Balint & Jensson
[2023] FedCFamC1A 186
•30 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Balint & Jensson [2023] FedCFamC1A 186
Appeal from: Jensson & Balint [2023] FedCFamC2F 906 Appeal number: NAA 222 of 2023 File number: ADC 1667 of 2017 Judgment of: AUSTIN J Date of judgment: 30 October 2023 Catchwords: FAMILY LAW – APPEAL – PARENTING – Schooling – Where the father appealed against orders regulating the child’s school enrolment – Where the father argued the primary judge erred at law by failing to assess the practical difficulties he would experience by the child attending the school advanced by the mother – Where the ground mistakenly assumes the evidence was available to find the asserted material fact – Where the ground is prosecuted on a false premise and fails – Where several grounds allege multiple mistakes of fact by the primary judge and are rejected – Where the father contends the primary judge did not place enough weight on a piece of evidence which he perceived was favourable to his case – Where the complaint fails as no ground of appeal contends the overall result was manifestly unreasonable or unjust – Where the father complains of insufficient reasons – Where reasons are not required to mention every fact or argument relied on by the father – Where the reasons plainly explain the outcome and are therefore adequate – Appeal dismissed – Where the appeal was wholly unsuccessful – Costs application of the mother granted. Legislation: Family Law Act 1975 (Cth) Pt VII, s 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Beale v GIO (NSW) (1997) 48 NSWLR 430
Bennett v Bennett (1991) FLC 92-191; [1990] FamCA 148
Burke v LFOT Pty Ltd (2002) 209 CLR 282; [2002] HCA 17
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
De Winter and De Winter (1979) FLC 90-605
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Halloran & Keats (2023) FLC 94-140; [2023] FedCFamC1A 56
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Katsilis v Broken Hill Pty Ltd (1977) 18 ALR 181
Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 168 ALR 407; [2000] HCA 1
Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4
U v U (2002) 211 CLR 238; [2002] HCA 36
Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
Waterways Authority v Fitzgibbon (2005) 221 ALR 402; [2005] HCA 57
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174
Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156
Number of paragraphs: 63 Date of hearing: 30 October 2023 Place: Melbourne (via Microsoft Teams) Counsel for the Appellant: Ms Lewis Solicitor for the Appellant: Jacqui Ion Lawyers Counsel for the Respondent: Mr Anderson Solicitor for the Respondent: Adelaide Family Lawyers ORDERS
NAA 222 of 2023
ADC 1667 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BALINT
Appellant
AND: MS JENSSON
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
30 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal is granted and the appellant has leave to adduce his affidavit filed on 13 October 2023 as further evidence in the appeal.
2.The appeal is dismissed.
3.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $3,810.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Balint & Jensson has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This is an appeal by the father from an order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) resolving a narrow dispute between two parents over the school at which their only child should be enrolled to attend.
For the reasons which follow, the appeal is dismissed.
Background
The parties’ child was born in 2016 and is now seven years of age.
Proceedings in respect of the child were commenced by the father under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) in November 2017. The litigation was concluded by final orders, made with the parties’ consent, in November 2019.
However, despite the supposed finality of the orders, they were ostensibly only a temporary solution because they expressly recorded the parties’ intention to re-negotiate the child’s care arrangements 12 months later (Notation H; Order 19) and noted the parties’ agreement that further litigation between them would not be impeded by the long-standing principles espoused in Rice v Asplund (1979) FLC 90-725 (Order 22). Of course, the parties’ agreement that the law would not apply was both impermissible and unenforceable, notwithstanding it had the supposed imprimatur of the Court’s order or notation (Halloran & Keats (2023) FLC 94-140 at [5], [6], [18], [20], [27], [28], [39] and [41]).
Even though the parties agreed to equally share parental responsibility for the child (Order 2), they were unable to agree upon the child’s educational future. In that respect, these orders were made:
20.That the parties discuss kindergarten/school options for the child over the next 12 months and email each other information obtained in respect of proposed kindergarten and school options.
21.That neither party shall enrol the said child into kindergarten or school without the express written consent of the other or on order of this Honourable Court.
Evidently, the parties either did not or could not reach agreement about the outstanding dispute over the following year and so, 13 months later, in December 2020, the father instituted fresh proceedings seeking more and varied orders.
Specifically for present purposes, the father applied for orders compelling the child to attend Town B Kindergarten in 2021 and Town B Primary School from 2022 (proposed Orders 17, 18 and 19). At that time, the father lived in the Region D, where he still lives and intends to remain, and the mother lived with the child in suburban Adelaide.
In June 2021, after a contested hearing, the primary judge made interim orders providing for the mother to maintain the child’s enrolment at the E Kindergarten (Orders 1 and 3) and, upon her moving to Town F, authorised her to enrol the child at the Town F Kindergarten or Town F Primary School (Order 2).
Some months before, in February 2021, the mother entered into a building contract to have a new home constructed at Town F, into which she would move with the child once the construction is complete, because housing was more affordable for her there than in Adelaide (at [57]). The father knew that in advance of the interim hearing (at [94]–[95]).
For a while longer, nothing changed. Nearly two years later, on 14 April 2023, the parties agreed upon a fresh suite of final orders, but their agreement again excluded any resolution of their nagging dispute over the child’s future education. The orders discharged all former parenting orders (Order 1) and made provision for the parties to have equal shared parental responsibility for the child (Order 2), for the child to live with the mother (Order 3), and for the child to spend substantial time with the father, culminating in an equal shared care regime by early 2025 (Orders 4–7).
In relation to the child’s future place of residence and school enrolment, the orders provided as follows:
26.The parties must inform the other in respect of any change to residential address or contact telephone number within (24) hours of such change occurring.
27.Pending the Mother’s relocation to [Town F], the parties do continue [the child’s] enrolment in [E Primary School].
28.Unless otherwise agreed between the parties, by no later than the conclusion of Term 1 in 2028 (when [the child] is in Year 6), the parties attend mediation for the purpose of High School Education for [the child].
…
35.That these proceedings be otherwise adjourned to 19 April 2023 at 10:00 am.
(As per the original)
Plainly enough, the mother still intended to move to Town F with the child. So far as is known, she has still not yet done so because the house construction is incomplete. The adjournment of the proceedings to 19 April 2023 was to enable the parties’ residual dispute over the school at which the child should be enrolled once the mother does move to Town F to be heard and determined by the primary judge, notwithstanding that issue had been previously resolved by the interim orders made in June 2021.
Once the mother moves to Town F, she wants to be able to enrol the child at a local school in Town F. Regardless of where the mother lives, the father wants the child enrolled at Town G Primary School. Both parties rejected the alternate idea posited by the primary judge that they consider a school at Town H, apparently situated a little closer to Town F than the Town G school (at [24]–[25] and [109]).
Remarkably, once the hearing over the single issue of the child’s school enrolment began on 19 April 2023, it occupied three days. The parties’ pre-occupation with the issue, which is objectively disproportionate to its significance and inconsistent with the conciliatory care they otherwise provide their child, is all the more surprising once it is known that the contest was over the saving or expenditure of relatively modest travel time – about 17 minutes more for the father per school trip and about 28 minutes more for the mother (at [106]–[108]).
As the primary judge poignantly remarked in the reasons for judgment:
19.Both parties raise concerns over the amount of travel that will be required for each parent to undertake to drop off and collect the child from school. I accept that should [the child] attend school in either [Town F] or [Town G], the other parent will be required to undertake a significant amount of travel to accommodate the child’s schooling and other social commitments. It is a concern that this was not addressed prior to the Order for equal shared care being sought.
(Emphasis added)
The appealed orders were made in these terms:
1.Upon the mother moving to reside in her property at [Town F] the mother have liberty to enrol [the child] in the [Town F] primary school such that he commences school at the commencement of either Term 4, 2023 or the beginning of the 2024 school academic year (in the event she is unable to move to [Town F] prior to the commencement of term 4).
2.The proceedings be otherwise dismissed.
The appeal
The Amended Notice of Appeal filed on 13 October 2023 comprises ten grounds, but none is substantiated.
With the mother’s consent, the father’s application to adduce further evidence in the appeal is granted. The father read his affidavit filed on 13 October 2023, dealing with developments since the judgment was delivered, though he did not explain how the evidence helps establish any appealable error by the primary judge or how it would likely produce a different result (CDJ v VAJ (1998) 197 CLR 172 at [109], [111], [140]-[151], [169] and [186.9]).
Ground 1
This ground is pleaded as follows:
1. The primary Judge erred at law in failing to properly assess the practical difficulties the father would experience by the child attending [Town F] Primary School.
As pleaded, it asserts an error of law by failing to make a particular finding of fact about a relevant discretionary consideration, which is a novel admixture of complaints. The ground mistakenly assumes the evidence was available to find the asserted material fact.
The ground fails because it is prosecuted on a false premise. Findings of fact, both express and inferential, were actually made about the father’s probable capacity to convey the child to and from the [Town F] school.
The driving time between the father’s home and the [Town F] school is only 17 to 18 minutes longer than that between his home and the [Town G] school (at [107]), which shorter distance he was willing to endure, begging the question of why he could not perform the longer journey.
The father is only responsible for about one-third of the child’s school deliveries and collections over the next year or so before the shared-care regime begins (at [110]–[113]) and he failed to lead any persuasive evidence about how the inflexibility of his work commitments impede his engagement in the extra travel time between [Town G] and [Town F] (at [144]–[151]). He actually agreed they probably did not. That latter issue is addressed in a different way under Ground 6.
Grounds 2, 3, 6, 7, 8 and 10
These grounds allege multiple mistakes of fact by the primary judge.
Ground 2 alleges the primary judge mistakenly found the father only once enquired of the mother in December 2020 about the child’s place of residence and the school he should attend (at [99]), which observation was made in the context of discussion of the parties’ countervailing criticisms about not seeking or sharing information about the child.
Assuming for the moment it was indeed a finding and it was mistaken, it was given no weight and was therefore immaterial to the outcome (De Winter and De Winter (1979) FLC 90-605). Despite the parties’ trenchant criticism of one another’s attitude, the primary said this in the reasons for judgment:
160.Having regard to the evidence as a whole, whilst there are criticisms of the conduct of each party I do not consider the evidence in respect of either of their attitudes to the child and the responsibilities of parenthood is such that it weighs on my decision.
The father’s submission that the finding at [99] engaged s 60CC(3)(c)(i) of the Act and was therefore material to the decision, is rejected. While the observation may well have fallen within the rubric of that sub-section, it could not have been material in light of the express finding at [160]. The reasons which motivated the decision are discussed below under Grounds 4 and 5.
Ground 3 alleges the primary judge mistakenly found the mother did not have any flexibility about when she could start and finish work (at [128], [130], [131] and [132]), in circumstances where such flexibility was relevant to her capacity to convey the child to and from school. In that regard, the primary judge actually said this:
128.[The mother’s] general hours of employment are from 6:00am to 2:30pm or 3:00pm. She did say that she may be able to start at 8:00am, however, I note that some of her work is assisting clients with [care] I have no evidence on which I can rely to suggest that her employer would sanction that degree of flexibility in her working arrangements on anything other than an occasional basis.
…
130.The father accepts that the mother works two days per week. He submits that the clear impression provided was that she had significant flexibility in the days and hours she was able to work. I do not accept that submission.
131.He also submits she gave evidence that she worked morning shifts which would start at 6:30am although, she had flexibility and could start as late as 8:00am. I have difficulty with that interpretation of the evidence, taking into account the fact that she is a part-time worker working two days per week, who whilst able to enter into some negotiations with her employer would have limited power in being able to set her employment times.
132.There is a submission that due to the flexibility of the mother’s employment, that it would be completely open to the mother to work more shifts when the child was in her care, such that she could drop him off at the [Town G] and then collect him on her return to [Town F]. Without hard evidence of the employer’s willingness to entertain a flexible routine, of which there is none, I do not consider that submission to have weight.
As can be seen, the primary judge did not make any findings. When pressed, the father could not identify any. Instead, his Honour simply correctly summarised some evidence given by the mother and rejected the father’s submissions about how her evidence should be interpreted. While the primary judge rejected the father’s submissions about the supposed flexibility of the mother’s employment demands, no converse finding at all was made about their inflexibility. The primary judge correctly recited the available evidence about the mother’s work start time being pushed back to 8.00 am on only an “occasional basis”.
Ground 6 alleges the primary judge mistakenly found the father could “tailor his work commitments” to cater for the child’s attendance at the Town F school (at [150]–[151]). In that regard, the primary judge actually said this:
148.I understood the father’s evidence to be that he manages [a site] at [town]. He puts his occupation as manager on his affidavit.
149.The [site] is located close to his residence. The [site] is not operational and the main focus of the employment is to ensure that the [site] is maintained and any contamination from the [site] workings are contained.
150.The father’s written submissions suggests that there are [several] people employed at the [site] by the state government. I was unaware of the number of people employed, save that I noted his evidence was that he was the [site] manager.
151.It is difficult to understand how the father cannot tailor his working commitments to allow for the commitments to his son, when he is in effect working at a [site] that is no longer operational. I do not understand and his evidence did not assist me in understanding how he would be unable to tailor the maintenance regime to fit with his parenting commitments.
These paragraphs recite the gist of the father’s evidence about his employment and conclude with the primary judge wondering why his work commitments preclude him from taking some little extra time to ensure the child’s delivery to and collection from the Town F school. It was legitimate to ponder that question when the parties’ respective capacities to deliver and collect the child from different schools was a material consideration.
The recitation of the father’s position on the evidence was entirely correct. This exchange occurred during his cross-examination on the point:
[COUNSEL FOR THE MOTHER]: … So is His Honour to understand that by 3.45 or so, and 4 pm at the latest, you, in a general sense, have [two other children] back into your care?
[THE FATHER]: Yes, it’s
[COUNSEL FOR THE MOTHER]: Right?
[THE FATHER]: Four o’clock would be a reasonable estimate.
[COUNSEL FOR THE MOTHER]: Okay. So conceivably, you would be able to arrange your affairs such that [the subject child] attend at OSH at [Town F]. And considerably, you could have him recovered by about 4.30 or so. Is that a possibility?
[THE FATHER]: In terms of, in terms of pick up, I guess, yes.
[COUNSEL FOR THE MOTHER]: And according to the schedule which we tendered this morning by consent, it would be the 35-minute drive for you to pick him up and a 35-minute drive back?
[THE FATHER]: It would be slightly more than that, given that I would have to pick up the other children, but
[COUNSEL FOR THE MOTHER]: Sure?
[THE FATHER]: Yes.
(Transcript 20 April 2023, p.109 lines 30–45)
All evidence must be weighed and assessed having regard to the capacities of the parties to adduce and contradict it (Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 454; Burke v LFOT Pty Ltd (2002) 209 CLR 282 at 330; Swain v Waverley Municipal Council (2005) 220 CLR 517 at [17]). The mother had no capacity at all to adduce any probative evidence about the flexibility or inflexibility of the father’s work commitments. Only he could do that, but he failed to do so to the primary judge’s satisfaction. The evidence he led and the concession he made did not convince his Honour of the proposition for which he argued.
The father’s failure to voluntarily give evidence confirming how the inflexible demands of his employment were incompatible with his travel to and from the Town F school permits the conclusion that, if he had adduced evidence on that topic, it would not have supported his case (Katsilis v Broken Hill Pty Ltd (1977) 18 ALR 181 at 197). The primary judge’s modest conclusion about having difficulty understanding how the father did not have some degree of flexibility with his work commitments was not inconsistent with legal principle and accorded with his apparent concession.
Ground 7 alleges the primary judge mistakenly found the [Town G] school was not approximately half-way between the parties (at [23] and [140]), but the primary judge made no such finding. His Honour said this in the context of commentary upon the court child expert’s evidence:
23.The report recommends the parties select a school located approximately half way between them. Neither party addressed this in their initial proposals.
…
140.The suggestion that the Family Report writer carefully considered the halfway option is not accepted. I was left with the impression from her evidence that it was something she was giving consideration to at the moment of trial. The submission that the [Town G] School amounted to approximately halfway has in my view no weight.
In neither of those two paragraphs did the primary judge make a finding. Rather, the last sentence represents the rejection of a contention. His Honour expressly found the Town G school was no less than 32 minutes driving time from the mother’s proposed home in Town F and no more than 17 minutes driving time from the father’s home in the Region D (at [107]). While the Town G school is indeed located generally between the parties’ intended homes, it is not equidistant.
Ground 8 alleges the primary judge mistakenly found the father was in a superior financial position to the mother (at [52]). The primary judge did so find, but it is as well to remember the father was duty-bound by r 13.23(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to state why the finding was wrong, articulate the finding which ought have been made instead, and identify the evidence pertinent to the factual dispute. He did not do so.
The primary judge relevantly stated this in the reasons for judgment:
52.The father remains employed in his position as manager of the [site] in [town]. His wife is engaged in employment. I accept that they are in a superior financial position to that of the mother.
…
55.There is no evidence to suggest that the mother is in a financially sound position. She has been and remains in receipt of Centrelink benefits. She is undertaking study on a part-time basis to obtain a [bachelor’s degree].
56.She is working part-time as [a support worker] who attends upon clients in their homes. She has a guaranteed 15 hours work each week.
…
58.I acknowledge that she has plans to purchase a motor vehicle in due course. I note that she currently relies on the use of her mother’s motor vehicle.
59.I also acknowledge that she must incur further debt to finish off the house [at Town F] and will rely heavily on the assistance of her parents. There is no suggestion, however, that her parents are in a position to cover any expense at will.
…
62.She currently relies on the use of her mother’s motor vehicle. She has plans to purchase a second hand motor vehicle and will need a loan of approximately $10,000 from the bank.
63.She will also need to address the costs of completing her home, including the flooring, the insulation, the air-conditioning, the driveway and the stormwater drains. She has plans to approach the bank for further finance to assist with this.
…
65. Her financial position is in direct contrast to that of the father and his family.
…
135.The mother conceded that she purchased property at [Town F] because that is “all she could afford.” As a result of what the father submits was the mother’s entirely confused evidence of her financial circumstances, he submits that the Court must have considerable scepticism to the likelihood the mother will be able to afford to live in [Town F].
…
142.I also accept that the mother, in attempting to obtain a house for herself and her son, while undertaking study for a [bachelor’s degree] with a view to obtaining a stable income on which she and her son can rely, is of limited financial means.
The father candidly conceded he could not explain why the finding of his comparatively superior financial circumstances was not open to the primary judge when none of the contents of those paragraphs, save for the conclusion expressed at [52], was challenged as being inaccurate.
Instead, the father pinned his hopes on the further evidence he adduced to prove an error. However, while the evidence shows he recently separated from his wife and his financial capacity is now more stretched than it was at the time of hearing, it still does not demonstrate that his financial circumstances are now worse than those experienced by the mother. The primary judge’s finding remains efficacious.
Ground 10 asserts the primary judge erred by finding the mother rejected the Town H school as an alternative to her preference for the Town F school.
In that regard, the primary judge said this:
24.I raised the prospect of [the child] attending [Town H] Primary School which would be the school that is located closest to approximately half way between the parties.
25.The father rejected that option while the mother addressed it and subsequently rejected it.
…
109.I have not included the information in respect of the [Town H] Primary School, as the option was raised by me and rejected by each of the parties.
The finding about the mother’s attitude is plainly correct.
In cross-examination, the mother said this:
[COUNSEL FOR THE FATHER]: So the question is, why wouldn’t you travel an extra 11 minutes to go to [Town G]?
[THE MOTHER]: To be honest, I didn’t – I – I never – I don’t want [Town H], and I’ve told [my barrister] that several times.
(Transcript 21 April 2023, p.227 lines 24–26)
Then, in her final written submissions, the mother said this:
4.16During trial, the prospect of [the child’s] attendance at the [Town H] Primary School was explored. There is no evidence before the Court that [Town H] Primary School has an after hours school service at this juncture and this being so, the Mother accepts that [the child’s] attendance at that institution is likely to cause both parties difficulty.
While the option of alternative use of the Town H school was undoubtedly agitated during the trial, as an exhibit was tendered specifying the distances between the parties’ homes and the Town H school, that does not mean the finding of the mother’s eventual disinterest in that school was mistaken.
In any event, the father admitted the primary judge correctly recorded his rejection of the Town H school as an option so it was properly rejected by his Honour because, in the end, neither party wanted it. Even now, if the appeal succeeds, upon any re-exercise of discretion, the father wants an order compelling the child to attend the Town G school. He remains disinterested in Town H.
Ground 9
This ground complains the primary judge did not place enough weight on a piece of evidence which the father perceived was favourable to his case. So analysed, it is not a competent ground of appeal which lies from a discretionary judgment (House v The King (1936) 55 CLR 499 at 504–505), as this judgment was. Complaints in an appeal about too much or too little weight being attributed to some portion or portions of the evidence are meaningless unless it is contended the overall result was manifestly unreasonable or unjust (Hedlund & Hedlund (2021) FLC 94-065 at [12], [36] and [37]). No ground of appeal asserts the appealed decision fell into that category.
Grounds 4 and 5
Both these grounds assert that insufficient reasons were given by the primary judge for reaching certain findings expressed within four nominated paragraphs of the reasons for judgment (at [61], [88], [116] and [168]).
Significantly, these grounds are not complaints that the identified findings were wrongly made. Nor are they complaints that the reasons were inadequate to explain the overall judgment – only that the reasons were inadequate to explain certain findings.
The grounds are answered and rejected by advertence to well-known legal principles.
It is only necessary that the appellate court be able to discern from the reasons, either expressly or by implication, the path by which the ultimate result has been reached (Bennett v Bennett (1991) FLC 92-191 at 78,267).
Reasons are not required to mention every fact or argument relied on by the appellant (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at 463-464; Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 at 136) as no judicial reasons can ever state all of the pertinent factors, nor can they express every feature of the evidence which causes a judge to prefer one factual conclusion over another (Fox v Percy (2003) 214 CLR 118 at 132).
The content and detail required of reasons for judgment will vary according to the nature of the jurisdiction being exercised and the particular matter which is the subject of the decision (DL v The Queen (2018) 266 CLR 1 at [32]–[33]). There is generally no obligation to give reasons for why individual pieces of evidence are accepted or rejected (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasinghan (2000) 168 ALR 407 at [67]), though reasons may be required to explain particular findings of fact which are critical or determinative (DL v The Queen at [130]; Waterways Authority v Fitzgibbon (2005) 221 ALR 402 at [130]; Beale v GIO (NSW) (1997) 48 NSWLR 430 at 443).
Reasons for judgment, even in other civil jurisdictions, may partake as much of intuition based on experience as on formal and deductive reasoning (Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 160; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273–274; Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 at 381). That is all the more so when the reasons for judgment explain an exercise of very broad discretion, such as that exercised under Pt VII of the Act. Accordingly, an appellate court reviewing an exercise of discretion at first instance should avoid an overly critical or pernickety analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition involved (U v U (2002) 211 CLR 238 at 270; AMS v AIF (1999) 199 CLR 160 at 211).
Here, the “findings” upon which the father focussed relate to, first, the mother’s capacity to ensure the child attends the Town F school on days when she works in Adelaide, and secondly, how the child’s attendance at the Town G school might affect his relationship with the mother. However, they were neither findings, nor critical to the outcome.
The paragraphs of the reasons upon which the father focussed were not findings made by the primary judge to resolve factual controversies. Rather, as part of commentary during a narration of the evidence adduced, his Honour:
(a)ruminated about how the mother could manage getting the child to school whenever she worked part-time in Adelaide (at [56], [61], [129] and [131]);
(b)expressed some mild concern about the appearance of the father prioritising the child’s relationship with his other children and his wife over the child’s relationship with the mother by insisting on the child’s enrolment at the Town G school (at [88]);
(c)expressed some concern that the child’s relationship with the mother might be adversely affected by the physical and financial strain she would experience in ensuring the child’s attendance at the Town G school (at [168]); and
(d)observed the absence of any reflection by the court child expert about how the asserted desirability of the child’s attendance at the same school as the father’s other children might affect the child, his relationship with the mother, and be a reasonably practicable arrangement (at [70], [71], [116], [118] and [140]).
But such speculation and sentiment was not material to the decision.
The definitive findings which motivated the decision for the child to be enrolled at the Town F school after the mother’s move to that locality were: the child having to travel further to the Town G school over the next year or two, while he still lives predominantly with the mother (at [114], [139], [141] and [164]); the mother being responsible for the majority of school deliveries and collections over the next year or so (at [110]–[113]); the lack of reliable evidence to vindicate the father’s belief about the superior quality of the Town G school (at [120]–[121], [123]–[125] and [165]–[166]); both schools offer out-of-school care (at [122]); the father’s superior financial circumstances (at [52], [55], [137], [142] and [167]); the extra financial pressure upon the mother to conform to the father’s preference (at [139] and [143]); and the inferential flexibility of the father’s employment commitments (at [144]–[151]). Nonetheless, the primary judge did not overlook the evidence about the asserted benefit to the child of attending the Town G school with his half-siblings (at [119] and [169]).
The reasons plainly explain the outcome and are therefore adequate, even if the father disagrees with the decision. He was impelled to ultimately abandon Ground 5, but Ground 4 is also rejected.
Disposition
The appeal is dismissed.
The mother was legally-aided in the appeal and sought very modest costs of $3,810 from the father if the appeal failed. The costs application is granted over the father’s objection. The appeal was wholly unsuccessful, it should not have been brought, and the mother remains liable to repay her grant of legal aid, which debt is secured against her new property. I accept the father now experiences more challenging financial circumstances than he formerly did, as exemplified by his commendable pro bono legal representation on the appeal, but his financial circumstances are no more parlous than the mother’s.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 1 November 2023
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