Burton & Churchin & Anor

On 15 November 2012, the Full Court of the Family Court of Australia allowed an appeal against parenting Orders made by Johnston J on 16 August 2013.

The decision confirmed an earlier judgment of the Full Court[1] that “parents” in s.60CC(2)(a) cannot be construed to mean persons other than the parents[2], regardless of how close their relationship to the child is or who the parties are.

The effect of the decision is that the benefit to a child of a meaningful relationship with persons other than parents is a consideration[3] in determining what is in the child’s best interests but the benefit to a child of a meaningful relationship with its parent(s) has an elevated status as one of the two primary considerations necessarily considered when determining what is in the child’s best interests[4].

The decision demonstrates that the error of principle that expands the application of “parent” to other persons is capable of undermining the trial judge’s decision and causing it not to stand.

Background

The child in this case is a ten year old girl.  She was living with her French father in Sydney when he died in May 2011.  She had been having limited contact with her mother who was her father’s second partner and became a person of interest in her father’s death.  On 1 June 2011, as a result of her father’s death, the NSW Department of Family and Community Services arranged for the child to be placed with her father’s first wife.  The father’s first wife is known as the “step-mother” and is also the mother of an older child of the father.

Almost immediately after the death of the child’s father, the step-mother commenced proceedings against the mother seeking interim orders that the child live with her, that she have sole parental responsibility for her and restraining the mother from contacting the child, the step-mother or her daughter.  Shortly afterwards, in July 2011, the step-mother agreed with the child’s aunt (her father’s sister) that the child would move to France to live with her aunt and extended paternal family.

By the end of September 2011, the step-mother, upon realising the importance to the child of maintaining a relationship with her mother and her half-sister in Sydney, changed her mind about the child moving to France.  On 11 October 2011 the step-mother filed an amended application seeking final orders that the child live with her.  The mother and the aunt were respondents to that application.

The mother filed a response on 30 November 2011 seeking orders that the child live with her but by 15 June 2012 the mother’s solicitors had filed a Notice of Ceasing to Act.  The mother took almost no part in the proceedings although her own mother was in Court for most of the hearing.

The decision of Johnston J

The step-mother’s application was heard by Johnston J between 29 January 2013 and 1 February 2013 with final submissions on 1 March 2013.  On 16 August 2013, Johnston J made Orders that the aunt and her husband would have sole parental responsibility for the child and that she move to France to live with them.  The Orders also required arrangements to be made for her to stay in contact with her step-mother, half-sister and maternal grandmother in Australia.

In his Judgment, his Honour Johnston J expressed the view that the mother could not be relied upon to take responsibility for the child or participate in her life.  He referred to the evidence of the psychiatric expert witness that because of interruptions to her development to date, the child would derive great benefit from a stable home.  Whilst his Honour did take into account the child’s stated wish to continue living with her step-mother and half-sister and expert evidence suggesting it would be ideal for her to remain close to her sibling, he ultimately held, relying heavily on other statements of the expert, that the best interests of the child would be served by the child’s relocation to France.

His Honour’s reasons stated that:

• The Court must take a comprehensive and longer term view of what the best interests of the child require; and
• The aunt and her husband had an impressive record as parents and had provided great opportunities for their children which they also wanted to provide to the child; and
• The aunt was willing to support a close and meaningful relationship between the child and her mother, step-mother and half-sister in Australia.

On 13 September 2013, the step-mother filed an amended Notice of Appeal seeking the Orders of Johnston J be set-aside and the proceedings be remitted for re-trial before a different Judge.  At the re-trial the step-mother will be seeking final orders that she have sole parental responsibility for the child and that the child communicate and spend time with the aunt.  The aunt and the Independent Children’s Lawyer opposed the appeal.

Grounds of Appeal

The first five of the seven grounds of appeal challenged Johnston J’s application of provisions of s.60CC(2) and (3) Family Law Act 1975.  The sixth ground asserted His Honour failed to give adequate reasons and the seventh ground contained the assertion that the judgement was “plainly wrong”.  Their Honours, Finn, Strickland and Loughnan JJ in the Full Court, found merit in grounds one and three and ordered it was necessary for a re-trial to be held.

First Ground of Appeal

The step-mother’s first and most compelling ground was that His Honour’s interpretation of the scope of s.60CC(2)(a), was wrong in principle.  The appeal ground focussed on the proposition that the sub-section is one of the two “primary considerations” and is limited to the benefit the child will have from a meaningful relationship with both of the child’s parents.  The step-mother contended that this explicit limitation of the subsection to the child’s “parents” meant any construction of it as enabling the Judge to extend its reach to the child’s relationship with a non-parent, however close, was improper.

Submissions of Senior Counsel for the step-mother referred to His Honour’s judgement at paragraph [325].  In that paragraph His Honour stated that the first of the two primary considerations in s.60CC(2)(a) did include the benefit the child would have from a meaningful relationship with her mother.  His Honour however continued to say that the primary consideration extended to the step-mother and the aunt because the child has a close relationship with them.  This extension of the primary consideration beyond parent to a non-parent was contended by the step-mother to be an error in principle.

The Full Court appeared to have no difficulty agreeing that His Honour did in fact make an error of law and stated:

“there can be no question (and regardless of what may have been said in other cases) that the words of s.60CC(2) , or more accurately, s.60CC(2)(a), refer only to the benefit to the child of having a relationship with both the child’s parents.  The paragraph says what it means and there is no canon of statutory construction which would enable it to be rewritten.”

The Full Court then went a step further and endorsed its own judgement in Donnell & Dovey[5] in which Warnick, Thackray and O’Ryan JJ said:

“In our view there can be no doubt that s.60CC(2)(a) has no application to person who is not a “parent”.  That is so because the paragraph refers only to “parents” and there is no extended definition of that word.””

Having established that construction of the section, the Court turned its mind to whether the error by His Honour had so undermined his decision that it could not stand and a re-trial must occur.  Their Honours held that Johnston J correctly considered the nature of the child’s relationship with the step-mother and aunt because they were the two persons seeking the orders and s.60CC(3)(b)(ii) provides for “other persons” to be “additional considerations”.  The Court then concluded it is plain that the benefit of the child having meaningful relationships with the step-mother and aunt persons is not elevated to the status of a “primary consideration”[6].

Their Honours accepted submissions of Senior Counsel for the step-mother that the error coloured everything that follows, that it undermined Johnston J’s decision and that it is unknown whether his Honour would have reached the same decision if the error had not been committed, so the decision cannot stand.

Third ground of appeal

The step-mother contended in the third ground that Johnston J failed to consider that by the trial the child was primarily attached to the step-mother.   The Full Court interpreted from His Honour’s reasoning that Johnston J was confused or misapprehended who the child’s primary attachment was with by the time of the trial.  The Court implied it was no longer open at the time of trial to consider the child’s primary attachment was to the mother because the evidence of the psychiatrist was it had shifted to the step-mother.  This misapprehension when combined with the trauma and lack of stability in the child’s life up to the time of trial, caused the Full Court to consider it unsafe for His Honours Orders to stand.

Conclusions

The Full Court was not persuaded Johnston J’s discretion miscarried in respect of the second, fourth or fifth grounds of appeal or that the challenge to His Honour’s reasons in the sixth ground had merit.  The Court declined to determine the seventh ground because it had already found two of the appeal grounds had merit.

Accordingly, the Court found the appeal against the Orders must succeed and the Orders be set-aside based on the improper construction by Johnston J of the primary consideration in s.60CC(2)(a) and his Honour’s approach to the evidence concerning the child’s primary attachment.  The fact that the consulting psychiatrist’s interviews with the child and the parties were conducted in April 2012 meant that a re-trial was necessary.

The benefit to a child of a meaningful relationship with his or her parent(s) therefore has an elevated status as one of the two primary considerations in determining the child’s best interests.

 

[1] Donnell & Dovey (2010) FLC 94-428 [101]

[2] Biological or adoptive parents

[3] S.60CC(3)(b)(ii)

[4] The second primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

[5] (2010) FLC 93 at [101]

[6] Para [54] of the Full Court Judgment