Alston and Alston - [2011] FamCAFC 182

FAMILY COURT OF AUSTRALIA

ALSTON & ALSTON

[2011] FamCAFC 182

FAMILY LAW – APPEAL – CHILDREN – PARENTING ORDERS – RELOCATION – where the Federal Magistrate made orders allowing the appellant father to relocate with the children to Adelaide – discretionary decision – no appealable error established – appeal dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
CDJ v VAJ (1998) 197 CLR 172
Jones v Dunkel (1959) 101 CLR 298
MRR v GR (2010) 240 CLR 461
U v U (2002) 211 CLR 238

APPELLANT:

Ms Alston

RESPONDENT:

Mr Alston

FILE NUMBER:

CAC

921

2007

APPEAL NUMBER:

2010

DATE DELIVERED:

8 September 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Canberra

JUDGMENT OF:

Finn, Coleman and Strickland JJ

HEARING DATE:	7 December 2010
DATE OF LAST SUBMISISONS:	1 February 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

24 June 2010

LOWER COURT MNC:

[2010] FMCAfam 637

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Gill

SOLICITOR FOR THE APPELLANT:

Pappas J. - Attorney

COUNSEL FOR THE RESPONDENT:

Mr Macpherson

SOLICITOR FOR THE RESPONDENT:

Dobinson Davey Clifford Simpson

Orders

The appeal against the orders of Federal Magistrate Brewster made on 24 June 2010 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Alston & Alston is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 86 of 2010
File Number: CAC 921 of 2007

Ms Alston

Appellant

And

Mr Alston

Respondent

REASONS FOR JUDGMENT

This is an appeal by Ms Alston, (“the mother”) against parenting orders made by Federal Magistrate Brewster on 24 June 2010 in proceedings between the mother and Mr Alston (“the father”) with respect to the parties’ three children, T born in April 1997, currently aged 14, P born in October 2000, currently aged 10, and S born in May 2002, currently aged 9.
His Honour’s orders provided that the parties have equal shared parental responsibility for the children, and that the children live with the father. The effect of these orders was that the father would be permitted to relocate with the children from Canberra, where both parties lived, to Adelaide.
The movement of the children to Adelaide would significantly change existing arrangements whereby the children lived five days each fortnight with the mother, the remaining nine being with the father. Under the new orders the children would spend time with the mother for the whole of the first and third term holidays, one half of the second term and summer holidays, on the fourth weekend after the commencement of the school term, and on one specified weekend in each school term in Adelaide, with the father to pay for the mother’s flights to Adelaide. Provision was also made for the mother to communicate with the children by telephone and for the mother to receive copies of all school reports.
The appeal is opposed by the father.

Background

The father was born in Australia in 1965 and the mother was born in Europe in 1974.
The parties commenced living together in October 2000 and were married in November 2000. They separated in early 2007.
The child T had been born in April 1997 to the mother while she was in a previous relationship. The father formally adopted T in December 2000 when the child was three years old.
The child P, who had been born in October 2000, was adopted by the parties in Europe in December 2006.
The child S was born in May 2002. He is the biological child of both parties.
On 12 September 2008 Brewster FM published reasons for judgment and made final parenting orders. Those orders provided for the children to live primarily with the father, spending nine nights per fortnight with him, and five nights per fortnight with the mother. His Honour also made an order providing for the parties to have equal shared parental responsibility for the children.
On 16 September 2009 the father filed an Initiating Application seeking orders that the children live with him and that he be permitted to relocate the residence of the children to Adelaide.
The mother filed a Response on 22 October 2009 seeking an order that the children live with her in Canberra.
In January 2010 the father enrolled T at a school in Adelaide without notifying the mother. The father claimed that he had originally enrolled T at the school for one week; however, T had requested to stay and the father had agreed to T remaining at the school and living with a family friend.
On 12 February 2010 the mother filed an Application in a Case seeking that T be returned to Canberra to the school he had previously attended.
On 6 April 2010 the mother’s application came before Brewster FM. His Honour ordered that a Family Consultant, Ms D, compile a wishes report in relation to the child, T. After the wishes report was prepared the application for T’s return was apparently not pursued pending the final hearing. T remained living and going to school in Adelaide.
The final hearing took place before Brewster FM on 17 and 18 June 2010. Final orders were made and judgment delivered on 24 June 2010. As indicated earlier, those orders permitted the father to move the children’s residence to Adelaide.
On 9 July 2010 the mother filed an application seeking a stay of the Federal Magistrate’s orders pending the outcome of the appeal. On 2 August 2010 Federal Magistrate Brewster dismissed the application for a stay. There was no appeal against that order.

The course of the appeal

Written summaries of argument were provided by both parties prior to the hearing of the appeal on 7 December 2010. At the hearing Counsel for the mother appeared and made oral submissions. Due to financial constraints on the father, orders had been made on 27 October 2010 by Finn J making provisions for the father’s solicitor to listen to the appeal hearing by telephone, and excusing the making of oral submissions on behalf of the father, but also providing for the filing of further written submissions if the Court determined they were required at the conclusion of the hearing of the appeal.
At the conclusion of the hearing of the appeal on 7 December 2010 this Court made the following orders:
1.The transcript of the appeal hearing is to be prepared and provided to the parties at the Court’s expense on an urgent basis, and once the transcript is available the Associate to the Honourable Justice Finn will provide a copy of the transcript to the solicitors for both parties in electronic and hardcopy format.
2.The respondent father be at liberty to file at the Eastern Region Appeals Registry in Sydney and serve upon the solicitor for the appellant mother written submissions in response to all matters raised at the hearing today by Counsel for the mother, by no later than 5.00pm on Monday 10 January 2011.
3.The appellant mother be at liberty to file at the Eastern Region Appeals Registry in Sydney and serve upon the solicitor for the respondent father written submission in response to any submissions filed by the respondent father, by no later than 5.00pm on Friday, 22 January 2011. (original emphasis)
By letter to the Appeals Registrar dated 25 January 2011, the solicitor for the respondent father advised that the parties had consented to an extension of time for the filing of the further written submissions, with the respondent father’s submission filed on 21 January 2011 and the appellant mother’s submissions to be filed by 1 February 2011.

Summary of the grounds of appeal

The essence of the complaints on appeal as explained in the written submissions of Counsel for the mother filed prior to the hearing of the appeal were:
1.      The manner of the conduct of the hearing denied the mother procedural fairness. This denial of procedural fairness meant that the determination of the matters was not the result of a proper hearing of the issues (Ground 1).
2.      His Honour made factual findings that were not open to him, either because the evidence did not support them, or because they were not the result of the approach that his Honour indicated he would take to the fact finding, on dispensing with cross-examination of the mother (Ground 2).
3.      His Honour failed to consider the significance of the changes in the expressed views of the children, and the extent to which this was influenced by the father (Grounds 3 and 4).
4.      His Honour failed to consider all the criticisms made of the mother by the father, despite what these criticisms revealed about the father’s attitude to the mother (Ground 5).
5.      His Honour considered only the options of the father moving with the children, or the children remaining with the mother, despite the poor nature of the evidence said to support the necessity of a move by the father, and despite acknowledging that a third position of the father remaining could be the subject of orders (Ground 6).
6.      His Honour used, in a manner adverse to the mother, findings he made in earlier proceedings to evaluate matters in the current proceedings, without putting the mother on notice of his intention to do so (Ground 7).
However, given the manner in which the appeal was argued for the mother, we will in due course address her complaints in three broad categories, being:
·first, procedural fairness issues related to his Honour’s reference to his September 2008 judgment and to his alleged failure to have regard to certain aspects of the mother’s case;
·secondly, certain key findings of fact said not to be supported adequately by the evidence; and
·thirdly, factual and other alleged appealable errors in his Honour’s consideration of certain of the matters contained in s 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”).

The Federal Magistrate’s reasons for judgment

Given the scope of the mother’s grounds of appeal, it is necessary to refer to his Honour’s reasons for judgment in some detail, and to do so with particular regard to the matters identified above as issues in the appeal.
Early in his reasons (at paragraph 4) his Honour said that he did not need to set out the history of the parties and their relationship because this was the second time that there had been a final hearing concerning arrangements for the children, and that the present judgment should be read in conjunction with the judgment published on 12 September 2008 in which he had determined that the children “primarily live with the father on a 9/5 fortnight arrangement”.
His Honour then went onto say that he did not need to relate things that had occurred since the earlier orders, “except to note that [T] no longer lives in Canberra”, his father having enrolled him in a private school in Adelaide.
Then having made some reference to his understanding of the parties’ proposals, his Honour indicated that he would be determining the case on the basis of two proposals only, being the children living with the father in Adelaide or with the mother in Canberra.
Prior to discussing the relevant sections of the Act, his Honour identified the father’s reasons for wishing to relocate as being “essentially economic”, as the firm the father was currently employed with no longer had work for him in Canberra, but was able to offer him a new position in Adelaide. His Honour noted the father’s evidence that he had tried without success to find alternative employment in Canberra.
His Honour also noted that the father had been born in Adelaide, the parties had lived in Adelaide from the commencement of their relationship in 2000 until 2004, and that the father’s mother (who was currently living with the father and the children in Canberra) is also from Adelaide and owns a house there, in which it was proposed that the father and the children would live.
His Honour next recorded that the mother was sceptical about the father’s need to relocate to Adelaide for employment. His Honour noted that there was no evidence from the father’s employer in relation to the father’s future employment with the company, and that Counsel for the mother had requested that he draw a Jones v Dunkel (1959) 101 CLR 298 inference. Nevertheless, his Honour concluded (at paragraph 13 of his reasons) that he was satisfied that the father had “no realistic choice but to relocate to Adelaide”.
His Honour then considered the feasibility of the mother relocating to Adelaide. His Honour found that the mother had good reasons for not wishing to relocate, being that she was settled in Canberra, she was studying interior design and that there was no equivalent course in Adelaide, and finally, that she had a new partner and there was no evidence of him being willing or able to relocate. His Honour concluded in this regard that he would not decide the case on the basis that the mother was free to relocate to Adelaide.
His Honour then turned to consider the primary considerations as identified in s 60CC of the Act.
In relation to the benefit of the children having a meaningful relationship with the parents, his Honour found (at paragraph 18) that the children were now of an age where a relationship with either parent could be maintained, despite a loss of regular contact.
In considering the need to protect the children from violence, his Honour observed that issues of violence were raised in both the present hearing and the hearing before him in 2008. His Honour found at paragraph 19 that there was nothing that would assist the mother’s case if issues of violence were to be factored into his reasoning, concluding that it was not necessary for him to take these matters into account.
His Honour then turned to the additional considerations as set out in s 60CC(3) of the Act.
In relation to the wishes of the children (s 60CC(3)(a)), his Honour noted that there had been a number of Family Reports prepared in the matter by a Family Consultant, Ms D. Counsel for the mother had sought to rely on the children’s views as expressed in the earlier Family Reports about the time which they wished to spend with the mother. However, his Honour considered that he should rely on the children’s present views.
At paragraphs 24 to 26 of his reasons his Honour set out paragraphs of Ms D’s report prepared on 7 June 2010 in relation to S and P. At paragraph 27 of his reasons his Honour set out the views expressed by T in a wishes report prepared by Ms D on 8 April 2010 in relation to the mother’s application that the father return T to Canberra and to the school he had previously attended. We will set out certain passages from both of these reports later in these reasons.
At paragraph 28 his Honour referred to the mother’s claim that the children’s views are influenced by the father, but his Honour said that he could not “make a finding that this has been the case”. His Honour said that he had to take into account the implications of making orders which were counter to their views.
In relation to the children’s relationship with each of their parents (s 60CC(3)(b)), his Honour recorded at paragraph 29 that he had made findings “in relation to this in 2008 and that those findings stand”.
At paragraph 30 of his reasons, his Honour found that both parties had a willingness and ability to facilitate, and encourage, a close and continuing relationship between the children and the other parent.
In considering the likely effect of any changes in the children’s circumstances, including separation from either of their parents or any other person with whom they have been living, his Honour noted (at paragraph 32) that in the event he ordered that the children were to continue living with the mother in Canberra, and the father and his mother (with whom the children and the father were apparently living) were to move to Adelaide the children would experience “a significant separation” from these people. Likewise, in the event the children were to relocate to Adelaide, his Honour observed that there would be “a much greater than hitherto separation from their mother.”
His Honour then acknowledged that with one parent living in Canberra and the other living in Adelaide there will be difficulty and expense involved in seeing the other parent.
In considering s 60CC(3)(f) of the Act, his Honour found (at paragraph 35) that each of the parents, and the paternal grandmother, had the capacity to provide for the emotional and intellectual needs of the children. However, his Honour recorded that he had some reservations about the mother’s persistence with her application for residence notwithstanding the children’s views. But his Honour then said that he would “not take this into account adverse to her case”.
In considering the attitudes towards the children and their responsibilities to parenthood demonstrated by each parent, his Honour made certain criticisms of the father in this regard:
39.… The first of these was his decision that [T] should be sent to [the school in Adelaide] from the beginning of 2010. I have three specific criticisms of this decision and the way it was implemented. The first is that the father did not discuss the matter with the mother. This is inconsistent with his obligations given that the parties have equal parental responsibility in relation to the children. Secondly the decision smacks to me of an attempt to influence the court decision. Had I acceded to the mother’s application [T] would have had to return to Canberra and his old school. This change of school would have been inimical to his best interests. The third criticism is a reflection of the second that is that in sending [T] to [the school in Adelaide] the father ran the risk that the court might later reverse this process. Indeed the mother sought an order that [T] be returned to his school in Canberra pending the final hearing but I declined to make such an order. I was very unhappy about the way that I have felt that I have been manoeuvred into taking this step.
40.The father was also criticised by the mother’s counsel for taking [P] to be interviewed by police after an alleged assault on her by the mother. The chronology of events does not reflect well on the father. He took [P] to the police after the parties had been to mediation with the Family Relationships Centre and the mother made it clear that she would not consent to a move to Adelaide. His decision to involve the police has the ring of an attempt to punish the mother for her attitude. In addition involving the police could only be for one purpose: that is to bring about a situation where the mother would be prosecuted for assault. This would have had all sorts of undesirable consequences including the necessity for [P] to give evidence against her mother at any court hearing. Calling on the blunt instrument of the criminal law to resolve family problems is most undesirable and should be done only where absolutely necessary.
41.The father is also criticised in relation to his actions concerning the Russian Orthodox Christmas. This falls on 7^th of January each year. In the 2008 orders it was my intention that the children should be with the mother from Russian Orthodox Christmas eve until 8 January 2010. In the event however the father had the children in the Christmas period for 2009 and 2010. He said that his reasons for doing this was that the Child Support Agency, in consultation with the mother, in working out the time the children will spend with each parent, interpreted my order as applying to Christmas Day on 25 December, ie Christmas Day according to the western Christian Churches. As a result of their interpretation of the orders the father says that he was to have the children on the Russian Orthodox Christmas period both in 2009 and in 2010.
42.The order concerning this reads as follows:
That irrespective of the parent with whom the children would be with over the Russian Orthodox Christmas the mother is to have the children from 5.00pm on the day before Christmas until 9.00am on the day after Christmas in even numbered years and the father on the same basis in odd numbered years.
43.I find it hard too [sic] believe that any rational person could construe the order in the way the father claims the Child Support Agency did. If the proper interpretation of the term “Christmas” on the third line of the orders was the Western Christmas then the reference to the Russian Orthodox Christmas on the second line was otiose, irrelevant and meaningless. The order might as well have read “irrespective of whether either of the parties has read Charles Dickens’ A Christmas Carol the mother is to have the children at Christmas in even numbered years” and so on.
44.I have some suspicions that the position taken by the father was motivated by spite but the mother did not seek to contradict his evidence and in the end I am unable to make an unequivocal finding to that effect. I trust that the orders that I have made are not seen in the light that the 2008 orders were construed. In these orders where I use the term Christmas I mean the Russian Orthodox Christmas.

In relation to the mother, his Honour concluded at paragraph 45 of his reasons:
I need not discuss the criticisms of the mother in relation to the criteria set out in this paragraph as I need not rely on them in reaching a decision.
In relation to s 60CC(3)(k) of the Act, his Honour recorded at paragraph 47 of his reasons that the father had taken out two Apprehended Violence Orders against the mother, which his Honour believed were “heavy handed” and “over the top” reactions to events, concluding that this was a matter that he would take into account in the mother’s favour.
At paragraphs 48 to 49 of his reasons his Honour considered s 60CC(3)(l) of the Act. His Honour recorded that the children had indicated that they would resist an order for them to live with their mother, and as a result his Honour found that in the event that any of the children in fact did so, further litigation would be inevitable.
His Honour then finally turned to consider the advantages and disadvantages of making orders in accordance with each of the parties’ proposals.
In considering the advantages of the mother’s proposal his Honour said:
53.The advantages of making orders that the children live with the mother are that they will of course see a great deal of her. The corollary of this is that if they go to Adelaide they will see a lot less of her than they do at present. They have lived in Canberra for some four years and are settled here. If they remained here they would continue to attend the schools that the two younger children now attend and the school that [T] used to attend. They have friends in Canberra.
In considering the advantages of making orders that would permit the children to relocate with the father to Adelaide, his Honour summarised those advantages in the following way:
55.First it will mean that they will not be separated from him as they would be if they remained in Canberra. He has always been the primary carer for the children since separation.
56.The second and most significant matter is the consequences I foresee if I were to make orders precluding their relocating to Adelaide. [T] has indicated that he would resist the implementation of such orders. He is 13 years of age and it would be difficult to force him to do something against his will. The other two children have also indicated they would resist implementation of these orders. I am concerned as to the impact of making orders contrary to the children’s wishes would have on their relationship with the mother. I think it likely that they would be resentful of the fact that their mother has precluded them from moving with the father to Adelaide and would be resentful of the fact that they are not living with the father as they would wish. It is true that contact between the mother and the children will be significantly circumscribed by the move to Adelaide but the consequences, in my opinion, of refusing to permit the move could have an even worse impact on the relationship between them and the mother. There is, in my opinion, a significant risk that the relationship would break down altogether.
His Honour ultimately concluded, at paragraph 57:
… When I balance the positive consequences of [the children] remaining in Canberra with the negative risks that this involves, I believed the balance lies in favour of their being permitted to relocate with their father. I have ordered accordingly.

Grounds raising procedural fairness issues

By her first ground of appeal the mother asserts that his Honour failed to accord her procedural fairness in that he failed to accept her evidence after ruling:
(a)that there was no need to cross-examine her; and
(b)that he would therefore have to accept her evidence in coming to his determination that the father could relocate.
In support of this ground Counsel for the mother relied on the following extracts from the transcript of the proceedings before his Honour on 18 June 2010:
HIS HONOUR: … At this stage [Counsel for the father], I don’t think I’ll be assisted by your cross-examination. If that should change, I’ll take the appropriate steps, and I’ll hear from you, [Counsel for the mother], as to why I should make the orders your client seeks. (Transcript, 18 June 2010, p 106)
…
[Counsel for the mother]: Those are the matters that I propose to say to your Honour. I would note that, of course, my client has made a number of assertions in her affidavit material which contradict what has been said by [the father]. She has not at this stage been subject to cross-examination.
HIS HONOUR: No, she hasn’t, and I will be proceeding on the basis that what she says in her affidavit is the fact. Yes, thank you. (Transcript, 18 June 2010, p 113)
On its face this appears to be, as was submitted by Counsel for the father (in his final written submissions), a somewhat “curious complaint” from the mother given that she did not have to undergo cross-examination and that his Honour indicated that he would be accepting what she said in her affidavit.
The complaint can only have substance, as we understood Counsel for the mother to concede before us, if it can be shown that something said in her affidavit was not in fact accepted by his Honour.
Counsel for the mother then endeavoured to establish that this was in fact so in his Honour’s treatment of allegations of violence.
In his reasons for judgment when dealing with the primary considerations in s 60CC(2), his Honour said:
19.Issues of violence were ventilated both in the present hearing and in the hearing in 2008. There is nothing that would assist the mother’s case if I were to factor in issues of violence so it is not necessary for me to take these matters into account.
Then in the context of the additional considerations in s 60CC(3), his Honour said:
46.Paragraph (j) refers to any family violence involving the children or another member of the children’s family. Issues of violence were ventilated in the affidavits of the father and his mother and were ventilated at the 2008 hearing. However as I have indicated I need not rely on such matters in reaching a decision.
47.Paragraph (k) refers to any family violence order applying to the children or a member of their family. The father has taken out two Apprehended Violence Orders against the mother. I believe these were a rather heavy handed and “over the top” reaction to events. This is a matter I take into account in favour of the mother but it does not persuade me that I should accede to her application.
As we apprehended the submissions of Counsel for the mother, it was his Honour’s references in these paragraphs to allegations raised and findings made in the 2008 proceedings which was the real gravamen of the complaint in the first ground of appeal.
Ground 7 appeared to contain a somewhat similar complaint with its assertion that “[i]n adopting the findings of the previous judgment, without placing the parties on notice of so doing, his Honour prejudged credibility issues without giving the mother the opportunity to address those prejudgments” (emphasis added).
It must be observed in relation to Ground 7 that at no time in his reasons for judgment of 24 June 2010 did his Honour make any adverse findings about the mother’s credibility, and thus on its face Ground 7 has no merit.
However, we will consider Ground 7 to the extent that, as it emerged from submissions, it was also directed to his Honour’s reference in his reasons of 24 June 2010 to his findings regarding violence in his earlier judgment of 12 September 2008, as well as to the mother’s complaint that his Honour overlooked the denials of the allegations of violence made by her in the material before him. We were directed by Counsel for the mother to the following paragraphs of the earlier judgment:
29.Section 61DA of the Act provides that when making a parenting order in relation to children I must apply a presumption that it is in their best interests for their parents to have equal shared parental responsibility. However this presumption does not apply if there are reasonable grounds to believe that a parent of the children has engaged in abuse of the children or family violence. I am satisfied that the mother has struck each of the children and on one occasion this involved striking [T] with a belt. I do not propose to go through each incident. Suffice it to say that I am satisfied that the evidence of the father as set out in his affidavit is accurate. I am also satisfied that the mother has been violent to the father. Again I do not propose to dilate on these incidents. They are referred to in the affidavit of the father. I repeat however what I said previously, that is I believe it likely that she was subjected to significant provocation on the occasions when she was violent to the father. I do not consider that the incidents of violence should cause me to make an order that the father have the sole parental responsibility for the children.
…
33.I am satisfied that it would not be in the children’s best interests to make an order that they spend equal time with each of their parents. I do so for the following reasons:
a)As I have indicated I find that the mother has been violent to the children from time to time. These events have been in the past and there is no indication of any violence in recent times. Nevertheless I am concerned that if she were to spend as long as a week with the children on a regular basis stresses might arise which would cause her to react violently. I appreciate that the orders I make will provide for her to spend up to three weeks with the children during school holidays. However, as I shall later explain, everything is a matter of balance. By this I mean that one has to weigh up the risks involved in making an order giving the mother more time with the children with the benefits to the children from having more time with their mother …
It will thus be seen that there were adverse findings made against the mother in the earlier judgment. But on a fair reading of paragraphs 19, 46 and 47 of his Honour’s second judgment (see paragraphs 56 and 57 above), it cannot be said that those earlier adverse findings influenced (at least in any expressed way) the conclusions in those paragraphs.
Of course there can never be absolute certainty that when a judicial officer who has heard previous proceedings between particular parties then hears subsequent proceedings between those parties, that he or she will not be influenced (even in some subconscious way) by findings, particularly findings adverse to a party, made in the earlier proceedings when determining the subsequent proceedings. As was conceded by Counsel for the mother before us, this risk can only be overcome by an application for disqualification of the judicial officer, and no such application was made in this case.
Thus, even if there might have been some procedural unfairness to the mother in the references to earlier findings (without notice to her), nothing ultimately turned on that unfairness for the purposes of the present appeal.
In relation to the mother’s denials of the allegations of violence in the material before his Honour, we have difficulty in seeing how those denials could have altered the outcome of the present case, having regard particularly to the last sentence of paragraph 46 of his Honour’s reasons. (See paragraph 57 above.)
Accordingly, Grounds 1 and 7 have not been established.

Alleged erroneous findings of fact and related grounds of appeal

By her second ground of appeal the mother asserts that his Honour made the following findings that “were not adequately supported on the evidence”:
(a)the father relocating regardless of orders being made that the children could not relocate;
(b)that the father had no realistic choice but to move to Adelaide;
(c)that the father had a willingness and ability to facilitate and encourage a close and continuing relationship between the children and the mother;
(d)that change of school would be inimical to [T’s] best interests; and
(e)causing the children to live with the mother would bring a significant risk of the breakdown of the relationship between the children and the mother.
As will be seen from the discussion which follows the subject matter of certain of these challenged findings is also the subject of separate, subsequent grounds of appeal. Where this is the case, we will discuss the relevant challenged finding together with any related ground of appeal, as this was the course generally adopted by Counsel for the mother.

The father’s employment prospects

Again having regard to the manner in which Counsel for the mother argued Ground 2 before us, it will be useful for us to address first the second of the findings challenged by the ground, being “that the father had no realistic choice but to move to Adelaide”.
Before setting out the paragraph of his Honour’s reasons in which this finding was made, it will be useful to set out the relevant evidence.
A consideration of the evidence concerning the father’s employment situation must begin with the evidence contained in his affidavit filed 4 June 2010 where he said:
9.I am currently at [A]. On 1 June 2009, there was no work for me in my [sic] [A] as … due to a downturn in the government sector in Canberra.
10.I was offered two alternate positions with [A]. I was required to either take up an alternate position or become unemployed. The two positions I was offered were [a position overseas] or [a position in Adelaide]. My preference is for the position in Adelaide. My employer has kept me employed on various projects in Asia and Australia pending the decision being made about my relocation.
11.Since this time I have looked for employment roles within Canberra but have been unsuccessful. My current role at [A] currently requires me to travel overseas on a regular basis to maintain the opportunity to obtain the Adelaide position. I do not wish to travel so frequently in the future.
The father’s oral evidence in chief was as follows:
Can I just take you back to your job search. You said that you spoke with – or submitted your resume to three search organisations. Who were they?---One was People Bank, the other two I honestly can’t remember the names. I know where they are.
All right. Well, where are they?---I think one is Frontier, and the third one I can’t remember the name of it, where I’ve sent the emails to. You sent to – over the years I’ve sent to so many different recruiters, and spoken to so many different recruiters.
All right. Now, in relation to those three recruitment agencies, have you had any interviews?---I’ve had interviews with the recruitment agencies, and they have sent my CV off to the various Government agencies to see whether I – whether I could get through into the final round of interviews.
All right. And have you got through into the final round of interviews?---I have not got through into the final round of interviews.
How many – do you recall how many times your resume has been submitted to various Government agencies or other prospective employers?---I could not give you an accurate answer.
All right?---I have told them to be on the lookout for me and submit. I will hazard a guess at least a dozen times over the last 12 months.
All right?---Possibly less, just due to the senior roles that I have gone for.
All right. Now, you also, as I understand from your evidence, made applications for employment in relation to jobs that were advertised in the Australian newspaper?---Yes.
Are you able to say how many times you’ve done that?---Probably about six occasions, seven occasions.
All right. What sort of positions did you apply for?---Assistant CIO to the Deputy CIO. Obviously Government departments, CIOs Government departments program managers, and some of them have also been contract.
All right. So both permanent employment and contractual employment?---Correct.
All right. And did you - were you successful in retaining any interviews in relation to that?---No, I was not.
And do you continue to seek other employment in Canberra?---I have been looking recently. There has been nothing coming up that’s important to my roles.
Have you been offered any positions?---No, I have not.
Have you been invited to partake in interviews for positions?---In Canberra, no.
Anywhere, no?---Overseas people have asked me to put in, and I have been interviewed for other positions overseas.
(Transcript, 17 June 2010, p 20-21)
The father was then cross-examined at length about his employment position; it is necessary to record that lengthy cross-examination:
And you were asked in the subpoena to provide a copy of a letter of redundancy or any other similar document advising of redundancy from your position … with [A]. You produced no such letter, did you?---Correct.
And I take it you produced no such letter because you have no such letter?---Correct.
You were also asked to produce [sic] copy of a letter of extension or other similar document advising extension of your position … beyond September 2009. You produced no such letter, did you?---There is no such letter that states that. There’s my original employment contract which covers most of those things.
But you produced nothing in answer to that?---The best I have is the original employment contract.
Did you produce something?---There is no specific document that says redundancy or something like that.
So you don’t have any letter of extension in the same way that you don’t have any letter of redundancy?---No.
You have a current employment contract with [A]; is that right?---Correct.
You are also asked in the subpoena to produce a copy of a letter or a document from [A], with offer of a position in Canberra for your current position if that position is different to your previous position … You’ve produced no such letter, have you?---Correct.
And that’s because no such letter exists?---[A] does not produce letters like this, like this type that you’re suggesting.
Sir, the question is: is that because no such letter exists?---Correct.
And you were asked to provide a copy of a letter of offer or other similar document offering the position [overseas] or [the position in Adelaide]. You’ve produced no such letter, have you?---Again, I suppose I say those types of letters [A] doesn’t have. In my original contract it says “work as directed,” if I can paraphrase, and I get asked to work as directed.
Short answer is you’ve produced no such letter; is that right?---Correct.
And that’s because no such letter exists?---Correct.
So essentially there is no letter which establishes the things which you assert to the court about a position for you in Adelaide?---What I have is the discussions I’ve had - - -
Is there a letter - - -?--- - - -with the people from [A].
Sir, the answer – the question was fairly specific - - -?---Yes.
- - - is there any letter that in any way establishes what you assert about a position in Adelaide?---There is no specific formal letter.
And I take it then, sir, there is no letter that establishes that you will have difficulty continuing in employment with [A] in Canberra; is that right?---No one has written such a letter.
And is that because what you say about your employment issues with [A] are untrue?---That is not correct.
(Transcript, 17 June 2010, p 27-28)
Later in the cross-examination there was the following exchange:
Now, you say – well, you seem to be saying that you’re about to lose your job; is that - - -?---Yes.
Is that your position; you’re about to lose your job?---Yes.
Your whole case has been about the necessity for you to move to Adelaide to retain your job?---Yes.
That’s why you’ve taken steps in allowing [T] to try out the school over there?---Yes.
And the one document that you’ve produced to support the contention that you make about this job is the contract that’s been tendered to the court?---Yes.
You agree that that doesn’t mention you in any place?---Yes.
There’s not a single document which directly supports the idea that you’re about to lose your job?---I don’t think there is not a single document.
You’ve not called your boss to write confirming such a thing?---I don’t think a commercial private company would put those things in writing.
Okay. Well, I - - - ?---But no, I – no, they have not.
No. You’ve not asked him to?---I’ve spoken with him and I’ve said, “Would you do that?” He said, “[A] is not about to put itself at any sort of risk.”
Are you just making this up as you go?---No.
So your affidavit doesn’t include anything like, “I’ve asked [A] to confirm this and they’ve declined that they’ll confirm it”?---No, I didn’t put that in because - - -
No, because you’re making it up as you, aren’t you?---No, I’m not.
So [A] will provide you with contracts about the work in Adelaide, but they won’t give you anything to confirm your position about that; is that what’s – is that the case?---They’re giving – showing that they’re – they have work in Adelaide. There is commercial work that they have in Adelaide. They’re not about to give documents for me to move to Adelaide or anything else like that because I can then use that against them - - -
Right. So - - -?--- - - - in unfair dismissal and any other things.
So let me get this right: they’ve provided you with a contract, or part of a contract in relation to work in Adelaide?---Yes.
But they won’t provide you with anything to confirm your status with them?---I don’t have contracts to confirm my status form the work done in Malaysia and the work I’ve done in China and all the other subsequent work I’ve done since.
But they’re refusing – what you’re saying is they are refusing to give you anything to indicate what your position might be?---They don’t know what the position will be. It will be as we create it. It’s a consulting company.
And, sorry, let me try and ask it clearly because obviously I’m not. They’re refusing to give you anything to confirm your status?---They have given me a contract to work which they’ve got which outlines my position … All work is directed and probably 90 per cent of the work I have done with them has been work as directed.
Well, I’ll try again, [Mr Alston]. They are refusing to give you anything – any document which confirms your status with them as being the golden boy who will open up the Adelaide office for them?---Yes, they won’t put that in writing.
Is that because you’re making it up?---No.
Can you at least give us the address that you work from in Adelaide?
---The address in Adelaide?
The - - - ?---[A] does not have an office in Adelaide as yet. If people go from [A] there, they stay in local hotels and work at client sites.
Even those people named in that contract that you tendered?---They work at client sites.
So they fly out of Canberra, do they?---They fly out of wherever they live, all around Australia. They fly to client sites.
So - - - ?---The majority of [A’s] workforce works at client sites. Our officers cannot cope with all our staff.
All right. And those particular people in that contract that you have tendered to the court fly from Canberra to work in Adelaide?---Not only Canberra; possibly Sydney and Melbourne as well. I’d have to look at where they live.
And you’re the person tasked with opening the new officer in Adelaide?---They have said that they would like me to be the person that opens it up because I - - -
Sorry, when you say “they,” who is “they”?---[A].
Who? Who?---We’re talking about [A’s] VP of Emerging Markets and - - -
Who is that? What is her name or his name?---His name is [Mr R].
Okay?---And since then, [Mr L] who takes on CRM Service Lines, Asia Pacific, has also said, “With your background, it would be good to have that open up there.”
Right. So they – you reckon that they’ve said to you, “We want you to open up the office in Adelaide”?---Yes, they want me to start a business there which will grow and then we can get enough contracts there to open up a permanent office.
Right?---At the moment, there is not enough contract work there for a permanent office, but we have – as you saw, one full-time contract is six months. From that you can take off and grow a business.
So that was a contract for six months that was what was - - - ?---Which is still ongoing, which customers normally do.
Which was what was here. Right. And when was that contract entered into?---It was entered into October last year.
Right. So that’s [sic] contract expired, has it?---That specific contract has expired in April 2010, but there have been extensions to that contract and we still have people working there today.
And including you?---I’ve been involved in and out of that. I have – I can’t be in there full-time.
But your understanding is at present, there’s not enough work to sustain an [A] office in Adelaide?---Not at the moment, no. We need to grow it.
So much the same position as you assert is the case in Canberra for you?---Canberra – there is no work for me, full stop, in Canberra. I don’t have Federal Government skills to work in Canberra.
So you said that you’d applied for some jobs - - - ?---Yes.
- - - as CIOs and deputy CIOs?---Yes. Yes.
So that’s chief information officer - - - ?---Yes.
- - - with departments?---Yes.
Right. And which departments did you apply with – for?---I’d have to go back and open up my computer and see which ones.
Well, how long was the last application ago? Was it last week or six months ago or a year ago?---It was probably in April. I’d have to go back and have a look.
Okay. So in April, who did you apply to for work?---There was an ad on Seek. I sent off to work for a contract role as a CIO. I’d have to go back and have a look. It’s not---
I see. You don’t remember?---Not the department manual.
And before April, what was the previous job that you applied for?---Going back, what was it? I’ve been asking for job descriptions every time I see something in the paper that I can get, and I apply to some of them.
Well, before April – was it the week before your last application?---I don’t want to tell you a lie on which exact department it was because I think there - - -
Was it this year?---It was this year in February, I think I would have applied, and then prior to that there was one I saw that came out in December, which I sent something off in January, and I haven’t heard anything back from any of them.
So in the last six months, you’ve sent something off to three job queries?---I think so, yes. Senior level roles are rare in Canberra, and in IT at the moment, they’re waiting for the Gershon reports.
You said – is it your position that the job that you would receive in Adelaide is a promotion?---I’d say it has the ability to be promoted. At the moment, it’s at level. I will not be getting more money or a level increase.
All right. So it will be overstating it to say that it’s a promotion?---I would say so.
(Transcript, 17 June 2010, p 81-81)

In final submissions to his Honour Counsel for the mother sought to rely on the fact that the only document which the father had been able to put before the Court in relation to his employment opportunities was a document said to be part of a contract between his employer and the South Australian Government (which was Exhibit “F1” before his Honour) and that otherwise there was “no material other than his word” to support his assertion regarding his employment.
His Honour’s findings (including the challenged finding which is emphasised) regarding the father’s employment prospects were then as follows:
11.The reasons the father wishes to relocate are essentially economic. He is employed in Canberra … with a firm called [A]. This firm no longer has work for him in Canberra but he has been offered a new position by them in Adelaide. He gave evidence that he has tried without success to find alternative employment in Canberra.
…
13.The mother said that she is sceptical about the need to relocate to Adelaide if the father is to continue his employment with his present firm. It is notable that no one was put on affidavit from his employer to corroborate his evidence that there is no position available for him in Canberra but that there is a position available for him in Adelaide. I was invited to draw a Jones v Dunkell inference, that is that any evidence that such a person would give would not assist the father’s case. In the end however I decline to draw that inference and I accept the father’s evidence. I accept that he has no realistic choice but to relocate to Adelaide.
It is the last sentence of paragraph 13 that is the finding now under challenge. We can only say with regard to this challenge that when regard is had to all the relevant evidence, particularly to the father’s oral evidence in chief, it could not be contended that that finding was not open to his Honour, who, it is perhaps trite to say, had had the advantage of seeing and hearing the father give oral evidence. The challenge contained in Ground 2(b) does not therefore have merit.

The possibility of the father relocating without the children – the options before the Federal Magistrate

In relation to the alleged erroneous finding that the father “would relocate regardless of orders being made that the children could not relocate”, his Honour made the clear statement at paragraph 7 of his reasons that “there is no evidence as such that the father will relocate irrespective of the orders I make”.
But the matter then perhaps became less clear when his Honour immediately went on to say:
7.… I had assumed that this case involved two alternatives only, either the children with the father in Adelaide or the children in Canberra with the mother. When, late in the hearing, I sought confirmation from the father’s counsel that my assumption was correct he indicated that it was. However counsel for the mother submitted that there were three options and that added to the others was to maintain the present arrangements on the assumption that if I were to so order the father might choose to remain in Canberra. I assume that the “fall back” position would be that if he nevertheless moved to Adelaide the children should live with the mother. I decline to take that approach which has many difficulties which I need not dilate upon. I accept what I was told by the father’s counsel.
Although perhaps not entirely clear, we think that the better interpretation of this paragraph is that his Honour was saying that he had been asked by Counsel for the father, and he had indeed decided, to determine the case on the basis of two possibilities only, being that the children were to live either with the father who would be in Adelaide, or they would live with the mother in Canberra. His Honour also noted in the following paragraph of his reasons (paragraph 8) that the mother’s proposals for the children to live with her, were also predicated on the father moving to Adelaide.
On the basis that this then was the case before him, his Honour was entitled when later summarising the advantages of making orders which would permit the children to relocate with the father to Adelaide, to say at paragraph 55, that one of the advantages would be that they “will not be separated from him as they would be if they remained in Canberra”.
His Honour’s conclusion concerning the only available options in the case and his later conclusion that a move to Adelaide would have the advantage that the children would not be separated from the father are strengthened by his finding that the father had no realistic option but to move to Adelaide; this was a finding which we have earlier determined was open to him.
The complaint contained in Ground 2(a) has therefore not been established.
Similarly, we consider that there is no merit in the subsequent complaint contained in Ground 6, being that his Honour “impermissibly regarded the case as a contest between the father’s proposal to move and the mother’s proposal is [sic] the father moved”. True it is that judicial officers are entitled to consider proposals other than those put forward by the parties in parenting cases (U v U (2002) 211 CLR 238 per Hayne J); but ultimately such cases have to be decided on the basis of proposals which the judicial officer concerned understands to be realistic in all the circumstances of the case. (See the observations of the High Court in MRR v GR (2010) 240 CLR 461 regarding the need for the court to be concerned with “the reality of the situation of the parents and the child” in the context of s 65DAA.)

The schooling arrangements for T

A further finding of fact asserted not to be adequately supported by the evidence is that, as it appears in Ground 2(d), that “change of school would be inimical to [T’s] best interests”.
This statement appears in paragraph 39 of his Honours’ reasons (which is set out in paragraph 43 of these reasons) where his Honour was making his first criticism of the father in the context of considering the father’s demonstrated attitude to the children and to the responsibilities of parenthood (as required under s 60CC(3)(i)).
That first criticism related to the father’s decision to send T to a School in Adelaide from the beginning of 2010, without discussion with the mother. His Honour said that that decision “smacks … of an attempt to influence the court decision” and he continued:
39.… Had I acceded to the mother’s application [T] would have had to return to Canberra and his old school. This change of school would have been inimical to his best interests. The third criticism is a reflection of the second that is that in sending [T] to [a school in Adelaide] the father ran the risk that the court might later reverse this process. Indeed the mother sought an order that [T] be returned to his school in Canberra pending the final hearing but I declined to make such an order. I was very unhappy about the way that I have felt that I have been manoeuvred into taking this step. (emphasis added)
It is perhaps somewhat curious that this finding of fact is challenged in the present appeal when it appears to relate to the reasoning behind an earlier decision. But be that as it may, the contents of the wishes report prepared by the Family Consultant, Ms D, on 8 April 2010 (which was, as we understand it, the time of the decision to which his Honour is referring in paragraph 39 of his reasons) would provide adequate evidence for his Honour to have satisfied himself that a change of school would be inimical to T’s interests. The relevant extracts from Ms D’s report are set out later in these reasons. There is therefore no merit in Ground 2(d).

Section 60CC(3) matters: the views of the children; and the relationships between the parties and between the parties and the children

The remaining alleged findings of fact challenged in Ground 2 are:
(c)that the father had a willingness and ability to facilitate and encourage a close and continuing relationship between the children and the mother;
(e)causing the children to live with the mother would bring a significant risk of the breakdown of the relationship between the children and the mother.
Each of these remaining challenged findings are related, either in substance or as argued for the mother, to one of the remaining grounds of appeal to be considered, which are that:
3.His Honour failed to take into consideration the unchallenged evidence of the Family reporter determining that he could not make a finding that the father was influencing the views of the children.
4.His Honour failed to consider the significance of the change in views expressed by the children from the earlier reports that had been complied.
5.In ruling that he would not discuss the criticisms made of the mother in relation to section 60CC(3)(i) his honour thereby failed to properly evaluate the attitude of the father to the mother as displayed in his improper criticism of the mother.
In order to determine if there is merit in any of these remaining challenges, it is necessary to consider in some depth the evidence of the Family Consultant, Ms D, and his Honour’s use of that evidence.
As mentioned earlier, Ms D had prepared a number of reports in relation to this family. Counsel for the mother had sought to rely before his Honour on the views expressed in earlier reports as to the time they wished to spend with their mother, but his Honour considered that he should rely only on the children’s present views as expressed in reports prepared by Ms D on 8 April 2010 in relation to T and on 7 June 2010 in relation to S and P.

(i) Wishes Report – 8 April 2010

The Wishes Report of 8 April 2010 was prepared in relation to the mother’s application that the father return T to Canberra and to the school he had previously attended prior to the father enrolling him in the school in Adelaide. In preparation for the report Ms D interviewed T and the mother in person, the father who was overseas was also spoken to by telephone.
In that report Ms D recorded T’s views in the following paragraphs, which his Honour included in his reasons:
3.[T] who is an articulate and intelligent boy has been at [the school in Adelaide] since the beginning of this year. His first words were ‘[The school in Adelaide] is awesome’. [T] explained that his family are all still in Canberra, as the matter has not as yet been to Court.
4.[T] attended the assessment with his wishes written down, and asked to have them reported to the Magistrate. He admitted that the situation has been very stressful for all members. However he seemed adamant that he wishes to resume his education at [the school in Adelaide] where he appears to be doing well. [T], who is skilled at computing, communicates with a friend in Canberra and they play a game they have designed on the internet.
5.It was explained to [T] that the Court can not make his mother move to Adelaide which he wishes could happen. He was also asked how it would be if the Court said he had to return to Canberra and he responded ‘The Court couldn’t force me. The worst they could do is ask me to leave [the school in Adelaide], and I’d just say “no”.’
6.[T] was asked how it would be if the Court said the other children should stay in Canberra, and his father also stayed, and he responded ‘I’m not sure what would happen.’
7.[T’s] wishes were as follows:
1. I wish for [Ms D] to give this list to the judge
2. I wish to live in Adelaide
3.I wish to be educated in Adelaide at …
4.I wish [Ms Alston] (my mother) would come to live in Adelaide with us as she is still part of my family
5.And for the court to follow the first 3, and the 5^th wish I have asked for on many occasions ([T] meant he has stated his wishes frequently and wished his mother would to live in Adelaide)
8.[T] was asked if he had spoken to his mother, and he declared that he had, and ‘she says she has a life here.’
It is also important to have regard to the following opinions expressed by Ms D in her report for purposes of the challenge just discussed to his Honour’s conclusion that a “change of school would have been inimical to [T’s] best interests”:
17.[T] was adamant he wished to remain at [the school in Adelaide] which is apparently a good school. He appeared to have done some thinking over the consequences should the Court ordered [sic] his return to Canberra, and was adamant he would not want to return.
…
19.Even if as alleged by [the mother] [T] has been influenced by his father either overtly or covertly, he has now found himself in a position that he appears to enjoy and would like to continue. While he is away from siblings, there is an age difference, which would preclude intense socialzing with them even if they were living together.
20.Even if the family remains in Canberra after the hearing in June it would be useful if [T] could remain at [the school in Adelaide] as apart from doing well and enjoying the experience the child has been under pressure for sometime trying to keep both parents happy and not upset either.

(ii) Family Report – 7 June 2010

In preparation for her report of 7 June 2010, Ms D interviewed P, S, the mother and the father.
In her report Ms D recorded the views of S and P as follows and again these paragraphs were set out in his Honour’s reasons:
14.[S], who is 8, was disinterested in being interviewed. He admitted he was feeling ‘sad without [T], and unsolicited stated ‘I don’t want to talk about my Mum’. When he was asked why this might be, he responded ‘She’s mean. She hit me once at school.’ It transpires that he was smacked about a year ago.
15.[S] was asked how it would be if the Court said he should stay in Canberra, and he responded, ‘I’ll still go and stay there’ meaning Adelaide. He was told he may not see very much of Mum and he replied ‘Fine I don’t want to see her’.
16.He informed, ‘[P] and me are trying to say we want to live with Dad we’ll visit Mum every single holiday.’
17.[S’s] message to the Court was –
I love Dad. I’ve always loved Dad, and I don’t want that to change.
18. [S] is a young child and has little conception of the issues around him.
19.[P], who is nearly 10, is generally a loving and kind child. She also indicated that she wanted to go to live in Adelaide. She stated ‘I’ve changed, I want to live in Adelaide, and I want to visit Mum every single holiday.
20.[P] is in grade 4 at school which is ‘good’. She admitted ‘I will miss my school and some of my friends, but the point is I just want to move to Adelaide.’ She explained ‘If I come on holiday I’ll still see them’, meaning her mother.
21.She was asked how it was different to last time when she admitted she would be sad at not seeing Mum, and she responded ‘If we stay in Canberra my dad will lose his job and we’ll have to live with Mum, and I don’t want that to happen.’ She was asked how it would be if her dad was allowed to stay in Canberra and she stated ‘I don’t know’. [P] explained that it was since she had spent a holiday in Adelaide that she is keen on going. She apparently visited the school and has made friends there.
22.She was asked if she had spoken to her mother and she explained ‘For me if I told her she’d yell and I’d get upset.’ [P] as [sic] asked how it would be for her mother to hear the children thought she was mean, and she replied, ‘She’ll be very upset.’ She was asked if that would upset [P], and she replied ‘Yes a little because she’s my mum.’ She informed that her mother had stated ‘I’m not moving, and you are not moving’. She was asked if she would miss her and she responded, ‘she’s getting a tiny bit nicer, but she is still mean.’
23.[P] informed ‘We all miss Dad when he goes overseas, but he calls every day and says “hi”.
24.[P] was asked how it may be if the Court said they were to remain in Canberra and she said ‘I’d probably say “no”’. She was asked what the good things were about her mother, and she responded ‘For me there’s nothing really good about her.’
25.[P] was asked if she waved a magic wand what she would wish for, and she responded, “I’d wave and say I’d go to Adelaide with Mum. If Mum were nicer Dad and Mum were together, Dad still loves her but she doesn’t love Dad. I’d make her live with me and Dad and again in Adelaide, and make the family happy.”
26.[P’s] wish was to live with her father.

The challenge to the Federal Magistrate’s approach to the children’s views

It had been strongly argued for the mother at trial that the five reports prepared by Ms D in relation to this family (in the period from 2007 to June 2010) represented “a longitudinal assessment” of the children and their views in relation to their mother, starting from a positive attitude towards her but culminating in their adverse views now recorded in the latest reports by Ms D. Ms D had also expressed the opinion in paragraph 29 of her June 2010 report that the children “appear to have decided to align themselves mainly with [the father’s] requirements”, and in her oral evidence at trial expressed the view that “either, consciously or unconsciously, they’ve been co-opted to support the father”. Thus, it had been submitted by Counsel for the mother at trial, that the father had caused this situation to occur and that therefore the move to Adelaide should not happen because the father lacked sufficient insight to support the relationship between the mother and the children (Transcript, 18 June 2010, p 110-111).
In his reasons for judgment when considering, in the context of s 60CC(3)(a) of the Act, the views expressed by the children and the weight to be attached to those views, his Honour said:
22.The children have been interviewed by Ms [D], a family consultant, who over the years has produced a number of reports in this matter. Whilst the mother’s counsel relied on earlier views expressed by the children as to the time they would wish to spend with the mother I believe that I should rely on the children’s present views …
His Honour then went on to set out the passages from Ms D’s reports prepared in April and June 2010 which we have set out above.
Having set out those passages from her reports his Honour then said:
28.The mother maintains that the children’s views are influenced by the father but I cannot make a finding that this has been the case. I note what [Ms D] says about [S’s] level of understanding but the views expressed by [P] and to an even greater extent the views expressed by [T], must be given significant weight. And it is not just the views per se that I take into account but also the implications of making orders which are counter to those views. I will discuss this issue later in this judgment.
The later discussion of the children’s views which his Honour foreshadowed in paragraph 28 then occurred at paragraph 56 which we have earlier set out when summarising his Honour’s reasons for judgment but which we will shortly repeat.
The criticism now levelled at his Honour in Grounds 3 and 4 is that he had failed to take into consideration “the unchallenged evidence” of Ms D when he determined (in paragraph 28 of his reasons) that he could not make a finding that the father was influencing the children, and that he failed to consider the significance of the change in views expressed by the children from the earlier reports.
It would have been of assistance had his Honour explained more fully in paragraph 22 why he was only relying on the children’s present views, and again in paragraph 28 why he considered that he could not make a finding that the children’s views had been influenced by the father.
However, it is clear from those paragraphs that he had not overlooked the fact, indeed that he well appreciated, that it was the mother’s case that there had been a change in the children’s views and that their present views had been influenced by the father.

We mention in passing at this point that having read the cross-examination of Ms D (at Transcript, 17 June 2010, p 53-70) and without intending any criticism of her, we can understand that a judicial officer may well not have been sufficiently satisfied to make the positive finding that the children’s views were influenced by the father.
But in any event, his Honour had the greater concerns about making an order contrary to their wishes (whatever the cause of those wishes) as he expressed in paragraph 56 of his reasons, which we now repeat:
56.The second and most significant matter is the consequences I foresee if I were to make orders precluding their relocating to Adelaide. [T] has indicated that he would resist the implementation of such orders. He is 13 years of age and it would be difficult to force him to do something against his will. The other two children have also indicated they would resist implementation of these orders. I am concerned as to the impact of making orders contrary to the children’s wishes would have on their relationship with the mother. I think it likely that they would be resentful of the fact that their mother has precluded them from moving with the father to Adelaide and would be resentful of the fact that they are not living with the father as they would wish. It is true that contact between the mother and the children will be significantly circumscribed by the move to Adelaide but the consequences, in my opinion, of refusing to permit the move could have an even worse impact on the relationship between them and the mother. There is, in my opinion, a significant risk that the relationship would break down altogether.
It is to paragraph 56 of his Honour’s reasons that another of the alleged findings of fact challenged by Ground 2 can be sourced. That finding as asserted in subparagraph (e) of Ground 2 is as follows:
(e)causing the children to live with the mother would bring a significant risk of the breakdown of the relationship between the children and the mother.
It will thus be seen that the alleged finding is at best a summary or paraphrase of what his Honour said in paragraph 56, and as such it fails to include reference to his Honour’s concern that it is the “making [of] orders contrary to the children’s wishes” that would have an “impact on their relationship with the mother” and involve “a significant risk that the relationship would break down altogether”.
But leaving to one side the precise words of the finding, the challenge to the finding is that it was not adequately supported by the evidence. It is true that there is no actual evidence to support a conclusion that to make an order contrary to the children’s expressed wishes to move with their father to Adelaide carried a significant risk of a breakdown in their relationship with the mother. But it must also be acknowledged that decisions about the future living arrangements for children must of necessity involve an element of prediction based on the evidence that is before the Court (CDJ v VAJ (1998) 197 CLR 172 at [151] to [152]). In our view the evidence of the children’s strong views as recorded by Ms D and then by his Honour, would support his Honour’s prediction of a risk to the breakdown of the children’s relationship with the mother, if orders were made in favour of the mother and contrary to the children’s views. We therefore do not accept that the complaint in Ground 2(e) has validity.
In the context of the s 60CC(3) matters his Honour also made findings in relation to the willingness and capacity of each parent to facilitate and encourage the children’s relationship with the other parent (s 60CC(3)(c)) and each parent’s attitude to the responsibilities of parenthood (s 60CC(3)(i)).
In relation to the first mentioned matter, his Honour found at paragraph 30 of his reasons that each parent had that willingness and capacity. That finding, in so far as it referred to the father, is now one of the findings challenged by Ground 2(c) for lack of evidence. We can only assume from such submissions as were made in support of this challenge, that it related to the complaint earlier discussed concerning his Honour’s refusal to make a finding concerning the father’s influence on the children’s wishes. As we have earlier concluded, it would have been desirable if his Honour had said more about this aspect of the mother’s case, but he was clearly aware of it and there were other factors which he considered more significant in reaching his decision. The complaint raised in Ground 2(c) might also relate to the subject of Ground 5 which we now discuss.
In relation to the s 60CC(3)(i) matter, being the attitude to parenthood demonstrated by the parties, his Honour was extremely critical of the father in relation to this matter, as he discussed at relative length in paragraphs 39 to 44 of his reasons (see paragraph 43 above). At paragraph 45 of his reasons he said that he need not discuss the criticisms of the mother in relation to s 60CC(3)(i) as he did not need to rely on them in reaching a decision. Ground 5 is directed to this approach on the part of his Honour, and is in following rather curious terms:
5. In ruling that he would not discuss the criticisms made of the mother in relation to section 60CC(3)(i) his honour thereby failed to properly evaluate the attitude of the father to the mother as displayed in his improper criticism of the mother.
Some understanding of the exact meaning of this ground is to be gained from its explanation by Counsel for the appellant in his written summary of argument being:
4.That his Honour failed to consider all the criticisms made of the mother by the father, despite what these criticisms revealed about the father’s attitude to the mother (Ground 5).
Notwithstanding this explanation, the complaint remains somewhat curious; it would seem to suggest that his Honour was required to examine the father’s claims against the mother, to have then found those claims to be without substance, and then to have found the father wanting in some way for making the claims. In the absence of any elaboration of these matters, the ground cannot be regarded as established.
But in relation to this complaint it needs to be remembered that at paragraphs 39 to 44 of his reasons, his Honour made a number of serious criticisms of the father. Yet notwithstanding those criticisms, he exercised his discretion to allow the children to move to Adelaide with the father. Without knowing much more about the criticisms that the mother made of the father, being criticisms which his Honour would have to have accepted, we could not be confident that his Honour would have exercised his discretion differently on account of this matter.

Conclusion

For the reasons given we have found no merit in the complaints which we apprehend to arise from the grounds of appeal, and accordingly the appeal must be dismissed.
It has to be emphasised that the decision which his Honour had to make was very much a discretionary decision. As such, it has to be presumed to be correct, notwithstanding that another judicial officer may have reached the opposite decision on the same material. Such a decision can only be interfered with by an appellate court on a very limited number of grounds, none of which have been able to be established in this case (see CDJ v VAJ at [151] to [152]; and Australian Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627.)

Costs

Because of the somewhat unusual course which this appeal took, there was not the usual opportunity to take submissions in relation to costs at the conclusion of the hearing of the appeal.
Without wishing to prejudge any application for costs which either party might wish to make according to the provisions in the Family Law Rules 2004 (Cth), we would nevertheless venture to suggest that we have some difficulty in seeing what circumstances exist in this case that would justify a departure from the general rule contained in s 117(1) that each party should bear his or her own costs in proceedings under the Act.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Coleman and Strickland JJ) delivered on 8 September 2011.

Associate:

Date: 8 September 2011