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Alan Weiss

31st March, 2020

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Matter remitted for redetermination after mother’s successful appeal against an order forcing her to return the child to Australia.

The mother successfully appeals a parenting order requiring her to return with her child to Sydney within 30 days. The father initially consented to her relocating the child to Dubai, but for a specified period only. The judge’s order was greatly based on her opinion of the mother.

Background to appeal

The parties commenced their relationship in 2003. Their child was born in December 2005, and the mother has since been the principal carer. The couple lived in Sydney and separated early in 2006.  Later in 2006, the mother obtained a passport for the child without consulting the father. She obtained employment as an environmental engineer in Dubai. The mother and the child moved to Dubai in March 2007, with the father’s consent. The consent order stipulated that the mother could remove the child from Australia for 13 months. She had to return no later than 1 April 2008. The father could spend reasonable time with the child as agreed between the parties. In March 2008 the mother applied seeking permission to remain in Dubai until April 2009. The Father opposed this application.  The mother returned to Australia with the child for the interim hearing.

The trial judge made interim orders as follows:

The parties have equal shared parental responsibility for the child. In essence, the child, not even 3 years old, is based in Sydney but lives with each parent on a month about basis between Sydney and Dubai. The child had to fly each month between the two.

The mother appealed these orders. The orders stayed and currently the child lives with each parent on a month about basis between Dubai and Sydney.

The hearing of the Appeal was expedited.

The Appellant’s (the mother) legal arguments

There are many grounds upon which the mother challenges the trial judge’s decision. This Court identified 3 broad areas; each supported by the various particulars relied upon.

The 3 areas are:

  • The trial judge erred in finding that there were real concerns about the Mother’s willingness or ability to facilitate the child’s relationship with the Father and his family, and her capacity to provide for the emotional needs of the child.
  • The trial judge failed to adequately assess and weigh up all the relevant “best interests” considerations in s 60CC of the Family Law Act. She failed to consider the proposals of both parties, and when comparing the advantages and disadvantages, she did not have regard to what each of the parties sought.  She did not consider, weigh and assess the evidence on each of the relevant matters; and she did not indicate which of the matters she attached greater significance to. She failed to indicate how all the matters balanced out or to give adequate reasons for her findings.
  • The trial judge failed to adequately deal with s 65DAA of the Act when ordering that the parents had equal shared parental responsibility for the child. She was required to consider if equal shared responsibility is in the child’s best interest and reasonably practicable.

The mother proposes that, if the appeal is successful, she is permitted to stay in the UAE until the child turns seven yrs old, or until he turns six yrs old. She proposes that the child spend time with the father in Sydney up to 3 times a year, up to a month at a time, and also the time in the UAE, up to six times a year and up to 2 weeks at a time.

The respondent’s (the father) legal arguments

He argued that the trial judge’s decision should not be overturned. He submitted that all the proposals were properly evaluated.

The Court’s findings

The mother’s attitude

It seemed that the ultimate basis why the trial judge found in favour of the father was her opinion of the mother’s attitude towards the relationship between the father and the child. Many of the complaints against the trial judge relate to her opinion of the mother. Although not all complaints constitute appealable errors, it is relevant when considering how the judge formed an opinion about the attitude of the mother to the relationship between the child and the father.

  • She made a number of criticisms of the mother, but almost none of the father. For example, the trial judge held that:
  • The mother attempted to use certain incidents and confrontations to secure an advantage at the proceedings.
  • On several occasions she obstructed the facilitation of the child spending time with the father; she refused to let the father spend time with the child in her apartment in Dubai.
  • She took advantage of the father’s unresolved feelings for her.
  • She contributed to the child being upset at handovers by things she said and did.

In this regard, the trial judge accepted all the father’s evidence without any criticism.

  • The trial judge failed to consider the overall circumstances and difficulties that the child and both parties had to face in the current circumstances. The current arrangements of the child travelling every month are traumatic for the child and very unsatisfactory.
     
  • Some of the “concerns” about the mother’s attitude were not proven on the evidence.
  • There was no evidence to suggest that the Mother would not comply with Court orders.
  • She erred when assuming the mother would not leave Dubai, in spite of the mother’s evidence under cross-examination that she would return to Sydney if the Court ordered that the child lives with the father.

This Court felt that there is substance in the complaints about the trial judge’s attitude towards the mother. There is merit in the complaints about how she dealt with some of the evidence and what she found about the mother’s credibility.  Her view on the credit of each party favoured the credit of the father.

After considering all of the complaints this Court held that the trial judge erred in finding that there were real concerns about the Mother’s willingness and ability to facilitate the relationship between the child and his father.
 

Best interest and consideration of the proposals

The judge’s findings of the mother’s attitude and credibility were also relevant in considering the primary considerations of s 60CC(2)(a) and the additional consideration in s 60CC(3)(c) when considering the proposals by the parties.

The trial judge preferred the father’s proposal that the child lives in Sydney, based on both parents living in Sydney and the child spending time with both.

She identified the best interest considerations in s 60CC, but that is not sufficient. She seemed to accept that the father’s proposal would be in the best interest of the child. However, she never indicated which of the best interest matters she attached greater importance to, or how they balanced out.  She did not consider, weigh and assess the evidence regarding each of the relevant matters. For example:

  • She never considered the option that the child lives with the mother in Dubai and the Father lives somewhere other than Sydney and spends time with the child.
  • She didn’t seem to consider important factors like the fact that the mother has always been the primary carer; the child had a loving and secure relationship with the mother and living in Sydney would reduce the child’s exposure to his Papua New Guinean heritage.
  • She erred in finding that there was not enough evidence to make an order regarding the child’s religious upbringing. Both the mother and the father gave some evidence in this regard.
  • The judge relied on the views and opinions expressed by the Family Consultant in his report but did not consider his evidence under cross-examination. She also did not scrutinize the basis for the opinions expressed by the Family Consultant. Most of his opinions about the mother seemed to be based on the fact that she took the child to Dubai. She did not consider that the Family Consultant failed to consider the Mother’s capacity to provide for the needs of the child if she moved to Sydney.

Given the child’s primary attachment to the Mother, the judge should have considered “attachment”, but failed to do so. It would be relevant when considering the relationship the child has with each of the parents. The trial judge should also have considered the child’s close and continues relationship with the Mother’s aunt. She failed to do so.

This Court felt that the trial judge failed to consider precisely what each party proposed.

The third area – s 65DAA and reasonable practicability

The trial judge had to undertake an analysis of the reasonable practicability of each of the proposals of the parties when considering whether equal time or substantial and significant time was feasible and in the child’s best interest.

When she considered reasonable practicability, this Court felt that the trial judge failed on a number of areas.

  • She did not consider the possibility that the father could live anywhere other than Sydney. She said the only practical scenario for equal or substantial and significant time is if both parents live in Sydney.
  • She failed to consider the mother’s proposal as reasonably practicable and that the mother’s proposal would give the father equal time with the child, or at least substantial and significant time.
  • She failed to consider the part where the mother proposed that the father spend time with the child in the UAE.
  • She failed to consider that the father’s proposal of the child living with him, would only give the mother 13 weeks a year if she remains in Dubai.
  • She failed to consider that the father could make multiple trips to Dubai; he often travels for business.
  • She failed to consider that the mother would return to Sydney if the Court ordered the child to live in Sydney, and then to consider the mother’s employment opportunities and daycare options for the child when living in Sydney.

Considering exactly what was sought by both parties are important for the correct application of s65DAA.  It was held that the trial judge failed to undertake a proper analysis and consideration of the various proposals. She failed to address the requirements of s 65DAA.

Redetermination

If the appeal is successful, the Father asked that the matter is remitted for redetermination before a judge. The mother asked this Court to re-exercise the discretion.

Court determinations

  • The appeal succeeded.
  • The matter is remitted for redetermination; recommended that the hearing is expedited.

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 Collu & Rinaldo has been approved by the Chief Justice under s 121(9)(g) of the Family Law Act 1975(Cth.)

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