Bale v Jenkins

[2007] FamCA 809

FAMILY COURT OF AUSTRALIA

BALE & JENKINS [2007] FamCA 809

FAMILY LAW – APPEAL AGAINST DECISION OF FEDERAL MAGISTRATE – CHILDREN – RELOCATION – Whether the mother and child be allowed to relocate to China – Best interests of the child – Unwillingness of mother to facilitate and encourage close and continuing relationship between the father and the child – Self-represented parties – Appeal dismissed – Each party to bear their own costs.

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Application dismissed.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Human Rights and Equal Opportunity Commission Act 1986

A v A (2000) FLC 93-035 at 108
AMS v AIF (1999) 199 CLR 160
CDJ v VAJ (1998) FLC 92-828
H v L (2000) FLC 93-062
House v The King (1936) 55 CLR 499
U v U (2002) FLC ¶93-112

APPELLANT: MS BALE

RESPONDENT: MR JENKINS

FILE NUMBER: MLM 8498 of 2004

APPEAL NUMBER: NA 73 of 2006

DATE DELIVERED: 10 August 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Finn, Warnick & May JJ

HEARING DATE: 18 May 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 25 August 2006

LOWER COURT MNC: [2006] FMCAfam 460

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Appellant appeared in person

SOLICITOR FOR THE RESPONDENT: Respondent appeared in person

Orders

(1)That the application to adduce further evidence filed 30 April 2007 be dismissed.

(2)That the appeal be dismissed.

(3)That each party pay their own costs of and incidental to the appeal.

It is noted this judgment for all reporting and publications purposes be referred to as BALE AND JENKINS.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 73 of 2006
File Number: MLM 8498 of 2004

MS BALE

Appellant

And

MR JENKINS

Respondent

REASONS FOR JUDGMENT 

Finn J:

1.I agree with Warnick and May JJ that this appeal should be dismissed and that there should be no order as to costs in relation to the appeal. I do so broadly for the reasons given by their Honours.

2.As is clear from their Honours’ judgment, the appeal was largely directed to Morcombe FM’s refusal to allow the mother and child to relocate for a period to China. The opportunity for that relocation no longer exists, and thus the appeal could well be said to be misconceived.

3.It is, however, important to point out that while the orders which are the subject of the appeal were made on 25 August 2006 and therefore under the Family Law Act 1975 as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006, the parties being self-represented at the hearing of the appeal, were unable to put argument to this court on any matters of principle. Accordingly this appeal was not a suitable vehicle for any significant statement of principle from this court.

Warnick and May JJ:

4.On 25 August 2006 Morcombe FM dismissed an application by the mother to relocate with the child to Beijing, China.  The mother wanted to go there to teach at Beijing University and it was her intention that the child attend school in Beijing. The child was born in January 1999, and is presently aged 8 years.

5.In a Notice of Appeal filed on 18 September 2006, and amended by a later Notice of Appeal filed on 14 April 2007, the appellant mother appeals from the orders made by Morcombe FM. The child was born in January 1999, and is presently aged 8 years.

6.The mother asks that the appeal be allowed and for the following orders to be made, which would allow the mother and the child to relocate to the United Kingdom. It is necessary to set out in full the orders as asked by the mother.

1.That all extant orders be orders be discharged.

2.That the mother and the child, … born January […] 1999, be permitted to leave the Commonwealth of Australia and to relocate to the UK/Europe for a period of not less than two years.

3.That the child reside with the mother and the mother be solely responsible for the child’s long term cay [sic] to day care and development.

4.That in the  event that the Respondent contests the mother’s right to relocate with her child that the Respondent be required to co-locate to England for a period of up to 12 months and to live within 50km’s of the mother, so as to facilitate support for the mother and for the best interests of the child.

5.That recognition of the private sperm donor agreement be established for the benefit and in the best interests of the child and the mother.

6.That should the respondent wish to have further contact that the Respondent be responsible for all costs associated with his contact and that such contact be subject to a process of mediation prior to agreement between the parties.

7.That a Child’s Representative be appointed by the courts and required to meet with the child and able to report to the Courts prior to any orders being determined by the Courts.

8.That upon the return to Australia by the mother and child, that the Respondent be required to co-locate (within 3 months and within 50km’s) to the area where the mother and child reside, this being Queensland, Australia, and that the Respondent be required to provide material support of one night per week and every other weekend for the direct and indirect benefit of the child.

9.That at the expiration of the orders sought for a period of two years, that NEW orders be made upon the return to Australia by the mother and child and those orders be relevant to the situation of all parties at the time of a new hearing, but include the order to co-locate for the benefit of the child directly and indirectly by providing the support to the mother. (Original emphasis)

10.That [Mr Jenkins], the Respondent, his current defacto [sic], [Ms R] and the Applicant mother, [Ms Bale], be required to attend Family Therapy for the benefit of the children.

11.Such further orders as the court deems appropriate

The orders now sought by the mother are different from those asked by her before the Federal Magistrate contained in the amended application filed 14 July 2006 and reproduced in the judgment at paragraph 10:.

1.        That all extant orders be discharged.

2.That the mother and the child … born January […] 1999 be permitted to relocate to China to fulfil an employment contract at Beijing University commencing September 1 2006.

3.That the mother be permitted to further pursue her overseas employment contract as needed in order to be more employable and to provide a life for herself and her daughter.

4.That the child live with the mother and the mother be solely responsible for the child’s long term day to day care and development.

5.That the child be permitted to leave the Commonwealth of Australia in the care of the mother to travel and reside overseas for a minimum of two years.

6.That the respondent spend time with the child for the benefit of the child and that time spent be determined by this Honourable Court taking into consideration the private sperm donor agreement between the parties.

7.That the respondent be responsible for the full cost of all travel and communication and that where possible all flights be direct flights and that the child … be accompanied on international flights until she is at least 12 years of age.

8.That in the event that the mother secures a second contract either in China or another country as required for recognition in tertiary secondary institutions in Australia that the same contact orders apply those being a one month return to Australia at three weeks with the respondent and one week with maternal relatives or as determined by this Honourable Court.

9.Such further order as the Court deems appropriate.

7.The order made by Morcombe FM on 25 August 2006 was as follows:

1.That the application filed 14 July 2006 and all outstanding applications be dismissed.

8.The appellant filed an Application in a Case on 30 April 2007 to adduce further evidence at the hearing of the appeal. The appellant sought orders:

1.That additional evidence be permitted relating to the court hearing heard by Justice Morcombe on 23^rd August 2006.

2.That a job assessment report be tabled as evidence and letters re future employment in England.

3.That emails between [the mother and the father] be permitted as evidence of [the father’s] unwillingness to do the things he says, including what he says to the Courts.

History

9.The mother is 44 years of age, is of British heritage and is a qualified high school teacher in the area of psychology. The father is 42 years of age and, after completing a Diploma of Education in 1993 and working as a teacher for a period of five years, is currently self-employed. He is an Australian citizen.

10.There is some disagreement between the parties as to the duration and nature of their relationship. Although they began a relationship in 1993, the mother maintains that the relationship ended in late 1996. It is the father’s position that the relationship lasted until 2000. The exact duration of the relationship is of little relevance in this appeal.

11.The contention surrounding the nature of the relationship between the parties has some relevance with respect to this appeal. The mother alleges that a private sperm donor agreement exists between her and the father, which resulted in the birth of the child. The father asserts that their relationship was based on mutual affection and attraction. It is not relevant here to discuss the complexities of that issue as there are a great many implications that were not before the trial Judge and were not before us on the appeal.

12.The disagreement between the parties surrounding the nature of their relationship and their obligations in relation to the child forms part of the mother’s argument.

13.There was no real challenge to the findings of fact made by the learned Federal Magistrate, rather that he should have taken into account other factors and made orders allowing the mother to take the child to China. The paragraphs from the judgment, reproduced below will be treated as the relevant facts.

4. The mother and [the child] live at [the Sunshine Coast] in Queensland and the father resides at [S] in Victoria. The father has re-partnered with Ms [R] and they are the parents of one child, [a son], born [in] June 2002 and presently 4 years of age.

5. The mother seeks to relocate to Beijing for a specific period with [the child], to teach at Beijing University. She proposes that [the child] attend school in Beijing.

6. The father wishes for [the child] to remain living in Australia so that [the child] can continue to spend time with him pursuant to the existing order.

…

19.The parties travelled around Australia from when [the child] was about three months until she was about 1 year old and the father and the mother spent their full time with the child during that period.

20.The mother moved to [the Sunshine Coast] in March 2000 and during this time the father travelled to [the Sunshine Coast] every school holidays to see [the child]. The mother returned to Victoria in late 2004 to undertake study at Monash University and the father spent more time with [the child] in that time particularly on weekends.

21.An order was made on 11 April 2005 and the father has spent time with [the child] in accordance with that order, except that telephone contact has been difficult and limited because the mother gets distressed when the father telephones and claims that [the child] gets distressed as a result of her mother’s distress.

22.The mother is a qualified high school teacher in the area of psychology.

23.The father completed a Diploma of Education in 1993 and worked as a teacher for five years. When [the child] was born the father ceased teaching and commenced building bird houses. He is a local counsellor and also works as an emergency teacher from time to time.

14.A significant fact in this matter is that final parenting orders were made by Hartnett FM on 11 April 2005, by consent. They provided:

BY CONSENT:

1.    That all parenting Orders herein be discharged.

2.That the child …  born [in] January 1999 live with the Mother.

3.That the Mother have sole responsibility for the day to day care welfare and development of the said child, save for contact periods when the Father shall have same.

4.That the Mother be permitted to relocate with the said child to Queensland forthwith.

5.That the Father have contact with the said child as follows:

(a)For one half of the long summer vacation and the mid year school term holidays (Queensland).

(b)From the first Saturday to the second Wednesday of the first and third school term holidays (Queensland).

(c)At times to be agreed in Queensland upon the Father giving 21 days notice of his intention to travel to Queensland and being a minimum of two nights contact in return.

(d)By the Father telephoning the child once each week.

(e)In the event the parties reside within 200kms of each other:

(i)Each alternate weekend at times to be agreed.

(ii)For one half of all school holiday periods.

(f)As may otherwise be agreed.

6.That contact pursuant to paragraph 5(a) and (b) hereof be aligned as much as possible with the Victorian school holidays.

7.That for purposes of the child travelling to Victoria for contact”

(a)      The parties arrange direct flights.

(b)The Father pay all airfares, save for the mid year term holiday return airfare which shall be paid by the mother.

8.That paragraphs 8, 9, 10 of the Orders made 7 December 2004 be discharged.

9.That either party be at liberty to take the said child overseas for a holiday at times to be agreed, provided:

(a) The proposed travelling party give the other party 30 days notice in writing of their intention to do so.

(b)The proposed travelling party provides to the other party full particulars of the proposed travel and a copy of the child’s return air ticket.

(c)The non-travelling party shall have leave on short notice to apply to the Court to vary or discharge this paragraph of these orders.

10.The Mother have leave to apply to the Court with respect to any proposals to take the child overseas in connection with the Mother’s future employment or study.

11.For the purpose of contact pursuant to paragraph 5(a) hereof the Father’s contact period alternate between the first and second halves of the summer vacation commencing with the second half in 2005/2006.

12.That each of the parties do all things necessary to effect registration of the Father as the father on the child’s birth certificate.

13.Order pursuant to Section 65DA(2).

14.The Order for appointment of the Child Representative herein be discharged as and from 11 May 2005.

15.That all extant applications be otherwise dismissed and the matter removed from the list of cases awaiting determination.

16.Certify for advocacy.

15.As can be seen the orders allowed the mother and the child to relocate to Queensland and a contact arrangement was established which provided for the father to have contact with the child in both Queensland and Victoria.

16.In paragraph 10 the consent orders contained a provision which enabled the mother to apply for leave from the Court to relocate overseas with the child in conjunction with future employment or study.

17.The mother, who was represented now maintains that she agreed to those orders under ‘duress’.

Grounds of Appeal

18.We are acutely aware that both parties appeared before us as self-represented litigants. It should also be recognised that they each put great effort into preparing and presenting their cases to the best of their abilities. The Court appreciates the many difficulties faced by parties in understanding the complexities and nature of the appeal process

19.The mother’s amended grounds of appeal filed on 14 April 2007 contain two grounds, under the headings “Error of law or fact” and “Unjust”.  These grounds are recorded as follows:

“1.      Error of law or fact –
Justice Morecombe dismissed fundamental facts.  These being –

- the existence of a private sperm donor agreement between the parties.

- the existence of a second private sperm donor agreement between [the father and Ms R].
- the lack of witnesses that could provide testimony to the fact of their existence.
- the dismissal of relevant evidence including the original birth certificates for the two children whom [Mr Jenkins] now claims he is the father.

2.        Unjust –
The orders of Justice Morecombe are not in the best interests of the child, either directly or indirectly.
- the bias of Justice Morecombe against the applicant mother.”

The Judgment

20.Given the complicated nature of this appeal, it is necessary to outline the trial Judge’s reasons for judgment in some detail. As previously stated, the substance of the matter before Morecombe FM was a relocation application by the mother for leave to relocate to China.

21.After describing the history of the parties in some detail, his Honour summarised the orders sought by both the mother and the father respectively. He then considered their submissions in light of s.60CA and s.60CC of the Family Law Act 1975 (Cth) (“the Act”).

22.Sections 60CA requires that the best interests of the child must be regarded as the paramount consideration. In determining these best interests, his Honour was required to consider the matters set out in s.60CC. He correctly observed that (paragraph 13):

“13.…There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both of the child's parents, and the second is the need to protect the child from physical or psychological harm or from being subjected or exposed to abuse, neglect or family violence.”

14.The Act describes these considerations as primary and as a note to s.60CC points out, are consistent with the first two objects of Part VII as stated on s.60B. Accordingly, I give them full and careful consideration.

23.His Honour also considered the thirteen additional considerations set out in s.60CC(3) of the Act and the extent to which each parent has fulfilled his or her parental responsibilities and facilitated the other parent in fulfilling his or her responsibilities in accordance with s.60CC(4) of the Act.

24.Morecombe FM considered the relationship between the child and her parents in some detail, with particular reference to the evidence of the Family Report Writer commencing at paragraph 27:

“27.The report of [the Family Report Writer], although it was prepared in February 2005, has assisted me in relation to the nature of the relationship of [the child] with the extended paternal family.  I find that they play an important and fundamental role in [the child’s] life.

28.The effect of the proposal of the mother is that [the child] will not spend time with her father for 12 months when school breaks in China between June and August 2007, that holiday period will be of eight weeks duration. 

29.It is not practical or financially possible for the father to travel to China to be able to maintain the existing orders. 

30.The mother acknowledges that telephone contact has not been successful, as she gets distressed, and this becomes upsetting and distressing for [the child].  She proposes that telephone contact be limited to one occasion per month.

31.The report of [the Family Report Writer], at paragraph 26, identifies that the father has contributed to [the child’s] emotional balance and maturity. She goes on to say that the level of [Ms Bale’s] anger towards [Mr Jenkins] suggests that it will be some time before she is able to manage her responses without the intervention of the Court in keeping the best interests of her daughter at focus.

32.[The Family Report Writer] recommended that [Ms Bale] undergo supportive counselling immediately. The mother gave evidence that she had three sessions of counselling and she is now assisted by friends”.

He concluded that:

“33.The hostility and anger towards the father by the mother was apparent during the hearing of this matter and I find that the mother does not take appropriate steps to foster the relationship between [the child] and her father, particularly in the area of telephone contact The only means by which the father could communicate with [the child], if she were in China, would be by telephone and/or internet.”

25.It is sufficient to say that this level of hostility and anger between the parties was also visible at the hearing of the appeal, particularly on the part of the mother. There was also some suggestion by the mother in her oral submissions that this matter has caused her considerable emotional strain and she submitted that her receipt of the trial judgment “pushed [her] to the brink of suicide”. [Appeal Transcript pg 30]

26.Under the heading “Section 60CC(3)”, his Honour took into account the following considerations (at paragraph 36):

a)the child was only six years of age when she expressed her wishes to [the Family Report Writer], and I give her wishes little weight because of her age;

b)I take into account that [the child] has a good relationship with each of her parents and with the father's partner and her half-brother;

c)I am concerned that the mother has been unable to facilitate, encourage and foster telephone contact with the father to assist in a close and continuing relationship between [the child] and her father.  This would have a more significant effect, in my view, on the overall relationship if [the child] were in China.  The mother refused at trial to refer to [Mr Jenkins] as the father and referred to him as “the biological father” or “the sperm donor”.

d)that [the child] would not have the benefit of the father's contribution to her emotional balance and maturity, which was referred to in [The Family Report Writer’s]  report. On the other hand it is common ground that living in China and studying in China would be of significant benefit for [the child];

e)the difficulty of [the child] in spending time with her father will substantially affect [the child’s] right to maintain her personal relationship with her father and her half-brother, and that is a very significant potential difficulty which could not be counter-balanced by what the proposals are for [the child] if she went to China.  The mother insisted that the father pay the whole of the cost of travel from Beijing to Australia for [the child] and an accompanying person.  That is despite the disclosure by the mother during submissions that she was entitled to be reimbursed for one return trip to Australia each year;

f)each of the parties are able to provide financially, emotionally and intellectually needs for the child, except for the inability for the mother to put behind her any reasons for anger which she has towards the father and it has the potential, identified by [the Family Report Writer], to cause emotional difficulties for [the child];”

27.In his conclusion, his Honour acknowledged that this was a “difficult and finely balanced case,” especially since each of the parties have a close and loving relationship with the child and wishes the “best outcome from these proceedings for her” (at paragraph 38).

28.Morecombe FM also took into consideration the remarks of the Full Court of the Family Court in A v A (2000) FLC 93-035 at 108, and H v L (2000) FLC 93-062 at 77, which includes the proposition that :

“The ultimate issue is the best interests of the child and to the extent that the freedom of a parent impinges upon those interests then it must give way.”

29.Ultimately, his Honour concluded in paragraph 39 that it “would not be in the best interests of the child to live in China, as sought by the mother, and accordingly I will make an order dismissing all extant applications.”

The Appellant’s Submissions

30.There is nothing to be gained reciting here every portion of the appellant’s written submissions. The arguments presented in the written and oral submissions generally concern five different points. Although we do not have the benefit of the whole of the trial transcript it is apparent from reading the affidavits that many of the contentions now made by the appellant were not before the trial Judge and some relate to circumstances since the judgment was delivered.

31.The first point of the appellant’s submissions revolved around her future employment opportunities and indirectly concerned the welfare of the child.  In her written submissions she argued that (at para.10):

“A career opportunity and the resultant possibilities have been denied to the mother, the impact of which will be both long and short term for both mother and child.  The impact the decision appears to have, has been less than adequately considered by the courts.”

32.The appellant submitted that the decision of the trial Judge meant she was not “able to provide financially for my child as [she] would like.” Due to the nature of her education and area of teaching, the appellant argued that she was disadvantaged in the work place and faces a “future of poverty” unless she is allowed to travel overseas and pursue employment there. It was her submission that the decision of the trial Judge denies her the opportunity for economic development and independence under the Human Rights and Equal Opportunity Commission Act 1986. Reference was particularly made to Articles 1 and 12 which appear in Schedule 2 of that legislation.

33.At trial the mother made reference to s. 92 of the Australian Constitution but did not otherwise expand effectively on this argument (T/s p.1 AB 112 and T/s p.4 AB 115).

34.This point is a substantial basis of the appellant’s case. In her oral submissions, she stated that she had been “condemned by Morecombe J to remain in – somewhat in poverty with [her] daughter whereas [she] had the opportunity to recreate my career by going overseas…” (Appeal Transcript p.21).  The appellant argued that the decision of the trial Judge fails to take into consideration the effect of his decision on her life and the “effect directly or indirectly on [her] daughter.” The appellant argued that the overseas travel would be of “great benefit to [her] professionally and socially” and the proposed job at Beijing University would have “huge benefits for [the mother] and [her] ability to then provide for [her] daughter…” (Appeal Transcript, p.23).

35.In addition to the employment opportunity denied her, the appellant also submitted that the trial Judge’s decision denied the child possible benefits associated with overseas travel. In particular, the opportunity for both the mother and the child to learn Chinese was raised in the appellant’s written submissions as a “valuable skill for the future,” the denial of which was not “in the interests of the mother or child” (Written submissions, para.12).

36.The second point raised by the appellant in both the written and oral submissions concerned the question raised by the trial Judge as to whether the appellant would travel overseas without the child. The appellant alleged that in asking this question the trial Judge “removes his culpability and forces the mother to in effect make most of the decision for him.(Written submissions, para. 26).” Consequently, it is “not the decisions [sic] of the judge to stop the mother from travel, but her own decision not to go if the child is required to stay.” In her oral submissions, the appellant was adamant that the decision “should not be mine to make” (Appeal Transcript, p.8)

37.In dealing with the submissions it is convenient at this point of the judgment to refer to U v U (2002) FLC ¶93-112 raised with respect to this argument, particularly the comments of Gaudron J (dissenting). In that case, her Honour stated (at 89,082):

“37.It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her.  That being so, she runs the risk that her interests will not be properly taken into account.  To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated.  That is so whether it is the mother or the father who wishes to relocate.  So much was made clear in AMS v AIF [(1999) FLC ¶92-852].”

38.The third point raised by the appellant related to the nature of the relationship between the two parties. As already outlined above, the appellant argued with considerable emotion that the respondent was merely a “sperm donor”. In her written submissions, the appellant argued that the best interests of the child would be served by telling her of the alleged “sperm donor agreement.” She submitted that (at para.8):

“The best interests of the child must include the true status of the man at the time of conception and any agreements made between the parties.  Failure to do so is far from in the best interest of the child.  Emotional and psychological problems are probable unless the truth is respected regardless of current legal limitations and the current lack of acceptance that private sperm donor agreements are part of the social fabric of Australia.”

39.At the appeal, the appellant submitted that it would be “nothing short of child abuse” to lie to the child about what she believes is the true nature of the parties’ relationship, (Appeal Transcript p.21). The disagreement between the appellant and respondent regarding important historical features of their relationship has undoubtedly manifested in extreme difficulties between the parties, which was observed by the trial Judge. It is the appellant’s position that she was denied the right to “freely express her belief that [the respondent] was and is the sperm donor…” (Written submissions, para.17). 

40.In her written submissions, the appellant argued that Morecombe FM failed to take into account the “truth of [the child’s] conception” (Written submissions, para.19), which resulted in a decision not in the best interests of the child. The appellant was particularly concerned with the relationship between the respondent and the child and stated that the respondent “chose not to be the father – he chose to be the donor.” (Written submissions, para.22). It is the appellant’s position that the decision of the trial Judge “condoned emotional abuse by a man who chose to be the sperm donor and condemned [the child] to a life of poverty and emotional confusion.” (Written submissions, para.25)

41.The fourth point raised by the appellant relates to the trial Judge’s alleged failure to allow material in support of her claim to be placed before him. This point is connected to the previous one. It is the appellant’s position that the evidence which was struck out at trial “gives credence to the mother’s claim that his [the respondent’s] decision to be a donor be considered as relevant.” (Written submissions, para.16). It is argued that the failure to allow the appellant to place before the Court this material at trial resulted in a failure to determine the truth of any assertions made by her, and was not in the best interests of the child.

42.As seen, we only have part of the transcript, being the submissions and there is no reference to this evidence. In paragraph 8 of the mother’s affidavit she referred to this issue. It is impossible for us to know whether this part of the affidavit was before the trial Judge but in any event the father took issue with her contention. It is impossible for us to assess whether there was any evidence relevant to the issues before the Federal Magistrate and if so whether the trial judge struck it out. In any event, even if there were such evidence its relevance would be marginal.

43.This point raised concerning evidence is also connected to the appellant’s application to adduce further evidence, and will be dealt with in more detail below.

44.The final point raised by the appellant in her submissions concerned the orders made by consent before Hartnett FM in 2005. The appellant alleged that such orders were the result of duress and that she felt she was “blackmailed into signing something [she] didn’t want to,” (Appeal Transcript, p.25).  This point was briefly raised on appeal. The appellant did not place any evidence before the Federal Magistrate to support the allegation of duress.

45.According to the appellant, the trial Judge suggested that she initiate new proceedings regarding this matter.  It is the appellant’s position that she “could not cope with another Court case” seeking that the consent orders be varied, and that any challenge to the consent orders would be viewed as hostility on her part.  The appellant was particularly concerned that this would result in her losing custody of her child. 

The Respondent’s Submissions

46.The respondent, in his written submissions, asked that the appeal be adjourned. This was predominantly due to the mother’s failure to comply with the procedural orders made by Warnick J on 3 April 2007. As noted the mother has filed only part of the transcript of the proceedings before the trial Judge. There was some delay in the father receiving the mother’s Summary of Argument, giving him a very short time in which to file his documentation.

47.In particular, the respondent was concerned that his case may be disadvantaged by the omission of much of the discussion of the evidence before the trial Judge, which was not included in the transcript provided by the appellant.  After discussion between members of this Court and the parties, the respondent was prepared to continue with the appeal.   

48.In reply to the mother’s oral submissions the father made 15 points in response to the mother’s argument, some of which overlapped. It is only necessary for this judgment that we refer to some of them.

49.The first and second points were made in relation to the father’s proposal at the trial that, for the first term of the mother’s work in Beijing, the child live with the father and his current partner in Victoria for a period of some ten weeks. This proposal involved some discussion about the child’s passport arrangements and the mother’s indication before the trial Judge that if the child were to spend time with the father over that particular 10-week period, then she would elect not to go to China at all.  The respondent argued that the mother’s admission that she would not go to China without the child “created a veto for that alternate proposal.” (Appeal Transcript, p.32).

50.In response to the appellant’s submissions that the trial Judge intended to confiscate the child’s passport, the respondent submitted that no such action was contemplated at trial. 

51.

The third submission was in relation to the mother’s refusal before the trial

Judge to refer to Mr Jenkins as the father and instead referred to him as the biological father, or the sperm donor. As we have discussed earlier, this point is not central to the appeal, even though the issue was raised and remains a contentious point between the parties. The respondent submitted that the trial Judge “witnessed a very detailed and long cross-examination and discussion about this issue” which formed the basis for his reasons (Appeal Transcript, p.32). This part of the transcript of the trial is absent from the transcript provided, and therefore was not before us on appeal.

52.The fourth point raised the issue of the father’s involvement in the child’s life. The father asserted that for essentially the first twelve months of the child’s life the parties travelled around Australia having 24 hour contact with the child. There was some reference also to the final orders made in Melbourne by Hartnett FM, which are currently still operative, and to which we have referred.

53.The fifth submission involved a tape recording which reflected a different perspective of the events surrounding the change of relationship between the parties when the child was conceived. This point marries with the third, as we have discussed earlier in our reasons.

54.The respondent’s submissions numbered 6, 7, 8 and 9 reiterated points which had been raised in previous submissions. 

55.The tenth and eleventh points raised by the father were in relation to the conflict surrounding the current school holiday arrangements between the parties. It is noted that the orders were agreed in Victoria, although as the mother currently resides with the child in Queensland, there is some disparity between the holiday times. It should be noted that the father did not object to the mother moving to Queensland.

56.The twelfth submission raised the relevancy of the Human Rights and Equal Opportunity Commission Act 1986 to these proceedings. As the mother did not rely on those provisions before the Federal Magistrate and failed to make any coherent submissions to us we do not intend to consider the matter further.

57.Points 13, 14 and 15 were considered together under the heading “the right to travel” and related to the current arrangements in place for the child. These points were relatively self-explanatory and centred upon the existing orders in place for the child’s care and residence. The respondent also raised his proposed “10-week option” as evidence that he was prepared to allow the appellant and the child to travel overseas for a period of time. We consider it unnecessary to pursue this point further.

58.Ultimately, the respondent in his written submissions said the following:

“From the time of King Solomon, this has been an issue of grave concern and an impossible resolution. I have not listed a great number of Authorities as I found them in many cases contradictory, to list only those who disallowed relocation would be disingenuous. Their apparent contradictory nature, I suggest, could be due to the very real fact that each case is a human tragedy were [sic] we are dealing with human frailties and failings. To be in the best interests of the child we could make orders for world peace etc. This is not the case, it is not within our powers, we must aim for perfection but accept that we are human. In our case there are issues which appear to be unresolvable. [The child] is now 8 years of age, the time she spends with me indicates that she is an intelligent and vibrant child who is loved and cared for well. It is my duty as a Father to do all I can to help her reach an age where she can become independent and to take the road that she chooses.” (Concluding paragraph)

Appellate Principles

59.This is an appeal from a discretionary judgment; the principles relating to such appeals are well established. The Full Court (Dixon, Evatt and McTiernan JJ) in House v The King (1936) 55 CLR 499, said at 504-505:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.

60.It is useful in this case to refer to Kirby J’s remarks in AMS v AIF (1999) 199 CLR 160:

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

Relevant Law

61.In this case it is only necessary to summarise the relevant statutory provisions and principles in respect of relocation matters. As already indicated, the trial Judge considered the relevant provisions of the Act and the remarks of the Full Court of the Family Court in A v A (supra) and H v L (supra).

62.The principles to be applied in the determination of a proposal to relocate the residence of a child are those summarised by the Full Court in A v A (supra), which clarifies the steps to be taken by a trial Judge determining a case of this kind. The relevant guidelines to be considered by the Court commenced at paragraph 108 as follows, with emphasis from the original judgment:

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

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

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

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

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

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

·It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.

·The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.

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

1.A court will identify the relevant competing proposals;

2.For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;

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

·The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.

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

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

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

a)        None of the parties bears an onus:

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

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

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

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

c)        Matters of weight should be explained:

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

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

Application to Adduce Further Evidence

63.The appellant’s case has now changed from wishing to take the child to Beijing to now wanting to travel to the United Kingdom. The mother’s application to adduce further evidence in the appeal relates to these new circumstances. The evidence was annexed to the mother’s application and related to two documents; the first item being a Job Capacity Assessment Report for Centrelink dated 9 October 2006, and the second item consisted of a bundle of emails exchanged between the mother and the father over a one month period in March of this year. The hearing of the trial took place on 23 August 2006.

64.We see no basis for allowing the application to adduce further evidence as the material annexed to the application reveals no evidence which, if accepted, would demonstrate that the order and judgment from which there is an appeal is erroneous. The High Court (per McHugh, Gummow and Callinan JJ) in CDJ v VAJ (1998) FLC 92-828 at [109] explained:

“One consideration in construing s93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.”

Conclusions

65.Whist we appreciate the mother’s difficult situation as she explains it in relation to her employment this is an appeal against a discretionary judgment. The appellant has failed to satisfy us that the trial judge erred in some way, either in law or in fact, in coming to his decision. In the absence of demonstrated error the Full Court can not interfere with the exercise of discretion. The decision made by Morcombe FM was within the reasonable ambit of the wide discretion in such matters based on the evidence placed before him at the trial including the proposals of the parties. The conclusion expressed by him at paragraph 39 of his reasons was entirely open.

66.The trial Judge was correct in dismissing the mother’s application. There is no merit in the appeal and it will therefore be dismissed.

Costs

67.The parties made oral submissions at the conclusion of the hearing of the appeal in relation to costs of the appeal; the procedure was explained to the parties at some length.

68.In the event that the appeal were to succeed, and in finding that his Honour erred as a matter of law, and the circumstances relating to the appeal, both parties sought certificates under the Federal Proceedings (Costs) Act 1981 (Cth). In the event that the appeal was not successful, the appellant sought that the respondent pay her costs of the appeal. The respondent made no application for a costs order against the mother.

69.In this case, having regard to s 117 of the Act, in particular the financial circumstances of the parties, we are of the opinion that, despite the lack of merit in the mother’s appeal, we will order that each party bear their own costs.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate:     

Date:              10 August 2007