ALLEN and KEANE

[2022] FCWA 127

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: ALLEN and KEANE [2022] FCWA 127

CORAM: O'BRIEN J

HEARD: 24 MAY 2022

DELIVERED : 1 JULY 2022

FILE NO/S: [REDACTED]

BETWEEN: MS ALLEN

Appellant

AND

MR KEANE

Respondent

Catchwords:

APPEAL - PARENTING - Where after a trial orders were made for equal shared parental responsibility and for the child to live with the mother for nine nights a fortnight and with the father for five nights - Where the mother's proposal that she have sole parental responsibility and be permitted to relocate with the child to [Country A] was rejected - Where the mother seeks the required leave and to appeal - Where the mother initially seeks a re-exercise of discretion but at the hearing of the appeal concedes that a remitter is appropriate if the appeal is allowed - Discussion of the appropriate test in considering applications for leave to appeal, and the distinction in that regard between interim parenting orders and parenting orders made following a trial - Where leave to appeal is granted - Where the mother seeks to adduce further evidence on appeal but that evidence is contentious and unable to be tested - Where permission to adduce further evidence on appeal is refused - Where none of the grounds of appeal as amended have merit - Appeal dismissed.

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Appellant	:	Ms R Oakeley & Mr P Hannan
Respondent	:	Ms C McKenzie

Solicitors:

Appellant	:	DCH Legal Group
Respondent	:	McKenzie & McKenzie

Case(s) referred to in decision(s):

Allesch v Maunz (2000) 203 CLR 172

AMS v AIF; AIF v AMS (1999) 199 CLR 160

Bondelmonte v Bondelmonte (2017) 259 CLR 662

CDJ v VAJ (No 1) (1998) 197 CLR 172

CDW v LVE (2015) FLC 93-683

Gronow v Gronow (1979) 144 CLR 513

House v The King (1936) 55 CLR 499

Huntingdale Village Pty Ltd (Recs and Mgs Apptd) v Korda [2015] WASCA 101

Jess and Ors & Jess and Ors (2014) FLC 93-620

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564

Jurchenko & Foster (2014) FLC 93-598

L v P [2022] WASCA 40

Lee v Lee (2019) 266 CLR 129

Lovell v Lovell (1950) 81 CLR 513

Mallet v Mallet (1984) 156 CLR 605

Marsden & Winch (2013) FLC 93-560

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Medlow & Medlow (2016) FLC 93-692

Orosz and Sowards [2010] FCWA 99

Pangkala and Todd [2019] FCWA 115

Poisat & Poisat (2014) FLC 93-597

Rice & Asplund (1979) FLC 90-725

Robinson Helicopter Company Inc v McDermott and Ors (2016) 331 ALR 550

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Allen and Keane has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1[In] October 2021, following a four-day trial, a Family Law Magistrate made parenting orders in proceedings between [Ms Allen] ("the mother") and [Mr Keane] ("the father"). The proceedings were brought to determine the parenting arrangements for the only child of the parties, [Child A], born [in] April 2015 ("[Child A]").

2At the time of the trial, Child A lived in a shared care arrangement spending nine nights per fortnight with the mother and five nights per fortnight with the father. The parties lived in [Regional Town B], where they had met. While most aspects of parenting arrangements were in dispute, a central issue was the proposal of the mother that she have sole parental responsibility and that Child A live with her in [Country A]. The father proposed equal shared parental responsibility, that both parties continue living in Regional Town B, and that Child A initially live with him for five nights per fortnight, progressing to six nights per fortnight on reaching the age of seven.

3The magistrate made orders for equal shared parental responsibility, for Child A to live with the mother and for him to spend five nights per fortnight with the father, initially in two blocks, and from the commencement of school in 2023 for consecutive nights. Various orders as to special occasions, communication and specific issues were made. Further orders were made permitting the mother to travel to Country A with Child A for holidays. Self-evidently, the orders did not permit her to relocate as she had proposed.

4The mother seeks to appeal the primary orders. Leave to appeal is required. The mother also seeks to adduce further evidence on the appeal. The application for leave to appeal, and the appeal if leave is granted, are opposed.

Background

5The parties began living together in mid-2012 in Regional Town B. They did not marry. They separated in June 2020.

6The mother was born in Country A in 1977 and lived there until she was 20 or 21 years old. She moved to Regional Town B in 2004. The father was born in [State C] and moved to Regional Town B in 2000. Various members of the wife's family lived in Regional Town B at times, but all returned to live near [City D] [in] Country A. Other members of the mother's family spent time in Regional Town B to assist when Child A was young.

7It was common ground that the mother was primarily responsible for Child A's care, albeit both parties worked at various times.

8The mother suffered at times from anxiety, for which she sought assistance. She acknowledged in the course of seeking that assistance that at times her drinking was problematic. In mid-2017 the parties discussed moving away from Regional Town B, with living in Country A being one of the possibilities canvassed. In mid-2018, the mother sought assistance from a [mental health professional] with a diagnosis of mixed anxiety and depression. On her case, she was becoming increasingly isolated and unhappy.

9In late-July 2018, the parties travelled to Country A, where they purchased a home in [Town E]. They subsequently listed their Regional Town B property for sale in February 2019 but faced difficulties in achieving a sale. They had a further holiday in Country A in September 2019. The relationship continued to deteriorate, and on the mother's case, involved family violence. The parties separated in June 2020. Subsequently, the mother bought a block of land in Regional Town B.

10The mother commenced proceedings [in] October 2020, seeking sole parental responsibility and that Child A live with her in Country A. Various interim orders were made, and [Dr B] was appointed as the Single Expert Witness ("SEW") in the case. That appointment was not only informed by the fact that international relocation was proposed. Child A had experienced behavioural issues and seen counsellors, and the mother continued to suffer from mental health issues and sought assistance from various health practitioners.

11After the informal spend-time arrangement that followed separation broke down, the mother withheld Child A from the father for a period. There was then a period of supervised time. By the time of trial, Child A was spending time with the father as outlined above.

The grounds of appeal and relief initially sought

12By her notice of appeal filed [in] November 2021, the mother asserted:

1.That the magistrate erred in law by "applying principles derived from Dundas & Blake (2013) FLC 93-552 despite her Honour having found that the presumption of shared parental responsibility had been displaced by the existence of family violence" (Ground 1);

2.That the magistrate erred in the exercise of discretion by placing "disproportionate weight" on the benefit to Child A of having a meaningful relationship with both parents without "making sufficient allowance" for the recommendations of the SEW, and the greater availability to Child A of psychiatric and psychological support in City D (Ground 2); and

3.That the magistrate erred in law by treating the benefit of Child A having a meaningful relationship with both parents as necessarily requiring the mother to give up her legitimate desire to return to live in Country A, to the benefit of her own mental health in circumstances where she would have greater family support (Ground 3).

13The mother sought that the court re-exercise discretion and make the orders as to parental responsibility and Child A living with her in Country A, which she had sought at trial.

14Plainly, the mother's appeal challenges a discretionary decision. Appellant intervention accordingly requires the demonstration of error of the kind described in House v The King.[1]

The amended position of the mother on the hearing of the appeal

[1] (1936) 55 CLR 499, 504-505.

15At the hearing, I raised with counsel for the mother the question of whether a re-exercise of discretion was still sought in circumstances where she sought to adduce further evidence on the appeal, the father sought to respond if that was permitted, and the proposed additional evidence of both was necessarily untested. I noted further that the orders proposed by the mother in the event the appeal was successful did not include any orders for Child A to spend time with, or communicate with, the father.

16Counsel appropriately conceded that if the appeal was successful, the matter would necessarily be remitted for rehearing before a judicial officer other than the primary magistrate. She did not pursue the proposition that I should re-exercise the discretion.

17During the course of the hearing, the mother abandoned Ground 1. She sought leave to amend her grounds of appeal, which I granted. The additional ground proposed was in the following terms:

That the magistrate erred in fact by, in effect, finding that the father's response to [Child A]'s mental and physical conditions, and the state of the communication relationship between the parties, was conducive to [Child A]'s best interests in remaining in [Regional Town B] with both parents (for ease of reference, Ground 4).

Leave to appeal

18The parties were not married. The proceedings fall to be determined pursuant to the Family Court Act 1997 (WA) ("the Act").

19The relevant orders are interlocutory in nature and were made by a Family Law Magistrate in the exercise of non-federal jurisdiction; leave to appeal is accordingly required.[2] The requirement for leave in the present case, imposed as it is by statute, must be real and not merely illusory. While it is anomalous that unmarried parents in Western Australia require leave to appeal against a parenting order made by a Family Law Magistrate, while married parents do not, that anomaly cannot inform the consideration of whether or not leave should be granted in a particular case.

[2] Family Court Act 1997 (WA), s 211(1).

20If leave is granted, the appeal must proceed by way of a rehearing, but the Court "may receive as evidence any record of evidence given, including any affidavit filed or exhibit received, in the Magistrates Court",[3] and "may make such decrees as it thinks fit, including a decree affirming, reversing or varying the decree the subject of the appeal".[4]

[3] Family Court Act 1997 (WA), s 211(2)(a).

[4] Ibid, s 211(2)(b).

21For leave to appeal to be granted, the primary test requires that the Court be satisfied that the decision in question is wrong, or at least attended with sufficient doubt to warrant the grant of leave, and that a substantial injustice will result from a refusal of leave to appeal. That test is to be applied in the general run of cases, but in the context of the unfettered discretion to grant leave to appeal. It may give way to the particular interests of justice in appropriate cases.[5]

[5] Medlow & Medlow (2016) FLC 93-692; Jess and Ors & Jess and Ors (2014) FLC 93-620; Huntingdale Village Pty Ltd (Recs and Mgs Apptd) v Korda [2015] WASCA 101.

22The first limb of the primary test is directed to the outcome at first instance, rather than to the path by which that outcome was reached, keeping a firm focus on the real issue - whether there is a realistic prospect of the decision being reversed if the appeal is permitted to proceed. The consideration of the first limb of the test informs the consideration of the second.[6]

[6] Jess and Ors & Jess and Ors (2014) FLC 93-620, [63].

23That said, legislative requirements that leave be granted before a party may appeal against an interlocutory order reflect the policy consideration that court resources "should not lightly be taken up with appeals about decisions in connection with proceedings which do not finally determine the rights of the parties".[7] Authority binding on me establishes that the orders in this case, even though they were made after a trial and characterised as "final", are in fact interlocutory.[8] That is consistent with the fact that the legislation specifically empowers the Court to discharge, vary or suspend all or part of a previous order.[9]

[7] Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564, 583 [42].

[8] CDW v LVE (2015) FLC 93-683.

[9] Family Court Act 1997 (WA), s 89(1).

24Nevertheless, there is a clear distinction between interim parenting orders intended only to operate pending trial, and parenting orders made following a trial. While both are interlocutory, any discharge or variation of orders made following trial (other than in the context of an appeal) can only be pursued by the commencement of fresh proceedings. On the commencement of those proceedings, an applicant for such discharge or variation must address what is commonly referred to as the rule in Rice & Asplund.[10]

[10] Rice & Asplund (1979) FLC 90-725, 78,905.

25That rule is intended to apply to every case in which "final" parenting orders are sought to be discharged or varied subsequently.[11] It recognises the benefits of finality of litigation, while also recognising "that considerations acutely relevant to a child's best interests can change, including, for example, by reference to the child's age and level of maturity".[12] What is required is a consideration of whether a prima facie case of changed circumstances has been established and, if so, whether that case is a change of circumstances sufficient to justify embarking on a full hearing of the new application.[13]

[11] Poisat & Poisat (2014) FLC 93-597, [13].

[12] Ibid, [41].

[13] Marsden & Winch (2013) FLC 93-560, [78].

26The fact that the rule applies in relation to orders made following a trial appropriately informs a consideration of whether leave to appeal against such orders should be granted. That is not inconsistent with the legislative provisions, bearing in mind that the discretion to grant leave is unfettered, and the primary test described will give way to the interests of justice in appropriate cases. It would, in my view, be wrong when considering the question of leave to simply ignore the difference between the future litigation pathways available in the case of interim orders as distinct from orders made following a trial, notwithstanding that both forms of order are interlocutory.

27For reasons that follow, I am not persuaded that the decision of the magistrate was wrong nor that a substantial (as distinct from perceived) injustice to the mother would result from a refusal of leave. Nevertheless, bearing in mind the distinction between interlocutory orders made on an interim basis and those made following a trial and the observations set out above, I conclude that it is in the interests of justice in this particular case to grant leave, allowing the mother's appeal to be determined on its merits.

28Leave to appeal is accordingly granted.

The application to adduce further evidence

29While there is no express provision in the Act to allow the introduction of further evidence on an appeal, the Court clearly has a discretion to do so.

30An appeal by way of rehearing by its nature admits of the possibility of further evidence, not before the Court at first instance, being adduced.[14] It follows that where legislation provides that an appeal is to proceed by way of rehearing, the Court must retain a discretion to admit further evidence on the appeal, whether or not the legislation contains an express provision to that effect.[15]

[14] Allesch v Maunz (2000) 203 CLR 172, 180 [23].

[15] See Orosz and Sowards [2010] FCWA 99; Pangkala and Todd [2019] FCWA 115.

31The discretion to admit further evidence in an appeal by way of rehearing "obviously needs to be exercised with much care in parenting cases".[16] Further evidence which is not in dispute will be readily admitted.[17] Where the evidence is not of matters which have arisen since the primary hearing, the failure to adduce that evidence at the primary hearing may be a relevant factor, although the weight to be attached to that failure will vary depending on all other relevant considerations.[18]

[16] CDJ v VAJ(No 1) (1998) 197 CLR 172, [117].

[17] Ibid, [114].

[18] CDJ v VAJ(No 1) (1998) 197 CLR 172.

32The power to admit further evidence on appeal is remedial in nature. It "exists to facilitate the avoidance of errors which cannot otherwise be remedied by the application of conventional appellate procedures".[19]

[19] Ibid, [109].

33That said, the power to receive further evidence on appeal is not "a solvent for correcting orders that the [appellate court] regards as unsatisfactory but which contain no appealable error".[20] Further evidence will not be admitted where the appellant fails to establish any error in the making of the orders, but simply seeks a new hearing because on the whole of the evidence later available different orders might be made.[21] The availability of further evidence relevant to the issues in the appeal cannot be treated as equivalent to a ground of appeal.[22]

[20] Ibid, [148].

[21] Ibid.

[22] Ibid, [111].

34In the present case, the mother sought to adduce the following additional evidence on the appeal:

(a)her affidavit, sworn on 5 May 2022; and

(b)an affidavit of [Dr C], sworn on 4 May 2022.

35Prior to the hearing of the appeal, and without a formal response to the application of the mother to adduce further evidence, the father lodged for filing two affidavits sworn by him on 19 May 2022 and 23 May 2022. At the hearing, I sought to clarify the father's position. Counsel confirmed that the purpose of filing the affidavits was to demonstrate that the further evidence the mother sought to adduce was contentious, and that accordingly permission to adduce that evidence on the appeal should not be granted. If permission was granted, the father sought to rely on those affidavits in response to those filed by the mother.

36In her affidavit sworn on 5 May 2022, the mother said:

(a)that her evidence and that of Dr C was "evidence of events that have occurred since the trial, and which are relevant to issues in the appeal";

(b)that the evidence was not available prior to or at the time of the trial;

(c)that since trial there had been "numerous episodes" of behaviour by Child A similar to that described in her trial evidence, and extreme in its nature. Detailed examples were then set out, including an incident of this irregulated and aggressive behaviour in the presence of Dr C;

(d)that Dr C had recommended that she consult a clinical child psychologist in [Regional Town F], and contacted Child and Adolescent Mental Health Services ("CAMHS") to assist in arranging for an appointment, which was subsequently scheduled [for] January 2022;

(e)that at that appointment with CAMHS it had been suggested that Child A should be referred to see a paediatrician;

(f)that Child A had sustained minor injuries in the care of the father;

(g)that Child A continued to display highly challenging behaviours when faced with the prospect of spending time with the father;

(h)that there were verbal altercations between her and the father, as a result of which she applied for and obtained an interim Family Violence Restraining Order. The father has opposed the application, and it is listed for hearing in September 2022;

(i)that on a recent holiday to Country A Child A's behaviour had markedly improved;

(j)that her own accommodation arrangements had changed in circumstances detailed in the affidavit; and

(k)that her solicitors had recently made enquiries in Country A as to the availability of clinical psychologists in and around City D.

37In his affidavit sworn on 4 May 2022, Dr C:

(a)said that he had seen Child A on four occasions, most recently [in] January 2022;

(b)described Child A's behaviour at his appointment [in] December 2021 in similar terms to the description by the mother;

(c)outlined the limited availability of psychologists in Regional Town B, and his views as to the relevant experience of the paediatricians at the Regional Town B Hospital;

(d)confirmed his referral of Child A to CAMHS, noting its limited resources and waitlist; and

(e)expressed his understanding that Child A had been referred to a paediatrician in [City G] but was still waiting for an appointment.

38In his responding affidavits, the father:

(a)described his own engagement of Child A with relevant health services, including taking him to a paediatric neurologist in City G in September 2021;

(b)disputed the evidence as to the availability of psychologists in Regional Town B, naming a particular practitioner who he said is available;

(c)disputed the mother's version of incidents between them since the trial;

(d)disputed the extent of Child A's problematic behaviour since trial, saying further that in a very recent parent teacher interview he had been advised by Child A's teacher that he had "a really good start to the year" to the extent that he no longer required the Independent Education Plan initially instigated as a result of his behavioural issues;

(e)expressed his willingness to facilitate Child A seeing relevant specialists in City G if necessary; and

(f)said that in a meeting attended by both parties and Child A at CAMHS [in] May 2022, the psychologist affirmed the importance of his ongoing role with Child A, including engagement in physical activities, and also concluded that it was no longer necessary for Child A to continue to engage with CAMHS and that while they would "finish his development plan in the short term" he could reengage with the service if needed in the future.

39Self-evidently, most of the evidence sought to be adduced by the mother on the appeal is contentious. It cannot be tested in the context of the appeal. The balance is evidence that could have been adduced at trial but was not. No adequate reason for that failure has been advanced. As will be seen, the appellant has not established error in the making of the primary orders.

40For those reasons, I dismiss the application to adduce further evidence on the appeal.

The grounds of appeal

41As earlier noted, Ground 1 was abandoned at the hearing.

Ground 2

42Ground 2 asserts that the magistrate erred in the exercise of discretion by placing "disproportionate weight" on the benefit to Child A of having a meaningful relationship with both parents without "making sufficient allowance" for:

(a)Dr B "not recommending a shared care arrangement if both parents were to live in [Regional Town B]";

(b)Dr B's "reservations about the [father's] response to [Child A's] behaviour"; and

(c)the greater availability to Child A of psychiatric and psychological support in City D as compared with Regional Town B.

43The mother's case at trial was that Child A had a meaningful relationship with both parents, but that his primary attachment was to her. She noted the opinion of Dr B that Child A loves both parents. When asked in cross examination whether it was "necessary" for Child A to have a relationship with the father, she said that it was.

44In his written report, Dr B described the father as "a pleasant but somewhat reserved man who is fairly difficult to engage and who does not show any major mental health issues but a personality style of being emotionally disconnected". He regarded it as "obvious from observation that [Child A] loves both [parents]". That said, he expressed concern about the father's capacity to meet Child A's emotional needs. That was raised in the context of Dr B's significant concerns about Child A's behaviour and emotional well-being, and the apparent inability of the parties to communicate. Dr B also noted that the mother appeared to be feeling "out of control and struggling to manage [Child A's] behaviour".

45If the parties remained in Regional Town B, Dr B recommended that Child A spend five nights per fortnight with the father, in separate blocks of two and three nights. He noted the obvious logistical difficulties if the mother relocated to Country A. He made the following further observation:

"If [Child A] went to [Country A], the child would be in the care of one parent which, in the attachment dynamics, may have some advantages for stabilising him, but in the long-term, it would minimise the father's impact in his life. In my opinion, the father is loving and caring and likely to provide positive experiences and interactions through [Child A]'s life. We know that where children have an active involvement with both parents, the outcomes are generally better for that child than if the other parent is not involved".

46The proposition in the first limb of Ground 2 that Dr B did not recommend "a shared care arrangement" if the parties remained in Regional Town B was not the subject of any elaboration in the mother's written summary of argument, nor in submissions at the hearing. The recommendation actually contained in Dr B's written report is outlined above. In cross examination at trial, he expressed the view that in most cases children suffer adverse outcomes where a parent is "completely removed" from their life. He did note that "one of the downsides of a shared arrangement with [these parties] is that they don't have cooperation", noting an "undertone" of conflict, largely behind the scenes, but sometimes exposed to Child A. Notwithstanding that recognised negative factor, he went on to say that "we still know, even in that case, kids will do better having that connection with both parents. So as I say, take dad right out of his life, is probably the worst outcome for him". He confirmed that his recommendation if both parties remained in Regional Town B would be as outlined in his written report.

47As the magistrate recorded, the mother's own position at trial was that if the parties remained in Regional Town B Child A should spend five nights per fortnight with the father, from Wednesday afternoon until Friday morning, and from 4.00 pm Saturday until the commencement of school on Tuesday in alternate weeks, with a similar arrangement during school holidays at least for 2022.

48Against that background, it is frankly difficult to understand is what is meant by the first limb of Ground 2.

49In support of the second limb, the written submissions on behalf of the mother refer to a specific paragraph of Dr B's report as to the father's incapacity to meet Child A's emotional needs, which the mother argues "should have been a central consideration".

50The paragraph in question needs to be read in context, and the paragraph immediately following it is informative:

84.While I believe that the father is loving towards [Child A], I am concerned about his capacity to meet [Child A]'s emotional needs.

85.The mother appears to be feeling out of control and struggling to manage [Child A]'s behaviour and, as such, is quite desperate.

51Child A's behavioural issues are unquestionably challenging. Both parties have struggled with them. Their recognition of the behaviours and responses to them differ. Their personalities and emotional insight differ. The magistrate clearly recognised all those matters and considered them in the context of all of the evidence informing her decision.

52In relation to the third limb of Ground 2, the mother's written submissions acknowledge that the magistrate "was not taken to specific supports available to the mother in [City D]", while pointing to the evidence as to the lack of available services in Regional Town B. The absence of specific evidence as to the availability of services in City D, in circumstances where that evidence could clearly have been available at trial, fundamentally undermines the mother's argument. The expression by Dr B of his "expectation" that "in a city like [City D]… the facilities will be quicker and more effective, perhaps, than living in [Regional Town B]", coupled with his later statement that he did not know "what's available in [Country A]", and concluding with his observation that "in a modern large city like [City D], you would expect to - to be better than - like there's reasonable services in [Regional Town B], but not a lot" simply reinforce the point.

53The magistrate had to deal with the matter on the evidence presented to her. If, as now contended, it was a central plank of the mother's case that both she and Child A would have better access to psychological services in City D than in Regional Town B, cogent evidence to that effect should have been adduced. It was not.

54In any event, the availability or otherwise of such services was only one part of the factual matrix the magistrate had to consider. Self‑evidently, she had to, and did, consider the potential impact of the proposed relocation on Child A's relationship with the father and the importance of that relationship.

55Appropriately, counsel for the mother acknowledged that Ground 2 was entirely a weight challenge.

56The making of a parenting order involves the exercise of a judicial discretion, by reference to the paramount consideration of the child's best interests and involves the overall assessment of both the statutory considerations and other matters considered by the Court to be relevant.[23] The considerations involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the child's best interests.

[23] Bondelmonte v Bondelmonte (2017) 259 CLR 662, [31]-[32].

57There is no suggestion that the magistrate excluded relevant considerations or admitted irrelevant considerations. A mere difference of view as to weight does not justify appellate intervention. Such intervention is only justified where the "failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court".[24]

[24] Lovell v Lovell (1950) 81 CLR 513 per Latham CJ; see also Mallet v Mallet (1984) 156 CLR 605 per Gibbs CJ; Gronow v Gronow (1979) 144 CLR 513, 519 per Stephen J.

58No such error is demonstrated here. Ground 2 fails.

Ground 3

59Ground 3 asserts that the magistrate erred in law by treating the benefit of Child A having a meaningful relationship with both parents as necessarily requiring the mother to give up her legitimate desire to return to live in Country A, to the benefit of her own mental health in circumstances where she would have greater family support.

60The written submissions on behalf of the mother rightly note that the Act does not require that orders be made to ensure that a child has a meaningful relationship with both parents, but rather requires the Court to consider the benefit to the child of having such a relationship as part of an overall consideration of what outcome is in the child's best interests.[25] That said, the magistrate did not fall into error in that regard. To the contrary, her Honour accurately identified relevant established principles,[26] noted the common position of the parties and Dr B that there is benefit to Child A in having a meaningful relationship with both parents and expressed her concern as to the mother's willingness to promote that relationship. The expression of that concern was open to her Honour and informed by her assessment of the manner in which the parties gave their evidence. I reject the proposition advanced that the concern was not adequately explained or was "speculative and without reference to evidence".

[25] Jurchenko & Foster (2014) FLC 93-598.

[26] McCall & Clark (2009) FLC 93-405 and Mazorski & Albright (2007) 37 Fam LR 518.

61Dr B also expressed the unchallenged view that if relocation was permitted, and time and communication were facilitated, Child A "would still have a relationship with his dad, but it would be a lot weaker than if dad was around". When asked whether the mother would facilitate that relationship, Dr B expressed the view that she did regard the relationship as important but was unable to express a view as to whether she would "uphold the commitments" necessary to support it long-distance.

62The conclusions drawn by her Honour were well open to her.

63Similarly, her Honour accurately identified and applied relevant established principles confirming that the mother did not need to demonstrate compelling reasons to justify relocation.[27] To the extent Ground 3 might be interpreted to suggest otherwise, that suggestion is inaccurate.

[27] AMS v AIF; AIF v AMS (1999) 199 CLR 160.

64The deficiencies in the evidence at trial as to mental health services available to the mother and to Child A in Country A have already been canvassed above. While the evidence at trial established that the mother had underreported her struggles with anxiety to Dr B, it was submitted on her behalf that she regularly attended on the professionals available to her in Regional Town B and sought appropriate support.

65In his evidence at trial, Dr B said that he did not hold "high concerns" about the mother's "mental health being a central issue to this". He agreed with the proposition that her anxiety issues were likely to be alleviated or improved if she was in Country A with family support, while cautioning that those issues would not likely be resolved simply by virtue of the move, given the length of time for which they had been present.

66It is clear that in the required consideration of all relevant matters, the magistrate considered the evidence as to the likelihood of the mother's mental health issues being alleviated by access to additional family support in Country A. No error of law is made out. To the extent ground three may otherwise be construed as a weight challenge, the observations already made in relation to Ground 2 need not be repeated.

67Ground 3 fails.

Ground 4

68Ground 4, added with leave at the hearing, asserts that the magistrate erred in fact by, in effect, finding that the father's response to Child A's mental and physical conditions and the state of the communication relationship between the parties was conducive to Child A's best interests in remaining in Regional Town B with both parents.

69As tacitly acknowledged by the wording of the ground, the magistrate did not make any direct finding of the nature described. Rather, having made findings about the father's response to Child A's issues, and about the communication relationship between the parties, Her Honour concluded on the totality of the evidence that Child A's best interests were served by continuing to spend regular and frequent time with both parents.

70The mother's submissions did not refer with any specificity to findings of fact which she asserted to be made in error. By reference to the general description in Ground 4, potentially relevant findings include:

(a)the finding that while the father had not observed Child A's behaviour to be of the same concern or as frequent as observed by the mother, both parties were so concerned about him that in March 2021 they went together to see CAMHS to discuss his mental health;

(b)the concession by the mother that the father acts appropriately when Child A is physically unwell in his care, including having taken him to hospital;

(c)the concession by the father that he sometimes laughed when Child A did something silly, and sometimes yelled back when Child A yelled at him, and the finding that after a conversation with the mother the father followed her suggestion, modified his behaviour, and assured the mother that it would not be repeated;

(d)the concession by the mother that she raised with the father as a "hypothetical" the possibility that she might leave for Country A without Child A;

(e)the findings that Child A was in the father's care on his first day of school, and that the father made an offer for the mother to come to his home so they could take Child A to school together or alternatively that she might prefer to meet them at school. The mother did not take up that offer, and the father took photographs of Child A going into class, and sent them to the mother;

(f)the finding that the father had agreed to changes in arrangements so the mother could go away on holiday with Child A;

(g)the finding that the parties had communicated about decisions they had made, and provided each other with information about Child A's health;

(h)the more general finding that the parties are able to communicate, albeit there had been difficulties particularly about spend time arrangements; and

(i)the finding that while the father has sometimes had conversations with Child A which are not child focused, he appeared to accept direction when his errors in that regard were explained to him.

71While Dr B observed the father to not identify or respond to some of Child A's behaviours, by the same token he considered it likely that the behaviour was not as extreme when Child A was in the father's care as when he was in the mother's care. He noted the different approaches of the parties to dealing with Child A's behaviour. Consistently with that evidence the magistrate noted the differences in their parenting styles and concluded that Child A benefited from both.

72All of those findings, and the conclusion that the parties were able to communicate albeit not without difficulty, were reasonably open to the magistrate on the evidence. Her Honour's findings were informed not only by the totality of the evidence, but by her Honour's assessment of the credibility and reliability of the witnesses. None of them are glaringly improbable or contrary to compelling inferences, nor demonstrably wrong by reference to his incontrovertible facts or uncontested testimony. There can be no suggestion that Her Honour failed to use, or palpably misused, her advantage as the judicial officer at trial.[28]

[28] Robinson Helicopter Company Inc v McDermottand Ors (2016) 331 ALR 550, [43]; Lee v Lee (2019) 266 CLR 129, [55]; L v P [2022] WASCA 40, 34.

73Ground 4 fails.

Conclusion and orders

74For those reasons, I make the following orders:

1.Leave to appeal is granted.

2.The Form 2 application of the mother, [Ms Allen], filed [in] May 2022 for leave to adduce further evidence on the appeal is dismissed.

3.The Form 20 Notice of Appeal filed by the mother on [in] November 2021 is dismissed.

4.If either party seeks orders for costs, that party must file and serve written submissions within 28 days from today.

5.The respondent to any such application for costs must file and serve any written submissions in response within 28 days thereafter.

6.Each party have liberty to seek a relisting for the making of oral submissions, such request to be made within 14 days after the expiry of the time for the filing of any responsive written submissions pursuant to the immediately preceding order.

7.In the event that no request for a relisting is received pursuant to paragraph 6 of these orders, any costs application stand to be determined by the presiding Judge in chambers, and on the papers, with reasons to be delivered and orders pronounced from chambers without the necessity for any further appearance, and without further notice to the parties.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

GA

Associate to the Judge

1 JULY 2022