A v A: Relocation approach - [2000] FamCA 751

[2000] FamCA 751

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal No. EA 2 of 2000
File No. SY 9647 of 1994

Appellant Mother

AND

Respondent Father

Relocation Approach

REASONS FOR JUDGMENT OF THE FULL COURT

BEFORE:Nicholson CJ, Ellis and Coleman JJ

DATE OF HEARING: 8 May 2000
DATE OF JUDGMENT: 1 August 2000

APPEARANCES: Mr G. Johnston of Counsel instructed by the Legal Aid Commission of NSW, 323 Castlereagh Street, Sydney, NSW 2000 appeared for the Appellant Mother.

Mr J.S. van Aalst of Counsel instructed by John Hertz & Associates, Solicitors, 1106 Botany Road, Botany, NSW 2109 appeared for the Respondent Father.

A v A: Relocation Approach Appeal No. EA 2 of 2000
Coram:  Nicholson CJ, Ellis and Coleman JJ
Date of Hearing:  8 May 2000
Date of Judgment:       1 August 2000

Catchwords: Family Law - Residence - Planned relocation of mother - AIF v AMS (1999) FLC 92-852 and Paskandy v Paskandy (1999) FLC 92-878 considered and applied - Martin v Matruglio (1999) FLC 92-876 considered - Correct approach to relocation cases

This was an appeal by the mother against orders made by Moss J on 7 December 1999.

The parties were married in 1990 and separated in 1994. There was one child of the marriage, M, aged 9 at trial. The mother also has a child from a previous marriage, C, aged 6 at the time of marriage, who lived with the parties and her half-sister M during the marriage and currently lives in Portugal with her father.

In December 1995, Nicholson CJ ordered, using the terminology of the Family Law Act 1975 in its form at the time, that the parents be joint “guardians” of M, that the mother have “custody” and that the father have “access” as specified.

In April 1999, the mother sought and the father opposed what may be described as a parenting order enabling her to relocate with M to Portugal. At about the same time, contact between M and the father ceased, and at the time of the appeal, there were orders suspending contact until further order.

The mother ceased contact on the basis of alleged ‘inappropriate’ behaviour by the father. The trial Judge was of the view, however, that appropriate steps should be taken ‘as quickly as possible’ to re-establish contact between M and the father. His Honour then made the orders against which the mother has appealed, inter alia that M reside with the mother in Sydney and have contact as specified with the father,

On appeal, the mother submitted that the trial Judge erred in:-

Failing to give weight to the doctors’ evidence that the mother’s mental health and capacity to care for M would improve if she were ‘permitted’ to live with M in Portugal;
Failing to consider the impact on M of the mother’s depression in the event of not being ‘permitted’ to relocate with M;
Failing to take account of the evidence that contact between M and the father had minimal hope of a positive outcome in light of her alienation from him;
Finding the mother has brought about considerable harm to M;

Further, it was submitted that his Honour’s decision was so unreasonable and unjust as to amount to an improper exercise of discretion.

Held:-

In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas, the following principles apply:

The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.

A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:

It is necessary for a court to evaluate each of the proposals advanced by the parties.

A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'."

The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.

It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.

It is to be expected that reasons for decision will display three stages of analysis and:

A court will identify the relevant competing proposals;

For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;
· As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
· The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
· Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.

On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.

· The process of evaluating the proposals must have regard to the following issues:

a)None of the parties bears an onus:
·In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.

b)The importance of a party's right to freedom of movement:
·In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s92 of the Constitution, where applicable.
·In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.

c)Matters of weight should be explained:
·In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
·In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.

The trial Judge failed to carry out the required process of evaluating each of the three proposals before him.

His Honour further fell into error by treating the issue of the father’s contact with the child as effectively decisive of the proceedings and by providing inadequate consideration of the relevant section 60B and 68F(2) matters.

His Honour erred in requiring the mother to justify relocation of the child’s residence.

Appeal allowed, orders set aside and expedited re-trial ordered.

Costs certificates granted to both parties.

Reportable.

INTRODUCTION

This is an appeal by ALV, aged 38, (“the mother”) against the parenting orders, set out in paragraph 33 hereof, made by Moss J on 7 December 1999 under the Family Law Act1975 (Cth). The respondent to the appeal is her former husband ALO, aged 57 (“the father”).

The proceedings before his Honour concerned the child of the marriage, a girl named “M” born 1990 and the trial occupied six hearing days.

A Child Representative was appointed for and participated in the trial proceedings but filed a notice of discontinuance prior to the hearing of the appeal.

The parties were married in Sydney in June 1990 and separated in April 1994. A decree nisi was granted on 16 October 1996. At the date of their marriage the mother had a daughter then aged 6 whose name is C and who lived with the parties during the marriage. C now lives in Portugal with her father.

The mother has remarried. Her present husband is M ALV aged 43.

Orders were made in respect of M on 22 December 1995 after a contested hearing before Nicholson CJ. His Honour ordered inter alia using the terminology of the Family Law Act 1975 (Cth) in its form at that time, that the parties be joint "guardians" of M, that the mother have "custody" of the said child, and that the father have "access" in accordance with his rostered days and for one week each school holiday period.

We would note that at the commencement of the appeal hearing, counsel were asked if there was any objection to Nicholson CJ’s membership of this appeal bench and neither party proffered an objection.

THE PROCEEDINGS BEFORE MOSS J

By her Amended Application for Final Orders filed on 7 April 1999, the mother sought and the father opposed inter alia what may be described as a parenting order permitting the child to relocate with the mother to Portugal, where she now wishes to live.

Orders Sought

The Minute of Orders sought by the mother, as expressed in the submissions filed on her behalf at the conclusion of evidence were in the following terms:

That previous parenting orders with respect to the child, M ("M"), born 1990, be discharged.

That the child, M, reside with the wife, who shall have sole responsibility for her day to day care, welfare and development.

That the wife be permitted to reside with M in Portugal.

Order that, for the purpose of facilitating order 3 above, M’s passport be released by the Family Court of Australia to the wife.

In the alternative to order 4 above, the husband and the applicant wife do all acts and things necessary, and sign all documents, for the issue of a passport for M.

That the husband and the wife do all other acts and things necessary, and sign all documents pertaining to visa and residence applications, to facilitate M’s residence in Portugal with her mother.

Order that in the alternative to orders 4, 5 and 6 above the wife be granted sole responsibility for M’s long term care, welfare and development.

Order that M have no contact with her father, save for:

a)contact by letters and gifts forwarded by the husband to the child in Portugal, to which the wife shall encourage M to respond;
b)by telephone from Portugal to Australia on one occasion per month at the wife's expense; and
c)by telephone from Australia to Portugal at other reasonable times, at the husband's expense.

10. It may be noted that the original wording of paragraph 8 in the Amended Application sought: "Order that M have no contact with her father."

11. The father by way of an Amended Response to Final Orders filed on 24 May 1999 sought the following orders:

1.That the child of the marriage, M, born 1990, reside with the former husband, ALO.

2.That the former husband, ALO, have the sole responsibility for the day to day and long term care, welfare and development of the said child.

3.That the child of the marriage have reasonable contact with the Applicant, such contact to be:-

(a)Every second weekend from Friday evening to Monday morning.

(b)One half of all school holidays, the Applicant to have contact on first half of the school holidays on the even years, and second half of the school holidays on the odd years.

4.That the passport of the child of the marriage, M, to remain with the Family Court of Australia.

5.In the alternative, that the previous parenting orders with respect to the child of the marriage, M, not be discharged.

12. In respect of the orders sought by the father, the trial Judge ruled that the matter should proceed before him on the basis that the residence of the child with the mother was not in issue. This was not the subject of dispute before us.

13. We would also note that, notwithstanding the telephone and postal contact envisaged in paragraph 8 of the Minute of Final Order sought by the mother, counsel proceeded before us on the basis that there would be no contact with the father if the child went to Portugal and that the mother sought that there should be no contact with the father if the child remained in Australia.

14. Thus, three possible outcomes of the hearing were in competition before Moss J:

·    That the child be permitted to relocate with the mother to Portugal with no contact to the father; or
·    That the child not be permitted to relocate with the mother to Portugal, that she reside with the mother in Sydney and that the father (who also resides in Sydney) have no contact; or
·    That the child not be permitted to relocate with the mother to Portugal, that she reside with the mother in Sydney and that the father (who also resides in Sydney) and have contact with the child.

15. We were informed by counsel that contact between the child and her father had in fact ceased in April 1999 and that at the time of the appeal hearing, there were orders suspending contact until further order.

The Trial Judgment

16. Evidence concerning the cessation of contact between the father and the child assumed a considerable degree of significance for the trial Judge.

17. The mother said that she had ceased contact between the father and the child on the basis of alleged 'inappropriate' behaviour by the father, including that he had hit and kissed M on occasion. The claim was in part based on the mother’s alleged observations but also on what she said was the father’s behaviour and statements to C. The father denied the allegations and Moss J observed that nearly all of the material in the mother's affidavit as to the father's conduct and statements by C, had also been before Nicholson CJ at the 1995 hearing.

18. At paragraph 10, Moss J said of Nicholson CJ’s judgment:

“10. The trial Judge found "that the main point of contention during the marriage was over C and her behaviour." The contentions were, on behalf of the Respondent that he had tried to set some limits and discipline in respect of C as the Applicant appeared unwilling or unable to do so. The contention on behalf of the Applicant was that the Respondent frequently screamed at and hit C, a contention denied by the Respondent. There was a finding in relation to these contentions that the material was such that the Judge was unable to be satisfied about them.”

19. At paras 14 and 15, Moss J also said of Nicholson CJ’s judgment:

“14. The Judge accepted that the primary attachment of M was to the Applicant and accepted the counsellor's assessment "that M was also very attached to her father" and that the counsellor had commented that the Applicant "had a very positive view of the benefit of M having on-going contact with her father…"
15. Residence was the primary issue in those earlier proceedings and an Order was made in that regard in favour of the Applicant. However, not only did the Judge order contact along the lines I have indicated vis à vis M and her father, but he specifically ordered that the parties should be joint guardians.”

20. Moss J found the counsellor’s report prepared for Nicholson CJ to be instructive for the proceedings before him. At paras 17 – 19, Moss J said:

“17. The counsellor commented (para 43) on the "intense burden" the parental conflict was placing on the child even at that young age. She observed that "M would feel acutely responsible for the conflict." The counsellor's observation of the child's reaction to her father is set out, in particular, at paras 48 to 54 of the report. The session commenced with the child squirming and rejecting the idea of bringing the Respondent into the room. "At first meeting" the child "remained in her chair, covered her eyes with her arm" avoided eye contact "and squirmed away" from the Respondent. After a few words spoken to her from the Respondent her attitude changed remarkably and she "started to lean over toward her father and snuggled into his neck and shoulder." The child's attitude grew even warmer as she engaged in play activities with the Respondent and at the end of the session she reminded him "that she was coming to stay at his house on the weekend."
18. I have made reference to this material for two reasons. First it shows that even 5 years ago there was some significant influence on the child which caused her to give the appearance of rejecting his advances, whereas within minutes she was showing considerable affection and trust towards him. The second reason why I have referred to that material is that it seems to me to bear some resemblance to the way M conducted herself in the session with the Respondent, referred to, by Dr R [a child and family psychiatrist retained in the proceedings before Moss J on behalf of the child’s representative], on 10^th August 1999.
19. Thus, it can be seen, that after the earlier contested hearing, at which time as appears from the passages from the counsellor's report, the child was already under considerable pressure as a result of her parents' conflictual situation, the Orders were made to the effect that I have mentioned, and the child had contact with the Respondent, more or less in accordance with the terms of the Orders, indeed, it appears, during Christmas school holidays well in excess of the period provided for in the Orders, but that suddenly in April this year the Applicant takes steps which brings the contact to an end. The central question in these proceedings so far as contact is concerned between the child and her father, is why the Applicant was motivated to take that step after the Orders had been in effect for more than three years?”

21. Earlier in his judgment, Moss J said of M at paragraph 6:

“6. Since 1994 this child has been caught up in the marital conflict of her parents, and she has been taken by the Applicant to see counsellors, officers of the Department of Community Services, police officers, police prosecutors, medical practitioners, all with a view to mounting a case against the Respondent so as to justify the cessation of contact between the child and her father. As I have said the proceedings before me are the second set of proceedings between the parents of this child concerning the welfare of the child. The evidence, in my opinion, is overwhelming that this child has become significantly disturbed as a result of the pressure she has undergone over the years as a result of the continuing conflict between her parents.”

22. Of C, Moss J said at paragraph 21:

“21. ... C, now 15, who appears to have been the subject of the parties' problems as adverted to by the trial Judge in the earlier proceedings, has now taken up residence with her father in Portugal, although how long she will remain there may appear uncertain. She has been back with her mother recently before again returning to Portugal. It is clear from the evidence that she continues to have an influence on her mother in relation to the Respondent, towards whom she undoubtedly has a high degree of hostility, whether or not it is reasonable based. In my opinion there is evidence that there is no basis for C's various statements, and they have been the cause of much mischief, as will appear from these reasons.”

23. The statements to which his Honour referred were contained within the affidavit of the mother sworn and filed on 1 October 1999. The mother deposed that C was said to have expressed fear to her about the father and made claims that that the father had physically abused her. There was also annexed to the mother's affidavit a letter from C which stated that M should not be left with the father on the basis that the father would perpetrate the same harm to M as C said she experienced. C also made allegations that the father "use [sic] to touch" a girl and her sisters known to C. After hearing from numerous lay and expert witnesses, and considering submissions from the parties and the Child Representative, Moss J did not find the allegations made out and said at paragraph 66: “I accept that he has never acted on any improper purpose in his dealings with M.”

24. We do not think it necessary to recount all of the bases on which Moss J reached that finding or to express a view as to the view that he took. Insofar as his Honour made adverse findings as to the mother’s credit and her evidence, particularly of statements allegedly made by M and C, we would identify the following examples of his Honour’s analysis of the evidence before him.

25. Moss J expressed criticism of the mother’s initial reliance on a letter written by C to the mother which she had put in evidence. He said at paragraph 68:

“68. This letter alleged that the Respondent had sexually interfered with two young girls. The raising of this matter, I am satisfied, does no credit to the Applicant and indicates the length she is prepared to go in making allegations against the Respondent. As witnesses were about to be called to refute this scandalous allegation, counsel for the Applicant as well as counsel for the child's representative, informed me that they did not intend to rely in any way on these scandalous allegations. Given that the affidavits refuting the allegations had already been filed, and given that the Applicant had raised the matter in the first place, this belated announcement I found to be quite unsatisfactory. One of the witnesses whose affidavit evidence refuted the scandalous allegations was CO who was called and who was not cross-examined by either counsel for the Applicant or counsel for the child's representative. Her unchallenged evidence casts considerable doubt on the Applicant's suggestion that M and the Applicant's daughter C have a close relationship. The witness also gave evidence that M had said in her presence "my mother said my father is going to kill me." She also gave evidence refuting the allegations to which I have referred.”

26. In dealing with the evidence of another witness, his Honour also said at paras 71 and 72:

“71. MDS gave evidence that she has been associated with the Respondent and M during contact periods on many occasions up until March this year. Her evidence included hearing the child state that she wished to live with her father, that her father was a very good man and that she did not want to go to Portugal. She, too, gave evidence that the child would sometimes call out from the toilet for assistance from the Respondent. Indeed, on the occasion the child slept overnight at her place the witness herself gave such assistance at the request of M. That occasion, she thought was during December 1998.

72. Importantly, this witness also provides evidence of the unreliability of statements allegedly made by the Applicant's daughter C to the Applicant. The affidavit of the Applicant contains material apparently referring to this witness and said to be conveyed to the Applicant by C. When counsel for the Applicant put this material to the witness it was shown, in my opinion, to be nonsensical.”

27. At paras 77 – 100, his Honour dealt with the evidence - both in report form and viva voce - of Dr R, the child and family psychiatrist retained by the Child Representative for the proceedings. Her evidence was seen to cast further doubt on the veracity of the allegations against the father. Further, the trial Judge said at paragraph 85:

“85. In her report Dr R concluded that M had “become alienated from father to a worrying degree.” “Her rejection of him was dramatic.” She reported that “perhaps unwittingly” the Applicant has contributed to the child’s current attitude to the Respondent and that she may have conveyed to the child the notion that the Respondent is a danger.”

28. In subsequent paragraphs, Moss J recorded Dr R’s opinion that it was to be hoped that “a reconciliation between M and her father will be possible in the future” (at paragraph 87). He said that Dr R expressed concerns about the mother’s mental health and further said at paragraph 89 of her evidence:

“89. Dr R said that in the event the Applicant and child remained residing in this country then there should be “therapeutic intervention” to enable contact to be reinstated. The participants she envisaged would be M and her father, and she thought that the Applicant would have to have “her own therapy.” She said she could “definitely” see some benefits in contact being reinstated between M and her father. She was of the view that the child “had a good relationship with her father in the past.” She said she thought it was very important to the child to return to the position which had previously obtained so that she could see her father “in a good light.” She expressed the view that a reinstatement of contact should be subject to supervision and monitoring.”

29. The trial Judge then recounted other evidence from Dr R indicating that she was concerned that financial reasons were associated with the proposed relocation to Portugal and further, that the child had become alienated from her father. In addition, the trial Judge said at paragraph 100:

“100. Dr R said she was aware that not only the Respondent but his witnesses as well have given evidence that M has told various people that the Applicant has said that her father would kill her. Dr R’s response was that that was “a big worry” and that she thought she had “incorporated it in my report by saying that I do believe that [the Applicant] has influenced the child’s relationship with her father…” She said that if M believed “that mother sees father as someone who could be murderous, then it’s very destructive for the child.””

30. After considering the evidence of another witness that cast doubt in the mind of the trial Judge as to the allegations against the father, his Honour recorded and commented upon the submissions of the Child Representative. At paras 112 - 114, his Honour said:

“112. Next, it is submitted that an order should be made which would permit the Applicant to take up residence in Portugal with the child M in her care. There is no question, of course, of any order being made directed to the Applicant herself and preventing her from taking up residence wherever she might choose to do so. However, an order may be made in a proper case providing that a person may have custody or residence of a particular child provided that the custodian or residence parent lives with the child in a particular place: AMS v AIF (1999) 73 ALJR 927.
113. I am unable to accept the submission that to allow the Applicant to remove the child to reside with the Applicant in Portugal is consistent with the best interests of this child, indeed I am quite satisfied that such a situation is inconsistent with advancing the best interests of this child.
114. One of the reasons put forward for this submission, is to the effect that M would be then living with or closely associated with C. For reasons I have indicated above, I would not necessarily view that fact as being consistent with the best interests of M. Nor could I accept for a moment, as the submission made on behalf of the child’s representative assumes, that in the event the Applicant and M took up residence in Portugal there would be any contact whatsoever between M and the Respondent.”

31. His Honour then commenced the section of his judgment termed "CONCLUSIONS”. For the purposes of later discussion, it is necessary to set out in full paras 115 - 127:

“115. Following the making of the Orders in December 1995, the Respondent pursuant to those Orders, had contact with M which continued up until April 1999. Not only was this contact regular and overnight contact, but it included contact during school holidays, in particular three weeks block contact during the Christmas holidays. It seemed to be the Applicant's contention that although the Orders provided for one week only at Christmas, she allowed the Respondent an additional two weeks. It is surely unlikely that the Applicant would have allowed contact to continue if she had any reason to believe the child was not being properly cared for, let alone that she would volunteer additional contact.
116. Among the most compelling evidence of M's true feelings towards the Respondent, in my opinion, are the cards she sent him from time to time, especially the card sent last Christmas, to which I have referred earlier in these reasons, and the card sent at Easter this year. These appear to be evidence of a close and loving relationship between father and daughter.
117. To this evidence must be added the Respondent's unchallenged evidence in his affidavit to which I have referred, and the wealth of evidence from the Respondent's witnesses as to their observations of the closeness between father and daughter and as to the various statements M made in their presence.
118. All this amounts to a very strong demonstration that the relationship between M and the Respondent up until April this year was indeed a close and loving relationship. The question then becomes what brought about this apparent dramatic change.
119. The nature of the case brought against the Respondent was such that, forensically, it created great difficulties for those seeking to meet it. The allegations were based on statements allegedly made by the child, or by C, or by some third party who could not be tested as a witness.
120. These difficulties were increased by the fact of M having been interviewed by numerous persons, including officers from the Department of Community Services, the police, an investigation team, and not less than about twelve times by Ms McG [a local family therapist]. The confusion likely to have been engendered in M's mind must be considerable. There is also the likely effect on her by reason of the exclusion of the Respondent from each of these situations. Thus, time after time she would have seen the Applicant sometimes with C, sometimes with the Applicant's husband, apparently surrounded and supported by various authorities, and each time the Respondent being excluded. Surely this would be likely to give the impression to the child that all the good people were behind her mother, with the Respondent being starkly excluded.
121. For a time I was prepared to accept, as the evidence unfolded, that if the allegations turned out to be baseless, or there was no evidence of improper purpose towards the child on the part of the Respondent, then perhaps the Applicant had been confused and depressed and had placed undue reliance, for example, on statements allegedly made to her by C. But it is impossible, in my view, to ignore such evidence as the use sought to be made of the photograph (exhibit A) [of the child C, then aged 5, standing in a bath], and the attempt to use the letter from C raising the scandalous allegations to which I have referred, and which has obviously caused much hurt and humiliation to those who felt compelled to come forward and refute such baseless and serious allegations.
122. Then there is the evidence of M having made the statements to various witnesses to the effect "my mother said my father is going to kill me", including in the presence of the Respondent's solicitor. None of this evidence was challenged. What does this say about the mental condition of the Applicant? A more destructive suggestion made to a child by one parent concerning the other is difficult to imagine.
123. When viewed in the light cast by the evidence, M's position under the influence of the Applicant must be seen to be a somewhat desperate one. It is essential, in my opinion, that the previous close relationship between her and the Respondent be restored as a matter of urgency so that M may again benefit from his stability, and from the deep affection that he clearly bears for her. It is probable that this will require the intervention of a relevant therapist. But the first step, surely, is to ascertain whether the Applicant will now acknowledge she has brought about considerable harm to M by inducing her present state of mind. In my view, if the Applicant is willing to repent and to encourage the child to resume contact, any necessary therapy will be effective much more quickly than would otherwise be the case.

124. Despite the opinion of Dr R [the child and family psychiatrist] and Dr
M-B [a general practitioner called by the mother] to the contrary, I am not satisfied that if the Applicant were to take up residence with M in Portugal that would have any significant bearing on the Applicant's relevant state of mind or upon her health. The opinions to which I have just referred were based entirely, in my opinion, on statements made by the Applicant as to what will be her situation should she return with M and the younger child to Portugal. There is not one item of independent evidence to corroborate the Applicant's statements. Not one of her relatives, apparently living in Portugal, has filed an affidavit in these proceedings. I think I am entitled to take judicial notice of the fact that Portugal is widely regarded as a poor country when compared to countries like Australia. The health systems in this country that we take for granted may well be non-existent in Portugal. In my view, regardless of where the Applicant may live, she is likely to feel depressed because of the mess she has made of her life and because of her state of health. I am not persuaded she could look forward to the family support she claims.
125. In so far as the welfare of M is concerned, I am strongly of the view that she should continue to reside in this country thereby to enjoy the many benefits available to her, in terms of her health, her schooling, her freedom, the opportunities that will be available to her in terms of a career, and most important of all, so that she may have as much contact as possible with the Respondent.
126. As I have attempted to make clear in these reasons, while some aspects of the Respondent's behaviour on contact may have been insensitive and have made the child feel uncomfortable, the situation would never have got to this stage, without the active intervention of the Applicant to bring the situation about.
127. In my opinion, therefore, appropriate steps should be taken as quickly as possible, to re-establish contact between M and the Respondent. It seems to me that such contact should be supervised, say, for a period of six months and I have identified in these reasons various of the Respondent's witnesses who appear to me to be highly suitable as supervisors. The reason that I take the view that there should be supervision, is not that I anticipate for a moment that the Respondent would behave other than in a suitable manner during contact periods, but that I feel there must be excluded, even as a possibility, any allegation being made by the child, or by the Applicant, which regardless of its truth would be likely to bring contact to an end once again. At the end of the six month period I think there should be unsupervised contact along the lines previously existing unless there is some good reason shown why that should not happen.”

32. In paragraph 128 of his judgment, Moss J made further reference to the desirability of therapeutic assistance in the re-introduction of contact. His Honour then said at paragraph 129:

“129. Having regard to the evidence to which I have adverted, and to the terms of s68F of the Family Law Act, so far as relevant to this case, it follows that orders should be made to the effect that the child’s residence is to remain in Sydney, and that the Respondent is to be entitled to resume contact with the child, on a supervised basis for the first six months, and thereafter in accordance with the orders made in December 1995, or as otherwise agreed between the parties. If it is necessary for the various supervisors identified by me in these reasons to file affidavits in respect of their preparedness to act as supervisors, this should be arranged by the Respondent's solicitors as soon as possible.”

Order Made by the Trial Judge

33. The precise form of the orders made by his Honour on 7 December 1999 were as follows:

1.That the child M, born 1990 live with the Applicant provided the child’s place of residence is Sydney;

2.(a) That the Applicant forthwith arrange for the child to attend upon
Dr M, Psychiatrist for four sessions of counselling on the following dates:
1^st March 2000, 4.45pm
16^th March 2000, 3.45pm
30^th March 2000, 3.45pm
6^th April 2000, 4.45pm

(b)That the Respondent bear the cost of the gap for the sessions between the Medicare payment and the scheduled fee;

3.It is noted that the Respondent will be present with the child during the child’s counselling sessions with Dr M for such periods of time as considered appropriate by Dr M.

4.For a period of six months after the child and Respondent’s last counselling session with Dr M, the Respondent shall have contact with the child as follows:

(a)For two months one day each alternate week, such day to be agreed between the parties, from 10.00am – 2.00pm if the Respondent has a rostered day off on a weekend, otherwise for a period of four hours after school, commencing the first week following the last counselling session and further contact from 9.30am – 11.30am on Easter Sunday 23^rd April 2000;

(b)For the following two months one day each alternate week, such day to be agreed between the parties, from 9.00am – 7.00pm if the Respondent has a rostered day off on a weekend, otherwise for a period of four hours after school;

(c)For the following two months on each alternate weekend from 10.00am Saturday to 11.00am Sunday;

5.The Respondent’s contact with the child referred to in paragraph 4 shall be supervised at all times by CM or MJ;

6.In the event the Dr M contacts the child’s representative to inform her that further counselling sessions are necessary prior to the commencement of the contact referred to in paragraph 4 then the child’s representative shall notify the parties and the child’s representative and the parties have the liberty to re-list the matter on three days notice to the Court.

APPELLATE PRINCIPLES

34. The leading authorities as to appeals against a discretionary judgment and orders, such as the present case, are well known and reference to them will suffice for present purposes: See House v The King (1936) 55 C.L.R. 499, Australian Coal and Shale Employees Federation and Another and the Commonwealth and Others (1956) 94 C.L.R. 621 per Kitto J at 627 and Gronow v Gronow (1979) 144 C.L.R. 513.

THE APPEAL

35. The Notice of Appeal filed 5 January 2000 contained the following grounds of appeal:

1.His Honour failed to give any or any proper weight to the evidence of Dr R and Dr M-B that the wife’s mental health and capacity to care for the child would be improved should she be permitted to live with the child in Portugal.

2.His Honour erred in failing to consider the impact on the child of the wife’s distress and depression should the wife not be permitted to relocate to Portugal with the child.

3.His Honour erred in failing to take into account the evidence of the Order 30A expert, Dr R, that the child was significantly alienated from the husband and that even after therapeutic intervention, contact between the child M and the husband had minimal hope of a positive outcome.

4.His Honour erred in that he failed to give any or any proper weight to the relationship between M and her half-sibling C, and the impact on the child of prolonged separation from that sibling.

5.His Honour erred in finding that that the mother has brought about considerable harm to M by “inducing her current state of mind” which finding was not open to his Honour on the evidence before him.

6.His Honour’s decision is so unreasonable and plainly unjust that the Full Court may infer that the Trial Judge did not properly exercise his discretion.

36. Although various orders were sought in the Notice of Appeal, the hearing was conducted on the basis that if the appellant made out her complaint that the trial Judge had erred in law in the exercise of his discretion (Ground 6) by the adoption of an incorrect approach to the proceedings, the applications would have to be remitted for determination before a single Judge. In that event, both parties sought that any such rehearing be expedited.

37. We would also record that on 4 May 2000, following the date by which written arguments by the parties were due to be filed and served, we caused a request to be issued to the parties’ solicitors in the following terms:

"The Full Court requests that at the hearing of the appeal, counsel present argument as to the correct legal approach to be applied in the determination of relocation applications having regard to the following authorities:
AMS v AIF; AIF v AMS (1999) FLC ¶92-852
Paskandy v Paskandy (1999) FLC ¶92-878
Martin v Matruglio (1999) FLC ¶92-876."

38. In the circumstances of this appeal, we turn first to the arguments before us as to the correct approach to “parenting cases where the proposal of one of the parties involves relocation” (Paskandy v Paskandy (supra) at paragraph 40). We then consider the submissions concerning whether the trial Judge erred in his approach to the present case.

39. Before doing so, we would draw attention to the fact that the High Court’s judgments in AMS v AIF;AIF v AMS (supra) were delivered on 17 June 1999 and that the trial Judge made reference to this authority (paragraph 112). Moss J did not, however, have the benefit of the Full Court’s unanimous decision in Paskandy v Paskandy (supra) and the decision in Martin v Matruglio (supra) wherein Kay and Dessau JJ expressed a majority view and Finn J gave separate reasons. These judgments were delivered after his Honour determined the case under appeal on 7 December 1999.

SUBMISSIONS CONCERNING THE CORRECT APPROACH TO PARENTING CASES INVOLVING A RELOCATION PROPOSAL

40. Mr Johnston, counsel for the mother, submitted that the authorities indicated that the Court should identify the competing proposals and weigh them against each other to reach a discretionary decision that is in the best interests of the child, in accordance with the obligation in s65E of the Family Law Act 1975 (Cth), having regard to ss68F and 60B. He said that matters going to the question of a proposed relocation were also open to be considered under paragraph (l) of sub-section 68F(2), presumably to the extent that the matters were not already covered by the other paragraphs in that sub-section.

41. Mr Johnston referred to the High Court’s decision in AMS v AIF;AIF v AMS (supra) as authority for the impermissibility of imposing a requirement that the parent seeking to relocate the child show “compelling reasons” for such a move. The error of such a requirement has been reiterated by the Full Court’s decisions in Paskandy v Paskandy (supra) and Martin v Matruglio (supra).

42. Mr Johnston initially suggested that in the weighing process there is an onus upon the parent seeking to relocate the child to show that the move would benefit the child. He did not, however, press this additional requirement but said that there is no advantage to a party that occupies the position of what he termed the “unchallenged custodian.”

43. Mr van Aalst, counsel for the father, submitted that there is a preliminary step in the process outlined by Mr Johnston. He said that the Court should first make an assessment as to whether the application is bona fide and said that the approach to the question of bona fides set out in Holmes and Holmes (1988) FLC ¶91-918 should be applied. In this regard, it is apposite that the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 said at paragraph 9.63:

“It is important for the court to consider whether the reasons to relocate are genuine, whether they are optional or whether they are seen as important or essential for the orderly life of that parent. The three-tiered test in relation to this referred to in Holmes above, remains a valid guide to these aspects.”

44. Mr van Aalst pointed out that where the application is to relocate the child to an overseas jurisdiction, this brings about the serious consequence that the child is no longer subject to the Court’s jurisdiction. He observed that in such overseas relocation cases, s92 of the Constitution was not applicable. Mr van Aalst further submitted that where it is found on the whole of the evidence that an application lacks bona fides, the process of weighing the proposals need not be undertaken.

45. We further understood Mr van Aalst to maintain the proposition that the parent seeking to relocate has to satisfy the Court that the “proposed new arrangement is for the welfare or best interests of the child” (per Kirby J in AMS v AIF;AIF v AMS (supra) at paragraph 148).

46. Otherwise, Mr van Aalst was in agreement with the approach described by Mr Johnston.

DID THE TRIAL JUDGE ERR IN HIS APPROACH?

47. Mr Johnston’s core submission was that the trial Judge had erred because he decided that the allegations against the father were unfounded and that contact should be re-established, but had failed to canvass and weigh the three proposals as outlined in paragraph 14 above that were properly before him.

48. Referring to the reasons for judgment of Kirby J in AMS v AIF;AIF v AMS (supra) (at paragraph 143), and his Honour’s remark there that “no single factor is dispositive of decisions governing the residence of a child in a context of a proposed relocation of the parent with whom the child resides”, Mr Johnston rejected the suggestion that it is appropriate to determine the question of contact first. He said that, in any event, the orders for contact were unrealistic in the circumstances of the case.

49. Mr Johnston pointed to the fact that his Honour only made reference to s68F(2) at one point in his judgment (paragraph 129) and had not identified the paragraphs that were relevant to the exercise of his discretion. He examined the s68F(2) paragraphs and highlighted the trial Judge’s lack of consideration of the evidence and different possible outcomes for the child under each proposal as they pertain to certain of those paragraphs.

50. Mr van Aalst accepted that the trial Judge had not traversed each of the relevant s68F(2) factors, that he had taken a fairly general approach and that he had placed emphasis on the unsubstantiated nature of the mother’s allegations of the father’s impropriety. He said, however, that Moss J had alluded to those factors he saw to be of relevance and that the judgment was not vitiated by his Honour’s failure to itemise the relevant s68F(2) factors.

51. Mr van Aalst submitted that his Honour was entitled to be concerned about the failure of the mother to adduce evidence to support the bona fide nature of her application. He drew attention to the fact that there was no evidence to support the mother’s factual foundations as to her case for relocation.

CONCLUSIONS AS TO THE CORRECT APPROACH TO PARENTING CASES INVOLVING A RELOCATION PROPOSAL

52. The High Court’s decision in AMS v AIF;AIF v AMS (supra) is the leading authority for the determination of parenting cases where the proposal of one of the parties seeks to relocate the residence of a child.

53. In four separate judgments (Gleeson CJ, McHugh and Gummow JJ; Gaudron J; Kirby J; and Hayne J; Callinan J dissenting), a majority of the High Court determined inter alia that the Family Court of Western Australia had erred in its approach to the competing applications of a mother and a father for guardianship and custody (as it was termed under the Family Court Act1975 (WA)) in which the mother inter alia proposed to take the child with her from Perth to reside in the Northern Territory.

54. Two features of the case should be noted at the outset. First, it seems to us that that there was a narrow ratio decidendi to the relocation aspect of the case and there are matters in each judgment on which there is no express agreement by other members of the High Court bench, such as to form a clear majority view. The subsequent Full Court judgments of Paskandy v Paskandy (supra) and Martin v Matruglio (supra), which were considered by counsel, have, however, adopted certain obiter dicta to which regard must be had. Since the hearing of the appeal, a further Full Court judgment has been published, (SMG and RAM (2000) FLC ¶93-020) and we have also examined the approach taken therein.

55. We note the remarks of Finn J in Martin v Matruglio (supra) where her Honour in a separate judgment observed at paragraph 136 that:

“other issues which arise from that decision [AMS v AIF;AIF v AMS], such as the exact status of earlier authorities (such as B and B), are less than clear and were not the subject of full argument in the present case”.

56. In the instant case, we consider that the combination of argument before us and the reasoning of the Full Court cases to which we have referred, enables us to make certain comments on these matters which are similarly applicable to proposals involving relocation within Australia and proposals involving relocation overseas. We appreciate that "relocation cases are but a particular example of proceedings under Part VII" (B and B: Family Law Reform Act 1995, supra, at paragraph 9.61), however we leave to another occasion after hearing direct argument how the principles applied herein are to be applied to other proceedings for parenting orders in which the best interests of the child is the paramount consideration. We note in this regard that the meaning of a "parenting order" as defined by ss64B includes in paragraph 2(c) "maintenance of a child", however, by the operation of s65B, the paramountcy principle contained in s65E within Division 6 of Part VII of the Family Law Act1975 (Cth) does not apply to "parenting orders to the extent that they consist of child maintenance orders".

57. In setting out our approach to relocation cases, we have specified what we view to be binding authority on this Court as a result of the judgments in AMS v AIF;AIF v AMS (supra). We have then identified relevant obiter from that case and we have also considered Full Court decisions from which this Court may depart, subject to the principles stated in Nguyen v Nguyen (1989-90) CLR 245 at 268-270 by Dawson, Toohey and McHugh JJ (with whom Brennan J as he then was and Deane J relevantly agreed).

58. In Ivanovic v Ivanovic (1996) FLC ¶92-688 at 83,157, the Full Court said:

"We accordingly think that for the reasons stated in Nguyen's case the Full Court of this Court should depart from a previous decision that it is satisfied is wrong. However, we think that this is also a power to be exercised sparingly. In the joint judgment in Nguyen's case their Honours said at p 269:
``Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and predictability of the law: see Queensland v The Commonwealth (1977) 139 CLR 585 at pp 620 and seq per Aickin J.''

In Farnell and Farnell (1996) FLC ¶92-681, Fogarty J in the Full Court reconsidered dicta in Lee Steere and Lee Steere (1985) FLC ¶91-626 and Bates and Bates (1985) FLC ¶91-627 to the extent that the cases related to a party's inclusion of legal costs as a liability for the purposes of calculating the parties' net property. He concluded they should be treated as over-ruled in this regard and turned to consider issues apposite to the present appeal.
``That being so, the question arises as to the appropriateness of this Court overruling a prior decision. This issue was extensively discussed by the High Court in Nguyen and Nguyen (1989-90) 169 CLR 245, esp. at 268-9. The Court pointed out that the extent to which an intermediate Court of Appeal "regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself". In my view, there is no doubt that the Full Court of this Court may in an appropriate case overrule a previous decision. Having regard to the nature of the jurisdiction, it would be undesirable if that were not the case. As early in the Court's history as Nowland and Nowland (1977) FLC ¶90-236 Asche J at 76,276 considered that the Court should be "allowed at least for the present, the occasional locus poenitentiae" and there have been occasions since that time when the Court has done so. Nevertheless, as the High Court pointed out in Nguyen's case, departure from an earlier decision by the intermediate Court of Appeal should be done "cautiously and only when compelled to the conclusion that the earlier decision is wrong" and where it posed "no real threat to the doctrine of precedent and the predictability of the law". Where the previous decision relates to a matter of practice which has been uniformly acted upon in the intervening period so as to develop expectations that that will continue to be the case, it may be unsettling to do so.''(at p. 19, emphasis added).

In that case, Kay J said that he concurred with Fogarty J's conclusion that Lee Steere's case "should no longer be regarded as representing the law on this issue" and the third member of the Bench, Hilton J said he was in agreement with the orders. We agree with Fogarty J's comments, and consider that it represents the proper approach of this Court."

59. We have sought to highlight hereafter the key considerations as we see them by marking those matters in bold type as bullet points.

60. Secondly, it should be noted that the proceedings in AMS v AIF;AIF v AMS (supra) concerned orders made on 24 April 1996 pursuant to the Family Court Act 1975 (WA) not the Family Law Act 1975 (Cth), as the child’s parents had never married. At that date neither the Western Australian nor Commonwealth law had been amended to introduce the provisions that now appear as ss60B, 65E and 68F in the Family Law Act1975 (Cth) as amended by the Family Law Reform Act 1995 (Cth), and their counterparts, respectively, ss 66, 90 and 166 in the Family Court Act 1997 (WA).

61. The amendments introduced by the Family Law Reform Act 1995 (Cth) commenced on 11 June 1996. The Family Court Act 1997 (WA) commenced on 26 September 1998, with s 246 of that Act effecting repeal of the Family Court Act 1975 (WA)

62. In this light, and given that the case was relevantly disposed of on the narrow basis that it was erroneous to require "compelling grounds" to relocate the child, it is understandable that the High Court made little comment on the interaction of the provisions we have cited in the previous paragraph. We note, however, that no critical reference was made by Gaudron, Kirby and Hayne JJ in AMS v AIF;AIF v AMS (supra) to the reasoning of the Full Court in B and B: Family Law Reform Act 1995 (supra).

63. Indeed, it seems to us that Gaudron J at paragraph 95 and Kirby J in his Honour's identification of the general principles to be applied in parenting cases where the proposal of one of the parties involves relocation (at paras 141 - 146), referred approvingly to B and B: Family Law Reform Act 1995 (supra) in making their obiter statements. They did not, however, remark directly on Full Court's approach to the interaction of ss60B, 65E and 68F of the Family Law Act1975 (Cth). With these contextual matters in mind, we turn to consider the principal authorities.

THE BINDING AUTHORITY OF AMS v AIF;AIF v AMS

64. In our view, the following binding principles of law were established by a majority of the High Court in AMS v AIF;AIF v AMS (supra):

In determining a parenting case that involves a proposal to relocate the residence of a child, the welfare or best interests of the child as the case may be under the relevant legislation, remains the paramount consideration but it is not the sole consideration.

In determining a parenting case that involves a proposal to relocate the residence of a child, a court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence “contrary to the proposition that the welfare of the child would be better promoted by” maintenance of the existing circumstances: (per Gleeson CJ, McHugh and Gummow JJ at paragraph 47; Gaudron J at paragraph 92; Kirby J at paragraph 195; Hayne J at paragraph 209).

OTHER RELEVANT DICTA

65. In determining the best interests of a child in parenting cases where the proposal of one of the parties involves relocation, Gaudron J at paragraph 95, Kirby J at 194 and Hayne J at paragraph 218 in AMS v AIF;AIF v AMS (supra) particularly identified the following obligation:

In determining a parenting case that involves a proposal to relocate the residence of a child, it is necessary for a court to evaluate each of the proposals advanced by the parties.

66. The Full Court in Paskandy v Paskandy (supra) and in SMG and RAM (supra) expressly adopted this starting point (see in respect of parenting cases generally, Bartlett and Bartlett (1994) FLC ¶ 92-455). As pointed out in Paskandy v Paskandy (supra), the initial step is to identify the competing proposals of the parties. The remarks of Gaudron J at paragraph 92, Kirby J at 196, and Hayne J at paras 217- 219 in AMS v AIF;AIF v AMS (supra) provide further guidance as to how the proposals should be characterised and we agree with the following formulation expressed in Paskandy v Paskandy (supra) at paragraph 46:

In determining a parenting case that involves a proposal to relocate the residence of a child, a court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'.

67. In this regard we are attracted to the manner in which Hayne J described the proper nature of the enquiry at paras 217 – 219.

68. From our reading of the majority judgment in Martin v Matruglio (supra) we think that their Honours’ approach is not consistent with the formulation that is found in Hayne J’s judgment in AMS v AIF;AIF v AMS (supra) and paragraph 46 of Paskandy v Paskandy (supra). At paragraph 90 of Martin v Matruglio (supra), Kay and Dessau JJ (Finn J silent on the issue) remarked as follows:

“90. The issue of where children should live, whilst intimately interwoven with the issue of which parent they should reside with, may in appropriate circumstances still be dealt with as a discrete specific issues order under the provisions of ss 64B and 65D of the Family Law Act. There was no competing residence issue before his Honour. The wife remained the unchallenged residence parent albeit that the husband volunteered at one point in his evidence that if necessary the boys could come and live with him if the wife chose to move away from Canberra without them. That was not a scenario which was being presented to the trial Judge.” (emphasis added)

69. If their Honours were suggesting that such an approach obviates the need to identify and evaluate the competing proposals before a court, we respectfully disagree. If their Honours were only referring to the statutory basis on which orders may be sought from or made by a court, it would be a question of what is appropriate to a particular case.

70. In any event, we do not consider that that the first sentence of paragraph 90 of Martin v Matruglio (supra) represents general guidance, even in a case where it is common ground that the parent proposing the relocation of the child should be the residence parent and it is only the issue of relocation that is in dispute. In our view, it remains the duty of a court to undertake the systematic examination of all the proposals before it in the manner we have set out in these reasons.

71. Hayne J’s treatment of the issue to be determined by a Court highlights that:

In determining a parenting case that involves a proposal to relocate the residence of a child, the evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.

72. To this end, we agree with the Full Court in Paskandy v Paskandy (supra) at paragraph 52 and would express the guiding proposition thus:

In determining a parenting case that involves a proposal to relocate the residence of a child and which proposal best promotes the best interests of the child, it is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the court must consider the various matters set out in (a) – (l) of that subsection.

73. In setting out this expectation, the Full Court in Paskandy v Paskandy (supra) referred to its previous decision Smith and Smith (1994) FLC ¶92-488. Smith and Smith concerned proceedings in respect of what may now be termed parenting matters generally in which the best interests of the child is the paramount consideration. We respectfully agree that the following remarks from Smith and Smith (supra) at 81,084 remain good law:

"…the preferable approach to be adopted is to consider each of the matters referred to in the section separately and having regard to the evidence touching upon each of those matters make findings in relation to them. In the course of this exercise, the trial judge should consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all of those matters, a trial judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out."

74. We would take this opportunity to reiterate the desirability of the disciplined approach which is achieved by application of the above dicta in Smith and Smith (supra) and also paras 9.51 - 9.55 of B and B: Family Law Reform Act 1995 (supra). In our view, the use of a structured series of analytical steps is an aid to the decision-making transparency and minimises the risks of a court falling into appellable error of the kind discussed in AMS v AIF;AIF v AMS (supra). In weighing the advantages and disadvantages of the proposal, we agree with the recent observations made by a differently constituted Full Court in Findlay and Boniface [2000] FamCA 676 (unreported). In dismissing a ground of appeal that challenged the adequacy and clarity of the steps taken by a trial Judge in reaching her decision in a parenting order case, the Full Court said at paragraph 109:

"Her Honour’s obligation was not to laboriously and exhaustively set out each and every advantage and disadvantage which she saw in each proposal put forward by the parties for the residence of/contact with their child. Her obligation was to deduce, from the evidence, and from her assessment of the parties and their witnesses, the essence of their competing proposals, and to decide, having considered the relevant matters referred to in s 68F(2) of the Act, which of those proposals would be more likely to advance the child’s best interests, which she was required to regard as the paramount consideration. Her further obligation was to give adequate reasons to enable the parties, and any appellate court called upon to review her decision, to understand how she arrived at her decision and to demonstrate that in arriving at it she did indeed regard the child’s best interests as paramount and did consider the relevant matters arising under s 68F(2)."

75. Given that the preponderance of cases involving a relocation proposal will raise issues as to contact to which s60B(2) is relevant, we would also highlight and respectfully adopt the following statement by Kirby J in AMS v AIF;AIF v AMS (supra) at paragraph 146 as being of particular guidance to courts at first instance:

"… whilst legislative reform sometimes reflecting international law, has laid increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one." (emphasis addedd, footnotes omitted).

76. In respect of all paragraphs of s60B(2), and also s68F(2), we would also underline his Honour's view at paragraph 143, with which we agree in the Australian context, that: "unless legislation provides, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides." (footnotes omitted).

77. While regard is to be had to the object and principles set out in s60B, "[t]he wording of s68F(2) makes clear that the court must consider the various matters set out in (a) - (l) of that subsection" (Paskandy v Paskandy (supra) at paragraph 52, emphasis in the original). There is no similar mandatory direction within the terms of s60B.

78. With this in mind, and in light of some years of experience with the legislation as amended by the Family Law Reform Act 1995, one passage from B and B: Family Law Reform Act 1995 (supra) warrants mention. In paragraph 9.58, the Full Court suggested:

"9.58 As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s 65E as the paramount consideration, and then identify and go through each of the paragraphs in s 68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s 60B which appear relevant or which may guide that exercise. The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child's best interests." (emphasis added)

79. We detect that the emphasised portion of this passage is not entirely consistent with the highlighted sentences of paragraph 9.54 of the same judgment:

"9.54 Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the court is to apply in proceedings under Pt VII. The section is subject to s.65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in subs (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in subs (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the court’s consideration of the matters in s.68F(2) and to the overall requirement of s.65E. The matters in s.68F(2) are to be considered in the context of the matters in s.60B which are relevant in that case. But s.65E defines the essential issue." (emphasis added).

80. It needs to be borne in mind that the decision in B and B: Family Law Reform Act 1995 (supra) was delivered a little less than 13 months after the commencement of the amendments introduced by the Family Law Reform Act 1995 on 11 June 1996. With the benefit of further experience in the practicalities of applying ss60B, 65E and 68F we think that the highlighted suggestion in paragraph 9.58 is of no benefit and, to the contrary, prone to displace the statutory emphasis on s68F(2).

81. In light of the internal inconsistency as to judicial practice we have identified between paras 9.54 and 9.58 of B and B: Family Law Reform Act 1995 (supra), and the High Court authority of Nguyen v Nguyen (supra) as discussed in Ivanovic v Ivanovic (supra), we would adopt as correct, the description of the proper approach contained in paragraph 9.54:

In determining a parenting case that involves a proposal to relocate the residence of a child, the object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.

82. Taking these matters together we would suggest that the following practical steps should be followed by a court:

In determining a parenting case that involves a proposal to relocate the residence of a child it is to be expected that reasons for decision will display three stages of analysis and will:
1.   identify the relevant competing proposals;
2.   for each relevant s68F(2) factor, set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;
3.   on the basis of the prior steps of analysis, determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.

83. While the first stage of analysis speaks for itself, it is necessary to elaborate further as to the second and third stages in this process.

THE SECOND STAGE OF THE PROCESS

84. As to the second step, we would refer to the established guidance provided in paras 9.61 – 9.69 of B and B: Family Law Reform Act 1995 (supra) wherein their Honours inter alia set out the matters that a court should consider when faced with a relocation proposal. Those matters correlate with the factors covered by the paragraphs of s68F(2) and we would therefore expect that evidence and submissions concerning them can and should usually be incorporated into the second step of the process.

85. The remarks in B and B: Family Law Reform Act 1995 (supra) regarding the “reasons” or “bona fides” of relocating the child require some reconsideration in light of AMS v AIF;AIF v AMS (supra). It is beyond doubt that the party advancing the relocation proposal is not required to demonstrate “compelling reasons” (save perhaps for where the new location is found to present dangers to the child – Kirby J at paragraph 192). That leaves, however, the question of how a court should take account of the reasons or “bona fides” of the party seeking the relocation in other circumstances.

86. Kirby J touched on the issue at paras 188 and 189 of AMS v AIF;AIF v AMS (supra). He there cautioned that consideration of the bona fides of the parent proposing relocation "may divert attention from the child's welfare, to the competing needs and demands of the parents in conflict". Referring to the Full Court decision of Holmes and Holmes (supra) at 76,663 and its treatment of the matter of bona fides, his Honour said he was "unpersuaded that it is relevant of itself". A similar view is to be found in Paskandy v Paskandy (supra) (see paras 63-64) and in SMG and RAM (supra) at paragraph 64.

87. We think it appropriate to recall that paragraph (l) of s68F(2) affords consideration of “any other fact or circumstance that the court thinks is relevant”. Consistent with the purpose of the subsection, we would read this sentence as “any other fact or circumstance that the court thinks is relevant in determining what is in the child's best interests”. This reading accords with what the Full Court in K v Z (1997) FLC ¶92-783 said of s68F(2)(l) at paragraph 7.9:

"7.9 In every case concerning the best interests of children it is essential that the trial Judge remain focussed entirely on the primary directive of the legislation which is "what is best for the child the subject matter of the litigation?" S 68F(2) specifies matters that the Judge must consider. The list is only exhaustive in the sense that it contains a catch-all clause in sub-clause (1). Some most significant factors which are not spelt out specifically in s 68F(2) include the child's happiness and contentment. If both parents offer reasonable homes for a child with comparable standards of excellent child care, then the child's level of contentment and happiness in one household as compared with that in the other must become a most significant, and almost determinate factor in deciding with which parent the child should live. The Court should avoid the spectre of placing or leaving a child in a situation of sadness and continued unhappiness where it is able to so do consistently with otherwise meeting the "best interests" criteria."

88. It therefore seems to us that the appropriate point at which to consider disputed facts and arguments as to the reasons for the proposed relocation lies in s68F(2)(l) if such matters have not been advanced as relevant to another paragraph of s68F(2) or seen by the Court as such. In light of AMS v AIF;AIF v AMS (supra) it is also our view that the reasons for the proposed relocation should only feature in the trial and in the judgment to the extent of their impact, if any, upon the child’s best interests.

89. We would therefore hold as follows:

As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.

90. In other cases, it may be that evidence and submissions are presented which go to the general principles suggested by Kirby J in AMS v AIF;AIF v AMS (supra) at paras 142 – 149 rather than one of the specific paragraphs on s68F(2) or that the case involves an alleged “proposal to take a child to a place where it would be exposed to risks and dangers...” (Kirby J at paragraph 192). Again, to minimise the risk of distraction from the Court’s task, we would expect the evidence and submissions on such matters to be evident within the discussion of one or perhaps more of the s68F(2) factors in the second step of analysis.

91. We think our approach to such aspects of a case is consistent with Kirby J’s view (at paragraph 143) that “no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides” and the statement by the Full Court in Paskandy v Paskandy (supra) (at paragraph 65) that “[a] trial Judge must determine the relevant issues, give each factor appropriate weight, and no single factor should determine the issue.”

92. The majority judgment in Martin v Matruglio (supra) at paragraph 64 would also seem to treat such matters in this way. Kay and Dessau JJ did, however, also question whether paragraph 9.65 of B and B: Family Law Reform Act 1995 (supra) should be viewed as to some extent "an overstatement" following AMS v AIF;AIF v AMS (supra). In our opinion, paragraph 9.65 conforms with the manner in which Kirby J expressed the relationship between a party's right to freedom of movement and the best interests of the child as the paramount consideration. His Honour said in AMS v AIF;AIF v AMS (supra) at paragraph 191:

"…to impose upon a custodial (or residence) parent the obligation to demonstrate "compelling reasons" to justify relocation of that parent's residence, with consequent relocation of the residence of the child, is not warranted either by the statutory instructions to regard as paramount the welfare of the child or by the practicalities affecting parents. Parents enjoy as much freedom as is compatible with their obligations with regard to the child." (footnote omitted).

93. This reinforces, in our view, the following statement of guidance from paragraph 9.65 of B and B: Family Law Reform Act 1995 (supra) for cases in which relocation of the child's residence is one of the proposals before a court:

In determining a parenting case that involves a proposal to relocate the residence of a child, the ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.

94. The final matter we would address is the significance to be attached to the fact that the proposed relocation is to an overseas destination. In this regard, we would draw attention to paragraph 147 of Kirby J's judgment in AMS v AIF;AIF v AMS (supra) in which his Honour said (emphasis added):

"… in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community. …" (footnote omitted)

95. We respectfully agree with the approach suggested by his Honour, adding only that the opportunities for contact will be a question of fact in the particular case. We would also highlight Kirby J's further statement as a key consideration:

"Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent."

THE THIRD STAGE OF THE PROCESS

96. We now turn to the final stage of the three step process we have discussed - determining and explaining why one of the competing proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration. We consider that:

In determining a parenting case that involves a proposal to relocate the residence of a child, the process of evaluating the proposals must have regard to the following issues:
a)None of the parties bears an onus;
b)The importance of a party's right to freedom of movement; and
c)Matters of weight should be explained.

a) Onus

97. We have already made clear the binding authority which prohibits a court from requiring the party proposing the relocation of a child to show "compelling reasons" for such a move. Reference has also been made to SMG and RAM (supra) where it was held that the trial Judge in the circumstances of the case misdirected himself by placing an onus on the father to show why the children should not relocate with their mother. On this issue of onus, we are reminded of the Full Court’s decision in Burton and Burton (1979) FLC ¶90-622 which concerned a case where a change in custody (as it then was) of a child was in issue. We agree that the view taken there as to "onus" is equally applicable to cases where the parent with responsibility for the residence of the child proposes to relocate with the child. The Full Court in Burton and Burton (supra) said at 78,218:

"Whatever may be sought to be read into the joint judgment of Murray and Lusink JJ in Hayman and Hayman, we are of the view that no legal onus rests upon a party with whom a child is residing to show that a change would be detrimental to the child and no legal onus rests upon a party seeking a change to justify the change either by establishing that a change would be positively advantageous to the child in any other way. An existing status quo is but one factor to be weighed with all other relevant factors in determining a particular case. When weighing that factor, the quality of the status quo would require examination and if a long standing status quo is disturbed, the factors which influenced the Court to come to that conclusion should be clearly identified."

98. We are conscious that this position might be thought to differ from the following highlighted comment made by Kirby J in AMS v AIF;AIF v AMS (supra) at paragraph 148:

“148. Seventhly, just as, depending upon the legislation, conditions may be placed upon a custodial (or residence) parent as to where the child may reside according to its best interests, when it is proposed that residence arrangements change, the very fact of disturbing them (particularly if likely in practice to alter access to, and contact with, the other parent) will present a consideration that must be taken into account in judging whether new arrangements should be approved. If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child. Because the child's access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times.” (emphasis added, footnotes omitted).

99. We have examined the Full Court decisions of Skeates-Udy and Skeates (1995) FLC ¶92-626 and I and I (1995) FLC ¶92-604 to which Kirby J refers by way of footnotes in the above paragraph. In light of their contents, we understand Kirby J to say no more in the above passage than that a party proposing to relocate the residence of a child must present his or her case with a focus on the impact such a move will have on the best interests of the child. We are fortified in this view by paragraph 146 of his Honour's judgment wherein he expresses a preference for the majority reasoning in Gordon v Goertz (1996) 134 DLR (4th) 321, a decision of the Supreme Court of Canada which rejected the adoption of a presumption or onus in cases involving a relocation proposal. The Full Court in B and B: Family Law Reform Act 1995 (supra) at paragraph 9.59 expressed a similar preference.

If, however, Kirby J was suggesting that there is an onus on the party proposing relocation, we respectfully disagree with his Honour and would not adopt his view as to there being an onus on the parent proposing the relocation. Having regard to the cases cited by Kirby J in paragraph 148, it should be noted that the analysis of the majority in Skeates-Udy and Skeates (supra) (Kay and Hase JJ) applied the now discredited "compelling reasons" approach in finding the appeal dismissed (see 82,295).

For these reasons, and consistent with Burton and Burton (supra) and B and B: Family Law Reform Act 1995 (supra) we prefer the “no onus” position; that:

In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus of establishing that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.

b) The importance of a party's right to freedom of movement

At the evaluative stage in the process, we would underline the significant weight that must be attached to the right to freedom of movement subject, however, to the best interests of the child or children concerned. It is also clear from AMS v AIF;AIF v AMS (supra) that:

In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s92 of the Constitution.

In contemplating the options as they bear upon the child's best interests, a court should bear in mind that proceedings with respect to what are now termed "parenting orders" other than child maintenance orders are not strictly adversarial (M and M (1998) 166 CLR 69). Consistent with this longstanding appreciation, it is also pertinent to recall Kirby J's suggestion at paragraph 192, that the decision-maker's attention should ordinarily turn "to the possibility of formulating different arrangements for access and contact which would meet the child's welfare."

This suggestion was adopted by the Full Court in Paskandy v Paskandy (supra) and we would adopt what their Honours said there in paragraph 57:

In determining a parenting case that involves a proposal to relocate the residence of a child and "[i]n deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents."

c) Matters of weight should be explained

In AMS v AIF;AIF v AMS (supra), Kirby J stated at paragraph 143

"The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.” (footnote omitted).

It follows from this understanding, the process we have outlined above, and the jurisprudence that has developed on the requirement to provide reasons that:

· In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.

It also follows from the remarks of Kirby J at paragraph 143 which are mirrored by the Full Court in Paskandy v Paskandy (supra) at paragraph 65 that:

In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.

SUMMARY

It is convenient to bring together in a summary form the most significant points we have made above. Courts of first instance faced with cases involving a proposal to relocate the residence of a child should adopt the following guidance and should be able to expect that cases are presented in a way which addresses the following matters to the extent that they arise:

In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:

The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.

A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:

It is necessary for a court to evaluate each of the proposals advanced by the parties.

A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'."

The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.

It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.
The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.

It is to be expected that reasons for decision will display three stages of analysis and:

1. A court will identify the relevant competing proposals;

2. For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;
·As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.
·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.
·Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.

3. On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.
·The process of evaluating the proposals must have regard to the following issues:
a)None of the parties bears an onus:
·In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child. That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.

b) The importance of a party's right to freedom of movement:
·In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s92 of the Constitution, where applicable.
·In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity. If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.

c) Matters of weight should be explained:
·In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.
·In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.

FINDINGS AS TO THE APPEAL

Turning now to the appeal which is before us, we bear in mind Kirby J’s remarks at paragraph 150 of AMS v AIF and AIF v AMS (supra) that:

"an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial". (footnotes omitted).

For the reasons which follow, we are satisfied that his Honour erred as a matter of law in his treatment of this parenting case in which the proposal of one of the parties involved relocation. In our view, Ground 6 of the Notice of the Appeal contending that his Honour did not properly exercise his discretion is made out and the appeal must be allowed (see paragraph 36 above). As it is common ground, and we agree, that the matter should be remitted for retrial, we have deliberately refrained from expressing any view as to the findings of fact made by Moss J.

a) Failure to Evaluate the Three Proposals

We consider that the primary error of the trial Judge lay in his failure to carry out the required process of evaluating each of the three proposals before him in a manner consistent with the authority we have discussed and sought to further clarify.

To the extent that Moss J was said by counsel for the father to have had regard to each of the options before him, we consider that he fell into error by treating the issue of the father’s contact with the child as effectively decisive of the proceedings. His Honour placed such emphasis on the importance of recommencing contact and the findings about the mother which informed his view, that he was, with respect, distracted from the task he was required to perform. He did not compare how the other proposals before him would or would not be in the best interests of the child having regard to the whole of the evidence and submissions relating to the many other relevant factors of s68F(2) and to s60B that he was obliged to consider and weigh in the balance.

This was not simply a case of whether the child and the father should or should not have contact in Sydney where the child has been residing with the mother. The mother was presenting the further proposal of relocation to Portugal which would fundamentally alter the life circumstances of the child. Evidence was led and submissions were made which fell to be analysed with reference to s68F(2) having regard to s60B and the mother was entitled to have the advantages and disadvantages of the proposed relocation for the best interests of the child systematically evaluated in tandem with the alternative proposals. So too was the child.

The proceedings turned instead towards undue forensic scrutiny of why the child and the father had not enjoyed contact and the associated allegations at the expense of carrying out the proper judicial task of carefully assessing which proposal would, all proper material considered, be in the child’s best interests.

b) Inadequate Consideration of Section 60B and 68F(2) Matters

We agree with Mr Johnson that the trial Judge's treatment of the s68F(2) factors was too scant. As noted earlier, reference to the provision appears only once within his Honour's judgment.

Application of the structured approach found in the authorities we have discussed would have directed appropriate attention and explanation as to the findings to be made concerning how the proposals weighed up in respect of s68F(2) factors having regard to s60B. Relevant matters under s68F(2) raised by Mr Johnson which we agree were treated without sufficient analysis include:

the child’s wishes;
the child’s relationship and prospects for contact with C;
whether it would be preferable to make the order least likely to lead to the institution of further proceedings, an important factor we think, in light of the case history and particularly the conflicts that had led to a situation where father-child contact had not been re-established.

While it was open for his Honour to view the question of the child's contact with her father as a significant matter having regard to s60B(2)(c), he was not entitled to deal with the other relevant matters in the cursory fashion we think that he did.

c) Error of Onus

We are also satisfied that Moss J’s approach demonstrated the error of requiring the mother to justify relocation of the child’s residence. When his Honour’s judgment speaks at paragraph 113 of being unable to accept the submission of the Child Representative that “to allow the Applicant to remove the child to reside with the Applicant in Portugal is consistent with the best interests of the child” (emphasis added) it seems an inescapable conclusion that he was imposing an onus on the mother and using the language and concept of “permission” of which the High Court has disapproved.

d) Misapplication of Judicial Notice

Moreover, and while the point was raised but not taken during the appeal, we feel obliged to observe that in paragraph 125, his Honour purported to take judicial notice of “the fact that Portugal is widely regarded as a poor country when compared to countries like Australia.” It was from this premise that Moss J proceeded to explain that, contrary to the expert evidence, he was not satisfied that relocation would have any positive benefits for the mother’s mental health, a matter contended by the mother as going to the child's best interests. In the following paragraph, his Honour then lent weight to his decision to refuse the application for relocation by making reference to the range of benefits that he considered the child would enjoy by continuing to reside in Australia (and on our reading, as compared with Portugal).

It was not open to his Honour to draw upon the doctrine of judicial notice in the way that he did (see the Full Court judgment of X v X [1999] FamCA 2254, not yet reported) although we note that the decision was not available at the time that his Honour gave judgment in this case). It was there held that s144 of the Evidence Act1995 (Cth) provides the only test as to whether resort may be had to judicial notice. Importantly, sub-s 4 provides:
“The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced."

Such opportunity was not provided and we are of the view that his Honour's reliance on judicial notice as a basis for his decision is a significant error, particularly within a judgment that did not compare the relative merits and disadvantages of each of the proposals that were before him.

For all the foregoing reasons we are of the view that the appeal should be allowed. Given the submissions of counsel and our inability to re-exercise the discretion on the material before us, we must remit the matter for rehearing. We agree that the rehearing should be expedited.

COSTS

Both parties sought certificates under the Federal Proceedings (Costs) Act 1981. Having regard to our finding that his Honour erred as a matter of law, and the circumstances relating to the appeal, we consider it is appropriate to accede to those requests in respect of the costs of the appeal.

ORDERS

The orders of the Court are:
1.That the appeal from the orders of the Honourable Justice Moss made on 7 December, 1999 is allowed.
2.That the orders of the Honourable Justice Moss made on 7 December, 1999 are set aside.
3.That the proceedings be remitted for rehearing before a single Judge with such expedition as the List Judge is able to give to the matter.
4.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 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.
5.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 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.

I certify that the preceding 124 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.