Barningham and Barningham - [2011] FamCAFC 12

FAMILY COURT OF AUSTRALIA

BARNINGHAM & BARNINGHAM

[2011] FamCAFC 12

FAMILY LAW - APPEAL –Whether the Federal Magistrate failed to properly caution counsel for the mother in the cross-examination of the Family Consultant – Whether the Federal Magistrate properly took into account the views of the child and the recommendations of the Family Consultant – Whether the Federal Magistrate gave proper consideration to the primary and additional considerations set out in
s 60CC(2) and s 60CC(3) of the Family Law Act 1975 (Cth) – Whether the Federal Magistrate gave sufficient Reasons for Judgment in support of the orders made – Whether the Federal Magistrate erred in finding that the father’s decision to move and his attitude that the child was better off moving with him was self-focused and did not equate to a genuine facilitation and encouragement of the relationship between the child and the mother – Whether the Federal Magistrate erred in finding that the child would find it difficult and would not have proper support if she were permitted to move interstate – Whether findings made by the Federal Magistrate were open on the evidence – Appeal Allowed

Evidence Act 1995 (Cth) ss 29, 41
Family Law Act 1975 (Cth) ss 60CA, 60CC, 62G, 69ZX

A & A: Relocation Approach (2000) FLC 93‑035
In the marriage of Bennett, MJ and Bennett, KH (1991) FLC 92-191
Gronow v Gronow (1979) 144 CLR 513
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
House v The King (1936) 55 CLR 499
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Alliance Insurance Ltd v Massoud [1989] VR 8

APPELLANT:

Mr Barningham

RESPONDENT:

Ms Barningham

FILE NUMBER:

LEC

115

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

3 February 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:	Bryant CJ, Finn & Boland JJ
HEARING DATE:	5 August 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

17 December 2009

LOWER COURT MNC:

[2009] FMCAfam 1335

REPRESENTATION

COUNSEL FOR THE APPELLANT:

In person

SOLICITOR FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Cameron

SOLICITOR FOR THE RESPONDENT:

Legal Aid Queensland

Orders

IT IS ORDERED THAT:

The appeal against orders made by Federal Magistrate Demack on 17 December 2009 be allowed.
The matter be remitted for hearing in the Federal Magistrates Court of Australia by a Federal Magistrate other than Federal Magistrate Demack.
Pending the further hearing and determination of the issues between the parties, or until further order, the orders made by Federal Magistrate Demack on 17 December 2009 remain in force.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney‑General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to the appeal.
The Court grants to each party a costs certificate pursuant to the provisions of
s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 10 of 2010

File Number: LEC 115 of 2009

Mr Barningham

Appellant

And

Ms Barningham

Respondent

REASONS FOR JUDGMENT

Introduction

This appeal is against a decision of Demack FM delivered on 17 December 2009. The judgment concerned the one child of the parties, E, who was eight years old at the time of the trial. The parties separated when E was three and after their separation the parties continued to live in relatively close proximity in the Northern Rivers Region of New South Wales. From the time that orders in relation to her parenting were made in 2003 until early in 2009, she had spent essentially equal time with each of them.
Between April and May 2009 the father moved to live in Northwest Victoria which meant that the shared arrangement whereby E lived with both of her parents equally would have to come to an end and the parties were then in dispute about where E should live. The mother intended to continue living in Northern New South Wales and wanted E to remain with her. The father had moved to Northwest Victoria and wanted E to live with him in Northwest Victoria.
The Federal Magistrate decided that E should remain living with her mother. In doing so, she did not follow the views of the child nor the recommendations of the expert, Ms B, who had prepared a Family Report. The father has appealed that decision. We propose to allow the appeal for the reasons that follow.
Each of the parents had formed a new relationship and both the new partners had some relevance to the result. The mother and her partner, Mr R, who had been together since late 2004 or early 2005, managed the local hotel at a small country town in the Northern Rivers area. The father moved to Victoria when he formed a relationship with Ms M who has three children, two of whom spent alternate weekends with their common father, who also lives in Victoria.
The mother has two older twin girls who are not the father’s children and who were conceived during a period of separation between the mother and father but who had lived with the mother and father since their birth and had been treated as if they were the father’s children. Until the parties separated on a final basis when they were about 12 these two girls knew the father as their only father figure. At the time of hearing the girls were almost 18 years old. One had remained living with the mother and the other had moved to Victoria and lived with the father.
The father is an electrical linesman who was able to transfer his employment through his employer to Victoria. Ms M, his de facto partner, is a homemaker.
The mother is a part-time publican and her partner, Mr S, is a full-time school teacher presently teaching on a casual basis. The mother was formally a Teacher’s Aid.
The father commenced proceedings to be permitted to move E to Victoria with him in March 2009 shortly before he moved between April and May 2009 to Northwest Victoria. The child lived in a week about arrangement prior to the father’s move.

Trial Judgment

After setting out the background facts, the Federal Magistrate set out the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) which were applicable and noted that she had to determine what was in the best interests of E by considering the factors set out in s 60CC and also “by reference to any questions of reasonable practicability as enumerated in section 65DAA(5) as relevant.” Her Honour noted that the parents agreed they should share parental responsibility for the child as had been the case in past orders. Her Honour correctly noted that upon such an order being made the Court must consider whether the child should spend equal time or failing that, substantial and significant time, with both parents. She noted that neither parent brought such an application to the Court and further noted that as a matter of practicality, given the distance now existing between the parties’ residences that, save for one circumstance, there was nothing that would cause her to consider equal time or substantial and significant time as being sought or practicable. The one matter raised by her Honour was the fact that the father’s de facto partner gave evidence that she did not believe that the father of her two younger children would object to her and the children moving to Northern New South Wales but she noted that the father did not present that as an option to the Court.
Her Honour noted that although there is a body of case law that relates to “cases known as relocation cases”, this matter was not about relocation but rather it was about with which parent the child should live. This was because, she noted, the father had already moved to Victoria and had determined to stay there and the mother determined that she would remain in New South Wales. While the child lived with the parents on an equal shared basis until the father’s move, that fact meant that E would now be able to live with only one parent and spend holiday time with the other parent. Her Honour noted therefore that (implicitly) having considered the matters in s 65DAA and found that it was not a practical alternative to have equal time or substantial and significant time with the non-resident parent that, in the end, the best interests factors would be determinative. Her Honour went on then to note that there was no reason for her to consider whether the father should be demonstrating any reasons for moving to Victoria or any consideration of whether the mother was capable of moving to Victoria. She identified that what she needed to do was decide whether it was in the best interests of E to live with the mother or to live with the father. There was no challenge to her Honour’s approach.
Her Honour then considered the various matters raised in the case under the relevant headings of s 60CC(3) of the Act. She noted that the father complained that the mother’s responsibilities at the hotel made her less available for the child, although the mother denied that this was the case. Her Honour also noted that the father said that the child complained of being bored at the mother’s place. Her Honour opined that it seemed from the father’s criticisms of the mother that he was wanting the Court to find that his relationship with the child had greater depth and meaning to the child than the mother’s relationship with the child. Her Honour noted that both parents impressed as parents who dearly loved their daughter and who wished to have a very real involvement in her life.
Her Honour noted that the parents had encountered difficulties between them which had reached their lowest point in September 2008 when there was a physical altercation involving the father, his partner and the mother’s partner. Other than that incident, her Honour noted that there were no concerns with respect to harm and as best as she could tell, E was not exposed to the argument which took place.
Her Honour then turned to a number of matters which assumed significance in her ultimate decision and formed the gravamen of the appellant’s attack on the judgment.
The first of these are the views expressed by E. Her Honour had before her expert evidence in the form of a Family Report from Ms B, a clinical psychologist appointed by the Court as a single expert, who had interviewed the parents, E and the mother’s partner Mr S. Her expertise was not in question. It is convenient at this point to detail the relevant matters in Ms B’s report.

The Family Report

After having set out in some detail her interviews with the mother and father, Ms B turned to consider the views expressed by E and then ultimately her recommendations. Relevantly, she noted that E was an articulate eight year old who seemed to be a child who thought deeply about issues. She opined that E seemed to be quite mature emotionally for her age and that her responses to Ms B indicated that she was aware of the issues facing her. She expressed a wish that her father not go away and indicated that she was happy visiting her mother and father (in accordance with the orders which had been in existence up until the father’s move in May 2009). She noted that E said that she wanted to go with her father and have a better life but that really she would like to live with her mother and father and wished that her father would stay in the area in which she was currently living.
Ms B indicated that at the conclusion of her interview she had gained the impression that E felt secure when she was with her father and got a sense of belonging in the family unit that was evolving: “She seemed quite comfortable with members of the new step family and to perceive her step mother as a supportive person.” The reporter noted that E seemed more ambivalent about her relationship with Mr S and showed no dislike of him but did not appear to have developed any significant attachment to him. This correlated with information given to the report writer by the mother and Mr S, who indicated he did not think it was appropriate to involve himself in E’s parenting.
Ms B explored with E how she came to the decision that she wanted to go with her father and set out what the child had told her at paragraph 77 of her report, indicating the child said “[i]t was my idea to go and live there”. E stated “I decided I wanted to go and live with daddy when he told me I would have a better life there and play sports”. E also stated that if she could, she would tell the Judge that “I want to go and live with mum and my dad.” E informed Ms B that she would like to “see daddy on school days and go and see mum on big school holidays and special holidays”. Ms B opined that E appeared to have significant attachments to both her mother and her father and clearly loved them both. She was observed to be comfortable with both her mother and father.
In her evaluation of E’s responses, Ms B indicated that to her, E’s responses indicated that she was concerned about the ramifications of choosing to live with her father or mother, that is not spending enough time with and missing her mother or father. She observed that the mother appeared to have developed a good bond with E and to have been a good mother and found no evidence that she had been neglectful in her day-to-day care and supervision of E as the father asserted. She noted that there had been conflict between the parents by virtue of them differing in their perspectives of events raised by each other and noted that both parties insisted that their version of events was correct. She noted that E’s responses did indicate that she may have been experiencing a loss of time with the mother since her mother had taken over the lease of the hotel.
Ms B observed from her interviews with the parents and E that the parents found it difficult to put their issues with each other aside when it came to E. She opined in particular that the father’s relational style appeared to be critical of the mother and therefore confrontational. This caused him to stew over issues which then led to him becoming critical of the mother. The mother’s response to this critical style of interaction was to ignore the father, with the result that he escalated his responses and the interaction between the two parties became more conflicted. She noted in particular that, by his own admission, the father appeared to find it difficult to let issues go and that the constant emails and telephone calls which he then engaged in seemed to have the effect of the mother feeling harassed by him.
Ms B was of the view that there was some evidence that the mother had rigid, fixed views on some issues and that her responses to the father’s emails did not support her statement that she was slow to respond to him because she was fearful of him. She said that the father may have unrealistic expectations of the mother’s parenting and a tendency to be highly reactive to her because of past experiences with her. She further said that the father seemed to have a “short fuse”, which at times resulted in him “unloading on [Ms Barningham] by emails, on the telephone or in person” and his relational style did not invite negotiation. Importantly, she considered that neither party appeared to have a great deal of insight into how their behaviour contributed to the conflict between them and affected E.
In considering the effect of the move on E, Ms B noted that E appeared to be a fairly mature eight year old who would most likely experience some difficulties adjusting to less time with the parent with whom she did not live. She said that, based on the information given to her, E “may experience less difficulty in moving to Northwest Victoria to be with her father than she may experience by staying with her mother”.
Ms B noted that E appeared to have the expectation that she was going to live with her father and that irrespective of how she came to have these expectations, she does appear to want to live with him. She noted that E appeared to spend a significant amount of quality time with her father, suggesting that she may be less adversely affected by the loss of quality time with her mother than her father. She noted that she appeared to have the additional support of Ms M, whom she perceived to be supportive, to adjust to life in Victoria. She concluded that the father had the kind of relationship with E that would “buffer her to some extent from the adjustment difficulties she may experience”. As to the move itself, Ms B indicated that she saw no evidence that E moving to Northwest Victoria and becoming a member of a blended family would necessarily affect her negatively.
She observed that the father indicated that he wished to promote the relationship between E and her mother, that a lot of his complaints had been directed towards improving the quality of the relationship between the mother and E, and that he offered to pay for the flights for E to spend time with her mother.
Finally, Ms B recommended that E be allowed to reside with her father in Victoria and that the relocation take place at the end of the present school term. If this occurred, she recommended that E spend at least one week out of two weeks of the school holidays throughout the school year and four weeks out of six of the Christmas school holiday period with her mother and have the option of spending one long weekend during the school term with her mother if this were possible.

The Federal Magistrate’s approach to the Family Report

The Federal Magistrate then considered the views expressed by E and what she described as “relevant characteristics”. She noted that the wishes of E had taken particular prominence but noted that E was eight years of age and as such was “not yet of an age where her views may be more persuasive due to maturity”. She observed that the report writer had “seemingly placed substantial weight on the child’s views, as it would appear to be the factor that tipped the scale in the direction of Ms [B’s] opinion that the child live with the father”.
She noted that it was part of the father’s case that it was because of the views expressed by the child that he had brought his application. As to her maturity, the Federal Magistrate noted that her father described E as a “bright girl” but further noted that she was presently in Year 3 in a state school in New South Wales and there was nothing in her report card to indicate that her maturity was anything more than an average eight year old. In relation to the views expressed, her Honour noted the reported comments by E that “I decided I wanted to go and live with daddy when he told me I would have a better life there and play sports” and observed that while the father had denied in his evidence that he told E she would have a better life, he accepted that he had pointed out positives to her in living in Victoria with him. Her Honour found that the two things were the same and that a “loved and respected father, in pointing out to the child the positives of such a move, is able to be understood by a child aged eight that a better life is being proposed.” Her Honour noted that had the negatives been pointed out, “then the child may have been in a position to understand something closer to the reality, which is that the move will be a change from her present life and that until it is experienced by her, she cannot know whether it is, indeed, a better life”.

In relation to the report itself, her Honour was concerned that there were limitations; most notably the absence of Ms M and her children from the interview process. In particular, her Honour was concerned that Ms M had, according to her Honour, “[q]uite adamantly in her affidavit”, proposed that she and her children would not be moving into the house with the father until E moved in. She had deposed to the fact that if this were the case, none of the children would have any prior claim to the house or the blended family. Her Honour noted that despite that, solely for the reason that her children said they were happy to move at a time after the start of term 4, Ms M and her children moved into the house with the father prior to E moving in. Her Honour noted that there was no other reason to move and no pressure on them to do so. Her Honour was somewhat critical of this decision, both for the level of stress it would have placed on Ms M’s own children commencing at a school during the term rather than at the beginning of the year and noting the absence of any explanation from Ms M as to why her concern about potential competitiveness between the children moving into a blended family had “vanished in such a short space of time.” Her Honour said that she had been impressed by Ms M’s evidence in her affidavit about the blending of the families, which did not correspond with her “superficial explanation” for why the position had changed.
This caused her Honour to be concerned as to Ms M’s capacity to manage the stresses and strains of the blending of the family and “as the adult who will bare the brunt of the daily issues arising as the blended family moves in together, she is in need of a level of understanding of these issues so that she can assist the children by responding appropriately”. Her Honour found that, had the family report writer been able to interview Ms M, who was not available at the time of the interview, her insights might have been explored better and the child’s relationship with Ms M also explored. Her Honour was concerned that the child’s views were based on limited exposure to Ms M and was concerned about her children, and the realities of living together in another state with her experiences to date having been all holiday or weekend time.
Her Honour considered the nature of the relationships between the parties and found that although the parties had different ways of interacting and enjoying tasks together with E, there was no basis to consider that the mother had any less of a relationship with E than the father. She found that the mother’s de facto partner was an important person in E’s life and that they had a loving relationship, notwithstanding that he had been careful to distinguish his role from the role of father, to which her Honour attached no criticism.
When considering the facilitation of a relationship with the other parent, her Honour observed that proceedings were brought because the father commenced a relationship with a woman who lived in Victoria and had moved there. She noted there was no impediment to Ms M and her children moving to New South Wales, arising from the need to spend time with their father. She noted that E had moved between her two parents’ households for years and although the father had said this had not worked smoothly, he was the one whose actions would mean that E would now live with one parent and see the other during school holidays. Her Honour expressed a concern that the father’s attitude to the benefits to E in sharing time with both of her parents (by changing his residence to make a change to the existing arrangements inevitable) was reflective of an attitude that she was better off with him. Her Honour did not consider that such an attitude would equate to a genuine facilitation and encouragement of the relationship between E and her mother.
Considering the likely effect of the change, her Honour noted that if E were to move to Victoria she would change state, school, friends, environment and surrounds and importantly move from her mother and Mr S’s tested care to her father and Ms M’s untested blended family. Her Honour opined that the effect on E should not be underestimated.
Her Honour further observed that although E believed the change would be for the better, she was unable to find that the change would be for the better, rather, considering the change would be difficult and that she did not have the confidence that Ms M and the father had the skills to support E through that change.
In considering past fulfilment of parental responsibilities, her Honour again noted that the father’s actions in creating a situation whereby the benefit to E in having her parents live in reasonable proximity was necessarily ended “to have been self-focused and not focused on [E’s] best interests”.
Finally, noting that she did not consider that E’s wishes were ones upon which she should properly put weight, as they had been influenced by her father along the lines of his own views and preferences, the deciding factor must be that the father’s “self-focussed decision to move so far away means that his attitude towards the mother’s role in the child’s life is lacking”. Her Honour then concluded that, weighing up all of the factors, E should remain living with the mother in New South Wales and spend holiday time with her father.
As the orders, other than the question of where E should live, were uncontroversial, we have not set them out in detail but annexed them to these reasons (at Annexure 1).

Grounds of Appeal

At the commencement of the hearing of the appeal the father (who was self‑represented on appeal but represented at trial) sought and was granted leave to substitute page 6 of the appeal book for his grounds of appeal, which it is convenient for us to now set out.
1.   There was a gross denial of procedural fairness and natural justice – The child [E] was not represented throughout the proceedings. The only independent representative voice of the child – The Family Court Reporter – was treated as a hostile witness by counsel for the respondent. This was not adequately managed or balanced by the court or the counsel for the applicant. The Federal Magistrate erred in law – In the exercise of her discretion she placed excessive reliance on one factor – the untested maturity of the child – Findings not supported by available evidence
2. There was an overwhelming denial of procedural fairness – It is contended that the Federal Magistrate failed to give proper or adequate consideration to the requirements of the Family Law Act 1975 in particular Sections 60 CA, 60 CC, 62 G. The Federal Magistrate erred in law – The Federal Magistrate failed to give adequate consideration to the risk of exposure to abuse and further neglect as per Section 60 CC 2 (b) of the Family Law Act 1975.
3.   There was a denial of natural justice and procedural fairness – The barrister for the applicant failed to execute his duty by following direct instructions from the applicant throughout the case and failed to cross –examine witnesses as instructed.
4.   The Federal Magistrate erred in law by failing to apply well-established precedents and guidelines regarding Relocation cases. The Federal Magistrate erred in law – It is contended that the Federal Magistrate improperly applied the principles of Section 65DAA(5 ) of the Family Law Act 1975.
5.   The Federal Magistrate erred in law – based upon the facts the result is unreasonable or plainly unjust. It is contended that there has been a failure to properly exercise judicial discretion – Testimony was admitted which was shown to be likely false and perjury. The Federal Magistrate erred in law – The Federal Magistrate failed to give sufficient reasons – Adequacy of Reasons – Findings not supported by the available evidence or uncontested facts.
6. The Federal Magistrate erred in law – The Federal Magistrate failed to give adequate consideration to the risk of exposure to family violence as per Section 60 CC 2 (b) and Section 60 CG of the Family Law Act 1975. (Replicated from the original document with original emphasis)
Before discussing in detail the grounds of appeal, it is necessary to consider the evidence as it unfolded before her Honour. We do so because counsel for the mother submitted that her Honour’s reasons should be considered in the context of the entirety of the evidence and the parents’ presentation before her, even though the Reasons for Judgment may be succinct.
Counsel for the mother also relied upon the fact that this was a discretionary judgment and clear error would need to be demonstrated before an Appeal Court would interfere with her Honour’s decision (Gronow v Gronow (1979) 144 CLR 513; House v The King (1936) 55 CLR 499).

The evidence at trial

As to evidence, her Honour had a number of affidavits by each of the parties. In particular, the father filed and relied upon affidavits filed 5 March 2009, 2 October 2009 and 16 October 2009. The mother relied upon affidavits filed 25 March 2009, 1 October 2009 and 16 October 2009. There was an affidavit by Mr S, filed 1 October 2009. There was also an affidavit by Ms M, filed 2 October 2009. Case outline documents were filed on behalf of both the mother and the father.
In his affidavit filed 5 March 2009, the father was very critical of the mother and her parenting. The criticisms ranged from the mother’s sewing a button of the wrong colour on E’s uniform, through to lack of hygiene for E when in the mother’s care, and a failure to provide dental and medical treatment when necessary. They encompass inadequate supervision by the mother and the mother drinking at the hotel when E was in her care. All of these allegations were denied in the mother’s affidavit filed 25 March 2009 and where necessary, an entirely different explanation given for the circumstances in which the criticisms were made. Despite the father’s affidavit being replete with criticism of the mother, she did not criticise him, other than to deny with some particularity the allegations made. She was in the main uncritical of the father and his parenting.
The mother filed a lengthy trial affidavit on 1 October 2009 in which she detailed the circumstances in which it came to her attention that the father intended to move to Victoria and to take E with him. In the course of the affidavit, she responded to a number of matters that were contained in Ms B’s family report. In part of this, she again refuted allegations made to Ms B by the father about her care for E. The father filed a further affidavit on 2 October 2009 in which he largely took issue with the mother’s denials. However, his affidavit contains, under the heading “[r]ecent incidents”, again, criticisms of the mother and her care of E. The father set out the present arrangements for E to start school if she were to move to Victoria. He indicated, as did Ms M, that they had decided it would be best if everyone moved into the Northwest Victoria house at the same time.
Each of the parties filed a further affidavit on 16 October 2009. The mother again responded to allegations made by the father, and neither explained or denied them. The father’s affidavit joined issue in relation to the mother’s responses in her affidavit filed 1 October 2009.
For the preparation of her report, Ms B interviewed the parties, and also read the affidavit of the father sworn 4 March 2009, and the mother’s response sworn 23 March 2009. She also saw emails from the mother to the father and vice-versa. From this, she would clearly have been aware of the father’s allegations about the mother’s parenting and character and her denials. Ms B, although not the ultimate decider of fact, concluded that from her discussions and observations: “I did not find any evidence that [Ms Barningham] had been neglectful in her day to day care or supervision of [E]”.
As we described in paragraphs 18 to 20, Ms B noted the conflict between the parties and the manner in which each of them interacted with the other, and the ultimate failure of communication between them. However, she did not conclude, as the father endeavoured to persuade us, that the problems between them were the fault of the mother, or the father, but rather their difficult relationship with each other. Specifically, Ms B considered (at paragraph 85 of her report) that: “[n]either party [appeared] to have a great deal of insight into how their behaviour contributes to the conflict between them and impacts on the children”.
Nor did she conclude that E had a stronger relationship with her father. She found E appeared to have significant attachments to both her mother and father, and clearly loved both her parents. Ms B observed her to be comfortable with both of her parents and did not display signs of an insecure attachment to either parent. She concluded that E did not perceive that being part of a step-family was going to be a problem for her, but that she was disappointed that her mother had to work in the hotel as much as she did, and was concerned about her spending significant times away from both her mother and her father.
Given these observations in the Family Report, and the mother’s denials, it is perhaps unsurprising that the father’s criticisms of the mother, which we have described, were not the subject of much cross-examination by the parties’ counsel. To the extent that the mother’s counsel cross-examined the father, many concessions were made by him. There are a number of examples, but a few will indicate the point.
The transcript of proceedings of 19 November 2009 relevantly provides the following exchange between counsel for the mother at trial and the father:
[MR BURRIDGE]: Now, in paragraph 41 of your affidavit, sworn on 29 December, you say:
I taught [E] to swim after [Ms Barningham] failed to take [E] to swimming lessons.
?‑‑‑Yes.
When did you do that?‑‑‑Over the summer.
Over the last summer?‑‑‑No. Year before.
2007?‑‑‑I think it was 2007, yes.
So I take it you’re critical of the mother that she didn’t?‑‑‑At the time I was, yes.
Yes. Well, you were also at the time you swore your affidavit still prepared to swear to that fact in an affidavit that you were critical of the mother that she didn’t take [E] to swimming lessons?‑‑‑As promised, yes.
As promised?‑‑‑Mm.
What do you mean by that?‑‑‑That [E] was supposed to be getting - going to swimming that year. I was informed she was going to swimming lessons that year and made holiday changes to suit that swimming course.
Yes?‑‑‑That didn’t eventuate, yes.
So did you then take her to that course?‑‑‑No, I brought her back to her mother’s care when I was told that the course was going to be on, and it never eventuated.
Did you make those arrangements for swimming lessons?‑‑‑No.
Did you raise that issue with the mother in any of your various emails about the child having swimming lessons?‑‑‑No, not by her mother.
No. In any event, you say it is important now that this court know that you are critical of the mother about her not taking [E] to swimming lessons?‑‑‑I mean, at the time I thought that she had let her down, yes.
Not enough for you to raise it with the mother?‑‑‑It wasn’t the first time.
But you – as I understand it, you were concerned about the child and the child had been disappointed, and yet you don’t raise it with the mother, do you?‑‑‑Like I said, communications were – had been zero for – between me and [Ms Barningham] for some time.
And were they communications because you raised such issues as the child missing buttons from a school uniform, that sort of thing?‑‑‑I am not great with a sewing machine, so repeatedly doing buttons was a pet hate of mine.
And so you are critical of the mother that you have to engage in a pet hate like sewing a button on the child’s uniform; is that right?‑‑‑At the time, it was upsetting to me, yes.
It was upsetting to you. It was upsetting enough for you to put it in your affidavit, was it?‑‑‑Yes.
And when [Ms Barningham] sewed a button on, it happened to be the wrong colour?‑‑‑Yes.
Now, in your affidavit you were critical of the mother about [E] being kept home from school and missing an excursion [in] … July. Do you recall writing that in your affidavit?‑‑‑Yes, I do.
Yes. As I understand it, [B] – and [B] is a child that lives with you; is that correct?‑‑‑Yes.
Yes. [B] had travelled up to visit her mother on that occasion?‑‑‑Yes.
And it was [B] and [S]’s birthday?‑‑‑Yes.
Yes. And you knew that [B] and [S] and the mother and [E] were all having a birthday party?‑‑‑I was unaware of that.
You say in your affidavit – and you would have known ahead of … July that [B] was going up to the Gold Coast to be with her mother and her sisters for the twins’ birthday?‑‑‑Yes.
You, in fact, paid for [B’s] present by providing her with an airline ticket, did you not?‑‑‑Yes.
Yes. So you knew full well that [B] was coming up. You say that after … July when you next spoke to [E] she told you that she had missed a Gold Coast excursion?‑‑‑Yes.
Yes. When was that, to start?‑‑‑On the way back from the airport, I believe.
After she had been down to see you?‑‑‑When she had arrived to see me.
When she arrived to see you. So how long after that discussion – after … July was that?‑‑‑I’m not sure of the exact date.
A few days, a week?‑‑‑Once again, I’m not sure of the exact date.
All right. But you would have known, of course, that the mother and the girls had an event planned?‑‑‑On that day, I had no idea, no.
Well, did you ask [E] about the birthday party for the twins?‑‑‑Yes, I did.
And what did she say?‑‑‑Over that weekend, I think we did discuss that.
Yes, and what did she say?‑‑‑It was just another birthday for [E], yes.
Another birthday for [E]. Well, this is her sister that she doesn’t see much of, … – [B] I should say, coming up to see her and the twins having their big 18^th birthday; is that right?‑‑‑Yes.
Fairly big event for the twins?‑‑‑It was a huge event for the twins.
And a big event for the family?‑‑‑Yes.
And you knew full well that [E] hadn’t gone on the excursion so she could spend the day with her mum and her sisters, didn’t you?‑‑‑No, I didn’t.
Well, did you ask [E] whether that is what happened?‑‑‑No, [E] just expressed that she was disappointed she didn’t make the excursion. And I said, “I’m sorry to hear that.”
Well, didn’t you then say that that was the day of their birthday? It was a big day for them?‑‑‑They also had a big 18^th birthday party not on that day, on that – the day of the excursion, but – no ‑ ‑ ‑
..... actually?‑‑‑I just answered [E]’s question.
You just answered her – [E]’s question?‑‑‑Mm.
I see. But you are now critical of the mother for keeping her away from the school excursion for that particular day, aren’t you?‑‑‑I was disappointed for [E].
You were disappointed for [E], I see.
Did you ever ask her what she did for the day?‑‑‑No, I didn’t. I was disappointed for her and I wasn’t aware of the things that you have just brought to light with me then.
Yes, I see. You were well aware that [B] was coming up for her birthday?‑‑‑Yes, I was.
Yes. You see, what I am suggesting to you is that you are highly critical of the mother for all sorts of things ranging from the wrong colour button to the fact that [E] may miss an excursion so she can spend the full day with her sisters on their birthday, aren’t you?‑‑‑I was – as I just said, I was unaware that that – that she spent the day with her sisters that day, and I was just expressing my concern at her – what she told me – her disappointment she told me about, about missing the excursion.
Yes. But you never made the further inquiry as to – knowing full well the significance of the day in question as to what might have occurred, did you?‑‑‑No.
No. You didn’t want to know, did you?‑‑‑Like I said, I responded to the disappointment of my daughter. I felt for her because she sounded disappointed.
What did she also say about the birthday? You wouldn’t know, because you didn’t ask?‑‑‑I asked her how the 18ths went, the party, yes. And ‑ ‑ ‑
But in the immediately preceding paragraph you say:
On 1 July 2009, I telephoned [E]. I recognised [S] coughing in the background. [ S] had been suffering from this cough for about three weeks.
Now, you are critical of the mother again, I take it, by raising that in the affidavit?‑‑‑I thought [S] should have seen a physician.
You thought?‑‑‑Yes.
But [S] is pretty much her own person, you would agree?‑‑‑Yes.
And you raise that to be critical of the mother, don’t you?‑‑‑Yes. [S] was her own person but without a licence to get herself to a physician, yes.
But [S] did go to the doctor?‑‑‑Yes.
So why do you say her Honour should know about that in this affidavit?‑‑‑The cough was pretty serious and I thought three weeks before she went and saw a physician.
So you are critical about the mother, aren’t you?‑‑‑Disappointed, yes.

Given the father’s responses to these passages in the cross-examination, which did not support his contention that the mother was neglectful as alleged, it is understandable that his counsel did not test all of these matters with the mother. Again, unsurprisingly in light of the father’s evidence and cross-examination, counsel for the father did not attack the mother’s parenting other than in one or two aspects. In particular, his complaints were limited to driving unlicensed with the children, E’s school marks and lack of communication between the two parents.
We turn now to consider the father’s submissions that support the grounds of appeal. We do so in the context of the allegations made in affidavits, the conclusions of Ms B regarding the parenting of each of the parties, the father’s answers to questions in cross-examination and the ultimate submissions made by counsel to the trial Judge.

The father’s submissions in support of the appeal

Despite all of the grounds raised by the father (with which we will deal), there are really only three issues which require significant consideration. They are (paraphrasing):
a)That the Federal Magistrate failed to give sufficient weight to the views of the child and recommendations of the family report writer ;
b)That the Federal Magistrate’s finding that the father’s decision to move and his attitude that E was better off with him is self-focused, and does not equate to a genuine facilitation and encouragement of the relationship between E and her mother was not open to her on the evidence; and
c)That the Federal Magistrate’s finding that rather than the change to Victoria being for the better, the change would be difficult, and the Federal Magistrate did not have the confidence that Ms M and the father had the skills to support E through that change was not open to her on the evidence.
The first non-substantial issue remaining raised by the appellant was a denial of procedural fairness and natural justice. This was asserted to be occasioned by the child not being separately represented throughout the proceedings and the Federal Magistrate allowing the questioning of Ms B to be badgering and aggressive.
As to the first of these complaints, although the appellant addressed this at length in written submissions, in oral submissions he clarified what he meant by this ground. This was that the Federal Magistrate’s disregard for Ms B’s recommendations effectively silenced the child’s voice. He did not pursue the argument that no Independent Children’s Lawyer had been appointed, and conceded to us that it was not his position that there should have been an Independent Children’s Lawyer.
As to the second part, the appellant contended that the Federal Magistrate should not have allowed “badgering” questioning, which led to confusion by Ms B, and should have controlled the cross-examination better. This ground can be disposed of shortly.
Division 12A of Part VII of the Act sets out the Principles for conducting child‑related proceedings. In particular, s 69ZX(2)(i) of the Act gives the Court discretion to limit, or not allow, cross-examination of a particular witness.
Section 41 of the Evidence Act 1995 (Cth) provides the Court with powers in relation to improper questioning of witnesses. Section 41 relevantly provides:
(1) The court must disallow a question put to a witness in cross‑examination, or inform the witness that it need not be answered, if the court is of the opinion that the question (referred to as a disallowable question):
(a) is misleading or confusing; or
(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or
(c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or
(d) has no basis other than a stereotype (for example, a stereotype based on the witness's sex, race, culture, ethnicity, age or mental, intellectual or physical disability).
Section 29 of the Evidence Act 1995 (Cth) deals with the manner and form of questioning of witnesses and their responses. Section 29(1) relevantly provides:
(1) A party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court.
Having read the transcript of the cross-examination of Ms B, there is nothing to suggest that the questioning was aggressive, badgering or would have led to confusion. Ms B was giving evidence as an expert and her answers indicated she was able to handle the questioning. But more importantly the husband was represented by counsel who, other than on a few occasions in relation to specific questions, did not object to the manner of the cross-examination. In our view, this ground has no merit.
A third aspect of the procedural fairness complaint is set out in Ground 3, which was that the appellant’s counsel failed to follow instructions and to cross‑examine as instructed. This ground could not possibly found a successful appeal and no oral submissions were directed to it.
Ground 2 alleged that the Federal Magistrate failed to give proper or adequate consideration to s 60CA, s 60CC and s 62G of the Act in particular, that the risk of exposure of abuse and neglect. As we have pointed out in paragraph 40 the father made a number of allegations about the mother’s care of E. These allegations were denied. Some of these matters were canvassed with the father in cross-examination and those allegations on any objective assessment of his responses, were not substantiated. We have pointed out that many others were simply not pressed for what we perceive to be good reason. Ms B, who was aware of the allegations, assessed the parties’ conflict and concluded that it was largely to do with the differing personalities of the parties and the way they interacted with each other.
We were not taken to any particular evidence that established that the mother was guilty of neglect, or that there was a risk of harm to the child remaining in her care. It should not be forgotten that the parties had a joint arrangement in place between them for many years regarding the care of E. We can see no basis on which the Federal Magistrate erred in her finding that this was not a case in which there was exposure to abuse or further neglect. Far from this being a case in which there was abuse and neglect by the mother, in our view, this was a relatively finely balanced case where parties had demonstrably been involved entirely appropriately with the care of the child until the father went to Victoria.
Ground 4 asserted that the Federal Magistrate had erred in law in failing to apply well-established precedents regarding relocation cases. The Federal Magistrate said at the outset that this was not a traditional “relocation” case where both parties were in the one place and one party sought to relocate with the child to another place. She correctly noted that the father had moved to Victoria and was not intending to return. Conversely, the mother was not intending to move. Therefore, this was a case simply about with whom the child should live. Her Honour considered whether it would be in the child’s best interest for equal time or substantial and significant time, as required by
s 65DAA of the Act, rejected both and noted the question to be determined was what was in E’s best interest having regard to matters in s 60CC of the Act.
Other than citing the authority A & A: Relocation Approach ((2000) FLC 93‑035; (2000) 26 Fam LR 382), in his written submissions, the father made no oral submission in support of this ground. We find there is no merit in this ground.
Ground 5 asserted that the Federal Magistrate erred in law based on the fact that the result was “unreasonable, or plainly unjust” and allowed evidence which was shown to be likely false and perjured. In his oral submissions, the appellant asserted that his counsel had proved that some of the things that the mother said were not true, and that too much weight was given to her affidavit by the Federal Magistrate. We have previously discussed the allegations made by the father and the denials by the mother, and the extent of cross‑examination in relation thereto. We were not taken to any specific matter other than the Federal Magistrate’s findings about Ms B’s evidence, which dealt with this ground. But we will now turn to that issue.
The second part of Ground 5 is that the Federal Magistrate failed to give sufficient reasons and made findings not supported by the available evidence. Most of this ground related to her findings about the views of the child. This is one of the three matters listed in paragraph 50 which form, in our view, the gravamen of the appeal and in relation to which consideration is required.

The views of the child and recommendations of the report writer

Ms B based her recommendation that E be permitted to reside with her father in Northwest Victoria as a starting point on E’s views. She found her to be:
·an articulate eight year old girl;
·to be quite mature emotionally for her age;
·aware of the issues facing her; and
·aware that if she went to live with her father she would miss seeing her mother as she would not see her as often.
At the same time, she was:
·concerned about the ramifications of choosing to live with her father or her mother (for example, not getting enough time with her parents, and missing her mother and father);
·being happy that she was visiting her mother and father and wishing that her father was not going away.

Thus Ms B opined that E appeared to be a fairly mature eight year old child. She was concerned what difficulties might confront E in moving away from her mother and in settling in to an untried environment with her father. As to the former, Ms B opined at paragraph 87:
[E] appears to be a fairly mature 8 year old child. [E] will most likely experience some difficulties adjusting to less time with the parent she does not live with, as the distance between the parties is guaranteed to result in [E] experiencing less time with either her mother or her father. Based on the information given to me by [Ms Barningham], [Mr Barningham] and [E], it is my opinion that [E] may experience less difficulty in moving to [Northwest Victoria] to be with her father than she may experience by staying with her mother in [Northern New South Wales].
Whilst accepting that E had the expectation that she was going to live with her father, Ms B considered that irrespective of how she came to this expectation, E wished to live with her father. She noted that she appeared to have the additional support of Ms M to assist her adjust to life in Victoria and that the father had the kind of relationship that would buffer her to some extent from the adjustment difficulties she might experience. As perhaps a third and subsidiary level of relevance was an observation by Ms B that E did not have a significant attachment to Mr S and seemed more ambivalent about her relationship with him, than with her relationship with Ms M.
The basis of the rejection of this recommendation by the Federal Magistrate was, in large part, although not entirely, based upon the finding that E’s views had been unduly influenced by her father and therefore, could not be given weight.
The crucial issue, was thus whether her Honour was entitled to give no weight to the views of the child as expressed and the recommendations of Ms B.
The basis for her Honour’s conclusions comes from the cross-examination of the father and also of Ms B. The father denied telling E that she would have a better life in Victoria, but conceded providing her with a positive view of how life would be. Importantly as well is the father’s evidence about when he decided to move to Victoria and how this emerged. In the father’s evidence under cross-examination he conceded that in the latter part of 2008 he had made a decision that he wanted to move to Victoria. His evidence was that initially Ms M was considering moving to the Northern Rivers region and did not move because “she thought she would get opposition from the father of her children”.
The father conceded that in the latter part of 2008 he put an expression of interest for a transfer to Victoria, sought to have his employment transferred, and then purchased a property in Northwest Victoria in January 2009. The father conceded that the mother first became aware of the proposal to move E to Victoria in the first week or two of February 2009. The father acknowledged he had had a discussion with E prior to 12 February 2009 about moving to Victoria, in which he told her that he would like her to move with him, but that her mother and he disagreed and that a Judge would have to decide the issue. He conceded that this conversation took place before he had broached the subject with the mother and before she had given any indication whether she would consent or not.
The father conceded that he sent the mother an e-mail communication in which said “[y]es I am relocating to [Northwest Victoria] … and intend taking [E] with me as I believe it’s in her best interest”. The father further conceded that he wanted E to come with him, he told her he had a new house and that there were sports available in Northwest Victoria. He conceded that he told her “that she could have a good life down there because there were sports, recreation [and] a well-rounded environment for her.”
The following exchange occurred between counsel for the mother and the father during cross-examination:
Do you accept that you may have shaped your daughter’s wishes in the process?‑‑‑Not intentionally.
No, but do you accept that that may have occurred?‑‑‑Well, [E] arrives at her own interpretations. I have not deliberately done that.
So you’re saying to the court that you don’t accept that you would have shaped or in any way influenced [E]’s decision, you say?‑‑‑Not deliberately, no.
Well, when you say “not deliberately”, do you accept then that if - without necessary deliberation, you nonetheless have influenced her, what she says she wants?‑‑‑I think I’ve - I think I’ve just tried to be honest with her about everything and let her arrive at her own decision.

Ms B was cross-examined about the father’s influence on E’s wishes. She was asked, in particular, whether the child had been coached. The following exchange is recorded:
… you say you reached the conclusion that the child had not been coached. Is that correct?‑‑‑I didn’t get – necessarily have any hard evidence that [E] had been coached.
Can I take you ‑ ‑ ‑?‑‑‑Certainly, [E]’s interview with me did not indicate that.
Ms B was also questioned about the father’s influence, as recorded in the following exchange in the cross-examination:
Did you interpret “could stay down there” as Victoria or [Northern New South Wales]?‑‑‑No, your Honour - I’m sorry, no. I think she was referring there to [Northern New South Wales]. I think she would have preferred that she didn’t have to choose between either of the parents.
All right. And the words “have a better life” were they her words or were they words that ‑ ‑ ‑ ?‑‑‑Yes, they were her words.
Did you form a view as to whether she had been, if you like, sold on the idea of going to [Northwest Victoria] as getting a better life?‑‑‑My impression was that I did not think that she had been coached, however, I certainly thought that [Northwest Victoria] and all it had to offer had certainly been - had been talked about in very positive terms and her experiences there had been positive as well.
Ms B also relevantly stated in response to a question:
That does not ring any sort of bell to you, that perhaps the child mused about living there, had been shaped by what the father had said?‑‑‑I directly answered that question earlier, that I certainly was under the impression that the positives had been pointed out to [E] a great deal, so there was no doubt in my mind that that had happened. I think there is – I consider that [E] has been coached at sports and say slightly a different a point
Yes, well, if [E]’s view is that she has a better life there then she has undergone, through some process – process of evaluation, has she not, between her mother’s circumstances and her father’s circumstances, to be able to make that decision?‑‑‑Correct.
Yet, she reaches the decision that she would have a better life because her father told her she would, not that [E] necessarily undertook or underwent that process of evaluation herself?‑‑‑Well, I didn’t – I wasn’t my impression. It was my impression that [E] had undergone a process of evaluation but based on things her father had said to her, her own experiences and also things that, you know, she may or may not have been missing out on, you know, or would have liked to be different at home. So it was my experience that there were a combination.

Ms B again conceded that there had been a lot of positive information relayed to E about where she was going and that her experiences going there had been positive. She said:
Well, here you have a child telling you certain things based on what the child says her father told her about. Why wouldn’t you have asked [E] how often she had spoken to her father about it?‑‑‑Look, I’m sorry, I don’t understand the nature of your question and I don’t know why I would or wouldn’t have, because I just didn’t. But I think the answer that I have, sort of, given you is that it seemed clear to me that there has been lots of positive information relayed to [E] for some time, about where she was going and that her experiences going there have been positive. I certainly became aware, as the interview went on,....., especially after speaking to [Ms Barningham], that she may not necessarily have been aware of this. So there are a whole lot of reasons to annex in there, reasons as to why that may or may not have happened, but I did ask the father questions about the nature of, you know, how he came about or how [E] came to her decision, I think, that was put in the report. I did ask [E], and again, my impressions were that [E] was certainly, you know – had positive experiences and the positives were pointed out to her for some time and that – certainly that would have factored into her decision, but it was one factor, I thought.
On this point, Ms B said:
But if it truly was not an idea that she would’ve come to free of any shaping or influence, that’s one thing, is it not? But if the - her expectation that she is going is there because it’s been shaped and influenced by the party seeking to have her there, that’s an entirely differently consideration, I would suggest to you?‑‑‑I think I’ve already answered that question. I don’t think there’s anything I can add to this. I think earlier, when you were putting these questions to me, I indicated to you that there were a number of factors. One was I thought - and she suggested that this had been something, you know, that this experience had been probably one in the positive term be pointed out and so on, etcetera. And I think because the other ..... from her perspective, that she didn’t want to leave the relationship, obviously, with her father and was very attached to him. And then, I think, the other issues that surrounded it were really how happy and satisfied she was with why where and what. So I felt that there were a number of factors that shaped [E]’s decision. What you’re saying is correct, that that may very well be one, although there are also other factors.

Ms B also said that:
And so that was just your impression that nothing that the child in fact said?‑‑‑Well, look, it was just my experiences of the whole interview with her and to how she had, you know, communicated to me over the period of time, as well as how she communicated to, I suppose, basically what she was experiencing at her home in [Northern New South Wales] and she was predominantly not giving me the impression that she was terribly happy ..... where she was, which is not to say that - I’m sorry, I shouldn’t say unhappy. That’s why I wasn’t getting the feeling that she felt happy and secure and that she was - I didn’t get really positive feedback from her in relation to the situation where she was, but I certainly was getting a lot from that in terms of her relationship with her father and life with her father.

Her Honour ultimately gave no weight to the views expressed by E. She did so predominantly because the father had pointed out the positives to her in living in Victoria with him, which amounted to him telling her that she would have a better life there and to play sports. Her Honour opined, at paragraph 30:
If the father had pointed out the negatives of such a move, then the child may have been in a position to understand something closer to the reality which is that the move will be a change from her present life and that until it is experienced by her, she cannot know whether it is, indeed, a better life.
The question, as we have said, is whether her Honour was justified in placing no weight upon the child’s views. Her Honour was entitled to consider that the child was only eight, although in finding that there was nothing in her report card to indicate that her maturity was anything more than average, she ignored the evidence of Ms B that E did appear to be expressing mature views.
Whilst there was evidence from which her Honour could reasonably conclude that E’s wishes had been “shaped” by the father, the report writer’s evidence, in a number of passages, was that although her views were one part of her conclusion that it would be in E’s best interests to be with her father, it was only one element of a conclusion that encompassed other factors.
In all, Ms B came to her conclusions based on the following matters relevant to E:
·positive things her father had said to her about living in Northwest Victoria;
·her own experiences of spending holiday times in Northwest Victoria with the father, Ms M and her children;
·her attachment to her father;
·her apparently positive view of life with the father’s family;
·her understanding of the issues facing her and that she would miss her mother;
·her maturity for an eight year old;
·her close relationship with Ms M, as opposed to Mr S, and that she would be assisted in adjusting to life in Victoria because of the support of Ms M and the father.
Although cross-examined at some length about E’s views, Ms B remained firm that they were reached after a consideration of a number of factors and were soundly based. She thought that the positive light in which life in Northwest Victoria had been portrayed was only one of a number of factors which caused E to express the preference to live in Victoria with her father.
We think there is force in the father’s submissions. Her Honour relied on the rejection of E’s views upon the father’s pointing out the positives of the move to Victoria to E (Reasons for Judgment, paragraph 30). But Ms B had relied upon much more in coming to her conclusion that it would be in E’s best interests to live with her father.
Her Honour dealt with some of the other matters, a matter which we will turn to, but she did not deal with all of them. In particular, she gave no real consideration to the fact that life in Northwest Victoria was not unknown to E (albeit in school holidays), that she had enjoyed time with Ms M and her children in Northwest Victoria, that she liked Ms M and thought that she would be supportive, that she had some understanding of what the changes might mean for her, the closeness of the relationship with her father and the positive view of an experience of life with his family.
As to the requirement to give adequate reasons, in Bennett & Bennett (1991) FLC 92-191, at 78, 266, the Full Court of the Family Court relevantly stated:
(at 79,266 to 78,267)
Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettit v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge’s decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which likely cases will probably be decided in the future.
…
In Sun Alliance Insurance Ltd v Massoud [1989] VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:-
a.the appeal court is unable to ascertain the reasoning upon which the decision is based; or
b.justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
We think that the test propounded by Gray J is a particularly useful on, and one which also applies to discretionary judgments. In Maday and Maday (1985) FLC ¶91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.
In rejecting the child’s views and the recommendations of the family reporter, we do not consider that her Honour adequately explained why she was justified in doing so. Further it is not possible to discern why all of the factors which led Ms B to her conclusion were rejected.

Other matters raised in the Family Report or by the father

As to the matters raised by Ms B that her Honour did touch upon, we now turn to them as they are the subject of complaint by the father. They also underpin the Federal Magistrate’s decision to reject the views of the child and the recommendations of the family reporter.
Whilst Ms B found support for the move in the positive relationship between Ms M and E, and E’s experiences of life with them in Northwest Victoria, albeit during the holidays, her Honour rejected these underpinnings and made positive findings to the contrary. The father asserts that she was not entitled to make these findings and the evidence did not support them.
They are, first the Federal Magistrate’s rejection of the father’s contention that the change to living in his household would be easily coped with by E, particularly as she had a good relationship with Ms M and her children. Her Honour found that she could not find that the change would be for the better, but rather considered the change would be difficult. At paragraph 44 of her Reasons for Judgment, her Honour stated:
Further, [E] believes that this change would be for the better. I cannot find that this change would be for the better, rather, I consider that the change would be difficult and I do not have the confidence that Ms M and the father have the skills to support [E] through that change.
The second matter which appears to have been the deciding one for her Honour was her finding that the father moved from New South Wales to Victoria for reasons relating to his wish to reside in Victoria with Ms M, that this was a self-focused decision and consequently a decision to move so far away showed that “his attitude towards the mother’s role in the child’s life [was] lacking” (paragraph 51). This was couched somewhat differently in paragraph 41 of her Honour’s Reasons for Judgment, where she said:
Yet [the father] is the one whose actions means that [E] will live with one parent and see the other during school holidays. I have concerns that the father’s attitude to the benefits for [E] in sharing time with both of her parents is reflective of an attitude that [E] is better off with him. Such an attitude would not equate to a genuine facilitation and encouragement of the relationship between [E] and her mother.
Before dealing with these two quite fundamental findings by her Honour, it is necessary to comment about a number of other complaints about the Reasons for Judgment made by the father. He contends that many findings were made by her Honour which were not open to her. We do not intend to go through them all as it does not appear to us that they are germane to the conclusion that her Honour reached. Perhaps the most significant of them is a finding that there was a loving relationship between E and the mother’s de facto partner Mr S. The father contends that this finding was against the weight of the evidence and there was nothing to support it.
At paragraph 76 of Ms B’s report, she said of the relationship: “[E] seemed more ambivalent about her relationship with [Mr S]. [E] described him as spending most of his time on the computer. Whilst [E] showed no dislike of [Mr Barningham], she did not appear to have developed any significant attachment to him”. Ms B went on to report accurately, as we have said, that the mother and Mr S had both said that they did not think it was appropriate to involve him in the parenting of E.
At paragraph 79 of Ms B’s report, she said, again of the relationship: “[E] had not developed a strong attachment to [Mr S]”. Ms B reported that Mr S as describing [E] as “a good kid” and appearing to be “very conscious of not overstepping the mark with [E] (intruding too much in her relationship with her father). [Mr S] appeared to be sensitive to the issues [E] faced in the present conflict (e.g. having to choose between her mother and her father)”.
In Mr S’s affidavit he said of this relationship with E (at paragraphs 7 and 8):
7. I consider that I have a good relationship with both [E] and [S] and that I am very supportive of them.
8. Although I have a very good relationship with [E] I have been very careful to not take on the role of her father. In circumstances where up until May of this year when [Mr Barningham] relocated to [Northwest Victoria], [E] was in [Mr Barningham’s] care just as much as she was in [Ms Barningham’s] care, I felt it was unnecessary and inappropriate for me to become involved to the extent of being a father figure. Although I was very supportive of [E] and attended to her day to day care and needs when she was living with [Ms Barningham] and myself half of each week, it was not necessary for me to take on such a significant father figure because she had a strong relationship with [Mr Barningham] and [Mr Barningham] was usually available as her father.
At paragraph 23 of his affidavit, Mr S said that Ms B had minimised this relationship with E. He pointed out that he had been part of her life for almost five years and that he considered her to be very much part of his family.
Taking account of all of the evidence about the relationship, there did not seem to be any basis for a finding that Mr S and E “have a loving relationship”. We think it well open to her Honour to find that they both have a good relationship, that they like each other and, that there was no suggestion that there was any problem for E about him continuing to live in a household which included Mr S. But in comparison with the relationship with Ms M, who E expressly liked and saw as being supportive, in a finely balanced case, as this was, a finding about the relationship with Mr S which overstated the evidence cannot be regarded as inconsequential.
We turn then to two significant findings by her Honour, namely that change would be difficult for E and that her Honour had no confidence that the father and Ms M had the skills to support her through that change.
As far as we can tell, there was no specific evidence to suggest that there would be difficulties for E with the move or that she could not be assisted in this move by the father and Ms M. Nevertheless it was open to her Honour to express some reservations, as she did, about how E would settle in to a new situation when she said (at paragraph 34):
The child’s views are based on quite limited exposure to [Ms M], her children and the realities of living together, in another state, in so far as her experiences have, thus far, all been holiday or weekend time. School time and school weeks have a very different routine and pressures to holiday time …
This was a factually correct statement by her Honour, however, all of the evidence suggested that E wanted to move, was familiar with and liked Ms M, and spent time with her and her children, albeit during holidays. In other words, whilst her Honour’s statement as a general proposition was factually correct, the evidence did not support a positive finding that E would have the problems that her Honour speculated she would. The evidence which her Honour had about E and her reactions came from Ms B, in the Family Report.
At paragraph 88 of her report, Ms B stated:
[E] does appear to have the additional support of [Ms M] (who she appears to perceive as a supportive person) to assist her to adjust to life in Victoria. [Mr Barningham] appears to have the kind of relationship with [E] that would buffer her to some extent from the adjustment difficulties she may experience (that is [E] appears to open up and talk about all sorts of issues with her father easily).
Ms B was cross-examined about her report, but did not add to her evidence, nor did she suggest at any stage that the change would be difficult for E or that it was unlikely that Ms M and the father could provide E with support.
The finding by the Federal Magistrate was that the change for E would not be for the better, but rather that it would be difficult and that the father and Ms M would not have the skills to support her through the change. As to the first part of that proposition, that the move would not be for the better, it must be seen as speculative by her Honour but viewed in the context of her finding that E’s views were coloured by the father’s positive portrayal of life in Northwest Victoria she was not obliged to accept the view of Ms B on this issue.
The second part of the proposition that her Honour relied upon was that Ms M and the father did not have the skills to support E through the change. It appears that the following led her Honour to this conclusion.
In paragraph 32 of the Reasons for Judgment, her Honour said:
Between the time of swearing her affidavit and the court date, [Ms M] and her children had moved from their previous home and town (and school), into the house the father has purchased at [Northwest Victoria]. Quite adamantly in her affidavit, [Ms M] had proposed that she and her children would not be moving into the house, until [E] moved in. And in that way, she deposed, none of the children would have any prior claim to the house or to the blended family. Yet, due solely to the reason that her children said that they were happy to move at a time after the start of Term 4, [Ms M] and her children have now moved. They had no other reason to move. The house in which they lived previously was rented to them by [Ms M’s] parents. There was no housing pressure to cause them to move. They moved after the commencement of term time and indeed during the last term of the year. [Ms M] did not consider that to be an issue.
A footnote appeared at the end of the last sentence as follows:
Indeed, neither did the father, who considered that it would be appropriate for orders to commence immediately, thereby having [E] move from her mother’s care in NSW, before the end of the school year to move to the local Victorian school.
Paragraph 32 then continued:
She did not consider that the move might be made less stressful for the children if they commenced at their new school at the commencement of a school year at a time when it might be expected their would be other new enrolments and new class mates for all students. [Ms M’s] evidence on this point, was that the children said they were happy to move, and so they moved. She could not explain how the concerns that she had expressed in her affidavit about potential competitiveness between the children moving into a blended family situation had vanished in such a short space of time.
Her Honour then found at paragraph 33:
Her evidence on this point was curious, to have shown such insight in her affidavit as to the potential problems with blending the families, and then to have such a superficial explanation for why the position had changed, causes me to be concerned as to her capacity to manage the stressors and strains of the blending of the family. Her actions since deposing to her affidavit more clearly show her level of insight than might have been supposed simply on the reading of her affidavit. And as the adult who will bare the brunt of the daily issues arsing as the blended family moves in together, she is in need of a level of understanding of these issues so that she can assist the children by responding appropriately.
This sits somewhat uneasily with what her Honour said in paragraph 31 of her Reasons for Judgment:
… [Ms M] impressed as a loving mother, who sought to please her children and to include them in decision-making processes. If [E] lives with the father in Victoria, [Ms M] will be responsible for much of the daily care of all the children, necessarily including [E].
Her Honour’s concerns aforementioned are all speculative. Her Honour identified Ms M’s initial position of waiting until the end of the school term to move, as a laudatory one, but once she abandoned it, was her Honour justified in finding that Ms M lacked insight or the capacity to assist E in the transition from one household to the other? Whilst a move during school term might be seen to be less desirable, there was no evidence before her Honour that Ms M’s children had suffered by the move. Indeed, when cross-examined, she stated to the contrary.
Ms M explained in her evidence why she decided to move the children. She explained to her Honour that they were travelling every weekend from Northwest Victoria to their home; she said that she and the children were over this travel; she had anticipated that if the case had been heard when it was originally listed they would have moved after that; the children had indicated they were happy to move, so, she had done so; the move had not apparently adversely affected them. Her Honour did not reject her evidence as fanciful or untruthful. The fact that she had previously indicated that she thought the best option was to move together as a blended family but circumstances caused her to change her mind, cannot, in our view, lead to a conclusion, absent further evidence, that she did not have an understanding of what might face E or that she lacked insight. Nor could it justifiably lead to her Honour’s conclusion, at paragraph 44, that she had no confidence that Ms M and the father had the skills to support E through the change. We find merit in the father’s argument that the evidence did not support the finding made by her Honour that if there was to be a move, E would not be supported through any difficulties.
Her Honour rejected Ms B’s conclusion that Ms M would be supportive of E through any difficulties on the basis that her Honour had seen Ms M which Ms B did not have the benefit of. Thus, in view of our conclusion about the correctness of her Honour’s finding in relation to Ms M’s capacity, the rejection of Ms B’s conclusions must now be in doubt.
The final matter which her Honour relied upon is referred to in paragraph 51 of her Honour’s Reasons for Judgment:
[E] is a well-adjusted child who is able to be cared for by either of her parents, but I consider that the deciding factor must be that the father’s self-focussed decision to move so far away means that his attitude towards the mother’s role in the child’s life is lacking.

Her Honour described this as the “deciding factor”. We accept that having decided that no weight was to be placed on the child’s views that this matter did become decisive for her Honour.
Her Honour put this in a slightly different way, however, at paragraph 41:
For years [E] has moved between her two parents households. The father says that this has not worked smoothly. Yet he is the one whose actions means [sic] that [E] will live with one parent and see the other during school holidays. I have concerns that the father’s attitude to the benefits for [E] in sharing time with both of her parents is reflective of an attitude that [E] is better off with him. Such an attitude would not equate to a genuine facilitation and encouragement of the relationship between [E] and her mother.
In his argument, both written and oral, the father sought to persuade us that the reason for his move was because of the enormous conflict between the parties and that it was to remove the conflict, and by implication, to improve things for E that he was moving. However, this was not the way that his case was presented at trial. It was not a matter raised in his Case Outline, nor did counsel raise it in final submissions. We accept that the father raised it with Ms B, who reported it at paragraph 12 of her report. However, it was not a significant feature of the case. We do not find that her Honour was in error in failing to find that the father was moving because of the conflict or in her Honour’s finding that the father chose to move for his own reasons.
The finding by her Honour that the father’s move was self-focused and evinced an attitude which would not “equate to a genuine facilitation and encouragement of the relationship between [E] and her mother” (paragraph 41 of her Reasons for Judgment) does however require close consideration.
Her Honour stated in the Reasons for Judgment (paragraph 19) that:
There is, it seems to me, no need for any particular consideration as to whether the father should be demonstrating any reasons for moving to Victoria …
A later finding that the father’s move (implying that it was without good reason) was self-focused, and not in the best interests of E, is somewhat at odds with that statement. However, we accept that her Honour may have been intending to confine her remarks to ‘relocation cases’ having determined that this was not such a case.
However, her Honour’s concern that the father’s attitude would not “… equate to a genuine facilitation and encouragement of the relationship between [E] and her mother” does not appear to be justified by the evidence. Nowhere in the evidence is there any suggestion that orders for contact between E and her mother would not be complied with by the father or that the father would deliberately undermine E’s good relationship with her mother. Indeed, the evidence suggests that the father’s unjustified criticisms of the mother’s parenting do not appear to have affected E’s close relationship with her mother. In addition the father had offered to pay all the airfares for E’s travel.
We can only speculate that her Honour might have been referring to a concern that the father, because he was self‑focused compared to the mother, might be less likely to promote a meaningful relationship with the other parent. If so, such a discussion should have occurred in the context of s 60CC(2)(a) of the Act (“the benefit to the child of having a meaningful relationship with both of the child’s parents”). But as it did not, we cannot discern exactly what her Honour meant by this finding as she does not explain it by reference to any evidence.
Even if her Honour was correct in finding that the father was self-focused by removing himself from the situation where the shared arrangement could not continue, it does not follow that a move to Victoria with him would, for that reason alone, prevent a finding that in other respects, E’s best interests would be met by her moving to live with her father, particularly if there are other circumstances which point to this being in her interest.
Counsel for the mother submitted that we should consider her Honour’s conclusion having regard to the entirety of the evidence. We have considered the evidence in detail but our conclusion having done so is that it would be speculation on our part to assume that her Honour meant to rely on parts of it without having expressly done so. We accept that the father’s criticisms of the mother, mostly found to be unjustified, may have caused her Honour to have concerns about his parenting, but if so she did not explain that this was the basis upon which her decision was reached. We accept as was stated by Mahoney JA in Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 (at [385]) that a trial Judge’s duty to state reasons for a decision “does not exist in respect of every matter, of fact or of
law, which was or might have been raised in the proceeding”.
However, it is necessary that the essential ground or grounds upon which the decision rests should be articulated in order that the appeal court is able to ascertain the reasoning upon which the decision is based: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, per McHugh JA at [280]; Sun Alliance Insurance Ltd v Massoud [1989] VR 8, per Gray J at [18]; and Bennett & Bennett (1991) FLC 92‑191.
We are not satisfied her Honour’s Reasons adequately explain the basis for her decision, particularly as she rejected the wishes of the child and the recommendations of the Family Reporter. Accordingly, the appeal must be allowed.
Neither of the parties suggested we would be in a position to re-determine the discretion of the Court, so the matter must be remitted to the Federal Magistrates Court for a re-hearing before a Federal Magistrate other than Demack FM.
As it may be sometime before the matter can be re-heard, we propose to order that the existing orders remain in force until the hearing and determination of the matter in the Federal Magistrates Court or until further order.

Costs

Submissions made by the counsel for the mother and by the appellant father sought costs or a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth) in the event that the appeal was successful. As the appeal has succeeded on an error of law, we propose to grant the costs certificates to the parties for the appeal and for the re-hearing.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn & Boland JJ) delivered on 3 February 2011.

Senior Legal Associate:

Date: 3 February 2011

Annexure 1: Orders of Federal Magistrate Demack, 17 December 2009

That all previous Orders and Parenting Plans be discharged.
That except as otherwise stated, the father and the mother are to have equal shared parental responsibility for the major long term issues of the child [E] born … January 2001 (“the child”).
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms they agree;
(c)They shall make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order 2:
(a)The mother shall be responsible for the daily care, welfare and development of the child when she is living with or spending time with her;
(b)The father shall be responsible for the daily care, welfare and development of the child when she is living with or spending time with him.
That the mother and father shall:
(a)keep the other parent informed at all times of their residential address and contact telephone numbers;
(b)keep the other parent informed of the names and addresses of any treating medical or other allied health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children;
(c)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner to release the children’s medical information to the other parent.
That the parents authorise, by this Order, the schools or day care centres attended by the children to give each parent information about the children’s educational progress and other related activities and supply them with copies of reports, photographs, certificates and awards obtained by the children (at that parent’s cost).
That during the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
That the child is to live with, spend time with and/or communicate with her parents as agreed between the parents and if they fail to agree, as follows:
(a)The child shall live with the mother during school terms at all times, other than, in the event that the father provides no less than two weeks notice in writing, he may spend time with the child in the area in which she lives;
(b)The child shall live with her parents for school holiday periods, being New South Wales gazetted school holidays as follows:
(i)With the father for the whole of the Autumn (Term 1) and Spring (Term 3) school holidays in each year;
(ii)With the mother for the first half of the Winter (Term 2) and Summer (Term 4) school holidays in odd numbered years and with the father in even numbered years;
(iii)With the father for the second half of the Winter (Term 2) and Summer (Term 4) school holidays in odd numbered years and with the mother in even numbered years;
(iv)For the purpose of these Orders, the school holiday time shall commence:
1.   when a parent’s time falls in the first half of the holidays from after school on the day the school term finishes and concludes at 5:00pm on the day calculated to be half of the holidays;
2.   when a parent’s time falls in the second half of the holidays from 5:00pm on the day calculated to represent half of the holidays when time shall end at 9:00am on the day the school term commences;
3.   school holidays shall be deemed to commence at close of school on the day the school term finishes and concludes at 9:00am on the day the child returns to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the father shall retain the additional night.
That the child shall be at liberty to communicate with her parents by telephone and any other means, including but not limited to all forms of electronic communication, at all reasonable times.
That the mother and the father shall be at liberty to communicate with the child by telephone and any other means, including but not limited to all forms of electronic communication, at all reasonable times.
That the father shall purchase at his own expense a return airfare for the child to fly on the day the child is to commence living with him from either Ballina airport or Coolangatta airport, whichever has the flights on the particular day, to Melbourne airport and for the child to fly on the day the child is to conclude living with him from Melbourne airport to either Ballina airport or Coolangatta airport, whichever has a flight on that particular day, and provide the mother with the airfare(s) purchased, details of the departure and arrival location and time of each no less than seven (7) days prior to the intended departure.
That the mother and father will ensure that the child is accompanied at all times prior to and after each flight and that the child will be delivered and picked up on time.
That if the father is unable to have the child in his care pursuant to these orders at any time, then the child shall spend such time with the mother.
That if the father’s family wish to spend time with the child then upon reasonable notice being given to the mother they be allowed to spend reasonable time with the child as agreed.
That the process to be used for resolving future disputes about the child or terms or operation of these Orders shall be as follows:
(a)The Family Relationship Centre shall be appointed as Family Dispute Resolution Practitioner;
(b)The parents shall consult with the Family Dispute Resolution Practitioner at the Family Relationship Centre to assist with resolving any dispute in relation to the child or reaching agreement about changes to be made to the parenting arrangements for the child;
(c)They shall pay the costs of the Family Dispute Resolution Practitioner equally.
That unless there are some emergent circumstances, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the child, each party is to take the steps referred to in the preceding Order.