WITSON & KROPP
[2020] FamCAFC 218
•3 September 2020
FAMILY COURT OF AUSTRALIA
| WITSON & KROPP | [2020] FamCAFC 218 |
| FAMILY LAW – APPEAL – RELOCATION – Where the appellant unilaterally moved to B Town with the child of the relationship – Where the primary judge put in place appropriate injunctions to address the appellant’s allegations of violence, and the mutual allegations of drug and alcohol use to ensure the safety of the appellant and the child – Where the primary judge was faced with the unilateral relocation of the child which had the consequence of at the very least impeding and at worse preventing development of a relationship between the child and the respondent – Where it is not only in B Town that the appellant has extended family and the inference to be drawn here is that the appellant could have the benefit of extended family and support of the child’s connection to her Aboriginal culture and traditions in Adelaide – Where this was an interim hearing and given the issues confronting the primary judge it is readily apparent that the primary judge provided adequate reasons and had regard to the relevant sections of the Family Law Act 1975 (Cth) – Where no error of law or mistake of fact is alleged or demonstrated and thus there is no basis for finding that the primary judge’s decision was plainly wrong – Where there is no merit in any of the grounds of appeal – Appeal dismissed. FAMILY LAW – COSTS – Where the respondent sought an order for costs – Where such an order should not be made – No order for costs. |
| Family Law Act 1975 (Cth) ss 60CC, 60CC(2A), 61DA, 65DAA |
| Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 |
| APPELLANT: | Ms Witson |
| RESPONDENT: | Mr Kropp |
| FILE NUMBER: | ADC | 279 | of | 2020 |
| APPEAL NUMBER: | SOA | 36 | of | 2020 |
| DATE DELIVERED: | 3 September 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 6 August 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 April 2020 |
| LOWER COURT MNC: | [2020] FCCA 1054 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Dickson |
| SOLICITOR FOR THE APPELLANT: | Women’s Legal Service |
| COUNSEL FOR THE RESPONDENT: | Mr Childs |
| SOLICITOR FOR THE RESPONDENT: | Dixon Gallasch Pty Ltd |
Orders
The appeal be dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Witson & Kropp has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 36 of 2020
File Number: ADC 279 of 2020
| Ms Witson |
Appellant
And
| Mr Kropp |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 30 April 2020, Ms Witson (“the mother”) appeals against certain of the interim parenting orders made by a Judge of the Federal Circuit Court of Australia on 3 April 2020. The appeal is opposed by Mr Kropp (“the father”).
In summary, the orders appealed against provide for the mother to return the place of residence of Z born in 2019 (“the child”) to the Adelaide metropolitan area no later than 17 July 2020, for the father to provide financial assistance to the mother by way of meeting any residential tenancy bond that may be required, for the child to spend three hours each Saturday with the father commencing on the first Saturday after the return, and for handovers to take place at a police station.
In the Notice of Appeal the mother also sought to appeal against orders 12-16, but at the hearing her counsel advised that that aspect of the appeal was not being pursued.
The Appeal
There were eight grounds of appeal raised in the Notice of Appeal, but one ground, namely Ground 4, was abandoned.
At the hearing of the appeal, Grounds 1 and 2 were argued together, as were Grounds 5, 6, and 7. It is convenient for this Court to adopt that approach.
Grounds 1 and 2
Ground 1 – That the learned Judge erred in failing to give sufficient weight to the mother’s allegations of family violence.
Ground 2 – That the learned Judge erred in placing insufficient weight on protecting the mother and child from physical and psychological harm or from being subjected to or exposed to abuse or family violence including racial vilification.
The mother’s allegations of family violence by the father are to be found in paragraphs 4-13 of her affidavit filed on 12 March 2020. There she deposes to instances of verbal and physical abuse, she also says that on two occasions the child was exposed to this. Further, the mother alleges in paragraph 15 of her affidavit, that on one occasion she was physically assaulted by the paternal grandfather with whom they shared a house.
These allegations are denied by the father.
Her Honour was plainly aware of the claims made by the mother in this regard, recording this in [3]:
The mother says that the father was physically, emotionally and verbally abusive to her. He would routinely denigrate her and call her racial slurs, as would the paternal grandfather, who lived with them. The mother also alleges that the father was physically violent towards her on two occasions. She says the first incident occurred in mid-2018 when he grabbed her by (sic) throat and strangled her. The second incident occurred in May 2019, when she says the father punched her in the face. The mother says that she feels safer living in the Northern Territory, as she has the security of distance from the father’s abuse and has the support of her family.
Her Honour then dealt with this in [4] as follows:
The father denies that he has ever physically assaulted the mother or that he was emotionally or verbally abusive to her. It is always concerning when a party makes allegations of family violence. The mother’s allegations are serious and while I cannot determine these matters at an interim hearing, I place significant weight on this issue in my determinations today. The mother and [the child’s] safety is the Court’s priority, but it must be remembered that there are a range of protections that can be put in place. The Court can pronounce injunctive orders to ensure a party’s safety, even if both parents are living in the same town.
In that regard her Honour put in place appropriate injunctions, including to address the mutual allegations of drug and alcohol use (see [6] and [8] and paragraphs 8-11 of the order).
Thus, it is plain that her Honour took into account, and addressed the allegations of family violence, in order to ensure the mother’s and the child’s safety.
Section 60CC(2) of the Family Law Act 1975 (Cth) (“the Act”) sets out the two primary considerations that a judge must take into account in determining the best interests of the child, namely the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect of family violence.
Further, s 60CC(2A) of the Act provides that the court is to give greater weight to the second primary consideration.
Here, despite this being an interim hearing where her Honour was unable to determine the truth or otherwise of the allegations or the denials, her Honour did that by putting in place appropriate protections for the mother and the child. However, her Honour still had to take into account the benefit of a meaningful relationship. Thus, her Honour said this in [5]:
Another important factor before the Court today relates to the emotional reality for [the child]. Given her young age, she will have very little capacity to maintain and develop a relationship with both of her parents while her parents are living in different States.
In this regard, what her Honour was faced with was a unilateral relocation undertaken by the mother of a very young child, which would significantly impact upon the child’s relationship with the father.
Her Honour then continued in [6] as follows:
The mother has legitimate reasons to want to stay in [B Town], and she may ultimately satisfy the Court that this is the best outcome for [the child], as well. But for the Court to permit [the child] to remain in [B Town] on an interim basis is a difficult outcome to justify, taking into account the relevant authorities. To repeat, the Court can and will pronounce injunctive orders that will provide protection for the mother and for [the child], if the child is ordered to return to Adelaide.
The mother’s counsel submits that the injunctive orders were “an insufficient remedy” to the risk posed, in that:
…
7.6.1The father’s time with the child is to be unsupervised and does not safeguard the child from his behaviour;
7.6.2The injunctive orders do not extend to the paternal grandfather;
7.6.3The injunctive orders do not overcome the need for the parties to come into contact with one another at handovers;
7.6.4The injunctive orders do no more than restrain the father from committing what would otherwise be a criminal offence.
(Appellant’s summary of argument filed 9 July 2020)
As to 7.6.1, her Honour was alive to the possible risk with the time being unsupervised, but her Honour dealt with this as follows:
12.…I have considered whether the father’s time should be supervised. I am not satisfied that the evidence justifies such an order, given [the child] will be spending very limited time in the father’s care in the first instance. I will order weekly visits to start with. I am not going to put in place orders for more frequent time at this point.
13.I note the mother’s concern about the suitability of the father’s home environment, but again, I am ordering very short periods of time-spending, which goes some way to addressing this issue. Given the allegations of family violence, I consider handovers at a police station will be the most appropriate way forward.
I can find no error by her Honour here.
As to 7.6.2, as conceded by counsel at the appeal hearing, there could not be an injunction directed to the paternal grandfather.
As to 7.6.3, that concern is overcome by the handovers being undertaken at a police station.
As to 7.6.4, unfortunately I do not understand the point, and I will say no more.
As is plain, this is of course a weight challenge, and the hurdles in the path of such a challenge being successful are well-known. For example, in the High Court decision of Gronow v Gronow (1979) 144 CLR 513, Stephen J said this at 519-520:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight…
Here, no error of law or mistake of fact is alleged or demonstrated, and there is no basis for finding that her Honour’s decision is plainly wrong. Thus, the challenge cannot succeed.
There is no merit in Grounds 1 and 2.
Ground 3 – That the learned Judge erred in failing to give proper consideration to the father’s ability to relocate from Adelaide to B Town.
The difficulty with pursuing this ground is that it was not a matter raised by the mother’s counsel during the hearing. Indeed, the mother’s counsel submitted that the case involved “an interstate co-parenting arrangement” (Transcript 3 April 2020, p.9 line 24).
It is not open to the mother to raise this issue on appeal (Metwally v University of Wollongong (1985) 60 ALR 68) and thus this ground must fail.
Grounds 5, 6 and 7
Ground 5 – That the learned (sic) erred in failing to give proper weight to the mother as undisputed primary care giver wishing to remain in B Town on country with her family and family supports.
Ground 6 – That the learned Judge erred in prioritising the father having a meaningful relationship with the child over the mother having stable accommodation and family supports in B Town.
Ground 7 – That the learned Judge erred in not placing sufficient weight on the child’s Indigenous C people culture and exposure to same if living with family in B Town.
Her Honour was well aware that the mother was an aboriginal woman of the C people who professed to want to remain in B Town with the child, where she had the support of some of her extended family, and where they could support the child’s connection to her Aboriginal culture and traditions (at [2]).
However, they were not the only considerations that her Honour had to take into account. Importantly, as referred to above, her Honour was faced with the unilateral relocation of the child which had the consequence of at the very least impeding, and at worse, preventing the development of a relationship between the child and her father.
Further, these are again weight challenges, and the mother was required to establish that the primary judge was plainly wrong, her decision being no proper exercise of her discretion, and that has not been established here.
The evidence before the court also casts doubt on the mother’s professed wish to remain in B Town, and reveals that it is not only in B Town where the mother has extended family.
After the mother moved to B Town, she then spent approximately four weeks in Darwin in January and February 2020 (mother’s affidavit filed 12 March 2020, paragraph 34).
Further, and significantly, in February 2020, the mother was in discussion with the father about returning to Adelaide, and as to the financial arrangements for that. Indeed, she even nominated a date, namely 3 March 2020, when she would return and stay with a friend, …. She was also looking at specific houses to rent (affidavit of the father filed 26 March 2020, paragraph 27 and annexures F3 and F4; affidavit of the father filed 25 February 2020, paragraph 7).
I note that in submissions to her Honour, the mother’s counsel conceded that a return to Adelaide “had crossed the mother’s mind at a certain point in the last few months” (Transcript 3 April 2020, p.13 lines 6-7).
That is of course inconsistent with the mother being fearful of being in Adelaide because of the family violence allegedly perpetrated by the father.
In that regard, it is also noteworthy that in mid-2019, during a period when the parties separated, the mother and child went to stay with the maternal grandmother in B Town, but then subsequently returned to live with the father.
As to the support of the mother’s extended family, as the mother deposes in paragraph 37 of her affidavit filed on 26 March 2020, she has “extended family in B Town, Darwin and Adelaide”, and she has spent her entire life as an adult in Adelaide.
The mother’s extended family in Adelaide include her maternal great-grandmother, her maternal grandfather, and her “nanna”, and she has variously lived with them. She also has an uncle with whom she lived briefly after disappearing with the child in November 2019, and before moving to B Town.
Thus, the inference to be drawn is that the mother could have the benefit of extended family and the support of the child’s connection to her Aboriginal culture and traditions, in Adelaide. Similarly, the inference that is open is that she would have accommodation available upon her return to Adelaide.
Notably, there was no affidavit filed by the maternal grandmother, or any other member of the mother’s extended family in B Town, despite the father’s case questioning the stability of the mother’s living arrangements in B Town.
It also must not be forgotten that this was an interim hearing, and it was open to her Honour to give greater weight in her discretion to the benefit of the child having a meaningful relationship with the father, than to the mother’s professed wish to reside in B Town, something which was on shaky ground in any event.
Ground 8 – That the learned Judge erred in failing to provide proper reasons for her decision and further erred in not following the pathway as set out in the decision of Goode v Goode (2006) FamCA 1346
This is a generalised complaint and only requires a generalised response.
This was an interim hearing where her Honour delivered her reasons ex tempore, and given the issues that confronted her Honour, it is readily apparent that she has provided adequate reasons, and that, without reciting the relevant sections of the Act, which a primary judge is not required to do (Cox & Pedrana (2013) FLC 93-537, [29]-[31]), her Honour has had regard to those sections.
There has been no departure by her Honour from what she needed to consider of the “legislative pathway” referred to in Goode and Goode (2006) FLC 93-286 at [81]-[82] (e.g. see Banks & Banks (2015) FLC 93-637 at [47]-[50]).
Her Honour identified the competing proposals, the issues in dispute, and the agreed or uncontested relevant facts, considered the matters in s 60CC of the Act that are relevant, and made findings to the extent that she was able to, and made an order that was in the best interests of the child as a result of that consideration.
The issue of the allocation of parental responsibility was not before her Honour, and thus she did not need to consider s 61DA or s 65DAA of the Act (see Sterry & Sterry [2017] FamCAFC 226 at [32], [42] and [43]).
Conclusion
Having found no merit in any of the grounds of appeal, the appeal must be dismissed.
However, it is necessary for the matter to be referred back to the primary judge, given that her Honour’s order as to when the mother must relocate the child’s residence back to Adelaide has now passed. Thus, her Honour will need to consider whether a new timeframe is warranted, and if so, what that will be. Hopefully, her Honour can address that issue on an expedited basis, but of course I will leave that to her Honour.
In the meantime, the mother must understand that the orders of 3 April 2020 stand, and she needs to comply with them until and unless her Honour determines that there should be some change, for example, to the timeframe to relocate the child to Adelaide.
Costs
In the event that the appeal was dismissed, the father sought an order for costs. However, I am not persuaded that such an order should be made, and each party will therefore bear their own costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 3 September 2020.
Associate:
Date: 3 September 2020
0
3
7