Wordsworth & Wordsworth
[2021] FedCFamC1A 28
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Wordsworth & Wordsworth [2021] FedCFamC1A 28
Appeal from: Wordsworth & Wordsworth [2021] FCCA 368 Appeal number(s): EAA 23 of 2021 File number(s): NCC 2637 of 2019 Judgment of: AUSTIN, MCEVOY, ALTOBELLI JJ Date of judgment: 7 October 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from final parenting orders – Best interests of the children – Reasonable practicability of equal time orders – Consideration of s 65DAA(5) of the Family Law Act 1975 (Cth) – Weight challenges – No error of fact or law established – Adequate reasons – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 61DA, 65DAA, 65DAC Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bhatt & Acharya (Costs) [2017] FamCAFC 71
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Browne v Dunn (1893) 6 R 67
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
RCB v The Honourable Justice Forrest (2012) 247 CLR 304; [2012] HCA 47
U v U (2002) 211 CLR 238; [2002] HCA 36;
Number of paragraphs: 53 Date of hearing: 7 September 2021 Place: Heard in Sydney (via video-link), delivered in Newcastle Counsel for the Appellant: Mr Levick Solicitor for the Appellant: Winder Lawyers Counsel for the Respondent: Mr Bithrey Solicitor for the Respondent: Delaney Roberts ORDERS
EAA 23 of 2021
NCC 2637 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS WORDSWORTH
Appellant
AND: MR WORDSWORTH
Respondent
ORDER MADE BY:
AUSTIN, MCEVOY, ALTOBELLI JJ
DATE OF ORDER:
7 OCTOBER 2021
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The Application in an Appeal filed on 31 August 2021 is dismissed.
3.The appellant pay the respondent’s costs of and incidental to the appeal in the fixed sum of $10,000, which sum is due and payable on the resolution of the parties’ claims for relief under Part VII of the Family Law Act 1975 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wordsworth & Wordsworth has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, MCEVOY & ALTOBELLI JJ:
INTRODUCTION
The appellant mother appeals from parenting orders made on 17 February 2021, the effect of which was to decline the mother’s application for the two children, aged 12 and eight, to relocate with her from Region Q in New South Wales to Melbourne. The parents agreed to an order for equal shared parental responsibility for the children. As a result of the orders, the children live in a week-about shared care arrangement which is suspended over the long summer vacation so that the children have half of each summer vacation with each parent. The respondent father resists the appeal.
The focus of the appeal was on two main issues, Grounds 2 and 10 having been abandoned. The first was a contention that the primary judge failed properly to address the question of reasonable practicability for the purposes of s 65DAA(5) of the Family Law Act 1975 (Cth) (“the Act”) and thus erred in law in finding that it was reasonably practicable for the children to spend equal time with the parents in Region Q. The mother’s alternative position, if the challenge based on error of law was unsuccessful, was that the factual findings of the primary judge could not sustain a conclusion of reasonable practicability. For the reasons which follow neither of these contentions are tenable and the appeal should be dismissed.
BACKGROUND
At the time of the trial, the mother was 50 years old and the father was 46 years old. They met in New South Wales and formed a relationship in 2005. At that time, the father was based in Sydney and the mother in Melbourne. The father had family in Region Q, and the mother had family in Melbourne. They commenced cohabitation in Melbourne in 2008 and the children were born there. The mother had her own business and the father was in paid employment. When their oldest daughter was born the parties agreed that the father would be a stay-at-home parent and the mother the breadwinner. The father returned to full-time work in 2014, the year after the birth of the youngest child. The finding of the primary judge that the parental relationship experienced financial and relational difficulties from after the birth of their first child was not in contention. The parties married in 2016. They subsequently sought to rationalise their family life which appears to have been burdened with long working hours, as well as relationship stress. Initially the children were moved to a less expensive school, and in 2018 the parties commenced discussing a relocation as a family from Melbourne to Region Q where they hoped that the cost of living was better and there was the prospect of a more balanced life.
The parties moved to Region Q in late 2018. Very quickly the mother became unhappy, the relationship deteriorated further, and they separated. The mother indicated that she wanted to return to Melbourne with the children. The father ultimately did not consent to the mother’s proposal. The mother commenced proceedings in the then Federal Circuit Court of Australia.
The hearing before the primary judge took place over three days in February 2021. His Honour delivered oral reasons for judgment on 17 February 2021. The parties were both represented by experienced counsel and lawyers and had the benefit of a Family Report.
The mother’s Amended Notice of Appeal was filed on 27 July 2021, and the appeal was heard on 7 September 2021.
There was an Application in an Appeal for leave to adduce further evidence which was not pressed by the mother at the hearing. That application will thus be dismissed.
THE APPEAL
Grounds 1, 3, 4 and 7
The mother contended through these grounds that, in a variety of different ways, the primary judge fell into error by making orders for the children to live with the parties in an equal time arrangement in Region Q, thereby precluding her from returning to live with the children in Melbourne as she wanted.
The appealable error was said essentially to fall into two categories. Principally, it was contended the primary judge erred at law by failing to properly apply the imperative provisions of s 65DAA(1)(b) and s 65DAA(5) of the Act when determining whether the “equal time” arrangement was reasonably practicable. Alternatively, if the primary judge did correctly apply legal principle in accordance with those provisions, it was contended that his Honour erred by concluding that the equal time arrangement was reasonably practicable, as that finding was not open on the evidence.
The mother opened the appeal in that way and refrained from making any supplementary submissions in support of any of the remaining grounds of appeal which could not be brought within the rubric of the two errors identified at the outset of the hearing.
Accordingly, it is convenient to begin with the asserted error of principle. At trial, the parties agreed that they should have equal shared parental responsibility for the children (at [217]), thereby inducing the primary judge to make an order to that effect. His Honour was then obliged by the terms of s 65DAA(1) of the Act to consider whether an order for the children to spend equal time with each of the parties was, first, in the best interests of the children, and secondly, reasonably practicable to implement. As the High Court made plain in MRR v GR (2010) 240 CLR 461 at [13]–[14], those conditions are discrete and conjunctive.
It cannot be said the primary judge decided the dispute in ignorance of s 65DAA of the Act, because his Honour correctly cited (at [45]–[54] and [177]) the application of that statutory provision in the manner dictated by the High Court’s analysis in MRR v GR. Moreover, his Honour was also conscious (at [55]–[60]) of the undesirability of unnecessarily constricting parents’ choices about where they wish to live, concordant with binding authority (U v U (2002) 211 CLR 238; AMS v AIF (1999) 199 CLR 160).
Despite the tenor of the grounds of appeal, there was no explicit dispute in the appeal that it was well open to the primary judge to find, pursuant to s 65DAA(1)(a) of the Act, that an equal time arrangement was in the children’s best interests. The reasons the primary judge found it so were: the children would derive benefit from maintaining their meaningful relationships with the father (at [178]); the likely deterioration of their relationships with the father if they moved back to Melbourne with the mother (at [181]–[183], [221] and [226]); the disturbance the children would experience by not seeing the father regularly if they moved back to Melbourne (at [200], [204], [213] and [220]); the move back to Melbourne would cause another disruption for the children (at [200] and [202]); and interstate travel would cause complications for the children due to their young ages and the restrictions on border crossings due to the COVID-19 pandemic (at [205], [206] and [215]).
Those reasons were quite sufficient explication for why the equal time arrangement was found to be in the children’s best interests, which necessitates rejection of the grounds of appeal about the inadequacy of reasons (Grounds 1(e) and 4). It also warrants rejection of the ground complaining that the equal time order was not necessary in order for the children to maintain their meaningful relationships with the father (Ground 3(a)). The finding need only have been open to the primary judge, as it indeed was. The finding was not foreclosed merely because other alternatives might arguably have been available.
The real controversy in the appeal was whether it was also open for the primary judge to find, pursuant to s 65DAA(1)(b) of the Act, that an equal time arrangement was reasonably practicable to implement in view of the mother’s unhappiness living in Region Q and her stated desire to return and live in Melbourne.
In determining that question, the primary judge was obliged to have regard to the list of inclusive factors set out under s 65DAA(5) of the Act. Unless not already self-evident, the primary judge only needed to have regard to those of the factors which were relevant to the decision and, for that purpose, relevance was dictated by the nature of the evidence adduced and the arguments advanced by the parties.
In Grounds 1(a) and 3(c) of the appeal, the mother contended that the primary judge erred by failing to consider whether it was reasonably practicable for the father to move to Melbourne so as to enable the children to spend equal time with the parties in that geographical area. However that proposition should be rejected because only three viable options were posited to the primary judge by the parties. Those were:
(a)both parties continuing to live in Region Q and the children living with them for equal time (as the father proposed);
(b)the mother and children moving back to live in Melbourne, but the father staying in Region Q and the children only spending time with him as frequently and for as long as their geographic separation would reasonably allow (as the mother primarily proposed); or
(c)both parties continuing to live in Region Q, with the children still living primarily with the mother and spending substantial and significant time with the father (which the mother proposed as her fall-back position).
Two things were certain: the mother would not move back to Melbourne without the children and the father would not follow the mother and children to Melbourne if they were able to go. In the appeal, the mother was unprepared to admit the validity of the second proposition, but it is plain enough from the father’s evidence to this effect in cross-examination:
HIS HONOUR: …What I need to know is: will you move to Melbourne, if I decide the kids should move? Because I have to weigh up orders to make, you see?
[THE FATHER]: No.
HIS HONOUR: Okay?
[THE FATHER]: Not at this stage, your Honour. Like, down the track I might miss them terribly and decide I have to go.
HIS HONOUR: Yes?
[THE FATHER]: But I don’t intend to at the moment.
HIS HONOUR: Okay. So if I decide the children should go, it’s really a question of the time that can be most significant that can be arranged with you. I shouldn’t worry about making orders for you to be in Melbourne because it’s not on the cards?
[THE FATHER]: No.
(Transcript 16 February 2021, p.142 lines 19–29)
That being so, when obliged by s 65DAA(1) of the Act to consider whether an equal time arrangement was both in the children’s best interests and reasonably practicable to implement, the necessary context was that an equal time regime could only be implemented in Region Q. The father would not countenance living in Melbourne and an equal time regime was impossible if one party lived in Region Q and the other in Melbourne.
The mother essentially advanced three reasons before the primary judge as to why it would not be “reasonably practicable” for the children to live with the parties in an equal time arrangement in Region Q. First, it was said to be contrary to the opinion evidence of the Family Consultant. Secondly, she said she was emotionally vulnerable if forced to continue living in Region Q against her will. Thirdly, she maintained that she was unable to continue managing her Melbourne-based business remotely from Region Q. The primary judge addressed each of those matters.
In relation to the opinion evidence of the Family Consultant, the primary judge observed how she held concerns about all of the available outcomes which the Court was invited to consider, as there was no one ideal outcome and so she “sat on the fence” about her recommendations (at [35]–[38] and [152]). His Honour was inclined to reject the Family Consultant’s reservations about the imposition of an equal time arrangement because the children’s continuing regular and substantial involvement with the father would be a “buffer” or “safeguard” against any deterioration in the children’s relationships with him due to the mother’s “negativity and attitudes” (at [226]). While the mother took exception to the correctness of the primary judge’s finding about her negative attitude and the extent to which it might impinge upon the children’s relationships with the father, if those findings were open on the evidence (as they were), then the manner in which the primary judge depreciated the weight attaching to the Family Consultant’s opinion evidence about the appropriateness of an equal time regime was entirely open. The mother’s first argument was therefore squarely addressed.
The mother’s contention that she was emotionally vulnerable and could not cope if compelled to continue living in Region Q, with consequent detriment to the children, was also patently addressed. His Honour posed himself this question in the reasons for judgment:
203.But the question is whether the mother will cope longer term, and what negative impact that might have on her parenting, and in turn, on the children.
In answer, the primary judge found:
209.I have concerns about the mother’s capacity if she remains living in [Region Q], and whether she can properly support the children. She paints the most dire picture imaginable of living “a life of misery and poverty” which is rather dramatic, but I suspect that a part of that so-called misery and poverty arises from the fact that she didn’t really give [Region Q] a go in the first place, having decided she was going to return to Melbourne.
…
211.The mother’s capacity to parent the children may be adversely affected to a greater degree if she stays in [Region Q] than if she returns to Melbourne. That is definitely a greater risk, but I see risks wherever the mother goes given her rather negative – stridently negative – attitude to the father, and her inability, or unwillingness, to show any empathy for his situation.
…
219.I am concerned that the children may not be happy in the short term in [Region Q], particularly if the mother is upset about the outcome, as she will be if I make an order for equal time in [Region Q]. The mother’s parenting may be adversely affected, and it may have an adverse impact on the children.
…
246.[The mother] has not sought, at any time, to obtain any mental health diagnosis. She is not on anti-depressants; she stopped taking anti-depressant medication quite some time ago. There is no evidence that she is under any mental health disability at all.
(Emphasis in original)
The mother’s bare assertion of an inability to cope in Region Q was devoid of corroboration, as her counsel was forced to concede in these terms during final submissions:
HIS HONOUR: But what evidence have I had of treatment that she has had to endeavour to adjust to at least function at her best. I know that she was on Lexapro, or whatever it was, and she stopped at a certain point. Have I got evidence of her having any counselling or taking any positive step to say, hey I’m doing my best to cope here and I’m just not coping. Have I got evidence of that?
[MOTHER’S COUNSEL]: I don’t think your Honour has.
(Transcript 17 February 2021, p.45 lines 9–15)
Although trite, it is worthwhile observing that the mother’s unhappiness and her asserted inability to cope are two quite different things. The primary judge was aware of the mother’s unhappiness about continuing to live in Region Q, but it did not dissuade his Honour from making orders which would require her to do so, having regard to numerous other countervailing considerations. The mother’s firm desire to live with the children in Melbourne, together with her consequential disappointment if she could not, were not considerations which were dispositive of the question whether an equal time regime in Region Q would be reasonably practicable to implement. Such evidence would influence, but could not foreclose, the finding that such a regime would be reasonably practicable.
While the mother plainly wanted to return with the children to live in Melbourne, she was conscious that she may not be able to do so. The mother chose to conduct her case emphasising the pre-eminence of her wish to retain the children’s primary residence over her wish to return to Melbourne. She tendered in evidence (as Exhibit 6) a minute of orders, albeit only proposed in the alternative, which provided for the children to live with her and spend substantial time with the father if they were to remain living in Region Q. The mother could not have made that alternative proposal unless she was willing to abide by it, thereby effectively admitting her ability to continue living with the children in Region Q, even though it was not her preference. The mother’s fall-back proposal neutralised the father’s fall-back position, which was for the children to live primarily with him in Region Q if the mother prioritised her desire to move back to Melbourne and was willing to do so without the children.
The mother’s contention that the primary judge wrongly elevated what was no more than her “fall-back” position to something more substantial (Ground 3(b)) should be rejected. His Honour demonstrated clear awareness of her primary application for orders which would enable her to live with the children in Melbourne (at [10], [12] and [175]). In relation to her alternate proposal, the primary judge said:
176.Neither party wants a 9/5 arrangement where the mother remains living in [Region Q], but the mother has that as her “fallback” position and it's something that I also have to consider. Obviously, the mother’s fallback position is not in any way a concession by her.
(Emphasis added)
No fair reading of the reasons for judgment enables an inference that, contrary to the express terms of that paragraph, his Honour either disingenuously or inadvertently treated the mother’s “fall-back” proposal as being anything more than how it was described.
The orders made by the primary judge were not “coercive”, as the mother alleged (Ground 3), because, through her alternative proposal, she indicated her willingness to submit to residence with the children in Region Q if she was unable to persuade the primary judge that her residence with the children in Melbourne was preferential. Even though the appealed orders effectively require the mother to live within reasonable proximity to the father and thereby preclude her relocation to Melbourne, they only entail the continuity of her residence in an area where she initially chose to live. She is not forced to move elsewhere against her will.
Lastly, the mother relied upon her work commitments in Melbourne and her inability to properly service her business remotely as a compelling reason why it was not reasonably practicable for her and the children to continue living in Region Q.
In that regard, the primary judge found, without any challenge in the appeal, that the parties’ move from Melbourne to live in Region Q in 2018 was a “considered decision” (at [89]), in the context of the mother intending to pass the role of primary breadwinner to the father (at [63]–[64] and [82]). She initially anticipated shutting down the Melbourne office of her business (at [91]), but did not do so. Instead, she continued to service the business remotely from Region Q for more than two years up until the trial (at [139]–[140]).
His Honour discussed at length the mother’s evidence and arguments on the point in the reasons for judgment, essentially concluding she had successfully conducted the business from Region Q for a prolonged period, even though it had occasioned some inconvenience, and she would probably be able to continue doing so, albeit with difficulty (at [232], [240], [245] and [247]). His Honour considered pragmatically that, if the children were to live with the parties for equal time in weekly cycles, the mother would be free to travel to Melbourne to service her business in the weeks when the children were living with the father (at [228]–[248]). Those findings were surely open on the evidence, despite a ground of appeal alleging the contrary (Ground 7).
The ultimate finding of the primary judge that orders requiring the children to live with the parties for equal time were reasonably practicable, was also open. That the mother disagrees with the finding does not mean it was vitiated by legal or factual error, as was asserted. The mother’s evidence about her inability to continue maintaining her e remotely and coping with living in Region Q did not attract, and need not have attracted, such weight as to impel a finding that it was not reasonably practicable for her to support the children living with the parties for equal time.
In the appeal, but not so obviously in the trial, the mother asserted there were other aspects of the evidence which militated against the finding that an equal time arrangement would be reasonably practicable if s 65DAA(5) of the Act was properly applied, but those submissions and the corresponding grounds (Grounds 1(b), 1(c) and 1(d)) should be rejected.
The mother identified these pieces of evidence as being relevant to the operation of s 65DAA(5) of the Act:
(a)the parties relocated from Melbourne to Region Q in late 2018, but they separated not long afterwards in late 2019;
(b)not long after the parties’ relocation to Region Q, the mother formed a view that she would prefer to return to live in Melbourne;
(c)the mother initially intended she would not continue to run her Melbourne-based business remotely from Region Q;
(d)the family had always lived in Melbourne before the relocation to Region Q;
(e)the mother had family and friendship support in Melbourne, whereas she feels lonely and isolated in Region Q;
(f)the elder child had expressed a strong wish to return to Melbourne; and
(g)there were “substantial communication issues” between the parties.
Significantly, every one of those issues was addressed by the primary judge in the reasons for judgment, though some only briefly because they were uncontroversial. More pertinently, some are not factors which readily or easily influence the finding about “reasonable practicability” under s 65DAA(5) of the Act.
Specifically, the parties already live in close proximity to one another in Region Q and the mother was found to have the capacity to continue doing so, albeit that she would prefer not to (s 65DAA(5)(a)). Both parties also have the capacity to implement an equal time regime for the children (s 65DAA(5)(b)) because, after separation, they voluntarily implemented a regime under which the children spent five nights each fortnight with the father (at [11]). There was no evidence reasonably to suggest that, if the mother stayed in Region Q, she could not manage to support seven nights per fortnight in lieu of five.
The parties’ “current and future capacity to communicate with each other and resolve difficulties” was indeed an issue for consideration under s 65DAA(5)(c), but it must be remembered the parties jointly sought an order for their equal shared parental responsibility for the children so they must anticipate their willingness and ability to confer and compromise, as the law requires of them (s 65DAC). It was their mutual application for equal shared parental responsibility which triggered the primary judge’s inquiry under s 65DAA(1) of the Act in the first place, so the mother could hardly approbate her capacity to communicate with the father on the one hand for the purposes of s 61DA(1) and reprobate it on the other for the purposes of s 65DAA(5)(c).
No aspect of the evidence tended to suggest the children would suffer any adverse effect in living with the parties for equal time (s 65DAA(5)(d)). On the contrary, they had enjoyed spending substantial and significant time with the father, amounting to five nights each fortnight. It is true that the elder child had expressed her desire to return to Melbourne, but the primary judge discounted the weight attached to the elder child’s views because she was well aware of, and likely influenced by, the mother’s desire to move back to Melbourne (at [100], [103], [116] and [151]). The elder child’s emotional stability was rocked by being “caught in the middle of a very difficult situation” (at [156]–[157], [168], [171] and [186]–[188]). The primary judge was at liberty to be cautious about the weight attributed to the elder child’s views concerning a return to Melbourne because the mother has been the children’s primary carer and it is well recognised that children’s views are liable to be influenced by adult carers (Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [34]–[41]; RCB v The Honourable Justice Forrest (2012) 247 CLR 304 at [52]).
Once the primary judge affirmatively answered the two questions posed by s 65DAA(1)(a) and s 65DAA(1)(b), as was open, then orders for the children to live with the parties for equal time was an entirely orthodox outcome pursuant to s 65DAA(1)(c) of the Act.
Grounds 5, 6, 8 and 9
Ground 5 contends that the primary judge erred in law in rejecting the mother’s proposal that it was in the best interests of the children to live with her in Melbourne. No error of law is apparent in the rejection of this proposal. The primary judge, by reference to all the evidence and the parties’ proposals, rejected all proposals but the one his Honour eventually selected. Insofar as this ground asserts a failure to give reasons or a failure to take into account relevant evidence, this has already been discussed above in relation to Grounds 1(b), 1(e) and 4, so Ground 5 fails.
Ground 6 contends that the primary judge erred at [208] in finding “[The mother] does not separate the children’s needs from her own … in that the Primary Judge failed to give proper and adequate reasons and failed to take into account relevant evidence”. In effect this ground contends for a mistaken finding of fact, failure to give adequate reasons for the finding, and failure to take relevant evidence into account.
The relevant paragraphs of the primary judge’s reasons are [181]–[183] and [208]. They are as follows:
181.If the mother lives in Melbourne, the father can still have a meaningful relationship with the children. However, there is a real risk, a real likelihood that his relationship with the children will be diminished to a point that it will become less than meaningful, or otherwise difficult for the father and the children to maintain a relationship. I say that because the evidence of the mother's long-term resentment of the father is apparent through all of this material and her views about him remain unabated.
182.It is one thing to comply with orders, it is another to genuinely promote a relationship, and I have some significant reservations as to the mother's capacity to foster the father's relationship from that distance.
183.I would add here that I have also significant concerns about the mother fostering the father's relationship with the children from [Region Q]. She would be very unhappy with a 7/7 order. I have concerns about the mother's capacity to foster the father's relationship in both locations, frankly.
…
208.In terms of parental capacity and attitudes in subsections (3)(f) and (i), the father has a much greater capacity to reflect and show insight into the needs of others than the mother does. I am concerned that the mother does not really separate the children’s needs from her own very effectively.
The findings of the primary judge were clearly open on the evidence. For example, his Honour drew inferences about the mother’s attitude, as his Honour was entitled to do, from the evidence she gave in cross-examination (at [20]–[22]). That the mother disagrees with the finding does not mean it was vitiated by legal or factual error, as was asserted. It is not apparent that there was relevant evidence that was not taken into account. Moreover, it was only necessary for the primary judge to give reasons for the result embodied in the orders which are the subject of the appeal, not to give sub-sets of reasons for each and every finding. Ground 6 also fails.
Ground 8 contends that the primary judge erred in law in finding that there were concerns surrounding the mother’s capacity to reflect on “the viewpoint of others” in circumstances where she was not questioned as to those views. At [23] the primary judge states:
23.I was concerned about some of her evidence and, most importantly, about her attitudes and her capacity to reflect on the viewpoints of others to the extent that they differ from her own viewpoint.
Counsel for the mother submitted that there was a difference between a finding that the mother had a stridently negative attitude about the father (in respect of which there was no challenge) and a finding that the mother was unwilling to show empathy or understand a situation. Counsel submitted that this constitutes an error of law because the finding was not based on a matter put to the mother in cross-examination.
The totality of the evidence available to the primary judge, and the findings his Honour made about the mother, entitled his Honour to conclude as he did. It was not necessary for it to be put to the mother in cross examination that she had limited capacity to reflect upon the contrary views of others for the primary judge to make findings to that effect. The relevant findings in fact commence at [20]–[23], and continue at [128]. At [211] the primary judge found:
211.The mother’s capacity to parent the children may be adversely affected to a greater degree if she stays in [Region Q] than if she returns to Melbourne. That is definitely a greater risk, but I see risks wherever the mother goes given her rather negative – stridently negative – attitude to the father, and her inability, or unwillingness, to show any empathy for his situation.
The primary judge raised concerns about how the mother’s negativity could affect the children by way of a loyalty bind (at [212]–[213], [208] and [221]). Insofar as [23] refers to “the viewpoints of others” in the plural, nothing turns on this. It clearly includes the father. It must also be taken to include the children, particularly given the views expressed by the younger child who did not want her life to change (at [151] and [189]).
There is no error of law in the primary judge’s findings about the mother’s reflective capacity. His Honour was entitled to draw inferences from the evidence which were fairly available to him, whether or not the mother was cross-examined about this. The principle in Browne v Dunn (1893) 6 R 67 (if that is what the mother purports to invoke) does not require that her lack of empathy be put to her for acceptance or rebuttal. For these reasons Ground 8 also fails.
Ground 9 contends that the primary judge erred in law by failing to give proper and adequate reasons for not giving weight to the views expressed by the older child. We do not accept that his Honour so erred. The primary judge acknowledged the views of this child (at [100], [116], [151] and [186]). However, his Honour determined that her views should be given limited weight because they were likely influenced by the mother and the child felt caught within the parental conflict (at [103], [125], [151], [156] and [187]–[189]). Ground 9 also fails.
COSTS
In the event that the appeal was wholly unsuccessful, the father sought costs which, pursuant to the schedule filed, amounted to $12,210. The father conceded that an amount of $2,200 should be deducted to avoid double-counting.
The mother opposed the making of a costs order and submitted that there should be no order as to costs in the event that she was unsuccessful. Although it was submitted that her financial circumstances were parlous, it was conceded that the sum of $536,000 was held in trust pending property settlement proceedings.
Mere impecuniosity is not an obstacle to the making of a costs order (Bhatt & Acharya (Costs) [2017] FamCAFC 71). As the appeal was wholly unsuccessful, costs will be ordered in the sum of $10,000, with payment to be made out of her share of the eventual property settlement.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, McEvoy, and Altobelli. Associate:
Dated: 7 October 2021
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