· 2022-04-05T14:48:30+0000 · 750 posts

Mother Opposes Orders for Relocation of Children with Father

Bergmann & Bergmann [2022] FedCFamC1A 38 (21 March 2022)

The mother appeals from orders providing for the children to live with the father in Australia, declaring Australia their habitual place of residence, and providing for them to spend time with the mother. The mother contends that the primary judge fell into error by finding, contrary to the available evidence, that the father could not travel to France.

Facts:

By an Amended Notice of Appeal filed on 25 October 2021, the mother appeals from some, but not all, orders made by a judge of the Family Court of Australia in respect of the parties’ two children. The parties were ordered to equally share parental responsibility for the children (Order 1), from which order there is no appeal because it was jointly sought by the parties and the Independent Children’s Lawyer (“the ICL”).

The appealed orders essentially made provision for the children to live with the father in Australia (Order 2), with Australia declared to be their habitual place of residence (Order 3), and for the children to spend time with the mother, with due allowance for her residence in City B, France (Orders 4–10). The father is to hold the children’s passports (Order 14).

It had been the mother’s case that the children should live with her in City B and that they should spend as much time with the father as was reasonably commensurate with his chosen place of residence in Sydney and his work commitments. The mother’s appeal was opposed by both the father and the ICL. The father commenced proceedings for parenting orders in December 2015, shortly after the marital separation. By May 2016, the mother raised with the father the prospect of the children moving to live with her in City DD, but he rejected the idea.

Interim orders were made in May 2016 with the parties’ consent, providing for them to have equal shared parental responsibility, for them to share the children’s care, and restraining them from removing the children from Australia other than for designated holidays. More interim orders were made in October 2016 with the parties’ consent, providing for the children to live with them for equal time, with each week broken into equal increments. By December 2017, the parties agreed to vary the existing interim orders such that the children would live with them for equal time in weekly rotations. By May 2019, the mother confirmed she would live permanently in City B with her new partner and she wanted the children to live with her there.

More interim orders were made in February 2021 to adjust arrangements for the children’s care, depending upon either the mother’s presence in or absence from Australia. The appealed orders were pronounced in August 2021, requiring the children to primarily live with the father in Australia.

Issues:

I. Whether or not there was a denial of procedural fairness.

II. Whether or not the wrong legal test was applied.

III. Whether or not there was a failure to consider mandatory considerations

Applicable law:

Family Law Act 1975 (Cth) Pt VII s 117 - provides that subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36 - provides that the powers specified in subsection (1) may be exercised by the Federal Circuit and Family Court of Australia (Division 1) even if the notice of appeal asks that part only of the decision be reversed or varied, and may be exercised in favour of all or any of the respondents or parties, including respondents or parties who have not appealed from or complained of the decision.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17 - relied upon in fixing the mother's cost in the sum of $20,000.

Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 -provides that each party needs to know what case the opposing party seeks to make, how that party seeks to make it, and be given the opportunity to meet it.

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 - provides that children’s views are malleable and liable to be influenced by adults within their immediate orbit, even if only inadvertently.

Denham & Newsham (2021) FLC 94-043; [2021] FamCAFC 141 - the Court held the impact of restrictions on travel and evidence in relation to international border restrictions due to COVID-19 are material facts to be taken into account in such judgments.

DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 - provides that reasons must identify the relevant principles of law, refer to relevant evidence, state the judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the judge, but the judge need only assign reasons for the rejection of a “substantial” argument raised by a party.

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 - provides that a finding is open and immune from appellate challenge if it is reasonably premised upon, or is permissibly inferred from, some foundational evidence.

House v The King (1936) 55 CLR 499; [1936] HCA 40 - provides that it is only judgments (as distinct from findings) which are susceptible to challenge on the basis that they are “unreasonable”, “plainly unjust” or “plainly wrong” for allegedly being contrary to the weight of the evidence.

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 (2021) 388 ALR 257; [2021] HCA 6 - provides that the final instance of any right or entitlement to procedural fairness enjoyed by the parties occurs when they make their final submissions and, thereafter, the trial having finished, the concept of procedural fairness has no further role to play in respect of the justiciable dispute.

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 - held that procedural fairness is a practical, not abstract, concept and is only designed to avoid injustice.

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88 - provides that contentions of the denial of procedural fairness tend to strike at the integrity of the trial process and should therefore be considered first.

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 - relied upon in holding that the mother was not denied procedural fairness by the primary judge’s reference to Denham & Newsham without prior recourse to her but, even if she was, the denial was merely technical and so immaterial to the outcome that no new trial is warranted.

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 - provides that the obligation borne by a judge is to give reasons for the judgment (as reflected in the operative orders); not to explain every factual finding or the acceptance or rejection of every argument advanced by the parties.

Analysis:

The mother contended the rules of procedural fairness demand that the primary judge should have re-listed the matter to foreshadow her Honour’s intended reliance upon the Full Court authority and then permit her to make more submissions about the aptness of the authority and “its applicability to the case at hand”. However, the requirement for procedural fairness ended when the parties completed their submissions in full knowledge of the salient issues. The mother knew the father intended to remain living in Sydney and wanted the children to live with him. The parties mutually accepted the children must predominantly live with one of them and would consequently see much less of the other parent.

The mother submitted that the primary judge applied a test as to which party’s proposal created the least uncertainty for the children, thereby wrongly elevating that consideration above all others prescribed by s 60CC of the Act. However, the primary judge exhaustively canvassed the evidence and made numerous other significant factual findings, including these: there was no risk of harm to the children in either household; the children would retain meaningful relationships with both parties regardless of the outcome; each party could count on family support to help care for the children, but the children had deeper emotional support from the paternal family in Australia; the mother had concrete reasons for wanting to live abroad; and the father’s work commitments are more restrictive than the mother’s and hamper the ease with which he can travel. The uncertainties attending the children’s future under either proposal was a mandatory consideration, so it was considered and it duly proved to be influential, but it was not dispositive in isolation from all other mandatory considerations.

The mother capably demonstrated that the father was capable of traveling to france. In addition, the father’s employer gave evidence that there was some prospect the father would be granted conditional permission to work remotely, which offered the chance for the father spending more time in France, provided he still attended to work duties. If the children lived with the mother in City B, the entirety of the father’s leave was available to exhaust on his travel to France to see the children. His evidence about the uncertain prospect of his capacity to spend one week each year in France assumed he would be exhausting his leave entitlements looking after the children whilst they visited him in Australia.

Conclusion:

The appeal is allowed. The proceedings are remitted to the Federal Circuit and Family Court of Australia (Division 1) for re-hearing by a judge other than the primary judge. Orders 2, 3, 4, 5, 6, 7, 8, 9, 10 and 14 made by the primary judge on 12 August 2021 are set aside as and from the date upon which the proceedings are next listed before a judge exercising original jurisdiction under Pt VII of the Family Law Act 1975 (Cth). The respondent should pay the appellant’s costs of and incidental to the appeal in the fixed sum of $20,000. The appellant and the respondent should each pay the sum of $1,980 in part satisfaction of the Independent Children’s Lawyer’s costs of and incidental to the appeal, fixed in the sum of $3,960.

#Relocation

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