BLAKELY & MORRELL - [2015] FamCAFC 49

FAMILY COURT OF AUSTRALIA

BLAKELY & MORRELL

[2015] FamCAFC 49

FAMILY LAW – APPEAL – CHILDREN – RELOCATION – FINAL PARENTING ORDERS – Where the mother lived in Queensland with the children – Where the father lived in NSW - Where the father’s evidence was that the children should reside with the mother – Where the primary judge misstated the positions adopted by the parties and ordered that in the event that the mother chose not to relocate with the children to Newcastle the father would assume primary care – Where no weight given to the father’s evidence he could spend substantial and significant time with the children in Queensland – Appeal allowed.

FAMILY LAW – APPEAL – FINDINGS OF FACTS – Where the primary judge made adverse findings against the mother’s credit which materially impacted on his ultimate decision – Whether finding the mother lied and misrepresented issues relating to family violence open – Where mother subjected to misleading and confusing questions - Improper questions – Where questions should have been disallowed – Section 41 of the Evidence Act 1995 (Cth) discussed – Where the primary judge used uncontroversial evidence to conclude the mother “lied” – Where failure to consider corroborative evidence – Where a finding that the mother lied was not available – Where findings of fact inconsistent and contradictory – Where findings that the mother’s evidence was not given in good faith influenced decision to treat the evidence of the family consultant cautiously and undermined mother’s case that she had the support of her family in Queensland – Appeal allowed.

Evidence Act 1995 (Cth): s 41
Family Law Act 1975 (Cth): ss 64B(2), 65D(1)

Blakely & Morrell (No. 2) [2014] FamCAFC 226
Collu & Rinaldo [2010] FamCAFC 53
Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472
Gronow v Gronow (1979) 144 CLR 515
SCVG & KLD [2014] FamCAFC 42
U and U (2002) 211 CLR 238

APPELLANT:

Ms Blakely

RESPONDENT:

Mr Morrell

FILE NUMBER:

SYC

4645

2010

APPEAL NUMBER:

118

2014

DATE DELIVERED:

27 March 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Ryan & Benjamin JJ

HEARING DATE:

25 November 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

22 August 2014

LOWER COURT MNC:

[2014] FCCA 1888

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Levick

SOLICITOR FOR THE APPELLANT:

Peter Hamilton & Associates

COUNSEL FOR THE RESPONDENT:

Mr Page QC with
Mr Kelly

SOLICITOR FOR THE RESPONDENT:

Emery Partners

Orders

Subject to Order 5 dated 27 November 2014 the Application in an Appeal filed on 7 November 2014 be dismissed.
The appeal be allowed.
That Orders 1-18 of the orders dated 22 August 2014 be set aside.
There be no order as to costs.
The proceedings be remitted to the Federal Circuit Court for hearing before a judge other than the primary judge.
That the Court grants to the appellant mother a costs certificate pursuant to s 9 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 appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father 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 in respect of the costs incurred by him in relation to the appeal.
The Court grants to each of the parties 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 of the parties in respect of the costs incurred by them in relation to the new trial ordered.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Blakely & Morrell 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 SYDNEY

Appeal Number: EA 118 of 2014
File Number: SYC 4645 of 2010

Ms Blakely

Appellant

And

Mr Morrell

Respondent

REASONS FOR JUDGMENT

By Amended Notice of Appeal filed on 7 November 2014, Ms Blakely (“the mother”) appeals against final parenting and other orders made by a judge of the Federal Circuit Court on 22 August 2014. The orders concern the parties’ two children, X who was born in 2009 and Y who was born in 2012.
The parenting orders provided that the children would continue to live with the mother but only if, within 28 days of the date of the orders, she changed the children’s home to a place within a radius of 50 kilometres Newcastle Post Office. Prior to the orders the mother and children lived in Queensland.
In the event the mother did not relocate the children, they would leave her care and thereafter live with the father, Mr Morrell (“the father”). The father seeks to uphold the orders.

Brief chronology

So as to give this appeal context, it is useful to set out in some detail key events in chronological order.
The parties met in 2006 when the father, who is a medical professional, came to country New South Wales for work. Within a short period, the mother moved to Sydney to live with him.
By the time their daughter X was born in 2009, having already moved to another country town and for reasons associated with the father’s employment, the parties were living on the south coast of New South Wales.
After a brief separation and reconciliation, the parties separated in June 2010 following which the mother took their daughter, who had just turned one, and moved to Queensland where she lived with her sister.
The parties were able to agree about the arrangements for X to spend time with the father which essentially involved the mother taking their daughter every four weeks or so to see him on the south coast for 5-8 days at a time. When they did so, the mother and child stayed with the father.
On the father’s application, final orders for the settlement of property were made by consent on 27 July 2010.
Again, for reasons associated with his employment, in March 2011, the father moved from the south coast to Town B on Lake Macquarie. The informal arrangements for X to spend time with the father continued.
His Honour found that for about 3-4 months, between April 2011 and July 2011, the parties rekindled their relationship (which finding the mother does not challenge) and that for a significant portion of that time she and X lived with the father in Town B. It is during this period that the mother conceived the parties’ son, Y.
On 24 July 2011, the mother and X returned to live in Queensland. According to the mother, one of the primary attractions of Queensland is that this is where her parents and sister reside, each of whom she says provides her with the practical and personal support which, as a single parent, she values.
Again, without needing court orders but not without some difficulty, the parties were able to ensure that X continued to see the father. In essence, the difficulties centred around his view that in July 2011 the mother misrepresented the purpose of her trip to Queensland, by suggesting it was for a holiday and not a permanent arrangement. Notwithstanding this obvious source of tension, it was agreed that the mother and X, at the father’s expense, would make regular trips to Town B (which they did) and the father would regularly travel back and forth to Queensland (which he did). The effect of the arrangement was that X spent time with the father (with the mother present) about every three or four weeks for a few days at a time. With the impending birth of the parties’ son, the mother made her last trip to the father’s home in October 2011.
On 15 January 2012 the father informed the mother he had instructed solicitors to commence proceedings for orders that she relocate with X and their soon to be born son to where the father lived.
Within two weeks of Y’s birth, the father commenced proceedings in the Federal Magistrates Court (now Federal Circuit Court). Stated broadly, he sought orders that the children live with the mother and that she establish their home reasonably close to where he lived. The mother opposed the father’s application and sought orders that the children live with her (in Queensland) and the father spend time with them thereabouts.
From when Y was born in early 2012 until mid-2012 the children saw little of the father. When the father was able to see the children, essentially this involved short periods facilitated by the mother’s sister and slightly longer (day) periods in April 2012. Thereafter, the children’s time with the father increased and was adjusted in the manner set out in interim orders made on 29 June 2012 and 13 June 2013. He met significant travel and accommodation costs associated with the mother and children’s regular travel to Newcastle and his own regular travel and accommodation costs to Queensland.
The hearing before his Honour commenced on 19 February 2013 and, in five tranches and subject to written submissions, was completed on 12 February 2014.
Written submissions were received in April 2014 following which his Honour reserved his decision.
His Honour published his reasons for judgment and made the orders which are the subject of this appeal on 22 August 2014. As we have already mentioned, on 27 August 2014, the mother filed a Notice of Appeal. An Amended Notice of Appeal was filed by her on 7 November 2014.
On 27 November 2014, we allowed the mother’s appeal against his Honour’s orders made on 10 September 2014 the effect of which was to dismiss her application to stay the orders under consideration in this appeal. As part of the orders we made in the stay appeal, Orders 2-18 inclusive of the orders dated 22 August 2014 were stayed pending the determination of this appeal.

Applications and the primary judge’s reasons for judgment

His Honour commenced his reasons for judgment by setting out the various applications and responses filed by the parties and the orders they sought. In so doing, reference was made to the father’s Application and Amended Application in which he sought orders that the parties have equal shared parental responsibility, the children live with the mother in the Newcastle area and regularly spend time with him.
When the hearing commenced on 19 February 2013, the transcript reveals his Honour repeatedly invited counsel for the father that the father amend his application to include an order that the children live with him. These exchanges occurred in the presence and, at his Honour’s request, absence of the parties. After some hours counsel for the father indicated that the father would amend his application in the manner suggested by his Honour.
Thus, the hearing was adjourned and on 26 March 2013 the father filed a Further Amended Application which continued to seek orders that the children live with the mother in the Newcastle area and spend time with him, and failing her relocating the children’s residence to that area, they live with him and spend time with the mother. In final addresses, it was submitted on the father’s behalf that the “option” “necessitated by the discourse between the Bench and Bar” “is not one to be considered by the Court.” To reinforce the point counsel wrote “…it is the father’s consistent evidence that the children should remain living with their mother.” (Father’s Written Submissions, 7 March 2014 at [253])
No submission was made in closing to the effect that his Honour should order, even in the alternative, that the children live with the father; it being as clear as one could make it, that the application previously invited by his Honour was abandoned. We mention this at the outset because it is important to understand the competing proposals before his Honour were that the father wished the mother to relocate with the children to Newcastle whereas the mother wished to remain living in Queensland with the children. She made it plain that if his Honour was satisfied that it was in the children’s best interests they live in the Newcastle area, she would move with them.
Much of the evidence in the mother’s case concerned what she described as the father’s controlling behaviour towards her which, along with her desire to have the support of her family and her dire financial situation, were the reasons she returned to Queensland. His Honour’s treatment and dismissal of the mother’s evidence concerning the father’s controlling behaviour and his adverse findings against her credit form the main thrust of this appeal. Conversely, his Honour found that the father’s attitude during cross-examination was exemplary and what he described as being negative aspects of his personality spoken of by the mother had not been borne out.
His Honour examined the mother’s evidence concerning the father’s controlling behaviour and examples she gave of him speaking to her in a manner she felt was degrading. The only incident of violence alleged by the mother against the father concerned an occurrence wherein the father threw a teddy bear. Although his Honour’s findings were more consistent with the evidence given by the mother, he was not persuaded that the father’s behaviour was sufficient to make a finding about family violence that would rebut the presumption in favour of equal shared parental responsibility.
His Honour discussed an incident when X had croup and, without access to medication for children, the father proposed she be treated with an appropriate measure of adult Panadol. Again, his Honour’s findings are more consistent with the evidence given by the mother albeit he did not accept that the father acted unreasonably and was satisfied that the mother failed to accept that he was a person with expertise who should have been allowed to medicate their daughter.
Having determined that the parties had reconciled and were in a relationship between April and June 2011, during which the mother stayed with the father “for a period in excess of a month” [63], his Honour went on to examine the mother’s evidence that in the period preceding Y’s birth, by email and text messages, she was harassed by the father and felt intimidated.
In addition to the evidence given by the parties, his Honour looked to records of a complaint made by the mother to police on 1 February 2012. We will discuss his Honour’s findings in relation to these matters more fully later in these reasons and it is sufficient, at this stage, to record that his Honour was “…of the view that the application was one that was not made in good faith but was made by the mother for a strategic purpose…” [115].
Evidence contained in correspondence from the Women’s Centre and which reported that the mother showed signs of extreme anxiety and was fearful of the father’s controlling and manipulative ways, was described as “self-reporting” and was not given any weight. However, his Honour placed great weight on a “Safe Start Psychological Assessment” which the mother completed in 2011. Again, we will discuss the safety assessment later and we need only to note that his Honour preferred some of the mother’s statements in that document to her evidence.
The mother also sought to rely on the father’s behaviour towards prior partners as lending support to her evidence that she had been treated poorly. His Honour described an extremely offensive and abusive email written by the father to the mother of one of his other children. There was an issue about whether the father or the mother transmitted the email to his former partner. This factual dispute was unable to be resolved.
It was an important aspect of the mother’s case that in Queensland she had the practical support of her family and friends. By reference to a letter written by the Red Cross on the mother’s behalf seeking housing, his Honour found the mother’s credit was compromised and decided he could not wholly accept her evidence concerning the level of her family’s support. This is a matter to which we shall return.
His Honour then considered the circumstances surrounding Y’s birth in relation to which he noted that at the mother’s request the father did not attend and his request to care for X during the mother’s confinement had been refused. Reference was made to the mother’s oral evidence that the reason she declined the father’s request to have X during her confinement was that she was afraid the child would be retained by him. During cross-examination by counsel for the father, the mother was questioned about the fact that she made no mention of this in her affidavit. Based on this exchange, his Honour found that “…the mother was prepared to make up evidence as she went along to suit her cause…” [129].
In accordance with the uncontroverted facts, his Honour found that the mother did not tell the father that Y was born until the following day and “…rather the father found out about the birth when he spoke to [X] and she advised him that she had a baby brother” [129]. By not personally informing the father of Y’s birth, it was found the mother demonstrated a lack of respect for him as a parent and her “inability or unwillingness … to facilitate and encourage a close relationship between [Y] and the father” [130].
Thereafter and in a similar vein, the mother’s decision to allow up to eight members of her family to be present at contact changeover demonstrated her failure to respect the father’s role as a parent [134]-[135].
So as to aid an understanding of his Honour’s analysis of the evidence given by the family consultant, it is useful to set out here her key findings and recommendations. It will be recalled, it was common ground the children should continue to reside with the mother and the pivotal issues were whether they would live in Queensland or the Newcastle area and the amount of time they would spend with the father.
In relation to X, the family consultant said:
74.In observations of [X] with each parent it was evident that she shares close and loving relationships with each of them. In observations of [X] with the mother, [X] appeared confident in her play whilst also accessing the mother for guidance and encouragement. [X] also appeared to access, and respond well to, the mother as a primary source of comfort at times of distress on the day of the Family Report interview.
75.In observations of [X] with the father, [X] appeared somewhat vigilant and reactive to the father’s various affects. These issues will be discussed further in the Report.
(Family Consultant’s Report of 7 January 2013)
As to Y, the family consultant opined:
80.[Y] exhibited separation distress specifically from the mother at various stages throughout the Family Report process. This would be considered consistent with his developmental stage and his primary attachment relationship with the mother. It would also be considered consistent with [Y’s] poor health at the time that he was observed.
81.[Y] was observed to settle well with the father when separated from the mother for the purpose of an observation session between the children and the father. The father’s interactions with [Y] throughout the observation session appeared age appropriate and responsive. The father was also observed to balance his time and attention well between all of the children during the session.
(Family Consultant’s Report of 7 January 2013)
The father has three other children from two relationships, all of whom live with their mothers. His children, C and B, live with their mother in Sydney and regularly spend time with the father. C and B attended for the family report, in relation to which the family consultant said:
76.Using bear cards and discussions, [X] depicted close relationships with paternal half siblings, [B] and [C]. This was also evident during the observation session of [X] with her siblings. For example, upon [B] and [C] joining [X] and [Y] in the childcare room, the children were observed to immediately and effortlessly engage in play. The play and positive interaction between the siblings was sustained throughout their entire time together.
(Family Consultant’s Report of 7 January 2013)

For completeness, the father’s other child lives in New Zealand and has not met the children.
As to observations made of the parties, the family consultant said:
87.The mother cordially attempted to engage the father about [Y’s] health, explaining how unwell he had been prior to and throughout the morning. She also attempted to explain to the father when she had last given [Y] medicine, and tried to show him where the children’s food and drink bottles were in case they wanted something during their time with him. The father was observed to completely ignore the mother throughout this process; he made no eye contact with her and failed to acknowledge anything that she said. The mother appeared to become quite withdraw (sic) and anxious at this stage. The father continued to make no attempt to acknowledge the mother or speak politely to her, irrespective of the presence of the children.
(Family Consultant’s Report of 7 January 2013)
As to the disposition of the matter, it was recommended by the family consultant that:
…
106.A shared care arrangement for these children would not be recommended, regardless of the geographical proximity of the parents to each other.
107.If the Court finds that the father has been abusive, intimidating or controlling of the mother, and/or the father has placed inappropriate psychological demands on the children, then it is recommended that the mother and children do not relocate to the [Town B] Area.
108.If the Court finds that it is in the children’s best interests to remain living in Queensland, then it is recommended that the children are not required to travel to New South Wales any more than one occasion per six weeks, and one occasion each mid school term (in addition to school holidays) once the children commence school. Additional time for the children to spend with the father should be facilitated by the father travelling to Queensland.
109.If the Court finds that the mother and children should relocate to the [Town B] Area then it is recommended that they live with the mother and spend time with the father alternate weekends, half school holidays, and special occasions.
110.Telephone and/or Skype communication is recommended; however, this may need to be a structured arrangements rather than an impromptu arrangement, given the identified issues in the co-parenting relationship.
(Family Consultant’s Report of 7 January 2013)
We have already explained how it was that the father came to file a Further Amended Application in which he sought an order in the alternative that the children live with him. So as to address that possibility, his Honour ordered a second report which was prepared by the same family consultant. In relation to the ultimate issues, the family consultant opined:
…
28.With regards to the Limited Issue being: ‘the father’s proposal that the children live with him’, it would appear to be the father’s understanding that he was required to make this proposal if the Court found that the mother should relocate to Newcastle with the children and the mother refused to do so. Fundamentally however, the father expressed his opposition to such a proposal for the children, unless in (sic) a situation occurred whereby the mother refused and/or could not undertake the primary care of the children.
29.It would therefore appear that the parents are in agreement that the children should live primarily with the mother, and that a change of primary care arrangements for the children would not be in the children’s best interests. These views would appear consistent with the children’s developmental history and needs at this time.
30.The parents also appear to be in agreement that the current parenting arrangements for the children are not sustainable and place a high demand on the children with regards to travelling between households. Yet, the parents are also in agreement that the children will benefit from positive relationships with both parents.
….
33.It would also appear common ground between the parties that Queensland offers more affordable real estate. As such, the father’s second proposal to purchase a property in proximity to the children and alleviate the burden of travel for the children in order for them to spend regular time with him in their local geographical area may be an important consideration for the Court. Such a proposal would appear to cause the least degree of upheaval for the children, and uphold the parents’ agreement that the children should remain living with the mother and spend time with the father in an arrangement consistent with the developmental needs and the geographical distance between households.
(Family Consultant’s Limited Issues Report dated 23 May 2013)
It was the family consultant’s expert opinion that the recommendations contained in her first report remained apt.
Because of its significance, it is appropriate we set out in full the approach his Honour adopted to the evidence given by the family consultant. His Honour said at [137]:
The court has closely considered the evidence of [the Family Consultant]. The court is of the view that evidence of the family consultant relies upon an acceptance of the mother’s complaints to the effect that the mother had been exposed to family violence at the hands of the father. With the exception of the teddy bear throwing incident the court does not accept the father perpetrated family violence upon mother. The weight of the evidence allows the court to find that the mother has lied about the existence of family violence for the purposes of obtaining a strategic advantage against the father. It is this background and the court’s finding against which the court must weigh and balance the evidence given by the family consultant.
At [138], his Honour again observed that the parties were now “in diametrically opposed positions” in that each party applies for orders that the children live with him or her.
Having set out “The Law”, his Honour said he was satisfied the presumption of equal shared parental responsibility had not been rebutted and that such an arrangement would be in the children’s best interests. On the dual basis of the parties’ poor communication and the potential for an adverse effect on Y of being substantially separated from the mother, an equal time arrangement for the children would not be in their best interests. If the parties lived some 9-12 hours drive apart, an arrangement whereby the children lived with one parent and spent substantial and significant time with the other was not reasonably practicable. The effect of these findings was:
198.The parties do not have the current capacity to implement an arrangement for substantial and significant time given the geographical distance that exists between the parties. It therefore flows that unless the children live with the mother within 50km of the Newcastle Post Office the parties would be unable to implement an arrangement for substantial and significant time.
However, because Y was primarily attached to the mother and was so young, his Honour was not satisfied he would easily transition between his parents and that it would not be until Y was three that he should spend the same amount of time with the father as would be appropriate for X [201]. It being the case that notwithstanding X was primarily attached to the mother, an arrangement for substantial and significant time with the father would not negatively impact on her.
Both children were found to have a strong and loving bond with the father and to enjoy close relationships with C and B. Their relationships with the mother and maternal extended family are close and loving. Nonetheless, “…the father’s ability as an experienced parent and the close relationship he shares with the children…” [208] meant that if the children lived with him, he would become their primary attachment. The strength of the children’s relationship with the mother was so strong it would survive if the children lived with the father in Newcastle and she remained living in Queensland.
In making orders that the mother and children should relocate, his Honour relied heavily on his view that the mother was unwilling to facilitate and encourage a relationship between the children and the father and his finding that she lied and misrepresented issues relating to family violence [209]. On the other hand, it was found that the father was willing and capable of facilitating and encouraging a close and continuing relationship between the children and the mother.
As to the ultimate disposition of the matter, his Honour described the children continuing to live with the mother in Queensland as “disastrous” to their best interests [213] because the father would not be able to have significant or substantial time with them and inevitably, “…the children’s right to maintain personal relations would be severely inhibited by the mother (sic) poor attitude towards the father” [215].
His Honour was of the view that the father was no longer willing to establish a second home close to where the mother and children lived in Queensland (as well as retaining his home near Newcastle) and said, that even if the father maintained that proposal, it would not have been practical. Although complaint is made that his Honour used the words “practical” and “practicable” interchangeably, which he did, we are unable to join in criticism of his so doing.
Thus, it was ordered that the children should live with the mother, conditional upon her relocating to within a 50 kilometre radius of Newcastle.

Grounds of appeal

In addition to the 17 grounds of appeal identified in the mother’s Amended Notice of Appeal filed on 7 November 2014, leave was sought and granted to add an additional ground.
The grounds of appeal are set out below:
1.His Honour erred in finding that the mother lied and misrepresented issues relating to family violence as a means of obtaining a strategic advantage against the father.
2.His Honour erred in finding that the mother is unwilling and has demonstrated an inability to facilitate and encourage a close and continuing relationship between the children and the father.
3.His Honour erred in finding the father’s attitude in cross examination was exemplary, such finding being inconsistent with the answers given by the father.
4.His Honour erred in finding that little or no weight should be placed on the evidence of the father’s past communications with previous partners on the basis that such communications are what is stated were best described as tendency evidence.
5.His Honour erred in failing to follow the statutory pathway in s.65DAA of the Family Law Act.
6.His Honour erred in failing to consider and weigh all of the possible advantages for the children of each of the parties (sic) competing proposals.
7.His Honour erred in failing to consider the father’s evidence that the children should reside with the mother.
8.His Honour erred in failing to consider whether it was reasonably practical for the mother to relocate to Newcastle.
9.His Honour erred in failing to consider the age and level of maturity of the children [B] and [C] in considering their ability to retain a relationship with the children on the father’s scenario that he live in Newcastle and establish alternate accommodation in [Queensland].
10.His Honour failed to consider the likely effect on the parenting ability of the appellant if the children are relocated to Newcastle in circumstances where that was not her primary proposal.
11.His Honour erred in fact in finding that the mother was residing in Department of Housing accommodation.
12.His Honour erred in fact in finding that the mother had lived in the [Queensland] area since about July 2011.
13.His Honour erred with respect to the evidence of the Family Consultant in that:
(a)His finding that the Family Consultant relied upon an acceptance of the mother’s complaints to the effect that the mother had been exposed to family violence at the hands of the father does not adequately reflect the factors considered by the Family Consultant as relevant to the formation of her opinion;
(b)Failed to place any or sufficient weight on the observations of the Family Consultant in relation to the behaviour of the father at interview;
(c)Failed to place any or sufficient weight on the evidence contained in the limited issues report dated 23 May 2013.
14.His Honour erred in concluding that if the children were to reside with the father the children would adapt and their primary attachment would change as there was no evidence upon which such a finding could be made.
15.His Honour erred in failing to consider the source of power for the orders made in paragraph 17, the consequences of his failing to pay that sum if ordered and the effect on the mother’s sources of income if moneys were paid in that way.
16.His Honour erred in that his decision was plainly wrong.
17.Failure to give reasons.
18.His Honour erred in making, and in failing to give adequate reasons for, his findings as follows:
(a)That the mother is unwilling and has demonstrated an inability to facilitate and encourage a close and continuing relationship between the children and the father.
(b)That the mother has lied and misrepresented issues relating to family violence as a means of obtaining a strategic advantage against the father.
(c)That should the children remain living in Queensland with the mother she will undermine and diminish the children’s relationship with the father using the key of the tyranny of distance to in part do her work.
As counsel for the mother explained, the grounds of appeal which challenged his Honour’s credit findings and assert material errors and inconsistent findings of fact are the crux of the appeal. Because we are strongly satisfied that the findings of the primary judge in relation to matters central to his decision are fatally flawed, we will focus on these grounds. The point being that as a consequence of these errors the judgment cannot stand.

Credit findings and error in relation to the facts – Grounds 1, 3, 18(b) and 13

Grounds 1 and 18(b) challenge his Honour’s statement at [209] that “…The court has found that the mother has lied and misrepresented issues relating to family violence as a means of obtaining a strategic advantage against the father.” These grounds bring into question his Honour’s findings as to the specific “lies” and “misrepresentations”. Reference to the mother’s “lies” would appear to be to pieces of evidence; being evidence about why the mother did not want the father to care for X during her confinement and an unsworn statement attributed to her when, with the assistance of the Red Cross, she applied for supported housing. The “misrepresentations” would seem to relate to aspects of the mother’s evidence which conflict with a safety assessment she completed. Ground 13 asserts consequential error in the treatment of evidence given by the family consultant.
The only potential “lie” given on oath relates to the mother’s evidence that she refused the father’s request that he care for their daughter during her confinement because he “…had said to me in the past that he was going to take [the daughter] and just wouldn’t give her back…” (reasons for judgment at [128]) (original emphasis). The mother’s evidence was rejected and, at [129], his Honour said it revealed “…the mother was prepared to make up evidence as she went along to suit her cause…”
So as to understand the full import of the challenge, it is necessary to record the evidence on which the primary judge relied to conclude the mother lied. At [128], he found:
The following exchange took place between counsel for the father and mother:
“Mr Kelly: See, [the father] had offered, and suggested to you, that he would look after [X] while you were in hospital having your new baby?
The Mother: Yes, [the father] had said to me
Mr Kelly: Would you agree with that? That’s what [the father] had asked you?
The Mother: Yes.
Mr Kelly: To do that?
The Mother: Yes.
Mr Kelly: So, what was unreasonable about that?
The Mother: Well, [the father] had said to me in the past that he was going to take [X] and just wouldn’t give her back.
Mr Kelly: So is that why you wouldn’t let him near [X]?
The Mother: I was worried. And I just wanted to be in the right frame of mind to have a safe delivery. Delivery – having a baby is pretty – it’s pretty huge.
Mr Kelly: Pretty huge for [the father], too, isn’t it?
The Mother: I didn’t want to have any complications.
Mr Kelly: Are you going to answer my question? It’s a huge event for [the father], isn’t it?
The Mother: I don’t – I hope it would be. I don’t know.
Mr Kelly: Is that your honest answer, you just don’t know if it’s a big event for [the father]?
The Mother: Well, he was – he didn’t even think it was his baby, did he?
Mr Kelly: Well, he was asking to be at the birth with you, wasn’t he?
The Mother:   Yes, but I – I was – [the father] has said that I was probably going to die in childbirth. There were so many reasons why I just – I had the right just to have – just deliver the baby in peace. And just be of good mind.
Mr Kelly: [The father] had asked you if he could attend the birth, and it was agreed between the two of you, you said you don’t want him there?
The Mother: Yes.
Mr Kelly: Now, [the father] accepted that, didn’t he?
The Mother: No.
Mr Kelly: Well, coming back one, before I move on, you filed, on my count, six affidavits in these proceedings here, and two within the AVO proceedings. Where, within those materials, have you ever said that [the father] had an intention to abduct [X] and take her away?
The Mother: Well, I probably wrote it down and nobody put it in. I don’t know.
Mr Kelly: Somebody else has got it wrong again, have they?
The Mother: Oh, no.
Mr Kelly: You’ve had six goes at putting that?
The Mother: Well, there’s a lot of Sorry? Well, I’m not very good at affidavits. I’m really sorry.
Mr Kelly: So, you would agree that you’ve had six goes at putting that evidence in and you never did? You agree with that?
The Mother: I think – I remember saying that I was worried. I have to go back and read all the affidavits. I don’t know.”
(original emphasis)
The mother’s evidence is consistent with evidence given by the father in his affidavit filed on 15 April 2013 about text messages which passed between them on 23 March 2012 and in which the mother referred to his threats to take and keep the children. The father’s evidence is set out below:
137. On 23.03.2012, [the mother] sent me the following text message: “I have no difficulty in you seeing the children provided that their consent orders in place that provides me with some security that the children will be returned to me. I am really concerned that frightened that you have threatened me that you will take the children out of my care. So we need to put in place an arrangement that the kids will be ok. Can you please tell thru your lawyer what your proposal is for spending time with children. I would prefer that all correspondence come through your lawyers rather than yourself. I think this is the best way for us to come to an agreed position without me feeling threatened or abused”.
138. I responded to [the mother’s] e-mail with the following text message: “So, if I have heard you correctly, the problem you are trying to solve is that you feel abused and concernd that I will take [X] interstate without your consent. Hmmm…. I feel exactly the same way! At least we agree on that, you have no sense or reason to worry that I will do that, especially as I have talked at length about putting the children’s interests first and am on record, many, many times, unilaterally that taking [X] interstate is a hostile and inappropriate act. It is weird that you are claiming that I MIGHT do exactly what you have HAVE DONE. Yes I can communicate through lawyers. Yes I can send you information outlining my thoughts on what would be appropriate. What address should I use”?
(errors as in original) (Father’s affidavit, filed 15 April 2013)

No challenge was made to this aspect of the father’s evidence. The effect of this is that it was uncontroversial that prior to the text messages the mother said she was concerned the father would act on his threat to retain their daughter in New South Wales. In other words, long before the mother gave evidence she mentioned that the father had made the threat which his Honour said she made up during cross-examination. It follows, that the line of questioning which sought to impugn this aspect of the mother’s evidence was improper and should not have been permitted (s 41 Evidence Act1995 (Cth)). We agree with counsel for the mother that given the father’s evidence a finding that the mother’s evidence was made up during cross-examination to suit her cause and, by necessary implication was a “lie” was not available. We understood counsel for the father to accept the point, albeit, it was not conceded that this error constituted an error of law.
So that the point is not overlooked, we feel compelled to observe that this was not the only occasion on which questions which misrepresented the facts were put to the mother. Notwithstanding objection by counsel for the mother, this occurred too often and without intervention by his Honour. And lest it be thought otherwise, these were not limited to matters which might be considered to be of little significance and included matters which went to the heart of the mother’s case that she had been intimidated and harassed by the father. For example, counsel for the father questioned the mother about an allegation made by the father that they had had sex on 11 January 2012. The questioning proceeded as follows:
You are aware, aren’t you, that [the father] alleges that – in his affidavit that you and he had sex at [Queensland], on 11 January 2012, aren’t you?‑‑‑Yes. Well, I think he – I’m sorry, did he not say that he woke up with me giving him oral sex? Is that what you’re talking about.
Ma’am, I won’t cavil over the words but it’s sex. A sexual encounter occurred between you and [the father] ‑ ‑ ‑?‑‑‑Yes.
He alleges that it ‑ ‑ ‑?‑‑‑Yes, that’s right, sorry.
Now, that’s – [the father’s] affidavit – I withdraw that. So we’re clear – I don’t want to be seen to be tricking you – [The father] alleges that there was a sexual encounter between you and he on 11 January 2012 at [Queensland]; do you agree with that?‑‑‑Yes.
So that’s the event I’m talking about?‑‑‑Yes.
(Transcript, 13 June 2013, p 96, lines 3-19)
When cross examination of the mother continued, some months later, it proceeded as follows:
And you and he had a sexual encounter?‑‑‑No. No. I - I had left. I had left the house with [X].
So if you gave evidence on the last occasion that ‑ ‑ ‑
MS CARTY:   She didn’t.
MR KELLY:   ‑ ‑ ‑ you had sex with [the father] on 11 January, it wasn’t true?‑‑‑Well, I don’t. I didn’t give evidence. I wouldn’t have, because I didn’t.
(Transcript, 8 November 2013, p 69, lines 15-23)
and:
MS CARTY: …
This is misleading because if you look at line 5, it says:
You are aware, aren’t you, that [the father] alleges that?
Yes. Well, I think ‑ ‑ ‑
Well, ma’am, I won’t cavil over words, but it’s sex -
that’s line 10 -
a sexual encounter.
This is the allegation being put to the client, and she says he alleges. And then:
He alleges it?
Yes. That’s right. Sorry.
And then line 15:
Now, that’s [the father’s] affidavit -
so it clear - I don’t want to be tricking you – [the father] alleges that it was a sexual encounter?‑‑‑Yes.
And then she’s asked whether this is the first time she has became aware of it. At no time in that exchange does she admit that there was a sexual encounter.
MR KELLY:   Your Honour, we don’t need to talk about this now...
…
Now, do you want to change? Are you saying that the answer you gave to the court on 13 June 2013 was not correct?‑‑‑I - I don’t think I - I don’t remember saying that directly. I - I remember the - I remember conversations when you said it was all allegedly and that, and I remember that very clearly, but I would - I do. I did not have sex with ‑ ‑ ‑
Thank you, ma’am, if I could have that back. I’m unsure how that will be, your Honour, but if your Honour has the transcript, we know where that reference is, but I will tender that at some stage?‑‑‑Goodness. I don’t want to say anything any more.
(Transcript, 8 November 2013, pp 71-72) (original emphasis)
Notwithstanding counsel for the mother’s proper objection, counsel for the father was permitted to continue a line of questioning which his Honour should have stopped. In our view, before his Honour decided the mother was a “liar” and her evidence was tedious and at times unresponsive, he needed to consider the probable harmful impact on the mother’s testimony overall of questions which she knew misrepresented her prior evidence or the facts and notwithstanding objection from her counsel were allowed to continue. For this to occur in a case concerned with intimidation and harassment is very troubling.
The next “lie” concerns the mother’s housing application in relation to which counsel for the father who appeared before his Honour said was the most telling piece of evidence within the trial and was damning of the mother’s credit.
Between [120] and [123], his Honour discussed the mother’s evidence “[b]y moving to Queensland I had the support and assistance of my family. My parents reside there as do my sisters and other family members…” (Mother’s affidavit filed on 12 April 2013 at [40]) and at [182] of the same affidavit “…Queensland is where my supportive family and friends reside, and where the children and I have resided for the past 2½ years…” It is uncontroversial that having previously stayed in her parents’ home and with her sister, by November 2011, the mother and X were in temporary accommodation with a friend of hers.
On 4 November 2011, with the assistance of the Red Cross, a letter was forwarded on the mother’s behalf to the Queensland Department of Community Housing and Homelessness Services. In relation to the letter, his Honour determined its contents to be “…extremely important and go towards the direct issue as to whether the mother had the support of her family in Queensland” [120]. The contents of the letter authored by the Red Cross as set out at [121] were:
…
“I am writing in response to the above client’s application for housing. [The mother] is currently a client of the Red Cross homestay program and is being assisted to secure long-term accommodation for her family. My involvement with [the mother] has been extremely positive and she has cooperated with me to take steps to overcome support the process to secure long-term accommodation including applying for the National Rental Affordability Scheme and associated properties…..[The mother] was flood affected in January 2011 and lost most of her belongings. She is currently living in short-term temporary accommodation as a border with her two-year-old daughter and also another child due to be born in 2012. [The mother] has been advised that she is required to vacate by January 2012. If [the mother] is not successful in gaining a new tenancy that she will be at risk of homelessness.” (original emphasis and errors as per original)
At [122], his Honour recorded exchanges which took place between him and the mother as follows:
…
“His Honour: did the Red Cross make representations on your behalf to the department housing that weren’t correct?
The Mother: well-but the-the thing was-was that I was never going to stay there with [K], so in his view, it was-I was always going to move out.
His Honour: Were you going to be made homeless?
The Mother: No.
His Honour: so if they did make a representation that you were going to be made homeless, that was not true. Yes?
The Mother: Yes
His Honour: Were you going to be made homeless?
The Mother: No.” (original emphasis)
We pause to agree with the submission made by counsel for the mother to his Honour that there is a material difference between a representation by the Red Cross that the mother “…will be at risk of homelessness…” and the proposition put by his Honour that the letter said the mother was “…going to be made homeless…” In our view his Honour elevated what the Red Cross said was a risk into a certainty and then, relying on that wrong interpretation proceeded to demolish the mother’s credit. His point being that contrary to her evidence it now “…very much suits the mother’s case to tell the court that she had misrepresented her housing situation [to the Red Cross]…” [123].
It any event it follows that his Honour must have accepted the mother’s evidence that she was not at risk of being homeless. Yet, based on the Red Cross letter, at [123], he concluded “…the mother’s contention at paragraph 182 of the affidavit that Queensland is where her ‘supportive family and friends reside’ is significantly diminished…” In other words, because she lacked the support she had from her family and friends she faced being homeless. It follows that on the one hand his Honour was satisfied the mother lied to the Red Cross and was satisfied she was not at risk of being homeless but then found she was, rejecting in the process her evidence and that of her family that she had their support.
There can be no doubt that his Honour’s analysis of the facts is confused and cannot support the contrary conclusions he reached or undermine the mother’s credit. We are similarly persuaded that before his Honour relied on representations made by the Red Cross to impugn the integrity of the mother’s evidence, it was necessary for him to also consider the significance of him having accepted her evidence that she was not going to be homeless. In other words, to consider that he accepted her evidence was honestly given and to then consider the weight that should be given to a document that was neither under her hand or on her oath.
As we will shortly demonstrate, his Honour’s finding that the mother lied casts a long shadow over his judgment and infected the manner in which he determined other material facts. We need refer to only a few additional examples to demonstrate the point.
Commencing at [74] of his reasons for judgment, his Honour summarised the mother’s affidavit evidence about the father’s “…controlling behaviour towards me during the relationship and since separation” (Mother’s affidavit filed on 12 April 2013). That evidence is then considered in light of that given by the father and a “Safe Start Psychological Assessment” completed by the mother on 8 September 2011. As we understand it, this is a tick the box document completed by expectant mothers which enables hospital staff to undertake a risk assessment about whether or not the mother and newborn can be safely discharged from hospital.
In relation to the mother’s affidavit evidence about the father’s controlling behaviour, his Honour rejected or gave no weight to allegations that were “not specific as to time” or silent as to the surrounding circumstances. Thus, he turned his attention to two incidents; being an argument that developed about how to treat X when she had croup and an occasion when the mother said the father threw a teddy bear at her. It was uncontentious that these incidents occurred within the 12 months preceding the mother’s safety assessment. The timing is a matter that assumes some significance.
The mother’s evidence concerning the croup incident as found at [88] was:
The Mother deposes that she said to the father “how much did you put in the water? I don’t feel comfortable giving it to [X]?”, and that following the mother making that statement the father became angry, his face became red, he raised his voice at the mother and said “shut the fuck up and give it to her”. At paragraph 59 of the mother’s affidavit she deposes that she became frightened went into another room to try calm down; that [X] was screaming that she held [X] to reassure her and was scared the father would come into the room so she barricaded the door with suitcases.
Although there is no mention of it from his Honour, according to the father it was the mother and not him who used vulgar language and he did no more than calmly attempt to secure her co-operation to give their daughter a carefully considered dose of adult Panadol. In relation to this incident, at [94], his Honour found:
The court accepts that the father become frustrated with the mother in circumstances where he is a medical specialist, has consulted with a friend who was a general practitioner and thereafter provided [X] with what he considered an appropriate amount of paracetamol to then have the mother refused to allow the [X] to take paracetamol that was both beneficial and necessary to her treatment. The court does not accept the father acted unreasonably towards the mother but rather the mother failed to properly accept the father was a person with expertise through his experience as having acted in the role as a specialist medical practitioner and thereafter allow the father to administer paracetamol to [X].
The facts as found tend to suggest that his Honour preferred the mother’s evidence, albeit she was criticised for failing to trust the father’s judgment.
Turning next to the teddy bear incident, his Honour’s findings in relation to the mother’s evidence were:
96.At paragraph 63 of the mother’s affidavit she deposes to the father throwing a teddy bear at her. The incident appears on the evidence to have taken place when the father attempted to put [X] to bed and instead [X] would not allow the father to put her to bed “screaming” out for the mother. The mother deposes but she “quietly suggested” to the father to “try again another night” and that the father then stood up and threw [X’s] teddy bear at her head.
97.During cross examination of the mother suggestions were put by counsel for the father that the father had thrown the teddy bear at the ground rather than at the mother. While the cross examination of the mother on this topic was somewhat confusing it is clear that the mother took the view that the father “pegged” the teddy bear at the mother.
As to the evidence given by the father, his Honour found:
98.During cross-examination of the father he conceded that he had thrown the teddy bear and that perhaps it or a piece of the teddy bear had hit the mother in the eye. The court notes that the incident in relation to the teddy bear was referred to by the mother in her complaint to the police in February/March 2012 in Queensland.
We pause to observe that in his affidavit filed on 15 April 2013, the father said:
44.…As I was walking towards the door I realized that I had [X’s] teddy bear in my left hand. I was disgusted at how [the mother] had behaved and I threw the teddy bear onto the floor. I did not throw it at [the mother].
45.Moments later, [the mother] followed me down the hall and in a highly agitated state yelled out: “That fuckin’ bear hit me”.
(original emphasis)
Nowhere does his Honour attempt to reconcile this inconsistency in the father’s evidence. However and possibly because of the inconsistency, at [99], his Honour went on to find that:
While the actions of the father in throwing the teddy bear demonstrate actions that might constitute an assault (save and except for the father’s stated intentions) on the mother the court is not satisfied the father’s actions would be sufficient to make a finding about family violence that would rebutt (sic) the presumption in favour of equal share parental responsibility found at section 61DA of the Family Law Act or cause the court to consider the children would be subject to or exposed to family violence in the father’s care.
His Honour then turned his attention to the safety assessment, which he described as “startling”, and recorded a series of the safety assessment questions and the mother’s answers, relevantly as follows:
100.…Question 12 provides “Are you ever afraid of your partner or ex-partner?” The answer to this question is ticked No.
101.Question 13 provides “In the last year has your partner or ex-partner hit, kicked, punched or otherwise hurt you?”. The answer to this question is ticked No. Question 14 provides “in the last year has your partner or ex-partner put you down, humiliated you or tried to control what you can do?”. The answer to this question is ticked No.
102.Question 16 provides “Is there anyone else that you are afraid of or who hurts you?”. The answer to this question is ticked No. Question 17 provides “has your child/children been hurt or witness violence?”. The answer to this question is ticked No.
103.Question 18 provides “Are you ever worried about the safety of your child/children?”. The answer to this question is ticked No…
Notwithstanding his Honour’s findings about the croup and teddy bear incidents which occurred within the period addressed in the safety assessment, he went on to give greater weight to the mother’s answers provided in the safety assessment than her evidence. Albeit not explicitly but by necessary implication, at [105], he was satisfied that “…the mother has made up allegations about the father…”. The allegations being those to which we have just referred. Yet, as we have just demonstrated, the mother’s evidence was either rejected because it lacked specificity as to time or the surrounding circumstances or findings of fact that were made are more consistent with her evidence than with the father’s. If the preceding findings provide the factual substratum for the finding at [105], simply put, they cannot. The only other explanation is that the reference in [105] to “made up allegations” is an elliptical reference to the earlier “lie” and to the Red Cross topic which, as we have already said, are findings that cannot stand.
His Honour then turned his attention to events that happened after the safety assessment had been completed. In particular, in relation to circumstances surrounding an application for a protection order which the mother completed on 1 February 2012.
By way of background, it needs to be understood that the father visited X on 11 January 2012 during which he attended the mother’s home. Within a few weeks, and with assistance from the Red Cross, she moved into a newly rented property in the same suburb. With Y’s birth imminent and, the mother said, her wanting some space from the father’s constant text messages and emails she attempted to put structure into their communication. The aim being to limit her need to deal with the father and thereby alleviate her stress in the weeks immediately preceding her confinement. So that it is clear, the father’s evidence made it clear that the mother told him she was “…quite distressed and am worried about my pregnancy…” (Father’s affidavit filed on 15 April 2013 at [118]) and that he would resume contact with X within a few weeks (that is, following Y’s birth) and arrangements could be made for him “…to come up after the baby is born” (Father’s affidavit filed on 15 April 2013 at [113]). It is the father’s unchallenged evidence that he rejected the mother’s proposals and continued to insist that he spend time with X in the lead up to the mother’s confinement, care for X whilst she was in hospital and visit her on the maternity ward.
In any event, and to stop the father arriving unannounced, the mother chose not to give him her new address and merely informed him her new home was around the corner from the old one. In the meantime, the parties fell into serious disagreement about the father’s insistence he would visit X on 1 February 2012 and care for her during the mother’s confinement. Notwithstanding the mother’s repeated advice that X would not be available on 1 February 2012, the father flew to Queensland and attempted to find her. When he could not, he went to a police station as a consequence of which police conducted a welfare check on the child. He then flew back to Newcastle and informed the mother he would return to Queensland the following day and expected to have time with their daughter. This occurred, albeit at the mother’s insistence, it was supervised by her sister.

In any event, on 1 February 2012 the mother attended a Police Station. The mother’s evidence about her attendance was:
Do you remember you went there on 1 February 2012?‑‑‑The date I’m not sure, but I remember going there.
And, you reported domestic violence to the police, on that day?‑‑‑No, I – well, I just went there and – I was upset and I just wanted some help. I actually just wanted the – I asked the police lady if she could just maybe ring [the father] and just ask him – ask to give some space. I just wanted some space. I was pretty upset.
And you told the police that [the father] was harassing and intimidating you via telephone text message, and turned up at your address unannounced to see his daughter? That’s what you told the police, isn’t it?‑‑‑Could you repeat it again, sorry?
Did you tell the policeman ‑ ‑ ‑?‑‑‑Woman.
Was it a policeman or woman?‑‑‑Woman.
Policeman, at [the] Police Station, on 1 February, that [the father] was harassing you and intimidating you via telephone, text message, and turning up at your home address unannounced, in relation to seeing his daughter?‑‑‑I told the police lady that I had asked [the father] if I could have some space to have a baby. And that he was turning up without an agreed – both parties agreeing. And I was upset because he was – my friend had rung me up and said that [the father] had rung her and she – he was asking if I was – if she – if he – sorry – if he – he asked her if he thought that I was mentally unstable. So, there was a lot of aspects to that day. Not just ‑ ‑ ‑
Do you remember the question I asked you?‑‑‑Didn’t I answer it?
Do you remember what the question was?‑‑‑You asked me if I said that to the police lady.
Mm?‑‑‑But I told you what I said.
Now, do you remember showing the policeman ‑ ‑ ‑?‑‑‑Woman.
Now, do you remember showing the policewoman the text messages and – on your phone?‑‑‑I didn’t, my sister showed her.
(Transcript, 8 November 2013, p 85, lines 7-42)
As his Honour found, police listened to the voice messages left by the father on the mother’s phone and read the text messages he sent her. The police did not regard the father’s messages as containing “threats or harm of violence” and observed that some of those sent by the mother were unpleasant, for example, “…you are the worst thing that ever happened to me…”. With the subject matter of the father’s texts deemed “…primarily in relation to seeing his daughter” [111] police determined to not apply for a protection order on the mother’s behalf. It is uncontroversial that she went on to seek a protection order and ultimately, having accepted an undertaking from the father, her application was withdrawn.
His Honour went on to find that the mother’s application for a protection order was “...not made in good faith but was one made by the mother for a strategic purpose…” [115].
It is not entirely clear what that strategic purpose was and certainly his Honour did not say what it was. By implication it would appear to be to gain some unspecified advantage in these proceedings. How that might be so is not apparent. Yet, there can be little doubt that his Honour’s reference to the mother’s lack of good faith in bringing the application is a, if not the, finding she “…misrepresented issues relating to family violence as a means of obtaining a strategic advantage against the father” [209]. In our view, before his Honour determined that the mother’s application was not made in good faith, he needed to clearly state why he rejected the uncontroversial evidence she repeatedly requested a few weeks space from the father around the time of Y’s birth and her evidence she found dealing with him at that time so stressful she felt intimidated and harassed.
We also agree with the submission advanced by counsel for the mother that it was incumbent upon his Honour to consider evidence given by the mother’s sister and brother-in-law about how they saw the father treat the mother.
We cannot agree with the submission made by counsel for the father that the errors discussed above must give way, if it could be appropriately applied, to the “unique advantage which the primary judge alone possessed” (Gronow v Gronow (1979) 144 CLR 513 per Stephen J at 517). However, these findings do not rest on his Honour’s impression of the parties. They are based on evidence inconsistent with unchallenged facts or an analysis of the evidence which, as we have explained, is erroneous (Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472).
By ground 3, his Honour’s finding “[t]he father’s attitude during the course of cross examination can be described as exemplary…” [82] is put in issue. Although we were taken to passages of the transcript which might cause others to describe his evidence in different terms, his Honour’s finding is undoubtedly underpinned by the “unique advantage” to which reference has already been made. The challenge raised by ground 3 is not made out.
If the inconsistent and erroneous fact finding to which we have made reference did not influence his Honour’s ultimate determination, the errors could be viewed as inconsequential. However, these findings go to the heart of his Honour’s reasons for determining:
·to treat the evidence given by the family consultant cautiously [137];
·to qualify the mother’s evidence she had the support of family and friends in Queensland, albeit it was accepted she had their support at the time of the hearing;
·as we shortly explain, to find at [209] the mother is unwilling and unable to facilitate a close and continuing relationship between the children and the father.
It is difficult to overstate how central these findings are to the decision. It follows that we are satisfied that his Honour’s omission to clearly state which evidence he accepted, resolve the differences in the evidence, give appropriate weight to unchallenged evidence, errors in fact finding and inconsistent fact finding amounts to appellable error.
There is good reason why in private family law proceedings judges do not often find that a person has lied to gain advantage in the proceedings. The proceedings usually involve intimate personal relationships and more often than not are undertaken between people who are parents and who need to maintain a degree of contact. The factual matrix is inevitably complex and usually requires consideration of a multiplicity of facts which span many years. No less relevantly a finding that a person has lied to gain advantage in the proceedings involves more than a simple balancing act between two versions of an event where one version is preferred. To be satisfied that a lie has been told and to find that it was said to gain advantage in the proceedings requires careful analysis of four things. The first is that the proffered version of fact is untrue, the second is that it is said knowing it to be untrue, thirdly to gain advantage in the proceedings and fourthly, that the finding is relevant to a matter in issue. In our opinion, prudence and fairness must dictate that before it is found that a person has lied on his or her oath in such a manner, the court would need to be strongly satisfied that each of those four elements is established.
These grounds have merit.

The mother is unwilling to facilitate and encourage the children’s relationship with the father – Grounds 2, 18(a) & 18(c)

Grounds 2, 18(a) and 18(c) challenges his Honour’s finding at [209] “…the mother is unwilling and has demonstrated an inability to facilitate and encourage a close and continuing relationship between the children and the father…” The challenge raised by ground 2 concerns the failure to consider relevant evidence and by grounds 18(a) and 18(c) that there are insufficient reasons to support the conclusion.
We understood counsel for the father to agree with the proposition that his Honour’s finding at [209] is pivotal to his determination to dismiss the mother’s application that the children continue to live with her in Queensland, order that the children could continue to live with her but on condition she returned to the Newcastle area and, failing that, to live with the father. It is also common ground that his Honour’s conclusion at [209] is underpinned by findings that:
·the mother lied and misrepresented issues relating to family violence as a means of obtaining strategic advantage against the father;
·consistently failed to make concessions about her failure to notify the father about Y’s birth and give him her new address;
·failed to consult or notify the father about X’s enrolment in preschool; and
·her view of the father is so poor that if the children continue to live in Queensland “she will undermine and diminish the children’s relationship with the father” using the tyranny of distance to do so.
There is no doubt the mother enrolled X in preschool without the father’s consent and he learned about it from X and not the mother.
We have already discussed his Honour’s findings in relation to the mother’s lack of credit and about family violence which, in the interests of brevity, need not be restated. It is uncontentious that the mother did not tell the father she had gone into labour and it was the day after Y’s birth that the father was told of his son’s arrival. As we have already explained, when the mother moved to her new address she did not give the father her new address. Although his Honour accepted the mother’s evidence that the father tried to persuade her to abort her pregnancy he found that as the birth grew near the father’s attitude had changed and he was happy to be having another child. Because the mother knew the father was now happy about the impending birth but did not personally tell him on the day that the child was born, the primary judge found she thus revealed her inability or unwillingness to facilitate and encourage a close relationship between the child and his father.
There was some basis for the primary judge being concerned about the mother’s actions. However, whether those actions could underpin findings that the mother “is unwilling” and “has demonstrated” an inability to encourage the children’s relationship with the father is a separate question. Before his Honour could come to that view, it was necessary for him to also consider the evidence which pointed to a finding which was strongly pressed by counsel for the mother, to the effect that the mother had long demonstrated her commitment to the children enjoying a close and continuing relationship with the father, even if they lived in Queensland. That evidence being:
·that of the family consultant that in her individual interview with X she gave no indication she had been exposed to denigration of the father by the mother;
·the mother’s unchallenged evidence at [185] of her affidavit filed on 12 April 2013 as follows:
It is my intention to ensure that the children continue to spend regular time with [the father]. I say that I have demonstrated my sincere commitment to ensuring that the children have a meaningful relationship with their father in the past and I will continue to do so including:
185.1Facilitating regular trips from Queensland to Newcastle from June 2010 onwards for [X] to spend time with [the father] and accommodating [X’]s time with [the father] in Queensland, notwithstanding that there were no orders in place requiring me to do so ;
185.2Taking both children shopping for a birthday present for their father and assisting [X] to wrap it and to make her father a special card from the children;
185.3Assisting [X] to send cards to the father which she has made at playgroup;
185.4Helping [X] to make a birthday movie to send to her father including singing Happy Birthday;
185.5Encouraging [X] to draw pictures to post or hand to her father;
185.6Placing photographs of the father and [B], [C], Nanna [Morrell] and Uncles and Aunts on both sides of the family in [X’s] room;
185.7Assisting [X] to make Christmas cards for each member of the paternal family;
185.8Facilitating daily Skype between [X] and her father;
185.9Encouraging [X] to call her father and let him know of exciting news in [X’s] life;
185.10Speaking positively at all times about the paternal family and encouraging my family to do so and ensuring that [X] and [Y] do not hear any negative remarks about their father
185.11As [Y] becomes more able I intend to encourage and assist him in having a meaningful relationship with his father as I have with [X]. [Y] says “Dad” and loves interacting through Skype to chat to Daddy and [B] and [C] and on 1 occasion to Nanna [Morrell].
·the evidence of the family consultant as to the good relationships between the children and the father; in particular, at [74] that “[X] shares a close and loving relationship with her father” and at [81] “[Y] was observed to settle well with the father” (Family Consultant’s Report dated 9 January 2013).
In other words, in relation to the evidence given by the family consultant, it was necessary for his Honour to consider how, if the mother had already undermined the children’s relationships with the father, it was that they had such good relationships with him. The point being, the children had always lived with her. She was their primary carer and yet their relationships with the father thrived. And the significance of the mother’s actions taken over a long time to promote contact between the children and the father. These were highly relevant considerations which required careful analysis and could not be ignored or overlooked, as occurred here.
These grounds are made out.

The father could establish a second home near to the mother – Grounds 6 & 7

The focus of grounds 6 and 7 is his Honour’s failure to consider the father’s evidence that the children should reside with the mother (ground 7) and his evidence about the arrangements he could make to have substantial and significant time with the children even if they continued to live in Queensland (ground 6).
As we have already mentioned, it is plain his Honour misunderstood the positions adopted by the parties, and his statement at [138] that the parties “…now find themselves in diametrically opposed positions whereby each party desires the children live with them” is wrong. No submissions were advanced in the appeal on behalf of the father to the contrary or contrary to the proposition that this was a significant mistake.
This mistake probably goes a long way to explain why it was that his Honour either overlooked or gave no weight to the father’s evidence about the arrangements he could make to regularly spend time with the children in Queensland. The father’s evidence from which he did not resile was:
239.In my Second Amended Initiating Application filed 26 March 2013, I have proposed the times that the children spend with me in the event that the court finds that it is in their best interest to reside with [the mother] at [Queensland]. My proposal includes time in each week, during school terms and school holidays. I am able to implement the time during school terms because I will not be working on Thursday afternoons or Fridays. I propose to rent premises in the [Suburb F] area as that will be less expensive than what I am currently paying for short stay accommodation at [Suburb M]. I will also then have separate bedrooms for the children, kitchen facilities and yard space in which to play. From my enquiries, three bedroom premises are available for rental in the [Suburb F] area from between $250.00 and $350.00 per week. Currently I am paying about $425.00 to stay at [Suburb M] for a weekend. Nevertheless, maintaining my relationship with the children if they were to live in Queensland will still involve considerable expense on my part.
(Father’s affidavit filed on 15 April 2013, p 40)
This was important evidence which required careful consideration by his Honour. Had his Honour given this evidence careful consideration, he may well have found that arrangements could be put in place which enabled the children to continue to reside with the mother in Queensland and have the benefit of substantial and significant time with the father (U and U (2002) 211 CLR 238).
His Honour’s failure to consider these matters are errors of law (Collu & Rinaldo [2010] FamCAFC 53).

Payment of a periodic amount – Ground 15

By Order 17 the father is required to pay “up to $300 per week” towards the rent which the mother pays in the Newcastle region and other expenses. The use of the words “up to” suggests that, for example, a regular payment of $1 per week would satisfy the order. Be that as it may, the challenge raised by ground 17 is to his Honour’s power to make that order. Certainly, his Honour’s reasons are entirely silent about the nature of the order, the reason for it or the power which he purported to exercise.
Counsel for the father postulated that it could only have been an order made pursuant to s 65D(1) of the Family Law Act 1975 (Cth) (“the Act”); that is a parenting order. The meaning of “parenting order” is defined in s 64B(2) of the Act. It is not immediately apparent how Order 17 fits within that definition and it might be that the order is in fact a spousal maintenance order. This issue was at best the subject of the briefest of submissions. Because the orders which require the children to live in the Newcastle area will be set aside and this order has no continuing utility, for that reason, it too will be set aside.

The remaining grounds of appeal

As to grounds 4, 5, 8, 9, 10, 11, 12, 13, 14, 16 and 17, we would ordinarily address each and every of an appellant’s grounds of appeal as a separate heading. However, it is not necessary we do so in this appeal.
It is sufficient to observe that ground 4 (weight) and what erroneously described as tendency evidence, and ground 11 (wrongly described landlord) could not succeed.
As to the asserted failure to follow the statutory pathway (ground 5), reliance was placed on his Honour’s interchangeable use of the word “practical” rather than “practicable” which, as we said earlier, is of no moment. Otherwise the ground challenges his Honour’s failure to consider whether the mother living in the Newcastle area would be reasonably practicable. Given that the lives that the mother said she could make for herself and the children in the Newcastle area, we discern no error as alleged (SCVG & KLD [2014] FamCAFC 42).
There is a continued theme of his Honour’s failure to consider significant facts (grounds 8, 9, 10), including the practical effect of the mother being required to establish a home for the children in the Newcastle area if she wished to continue their primary care.
Grounds 8 – 15 have been effectively dealt with in our earlier discussions.
In the case of grounds 16 and 17, these were so vague as to not constitute grounds of appeal. Given the findings we have already made, these grounds need not be further addressed.

Conclusion and costs

We conclude that the appeal should be allowed and his Honour’s orders should be set aside.
The effect of our order that this appeal be allowed and his Honour’s orders set aside is that interim orders made on 13 June 2013 will become the operative, interim, orders. As we explained in our reasons on the stay appeal, Blakely & Morrell (No. 2) [2014] FamCAFC 226, we understood that with X now at school, the parties would need to reconsider the interim parenting arrangements. Whether that might involve a further interim hearing, is a matter for them.
It was agreed that in the event the appeal was allowed, the matter should be remitted to the Federal Circuit Court for rehearing by a different judge. That order will be made.
We are not persuaded that there are circumstances here that justify an order for costs. However, the appeal has succeeded on a question of law and thus costs certificates for both the appeal and rehearing are warranted for both parties.

I certify that the preceding one hundred and twenty one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ryan & Benjamin JJ) delivered on 27 March 2015.

Associate:

Date: 27 March 2015