Morrall & Olmos  FamCAFC 2 (12 January 2017)
FAMILY LAW – APPEAL – CHILDREN – RELOCATION – Father appeals against final parenting orders which permit the mother to relocate the child to Germany
FAMILY LAW – COSTS – Both appeals dismissed. Appellant wholly unsuccessful. Order for costs considered to impede the father’s ability to meet travel costs associated with the parenting orders. Mother’s application for costs dismissed.
CDJ v VAJ (1998) 197 CLR 172
8 December 2016
Date Judgment Delivered
12 January 2017
The Full Court of the Family Court: Bryant CJ, Ryan & Kent JJ
Lower Court Judgment
23 September 2016; 24 November 2016 following hearing in Canberra before Benjamin J
(1) Appeal No EA 183 of 2016 be dismissed (the father’s appeal against parenting orders permitting the child to relocate to Germany).
(2) Appeal No EA 192 of 2016 be dismissed (the father’s appeal against the refusal to stay the orders).
(3) The mother’s application for costs be dismissed.
REASONS FOR JUDGMENT
- The child had always lived with her mother and is primarily attached to her.
- The mother was found to be “a very good primary carer” but she had developed a depressive illness and believed she could establish a much more stable life for herself and the child in Germany.
- The primary judge was satisfied that, if the mother remained in Australia, her mental health issues and “very poor circumstances” would “have a significant detrimental impact upon her and upon her ability to care for the child” ().
- His Honour was also satisfied the mother had “enabled” the child’s relationship with the father and that the child loved her father and he loved her (). Nonetheless a change of residence to the father “would have a profound negative impact on the child” () and although permitting the child to move to Germany would have a “profound impact upon the relationship between the father and the child” (), which would “likely diminish”, their relationship would continue ().
- Pursuant to the orders under appeal, the child is to spend time with the father in Australia for four weeks annually and, if he can arrange to do so, he is to have an additional four weeks with her in Germany.
- The mother resisted both appeals.
- The mother is a German national and permanent resident of Australia (). She is 43 years of age and immigrated to Australia in 2002. The father is a Country E national and Australian citizen and is currently 39 years of age. He immigrated to Australia in 2009 ().
- The child was born in Australia in 2010 and is currently six years of age (). Since the time of her birth the mother has been the child’s primary carer. There was dispute in relation to the sequence relating to separation.
- The father filed an application for parenting orders and the mother sought orders in response that she be permitted to relocate to Germany with the child. The parties concluded parenting proceedings by way of consent orders involving the mother not pursuing her application to relocate.
- In February 2015 the mother was diagnosed with a major depressive disorder () and on 30 June 2015 the mother’s employment contract concluded ().
- The mother re-instituted parenting proceedings by way of her Initiating Application filed on 17 November 2015. By that application the mother sought that the consent orders of 31 July 2014 be set aside, that she have sole parental responsibility for the child and that she be permitted to relocate with the child to Germany.
- On 23 September 2016, the primary judge pronounced the orders under appeal. The orders are structured so that the consent orders of 31 July 2014 continue to operate until 7 January 2017. As at 8 January 2017, the mother is permitted to take the child to live in Germany. In the meantime, the child would continue to spend time with the father, in essence, five nights each fortnight. The father agreed that the mother take the child to Germany for four weeks in January 2017. This was on the basis that the child would return to Australia no later than 4 February 2017.
- However, the interplay of the orders made in the primary appeal and those made in the stay appeal means that unless an order is made for the mother to return the child to Australia, after they depart in January 2017, they will remain in Germany.
- The appeal is to be determined in accordance with the principles set out in House v The King  HCA 40; (1936) 55 CLR 499.
- His Honour was satisfied that the mother did not want to return to Germany without the child but it was accepted that in the event the mother’s mental health failed to the extent she was unable to look after herself she may be forced to do so, inferentially without the child ().
- The Family Consultant considered that if left with only two options – in Australia with her father or in Germany with her mother, that it was very difficult to answer which was better. In Germany there are a lot of unknowns. Her relationship with her mother may be the primary attachment, but the child (currently 6) is getting older, and other things are important to the child now, and that has been the basis for her being the person she is now, her primary relationship with her mother. A move of this magnitude would be massive for the child, because her other attachment figure, her father, would not be there, and she would not have a relationship with him, and over time she would be likely to lose her relationship with him.
- Counsel for the mother questioned the family consultant as to which of the parties would be best able to facilitate a relationship between the child and the other parent, if the child were separated from them.
- Counsel for the father questioned the mother about her proposal to leave irrespective of whether the child came with her or not, “Because you know what it means, don’t you? If you’re prepared to leave your daughter in full-time care of her father, you are saying to the court, “I trust him to look after her”?No.”
- The primary judge, at  of the trial reasons found that the new option reflected ‘…an unintentional miscommunication and that the mother at all times wished to continue in her role as primary carer of the child but was concerned about her ability to do so if her health deteriorated further.” The father in his appeal contended these findings were not open to his Honour. The appellate court found that the primary judge gave careful consideration to the matters raised by these grounds and decided that he would accept the mother’s evidence on the point and that His Honour was entitled to do so.
- Moreover, the focus or analysis upon the mother’s proposal or position, as expressed or as to be inferred in the manner invited by these grounds and the argument in support of them, would be to confine the inquiry impermissibly as was discussed by the High Court in U v U  HCA 36; (2002) 211 CLR 238 (“U v U”). As the High Court there emphasised, the Court’s consideration is not confined by the proposals of the parties and the fundamental requirement of the Act is to regard the best interests of the child as paramount. It was fundamental to that task at trial that informed by, but not necessarily determined by, the mother’s proposal or position (either as expressed or as to be inferred), the primary judge had to consider the likely consequences for the child of the orders ultimately made. Inevitably, examination of hypothetical future possibilities as to a party’s response to the orders made renders absolute precision of prediction unattainable. In that context, the primary judge had to consider the future consequences for the child identifiable on the evidence of orders not permitting the child’s relocation with the mother to Germany. As Gummow and Callinan JJ (Gleeson CJ, McHugh and Hayne JJ agreeing) observed in U v U at :
90. The exercise, of looking to, and making orders for the future, is peculiarly a discretionary one.
21. The primary judge was bound to look beyond any tactical elements within the approach by either party, in their stated position or proposals. Relevantly, in Payne v Payne  EWCA Civ 166;  2 WLR 1826 (a judgment referred to with apparent approval by various members of the High Court in U v U ) Thorpe LJ referred to the “tactical” approaches sometimes employed by parties in cases of this type, in an analogous context, as follows (at ):
In very many cases the mother’s application to relocate provokes a cross-application by the father for a variation of the residence order in his favour. Such cross-applications may be largely tactical to enable the strategist to cross-examine along the lines of: what will you do if your application is refused? If the mother responds by saying that she will remain with the child then the cross-examiner feels that he has demonstrated that the impact of refusal upon the mother would not be that significant. If on the other hand she says that she herself will go nevertheless then the cross-examiner feels that he has demonstrated that the mother is shallow or uncaring or self-centred. But experienced family judges are well used to tactics and will readily distinguish between the cross-application that has some pre-existing foundation and one that is purely tactical. … The judge in the end must evaluate comparatively each option for the child, one against another.
22. At first instance, His Honour found that relocation would result in the father daughter relationship being “…diminished by distance but, given the relationship as it now stands and which must reflect the mother not sabotaging it and in fact supporting it, … the relationship will not be lost or fractured if the mother moves to Germany” ().
23. In coming to this conclusion, the primary judge considered various longitudinal studies referenced by the family consultant which traced the effect on children deprived of a parent. Although his Honour accepted the evidence given by the family consultant as to the effect of these studies, his Honour found that because the child would not be “deprived of her father” the alarming outcomes identified would not eventuate. His Honour was entitled to distinguish between the circumstances examined by the studies and those which applied to the subject child. There can be no doubt that this conclusion was available and that the reasons at  and  provide adequate explanation for it.
24. In U v U, a case involving the potential international relocation of a child and the evidence of a counsellor in that context, Gummow and Callinan JJ (Gleeson CJ, McHugh and Hayne JJ agreeing) observed at  that a judge is not bound by a recommendation of a counsellor (family consultant) nor bound to accept or reject the whole, or any part of, the evidence of such a witness.
Evidence of the Psychologist
25. A psychologist was appointed as a single expert to assess the mother’s mental health. The expert’s opinion that the mother suffered from a “major depressive disorder single episode – current episode moderate – severe” was accepted. The challenge concerns the decision of the primary judge not to accept the expert’s opinion that with cognitive behaviour therapy, the mother’s mental health difficulties would resolve without her needing to return to Germany.
26. The expert’s opinion that cognitive behaviour therapy has a good outcome rate in resolving depressive episodes, as well as in relapse prevention was recorded by his Honour ().
27. It was found that it was open to the primary judge to reject the psychologist’s opinion that the mother’s depressive disorder could be resolved if she remained in Australia and received cognitive behaviour therapy. The point being that in her case, cognitive behaviour therapy had not resolved her depressive disorder.
28. The father, in ground 10 of his appeal challenged the finding at :
Given all of the evidence I am satisfied that the mother, who is the primary carer, is at a significant risk in regards to her parenting capacity as a consequence of the deterioration of her mental health if she is required to live in Australia.
29. The Appeal Court did not agree with the father.
30. In regards to section 60CC, the Appeal Court considered that the primary judge did focus on the interests of the child. His Honour was obliged to consider the nature of the child’s relationship with the mother, who was unarguably the child’s primary carer and how the mother’s depressive disorder might affect her capacity to continue to care for the child. Given the nature of the proceedings, it was thus necessary for the primary judge to give close attention to the evidence adduced in both parties’ cases about the mother’s wellbeing. He considered that if the mother remained in Australia, she would suffer “a significant detrimental impact upon her and upon her ability to care for the child” if the relocation application was dismissed (). Thus, unless the mother was able to relocate with the child, there was “…a great risk in terms of the welfare of the child in particular as to her relationship with the mother” (). In other words, that the good quality parenting and the nature of the relationship which the child had with her primary carer was, if they remained in Australia, at great risk.
31. The father sought to have the “great risk” finding impugned because, it is contended, there is no “objective” evidence to support it.
32. The appeal court considers that the father’s approach misstates the manner in which findings as to both future hypothetical possibilities and findings made by inference from other findings are legitimately made. Moreover, the argument ignores the nature of the discretion involved in parenting orders made for the future. We have earlier made reference to what was said by the High Court in U v U at . 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 (at 218 -219):
…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.
33. The mother conceded German would eventually become the child’s primary language, however, the child would continue to have English language classes and the mother would speak to her in that language. With annual trips to Australia of four weeks, and weekly Skype or FaceTime communication between the father and child as ordered, his Honour proceeded on the basis that the child and father would maintain a common language. There was thus no basis for concern (as expressed by the family consultant) that language differences would interfere with their relationship.
34. Section 60CC(3)(ca) concerns the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child. When the mother’s employment came to an end she was in strained financial circumstances.
35. The primary judge thus understood that the provision of child support by the father was of real significance to the welfare of the child and the mother’s capacity to meet the child’s necessary expenses. The father was in arrears of his child support obligations. Given that one of the important issues in the case was the mother’s ability to gain sufficiently well remunerated employment in order to meet her and the child’s financial needs, the appeal court found that there can be no doubt that the primary judge was entitled to attach some significance to the finding that the “mother can expect little financial help from the father in terms of her care for the child.” Of course, it is well settled that 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 (Gronow at 520). The Full Court said, “Lest there be any misunderstanding, we do not disagree with his Honour’s attribution of weight.”
- The Appeal Court found that the father had not established relevant error and the appeal will be dismissed.
- As judgment was pronounced and reasons published prior to 4 February 2017, it was agreed that the stay appeal became nugatory and could be dismissed.
- In the event the appeal was dismissed, the mother sought costs against the father. For the father, it was submitted that the parties have expended a significant amount of money in relation to their ongoing legal dispute, which they have, and that an order for costs would almost certainly impede the father’s ability to meet his share of the child’s costs of travel between Germany and Australia. The Court accepted this argument and notwithstanding that the father had been wholly unsuccessful in the appeal, the Court considered that an order for costs would not be appropriate.
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 an international relocation case.
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