons of the Federal Magistrate – parenting issues
The Federal Magistrate delivered lengthy reasons for judgment, with more detailed consideration given, as was appropriate in the circumstances, to the parenting issues.
Her Honour identified the primary issues for determination in the parenting proceeding as the mother’s relocation application, and orders for substantial and significant time for the child with his father (equal shared parental responsibility having been agreed and equal time being neither sought by the parties nor practicable in the circumstances).
The Federal Magistrate referred to the correct approach enunciated by the
High Court in MRR v GRR (2010) 240 CLR 461 - that the parties’ competing proposals must both be considered and that the orders be practicable and realistic in all the circumstances.
Her Honour proceeded to discuss the characteristics of the child, the nature of his relationship with each parent, and the distribution of parenting tasks and responsibilities both during the marriage and post-separation. As there was no challenge to these findings, it is helpful to simply reproduce them here:
64.[X] suffers from ADHD and has experienced significant behavioural problems in the past which continue. Happily of late [X]’s behaviour has begun to improve however it is still of concern and he requires close adult supervision. He has little self control, explodes in temper and does not like change. He has few friends as he is unable to deal with conflict and responds either physically by hurting a child or angrily with words. He is a somewhat isolated child totally dependent on his parents for all his emotional and social needs at this time.
…
66.At present [Ms B] says his emotional functioning is at about 7 to 8 years and struggles with his schooling at times. His closest emotional attachment is to his mother with whom he enjoys a stable and committed relationship. The mother is his rock in my parlance.
…
70.[X] spends time with his dad each weekend from Friday night to Sunday morning. His father has not had, as has the mother, to clash with him to do homework, get up at a specific time and prepare him for school. The father has had the enviable luxury of spending quality weekend time with his son with the hard yards being done by the mother.
71.However the past 4 years have ensured [X] now has an attached, strong and beneficial relationship with his father and his father with [X].
…
73.I find on the evidence that during the marriage the husband was the main breadwinner, a task which he carried out to a high level and continues so to do. I find [X]’s mother was the primary parent and homemaker a task which she carried out to a high level and [X] is primarily attached to her she being his primary carer.
74.I find [X] did not have the same strong and attached relationship with his father as he had with his mother at separation but he now has a close and supportive relationship with his father which is credit to both parents.
The Federal Magistrate repeatedly made clear that a change of the child’s school was inevitable as a result of the former matrimonial home being sold, and the mother’s financial inability to purchase a suitable home near the child’s current school.
The inevitability of the change in school, as a form of change generally in the child’s life, appears to form one justification for making orders which radically changed both the child’s living circumstances and also the time spent with his father.
That the parties were “superior parents” who could assist him to cope (an issue not addressed in the expert report) appears to be a justification also (reasons paragraphs 84-85).
The mother’s proposal for housing, that she be able to purchase a house without encumbrance and “a house with a yard” appeared to have considerable significance for the Federal Magistrate (reasons paragraphs 122, 126).
Notwithstanding having found strong relationships between the child and each of his parents, and acknowledging Ms B’s emphasis that the child needed the father to be more available to him and that relocating to Newcastle would minimise that availability, the Federal Magistrate appears to have considered the prior behaviours and attitudes of the parents, and the father in particular, as justifying the relocation:
128.…Despite the father’s statements that he now wishes to be more involved in [X]’s life and take on some parenting responsibilities I do not see this will occur in the future for the following. He has not done so to date despite having the opportunity to do so and to do so would interfere with his capacity to earn his income. The father has never asked for a longer time with [X] during the school week and only did so after the mother sought to relocate to Newcastle.
129.Mr Livingstone was mortified on his client’s behalf when I suggested the father have the whole of the school holidays if [X] lived in Newcastle. He was indignant on his client’s behalf that I could suggest the father take one Friday and part of a Monday off work once a month to enjoy a long weekend with his son in Newcastle. He said he can not do this as he works full time and it is not possible.
130.Yet it has always been possible for the mother as she ensures her work fits around [X]’s needs. In the light of that submission I find it extraordinary that the father tells me the mother is not able to move to a location which will enable her to be more available for her son when the reality is he will not make himself more available. Further, that the mother must remain where the father wishes to live to enable him to maximise his time with his son, maintain his working week and his income earning capacity.
131. The mother’s decision to move is soundly based.
The Federal Magistrate then particularly considered the effect of relocation on the child’s relationship with his father. Her Honour identified the father’s concerns, then engaged with Ms B’s opinion which shared these concerns, ultimately disagreeing with them both:
135.… The father’s heartfelt plea was his concern that if his son was relocated to Newcastle that:
a) He and [X] would spend less physical time together;
b)The result of merely spending less physical time together would result in a diminution of their hitherto good relation;
c)That as time progressed, [X] would become sick of the long trip to and from Sydney to Newcastle and would be less inclined and reluctant to visit his father; and
d)That the father would be unable to be as involved in his son’s life as he is now, for example, each Friday afternoon, they have their video ritual and he can drop in on the child’s school and attend school functions now.
136. I will address these matters.
137.[Ms B] made a finding in her report which I struggle to see was available to her. She said, at paragraphs 90 and 91, under the heading, “The impact upon the child and his relationship with the parents if he lived in Newcastle”:
The impact to [X] of a move to Newcastle is untested and the risks and benefits are outlined above. If, however, the father were to travel to Newcastle to see [X], one of the risks to [X], that is, the long trip would be removed. It would also allow the father to be involved in some of his potential extracurricular and schooling activities.
The risks are: the father does not have permanent accommodation in Newcastle and would need to rent weekend [sic] or visits would need to be limited to one day of the weekend. In either case, the opportunity for [X] and his father to spend relaxed time at home would not be available. This is likely to be a further distancing between [X] and his father with the potential risk that [X] relegates his father to a distant figure who has very limited involvement in his life and this may have a deleterious impact on his relationship with both his parents.
138.In her oral evidence she said this move would be of positive harm to the child and that his relationship with his father would diminish by that mere fact. I fail to see where the evidence is in this case to support a finding that the mere move by [X] to Newcastle would be of positive harm to his relationship with his father, or that the move to Newcastle will result in [X] and his father spending less time together, or that as his father does not have secure accommodation in Newcastle he and [X] could not have a relaxed time together.
(emphasis added)
As will be discussed, paragraph 138 of her Honours reasons is in conflict with her findings at paragraphs 232 and 306.
The Federal Magistrate then explained the genesis of the weekend time in Newcastle, it being a proposal of her own during the course of the trial, after the father had been cross-examined. Her Honour appears to have been critical of the father’s and the expert’s perceived failure to address this option, notwithstanding it was not a proposal or order sought by the mother and was not a specific topic asked of the expert in the report referral order (reasons paragraphs 141-145).
Her Honour was also critical of what she perceived to be a focus in the report, on what the father would miss or lose in the relocation, and of the father’s unwillingness, in her view, to make sacrifices or concessions (reasons paragraphs 147-149, 151).
In fairness to the father, the Federal Magistrate also said:
164.The father has a proper financial focus. He is approaching retirement and wishes to provide for himself. These were some of the reasons he gave why he would not move to Newcastle. He could not get a job that pays him the same salary he earns in Sydney. He said he was not able to take advantage of a long weekend in Newcastle at least once a month as it would be far too much time off work to maintain his job.
The Federal Magistrate then addressed Ms B’s report directly. Having earlier said the focus of the report was “very much on what the father was going to miss”, her Honour then accepted the father’s counsel’s submission that the report was “very much about the needs of this boy”. Her Honour accepted “the report [was] of a high calibre and standard and that [Ms B] [was] an impressive witness” (reasons paragraph 153).
Turning to the issue raised by Ms B about the impact of the travel requirements from Newcastle to Sydney on the child and the relationship with his father suffering as a result, the Federal Magistrate discussed these concerns at length:
175.[Ms B] says the relationship with [X] and his father will suffer. As [X]’s current experience of weekly contact with his father will cease and he will only see his father every fortnight and this visit will necessitate a lengthy car trip. These are not the facts or the proposals before the Court. I take issue with a conclusion that the father son relationship would suffer due to a move to Newcastle.
176.There is some practical difficulty and expense in the father having a long weekend in Newcastle once a month and travelling to meet half way at [T] on the alternate weekends however he has the income to deal with this and the flexibility of working for himself.
(emphasis added)
For the father to collect the child on Friday afternoons he would need to leave work early. To spend time with the child in Newcastle as ordered by the
Federal Magistrate, the father would need to leave Sydney at midday on Thursday and take Friday and part of Monday as leave from work.
Returning to the reasons of the Federal Magistrate:
181.[Ms B] said that as [X] ages he will no longer be enthusiastic about such a long trip and may become distant from his father and lose the opportunity for a continuing and close relationship. I do not accept that opinion for the following.
182.[Ms B]’s evidence was that [X]’s level of maturity was well below his chronological age, some 3 to 4 years, as was much of his emotional functioning. I accept that opinion. If this continues to be the case when he is 15 years old he will be emotionally functioning at around 11 or 12 and when he is 18, perhaps functioning at an emotional level or a maturity level of some 15 or 16 years.
183.On [Ms B]’s assessment of [X]’s level of maturity, which I accept, he will not reach a level of maturity or an emotional functioning where the long trip will outweigh the joy in spending time with his father until he is chronologically 16 to 17 years. Thus the ageing issue which may have held some real weight in another child whose level of maturity was commensurate with his chronological age does not hold significant weight in this matter.
184.Secondly, [X] himself said that the worst thing that could happen is for his father not to be in his life. I accept this is true for [X] and his mother and thus I am unable to accept that [X] will, in the foreseeable future wish to spend less time with his father due to a lengthy car trip.
185.In light of these facts I do not accept the opinion that as [X] ages he will be less inclined to see his father due to a long car trip. Any child, as they age may become less inclined to visit a parent or even spend time with a resident parent. The length of the car trip is not the overwhelming issue here. It is [X]’s desire to have his dad in his life.
Despite these conclusions, earlier in the reasons the Federal Magistrate had recorded the child’s statement to Ms B that “…two or three hours in a car is too long for me now, when I think of it” (reasons paragraph 168).
The Federal Magistrate gave consideration to the difference between her own proposal of time in Newcastle, the father’s proposal and the status quo. Her Honour appears to consider that the relocation and the father spending time in both Sydney and Newcastle would produce much the same effect as the current arrangements. Conversely, her Honour considered the father’s proposal would result in more time and “significant change” to the child’s routine, which the Federal Magistrate found to be “inconsistent” with the father’s wish and
Ms B’s concern about restricting change:
223.He was asked how he saw the move impacting upon his relationship with [X] and replied “It would cut his time in half, I won’t be able to see his friends and teachers, he won’t see my life”. The evidence is that the father has no involvement with [X]’s friends as [X] has very few friends. The father has little contact with the school in any event and the reality is if the father spent an additional weekend or long weekend in Newcastle once a month as well as alternate weekends in Sydney his time would be similar to that which it is now.
224.He presently spends 2 nights and 1.5 days a week with [X]. Over a month that is 8 nights and 6 days. At times this is less if the mother has a weekend with the child.
225.If the order were 2 weekends a month in Sydney and a Thursday afternoon to a Monday morning before school once each 4 weeks in Newcastle his time would be 6 days, and if one includes Thursday after school and Monday before school as one day, and 8 nights a month.
226.The father’s application is for time Thursday to Monday each alternate week and every Thursday night with the child remaining in Sydney. That is 5 nights per fortnight or 10 nights a month. This is 2 nights more than he presently enjoys and would result in a significant change in [X]’s usual care regime both as to time and arrangement.
227.The father’s preferred option involves a significant change. As significant as [X] moving school and homes yet it is the mother who has been criticised for wanting to change arrangements for [X] when the reality is change is sought by each parent as it is time for change.
228.The father’s option would see him being involved in [X]’s weekday activities such as the school morning routine, something he has not been involved in to date. It is also a significant change which is inconsistent with the father wanting things to stay the same and [Ms B]’s concern the parents keep change for [X] to a minimum. It is impossible to minimise the changes when both parents seek a change to [X]’s care whether he is living in Sydney or Newcastle.
(original emphasis)
Her Honour expressed a clear view, contrary to that of the expert, that a reduction in time would not have a negative impact on the father-child relationship. Her Honour considered in any event that the extra weekend together in Newcastle, if taken up by the father, would mean no reduction in time. Furthermore, her Honour said: “I can accept that a reduction in the quality of time the father spends with [the child] possibly diminishing [sic] their relationship, however there is no evidence to support that eventuality” (paragraph 232).
With the greatest of respect to her Honour, and for reasons which we will explain, in our view that possibility and the certainty of a negative impact on the father-child relationship as a result of relocation (regardless of the time which may or may not be made up in Newcastle) were plainly demonstrated by the expert evidence. Indeed it is difficult to overstate the strength of the expert’s opinion that relocation would have a deleterious effect on the child’s relationship with his father. Although we agree that this was but one factor that her Honour was required to consider and balance, what she could not do was determine the matter without careful consideration of that evidence. It follows that we agree with submissions made by senior counsel for the father that her Honour failed to provide adequate reasons for not accepting this expert opinion.
After noting that the “relocation issue” is a finely balanced matter (reasons para 292) the Federal Magistrate concluded her decision to allow the mother’s application for relocation:
303.The impact upon [X] of the mother’s proposal to move to Newcastle is untested and may have a negative impact upon him due to his difficulty in coping with change. However [X]’s real difficulty is coping with change for which he is not prepared not merely change simpliciter.
304.The negatives for [X] are that to cope with a change to living in Newcastle he will need to adjust to a long car trip twice a month of about two and half hours each way in order to see his father in Sydney. [X] is a good traveller however he has never had to regularly travel long distances. He may become fractious and there may be occasions where he may not always wish to see his Dad if it involves a long car trip.
305.He may see less of his father if his father is unwilling once a month to spend a weekend or long weekend in Newcastle to see his son in his environment in addition to the alternate weekends in Sydney.
306.I do not see the possibility of a mere reduction in [X]’s quantity of time with his father or changing how the time is spent will negatively affect the benefit to [X] of his current meaningful relationship with is [sic] father. The weight of the evidence was against such a finding.
307.I do not see the move to Newcastle of itself as having a negative impact on the quality of time the child and father currently enjoy or will enjoy in the future.
(emphasis added)
It must be said that the weight of evidence of the expert was to the contrary.
To properly consider the reasons and appreciate them in the context of the grounds of appeal it is necessary to set out the following substantial part of the reasons.
The Federal Magistrate noted that:
309.He will be moving into a different home and environment a long way from his father and living in an environment his father is most negative about.
310.He will not see his dad every Friday night. However the father has also sought a change to this usual routine even if [X] remains in Sydney and this like the new school is a necessary change.
311.These are real and significant factors and may impact negatively on [X] and are against the mother’s move. The impact of the change upon [X] is significant and it is untested and [Ms B] opined it would be detrimental. However the negatives are only part of the picture.
312.lf the mother remains in Sydney and carries out her wish to purchase a home with a yard and a small or no mortgage to maximise her time and availability to [X] she will be moving to an outer Sydney suburb. This will necessitate significant travel for [X] to spend time with his father as his father will be living on the Lower or North Shore which is his preferred place of living.
313.If the mother elected to remain close to the father’s preferred place of living, she can afford to purchase at best a 2 bedroom apartment if she is to have a little or no mortgage, or purchase an inferior home to that which [X] has lived in all his life with a significant mortgage resulting in her being required to increase her current working hours, or rent a property with the lack of stability that brings.
314.The mother may not be as emotionally and psychologically available to [X] as I accept she will be if she moves to Newcastle for the following reasons or combination of reasons. The mother may have to continue to work her current hours or increase them, she will not be living where she will feel happiest living near her friends and will continue her social isolation, will continue to put her life on hold and will be prevented from living where she has determined it is where she wants to live.
315.This will not be the case for the father who can live where he wishes and still maintain his important relationship with his son.
316.To place the mother in such a situation when she is the primary carer of a child with special and difficult needs to fulfil may result in [X] not receiving the level of parenting he has hitherto enjoyed from his mother. That too is risk to [X].
317.The impact upon the mother of a move to Newcastle will be positive for her. It is where she wants to live. She has friends in Newcastle, something she is short of in Sydney. She will be able to provide a quality home for herself and her son, a quality that she and the child and the husband enjoyed during the relationship mortgage-free, thus freeing up some time from having to earn the income she presently earns and giving her, she believes at least one free day a week to devote to [X] and his needs. That can only be in his best interest.
318.The child’s relationship with each of his parents. His strongest, closest emotional attachment is to his mother, but he has a significant and secondary important attachment to his father. His strong relationship with his father will be maintained no matter where [X] lives. His secure relationship with his mother may suffer if his mother is unable to continue her hitherto high level of physiological and emotional availability to [X] due to the pressure of work or unhappiness in being prevented from living her life as she wishes.
319.This is particularly important when one considers that the father will continue to live where he wishes to live, continue to earn a significant income and maintain his life as he chooses no matter where [X] lives.
320.Each of the parents has a capacity to promote in their child a positive attitude towards and positive relationship with each parent and they have done so.
321.There is a practical difficulty and expense of [X] spending significant and substantial time with his father if he lives in Newcastle being time during the week, on weekends and special occasions. [X] will have to travel to Sydney at a cost and endure a trip of some two and a half hours each way. If, as I posited, I make an order that the father spend an additional weekend or long weekend once a month from Thursday to a Monday or Friday to a Monday in Newcastle this will be a significant cost factor for the father in having to secure accommodation that is appropriate for he and [X], the additional travelling time and time off work, which he is not keen to do.
322.Both parents have a potential high capacity to provide for the needs of their child, including emotional, intellectual needs, but the mother has demonstrated that capacity over time and will continue so to do. The father is yet to demonstrate the same capacity as the mother and I am not sure he will do so as this would entail a disruption to his working week and a diminution in his income.
323.The mother has an outstanding attitude to her responsibilities of parenthood and takes every opportunity to be involved in [X]’s life. The father is yet to demonstrate a similar attitude and regrets his lack of involvement in the child’s life being educational and health needs although he spends time with him.
324.[Ms B] opined that [X]’s relationship with his father would be detrimentally affected if he moved to Newcastle and only spent alternate weekends with him. That is not the proposal. It is that the father spends more than alternate weekends with his son.
325.The proposal is he spend in addition to alternate weekends in Sydney one weekend or better still one long weekend in Newcastle once a month. That he sacrifice a day or two of work once a month to spend a long weekend with his son in proper accommodation which he can afford, and partake in his schooling by taking him to school, picking him up from school, doing his homework etc. This regime would not result in a diminution of time just a different regime of time but significantly involve his father in aspects of [X]’s life he has hitherto left solely up to he mother.
326.If the mother remains in Sydney there is no guarantee that I can order the child to spend time with his father each alternate Thursday to Monday morning and each Thursday night as the father and child may live too far apart to enable this to be practical for [X]’s educational needs. The father will not move over the bridge and will only live as far north as Hornsby. The mother may choose to live in Menai or Cranebrook or Baulkham Hills or anywhere in between when she finds a suitable home for she and [X] within her budget.
327.This matter is finely balanced. The issues and the move for [X] to Newcastle are untested. There are clearly risks. [X] does not take change well. He does not make friends easily yet he is to move school, whatever order I make. Further his mother’s proposal is he lives in an area he knows very little about and has never lived in before.
328.However, his mother has held up her life for four years. She wanted to move to Newcastle in 2008. She and the father agreed that to allow their son to come to grips with their separation that they would maintain for [X] what he had known and things stayed the same.
329.It is now four years on, [X] has progressed and matured. His behaviour has improved. He has a strong and secure relationship with his father. Each of his mother and father must now move on. Their home is to be sold and of necessity things will change. This is the time for the parents to make a change. This is the time for [X] to make a change. He is as best placed as he is ever likely to be to make that change successfully. This is due in no small part to the strength of his relationship with his father, which each his mother and father have encouraged.
330.In those circumstances and on a fine balance I find the mother’s application to move to Newcastle to be an order in the child’s best interests. It will provide the mother with an appropriate home for she and [X] to live in either without or with a small mortgage, provide her with her friendships in close proximity, enable her to be more physically, as well as psychologically and emotionally available to her son due in part to needing to work less hours to provide financially for herself and provide her with the happiness that she should have if that be consistent with [X]’s best interests which I find it is.
…
332.I find that the mother’s proposal is one that on balance meets [X]’s needs and is a proposal that is in [X]’s best interest and will maintain for him the benefit of his meaningful relationship with his mother and his father.
(emphasis added)
Grounds of appeal – parenting issues
The father’s notice of appeal contains nine grounds of appeal. Grounds 1 to 6 relate to the Federal Magistrate’s treatment of the parenting matters:
1.The learned Trial Judge’s conclusion contained at paragraph 306 of her judgment, was a conclusion not available to Her Honour on the evidence given Her Honour’s correct recalling of the evidence as identified by her at paragraph 138 of her judgment.
2.That Her Honour’s conclusion contained at paragraph 307 of her judgment was completely against the weight of the evidence having regard to the father’s lack of accommodation in Newcastle, and the time involved in implementing what amounts to a reduction of time spent between father and son.
3.That Her Honour’s conclusion contained at paragraph 303 of her judgment was not based upon any independent evidence and was against the weight of the evidence offered to the Court by [Ms B].
4.That the learned Trial Judge erred in ignoring the report made by the court expert, [Ms B].
5.That Her Honour erred in determining as she inferentially did, that it would be in the child’s best interest for the mother to own and occupy an unencumbered (or almost unencumbered) property with a backyard.
6.That Her Honour ultimately failed to analyse and give due and proper weight to the provisions of Section 60CC(1), (2), (3), (4) and (4A).
Relevant Principles
The father’s primary ground of appeal against the parenting orders alleges a specific error in the Federal Magistrate’s consideration of the evidence, especially the expert evidence and the wrong conclusion that the mother could, in the best interests of the child, relocate. Further, it is asserted that in these circumstances too much weight was given to the mother’s desire to own an unencumbered home with a backyard.
Given that the appeal ultimately turns on the Federal Magistrate’s treatment of evidence, we consider it important to refer to the expert evidence, which was from Ms B, a clinical psychologist and the Court appointed expert.
The proper treatment of expert opinion evidence was considered at length in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (as approved by the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at page 604).
In this case there is no doubt that Ms B had the necessary training and experience. The Federal Magistrate was complimentary about her report. Of course, her Honour was not obliged to accept the opinion as conclusive. It is noteworthy that in this case there was no contrary opinion. And, that examination of the cross examination in the transcript reveals that not only did
Ms B not waiver from her opinion, but on occasions provided further evidence which she used to reinforce the opinions she expressed in her report.
In the absence of other expert opinion, or a demonstration that the expert had mistaken some facts, failed to take into account relevant facts revealed at trial or was not qualified, it should have been very difficult for the
Federal Magistrate not to accept her opinion about the effect of relocation on the child’s relationship with his father and other matters.
Judicial officers are under an obligation to provide adequate reasons for their decisions (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSW 247). The principles relating to the adequacy of reasons need not be set out at length. An appellate court must be able “to discern either expressly or by implication the path by which the result has been reached” (the Full Court in Bennett and Bennett (1991) FLC 92-191 at 78,267, following Sun Alliance Insurance Ltd v Massoud (1989) VR 8). The requirement to provide reasons extends to a judicial officer’s treatment of expert evidence received by the Court.
The father also alleges error in the exercise of discretion, in considering the property and parenting orders.
Errors in the exercise of discretion are governed by well settled general appellate principles, which were summarised by Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499. We repeat what their Honours said at 504 for the benefit of the parties:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.
As we have mentioned, the father’s central argument on appeal against the parenting orders is that the Federal Magistrate erred by making findings which were not available on the evidence, and by ignoring the evidence of the Court appointed expert without providing adequate reasons for so doing.
Expert Evidence before the Federal Magistrate
As this is the father’s primary argument on appeal, we consider it instructive to set out some of the expert’s evidence, in addition to those parts of the
Federal Magistrate’s reasons for judgment, which we have not already recorded.
At the outset we note that on 5 July 2011 the Federal Magistrate ordered a Single Expert Report be prepared by Ms B, clinical psychologist.
Ms B was directed to address the nature of the child’s relationship with each parent, the impact of staying in Sydney on the mother’s parenting capacity, and the impacts of the proposed permanent relocation to Newcastle both on the child, and on his relationship with each parent.
On 19 September 2011 Ms B interviewed separately the child and each parent, and the same day interviewed the child together with each parent. On 18 October 2011 she delivered her report.
Ms B observed that the child enjoyed a close and secure relationship with his mother, and a loving and warm relationship with his father. There was no issue about these matters before her Honour, with both parties being complimentary about the other’s parenting capacity and commitment to their son.
In considering the positive impacts of the relocation generally, Ms B was careful to emphasise that they were untested:
77.If [the child] and [the mother] were to move to Newcastle permanently there are a number of potential risks and benefits to [the child]. If, as the mother suggests, she was to be under less financial pressure and able to work less, [the child] would benefit from more availability of his mother.
78.[The mother] also suggests that she would be happier in Newcastle. This is untested…the potential of the mother’s improved mental health in Newcastle is also unsure…
79.[The mother] also suggests that the proposed school in Newcastle is of potential benefit to [the child] because of smaller class sizes…In short, the capacity of a different school to offer an improvement to [the child’s] current school is untested.
When considering the risks of relocation, Ms B clearly predicted a certain negative impact on the child’s relationship with the father:
80.On the other hand, the risks to [the child] of a permanent move to Newcastle are: firstly and perhaps most significantly that the relationship between [the child] and his father will suffer. [The child’s] current experience of weekly contact with his father will cease and he will only see his father every fortnight and this visit will necessitate a lengthy car trip. It is likely that as he ages, [the child] will no longer be enthusiastic about engaging in such a trip and it is probable that he may become more distant from his father and lose the opportunity for a close and ongoing relationship with his father. The routine and arrangement that [the child] has with his father of a Friday afternoon seems to provide him with an extremely important and enjoyable time with his father that assists him to wind down at the end of the school week…It is likely that [the child] and his father could engage another, similarly meaningful routine, however it would not occur as frequently, a factor that is likely to qualitatively impact on their relationship, possibly rendering [the father] more peripheral to the sphere of influence in [the child’s] life.
81.In addition, [the child] appears to have made great improvement and to be well settled at his current school, despite the many setbacks he has experienced. A move of school may have the impact of unsettling [the child] and exacerbating some of his behavioural and learning difficulties. Although he has had some difficulties, [the child] has a network of friends and peers and he is the sort of child who finds adapting to change to be challenging.
82.[The child] is also well supported by his paediatrician and involved with a number of other practitioners and activities in his local community. The potential loss of these professional and social resources is significant for [the child] as he has been a child who has needed multiple support systems in order to remain positively engaged at school and in social relationships. He is unlikely to be a child who is able to adapt easily and flexibly to a new environment (educational, social and community) with reduced social capital…
(emphasis added)
Ms B directly assessed the impacts on the child’s relationship with both parents if the time spent with the father was to be in Newcastle. She identified some advantages, however concluded that such an arrangement would likely result in further distancing between the father and the child:
90.…If however, as an alternative to [the child] travelling to Sydney to see his father, [the father] were to travel to Newcastle to see [ the child] then one of the risks to [the child] (namely that he would become more reluctant to see his father because of the length travel time) would be removed. This option would also have the advantage of allowing [the father] to be involved in some of [the child’s] potential extra-curricular activities; for example, attending upon his sporting or other commitments. Similarly, this option would allow [the father] an opportunity to meet some of [the child’s] friends.
91.However, the risks are that [the father] does not have any permanent accommodation in Newcastle and so he would need to either rent weekend accommodation (such as at a hotel) or the visits would need to be limited to one day of the weekend. In either case, the opportunity for [the child] and his father to spend relaxed time at home would not be available. The impact of this is likely to be a further distancing between [the child] and his father with the potential risk that [the child] relegates his father to a distant figure who has very limited involvement in his life Given his expressed views, [the child] may become angry and disappointed about this, and this anger and disappointment may be directed at either, or both of his parents and have a deleterious impact on his relationships with them.
Based on the information available to her, Ms B addressed the father’s capacity to move from Sydney to Newcastle:
88.[The father] said he could probably find alternative employment in Newcastle, however this would not necessarily be in his current profession. It is therefore possible that the father could move to Newcastle, although he has indicated that this would entail significant occupational and financial impact on him.
Ms B assessed the impact of the mother being required to stay in Sydney and concluded the risk of negative impact seemed small:
86.…a possible outcome would be that [the mother] would become bitter or frustrated with the father and possibly seek to damage or negatively influence the relationship that [the child] enjoys with his father. Although it is difficult to determine what, if any, impact such a judicial determination would have on the mother’s capacity for good inter-parental communication, the risk of a negative impact seems small. [The mother] has been able to manage a calm, cooperative and clear communication style with [the father] and the post-separation parenting arrangement appears to have worked well.
As was earlier referred to, Ms B was cross-examined briefly by the father’s counsel Mr Livingstone, and at length by the mother’s counsel
Mr Anderson. It is apparent from the transcript of her evidence that Ms B affirmed the findings made in her report, emphasising the mother’s asserted benefits to relocation as “untested”, and the risks of negative impacts on both the child and the relationship between him and the father as “likely” and “concerning”.
The mother’s counsel questioned Ms B on the positive factors she had identified in her report. Ms B expressed a clear view that the benefits were “untested” and there were few “pull-factors” other than two friends the mother had identified, and less financial pressure.
When asked by the Federal Magistrate about the child’s needs, Ms B said this (Transcript, 6 February 2012, p 71):
HER HONOUR: You say in your report, [Ms B], that the mother would be more available – have more time available to her son if she – taking her – what the mother tells us…But is this a case of the child needs his mother – more time with his mother or needing his father to be more available to him? --- Needing his father to be more available.
Ms B did not accept that the mother’s ability to exercise her parenting duties would be improved by a move to Newcastle (Transcript,
6 February 2012, p 75). Indeed, the gravamen of her unchallenged evidence is that the mother is a devoted and capable parent who has admirably cared for the child.
Ms B expressed concern, independent of the relocation, about the effect on the psychological wellbeing of the child by the orders proposed by the mother, being the reduction to fortnightly weekend time with the father (Transcript, 6 February 2012, p 66):
--- I think that would be a loss for [the child]. And when I talk about loss here , I talk about – as a child, particularly with ADHD, as a boy of, well, now 11, that having weekly, regular, routine contact with his father is incredibly important to his sense of self-esteem, self-worth, consistently having someone in his life. And I think that it perhaps also provides some kind of break to the intensity – and I don’t mean that in a negative way – but the intensity of the mother/son dynamic that occurs through the week…And I would have concerns about a reduction in that in terms of [the child’s] psychological wellbeing.
Counsel discussed with Ms B the practicalities of the father spending time in Newcastle (as was ultimately ordered on a one weekend per month basis). The expert expressed concern about the unsettled sleeping arrangements (Transcript, 6 February 2012, p 69):
---I think there were some practical problems I could see with that; such as, the father doesn’t have accommodation in Newcastle. So I was unsure where [the child] would sleep on Friday and Saturday nights if he were with his father. That seemed to be unresolved.
MR ANDERSON: He’s certainly not – he has sufficient income, perhaps, to afford to stay in a motel overnight? --- That may be the case, but I would then question the appropriateness of a 10 year old spending every second weekend in a motel. It really, in my opinion, is not appropriate.
Ms B also expressed reservations about proposed fortnightly return travel from Newcastle to Sydney on a Friday and Sunday afternoon (which was ultimately ordered) (Transcript, 6 February 2012, pp 70-71):
---My – well, my concern is – are many about that. First of all, [the child] is unlikely to…children of this age, you know, electronic devices notwithstanding, don’t tend to travel terribly well on a Friday afternoon after a full week of school when [the child] is tired and cranky, and I think, you know, one small thing could – you know, one temper tantrum from [the child]…I don’t suspect that those trips will always be easy. It’s a substantial amount of time to do when you’re 10 or 11 on a Friday afternoon.
…
MR ANDERSON: And quite a lot of children spend time travelling up and down the F3 to see their parents? ---Sure. But I’m talking about this particular child with this particular set of psychological - - -
(emphasis added)
The expert emphasised the current benefit of respite for the mother in regular weekend time between the child and the father, suggesting that the fortnightly contact proposed by her would not give “sufficient” respite which she considered to be a “real issue” (Transcript, 6 February 2012, pp 68-69).
Ms B also responded to questions regarding the child’s responses to change and ability to adapt. She confirmed that the child would find even merely the change of school (which was apparently inevitable as the former matrimonial home was to be sold) to be challenging and difficult (Transcript,
6 February 2012, p 73):
MR ANDERSON: And in terms of the ability of [the child] to adapt…we don’t really know whether he would adapt to whatever new way of life he’s going to have to cope with, in the sense whether it’s in Newcastle or in Sydney? --- … For a child like [X], with the specific features of his behaviour and socialisation, it is even more of a risk factor; but yes, you’re right, it’s untested…in terms of the degree to which I, or anyone, can predict with any accuracy, all I can do is say the research points to relocation as being a risk factor, particularly for – [the child] is not an easygoing, sociable, affable kind of child who will just swing into the new way of life at a new school or a new place. He’s the kind of child who will find, you know, new people, new rules, new friendship dynamics quite challenging and difficult, and his first response is to externalise.
(emphasis added)
Discussion - Parenting
It became apparent at the hearing of the appeal that the father’s complaints relate to both the order allowing the move, and the orders providing for the time to be spent with the child.
It is the father’s position, which he submits was supported by the expert evidence and not properly addressed by the Federal Magistrate, that the move itself is not in the best interests of the child, regardless of what quantitative orders for time were made, because it could lead to positive harm to the child as well as a certain diminishment of his relationship with the father.
Senior counsel submitted that error was also demonstrated in the orders for time both in Sydney and in Newcastle, because of the impact to the child in fulfilling the orders, with his particular characteristics as acknowledged by the expert, the parties and the Federal Magistrate. In particular it was submitted that the orders are unrealistic, that the effect is artificial and the reasons not properly based.
Counsel for the mother maintained that the Federal Magistrate made findings which were available on the evidence, and made orders within the range of judicial discretion. Her counsel emphasised that the reasons for judgment were lengthy, and submitted that they were thoughtful and cogent. We accept that the reasons were lengthy and thoughtful.
Ground 1 – A finding that a reduction in quantity of time or change to the nature of time spent may not negatively affect the meaningful relationship with the father
The Federal Magistrate found at paragraph 306 that “the weight of the evidence was against such a finding”. It was submitted for the father that such assessment of the evidence was not available to her Honour, given the expert’s clear opinion in her report, confirmed in oral evidence, that reduced frequency in time was a “factor that is likely to qualitatively impact on their relationship, possibly rendering [the father] more peripheral to the sphere of influence in [the child’s life]” (Transcript, 6 February 2012, p 71).
As was also submitted, paragraph 306 had to be read in conjunction with the similar but different finding at paragraph 138, that there was in effect no evidence in the case that the move itself would be of positive harm to the child’s relationship with the father. The Federal Magistrate said this, despite having referred to the expert’s evidence suggesting this outcome in the immediately preceding sentence.
The Federal Magistrate came to the conclusions about the effect on the child despite Ms B speaking strongly against the success for the child with the father having time with him in Newcastle, to which we have already referred.
In addition, we would refer to the following interchange between counsel for the mother and Ms B (Transcript, 6 February 2012, pp 69-70):
MR ANDERSON: But what I’m suggesting is that for that respite time, that could occur by the father travelling to Newcastle. It is not as if it’s a four hour - - - ?---I don’t believe it would be sufficient. I don’t think it would give the same respite time as currently occurs. I think it wouldn’t. We would be talking about day-only respite. I agree, the father could possibly take [X] to his activities on Saturday or a Sunday, but he wouldn’t have – currently, as I understand it, he has this Friday afternoon ritual which they both spoke about with, you know, a great deal of, sort of, affection, and it was a real sense of the being a really important time – the Friday afternoon walk to the shops, get a DVD and sit down and watch it. I don’t think that kind of respite would occur with the Newcastle move. And I don’t think that, unless the father were living in Newcastle also, there would be the same kind of respite.
It was submitted for the father that the weight of the evidence, the expert’s evidence, was in fact clearly against the findings. We were referred to
Ms B’s evidence in her report and in oral examination where she expressed a clear opinion that the move itself would be of positive harm.
In her report Ms B said “the relationship between [the child] and his father will suffer” (emphasis added), by reason of reduced fortnightly contact and the lengthy car trip necessitated for such contact. The expert emphasised the child would, in time, most likely not be enthusiastic about taking the trips and as a result probably become more distant from his father.
In oral evidence when the mother’s counsel suggested to Ms B that many children engage in long road trips for parental contact, the expert was careful to emphasise the focus of “this particular child with this particular set of psychological--- ”, which we take to be reference to the child’s ADHD and the difficulties such travel would involve in his particular circumstances (Transcript, 6 February 2012, pp 70-71).
We accept that there being no effective challenge to Ms B’s expertise or the opinions she expressed based on that expertise, the conclusion at paragraph 306 was not open to the Federal Magistrate on the evidence before her. It is perhaps useful to record that even if her Honour had accepted the expert’s evidence on this point, it was nonetheless open to her to determine that there were other factors which warranted greater weight.
Ground 2 – Finding that a move to Newcastle of itself will not have negative impact on current or future quality of time
This finding was made by the Federal Magistrate at paragraph 307 of the reasons for judgment. It was submitted for the father that the arguments made under ground 1 were also relevant to ground 2. Namely, that in light of
Ms B’s evidence at paragraph 90 of her report, such a finding was not open on the evidence, or otherwise was not properly explained by her Honour.
The ground itself explains further that the finding was against the weight of the evidence when regard is had to the father’s absence of accommodation in Newcastle, and the effort involved in its implementation.
It was said that while her Honour’s impromptu suggestion of an extra weekend in Newcastle, which was ultimately ordered, was intended to be reassuring, it proceeded on various assumptions that were not open on the evidence. Namely, that the father could afford to comply with the orders, and that the orders could operate in conjunction with his full-time employment.
Whereas the Federal Magistrate appeared to place emphasis on the father’s complaints about practicability of time in Newcastle due to his work commitments, the father’s evidence was that he could and would make the effort, if it was the only extra time available – he would make every effort to maintain the meaningful relationship with the child (Transcript,
7 February 2012, p 89). However senior counsel’s primary point was that such measures were unnecessary, because the move itself was not in the best interests of the child, and remaining in Sydney (the father’s proposal) did not have the same risks to the child and to the meaningful relationship with his father.
In seeking to justify the connection between the child’s best interests and the father’s position, we were referred to Hayne J’s comments in U v U (2002) 211 CLR 238 at 285:
…the fundamental requirement of the Act that the Court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact.
The primary submission on behalf of the mother under grounds 1 and 2 was that the qualitative nature of the time spent with the father is more important and relevant than the quantitative measure. It was also submitted that the distance between the parents and the child alone is not determinative of the application. We do not understand the father to have cavilled with these general, well settled propositions.
The father’s complaint about the orders relates to the viability of the
Federal Magistrate’s findings about the quantity and quality of time, and the nature of the meaningful relationship, when the clear opinions of the expert and the particular circumstances of this case and this child are duly considered.
In oral submissions counsel for the mother contended it was for the parents (the father) to “take advantage of the orders” in order to maintain a meaningful relationship with the child. It was suggested that the father’s reluctance to travel to Newcastle to exercise contact rights under the orders was not relevant, and was not to be an influence on the consideration of practicability of contact (Heaton and Heaton [2012] FamCAFC 139 at 466-467, cited as following MRR v GRR (2010) 240 CLR 461).
In considering the issue of the father’s willingness and the practicability of orders for time in Newcastle, it important to have regard to the transcript on the final day of the trial during closing submissions. We were directed to this exchange between counsel for the father and her Honour by counsel for the mother (Transcript, 8 February 2012, p155-159):
MR LIVINGSTONE:…How’s it all going to work on the ground if the mother’s living in Newcastle with [the child], for example, would it be open for the father to knock off work on Thursday afternoon and stay up in Newcastle on Friday and remain there till Monday?
HER HONOUR: I don’t know. Would it?...Can’t he work from home?
MR LIVINGSTONE: Well, your Honour, he has never worked from home before. There’s no evidence that he has ever worked from home before…
HER HONOUR: But there was nothing put about him changing that to accommodate him having one Friday off a month and starting late on one Monday a month so he could go up to Newcastle…I was trying to generate options with the child. I think you objective to a few things. I said, “All I’m doing is just generating thoughts. Have you though about it,” and there was a blanket “no, I haven’t, and I don’t think I will because I won’t” – I just didn’t think that had even been a thought that had crossed your client’s mind. I’m not trying to be critical…
MR LIVINGSTONE: Yes. Well, just in terms of thoughts, I mean obviously he has got an obligation to think about anything that is really practical. But if one were to apply, just in practical terms – if one were to think of somebody in the community who’s so in control of the hours of work and their times of work and their locations of work…
…
HER HONOUR: That was my option that I generated, the three weekends a month I was looking at.
MR LIVINGSTONE: Well, in addition, the father’s is to have half the school holidays.
HER HONOUR: Yes, of course – of course.
MR LIVINGSTONE: Well, your Honour says “of course”. That is – in terms of leave, that’s about double the sort of leave that an ordinary worker would get in the community, 20 working days a year.
HER HONOUR: Look, I accept all of that, but this isn’t a man who is employed and has fixed hours because he has got an onerous employer…
…
MR LIVINGSTONE: - - - could I put it in this way: the father has no doubt considered, inferentially, all sorts of options. But, in my submission, it would be a very unusual person who’s engaged in full-time employment who would be capable of having half school holidays and being available to his son for half the school holidays and also being available for the sorts of periods of time on Fridays and into Monday mornings that your Honour is suggesting. In my submission, he’s not obliged, and it wasn’t even put to him that he was obliged or he should have been thinking about that sort of idea. It’s a simple case – it’s relatively straightforward in the sense that, sure, he’s employed – self-employed, but that doesn’t mean that he can work any less hard. That doesn’t mean that his clients’ expectations are any different. That doesn’t mean that he’s not called to work in various places, from time to time, during this date.
HER HONOUR: Well, it’s just silent. It just says, “I won’t”.
…
MR LIVINGSTONE: I mean, your Honour, I don’t think that anybody else in the courtroom at present would be capable of doing those sort of hours. It’s a most unusual scenario.
HER HONOUR: You say that, but you know, that cases I do, I have to say that’s just not correct.
MR LIVINGSTONE: Well, every single barrister – virtually every single barrister with the exception of those who take extended maternity leave – need to be at work on Monday at 10 o’clock.
HER HONOUR: I know a couple – I know at least one who doesn’t…What I’m asking is – I was looking in your client for some options that he might have generated in the eventuality that I make the order that [the mother] contends for. That’s what I was looking for: was there a way that he could see that he could maintain a very regular – like, almost weekly – time with his son if, indeed, that was the order I make, because that’s my obligation. I’ve got to look at that.
MR LIVINGSTONE: Yes.
HER HONOUR: So what’s what I’m exploring, and I’ve taken from what your client said with his material that there really isn’t any way, so, look, I will accept that. That’s what I was – I will accept that because there doesn’t seem to be a way that it can be done, because I have to look at - - -
Despite her Honour informing counsel in this passage that she accepted such an arrangement was not possible, for reasons unexplained in the judgment the orders were made. Those orders were important because they apparently were designed to ensure that the child continued to have a meaningful relationship with his father. If, as her Honour accepted during the trial, the arrangements were unrealistic or unsuitable for the child, the whole underpinning of the scheme of the orders devised by her fails. Of course, by order 9, her Honour made a self executing order for the discharge of the Newcastle weekend order. In so doing, she recognised the real possibility that the Newcastle weekend order may not be implemented. That self-executing order is further proof that on the evidence before her, her Honour’s reliance on the child and father having something more than merely alternate weekend and half school holiday periods of time together, was erroneous.
We are of the view that this ground is established.
Ground 3 – Finding that the child’s “real difficulty is coping with change for which he is not prepared not merely change simpliciter”
In oral submissions, senior counsel for the father submitted that her Honour’s finding at paragraph 303 was entirely against the weight of the expert’s evidence, and furthermore that there was no other evidence to support it.
It was said, correctly in our view, that the Federal Magistrate was obliged to identify why she disagreed with the expert’s evidence, or to identify some other evidence upon which she relied to make such a finding, and her Honour failed to do so. Senior counsel submitted it was not a proper outcome that the expert’s report ultimately be rendered two dimensional, without adequate reasons from the Federal Magistrate for doing so.
It was also submitted under this ground that the finding demonstrated that the risks to the child in moving, as identified in Ms B’s report, were not properly taken into account by her Honour.
In seeking to establish that the impact on the child was unnecessary, senior counsel sought to emphasise the higher likelihood of the risks to the child associated with the relocation, in contrast with the lower risks predicted if the child remained living in Sydney.
Senior counsel submitted that the Federal Magistrate wrongly interpreted the expert’s evidence about the child’s responses to change. It was suggested the Federal Magistrate wrongly assumed that the inevitability of some change in the child’s life (his school and home in Sydney) meant the child could be reasonably expected to adjust to change of any kind, including relocation to a different city environment further away from his father and a complete change to the frequency, timing and nature of the time spent with his father.
For the mother it was said that her proposal, including the housing stability and her increased availability to the child, was accepted by the Federal Magistrate, and mitigated the risks posed to the child by change. It was suggested this was in harmony with Ms B’s evidence that “in responding to [the child’s] unique needs, sensible adults will do that in a way that mitigates the risk for him” (Transcript, 6 February 2012, p 74).
The expert’s evidence in relation to how difficult change is for this child, is tidily encapsulated in the following exchange (Transcript, 6 February 2012, p 72):
MR ANDERSON: And if he knew it was coming every fortnight, that routine, he would be able to look forward to that?‑‑‑I’m sure he would look forward to things, whether they happened weekly, fortnightly or annually. But the consistency of it is what will predict it, and I think in his – at his age, the – what’s like to happen if it’s any less than, sort of, weekly contact, is that the nuances of [the child’s] world and daily life will be forgotten by [the child]. So, for example, if an event occurs on a Wednesday, say, of week A, where he did something really – well, let’s speak optimistically – he did something really good, he had a great achievement in class, by the, sort of, Friday of week B, well, [the child] might remember that, but he is unlikely to have forgotten the – unlikely to remember the intimacies of the things that happened to him because he is so lacking in that, sort of, frontal lobe and lacking in the memory and cognitive capacity that a child his age might normally have. So I think those things will be lost in his ability to communicate and remember those things and to tell his dad about them and to then to, you know, continue, similarly, when bad things happen. I’m sure his capacity to remember those won’t be as ‑ ‑ ‑
The expert also explained that because of the child’s difficulty with change, the best approach would be to keep as much as possible unchanged and make necessary changes incrementally. For example, when discussing even just a change to where the child attends school, she said (Transcript, 6 February 2012, p 73):
Keep all the other things stable whilst you change this one – one, sort of, factor.
In our view this ground is also made out.
The reasons of the Federal Magistrate amounted to an over simplification of the expert’s evidence in relation to the child’s ability to cope and his likely responses to change.
Ground 4 – Error in ignoring the Court appointed expert’s report
Further to grounds 1, 2 and 3 which deal with discrete findings of the
Federal Magistrate, it is complained that considered as a whole, the reasons do not reflect the appropriate weight to be given to the report of Ms B, adequately, or at all. The written submissions for the father explained:
15.…While it is acknowledged that a trial judge is not bound to accept family consultant’s [sic] opinion: Hall and Hall (1979) FLC 90-713 at 78, 819 and while a trial judge often has greater opportunities to weigh the evidence her Honour did not give [Ms B]’s recommendations the weight they warranted based on the following:
a.[The child’s] ADHD and other issues were such that much of his behaviour and reactions fell outside what might be expected from other children of his age;
b.[Ms B] was appointed by the Court to prepare a report and the Respondent led no evidence undermining her expertise or experience;
c. [Ms B] interviewed [the child], at length.
16.Had the learned Trial Magistrate paid due regard to the respective advantages and disadvantages enjoyed by the Court and [Ms B] respectively her Honour should have exercised greater restraint in reaching conclusions inconsistent with the expert’s recommendations.
(footnotes omitted)
In oral submissions senior counsel emphasised that the advantages of the move to Newcastle which were relied on by the Federal Magistrate were referred to by Ms B as “untested”, and in senior counsel’s words, were “nothing more than a series of submissions made on behalf of the mother”. In contrast, it was submitted, the risks of the move to Newcastle were real considerations about which the expert expressed clear evidence. It was said the
Federal Magistrate failed in her reasons for judgment to consider the expert’s clear opinion, that the move itself would likely make the father peripheral to the child’s life.
Senior counsel further submitted that Ms B recognised possible damage to the child’s relationship with both parents, associated with a move to Newcastle and the proposed orders for time. In contrast to the expert’s opinion, the Federal Magistrate’s finding was that neither relationship would suffer at all in the move.
Reference was also made to the lack of compelling reasons for the mother’s proposal other than lifestyle and, on the expert’s evidence, a lack of real improvement/benefit for the child, even if the mother’s contentment were to increase. It was submitted, as was the expert’s contention, that even if the untested possibility that the mother’s happiness would improve did eventuate, this would come at a cost to the child, of which there was significant and real risk.
In seeking to address the Federal Magistrate’s reliance on the fact that
Ms B did not in her report consider the option of an additional weekend in Newcastle (though when put to her in oral evidence she did express clear reservations about such time), senior counsel for the father agreed with the suggestion that the expert’s clear concerns, about change to the current weekend time regime, extended to the kind of weekend time proposed in Newcastle.
In contending this line of submissions, senior counsel emphasised that the relocation application had to be viewed and determined with the best interests of the child as the paramount consideration. It was submitted that this was the proper focus of the expert report, and that the Federal Magistrate erred in adopting an approach to the relocation application from the point of view of the mother’s contentment and justifications, at the expense of the child and his meaningful relationship with the father, in effect ignoring the report.
Counsel for the mother submitted that the Federal Magistrate was entitled to test the expert evidence against the facts and circumstances as found by her Honour. We were referred to decisions including Friscioni & Friscioni [2010] FamCAFC 108 and Hall and Hall (1979) FLC 90-713, which affirmed that the strength of expert assessment may be affected when additional evidence or adverse findings affect an underlying assumption in that report.
It was suggested that “the assumptions underlying the report were tested in relation to the evidence actually received by her Honour”. The evidence pointed to by counsel for the mother in this respect was that about the father’s ability to spend time with the child in Newcastle, which her Honour relied on to find that the relationship between the child and the father could continue to be a meaningful one despite the reduction in quantity of time.
We were referred to evidence wherein the father confirmed it was not impossible to spend every Friday night with the child in Sydney or Newcastle (Transcript, 8 February 2012, p 116), and that he could travel to Newcastle every second weekend staying in a hotel or serviced apartment (Transcript,
7 February 2012, p 70).
In our view, the evidence referred to by the Federal Magistrate and counsel for the mother in support of her Honour’s findings in relation to meaningful relationship and the father’s ability to fulfil the orders for time in Newcastle, does not correspond to or address the underlying assumptions of the expert’s evidence which concerned the risks to the child associated with the relocation itself. The existence of those risks was confirmed by the expert to persist regardless of what quantity of time spent would be ordered.
As we have already indicated the appeal should be allowed.
Ground 5 – Error in determining inferentially that the mother owning an unencumbered property with a backyard is in the child’s best interests
The father complains that her Honour erred in finding, inferentially rather than expressly, that it was in the child’s best interests for the mother to own and occupy an unencumbered, or almost unencumbered, property with a backyard.
It was submitted that her Honour’s identification of advantages to the mother and child living “mortgage-free” was problematic because, most significantly, it was predicated on a result in the property proceedings which was outside the range. It was also said that the expert’s evidence, whilst not dismissive of the advantages of a backyard, was clearly not that a backyard was essential.
As explained under ground 3, it was submitted for the mother that housing stability was a factor, according to the Federal Magistrate, which would mitigate the risk of adverse effects associated with change in the child’s life.
We accept that the mother might benefit from being less stressed about financial matters. We also accept the mother’s contention that it would be to this boisterous pre-teen boy’s (who has ADHD) advantage to live in a house with a backyard. The point being he would have the room and space which would make his life more comfortable. However, we see no need to make any other comment in relation to this ground which on its own would not be persuasive.
Ground 6 – Failure to analyse and give due weight to the provisions of
s 60CC (1), (2), (3), (4), (4A)
It was contended for the father that notwithstanding having correctly identified the provisions of s 60CC(1)-(4) as being applicable, the Federal Magistrate failed to afford the best interests of the child adequate weight in making orders allowing the mother’s relocation. It was suggested that the child’s best interests were treated as a secondary consideration to the mother’s wishes.
For the mother it was contended that her care was instrumental to the child’s wellbeing, and her happiness was therefore a relevant consideration in determining the application.
In our view, the difficulty is not so much a failure to deal in detail with requirements of s 60CC but rather to explain how the opinion of Ms B contained in paragraphs 90 and 91 of her report could be avoided. The terms of the order, so dependent on the father going to Newcastle, were almost an experiment. They were against the weight of evidence. Much of the submissions in relation to this ground repeat those in earlier grounds. As we have indicated that those grounds have been made out, it is unnecessary for us to say any more.
Property
Grounds 7 to 9 concern her Honour’s treatment of the property settlement matters. At the hearing of the appeal, senior counsel informed us that grounds 7 and 9 were abandoned. Accordingly, we will consider only ground 8:
8.That having regard to the matters contained within Section 75(2) of the Act, an assessment of 15% in favour of the wife was manifestly excessive.
We do not see that it is necessary in these circumstances to set out the reasons for the property orders at great length.
The parties agreed that during the relationship they contributed equally to their assets. The issues as stated by the Federal Magistrate were:
·the assessment of the father’s alleged superior initial contribution; and
·the considerations contained in s 75(2).
The Federal Magistrate decided to take a one pool approach including in it the relatively valuable superannuation interests of the father. The father’s superannuation was of some moment, its value having increased from $12,000 when the parties first began living together to $182,000 at separation and at trial $312,582. It was said that the father was soon to retire. Neither party asked for a splitting order.
The mother had superannuation at the time of cohabitation valued at $27,000, it is now valued at $98,465. The Federal Magistrate set out in paragraph 245 the list of the parties’ assets and liabilities, finding the net asset pool to be $1,173,848. The Federal Magistrate considered the parties’ contributions, including that the father had contributed 40 per cent of the deposit on the home and the mother 12 per cent and the balance jointly. Although not explained fully, the Federal Magistrate determined that the father’s contribution could be assessed at 55 per cent and the mother’s 45 per cent.
The circumstances since separation were significant. The father paid, and continues to pay, the whole of the mortgage in the sum of $3,389 per month. Correctly, the Federal Magistrate acknowledged the mother’s contribution in caring for the child. It was concluded that the mother’s contribution was equal, albeit different to that of the father.
In relation to s 75(2) factors, the Federal Magistrate set out at some length those she regarded as most significant, including as follows:
273.The husband has continued to earn a significant income which is 4.5 times greater than the wife’s. The husband has been able to contribute some $100,000 into his superannuation from his earnings since separation whilst paying the total of the mortgage, extra things for [X] such a sharing of costs with the wife of glasses, speech pathology and the like and rent to provide private accommodation such is the extent of his income-earning capacity.
274.The wife is 52, the husband is 57. The wife has potentially five years longer in the workforce and much was made of this by Mr Livingstone. At an income of 4.5 times less than the husband the wife would need to have 20 years in the workforce to make up from her own endeavour the capacity the husband has, thus this difference in age is of no import in my decision.
Her Honour concluded:
275.I find the wife’s needs having regard to section 75(2) of the Act to be 15% and I will so find given [X]’s particular difficulties and special needs which will continue to adversely affect his mother’s income earning capacity for many years to come.
276.This results in the wife receiving on a one pool approach 60% of the matrimonial assets and the husband 40%.
Correctly the Federal Magistrate then considered what such a percentage would mean, and whether the distribution was just and equitable:
284.The net equity in the home, less the sale cost and mortgage, is likely to be $632,000. If the wife receives $551,569 from the sale the husband would receive $80,431 from the sale together with his other assets and his superannuation.
…
287.The wife would have $551,569 in cash, $54,274 in other assets which includes the add back of $30,338 car, furniture etc and $98,465 in superannuation. This totals $704,308 to the wife.
288.The husband would have $80,431 in cash, $17,899 business, $20,390 car, $142 cash at the bank, $2000 in furniture, $312,582 in his superannuation and his add back of paid legal fees $36,252, giving him a total asset pool of $469,540 of which $312,582 is superannuation.
289.Looking back at the orders I propose to make I find they are just and equitable. They provide for a division of the cash, which will enable the wife to rehouse herself in an unencumbered home in an area she chooses in Sydney or in Newcastle if I permit her so to do, provide the husband with a substantial sum of cash of $80,000, maintain his significant superannuation entitlement, and maintain his significant income earning capacity.
Ground 8 – Having regard to s 75(2) factors the 15 per cent adjustment in favour of the wife was manifestly excessive
Counsel for the father correctly drew our attention to the dollar worth of the adjustment of 15 per cent, being $176,000. It was submitted that her Honour could not have properly considered that the father’s income, albeit significantly greater than the mother, will be applied to a significant amount of child support and high costs associated with seeing his son. In essence, it was submitted that had her Honour taken into account each party’s relevant s 75(2) factors, a proper adjustment would have been in the order of 7.5 per cent in favour of the mother.
In our view, a limitation in the evidence before her Honour was the impact on the father’s financial circumstances should he retire at 60. Of course, should the father retire at 60, his arguments against his ability to move to Newcastle would seem to disappear.
Although it should be noted that neither party asked for a split in the superannuation, it is difficult to see how the composition of the property was taken into account.
The outcome after a new trial, about which there is no certainty, of the mother’s application to move with the child to Newcastle, will have a significant impact on the parties’ financial circumstances.
The percentage attributed to the mother by reason of s 75(2) factors does appear to be at the higher end of the range. In fairness to both parties, the appeal in relation to the property orders should be allowed and re-heard at the same time as the parenting proceedings.
Conclusions
We have determined that the appeal should be allowed. The parenting orders of the Federal Magistrate should be set aside with the exception of orders 1 and 2. We understand that the only parenting issue to be remitted is whether the mother should be permitted to relocate with the child to Newcastle.
It would not be proper for us to attempt to re-exercise the discretion, nor was it a course urged by either counsel. The report of Ms B is now more than a year old. It also would be necessary for there to be an updating of the parties’ financial circumstances.
We have considered what orders should be made in relation to the child until the re-hearing. As there were no interim orders it is not possible to replace them as operative orders until the re-hearing. These parents have managed very well in the past to make arrangements for the child in his best interests and can be presumed to do so in the future until the re-hearing. Should there be any dispute, it would be necessary for the parties to file an application for interim orders in the Federal Magistrates Court.
We understand it is agreed that the former matrimonial home must be sold and that currently the parties are endeavouring to achieve the result as set out in orders 11 and 12(a) to (c). Consequently it is only necessary to set aside orders 12(d) and 13.
Costs
In oral submissions at the hearing of the appeal, senior counsel for the father indicated that no order for costs would be sought against the mother in the event that the appeal was successful.
This being the case, and the appeal having been allowed due to an error of law on the part of the Federal Magistrate, the appropriate orders are for no orders as to costs, and to grant each of the parties a costs certificate for the appeal and the rehearing pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, May & Ryan JJ) delivered on 22 March 2013.
Associate:
Date: 22 March 2013
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