Beckham & Desprez - [2015] FamCAFC 247

FAMILY COURT OF AUSTRALIA

BECKHAM & DESPREZ

[2015] FamCAFC 247

FAMILY LAW – APPEAL – CHILDREN – Where the father appealed final parenting orders – Where the parties live a considerable distance apart in Queensland – Where previous consent orders providing for the parties’ child to live with them for equal time had become unworkable due to the child commencing school – Discussion of s 65DAA of the Family Law Act – Where given the unchallenged factual findings about the parties’ respective refusal to move their residence closer to the other an equal time arrangement was not reasonably practicable and it was unnecessary to consider whether such an arrangement would have been in the child’s best interests – Where the father asserted the trial judge made findings which were either not available on the evidence or against the weight of the evidence – Where the findings were open on the evidence and not contrary to the weight of the evidence – Where the findings were satisfactorily explained – Where an Order was made that the father not consume alcohol in excess of the legal limit when the child is in his care – Where such an order is unenforceable – Where the appeal succeeds in respect of that ground only – Where the error can be remedied by the re-exercise of discretion to discharge that Order – Where the appeal is otherwise dismissed – No order as to costs.

Family Law Act 1975 (Cth), ss 60CA, 60CC, 65AA, 65DAA

Collu & Rinaldo [2010] FamCAFC 53
Cox & Pedrana (2013) FLC 93-537
Gronow v Gronow (1979) 144 CLR 513
Heaton v Heaton (2012) 48 Fam LR 349
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Nada & Nettle [2014] FamCAFC 123
Sayer v Radcliffe (2012) 48 Fam LR 298
SCVG & KLD (2014) FLC 93-582
Slater v Light (2011) 45 Fam LR 41
Starr & Duggan [2009] FamCAFC 115

APPELLANT:

Mr Beckham

RESPONDENT:

Ms Desprez

FILE NUMBER:

BRC

9516

2010

APPEAL NUMBER:

2015

DATE DELIVERED:

22 December 2015

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn, Strickland & Austin JJ

HEARING DATE:

1 October 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

17 April 2015

LOWER COURT MNC:

[2015] FCCA 948

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms C Carew QC
Ms R Harding

SOLICITOR FOR THE APPELLANT:

Bickford Lawyers

COUNSEL FOR THE RESPONDENT:

Mr R Slade-Jones

SOLICITOR FOR THE RESPONDENT:

Andrew Burrows & Associates

Orders

The appeal be allowed in part.
By consent, Order 9 made on 17 April 2015 by the Federal Circuit Court of Australia be discharged.
The appeal be otherwise dismissed.
No order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Beckham & Desprez has been approved by the Chief Justice 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 34 of 2015
File Number: BRC 9516 of 2010

Mr Beckham

Appellant

And

Ms Desprez

Respondent

REASONS FOR JUDGMENT

Introduction

On 19 January 2015, part of the parenting dispute between the appellant (“the father”) and respondent (“the mother”) over their only child (“the child”) was settled when final orders were made with their consent by Judge Turner, relevantly providing for them to have equal shared parental responsibility for the child. The remainder of their dispute proceeded to trial over ensuing days and was determined by more orders made by her Honour on 17 April 2015. It is those latter orders which attracted the father’s appeal.
Essentially, the orders made in April 2015 provided for the child to live with the mother and to spend time with the father on alternate weekends during school terms. The orders were consistent with the mother’s proposal, but the reverse of the father’s proposal. He wanted the child to live with him and to spend time with the mother on alternate weekends during school terms. Additionally, an injunction was made restraining the father from consuming excessive alcohol while the child was in his care.
Insofar as the appeal concerned the orders prescribing the child’s residence with the mother and her visits with the father, it should be dismissed.
However, the appeal should succeed in its challenge to the injunction regulating the father’s alcohol consumption, as was conceded by the mother.

Background

The child was born in 2009 and is now six years of age. She was five at the time of trial.
The parties separated in May 2010, when the child was barely five months of age.
Proceedings between the parties about the child under Part VII of the Family Law Act 1975 (Cth) (“the Act”) were first commenced in October 2010, but those proceedings were settled in June 2013. Final orders were made for them to have equal shared parental responsibility for the child and for her to live with them for “equal time” in fragmented fortnightly cycles.
At that time, the father still lived in the Brisbane metropolitan area but the mother lived in regional Town T, where she had moved some months earlier to live with the maternal grandmother in a property inherited from a deceased estate. The child was not yet of school age and so the parties were still able to implement an equal time regime despite their homes being separated by a drive of several hours duration.
Nearly a year later, in May 2014, fresh proceedings were commenced by the mother. Each party then sought that the orders formerly made in June 2013 be set aside and, instead, orders be made for the child to live with him or her and spend time with the other on alternate weekends during school terms.
The dispute was listed for trial in January 2015, at which time the trial judge noted the mother’s refusal to move away from Town T, the father’s refusal to move away from Brisbane, and the considerable distance between their homes. The child was due to begin school in 2015 and the trial judge therefore considered the existing equal time regime to be “unworkable”, as did the parties by imputation from their own proposals. The dispute was determined by her Honour making orders providing for the child to live with the mother, to attend a local school, and to spend alternate weekends with the father, at which times he was forbidden from excessive consumption of alcohol.
The father appealed against the orders, but did not seek a stay of them, so they have been operative since made in April 2015.
With the mother’s consent, leave was granted to the father to amend his grounds of appeal and move on those set out within a Minute tendered by him at the hearing of the appeal (Exhibit 1).

The appeal

Grounds 1 and 1A

These grounds of appeal were as follows:
Having introduced her reasons with the statement “to consider a continuation of an equal shared care arrangement was counter-productive” the learned trial judge impermissibly fettered her discretion in considering the paramount consideration of the child’s best interests.
The learned trial judge erred in failing to consider the statutory imperatives of section 65DAA.
The trial judge began her reasons for judgment with an introductory section, which acknowledged the parties’ unwillingness to move from their existing homes to live closer together following upon the child’s commencement of school in 2015. Her Honour stated:
6.The mother is not prepared to move from [Town T] to Brisbane as the mother’s property is in [Town T] and the mother works and lives with the maternal grandmother who operates her business from [Town T].
7.The father is not prepared to move from Brisbane to [Town T] explaining to the family report writer “if the Court orders [the child] attend school in [Town T], he would not relocate to the [Town T] area, even if it meant it could give effect to the continuation of a shared living arrangement. His intention would be to remain living in Brisbane, where his workplace is and where his younger child, [Child A] resides…he has an eighty-three-year-old mother in the Brisbane area… ‘There is not a thing for me to do there.’” ([45] family report).
It was not suggested those findings of fact were anything other than entirely correct.
As a consequence of those findings, the trial judge concluded:
8.Therefore to consider a continuation of an equal shared care arrangement is counterproductive as neither party is prepared to move from their current locations and continuation of such an arrangement is impracticable as the child cannot attend two schools.
The trial judge then immediately identified the two issues to be determined as:
9.… with whom the child is to live and what time is to be spent with the non-resident parent.
and
10.… which school the child is to attend.
After lengthy evaluation of the evidence under the provisions of s 60CC of the Act, the trial judge observed:
294.…the time has come, given the distance between the parties and where neither party can, or will, relocate closer to each other, where a decision must be made as with whom [the child] must live.
295.The options are two fold either [the child] lives with the mother in [Town T]…or [the child] lives with the father in Brisbane…
The father contended the trial judge fell into error by approaching the matter on the basis that the options available were only “twofold”; namely living primarily with either the mother or father. It was contended the trial judge failed to give adequate consideration to the “entirety” of the father’s proposal and, in particular, whether an equal time arrangement would be in the child’s best interests.
Since the trial judge ordered in January 2015 that the parties have equal shared parental responsibility for the child, upon determination of the residual residential dispute between the parties, the provisions of s 65DAA of the Act were certainly enlivened (see MRR v GR (2010) 240 CLR 461).
The father submitted the trial judge was obliged to consider the evidence pertinent to both s 65DAA(1)(a) (which deals with whether “equal time” orders would be in the child’s best interests) and s 65DAA(1)(b) (which deals with the reasonable practicability of “equal time” orders) in the sequential order in which those provisions appear in the Act and to then, and only then, move on to s 65DAA(1)(c) to consider whether to make “equal time” orders.
The father additionally submitted that the consideration stipulated by

s 65DAA(1)(a) assumed primacy over that stipulated by s 65DAA(1)(b), because of the paramountcy principle embedded in the Act by ss 60CA and 65AA. The father conceded the logical extension of this argument meant that, in the event of tension between the determinations under each sub-section of

s 65DAA(1), the first would trump the second. So, if orders for “equal time” were found to promote a child’s best interests, but not to be reasonably practicable to implement, the orders could be made nonetheless.
Impelled to that concession, the error of the father’s submission was exposed. Although passing reference was made to MRR v GR in written submissions, the High Court’s interpretation of s 65DAA is definitive. In that case the trial judge determined to make equal time orders because, pursuant to s 65DAA(1)(a), his Honour was satisfied such orders were in the child’s best interests. The error identified by the High Court was the trial judge’s failure to additionally consider whether such orders were reasonably practicable, pursuant to

s 65DAA(1)(b), because only when both questions were considered and answered affirmatively did the power exist for equal time orders to be made

(at [13], [19]). The section is concerned with the reality, not merely the desirability, of a family’s residential affairs (at [15]). No matter how desirable an equal time arrangement may be, it will not be imposed if it is impracticable.
In MRR v GR, equal time orders were made even though consideration of the reasonable practicability of such orders was overlooked. That was the error. Conversely, in this case, the trial judge expressly found equal time orders were not reasonably practicable and therefore abstained from considering whether they would be in the child’s best interests before rejecting them. That was not an error.
The father’s mistaken assertion in this case, that both sub-sections had to be considered by the trial judge despite one not being satisfied, sprang from a misapprehension it was obligatory to determine whether the inquiry posited by either sub-section warranted equal time orders being made, rather than because it was necessary to ensure that the inquiries under both sub-sections affirmatively required consideration of equal time orders. It was necessary in MRR v GR for the trial judge to consider both limbs because the first had been answered affirmatively. Had it been answered negatively there would have been no need to consider the second.
The father sought to summon support for his submissions from various authorities. First, statements of the Full Court in McCall & Clark (2009) FLC 93-405 at [68]-[71] and Collu & Rinaldo [2010] FamCAFC 53 at [374]-[376] were cited, but they are not corroborative and do no more than confirm the need for a trial judge to find that orders in the nature of those contemplated by s 65DAA of the Act would be both in the child’s best interests and reasonably practicable before they are made.
Secondly, statements from Heaton v Heaton (2012) 48 Fam LR 349 at [32]-[38] and Sayer v Radcliffe (2012) 48 Fam LR 298 at [77]-[79] were cited. Certainly, in Heaton (at [37]) the Full Court appeared to endorse an approach that required the trial judge to consider the issue of “best interests” first and, only if it was in the best interests of the child or children concerned, to then move to consider the issue of reasonable practicability. The Full Court in Sayer v Radcliffe (at [77]) appeared to adopt the approach in Heaton. However, we do not consider those statements can be treated as espousing any general principle. In Heaton, the parent who wished to relocate said she would not relocate if the children were not permitted to relocate as well, so it was clearly appropriate to look first at the issue of the children’s best interests. In Sayer v Radcliffe there is ambiguity about what the Full Court said, given the Full Court also cited with approval (at [53]) the approach outlined by another Full Court in Starr & Duggan [2009] FamCAFC 115 at [38], namely that it was logical, but not mandatory, to consider “best interests” first.
In any event, nothing in Heaton or in Sayer v Radcliffe turned on the priority between, or the order of application of, the paragraphs of either ss 65DAA(1) or 65DAA(2). Significantly, in both of those cases, the Full Court recognised the binding authority of MRR v GR.
We reject the father’s submissions about the manner in which s 65DAA(1) of the Act is applied.
Relevantly for this appeal, the trial judge was obliged to inquire whether the evidence established it was in the child’s best interests to spend equal time with the parties (s 65DAA(1)(a)) and whether it was reasonably practicable for her to do so (s 65DAA(1)(b)). Only if both of those inquiries were answered affirmatively did the Act then require the trial judge to consider making orders to that effect (s 65DAA(1)(c)). The trial judge expressly and correctly acknowledged as much (at [63]-[64], [66]).
No statutory provision, nor any authority to which we were referred or to which we adverted in our own research, requires ss 65DAA(1)(a) and 65DAA(1)(b) to be considered in any particular order. The Act does not require such a formulaic approach. It is alphabetically logical to consider (a) before (b), but it is not mandatory (see Starr & Duggan at [38]). Similarly, it is not mandatory for the provisions of s 60CC to be considered in any particular order (see Slater v Light (2011) 45 Fam LR 41 at [45]; Cox & Pedrana (2013) FLC 93-537 at [29]-[31]).
Here, the trial judge concluded it was not reasonably practicable for the child to spend equal time with the parties, as had occurred in the past under the orders made in June 2013, because she could not conveniently attend one school if spending equal time in two such geographically distant households

(at [8], [158]-[166], [226]-[227], [294], [310]-[312]). Her Honour therefore correctly answered the inquiry under s 65DAA(1)(b) negatively, which meant there was no need to separately inquire whether equal time orders would be in the child’s best interests under s 65DAA(1)(a). Having already found that equal time orders were not reasonably practicable, which finding of itself enabled the trial judge to reject them, it was futile to then ponder whether such orders would be beneficial (see SCVG & KLD (2014) FLC 93-582 at [89]; Nada & Nettle [2014] FamCAFC 123 at [112]-[113]).
The father also contended the trial judge erroneously failed to consider all of the criteria prescribed by s 65DAA(5) of the Act in reaching the conclusion under s 65DAA(1)(b) that equal time orders were not reasonably practicable, but that contention can also be shortly dismissed.
The trial judge was indeed mandated to consider the provisions of s 65DAA(5), but not in the rigid manner asserted by the father. The trial judge expressly and repeatedly referred to the distance between the parties’ homes – the consideration prescribed by s 65DAA(5)(a) – as a feature that disqualified an equal time regime. It would have been a pointless artifice for the trial judge to go on and consider the other criteria specified by the remaining paragraphs of s 65DAA(5) because, no matter how much they may have individually or collectively favoured an equal time regime, the first consideration foreclosed it. It was an insuperable impediment. If one limb of s 65DAA(5) necessarily means orders are not reasonably practicable to implement, it is unnecessary to consider the other limbs (see Nada & Nettle at [114]-[115]).
Of course, different cases bring different circumstances. For parties with large financial reserves who frequently travel vast distances the tyranny of distance may not be so significant (see Collu & Rinaldo at [376]-[382]).
In the present case, undertaking the “practical assessment” to determine whether an equal time regime was “feasible”, as implored by the High Court in MRR v GR, the trial judge was led inexorably to the conclusion it was not. So much was recognised by the parties as correct, as the nature of their proposals plainly implied.
Throughout the litigation, the father’s primary proposal was for the child to live with him and to spend alternate weekends with the mother during school terms. He maintained an alternate proposal for the child to live with the parties for equal time, but only on the proviso the mother chose to live within

30 kilometres of his home in Brisbane. As already mentioned, regardless of capacity, both parties steadfastly refused to move their existing residence to live closer to the other, which evidence the trial judge accepted as truthful, so the father’s alternate proposal had no factual foundation.
During the trial, the trial judge expressly observed that the parties’ evidence narrowed the available options to the child’s primary residence being with one party or the other, which comments accurately reflected the manner in which the parties contested the case.
During the mother’s cross-examination the following exchange occurred between the trial judge and the father’s counsel:
MR HANLON: Would you move to Brisbane or would you just stay out at [Town T] and not see your little girl?‑‑‑I ‑ ‑ ‑
MR ANDREW: That’s an unfair question the way that’s phrased, your Honour.
HER HONOUR: Yes. You might want to rephrase it. And realistically, and I will just flag this, there’s hardly going to be a consideration for equal shared relationship – sorry – equal shared arrangement for the child if we’ve got someone living in [Town T] and someone living in Brisbane.
MR HANLON: Correct. Correct, your Honour.
HER HONOUR: So you phrased it in the way as if I made that order and that’s not an order I would consider.
(transcript 19 January 2015, p 68, lines 11-24)
(emphasis added)

Not only did the father’s counsel not challenge the accuracy of the trial judge’s assertion that an “equal shared arrangement for the child” was not “realistically” feasible, counsel expressly adopted the observation as a correct analysis.
Later, at the commencement of the oral evidence given by the Family Consultant, he and the trial judge had the following exchange:
HER HONOUR: All right. And I’m sure that I will be corrected if I’m wrong in saying this, but the potential of having an equal shared care arrangement is not able to continue because the mother cannot move to Brisbane, and the father cannot move to [Town T]. Do you understand that as being their positions?
THE WITNESS: Yes, your Honour.
(transcript 21 January 2015, p 242, lines 41-46)
(emphasis added)
Again, despite the invitation to do so, that proposition was not corrected by the father’s counsel. Though the father’s counsel went on to cross-examine the Family Consultant, in part, about the desirability of an equal time residential regime for the child, such evidence was liable to be superfluous should the trial judge eventually accept as truthful and accurate the mother’s refusal to move from Town T and the father’s refusal to move from Brisbane, as did occur.
Following closure of the evidence, the parties made written submissions to the trial judge. It was clear from the totality of the father’s submissions that, while he still countenanced the mother’s move to live near him in Brisbane so they could each have the child for equal time, in the event she chose not to, he adhered to his proposal for the child to live with him and spend time with the mother on alternate weekends during school terms. His submissions were thus:
… the Father’s primary position is that [the child] live with him in Brisbane and attend [S] School at [Suburb G], with the Mother also living in Brisbane and with [the child] living with each parent on a week about regime … in the event that the Mother chooses not to live in Brisbane, then with the Mother spending time with [the child] each alternate weekend during school terms.
…
It is submitted … that when determining this matter, the Court shall make Orders reflecting the Father’s proposal that [the child] live with the Father in Brisbane, and that if the Mother were to live in Brisbane, then the child shall have a equal shared in time living regime with the Mother and the Father, and if the Mother chooses to remain living in [Town T], then the child shall have alternate weekend time with the Mother during all school terms.
…
… the evidence and the factors supported are strongly in favour of the proposal of the Father in that [the child] live with the Father in Brisbane, and that if the Mother were to live in Brisbane, then the child shall have a equal shared in time living regime with the Mother and the Father …
The Father urges that the Court make Orders in terms of the Orders Sought by the Father in his Outline of Case, filed by leave the 19^th January, 2015.
The father’s complaint on appeal – that the trial judge did not give adequate consideration to the “entirety” of his proposal – was a reference to the asserted failure of the trial judge to expose reasoned consideration and rejection of his alternate “equal time” proposal.
Given the unchallenged factual findings about the parties’ respective refusals to move their residence, the pre-condition to the father’s alternate equal time proposal (being two households in close proximity) was not fulfilled and it was therefore redundant. For that reason, the trial judge noted the impracticability of an equal time regime in the introductory section of her reasons for judgment. It was unnecessary to do more. The remainder of the judgment then dealt with consideration of whether the child should live primarily with the mother or the father, which in reality were the narrow parameters of the dispute imposed by the parties.
There is no substance in Grounds 1 or 1A and they must fail.

Ground 2

This ground of appeal was as follows:
The finding that an allegation of sexual abuse of the child was made by the father at the trial was contrary to the evidence and the finding pervaded the learned trial judge’s findings of an adverse nature against the father.
The contention that the trial judge made a “finding” about an “allegation of sexual abuse” which was “contrary to the evidence” requires careful interpretation. The complaint was not that the trial judge wrongly found the evidence did not support the father’s allegation of the child’s sexual abuse in the mother’s household, but rather, the trial judge wrongly found the father actually made such an allegation. The father said he made no such allegation and the trial judge erred by finding he did.
The trial judge did, indeed, find such an allegation was made by the father at some point. Her Honour stated:
83.Based on the scant information before the court, the bizarre nature of the complaint and there being no evidence to substantiate that the child has been hurt, I find that the allegation of sexual abuse of the child whilst in the mother’s household, has not been established.
The trial judge there described it as an “allegation”, but earlier in the reasons acknowledged it was not so clearly articulated, by stating:
75.Although not clearly articulated the father expresses concerns that the child may have been sexually abused when in the care of the mother, although when, where and by whom is unclear.
Despite the father’s protestation to the contrary, regardless of the noun used to describe it, an “allegation” or “expression of concern” of that sort was implicit from the evidence placed before the trial judge.
The father and his partner both told the Family Consultant during their interviews that the child had complained to the father of soreness to her vagina because “a man came into her room [at the mother’s home] with scissors”, to which complaint the father responded by having the child medically examined. Although the father gave no evidence, either in-chief or in cross-examination, and made no submissions, about the possibility of the child’s past sexual abuse while in the mother’s care, the issue was clearly nonetheless a concern to him at some point during the litigation. If it was not, there was no reason for him to have had the child physically examined and the allegation investigated.
By the time of the trial, the father alleged he had dispensed with any former concern about it. The matter was earlier raised by him with the Family Consultant only when he was asked whether he had any “other concerns” about the child, but as the Family Consultant later conceded, the issue was not raised by him “in an inflammatory manner”. The father said in cross-examination he only raised it with the Family Consultant because it was “an example of stories that [the child] tells”, which he found “concerning”, not because it was evidence of her sexual abuse.
The trial judge found the father to be a credible witness (at [16]), so it may be assumed his evidence about his abandonment of any allegation of the child’s sexual abuse was accepted as truthful. Nevertheless, with the child’s curious disclosure having been reported to and investigated by the authorities, the matter having been raised with the Family Consultant by both the father and his partner, the Family Report referring to the issue being received in evidence, and there being some cross-examination about it, the trial judge’s advertence to it in discussion of the evidence pertinent to s 60CC(2)(b) of the Act was unsurprising.
The trial judge’s description of the issue as an “allegation”, as distinct from merely a concern, suggestion, or worry, did not apparently elevate its importance in the outcome of the proceedings. The trial judge expressly noted in the reasons for judgment the father’s concession in cross-examination he believed the child “was just telling a story” and that he disavowed any concern about the mother’s care of the child (at [81]-[82]), which is undoubtedly why the trial judge found nothing to substantiate the father’s past worry (at [83]).
The trial judge did mistakenly record (at [84]) that the father recited the incident in his trial affidavit – which he did not – but that factual error did not taint the evaluation of the evidence or the conclusion reached.
The second limb to this ground was that the finding made by the trial judge about the issue of sexual abuse arising in the litigation “pervaded the [other] findings of an adverse nature against the father”. The father’s submissions revealed the other “findings of an adverse nature against him” was a reference to the trial judge’s observations about the parties’ distrust of one another.
The parties’ distrust was mentioned at various points throughout the reasons but, significantly, those mentions were not all connected to the issue of the child’s possible sexual abuse and the father’s initial secretive investigation of it. There were many other reasons for the finding about the existence of distrust. Moreover, the trial judge observed the parties’ distrust was mutual rather than unilateral, so the finding about distrust was not attributed to the father’s conduct alone.
Specifically, the trial judge referred to the mother’s concern the child was exposed to family violence in the father’s household (at [89]-[101]), the mother’s suspicion about the father’s failure to fully and frankly disclose his true financial circumstances (at [125]-[139]), the father’s concern the mother could not adequately maintain the child’s health (at [168]-[173]), the father’s unwillingness to “accept information about the child from the mother” (at [176]-[177]), the parties’ suspicions they were each involving the child in their conflict (at [230]-[236]), the father’s suspicion about the mother’s residence in Brisbane instead of Town T (at [238]-[240]), the father’s belief the mother conceived another child for forensic advantage in the proceedings (at [246]-[247]), the mother’s concern about the level of the father’s alcohol consumption (at [260]-[274]), the mother’s belief the father’s home was unclean (at [276]-[280]), the mother’s suspicion the father’s commitment to the child was impinged by the importance he reposed in his business (at [282]-[287]), and the father’s belief the mother would detrimentally interfere with his relationship with the child (at [288]-[291]). The distrust arising from the father’s initial secretive investigation of possible sexual abuse (at [84]-[87]) was but one of the many factors which influenced the eventual findings about the parties’ distrust of one another.
The father’s submission that the trial judge determined the father’s distrust of the mother was greater than the mother’s distrust of the father was arguably correct, but the implication that such a conclusion was then improperly used to the father’s disadvantage was unfounded. The trial judge identified the individual factors that recommended for and against the child’s primary residence with each parent (at [296]-[300]), of which the distrust of the mother held by the father and his partner was but one factor (at [300(c)]). Even if the trial judge did repose undue weight in that one factor, it was not sufficient to upset the relative weight of the factors that informed in favour of the child’s residence with the mother.
It follows that the trial judge’s decision was not “unsafe” for the reason the father submitted. In any event, that conclusion alone would not sustain this ground of appeal. The ground fails unless the father could demonstrate the trial judge’s conclusion about the father’s distrust of the mother was not reasonably open, and furthermore, such an erroneous conclusion materially affected the overall decision. The father could not sustain those arguments and so Ground 2 fails.

Ground 3

This ground of appeal was as follows:
The learned trial judge’s findings that:
a.“the concern that the child may be unnecessarily exposed to future interventions on unfounded beliefs of the father and his partner is a consideration which needs to be carefully considered in determining whether it is the child’s best interests to live with the father”;
b.“the father’s financial situation is precarious” and that the mother was “far better equipped to provide that stability”;
c.“[t]he father is convinced that the mother is not living in
[Town T]but is living in Brisbane”;
d.“[t]he father and [his partner] due to their mistrust of the mother, may not be able to provide [the child] with the psychological support required if the child is missing her mother”;
e.“[the child’s] perception of her role in the mother’s household may be skewed with there being a risk that [the child] may view her brother as replacing her, which may then impact on [the child’s] relationship with the mother and her sibling”;
were either not available on the evidence or against the weight of the evidence.
Each limb of this ground of appeal was argued separately.
Ground 3(a) is interlinked with Ground 2. The trial judge found (at [87]) that, although the prospect of the child’s sexual abuse had dissipated as an issue, there was residual concern the father would in future subject the child to further unnecessary investigations, as had initially occurred when he was worried the child’s disclosure meant she had been sexually abused.
The father contended it was “against the weight of the evidence” to find the Family Consultant harboured such concern and for the trial judge to hold such concern.
At this juncture it is useful to be reminded of appellate principles related to arguments about the weight attributed to evidence placed before the trial judge. In Gronow v Gronow (1979) 144 CLR 513 at 519-520 the High Court said:
… While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. …disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. …an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight. …
The unassailable facts are these: the child made a quite bizarre disclosure to the father about her genitals being sore because a man came into her room at the mother’s home with scissors; the father imputed the child’s report to mean a man had used scissors to interfere with her genitals; the father took the disclosure seriously enough to have her physically examined by a doctor; the father acquiesced to the doctor’s report of the disclosure to the child welfare agency; and the father deliberately abstained from informing the mother of those events because he was “waiting to hear from the police” about formal investigation of the report, even though he and the mother then held equal shared parental responsibility for the child and she should have been informed.
Even after the father later dispensed with his concern that the child may have been sexually abused, he did not retrospectively explain to the mother what had occurred. It was finally submitted on his behalf to the trial judge:
…the reason that he did not inform the Mother was because of the history of the world as between the Mother and the Father, was that he did not want to elevate it to something that it was not [sic].
…Clearly…the Mother should have been informed immediately. However, the history of the distrust as between the Mother and Father played a strong factor in the Father and [his partner] not reporting it earlier.
By his own admission then, the father was motivated by distrust not to consult the mother over a matter of high importance related to the child. It is of little significance the father abandoned the concern he initially entertained about the child’s disclosure. He did not share with the mother either his original concern or his subsequent abandonment of it. Whether the father had good reason to act as he did in response to the child’s disclosure is beside the point. He believed at the time that serious investigation was warranted, even though it transpired it was not. It was open to the trial judge to find, in the face of the parties’ mutual distrust, that in the event of another fictional story being told by the child the father would again act to have it investigated.
Perhaps the father would be more circumspect about the child’s representations in the future. Perhaps the trial judge could have attributed greater weight to the father’s belated acknowledgement that the child is prone to make statements which are not literally true. Nonetheless, the finding of the trial judge was consistent with much of the evidence adduced. The evidence did not more powerfully dictate a contrary finding and so it was not against the weight of the evidence.
As to Ground 3(b), the father submitted both findings were against the weight of the evidence.
The trial judge’s finding about the “precarious[ness]” of the father’s financial circumstances (at [139], [300(h)]) followed upon her Honour’s earlier findings about his failure to adequately explain his true financial position. In particular, the trial judge was left curiously uncertain about the state of his professional practice and its apparent lack of any clients, his ad hoc income, his divestiture of assets, the transfer of title in his former home to his business associate, that associate’s willingness to allow him to live in her home and to use her car, and his recent past admissions to the Child Support Agency about his dire financial predicament (at [125]-[137]).
The trial judge did expressly refer to Supreme Court litigation pending against the father at the suit of the Bank of Queensland for recovery of a large sum of money, but did not refer to the evidence adduced by the father about his recent settlement of that litigation. The available evidence established the claim against him was discontinued following mediation, but there was no evidence adduced as to the terms on which the litigation was discontinued. It was within the power of the father to adduce such evidence, but he did not do so. The absence of such evidence did not permit the trial judge to find he still owed a large sum of money to the plaintiff, but nor was her Honour required to find the settlement was on terms that did not require his payment of any debt. Consistently with the available evidence, the trial judge made no finding in that regard.
However, many other features of the evidence were beyond dispute. The father owned no real property; his only asset was a professional practising certificate; his professional practice had few, if any, clients; his last two tax returns revealed zero income; his debts were paid by his business associate, including those incurred for payment of the child’s school fees; and he was in substantial arrears in child support payments.
The father was found to have a high income for the purposes of assessment of child support in respect of the child, but he was in the process of objecting to the assessment because he contended his income was much less and he refused to pay child support while his objection was under review. The arrears had grown to in excess of $10,000.
The father acknowledged the financial strain he had been under, though he submitted it was attenuating. In final submissions it was contended for him:
The father has had a difficult financial time since the Global Financial Crisis, but more recently, his [professional] practice and his other business interest are on the mend.
In recent months, the Father’s financial position has commenced to improve and the earlier financial crisis has been averted.
The trial judge’s finding about the father’s precarious financial position was consistent with the preponderance of evidence, even allowing for his compromise of the Supreme Court litigation.

By comparison, the trial judge found the mother was “far better equipped” to provide the child with stability (at [303]), but that finding was not predicated upon financial circumstances alone. The trial judge emphasised the permanency of the mother’s accommodation and the mother’s physical, emotional and financial support from the maternal grandmother. The evidence did not suggest the father’s support by his business associate was liable to dissolve but, since she was described as a “former love interest” of the father, her support of him was unlikely to be any more enduring than the maternal grandmother’s support of the mother.
As the father correctly submitted, both at trial and on appeal, the mother’s financial circumstances were very modest, but the trial judge did not find to the contrary. At least the mother’s financial circumstances were relatively clear, whereas the same could not be said for the father. He acknowledged his past impecuniosity, but contended for imminent improvement of his circumstances with little, if any, evidence to vindicate it. The trial judge’s finding about the comparatively greater level of stability offered by the mother to the child was consistent with the evidence overall. It was not contrary to the weight of the evidence.
As to Ground 3(c), the father submitted this finding was simply not open to the trial judge. It was not an argument confined to the weight attributed to the evidence by the trial judge.
The submissions made in support of this ground of appeal entailed semantic debate about whether the father actually “believed” or “suspected” that the mother “lived” or “spent time” in Brisbane.
The debate was semantic because the trial judge expressed the father’s position on the issue slightly differently at several points, including (at [57(d)], [238], [239(a)]):
…the mother is disingenuous as to her living arrangements and spends more time in Brisbane than in [Town T] …
The father is convinced that the mother is not living in [Town T] but is living in Brisbane.
…the mother lives predominantly in Brisbane and not [Town T].
Notwithstanding the nuances of connotation, those statements fairly encapsulated the essence of the father’s position because his statements on the issue were also prone to variation. On appeal, it was submitted the father accepted at the time of trial that the mother lived in Town T, though she spent a substantial amount of time in Brisbane. However, that submission was very difficult, if not impossible, to reconcile with the manner in which the trial was conducted on the father’s behalf. He deposed to the mother’s “claim” that she lived in Town T, which strongly implied his doubt, and his partner boldly said in cross-examination she believed the mother was lying about living in

Town T. In the written submissions made at the conclusion of trial, numerous paragraphs were devoted to the father’s suspicion under the following heading:
The Father’s and [his partner’s] Suspicion that the Mother lives in Brisbane
The ultimate factual finding of the trial judge was expressed thus (at [242]):
…the mother is primarily living in [Town T]…[and] works predominantly in [Town T]…
Having regard to the manner in which the issue was pursued at trial, particularly the manner in which the father’s counsel made final submissions about it, the trial judge’s findings about the father’s suspicion or belief (albeit expressed interchangeably) about the mother’s residence in Brisbane rather than Town T were well open on the evidence.
Even if the trial judge could be construed as having made a mistaken finding of fact about the father’s suspicion or belief, it would be of no consequence unless the mistake affected the outcome in some way. But it did not.
Factually, it made no material difference whether the location of the mother’s actual residence was a matter of the father’s mere suspicion or a committed belief. The point of the argument at trial was the mother’s capacity to live primarily in Brisbane, if she did not already do so. But her capacity was not ultimately determinative. Her refusal to move her primary residence from Town T to Brisbane was determinative against an equal time regime just as, regardless of his capacity to do so, the father’s refusal to move from Brisbane to Town T was determinative.
The only way in which it was submitted the trial judge’s mistake of fact about the father’s belief affected the outcome was its use to buttress the trial judge’s findings about the father’s distrust of the mother, which influenced the trial judge to order the child to live with the mother. The trial judge did say (at [245]) the father’s “falsely held beliefs” were a concern, but the findings on the overarching issue of the parties’ mutual distrust were well open on the remainder of the evidence anyway. The evidence of such distrust, together with the father’s consistent concessions, has already been traversed under Grounds 2 and 3(a) and need not be repeated.
As to Ground 3(d), the father submitted this finding was either not available on the evidence or against the weight of evidence.
The finding about the “mistrust” of the mother by the father and his partner was cited by the trial judge as one of the reasons why the child would suffer disadvantage if living primarily with the father in Brisbane (at [300(c)]).
The father has cause to be dissatisfied that the mutual distrust found by the trial judge to exist between the parties did not result in a reciprocal disadvantage for the child living primarily with the mother in Town T, but mere dissatisfaction does not advance the father’s prosecution of this ground of appeal. The trial judge’s omission of the mother’s distrust of the father as a reason why, similarly, the child’s primary residence with the mother was not ideal was regrettable but, amongst all of the other considerations that were taken into account, it did not amount to a material error.
The father’s (and his partner’s) distrust of the mother was palpable, as was her distrust of them. It was manifest in their many complaints about one another, found in both their evidence and submissions, and was the subject of clear evidence from the Family Consultant who said:
… Well, I – I venture an opinion that I’m of the view that the parents are invested in a – in a conflict with one another that at the times – that at times gets the better of them, gets the better of – of their focus on their child …
… I don’t know that I see the link between [the father’s] ability to meet the child’s needs on a day-to-day basis against what – what line of attack he makes in a court proceeding against the mother. I think it points to his mistrust in the mother, that he had – that he had a high level of distrust in the mother and what she says, and I think that has a bearing on the quality of the co-parenting relationship. And that, in turn, has a bearing on the father’s ability to meet the needs of the child if he fails to accept statements of the mother on face value, but rather filters it through a negative prism …
... I come through it from the prism of the effect of the father’s mistrust in the mother on his ability to receive information from the mother at face value, and to work constructively with the mother to consistently meet the needs of the child …
… if it’s the case that the father is unable to accept information about the child from the mother that is relevant and – to his parenting of the child, then, yes, it can have a bearing on his ability to be attuned to the emotional needs of the child, and the other developmental and physical needs of the child …
(transcript 21 January 2015, p 245, lines 9-11, 19-25, 29-32, 44-47)
Some of that evidence was included in the trial judge’s reasons (at [176]).
The finding about the existence of the father’s distrust of the mother was not therefore mistaken and, though there was room for argument about its virulence and implications, the finding was not clearly against the weight of evidence.
Ground 3(e) attacked the trial judge’s finding in respect of the child’s possible perception about her place in the mother’s home, which the father contended was either not open or against the weight of evidence.
Very shortly before the trial, the mother gave birth to the child’s half-sibling. The trial judge expressed concern the child may feel she had been replaced by her baby half-sibling in the mother’s household if her primary residence was moved from the mother to the father, which could then deleteriously affect her relationships with the mother and half-sibling (at [300(t)][sic]). It was one of the many factors the trial judge relied upon to find the child should live with the mother.
The conclusion was consistent with evidence given by the Family Consultant, referred to by the trial judge (at [147]-[149]), and followed an earlier observation about the mother’s active involvement of the child in her pregnancy and impending birth (at [117]). Accordingly, the finding, which was expressed as a possibility rather than a firm conclusion, was open. It was not contrary to the weight of the evidence because the Family Consultant was not challenged about the validity of his hypothesis. Although the Family Consultant volunteered that the risk of the child forming an impression she had been replaced in the mother’s household could be ameliorated by “frank and direct” discussion with the child about the topic, he remained steadfast that it “may” affect her.
It follows that the entirety of Ground 3 fails.

Ground 4

This ground of appeal was as follows:
The learned trial judge gave insufficient weight to the already established and significant relationship between the child and her sibling, Child A.
At numerous points in her Honour’s reasons the trial judge made reference to the nature of the child’s prospective relationship with her half-sibling in the mother’s household (B) and her existing relationship with her half-sibling in the father’s household (A).
The submission made in support of this ground was that the trial judge wrongly afforded greater weight to the relationship between the child and B than to the relationship between the child and A in the determination of the parenting orders, but such submission does not bear close scrutiny of her Honour’s reasons.
The trial judge noted the child’s relationship with B could not be assessed (at [117]), because of B’s tender age, but accepted the Family Consultant’s evidence that the child’s primary residence with the father would “lessen the extent” to which she could forge a bond with B, which consideration would “factor heavily” in determining the child’s future living arrangements (at [155]-[157]).
Conversely, the trial judge found the child enjoyed a “strong and loving” relationship with A which was an “important consideration” that “weigh[ed] heavily” in determining the child’s future parenting relationships (at [118]-[122]). The trial judge also acknowledged the Family Consultant’s evidence that the child’s primary residence with the mother, in lieu of continuation of an equal time regime, would “change the course” of her relationship with A (at [151]-[153], [305]).
When it was time to assimilate all of the conflicting factors that recommended the child’s residence with either the mother or the father, the trial judge paid just as much heed to the child’s existing relationship with A as to the child’s prospective relationship with B.
The trial judge found the child’s ability to develop a strong bond and connection with B was an advantage of her primary residence with the mother (at [297(c)]), but a countervailing disadvantage of her primary residence with the father (at [300(e)]). Her Honour also found the child’s inability to spend as much time with A was a disadvantage of the child’s primary residence with the mother (at [298(c)]), and her ability to build and maintain her relationship with A would be an advantage of her primary residence with the father (at [299(c)]).
In conjunction with all other influential factors, the trial judge ultimately concluded the child should live primarily with the mother. The trial judge observed that, because of the existing strong relationships between A and other members of the paternal family, the relationships could be preserved and nurtured through “regular time and communication” (at [306], [344], [347]).
The trial judge gave exemplary equivalent consideration to the child’s relationships with both half-siblings. Ground 4 fails.

Ground 5

This ground of appeal was as follows:
That her Honour erred in the exercise of her discretion when making
Order 9, having regard to the findings at paragraphs 274 and 275 of the reasons.
This ground of appeal, which was directed to the restraint on the father’s consumption of alcohol was conceded and thus we do not need to say anything more about it, save that we will by consent discharge the restraining order.

Ground 6

This ground of appeal was as follows:
That the learned trial Judge failed to provide adequate reasons.
This ground was not separately pursued by the father. He asserted that the lack of adequate reasons was an overall complaint that permeated several of the other grounds of appeal and was dealt with by submissions made under those individual grounds.
Ground 5 aside, for reasons already given, the trial judge’s findings challenged under each of the other grounds of appeal were open on the evidence and not contrary to the weight of the evidence. In each instance, the findings were satisfactorily explained. The reasoning between the conclusions and their factual foundations was exposed and logical. This ground of appeal fails.

Conclusion

The appeal succeeds, but only in respect of Ground 5. The error can be remedied by the re-exercise of discretion to discharge Order 9. The parties agreed upon a minute of orders to achieve that outcome.
Otherwise the appeal is dismissed and all other orders of the trial judge are confirmed.

Costs

Both parties sought an order for costs against the other, depending upon whether the appeal succeeded or failed, but neither of those results actually followed because the appeal was only partially successful.
The appeal succeeded on one ground in respect of one order. The appeal could have been conceded on that point much earlier, but it was not. The concession was not made until a written summary of argument was filed for the mother only weeks before the appeal, which by then had been pending for many months. The appeal, therefore, needed to be pursued at least in that respect.
Otherwise, the appeal was unsuccessful, but it was not pursued unreasonably. The mother needed to meet the father’s arguments in some instances.
No submission was made which persuaded departure from application of

s 117(1) of the Act. There will be no order for costs.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland & Austin JJ) delivered on 22 December 2015

Associate:

Date: 22 December 2015