A father appeals an order allowing the mother to relocate their two young children to Ireland

All “best interest of the child” and “meaningful relationship” considerations were properly considered when the parenting orders were made. The judge accepted evidence of family violence and was correct in not applying the presumption of equal shared parental responsibility. The father’s appeal dismissed.

Background to the appeal

The couple has two young children. The mother is Irish. She met the father in Australia during a holiday. The couple stayed in Australia. In 2005 the mother left the father and lived in a safe house for about two weeks before she moved back in with him. Later that year, without the father’s knowledge or consent, she left for Ireland with both children. The mother agreed to return with the children in 2006 after the father started Hague Convention proceedings. In 2007 the father applied for interim orders to see the children. His application was dismissed and an expedited hearing was ordered. An expert psychologist prepared two reports.

At the hearing, the father asked for equal shared parental responsibility; for the mother to live in Adelaide; and both parents spending equal time with the children.  The mother asked that the children live with her and that she is permitted to relocate to Ireland. Alternatively she wanted to remain in Sydney with the children.

The final orders allowed the mother to take the two children to live in Ireland. It gave the mother sole parental responsibility for the children. It provided for the father to spend supervised time with the children after they move to Ireland, as well as before their departure. The judge ordered that the departure is delayed until that December.

The father is now appealing these orders.

The Appellant’s (the father) legal arguments

  • The father argued that the trial judge erred in ordering indefinite supervised contact. He should have incorporated a “review mechanism” to remove the supervision requirement in future.
  • The trial judge failed to give proper attention to the Family Law Act, especially on the following aspects.
  • The benefit of a meaningful relationship with both parents in determining best interest.  It was argued that the relationship would only become meaningful if the children remained in Australia and they had face to face contact. Relocation will compromise the relationship. It would not be possible to sustain intimate interaction. It was further argued that the Court over emphasized the “primary considerations” in relation to the “additional considerations” in s 60CC(3) when considering the best interest of the child.
  • The judge erred in finding that the presumption of equal shared parental responsibility did not apply in this case. He erred in finding family violence.
  • The judge misunderstood the father’s proposal for the mother and the children to stay in Sydney until the youngest child turned 12. The relationship could then progress to unsupervised time.
  • The judge erred in finding that the mother would encourage and facilitate a close relationship between the children and the father. It was her conduct in taking the children to Ireland without consent in the first place that resulted in the father not seeing his children for 2 years.
  • The judge erred in finding that the father was violent and controlling. There was no evidence to corroborate the mother’s allegations.
  • The father also made submissions regarding the trial judge’s conduct:
  • That the trial judge misled counsel by making certain remarks about the weight of the evidence of the father’s former wife regarding his violent tendencies, and then placing weight on that evidence.
  • He argued that the judge placed improper pressure on the father to withdraw his application for shared care and,
  • He argued that the trial judge displayed bias when questioning the Court Expert; he assumed the role of advocate and entered the arena.


The respondent’s (the mother) legal arguments

The mother resisted the appeal. She submitted that there was no merit in any of the grounds for appeal.  She argue the judge carried out an appropriate evaluation of all the factors and there was enough evidence to find family violence.

The Court’s findings

It is important to remember that for an Appellate Court to legitimately interfere with a discretionary judgment, it is not enough for the Appellate Court to merely consider that they would have taken a different course if they had been in the position of the primary judge. It must appear that an error was made resulting in the failure to properly exercise the discretion for the Court to interfere.
 

  • Regarding a review mechanism for the supervised contact, the court held that the father could always approach the court in future and show changed circumstances to alter the order. There must be a practical end to litigation and the matter must be determined for the foreseeable future, but access orders are never “final”. In the circumstances of this case, there were many logistical difficulties in adding a review mechanism. Failing to do so was not an appealable error.
  • Regarding the failure to give proper consideration to all the factors and considerations of the Family Law Act.
     
  • Whilst there may be a great benefit to a child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect the child. The judge must take into account all of the relevant considerations set out in the Act and give each the weight necessary to promote the best interest of the child. When it comes to deciding on what constitutes a “meaningful relationship’ it is for the court to decide, not the expert witness.   On the evidence it was held that the trial judge was very aware of both primary considerations, he found an overwhelming number of factors favouring the relocation to Ireland, and all of the findings were open to him on the facts. He did not fail to give proper attention to the additional considerations set out in the Act.
     
  • The judge did not err in failing to apply the presumption of equal shared parental responsibility. Based on the evidence, it was open to the judge to find family violence. The presumption does not apply if there are reasonable grounds to believe that a parent engaged in family violence. There was sufficient evidence to establish violence on the part of the father.
  • Regarding the father’s proposal for the mother to remain in Sydney with the children, and the relationship progresses, the Court found that the father opened his case based on the fact that he had to stay in Adelaide. The most he would be able to see the children would be occasional weekends and holidays. The Court was not convinced that the trial judge misunderstood the father’s proposal.
  • Regarding whether the mother would encourage and facilitate a close relationship between the children and the father, the Court held that the trial judge properly considered this issue. He stated that if the mother were unwilling to do this, it would severely impact on her application to relocate. He, however, found that although the mother had been wrong to take the children to Ireland, the father’s behaviour contributed to her departure. The judge was comfortable that the mother would abide by the court orders and that she now recognizes the importance of maintaining a relationship between the children and their father. These findings were open to the judge.

Regarding the father’s violence

The trial judge has the advantage of the “feeling” of the case and observing the witnesses.There is nothing to indicate that the judge erred in finding that the father’s behavior is violent and controlling. The rest of the evidence was merely corroborating the mother’s compelling evidence.

Regarding the trial judge’s conduct:

  • The trial judge qualified his preliminary remarks about the former wife’s evidence and the evidence was not excluded.
  • The judge did not put pressure on the father to withdraw his application.
  • The court noted that no complaints or objections were raised about the questions put to the Expert when it was asked during the trial.

There is no ground for bias and the judge did not exceed his role by asking questions.

Court determination

The appeal was dismissed.

This article provides basic information only and is not a substitute for a professional opinion or legal advice. It is prudent to obtain legal advice from a Family Lawyer when contemplating a separation or soon after a relationship comes to an end. It is noted that publication of this judgment by this Court under the pseudonym Champness & Hanson has been approved by the Chief Justice under s 121(9)(g) of the Family Law Act 1975(Cth.)

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