B & B - [2006] FamCA 1207

[2006] FamCA 1207

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT BRISBANE No. NA27 of 2006

(No. BRM10000 of 2005)

BETWEEN:
B

Appellant Husband

AND:
B

Respondent Wife

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing: 23 August 2006

Date of Judgment: 15 November 2006

Appearances: Mr Murphy of Senior Counsel, instructed by South & Geldard Solicitors, 128 Victoria Parade, Rockhampton QLD 4700, Solicitors, appeared on behalf of the Applicant Husband
Mr Galloway of Counsel, instructed by Dixie Ann Middleton, PO Box 13384, GEORGE STREET QLD 4003, Solicitors, appeared on behalf of the Respondent Wife

B and B NA27 of 2006 (BRM10000 of 2005)

Heard: 23 August 2006
Delivered: 15 November 2006

APPEAL – FROM DECISION OF FEDERAL MAGISTRATE – CHILDREN – WITH WHOM A CHILD LIVES – RELOCATION – Orders were made in the Federal Magistrates Court allowing the mother to relocate from Central Queensland to South-East Queensland with the three children of the marriage – The mother desired to relocate to South East Queensland to commence living with her new partner – The father submitted, inter alia, that the Federal Magistrate adopted a wrong approach to relocation cases, arguing that the Federal Magistrate approached the case from the standpoint of an enquiry about whether reasons existed for denying the mother the right to move with the children, rather than an enquiry about which proposal best met the interests of the children – While the Federal Magistrate may on one view have approached the issue by impliedly asking if there would be any significant harm to the children’s interests if they moved to South East Queensland, it was appropriate for the Federal Magistrate to take each of the factors that on its face favoured the refusal of the mother’s application and examine the likely impact of relocation on that factor. Such a course is not a distortion of the examination discussed in AMS v AIF and U v U – At some stage a comparative exercise must be performed, in which the extent to which factors relevant to one proposal can be maintained under the other proposal must be considered.

A and A (Relocation Approach) (2000) FLC 93-035
AMS v AIF (1999) 199 CLR 160
Athens & Anor v Randwick City Council [2002] NSWCA 83
Australia Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
L and GM v MM; Director-General, Department of Family Services and Aboriginal and Islander Affairs (1994) FLC 92-449
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
U v U (2002) 211 CLR 238

Appeal dismissed. Appellant to pay Respondent’s costs of and incidental to the appeal.

In most cases about parenting orders under the Family Law Act there is no conceptual difficulty in the court applying the principle that the best interests of the child are the paramount consideration. However, that is not so when deciding upon orders in what have become known as “relocation cases”. That is because, when in relocation cases regard is also had to another consideration, namely the right to freedom of movement of a parent, a delicate interplay of concepts arises. That is on the most favourable view of it. On another view, that to which I incline, the result is an imbroglio of principles.
However described, the nature of the judicial exercise required is such that even well crafted reasons for the orders (which more often than not permit relocation, at least within Australia) often seem unconvincing, formulaic, at times even as if there is a subtext. Unsurprisingly, in this context, many a losing litigant is perplexed. Many appeals are generated.
In the trial out of which this appeal arises, the case against relocation was powerful. However, the reasons of Slack FM permitting relocation are thorough and well-organised. Yet, in my view, at least to the reader used to an unadulterated application of the “best interests” principle, a degree of discomfort with the result remains. The major question in this appeal is whether that discomfort is merely due to the state of the law, albeit correctly applied, or whether appellable error has occurred.
Since close to the time that the parties separated in mid-1999, they have for the most part reached agreement, varied from time to time to address changed circumstances, about the living arrangements for their children; “J” born in 1994, “C” born in 1995 and “L” born in 1997.
Consequently, for the last few years the children have lived with the mother and had contact with the father from after school until early to mid-evening, on Monday, Tuesday, Wednesday and Thursday in each alternate week of each fortnight and for each alternate weekend and half school holidays.
Throughout the period of cohabitation and after their separation, the parties and then the family lived in Central Queensland. However, in 2005, after forming an association with a “Mr R”, who lives in South East Queensland, the mother formed a wish to move there, with the children. The parties’ inability to agree about that led to the mother commencing proceedings in December 2005, which resulted in a trial in February 2006 before Slack FM. He delivered judgment in mid-March 2006. As indicated, the orders appealed effectively permitted the mother to move herself and the children to South East Queensland.
There are nine grounds of appeal in the Notice of Appeal and in three of those grounds there are subparagraphs, each of which raises a separate point, albeit either by way of particularisation of a general assertion in the ground or at least in relation to such an assertion. However, in his written submissions, senior counsel for the father gathered the grounds into three groups, which demonstrated the commonality between many of the grounds.
Moreover, a theme permeated his arguments and represented the major thrust of the appeal. As he expressed it in the written summary of argument:
“31. …the Magistrate, with respect, misdirected himself: the issue was not whether the children would adjust to a move, but rather what parenting orders best promoted the best interests of these particular children.
32. In assessing the competing proposals of the parties, the Magistrate allowed himself to be drawn into a fundamental error: he approached the case on the basis of asking whether, if the mother was permitted to move there would be detriment to the children to which they would adjust rather than by asking what parenting orders (whether as proposed or as formulated by him) met the childrens’ best interests by reference to the findings about same as made by him.” (emphasis added)
Apart from this essential argument, other grounds alleged that certain findings were unsupported by evidence or were contrary to the evidence. Although the grounds could be dealt with in any order, discussion of the major argument first offers a broader picture of the appeal, into which the more particular grounds then fit. However, before that discussion, some further short background.

BACKGROUND

Except where indicated, the following facts are extracted from the reasons for judgment of Slack FM.
The mother was raised in the town of “E” in Central Queensland. The father was principally raised in M (a provincial city near the coast in South East Queensland).
The parties married in 1985. As seen, they lived in Central Queensland throughout the period of cohabitation, the father being in employment in the mining industry in surrounding districts. The mother was also in employment.
When the parties separated in April/June 1999 the mother continued to reside in the former matrimonial home.
For a short time after separation the husband continued working in the mining industry but was then made redundant and received a “package”. In March 2004, after a period of unemployment, he purchased an ice cream franchise and then operated that business. At about the time of trial, the father had contracted with the franchisors to set up another outlet in the same town.
Since the separation, the father had involved himself in the children’s school and other activities. Further, it was:
“…not uncommon for the children to have regular other contact with their father, due largely to the fact that [E] is a small country town and their father operates a business in [E].”
For all their primary school years, the children attended the same private school in E.
The learned Magistrate recorded that, even before the question of relocation arose, the parents had opposing views about the high school education of the children. His Honour found that it had always been the mother’s view and belief that the children should be educated within the private school system in South East Queensland. She had enrolled the eldest child at a private school in Brisbane. The father believed that appropriate educational environments were available for the children in E.
In February 2005, the mother met Mr R at a social function in E. As seen, Mr R resided then as he does now in South East Queensland and between February 2005 and June 2005 the mother and Mr R maintained regular telephone contact, with Mr R also visiting E on two occasions to spend time with the mother. In September 2005 the mother, the children and Mr R had a holiday together overseas. In October 2005, the mother told the father, through solicitors, of her intention to move to South East Queensland. The children spent part of the Christmas holidays that commenced at the end of 2005 with the mother and Mr R in South East Queensland.
The mother investigated education possibilities and concluded that the children could be educated, as she wished, at a boys’ private school for J and a girls’ private school for the girls.
At trial, further to the orders she sought that would see her and the children relocate to South East Queensland, the mother proposed “that in the event the court determined it is in the interests of the children to remain living in [E], then there should be no change to the arrangements that have existed.…” but also that, as soon as the children reached their Grade 8 year, the mother be at liberty to arrange for them to attend boarding school in South East Queensland.
As recorded in the Federal Magistrate’s reasons, the father proposed that the mother remain living in E and the children spend week about with each parent. The father further sought that in the event the mother decided to leave E, the children reside with him. However, as the mother had indicated that if the Federal Magistrate determined that it was in the best interests of the children to continue the existing parenting arrangements or introduce the father’s proposal for shared care, she would not relocate, Slack FM determined it unnecessary to consider the father’s alternate proposal.
The “tenor” of the hearing before Slack FM can be gleaned from the following passage of his reasons:
“45. I regard the parties as “good” parents who have the interests of their children at the forefront of their thinking. They simply have different views as to the best arrangements for their future. The hearing was, in the main, conducted as a positive enquiry into the future welfare of the children. They are in agreement about many of the important factors relevant to the welfare of the children. Although there are some disputed facts between the parties, in large part, the important issues between the parties are not significantly in dispute.”

THE APPEAL

Did the Federal Magistrate adopt a wrong approach?

At the outset of his written summary of argument senior counsel for the father stressed that the instant case could be distinguished from cases:
• where the parent wishing to relocate was the designated primary carer and residence parent; and
• where the parent opposing relocation could not offer a credible alternative proposal with respect to residence.
As indicated, the gravamen of the argument, within the context just set out, was that the Federal Magistrate had “accorded to the mother “freedom to move” and from that starting point…” approached the case from the standpoint of an enquiry about whether reasons existed for denying the mother the right to move with the children, rather than as an enquiry about which proposal best met the interests of the children.
Senior counsel for the father developed this argument by reference to passages in the reasons. One such part related to the wishes of the children, who at trial were respectively aged nearly 12, 10 and 8 years. During the course of discussion of the evidence about the children’s wishes, the Federal Magistrate recorded evidence from “Ms S”, a psychologist who prepared a family report:
“The children were noted to have thought of the issues regarding the proposed relocation, and responded with maturity in a way that indicated that some reflection had occurred. Their responses and concerns, while similar to each other, reflected their ages and development and were appropriate to these.”
Shortly after, Slack FM said:
“49. I accept and find that the children were genuine in their expressed desire to keep the family intact in [E]. This is their life experience and they are happy living in the current arrangements.
…
51. I consider the more significant issue is my assessment of the likely consequences for the children’s adjustment if a decision is made which is not in accord with their wishes. [Ms S] was of the opinion that the children would eventually adjust to the change although it is likely that they would be disappointed.
52. In summary, therefore, in relation to this issue, I accept and find:
(a)That the children have a desire to continue the existing arrangements within their family and for that reason in particular, want to remain living in [E].
(b)It is likely that, although disappointed, they would adjust in time to a change in their living circumstances in [South East Queensland]. I accept that this proposition would depend upon a number of other factors which I will deal with later in this judgment.”
Senior counsel for the father argued, correctly in my view, that one would expect the findings as to the children’s wishes to be placed on the “balance sheet” in favour of the father’s proposal.
However, senior counsel for the father continued, the first sentence of paragraph 51 and paragraph 52(b) indicate the misdirection of the learned Magistrate; away from asking the impact of factors upon the best interest of the children, towards asking whether the impact could be removed or minimised. As senior counsel for the father put it in his written submissions:
“23. The Magistrate found that “a more significant issue” was whether the children could adjust if a decision was made contrary to their clear wishes. That could only have been a more significant issue if the Magistrate was assessing the childrens’ best wishes and best interests, having decided that the mother should move. That is an error: in terms of principle, the tail was wagging the dog.”
Other comparisons said to exemplify the argument included the following findings, which on their face were favourable to the father’s position:
“53. It is not in dispute that the children have a close and loving attachment to both of their parents.
…
57.    I accept that the children have…an appropriate relationship with [Mr R].…I acknowledge though that…the children …have not experienced living with him on a full-time basis.
…
71.    …their father…has had an ongoing involvement in most aspects of their parenting. I accept that he is a committed parent….
…
75.    The mother’s proposal would necessarily mean that the children would not be able to enjoy the same regular physical contact that they have had with their father to date. It also means that the children would not have their father participating in their parenting as he currently does. For example, he would not be involved in the same way as he is at the moment in their extra-curricular and sporting activities.
…
79.    I accept that, on the father’s proposal, there would be a continuation of the care arrangement that has largely existed since separation and in which the children want to continue and in which they have developed appropriately. The move to a week about arrangement would not, in my view, be significantly different to that which they have experienced although they would spend less time with their mother and less time in the home in which they have predominantly lived throughout their lives.”
Again, senior counsel for the father argued that in other passages Slack FM took a misdirected approach to the treatment of the above findings. These passages included:
“56. I consider though that the predominant care has been provided by their mother and their mother is likely to have been their closest attachment to date. The arrangement that has existed for the past number of years has worked well for them.
…
64.    The mother has demonstrated that she has appropriate parenting skills. The mother has been the predominant carer of the children. The current state of development of the children must, to a significant extent, be attributed to the work and commitment that she has made to the children since their birth.
…
83.    …
(b)As a consequence of the implementation of the mother’s proposal, there will inevitably be a reduction in the regularity and frequency of the time the children spend with their father. I am unable to predict whether there will be any significant adverse consequences as a result of the changes in the parenting dynamic. However, I have found that the mother is a competent and highly skilled parent, the children are bright and intelligent and are developmentally sound and I accept and am satisfied that the father would move to [South East Queensland] if he considered it was in the interests of the children to do so which may ameliorate any potential adverse consequences.” (emphasis added)
…
87.    The past indications are that the mother has supported the relationship between the children and their father.…
…
89.    I consider that the relationship between the children and their father is sufficiently strong that they would be able to sustain and maintain their relationship with him. I consider that they can maintain effective contact by means other than physical contact, such as on the telephone and via email communication although I acknowledge that this contact does not have the same quality and intimacy as physical contact.”
While these passages comprise the prime examples used by senior counsel for the father, I think it appropriate before further addressing his basic contention, to set out the way in which the learned Magistrate ultimately weighed up the considerations. This he did after summarising his findings in relation to s 68F(2) factors and addressing the parties’ competing proposals. He then said:
“101. This is a difficult matter. I accept that the best interests of the children is the paramount consideration but it is not the sole consideration and I need to take into account the right of the mother to choose where she would like to live.
102. In the final analysis, I consider that it is in the best interests of the children that I should adopt, in large part, the mother’s proposal. I acknowledge that will mean that they would relocate to [South East Queensland].
103. My reasons for coming to this conclusion are as follows:
(a)Despite the wishes of the children to the contrary, I consider that they have the emotional development to adjust to the change, despite their disappointment.
(b)Their mother has been their predominant carer and I consider her to be a highly effective and competent parent and I consider that it is in their interests that that should continue. I consider that the mother will be a happier and therefore more effective parent if she is allowed to move to [South East Queensland]. She will also be able to pursue what she considers to be a better educational outcome for the children. She will also receive support and assistance in her parenting from [Mr R].
(c)Whilst I acknowledge that the relocation will inevitably result in less regular and frequent contact between the children and their father, I nevertheless consider that the relationship between the children and their father is sufficiently strong that it can be sustained and maintained.
(d)I consider that the mother does value the relationship between the children and their father and I am satisfied that she will continue to promote that relationship, despite the distance between them.
(e)I consider there are sufficient opportunities for contact between the children and their father so that they can maintain their close relationship with him. I also accept that the father is likely to move to [South East Queensland] if he considers that it is in the interests of the children to do so.
(f)Despite the changes in their arrangements and the move away from their home environment, I consider that the children are well adjusted, intelligent and socially capable children and that they are likely to make those changes without significant adjustment difficulties.
(g)I consider the orders that I intend to make in this matter best promote the interests of the children.”

In my opinion, from the Federal Magistrate’s reasons the impression emerges that he has addressed an unexpressed question (along the lines of); if the mother moves with the children to South East Queensland, will there be any significant harm to the children’s interests, in particular through a deterioration in their relationship with their father.” Or, perhaps more bluntly, will the children be alright if they move to South East Queensland?
It follows that I accept some validity in senior counsel for the father’s argument. However, other questions must be answered before appellable error is established.
(a)If the Federal Magistrate did conduct the enquiry in the manner described, would that be contrary to law?
(b)In any event, is the impression conclusive of the manner in which the Federal Magistrate approached the matter?

(a) What is the law and did the Federal Magistrate err in respect of its application?

The fundamental principle is that now set out in s 60CA of the (s 65E at the time of trial here):
“In deciding to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
But in relocation cases, another consideration exists, as recognised by the High Court in AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238 namely the “right of freedom of mobility of a parent” (U v U para 89).
(In this context of course, it is simplistic to speak of a parent’s freedom of movement, as if speaking only of that parent. In the family context a parent is always free to move. In reality, what is usually in mind is the right of a parent who, if no question of movement arose, would be the preferred residential parent to relocate with the children. When the “right” is so expressed, the complexities of the deliberation become apparent.)
A need for a court to address two legal principles, even if they are in competition, is not unusual. But, in my view, when one is said to be “paramount” and what is paramount is also superlative, namely the “best” interests of a child, application of the other principle presents a major challenge to reason.
I considered this dilemma more than a decade ago in an application for authorisation of a medical procedure for an intellectually disabled girl. Her interests were the paramount consideration, but the wishes of her parents were said to be another. There was a prospect that there was even a legal presumption that those wishes would prevail as to the outcome. I said:
“A requirement that a matter be decided, according to what is deemed to be in the best interests of a child, as the paramount consideration, is a principle of law. It is a principle which requires the court to address the facts of each case from the point of view of the significance of those facts to the welfare of the child. In so doing it must be accepted that a court will ascribe ``values'', to certain facts or sets of facts. For example, in a custody case the court may place significance on criminal behaviour by a parent, as detracting from that parent's suitability as a custodian, or on the greater availability for child-care of one parent as against another, or on the availability of a natural parent as against a stranger in blood. But these ``values'' have a ``factual character'' and are based upon common experience. Moreover, as Brennan J pointed out (at p. 79,191) ``the best interests approach offers no hierarchy of values''.
However, it was recognised by Dixon J in Storie v Storie (1945) 80 CLR 597, at pp.611-612, that to say that a concept was the first and paramount consideration did not exclude other considerations, but merely subordinated them. In endeavouring to apply such an observation however, to cases to be decided according to the paramountcy principle, it is important to avoid treating the ``best interests of the child'' as if that concept was of the same nature as the other values of which I have just spoken, albeit it paramount. The ``best interests of the child'' is not a ``value'' or ``consideration'' which sits amongst the pertinent facts and values in a child welfare case. It is the perspective from which all other facts and values must be viewed. It is not part of the evidence and considerations which fall for deliberation, it is the legal principle which provides the focus of the deliberation.
There is, in my view, in cases to be decided according to a principle of law that the interests of a particular person are paramount, no room in the final deliberation for the application of some other principle of law, which is forever subordinate to the paramount principle, for such a subordinate legal principle would always be subsumed into the paramount principle, and could only ever be properly applied when its application coincided with that of the paramount principle. The subordinate principle would thus be stripped of independent validity. Thus there can be no element of a ``legal presumption'', attaching in these cases, to the wishes of parents.
These conclusions categorise such matters as the wishes of parents, in cases such as this, as ``factual material'' to which an importance or ``value'' will be ascribed, depending on the overall facts of the case.” (L and GM v MM; Director-General, Department of Family Services and Aboriginal and Islander Affairs (1994) FLC 92-449)
Following my line of reasoning in that case, if a proposal to relocate is treated merely as a fact, then no difficulty in the application of the paramountcy principle ought arise. But, as seen, authority continues to speak of an added principle, namely a right of freedom of movement of a parent.
These two principles and that one is subordinate to the other may be expressed plainly enough. But their application often defies cogent explanation. When put to work, their theoretical relationship disintegrates.
Questions about their application abound? In a relocation case, how does one treat the right to freedom of movement? In a finely balanced case which, however, would have seen maintenance of an existing situation as being in the child’s best interests, but for the right of the parent, can the court have regard to that right to “tip” the result in favour of relocation? If so, can such a case be said to have been decided according to the paramountcy principle?
If such a regard to the right is impermissible, can the right only apply when it supports a decision, made on all other relevant factors, establishing that relocation is in the child’s best interests? If so, what is the point of talking about the right at all? Is it not an irrelevance?
Or, does recognition of the right only make sense if it is acknowledged that in some cases, in the realities of life for separated families to give effect to a parent’s freedom of movement, the optimum for the children may not be achieved?
The answer to these questions might be seen as given in the statement of Gummow and Callinan JJ (with which Gleeson CJ, McHugh and Hayne JJ agreed) in U v U at 262:
“89. …whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.”
If that means, as I think it does, that the right to freedom of movement should never be acted upon to counterbalance, or outweigh factors that would otherwise result in a conclusion that the best interests were served by refusing relocation, then as I earlier said, I see no point in any reference to the right.
But, as earlier seen, recognition of the right as a relevant consideration pervades the authorities, here and overseas. In my view, that promotes the impression that the principle really being applied is along the lines of; a move will be permitted if the children will be alright.
This is of course a heresy. In the attempt to avoid that and to demonstrate that paramountcy has been given to a child’s best interests, a formulaic approach may be perceived; traditionally, findings (on what seems often more in the nature of pleadings than evidence) that the denial of freedom to move will diminish the parenting capacity of the party wishing to relocate.
Thus, in my view, the impression of a “sub-text” in many such cases emerges, for the reality is, in my view, that in most cases the right to freedom of movement is a factor that pulls against the best interests of children, as otherwise assessed.
I do not discuss these views to argue against weight being given to a right to freedom of movement. Recognition accords with the reality of life in many societies including ours and is the pragmatic approach. My primary purpose is to discharge a duty of the legal system to explain to the parties, especially an aggrieved party, not just what the law is, but its application to their case.
A secondary purpose is to make this point: a formulation of the law that permitted courts to give weight to the right to freedom of movement though militating against the result that might otherwise be reached, would enable much more convincing explanations for results than is often possible under the present state of the law.
I return to senior counsel for the father’s argument. Of course, in considering whether the Federal Magistrate fell into appellable error, the question is not whether my view of the strained nature of the approach required by authority is correct or not, but whether Slack FM followed the approved approach.
The Federal Magistrate set out the law in a way that has not been challenged on this appeal. He quoted from A and A (Relocation Approach) (2000) FLC 93-035 and the comments of Justices Gummow and Callinan in U and U about that approach.
However, I conclude that, if his Honour conducted the case as asserted by senior counsel for the father, though that approach was consistent with the pragmatism that often seems demonstrated in the result of similar applications, he would have misapprehended the approach required of him by the very authorities he cited.
On the other hand, it follows from what I have said, that if discomfort with the cogency of the reasoning exists, that may well be due to the state of the law rather than any deficiency in the learned Magistrate’s dealing with the case.
I turn then to the next question.

(b)Is the impression (which I have accepted emerges) conclusive of the manner in which the Federal Magistrate approached the matter?

What senior counsel for the father suggests was an erroneous approach by the Federal Magistrate appears to a large extent no more than a consideration of relevant factors, though from the point of view of the competing proposals. For example, while the children’s wishes, standing alone, were undoubtedly a factor favouring the rejection of the mother’s application, in assessing the weight to be given to those wishes, it was entirely appropriate to consider the effect of an order contrary to them. In turn, that consideration involved an assessment of the parenting capacity of the mother, her attitude to the relationship between the children and their father and the extent of contact possible.
Similarly, it was in my opinion appropriate for the Federal Magistrate to take each of the factors that on its face favoured the refusal of the mother’s application and examine the likely impact of relocation on that factor. Such a course is not a distortion of the examination discussed in AMS v AIF and U and U . While the factors relevant to each proposal, such as the father’s involvement in the lives of the children and his effectiveness as a parent, might initially be assessed for their significances to the particular proposal, at some stage a comparative exercise must be performed, in which the extent to which factors relevant to one proposal can be maintained under the other proposal must be considered.
In my view, when the learned Magistrate “re-framed” the questions in relation to some factors, he may well have been doing no more than moving to that comparison of proposals.
Moreover, Slack FM went somewhat further than merely seeing whether factors which favoured the refusal of the mother’s application could be maintained if the application was granted. He made positive findings that:
“56. …their mother is likely to have been their closest attachment to date.
…
67.    I consider it is likely the mother would be happier if she were allowed to reside in [South East Queensland]. I also consider that it is likely that she would be a more effective parent if she were happier. She would receive support and assistance from [Mr R] in assisting her to manage the care of the children. She would also be facilitating what she believes the most appropriate educational environment for the children.
…
81.    …[the father] has the capacity to relocate himself to [South East Queensland]. I accept and find that he would endeavour to do so if he felt it was in the interests of his children to do so.
…
95.    …
(b)The mother will be pursuing what she considers to be the most appropriate educational arrangements for the children and likely to have a strong commitment to the educational needs of the children.”
While grounds of appeal yet to be considered challenge the correctness of some of these findings, for present purposes the point is that, by these findings, the very relocation sought by the mother was found to bring benefits directly related to the interests of the children.
The course of the learned Magistrate’s consideration of the case can be gleaned from the following headings, which commenced after an introduction, background and the principles as already discussed:
“Proposals of the parties
The issues relevant to determining the best interests of the child having regard to the factors set out in s.68F(2) and the objects of s.60B of the Family Law Act (as Amended)(hereafter “the Act”)
Evidence
Wishes
Attachments
Needs of the children
Parenting capacity and proposals
Likely consequences of change in parenting arrangements
Attitude to parenting demonstrated by the parents and the capacity to promote and support the relationship between the children and the other parent
Communication
Summary and findings in relation to relevant s.68F2 factors
The competing proposals
Proposals of the Mother – living in [South East Queensland] with the children
Proposals of the father
Conclusions”
The structure of this judgment certainly provided the opportunity to the learned Magistrate to approach the case in accordance with authority.
Returning then to the essential question, namely whether, because of such “strain” as may appear in the learned Magistrate’s reasoning and the instances of reframing questions in particular, I, sitting as an appeal court, ought draw an inference that the Federal Magistrate approached the determination of this case on an incorrect basis. In the face of the expressed reasoning, I do not think that I should draw any such inference.
Moreover, even if at some stage, Slack FM did pose for himself a question along the lines of if relocation occurs will the children be alright, that would not necessarily constitute error, so long as, for the purposes of reaching his ultimate conclusion, he addressed the right question.
There is a strong presumption in favour of the correctness of the result of the court below (Australia Coal & Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627).
Ultimately, in respect of this argument, I am satisfied that no appealable error occurred.

Ground 8(a)

This ground reads that:
“8. The learned Magistrate erred in making each and all of the following findings in that each and all are contrary to the evidence:-
a.the move to [South East Queensland] would be “a disappointment” to the children when in fact the evidence was clearly that such a move would have “a profound effect” upon them and their attachment to their father.”
The ground, despite its wording, does not express only a finding made by the Federal Magistrate, but identifies both a finding and the challenge to it.
As seen, among the evidence before the Federal Magistrate was a family report by Ms S. The finding attacked in this ground was expressed in paragraph 51 of Slack FM’s reasons as follows:
“51. …[Ms S] was of the opinion that the children would eventually adjust to the change although it is likely that they would be disappointed.”
Senior counsel for the father quoted the following passages from Ms S’s report:
“There would be a significant effect on the children if there were to be a reduction in the current contact with their father from his significant involvement in their day to day life that which is proposed by [the mother]…The proposed change would have a profound effect on the nature of the current relationship from one of a parent significantly participating in the lives of the children. The proposal does not appear to have considered the ongoing importance of attachment relationships in primary aged and adolescent development.
…
The children appear significantly attached to, and see value in their relationship with each parent. [The father] has been able to maintain a significant presence in the day to day life of his children which is not accurately reflected in the number of nights that the children spend with him.
[The mother] has an understandable desire to relocate with her partner. However, this would have a significant effect on the parents’ relationship with their children, as the current arrangement where they are able to see both parents frequently, to move between each home with relative ease, and to have both parents involved in their school and other activities, would not be able to continue.
While the children were described by their parents and [Mr R] as being happy and well adjusted, and these opinions certainly seemed supported by observations during the interviews…some care should be taken not to assume that the children will cope well with separation from a significant attachment figure.
…
If the children were to relocate to [South East Queensland] with their mother, it would have a significant and negative effect on their relationship with their father…” [emphasis added]
Senior counsel for the father also quoted some of Ms S’s oral evidence:
“FEDERAL MAGISTRATE: …did you explore with the children what their attitude or consequences might have been if a decision was made against their wishes? --- No, I didn’t.
Do you have any view about what the response might be, either psychologically or emotionally if a decision was made against their wishes? ---I think they would be very disappointed. I think that they were concerned about the potential change in their relationship with either of their parents and I think that…we need to be careful that – I mean, there have been some issues concerning anxiety with two of the children but I am not really quite sure what the change in circumstance will do to them emotionally. I think that children do learn to live with the decisions but I think they would certainly find it difficult in either way, to be separated from each of their parents for a significant period of time.” [emphasis added]
Further, senior counsel for the father referred again to the Magistrate’s findings, earlier set out, about the maturity of the children and the clarity of their wishes not to relocate.
In considering the argument contained in this ground, care must be taken to recognise the limitations of both the evidence of Ms S and the finding attacked.
The finding relates only to the reaction of the children. Some of Ms S’s evidence quoted is addressed to other considerations, such as the effect of relocation on the father’s relationship with the children and, for that matter, the children’s relationship with the father. I doubt that her evidence about those matters is relevant to this ground, but in any event there was no appeal against the learned Magistrate’s findings in respect of that evidence:
“77. As I understand her evidence, [Ms S] accepted that the children in view of their ages, level of maturity and development and the strength of their existing relationship with their father, can sustain and maintain their relationship with their father upon the proposal of the mother. I consider though, that to a significant extent, their capacity to sustain their relationship with their father would depend on the promotion of that relationship by the mother and I will deal with this under another head.”

Further, Ms S’s comments about the impact of relocation on the children in her report may be addressing the immediate future, whereas both her oral evidence and the Federal Magistrate’s finding may well refer to a longer time frame.
Further, the sentence attacked (repeated here for convenience):
“51. …[Ms S] was of the opinion that the children would eventually adjust to the change although it is likely that they would be disappointed.”
does not purport to repeat any particular passage of Ms S’s evidence.
In my view, the Federal Magistrate’s interpretation of Ms S’s evidence is not inconsistent with it.
Having regard to the narrowness of the aspect addressed in the statement challenged, in the end I am not satisfied that that statement challenged contains a mistake of fact.

Ground 8(b)

This ground asserts that the learned Magistrate erred in making the following finding:
“b. the “attachment of the children to their Mother is likely to have been their closest attachment to date” when in fact the evidence was that the history and nature of the childrens’ care points to no such conclusion.”
Again, what is expressed as a finding is both the finding challenged and the basis of that challenge.
Despite reference in the ground to evidence of the “history and nature of the children’s care”, I was not taken by either counsel to such evidence in any detail, though senior counsel for the father referred to the husband’s increased involvement in the care of the children during the long period that he was unemployed following separation.
In respect of that period, in the father’s affidavit (filed 29 December 2005, paragraph 16) he deposes that during that period, though he offered day time care to the children structured around their schooling, pre-schooling or kindergarten, the children slept each night with the mother in the former matrimonial home. Moreover, however, when the age of each child is kept in mind, the proportion of the life of each child representing the period of the father’s redundancy, varies.
I am not satisfied from such evidence to which I was referred that the finding in paragraph 54 was not open to the Federal Magistrate, namely:
“…Their mother has been their predominant carer.”
In any event, there was no appeal ground challenging that finding.
Senior counsel for the father’s written submissions were:
“33. In finding that “the attachment of the children to their Mother is likely to have been their closest attachment to date” the Magistrate drew a distinction between the parents in terms of the childrens’ attachment that was neither open nor justified on the evidence.
34.    Such a distinction is always artificial in circumstances where, as here, both parties have had a significant, on-going, day to day involvement in the care of the children from a very young age. The distinction has meaning as used in earlier authorities in this area, viz, where there is a clearly established “residence parent” on the one hand and a “contact parent” on the other. It has no such meaning, and no such relevance, here.
35.    Further, and in any event, such a conclusion by the Magistrate is contrary to the evidence, both as to the day to day involvement in the childrens’ care over seven years, from a very young age in each case, and also as to the expert evidence. As but one example, after the father became redundant, he cared for the children full time on a daily basis for a period of about five years while the mother continued to work full time.
36.    The wishes of the children – assessed as being expressed “with maturity” and indicative that “some reflection had occurred” – were also contra-indicative of such a conclusion.”
As to the submission that the conclusion challenged was contrary to expert evidence, at paragraph 58 of her report Ms S said:
“58. The children appear significantly attached to, and see value in their relationship with each parent. [The father] has been able to maintain a significant presence in the day to day life of his children which is not accurately reflected in the number of nights that the children spend with him.
The learned Magistrate recognised that each child had a close and loving attachment to each parent (paragraph 55 of his reasons).
The finding of the Federal Magistrate that the children’s closest attachment was to the mother is not necessarily inconsistent with Ms S’s opinion that the children were attached to each parent or the learned Magistrate’s finding to the same effect. In any event, then if there was an inconsistency between Ms S’s evidence and Slack FM’s conclusion, the Federal Magistrate was not obliged to accept Ms S’s opinion.
The real challenge is to whether, from a finding that the mother was a predominant carer, the inference could have been drawn that the mother was likely to have been the children’s closest attachment to date. “Findings” such as that attacked here, while remaining findings of fact, involve inferences drawn from other facts.
In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273-274 Mahoney JA said:
“… A fact is found in a particular case if the Judge is satisfied that it is so.… The determination of facts is assumed to be objective. But it would be to misunderstand the basis of a decision, and in particular decisions in matters of assessment, weight and the like, to assume that decisions can always, or perhaps ordinarily, be justified by objective rather than subjective consideration. And, if such be true of the reasoning process, it is, in my opinion, a mistake to conclude that a Judge should or can set forth the reasoning process he has followed from one fact to another.”
In Athens & Anor v Randwick City Council [2002] NSWCA 83 Giles JA said:
“The touchstone of ability to understand why the decision was made does not call for reference to all the evidence in the case, or for resolution of all conflicts of fact. Nor does it call for explicit description of every step in a chain of reasoning; indeed, in the decision-making process there are often judgmental steps which can only be stated without elaboration.…”
While it must be conceded that it does not necessarily follow that a child’s closest attachment will be with the parent with whom the child has spent most time, in the instant case there were findings about other aspects of parenting from which inferences about attachment could be drawn; e.g. the quality of the parenting by each parent; “a healthy custodial environment for the children in their mother’s household.”
I am satisfied that the conclusion of the Federal Magistrate was open to him.

Grounds 8(c) and 8(d)

Ground 8(c) asserts that the learned Magistrate erred in making the following finding:
“c. The Father could relocate to [South East Queensland].”
Ground 8(d) asserts that the learned Magistrate erred in making another finding on the same topic.
“d. The Father was likely to relocate to [South East Queensland].”
The learned Magistrate mentioned the matter of the father relocating to South East Queensland in quite a number of places:
“81. I assess the father as a committed parent. He has the capacity to relocate himself to [South East Queensland]. I accept and find that he would endeavour to do so if he felt it was in the interests of his children to do so.
…
83(b) …I accept and am satisfied that the father would move to [South East Queensland] if he considered it was in the interests of the children to do so which may ameliorate any potential adverse consequences.”
…
93(g) If the mother were to relocate to [South East Queensland], I consider it likely that the father would endeavour to relocate if he considered it was in the interests of the children to do so but his capacity to do so would depend upon his ability to obtain a reliable income.
…
93(j) …Any potential adverse consequences may be ameliorated by the mother’s capacity as a parent; the extent to which the mother is prepared to promote the relationship between the children and their father; and, the prospect of the father moving to [South East Queensland] if he considers it is in the interests of the children to do so.
…
103(e)I consider there are sufficient opportunities for contact between the children and their father so that they can maintain their close relationship with him. I also accept that the father is likely to move to [South East Queensland] if he considers that it is in the interests of the children to do so.”
At the outset it will be recognised that the findings challenged were qualified in ways not identified in the grounds. The Federal Magistrate did not simply find that the father could, or was likely to, move to South East Queensland.
Moreover, the content of paragraph 82 of Slack FM’s reasons is critical to an appreciation of his conclusions on this topic:
“82. The father has no current desire or intention to do so [move to South East Queensland]. He has not made any enquiries as to the prospects that he would have for obtaining either employment or pursuing business interests in [South East Queensland]. The fact that the father can live and work in [South East Queensland] is a matter that I can take into account but there is doubt and uncertainty about his capacity to relocate himself in a financial sense. I accept and find that, although such choice is available to him, it could only be practically achieved if he were able to obtain satisfactory employment or other business opportunities or was otherwise able to support himself financially.”
I consider the written submissions for the mother adequately respond to the arguments in support of these grounds. The mother’s submissions were:
“GROUND 8(c)
26. The finding that the father could relocate to [South East Queensland] was little more than a statement of a matter which could scarcely be contradicted. In isolation it was a proposition entirely separated from whether he was likely to relocate to [South East Queensland], or whether he wanted to. Apart from the need to dispose of his businesses and in fact, physically to relocate, there was no reason why the father could not relocate to [South East Queensland].
GROUND 8(d)
27. What is asserted in this ground is not quite what the learned Federal Magistrate found. Instead, in fact, the statement was qualified by the expression “if he considers that it is in the interests of the children to do so” (Judgment paragraph 103(e)). That was a comment favourable to the Appellant and an acknowledgement of his capacity to give consideration to the interests of the welfare of his children. It is not a finding in isolation. The learned Federal Magistrate heard evidence and also made remark in his judgment about the father’s businesses and his interest in remaining in [E].”

Ground 8(e)

This ground asserts that the learned Magistrate erred in making the following finding:
“e. the learned Magistrate could not predict if there would be “adverse consequences for the children as a result of the move to[South East Queensland]” when in fact there was clear evidence that there would be likely adverse consequences for the children to such a move.”
The passage quoted in this ground appears in the following paragraph of the Federal Magistrate’s reasons:
“93(j)On the mother’s proposal, there will inevitably be a reduction in the frequency and regularity of the time they spend with their father. Although I consider it likely that they will have to adjust to the changes which are significant for them, I am unable to predict whether there would be any significant or adverse consequences. Any potential adverse consequences may be ameliorated by the mother’s capacity as a parent; the extent to which the mother is prepared to promote the relationship between the children and their father; and, the prospect of the father moving to [South East Queensland] if he considers it is in the interests of the children to do so.”
It will be noted that the Federal Magistrate refers to the children having to “…adjust to the changes which are significant for them…” I think the passage taken overall is one in which the Federal Magistrate was looking to the longer term, rather than the immediate future.
His Honour was not focussing on the incidence of adverse consequences, but their duration and ultimate significance. In those circumstances, having regard to what he found of the mother’s capacity as a parent and, in particular, her promotion of the relationship between the children and the father, a conclusion that the learned Magistrate could not predict adverse consequences (in the longer term) was open.
As Gummow and Callinan JJ aid in U v U (at 262):
“90. …Just how far ahead it is possible for a trial judge to look, and how reliable long term predictions about domestic, marital and social arrangements in modern times can be, are matters upon which minds will inevitably differ. The exercise, of looking to, and making orders for the future, is peculiarly a discretionary one. The exercise of the discretion in this case has not been demonstrated to be erroneous.”

Grounds 5 and 6

Ground 5:
“5. In light of the unchallenged finding that the Mother “would [not] be any less effective and capable as a parent than she has been to date if she were to continue to live in [E]”, the learned Magistrate’s finding that the Mother “is likely to be happier living in [South East Queensland]” is, as a matter of law, irrelevant to which proposal was in the best interests of the children.”
Ground 6 asserts that the learned Magistrate erred in making the following finding:
“6. In light of the unchallenged finding that the Mother “would [not] be any less effective and capable as a parent than she has been to date if she were to continue to live in [E]”, the learned Magistrate’s finding that, if the Mother moved to [South East Queensland], she was “likely to become a more effective parent” is erroneous in that:-
a.it has no evidentiary foundation;
b.it is contrary to the Magistrate’s own unchallenged finding that the Mother “is [already] a particularly focused and effective parent.”
Relevant findings are:
“66. The mother sets out her reasons for wishing to relocate to [South East Queensland]. Essentially, she says her primary motivation is to facilitate what she considers to be the future educational needs of the children. She is also motivated to pursue her relationship with [Mr R]. I accept that the mother has always had the view that, as soon as the children reached high school age, it would be in their interests to undertake their higher school education in the private school system in Brisbane. I also accept that the decision to relocate to [South East Queensland] is partly motivated by her long standing view that it is in the interests of the children to be educated at a school such as [a boys’ private school in South East Queensland]. Of course, part of her motivation is that she wants to continue to pursue her relationship with [Mr R]. I accept that the mother has a committed relationship with [Mr R] and is wanting to cement that relationship and commence residing with him.
67. I consider it is likely the mother would be happier if she were allowed to reside in [South East Queensland]. I also consider that it is likely that she would be a more effective parent if she were happier. She would receive support and assistance from [Mr R] in assisting her to manage the care of the children. She would also be facilitating what she believes the most appropriate educational environment for the children.
68. However, in making those findings, I do not consider the mother would be any less effective and capable as a parent as she has been to date if she were to continue to live in [E]. The mother has demonstrated that she is a particularly focused and effective parent. She has essentially been a single parent since 1999 during much of the children’s early years. I consider that she would be an effective parent wherever she was residing. It would nevertheless be an advantage to the children for their predominant parent (their mother) to be as effective a parent as she can be in the circumstances.
…
93(e) The mother is a particularly competent, independent and sound parent. It is likely that she would be a happier and more effective parent if she were living in [South East Queensland].
…
95(a) The mother, who has been their predominant carer, is able to further her relationship with [Mr R] and is likely to be happier living in [South East Queensland] and therefore become a more effective parent.
95(b) The mother will be pursuing what she considers to be the most appropriate educational arrangements for the children and likely to have a strong commitment to the educational needs of the children.
100. The likely disadvantages to the children from such an arrangement [the father’s proposal] are that the mother will be unhappy with such an arrangement and it is in their interests to enhance as much as possible the happiness and effectiveness of their predominant carer.
103(b)…I consider her to be a highly effective and competent parent and I consider that it is in their interests that that should continue. I consider that the mother will be a happier and therefore more effective parent if she is allowed to move to [South East Queensland]. She will also be able to pursue what she considers to be a better educational outcome for the children. She will also receive support and assistance in her parenting from [Mr R].”
Senior counsel for the father submitted that there was no evidence that a decision that meant the children would remain in E would impinge upon the mother’s happiness and/or her capacity to parent. That may be so but it is not any such finding that this ground attacks. The finding challenged was that the mother’s effectiveness as a parent would be greater if living in South East Queensland. Of that finding, senior counsel for the father submitted, in his written outline:
“18. There is no evidence – expert or otherwise – to support the Magistrate’s finding as to the mother’s state of mind, any alleged affect on her parenting or any alleged potential disadvantage that may have for the parenting of the children. There is no evidence to that effect in the mother’s affidavit, her affidavit in reply or in her oral evidence. There is no evidence to that effect in the Family Report, either in terms of what the mother said to the report writer or in any independent opinion of the report writer. No such proposition was put to the mother or the family report writer by either counsel or the Magistrate.”
The finding that the mother was likely to become a more effective parent if she moved to South East Queensland with the children is not necessarily inconsistent with a finding that she was already a particularly focussed and effective parent.
As was the case with the findings about the primary attachment of the children, the finding that the mother was likely to be an even more effective parent living in South East Queensland was one which involved an inference drawn from other findings. As seen, the conclusion that it was likely the mother would be a more effective parent if she were happier, follows a conclusion that it was likely the mother would be happier if she were allowed to reside in South East Queensland. In turn, that finding followed consideration of the reasons the mother gave for wanting to live in South East Queensland.
In my view there can be no doubt that the inference drawn by the Federal Magistrate was open to him.
In his written submissions senior counsel for the father referred to comments by Bryant CJ and Kay J in Fitzpatrick and Fitzpatrick (2005) FLC 93-227 (at para 65). However, their Honours were there referring to the inappropriateness of a conclusion drawn in the absence of expert evidence. I do not consider that the conclusions challenged here were such as could only be based on expert opinion.
As to the proposition in ground 5 that the finding that the mother was likely to be happier living in South East Queensland was irrelevant, its relevance clearly was as a preliminary finding to that of the mother’s likely increased effectiveness as a parent in South East Queensland.

Ground 9

“9. Having found, correctly, that no finding could be made as to the competing educational proposals, the learned Magistrate erred in finding that the Mother’s capacity to “pursue what she considers to be a better educational outcome for the children” was either a relevant matter in determining the best interests of the children or, alternatively, an advantage of the mother’s proposal.

As to the competing views of the parents about secondary schooling the Federal Magistrate said:
“62. I do not consider that I can reliably determine that either proposal is likely to result in better educational outcomes for any of the children.…
63. I do consider though that the mother particularly favours boarding school as an option for the children and wherever she lives, in my view, she would consider that as an option for the children.”
In accordance with the ground, senior counsel for the father submitted that there was an inconsistency between, on the one hand, the Federal Magistrate’s findings that the mother would be pursuing what she considered to be optimal educational arrangements for the children and that that situation would advantage the mother’s proposal, and on the other hand, the findings that he could not determine that either proposal was more likely to result in better educational outcomes for any of the children and that either proposal was legitimate and reasonable.
However, the clear point of the Federal Magistrate’s findings (set out in paragraphs 67, 95(b) and 103 (b), all earlier quoted) was not to prefer one educational arrangement over another, but was just that, if the mother was able to pursue the alternative that she considered optimal, that would increase her satisfaction.

Remaining grounds

In my view, the aforegoing discussion deals with the issues raised in the grounds save ground 2(b). That ground was:
“The learned Magistrate erred in evaluating the evidence in respect of the childrens’ wishes by, in particular, taking into account evidence that the children could adjust to a move but failing to take into account clear evidence that such a move would:-
…
b. in permitting a move fails to consider “the ongoing importance of attachment relationships in primary [school] aged and adolescent development”.
As already seen, the Magistrate addressed the questions arising from the proposed relocation thoroughly, including the effect on the children’s attachment to their father. Senior counsel for the father did not point to any evidence which dealt with some particular aspect of attachment relationships not dealt with by the learned Magistrate.

Conclusion overall

It follows from my conclusions that none of the grounds are made out, and that the appeal will be dismissed.

Costs

Senior counsel for the father conceded that if the appeal failed, costs would follow that event.

ORDERS

That the appeal be dismissed.
That the appellant father pay the respondent mother’s costs of and incidental to the appeal as agreed or, in default of agreement, as assessed.
I certify that the preceding 120 paragraphs
are a true copy of the Reasons for Judgment
herein of the Honourable Justice Warnick.
………………………………….
Associate
Date: 15 November 2006