Case Note: Grella & Jamieson  FamCAFC 21 (20 February 2017)
- This is a case involving an application for international relocation. The mother sought to relocate the nearly five year old child to Europe.
- The trial judge did not permit the relocation and the mother appealed those orders and contended that the consideration of s 60CC(2)(a) and the benefit to the child of having a meaningful relationship with both parents was wrongly elevated and contended that her Honour made errors of fact material to the ultimate determination.
- No error demonstrated and the appeal was dismissed. Further details are below.
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
CDJ v VAJ (1998) 197 CLR 172
De Winter and De Winter (1979) FLC 90-605
Goode and Goode (2006) FLC 93-286
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd (1983) 3 NSWLR 378
M & M (1988) 166 CLR 69
- The matter was first heard in the Family Court of Australia and Judgment was given on 22 April 2016.
- The appeal was heard on 8 November 2016 by the Full Court of the Family Court of Australia before Bryant CJ, May & Kent JJ.
- The decision of Bryant CJ, May & Kent JJ was delivered at Brisbane on 20 February 2017.
First instance decision
- The mother was represented at hearing (and the appeal). The father was self-represtned at the hearing (and the appeal). The father has no relevant legal experience or training. The trial judge recorded that the father “struggles with literacy” (reasons at ). There was also an independent childrens lawyer (ICL).
- The father was continuing to live and work in Sydney (as he was doing at the time of trial in March 2016) and had been travelling from Sydney to Queensland Region (where the mother and child live) on a fortnightly basis for the child to spend time with him as ordered.
- The mother had proposed at trial, as an alternative in the event the Court determined that her primary proposal of relocating the child to Europe was not to be permitted, that she relocate the child to live with her in Melbourne.
- Given that the father’s further evidence confirmed that the father had continued to live and work in Sydney, as he was doing at the time of trial, at the hearing of the appeal, the Full Court was invited the parties to consider a variation of the subject orders by consent to permit the mother to relocate the child to Melbourne pending, and without prejudice to any party concerning, the determination of this appeal.
- On 8 November 2016, orders were made with the consent of all parties to such variations of the subject orders as to permit the mother to relocate the child to live with her in Melbourne, pending the determination of this appeal.
– Contention that section 60CC(2)(a) considerations were wrongly elevated
- A central contention of the mother on appeal, which permeates many of the grounds of appeal is, in summary, that the trial judge elevated and gave overwhelming emphasis to s 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both of the child’s parents.
- It was contended that in so focusing upon the child’s relationship with the father that other s 60CC considerations were not afforded appropriate weight and/or resulted in the trial judge failing to make factual findings relevant to such considerations; and as such constituted errors of law on the part of the trial judge.
- The appellate court was to consider whether the trial judge placed such undue emphasis upon the question of the benefit to the child of having a meaningful relationship with the father (s 60CC(2)(a)) that it is apparent an error has been made in exercising the discretion in the manner described in House v The King  HCA 40; (1936) 55 CLR 499 and Gronow v Gronow  HCA 63; (1979) 144 CLR 513?
– Contention that other s 60CC provisions were not properly considered and the trial judge erred in failing to make findings about factual issues relevant to one or more of these considerations.
- The mother included the father’s history of reckless behaviour, anti-social behaviour and his criminal record; the father’s drug use and non-compliance with Court ordered drug testing; and the father’s historical lack of involvement in the child’s life.
- The appellate court was to consider whether the trial judge failed to decide issues of fact her Honour was obliged to decide such that this failure demonstrates appellable error constituted by the trial judge failing to have regard to, or give sufficient weight to, material considerations.
- And also, did the trial judge make erroneous findings of fact and, if so, is it shown that such errors were material to the ultimate determination? (De Winter and De Winter (1979) FLC 90-605).
What were the issues joined at trial – what was, and what was not, in issue relevant to the determination of the parenting orders?
- It was not at issue whether the child should remain in the primary care of the mother, nor was it at issue that the child should have a future relationship with the father.
- The issue joined before her Honour was whether such orders for time and communication as might be availed for this young child if she moved to Europe were in her best interests or, rather, whether her best interests required time and communication of the duration, nature and extent as could be availed if she lived in Australia.
- Her Honour’s task was to balance the competing relevant considerations and decide the orders which that balance favoured (see, analogously, M & M (1988) 166 CLR 69).
- In that respect it is well settled by authority that any parent enjoys the right of freedom of mobility to live wherever the parent chooses to live. However, that right must defer to the expressed paramount consideration, the welfare of the child, if that were to be adversely affected by a movement of a parent (see, for example, U v U  HCA 36; (2002) 211 CLR 238 at  per Gummow and Callinan JJ with whom Gleeson CJ, McHugh and Hayne JJ agreed).
- A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition. In U v U (supra) Gummow and Callinan JJ (with whom Gleeson CJ, McHugh and Hayne JJ agreed) said (at ):
...The appellant’s submission is that the trial judge gave too much weight to the child’s short term welfare, and commensurately too little to her long term welfare, and that the Full Court erred in failing so to hold. That is, as the respondent submits, no more than a complaint about the weight which the trial judge attached to admittedly relevant considerations. Just how far ahead it is possible for a trial judge to look, and how reliable long term predictions about domestic, marital and social arrangements in modern times can be, are matters upon which minds will inevitably differ. The exercise, of looking to, and making orders for the future, is peculiarly a discretionary one…
- In CDJ v VAJ (1998) 197 CLR 172 the plurality of the High Court (McHugh, Gummow and Callinan JJ) observed of applications for parenting orders and of their determination as follows (p. 218 – 219):
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions…
- The parties commenced cohabitation in either late 2008 or late 2009 and separated finally in early December 2011. The child was born in 2011 and was only about five months of age at the time of the parties’ separation. The child has always lived primarily with her mother.
- The mother was born in Europe in 1984 and was 32 years of age at trial. In about 1998, when she was about 14 years of age, the mother came to Australia with her mother to live and has lived here ever since. The mother completed her secondary education here; completed an undergraduate degree via a local university and as at trial was undertaking a Master’s Degree. Aside from ad hoc promotional work the mother was reliant upon government benefits to support herself and the child.
- The father was born in New South Wales in 1980 and was 36 years of age as at trial. He had an intermittent history of employment as a tradesman but for large parts of his adult life had not been in paid employment and had been in receipt of government benefits.
- The father has a longstanding history of illicit drug use including the use of methamphetamine. It was not in issue that the mother had ceased her use of illicit drugs upon her pregnancy with the child.
- The father admitted to a history of anti-social behaviours some of which have seen him convicted of criminal offences historically.
- On 12 January 2012, soon after the parties’ final separation, an event occurred in the mother’s home whereby the father “smashed her computer and punched a hole in the wall at some time during the night”. The father’s admission of that conduct together with a similar episode of property damage in about June 2010 led to the trial judge’s conclusion that the presumption regarding parental responsibility in s 61DA of the Act did not apply by reason of that conduct constituting family violence (s 61DA(2)).
- Following separation the time the child spent with the father was intermittent and generally for short (two hour) periods supervised at a contact centre. Unsupervised time commenced in November 2015.
- In early 2014 the father commenced a relationship with Ms F and they commenced cohabitating in August 2014. Ms F’s son from a previous relationship lives with them. In October 2015 this relationship produced a daughter, a half-sibling of the subject child. As at trial the father and his family unit were living temporarily in Sydney staying with Ms F’s family, the father having commenced work in Sydney in February 2016. .
- For all of the criticisms of the father as a person and as a parent advanced, the mother’s own proposals and evidence she herself recognised at trial that it was in the child’s best interests to have and to continue to have a relationship with the father.
- The issue which fell for consideration by the trial judge was the relevance of past behaviours in predicting the future and, consequently, the impact upon relevant s 60CC considerations.
- The father advanced at trial that the child would be be deprived of the opportunity to develop a meaningful relationship with him and her younger half-sibling, because the tyranny of distance associated with a move to [Europe] will prevent regular and frequent face-to-face interaction between them. Whilst he accepts he has a history of illicit drug use and certain antisocial behaviours – which have seen him convicted of criminal offences in the past – he suggests he has matured, settled down and no longer consumes illicit substances.
- His case is that he has developed the parenting skills and personal capacities necessary to ensure [the child] will not be at an unacceptable risk of harm if her time with him continues to be unsupervised. He also advances, in essence, that while the relationship [the child] has with him has developed to the stage where she would suffer loss if deprived of the ongoing opportunity to continue to spend actual physical time with him on a regular and frequent basis, it is not at the stage where it could withstand absences of the duration which will necessarily occur if she moves to live in [Europe].
- The two authors of the Family Reports expressed significant reservations about whether there is a benefit to the child of a meaningful relationship with her father.
- In the course of addressing i the second of the two primary considerations in s 60CC(2)(b) – the need to protect the child from harm – the trial judge recorded that the mother appeared to report that she did not believe the father would intentionally place [the child] at risk but that he had done so by driving with her at excessive speeds and because he was unable to control his abusive behaviour.
- Whatever the father’s past behaviours, there was no evidence to suggest that he has exposed the child to drugs or criminal behaviour of any kind or to family violence during their relatively recent and relatively short periods of unsupervised time together.
- In the course of addressing the father’s parenting capacity; attitude to the child and the responsibilities of parenthood (at  to ) the trial judge recorded that Ms [G] interviewed the father and considered that the father does not have a history of being able to manage himself adequately: having lived a largely itinerant lifestyle in which he has not been employed or been adequately self-responsible. Ms [G] also considered that the norm by which the father measured his behaviour was lower in terms of what is acceptable than what others might have.
- The later report writer considered it was “encouraging” that the father was, on his report, living a drug and crime free lifestyle, however, there remained “substantial concerns” about his ability to maintain this lifestyle, given the longstanding and persistent nature of these problems.
- The Appellate court considered that the father’s historical conduct loomed large in the trial judge’s reasoning concerning various of the relevant s 60CC considerations as set out in her reasons. And in fact the trial judge was not persuaded that the father had necessarily overcome, permanently, the relevant concerning aspects of his historical conduct.
- The Appeal Court viewed the reasons, read as a whole, made it clear that the trial judge was appropriately mindful, of the child’s very young age and the ability for older children to withstand the impact of significant absences.
- Further, and viewed by the court of critical importance, was the likely effect upon the child’s relationship with the father and her half-sibling if the international relocation occurred at this stage of her development occurred.
- The net effect of trial findings were that the child would probably have no future relationship with either her half-sibling or her father.
- Furthermore, in Goode and Goode (2006) FLC 93-286 the Full Court, in discussing the then recent amendments to Part VII of the Act observed (at 80,901) “…there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children…”
- 10In dealing with the applicable principles at  and  the trial judge said at  (with footnoted references to s 60CA and s 65AA of the Act and the Full Court decision in Banks & Banks  FamCAFC 36; (2015) FLC 93-637):
In deciding whether to make a parenting order, I must regard [the child’s] best interests as the paramount consideration. Whilst the matters to be considered in determining those parenting orders which are in [the child’s] best interests are set out in s 60CC of the Act, it is unnecessary for each prescribed consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion.
- The Appellate Court was satisfied that it was within the trial judge’s legitimate exercise of discretion to deal with this consideration in the manner in which she did.
Asserted Failure of the Trial Judge to Make Findings on Factual Issues
- Appellable error is not necessarily demonstrated by pointing to a factual issue at trial about which the trial judge did not make a specific finding. Authorities, albeit mainly directed to addressing the topic of adequacy of reasons, emphasise this point. In A v J  FamCA 56; (1995) FLC 92-619 the Full Court reviewed numerous authorities on the topic of the adequacy of reasons and observed (at 82, 232 – 82, 233):
- It is important to guard against too zealous an application of the requirement to give reasons, particularly in circumstances where it is argued that inadequacy in the reasons lies in the failure to make findings of fact leading to a finding of a material or an ultimate fact: see Soulemezis per Mahoney JA. In that case McHugh JA said at 280:-
If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter  NSWStRp 35; (1945) 46 SR (NSW) 1 at 5; 63 WN 34 at 36. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated.
- The Appellate Court said, that such a duty does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceeding. It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing.
- In Whisprun Pty Ltd v Dixon  HCA 48; (2003) 77 ALJR 1598, Gleeson CJ, McHugh and Gummow JJ said at 1610: …The fact that his Honour did not refer to these matters in his judgment is not decisive. A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
- The Appeal Court found that there was no substance in the complaint. When the reasons for judgment are read as a whole, they considered that it was clear that the trial judge gave significant emphasis to the child’s very young age and her consequent capacity to develop and maintain relationships, not only with her father, but also with her half-sister if she were to be relocated internationally “at this stage” or “at this time”. The trial judge was not eliminating the prospect of the child-father and child-sibling relationships sustaining the impact of the child’s international relocation at some later stage. Nor was the trial judge eliminating the prospect of the matter being reconsidered should the father, for any reason, again fail to maintain regular time with and involvement with the child over an extended period of time. The trial judge accepted that there were benefits to the child of relocation to Europe (reasons at ) but weighed those as against the competing considerations. The trial judge did not accept the father’s case that he has certainly put behind him his history of drug use and anti-social behaviours. In the end it can be seen that the trial judge considered, taking into account the expert evidence concerning the relevant relationships and the potential benefits to the child of them, that it was in the best interests of the child that she have at least the opportunity to develop and have a meaningful relationship with the father and with her half-sister. On the trial judge’s findings which were open to her Honour on the evidence, that was unlikely to occur if the child were now to be relocated internationally.
- It is not the test of appellable error to observe that another judge or judges on the same evidence might well have reached opposite conclusions to those of the trial judge in terms of the parenting orders to be made in the best interests of this child.
- No merit in any of the grounds of appeal was appealed and therefore was dismissed.
This article does not represent the views of the firm. It a case note based on a decision made by the Full Court of the Family Court in relation to family law property case appeal involving international relocation to Europe.
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