Father Loses Appeal Against Order Allowing Mother’s Relocation

Background

In Groth & Banks [2017] FamCAFC 206 (4 October 2017) the Full Court of the Family Court (Bryant CJ, Ryan & Aldridge JJ) heard the father’s appeal against Thornton J’s final order permitting the mother to relocate the parties’ 6 year old son from a suburb of Melbourne to “Town D”, 60 kilometres away from the Melbourne CBD. The effect of the relocation was to extinguish the appellant’s mid-week time with the child.

While the mother had previously opposed the father’s application to be declared a parent of the child, arguing that he was no more than a sperm donor via assisted reproduction treatment (see Groth & Banks [2013] FamCA 430), and had committed acts of family violence against the father. It was agreed: that the child should continue to live with the mother; that the father was child focused; that the child’s relationship with the father was meaningful; and that the mother sought to move to Town D to live with her partner. The mother alleged that her attitude towards the father had changed and that relocation would further assist in the improvement of her attitude.

Full Court Analysis

The Full Court stated that it was important to acknowledge that it has been necessary for the father to battle the mother so as to establish his relationship with the child. She opposed him being recorded and acknowledged as the child’s father and the process of achieving these outcomes has been very difficult. The first tranche of litigation was concluded after a defended hearing with final orders made in June 2013. Implementation of these orders insofar as they facilitated time between the child and the father was fraught and by July 2014 contact had broken down.

Father’s Evidence

The father and his sister gave detailed affidavit evidence concerning the actions of the mother and her parents at changeovers during 2014 and early 2015 (including conduct by the mother which amounted to family violence) which led to the father’s decision to stop trying to enforce the June 2013 orders and to seek further assistance from the court.

At trial, it was submitted by senior counsel for the father that this evidence established that the mother was incapable of accepting the father as the child’s parent. When this evidence was dovetailed with her more recent conduct, such as by failing to encourage the child to call his father ‘Dad’ it was argued that the mother lacked the capacity to maintain and support the child’s relationship with the father from Town D.

Court’s Evaluation of Father’s Evidence

By reference to s 69ZT of the Family Law Act, her Honour declined to ‘make any findings about the details of the behaviour of the mother during the controversial changeovers in 2014 and February 2015’ recorded in the evidence of the paternal aunt.

But for her Honour’s decision to not make specific findings in relation to the unchallenged evidence, her approach was unremarkable.

Family Violence Evidence

In relation to the relevance and thus necessity to make specific findings as to family violence, her Honour correctly observed that neither party asserted the child was in need of protection, whether in relation to exposure to family violence or other risky behaviour. This finding informed her Honour’s conclusion that she would not make any findings of family violence against the mother because of the seriousness of the allegations which were denied. It was difficult to understand what this meant.

The primary judge declined to make the findings for which senior counsel for the father contended because the primary judge either mistakenly believed that it was in the best interests of this child to not make findings about the mother’s conduct during the period in question or that this unchallenged evidence required testing in order to satisfy the evidentiary onus that rested on the father. Neither proposition was sound. Nor was her reliance on s 69ZT.

Section 69ZT ‘provides that certain rules of evidence do not apply’ and neither party sought any other order. The Court did not accept that s 69ZT could justify a decision not to make findings in accordance with unchallenged evidence relevant to the welfare of a child.

Relevant Authorities

The Full Court decisions in Johnson & Page [2007] FamCA 1235; Amador [2009] FamCAFC 196; and Maluka [2011] FamCAFC 72 adopted a common approach to s 69ZT. The effect of these decisions as to the purpose of the provision accords with the submission made in the appeal by senior counsel for the father.

Rather than operating so as to enable the avoidance of making relevant findings (here such findings were clearly relevant to the s 60CC determination), properly understood s 69ZT was concerned only with the admission of evidence and no more. It operates so as to effectively remove specified rules of evidence in a parenting proceeding absent an order to the contrary

But for the fact that the Court was satisfied that this evidence was in fact taken into account, grounds 4 and 5 (erred in failing to accept the evidence of the father and paternal aunt) and ground 7 (failure to make findings concerning this evidence) would have been successful.

Mother’s Attitude Towards the Father

Considering whether the finding that the mother’s negative attitude towards the father was likely to improve was available on the evidence, the Full Court stated that there can be no doubt that throughout his evidence, the single expert was clear that it was a matter for her Honour to decide whether the historical matters and the behaviour of both parents in relation to the transition warrants particular attention. In addition, that the single expert was concerned about the possibility that the proposed move was in fact ‘the thin end of the alienation wedge’.

Her Honour well understood the father’s ‘thin end of the wedge’ concern and those of the single expert. Or that her Honour was concerned about the mother’s ability to facilitate the child’s relationship with the father. So that it was clear that the Court was completely satisfied that the reason why the primary judge gave such close attention to this issue was because she was similarly concerned about the future of the child’s relationship with the father. The primary judge specifically addressed the mother’s negative attitude and the manner in which it had affected the child. Her decision to distinguish between the mother’s attitudes and conduct pre- and post-February 2015 was available as was the weight she placed on her behaviour during those periods

Her Honour, however, also saw advantages for the child in the relocation and in terms of the mother’s attitude towards the child’s relationship with the father and saw the ‘likely potential’ for improvement if the relocation was granted. The primary judge’s approach to this difficult issue was nuanced and that her deliberations reflect finely balanced consideration of the evidence. The factors which ultimately weighed in support of her approach to the mother’s attitude to the child’s relationship were relevant considerations and were available on the evidence. It was apparent that the evidence in relation to this issue was complex and provided support for the case advanced by the father as well as that advanced by the mother.

Thus, according to the Full Court, her Honour was faced with a difficult decision and there was little reason to doubt that the different judges might have validly reached different decisions. But that was not the point because as the Court demonstrated the ultimate decision resulted from a proper exercise of the discretion entrusted to the primary judge.

Orders

The appeal was dismissed with costs.

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