Case Note: Hutcheson & Meli [2016] FamCAFC 258 – international relocation – family law

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Case Note: Hutcheson & Meli [2016] FamCAFC 258 – international relocation – family law

Hutcheson & Meli [2016] FamCAFC 258 (7 December 2016)

  1. This is an appeal to the Full Court of the Family Court of Australia involving international relocation.  The mother sought to relocate the residence of the child to the United Kingdom.
  2. The case involved issues of mental health
  3. The original decision was made in the Family Court of Australia by Dawe on 25 May 2016.  The Appeal was heard in Adelaide by Thackray, Strickland & Ainslie-Wallace JJ on 10 October 2016 and the decision was delivered on 7 December 2016 in Sydney.
  4. The appeal was dismissed and the appellant father ordered to pay the costs of the mother.

Legislation Cited

Family Law Act 1975 (Cth) s 117

Family Law Rules 2004 (Cth) rr 19.10, 22.45

Cases

Cassidy v Murray [1995] FamCA 91; (1995) FLC 92-633

CDJ v VAJ (1998) 197 CLR 172

Colgate-Palmolive Company v Cussons Pty Limited [1993] FCA 536; (1993) 46 FCR 225

Kohan and Kohan (1993) FLC 92-340

Limousin v Limousin (Costs) [2007] FamCA 1178; (2007) 38 Fam LR 478

Yunghanns v Yunghanns [2000] FamCA 681; (2000) FLC 93-029

Background

  1. The child was born in 2011.
  2. The father was born in Australia and lives in Adelaide. The mother was born in Asia. After leaving school the mother worked for many years in the United Kingdom before moving to Asia in order to be closer to her family.
  3. The parties met in Asia and the mother moved to live in Adelaide. The parties married in April 2011 and separated in 2013.
  4. There was no dispute that the mother had been the child’s primary carer since birth and it was not suggested that that should change.
  5. The principal issue before the trial judge was the mother’s application whether  she be permitted to move the child’s residence to the United Kingdom.
  6. The father opposed the relocation to the extent that he argued that any such move should be delayed until no earlier than 2020. The mother sought orders that would take effect almost immediately.
  7. The mother was unhappy living in Australia and there were concerns about the consequential effect of those circumstances on her psychological health.
  8. The trial judge accepted the evidence of the mother and her witnesses concerning the mother’s genuine anxiety and depression about remaining in Australia and the benefits to the child if the mother is permitted to live in the United Kingdom close to her family.
  9. The trial judge was satisfied that the evidence established that the mother would suffer emotionally and psychologically if not permitted to live in the United Kingdom near her family.
  10. The trial judge was satisfied that there is a benefit to the child of having a meaningful relationship with both the mother and the father. However, greater weight was given to the need to protect the child from any psychological harm that the child may suffer from being subjected to the mother’s psychological distress at being required to remain in Adelaide.
  11. The trial judge was satisfied that the expert evidence from the mother’s psychologist and the family consultant established the mother may suffer serious psychological detriment if she were required to remain living in Australia and that the evidence indicated that this distress may reduce the mother’s level of care of the child who will remain in the primary care of the mother.
  12. Her Honour thus concluded that it was in the best interests of the child for the mother to be permitted to relocate the child’s residence to the United Kingdom.

THE APPEAL

  1. The issue on appeal was that assertion that there was no evidentiary basis for the trial judge’s findings and thus her Honour’s conclusion that it was in the child’s best interest to relocate her residence to the United Kingdom was without foundation.
  2. The appeal turned on the evidentiary foundation of the trial judge’s findings concerning the mother’s emotional and psychological health.

The mother’s evidence

  1. There was no issue that the mother had been extremely unhappy living in Adelaide and reference was made to paragraphs of the mother’s affidavit.

 

The expert evidence

  1. Psychologist, Ms Q. Ms Q was asked her view as to the impact on the mother of a prolonged or permanent stay in Adelaide, and the impact on the mother of relocating to the United Kingdom. including
    1. The impact as to a prolonged or permanent stay in Adelaide
    2. The impact upon the mother as to a relocation to the United Kingdom

DISCUSSION

  1. Counsel for the father conceded, if there was evidence on which her Honour’s findings could be supported, the appeal falls away.
  2. Her Honour found that, based on the evidence of “the experts”, the mother “may suffer serious psychological detriment if she were required to remain living in Adelaide until 2020”. Her Honour further found that the associated distress “may reduce the mother’s high level of care of the child”.
  3. Counsel for the father argued that the experts did not find that the mother may suffer “serious psychological detriment”, and thus the evidence of the experts was insufficient to support the trial judge’s conclusion.
  4. The Appeal Court accepted  that neither of the expert witnesses said, in so many words, that the mother might suffer “serious psychological detriment” if she had to continue living in Adelaide. However, the appeal court did not consider that the trial judge, at [141], was purporting to recite the precise terms of the experts’ evidence, but rather was stating in lay terms the conclusion she thought could be drawn from their evidence.
  5. No error was found in her Honour arriving at that conclusion.
  6. The evaluation of evidence and the weight attributed to it is a matter exquisitely within the realm of the trial judge, and one that will not be disturbed lightly on appeal. In circumstances where both experts referred to the mother’s anxiety and concerns as to her wellbeing were she forced to remain in Adelaide in the long-term, as well as the mother’s own evidence as to her emotional wellbeing and the evidence of her family, the Appeal Court considered that it was abundantly clear that it was open to her Honour to reach the conclusion she did.
  7. Counsel for the father argued that regardless of the level of anxiety and depression the mother was experiencing, there was no evidence that the child had suffered as a result of the difficulties that the mother was then facing.
  8. Although there was no evidence at that time of the child suffering as a consequence of the emotional difficulties the mother was facing, it did not preclude the trial judge from considering that this may occur in the future. This is particularly so when there was no dispute that the mother would remain the primary carer for the child. The evidence before her Honour required the trial judge to make a judgment on whether in the future the mother’s emotional distress might impact on her level of care for the child.
  9. There was evidence before her Honour of the potential impact on the child resulting from her mother’s distress. Her Honour observed at [125] that Ms Z said that the child’s primary attachment was to the mother, and further Ms [Z] agreed that the mother’s unhappiness about being required to remain in Australia was a factor and that common sense indicated that long-term unhappiness would impact upon the care of the child. She again repeated that it was necessary to consider both the mother’s ability to deal with her distress emotionally if required to remain in Australia against the benefit to the child of having more regular contact with the father.
  10. The evidence supported the need to maintain a relationship between the child and the father, but also supported the mother’s case that the child would benefit from the mother having reduced anxiety and increased family support if allowed to live near her family in [the United Kingdom].
  11. Decisions in children’s matters will inevitably involve a measure of prediction about the future. As the plurality of the High Court in CDJ v VAJ (1998) 197 CLR 172 said of applications for parenting orders at [151], “[s]uch applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof”.
  12. The predictive nature of these orders must, perforce, be guided by the past (see CDJ v VAJ (supra)). It is also to be observed that her Honour had before her a factual history, much of which was uncontentious, which informed her conclusions about the child’s best interests. While it is true that there was no evidence that the mother’s emotional difficulties had affected her parenting of the child, the totality of the evidence provided an ample basis for her Honour’s finding.
  13. The appeal 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 issues of an appeal, international relocation and the psychological health of a parent and the impact on a child.

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