Heaton & Heaton [2012] FamCAFC 139 (31 August 2012)
Last Updated: 7 September 2012
FAMILY COURT OF AUSTRALIA
| Family Law Act 1975 (Cth) |
| MRR v GR [2010] HCA 4; (2010) 240 CLR 461 |
| DATE ORDERS MADE: | 23 August 2012 |
REPRESENTATION
ORDERS MADE ON 23 AUGUST 2012
(1) That the appeal be allowed.IT IS NOTED:
(2) That orders 12-20 inclusive of the orders made by Federal Magistrate Dunkley on 23 March 2012 be set aside.
(3) That the Full Court makes interim orders in terms of paragraphs 12-19 of the orders made by Federal Magistrate Dunkley on 23 March 2012.
(4) That the parenting proceedings be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Dunkley.
(5) That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.
(6) That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.
(7) That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.
(8) It is requested that the Federal Magistrates Court gives such expedition of the re-hearing of the proceedings as that Court deems appropriate.IT IS NOTED that publication of this judgment by this Court under the pseudonym Heaton & Heaton has been approved by the Chief Justice pursuant to s 121(9)(g)of the Family Law Act 1975 (Cth).
(9) It would desirable that the re-hearing be heard in the Sydney Registry of the Federal Magistrates Court.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 50 of 2012
File Number: NCC 1835 of 2010
Appellant
And
Respondent
REASONS FOR JUDGMENT
- On 23 August 2012, at the conclusion of the appeal in this matter, we determined that the appeal should succeed and we indicated that view to the parties. It was agreed, in that event, the matter must be re-heard. We made orders to that effect and we indicated that we would deliver our reasons later. These are our reasons.
- Ms Heaton (“the mother”) appeals against orders made by Dunkley FM on 23 March 2012 in relation to the two children of her marriage to Mr Heaton (“the father”), E who was born in 2004 and J who was born in 2005.
- The mother’s application before the Federal Magistrate was that she and the father have equal shared parental responsibility, that the children live with her and that she be permitted to move with the children to live in Port Macquarie. The mother proposed that the father would spend time with the children in Port Macquarie and in Sydney where he lives.
- The father too sought an order for equal shared parental responsibility. He opposed the mother being permitted to relocate with the children. If she was not permitted to relocate the residence of the children, he sought orders that in effect provided for the children to spend equal time with each parent. If the mother was not permitted to relocate the residence of the children but she moved to Port Macquarie, he proposed that the mother spend time with the children each third weekend and at other times. The father would not move to live in Port Macquarie if the mother and children were permitted to relocate. The mother said that if she was not allowed to relocate the residence of the children, she would not move away from them and would remain in Sydney. However, her proposal before the Federal Magistrate was that she be permitted to relocate with the children to Port Macquarie.
- His Honour declined to permit the mother to take the children to live in Port Macquarie and ordered that the parties have equal shared parental responsibility for the children and, conditional on the mother living within 15 kilometres of the school at which both children attend, the children live with her and the father on a week about basis. Should the mother not live within that geographical radius, then the children will live with the father and spend time with the mother.
BACKGROUND
- We propose to set out some background to the matter to give context to the appeal. It seems to us that there was little contention on factual matters before his Honour.
- The parties married in 2000. They separated in 2009 and remained living in the same house. When the matter came before the court, the parties and the children were living under the same roof.
- In February 2011 interim orders were made that the parties have equal shared parental responsibility. By application brought in April 2011 the mother sought exclusive occupation of the marital home. That application was dismissed.
- The final hearing of the application commenced on 4 July 2011. At the conclusion of the second day, the matter was adjourned part heard to December 2011. To provide for the period of the adjournment, on 7 July 2011 his Honour made an interim order that the children live in the former marital home and the father and mother spend alternate weeks there during the school terms. This situation continued until his Honour made orders and gave reasons for decision in March 2012.
- The mother is from Port Macquarie and her family and friends live there. She was living in Port Macquarie when she met the father who was working in that area. The father worked in Port Macquarie until shortly before they married when he took up a position in Sydney. When the parties moved to Sydney they lived in a property which became the marital home.
- The mother worked in paid employment after marriage but ceased work after the birth of E. She did not thereafter return to the paid workforce. The father is employed by a bank. It was uncontentious that during the marriage he worked long days, about 12 hours each day. The mother cared for the children.
- Both children attend primary school at a local Catholic school. E started there in Kindergarten in 2009 and J in 2011. It was apparently undisputed that each child has friends at school who live around the area.
- His Honour said:
- It was clear from her evidence that she and the husband had agreed to a traditional type parenting arrangement where she would attend to the children’s needs whilst the husband worked and he would provided (sic) assistance mainly on weekends but was involved with the children’s P&C and attended important events at their preschool and later school.
- After the interim orders of July 2011 were made the father changed his working arrangements such that in the weeks in which the mother has the care of the children he continues to work his usual 12 hour days and in the weeks in which he has care of the children his work hours are truncated so that he can deliver them to school and collect them after school. During those weeks, the mother returned to Port Macquarie.
- The mother’s position was that she wished to move to live in Port Macquarie because she has no family support in Sydney and her immediate and extended family live there. The children have spent time with her family in Port Macquarie and have close relationships with her family. She had been offered employment in Port Macquarie and believed that she could afford to buy a house there. The mother said that she did not think she could afford to house herself in Sydney in the same area in which the parties had lived. She said that if she could not live in Port Macquarie she might be able to afford to buy a house further out in Sydney or perhaps on the Central Coast. During her cross examination she conceded that she might be able to purchase some accommodation “in suburbs adjacent to Parramatta, thereby being in reasonably close proximity (sic) of [the former matrimonial home] and the children’s current school” (at [90]).
- There was no dispute that a move to Port Macquarie would put distance between the father and the children. It was estimated that, while it is possible to fly between Sydney and Port Macquarie, to drive takes in the order of 5 hours.
- It was undisputed that the children although only in primary school, were doing well and had made friends at school who lived in their local area.
- The Federal Magistrate had the benefit of a Family Report.
A PRELIMINARY MATTER
- After setting out the orders sought by each party, his Honour recounted the evidence given by each party and his or her witnesses.
- His Honour considered the evidence of the Family Reporter from [151] and following. He said:
- During cross examination Mr Goodsell confirmed that he had read a paper by Professor Parkinson, Associate Professor Cashmore and Research Fellow Single entitled “The need for reality testing in relocation cases”. He agreed with the proposition put to him that the conclusion of that paper was that “it is not a pretty picture” with respect to the impact on children in the longer term of relocation in being able to maintain a relationship with the long distance parent.
- His Honour had earlier noted under the heading “Documents”:
- Counsel for the father during submissions referred to a published paper “The need for reality resting in relocation cases”. With the parties consent I read and had regard to “The need for reality testing in relocation cases” Family Law Quarterly 4 No 1, pp 1-34 by Professor Patrick Parkinson, Associate Professor Judy Cashmore and Research Fellow Judi Single, notwithstanding the article not becoming an exhibit. The parties knew this to be the course of action to be taken. Counsel for the wife did not oppose this course of action and consented to it.
- Although his Honour apparently “had regard” to this article, apart from the reference to it in when dealing with the evidence of the expert, no other reference is made to this article.
- While not directly raised as a ground of appeal, his Honour’s consideration of the article as part of deciding the mother’s application to relocate the children’s residence squarely raises a matter of significance. We cannot but help to observe that the course adopted by his Honour, even with the consent of the parties, was erroneous. If his Honour proposed to “have regard” to information as part of his determination of the issues before him, the proper course was to admit the document into evidence. There is no way for this Court to understand what was the import of that document nor how his Honour may have “had regard” to it. It was not evidence and, in our view, until it became evidence, it was unsafe for his Honour to “have regard” to it. That counsel agreed is not to the point. This Court has emphasised the risks in relying on extrinsic material even when, as in this case, the reliance on the material was with the consent of the parties and not in breach of the requirements of procedural fairness.
- The mother’s appeal grounds challenge his Honour’s approach to the issue of relocation and his finding that it was in the children’s best interest that they not be moved to Port Macquarie. At least from the title of the document, it seems that it may have been germane to his consideration. How then in those circumstances, he could have “had regard to it” without admitting it into evidence or otherwise refer to it seems to us beset with difficulty.
THE APPEAL
- The appellant raised six grounds of appeal that challenge his Honour’s decision, however, in argument it became apparent that the principal complaint concerned his Honour’s reasoning to his ultimate findings. That being the case, there is no need for us to set out the individual grounds or to consider each. The principal ground was made good and resulted in our orders allowing the appeal.
- The essence of this challenge is that his Honour failed to follow the “legislative pathway” in considering the mother’s application that she be permitted to move to Port Macquarie with the children and in determining whether that proposed move was in the children’s best interests.
- The “legislative pathway” we understand to be a reference to the intellectual and determinative process consistent with the Act.
- There was no dispute that his Honour’s reasons did not formally conform to that “pathway”. However, the respondent contended that his Honour’s reasons when read as a whole permitted the inference that he had taken into account and considered all relevant matters. It was further argued that “slavish adherence to the legislative pathway” was not mandatory.
- The Federal Magistrate said:
- Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the children’s parents to have equal shared parental responsibility for the children. The presumption is rebuttable.
- His Honour then found that there was no evidence to rebut that presumption and observed that to make an order for equal shared parental responsibility would be a continuation of previous orders and was sought by both parties. His Honour continued:
- Section 65DAA then requires the Court to consider whether the children spending equal time with each parent would be in their best interest and consider whether the child spending equal time with each parent is reasonably practicable.
- The decision in MRR v GR requires an affirmative answer to both considerations and if affirmatively answered, then the Court is to consider making an order for equal time.
- In determining reasonable practicality, s.65DAA(5) requires the Court to have regard to how far apart the parents live and the parents current and future capacity to implement an arrangement for the child spending equal time, the parents current and future capacity to communicate with each other and resultant difficulties that might arise in implementing such an arrangement, the impact that an arrangement for equal time would have on the children and consider such other matters as the Court considers relevant.
- We agree that what his Honour there set out was an accurate statement of the law. However, regrettably his Honour did not approach his task in that way.
- His Honour was first required to determine the children’s best interests by reference to the well known “primary” and “additional” factors referred to in s 60CC in the light of the competing proposals of the parents, that is, the father remaining in Sydney and the mother wishing to move with the children to Port Macquarie. Although the mother’s “fall back position” of remaining in Sydney to stay with the children required consideration, we consider that in elevating that concession to the status of a proposal resulted in his Honour’s failure to adequately evaluate her application to relocate and misapplication of the section.
- It is only in this way that his Honour could have properly considered all of the relevant factors to come to a determination of the children’s best interests.
- His Honour was then obliged to consider the provisions of s 65DAA(1).
- As the plurality of the High Court said in MRR v GR [2010] HCA 4; (2010) 240 CLR 461 at page 466:
- Their Honours continued:
- We regretfully conclude that his Honour erred in his determination of the issue of equal shared time. By conflating the disparate issues of “best interests” and “reasonable practicability” the Federal Magistrate’s reasons for judgment do not demonstrate substantive, if not formal, adherence to the legislative pathway. As is apparent from a reading of them, with respect to his Honour, his consideration of each issue was vitiated by its dependence upon conclusions or assumptions with respect to the other issue. His Honour was required to first consider whether equal time was in the children’s best interests pursuant to s 60CC. If he concluded that it was, it was then necessary to consider the parties’ competing proposals and determine whether equal time was reasonably practicable. He did not do this.
- These errors are such that the appeal must succeed. As the High Court said in MRR v GR (supra), the determination of both of the questions in s 65DAA(1)provide the source of jurisdictional power to make the order to which the section refers. It is not sufficient to argue that although his Honour’s findings do not follow that “pathway” when read as a whole, inferentially, it may be said that he made the determinations required of him in s 65DAA.
- It is unnecessary for us to consider whether, generally, a “slavish” pursuit of the “legislative pathway” is not essential.
Associate:
Date: 31 August 2012
