Bolitho & Cohen - [2005] FamCA 458

[2005] FamCA 458

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA 38 of 2005

File No. SYF 6446 of 1997

IN THE MATTER OF:

Appellant/Mother

- and -

Respondent/Father

REASONS FOR JUDGMENT

BEFORE:Bryant CJ, May, and Boland JJ
HEARD:5 May 2005

JUDGMENT: 8 June 2005

APPEAL SUMMARY

MATTER:KB and TC
APPEAL NUMBER: EA 38 of 2005 (SYF 6446 of 1997)
CORAM:Bryant CJ, May and Boland JJ
DATE OF HEARING: 5 May 2005

DATE OF JUDGMENT: 8 June 2005

CATCHWORDS:

APPEAL – children – relocation to Japan – whether change in children’s wishes constituted significant change of circumstances – weight to be given to children’s wishes – whether children’s wishes influenced by father – whether appropriate weight given to the children’s attachment to the mother – whether appropriate weight given to the likely effect of change of the children’s living arrangements and the disadvantages of living in Japan – whether sufficient weight given to the disadvantage of Japan not being a signatory to the Hague Convention on Child Abduction – whether the approach in A v A: Relocation Approach (2000) FLC 93-035 of setting out each relevant s 68F(2) factor, the relevant evidence and the submissions with particular attention to how each proposal has advantages and/or disadvantages for that factor must be strictly followed in light of U v U (2002) 211 CLR 238 at 260 – whether the benefit to be derived by a child from sibling relationships is a matter which could be subject of judicial notice – whether a ‘circuit breaker’ approach by making an interim order for allowing a one year relocation appropriate – evidence relating to the father’s credibility as a witness and non-disclosure of financial affairs – whether appropriate that the father pay interim child maintenance of $250 per week per child whilst the children were with the mother in Australia and spousal maintenance of $300 per week whilst children remain living with the mother in Australia prior to their departure to Japan

House v The King (1936) 55 CLR 499

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621

Gronow v Gronow (1979) 144 CLR 513

CDJ v VAJ (1998) FLC 92-828

Rice v Asplund (1979) FLC 90-725

King v Finneran (2001) FLC 93-079

Bennett and Bennett (1991) FLC 92-191

A v J (1995) FLC 92-619

R and R: Children’s Wishes (2000) FLC 93-000

H v W (1995) FLC 92-598

A v A: Relocation Approach (2000) FLC 93-035

B and B: Family Law Reform Act 1995 (1997) FLC 92-755

U v U (2002) 211 CLR 238

Hevi Lift (PNG) v Etherington [2005] NSWCA 42

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Rutherford and Rutherford (1991) FLC 92-255

Aarons v Knowles (1995) FLC 92-627

Gilmore and Gilmore (1993) FLC 92-353

Smith and Grey (1993) FLC 92-366

Emamy and Marino (1994) FLC 92-487

Reed CJ and Reed RD and Draper MJ (Intervener) (1995) FLC 92-649

Brott and Joachim (2001) FLC 93-071

DJM and JLM (1998) FLC 92-816

Appeal dismissed.

Introduction

This is an appeal by the mother against interim orders made by Rowlands J on 18 March 2005 that, until further order, the children [I] born in November 1991 and [J] born in November 1993 reside with the father in Japan, and that they reside with the mother in Australia for two school holidays periods each year as well as, at the mother’s election, up to ten days in Japan during a school vacation period. Subject to the granting of leave to appeal, the mother also appeals against orders that the father pay interim child maintenance of $250 per week per child whilst the children are with the mother in Australia, and limited spousal maintenance of $300 per week payable whilst the children remain living with the mother in Australia prior to their departure to Japan.
The mother raises three substantial areas in which she asserts the trial Judge is in error in respect of the parenting orders. The first area identified by the mother is the trial Judge’s finding that there had been a substantial or significant change of circumstance since the parties entered into final consent orders in 1999 which orders provided that I and J live with the mother, and have limited defined contact to the father by reason of his residence in Japan. Relevant to this contention is the mother’s submission that the trial Judge was in error in finding a change in the children’s wishes, of itself, was sufficient to constitute a substantial change. The second area of complaint is the assertion that the trial Judge failed to give appropriate weight to the children’s attachment to the mother, and erred in finding that the children had a “better” relationship with the father. The mother also asserts that the trial Judge gave insufficient weight to the likely effect of change of the children’s living arrangements, particularly the disadvantages for them associated with living in Japan.
It was submitted at the outset that the trial Judge did not deal with questions of credit and that the father gave false and misleading evidence. It was submitted that an assessment of the father’s credibility was essential to the issue that the father may not return the children to Australia, as Japan is not a Hague Convention country. However, counsel was not able to point to any evidence to support the wife’s contentions that the orders were “a one way ticket to Japan”.
The mother also asserts the trial Judge failed to deal appropriately with her applications for child and spousal maintenance including failing to address the issue of whether or not the father made a full, frank and complete disclosure of his financial affairs.

Relevant background

The father was born in June 1963. He is an Italian citizen, but resides permanently in Japan with his wife (“the new wife”) whom he married in May 2004. He is engaged in full time employment as a wine marketing consultant.
The mother was born in August 1959. She is an Australian citizen and at the date of the trial was living on the northern beaches of Sydney. She is an artist and also engaged in home duties and voluntary work.
The parties commenced cohabitation in Tokyo in 1987. They were married in Sydney in December 1988.
I was born in Australia in November 1991. J was born in November 1993, also in Australia. The children are Australian citizens and they have lived in Australia since 1994.
Between 1994 and 1997 the father commuted between Tokyo and Sydney, generally spending one weekend per month with the family in Sydney.
The parties separated in 1997. Following a joint application, a Decree Nisi of Dissolution of the Marriage was pronounced on 21 December 2000 which decree became absolute on 22 January 2001. Following separation the father continued residing in Japan and the mother resided with the children in Australia.
On 20 May 1999 the parties entered into orders, made by consent, which provided that I and J live with the mother and have contact with the father for 10 days each month. The consent orders also provided for payment of child maintenance by the father for both children. The parties also resolved issues relating to property settlement.
On 3 September 1999 the parties entered into further consent orders, which orders provided for the father to have contact with the children in Mauritius for three weeks in January 2000, and in France for 10 days during the following Easter school holidays. The orders further provided that the father pay the mother’s and children’s economy airfares for the purpose of the overseas contact, together with the sum of $100 per day to the mother whilst she was overseas. The mother was entitled to retain the children’s passports throughout the overseas holiday contact period.
On 25 October 2000 the mother filed an Application for Spousal Maintenance. On 15 February 2001 orders were made for the father to pay to the mother by way of spousal maintenance the sum of $300 per week with payments to be made each four weeks from or before 23 February 2001 until 27 July 2001.
In April 2003 the children travelled to Paris for a period of 10 days contact with the father. In July 2003 they travelled to Tokyo for a 12 day contact period. They had further overseas contact with the father in August 2003 when they travelled to Sicily and two further periods of contact in Tokyo, being nine days in September/October 2003 and 10 days in May 2004, to coincide with the father’s wedding.
On 19 November 2003 the father filed an application in which he sought orders that the children live with him in Japan. The father amended that application by way of an Amended Application for Final Orders on 28 September 2004. In that application the father proposed orders, inter alia, that the children live with him in Japan, and that they live with the mother in Australia during all school holidays of the school in Japan, except the last two weeks of that school’s long vacation, and the last 10 days during Christmas school holidays. He further sought orders that the mother have contact in Japan for any 10 day period and that he be responsible for the payment of the mother’s return economy airfare. The father further proposed that he pay the sum of $250 per week by way of child maintenance to the mother during periods the children were residing with her.
On 29 March 2004 the mother filed an Amended Response in which she sought orders that the father’s application be dismissed, and that the existing order for child maintenance be increased. On 29 September 2004 the mother filed an Amended Application in a Case for spouse maintenance.

The trial Judge’s judgment

The trial Judge set out relevant details of the parties’ background history and noted the father’s contention “that there has been a significant change in circumstances such as to warrant the Court setting aside the residence orders made on 20 May 1999”.
The trial Judge set out in broad terms each party’s competing proposals including the mother’s proposal that child maintenance be increased to $934 per week or $467 per week per child. He also noted that the mother sought an order for spousal maintenance in the sum of $4,500 per month until J attained the age of 18, together with a “one off lump sum of $31,500”.
The trial Judge then turned to the issue of whether or not there had been a change in circumstances since the making of the consent orders in 1999 which warranted the Court reconsidering parenting issues.
His Honour thereafter set out the relevant law to be applied in such a situation. We adopt as appropriate to this case the exposition of the law as set out by the trial Judge as follows:
“10.In the Full Court of the Family Court of Australia in Rice v Aspland (sic) (1979) FLC 90-725, Evatt CJ with whom Pawley SJ and Fogarty J agreed stated at 78,905 that:
“The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J, there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material…”
11.This decision has been affirmed in a number of cases and the general principle is that a fresh application for a parenting order should only be entertained where there is a significant or substantial change in circumstances. In D and Y (1995) FLC 92-581 at 81,764 the Full Court held that a trial judge has the discretion to determine whether there is a change in circumstances as a preliminary issue or to proceed to a full hearing.
12.More recently in King v Finneran (2001) FLC 93-079 Collier J held that amendments to the Family Law Act in 1995 requiring a full inquiry of the matters set out in s 68F do not disturb the discretion of the trial judge to make a threshold determination whether to proceed to a full hearing, stating at 88,367:
“41. The rule in Rice and Asplund is a rule evolved to protect children from involvement in further unnecessary litigation. To require a court to make a detailed determination of the matters set out in section 68F would defeat the purpose of that protection. It would mean that before the matter could be dealt with, a complete hearing, or …at least a hearing dealing with the section 68F factors, would have to be undertaken and completed.”
13.The decision of Collier J in King v Finneran also provides further insight into the nature of the change required to warrant consideration of a fresh application, at 88,368, his Honour said:
“50…The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.”
The trial Judge then addressed the question as to whether there had been a change of circumstances and noted although a period of five years had passed since the parenting orders were finalised that “[t]his factor standing by itself, does not, to my mind, provide a change of the nature contemplated by the Rice and Asplund (sic) doctrine”.
The trial Judge noted at the commencement of the hearing counsel for the mother submitted that the father had failed to satisfy the Court of a significant change in circumstance, and that the only significant change which had occurred was that the children wanted to live in Japan, and that this wish was “the result of the father’s indulgence of the children”.
The trial Judge concluded that the threshold test had been satisfied by reason of the wishes of the children, and the fact that they had demonstrated sufficient maturity to be involved in decisions in their lives.
The trial Judge discussed and analysed the children’s wishes in paragraphs 24-29 of his reasons for judgment and concluded:
“There is clear objective evidence from the independent expert as to the boys’ wishes (which are to go to Japan), their maturity and the consequences if they are thwarted in their desire.”
The trial Judge then discussed the children’s relationships with significant people in their lives noting that they had a close relationship with each parent. His Honour referred to the evidence given by the then Order 30A Expert. He noted her experience and expertise, and made a finding that he accepted her evidence, both as to the children’s wishes, and the nature of their relationships, particularly with each of the parties.
The trial Judge then went on to consider the change which would occur in the event the children were permitted to go to Japan. His Honour recorded that the children would be living with a new primary caregiver, in a new country with substantial cultural differences. Having recorded the father’s proposals, including the proposal that the children attend a school in Japan, and also the fact of the children’s current poor conduct and lack of academic progress, the trial Judge said:
“Nonetheless there is a respectable argument at this stage of their development for an environmental change, a ‘circuit breaker’, to challenge and encourage them to properly address their education and their life…Things are not quite right at the moment.”
The trial Judge then considered the advantages of each location for the children. The trial Judge referred to the view expressed by the then Order 30A Expert in her report of the major adjustment which would be involved for the children should they relocate to Tokyo.
The trial Judge also considered practical arrangements for contact and concluded at paragraph 50 of his reasons:
“While the situation (sic) by no means perfect the reality is that the circumstances in this family permit greater opportunities for regular contact than this (sic) usually available in international cases – whether that contact be in Sydney or Tokyo.”
The trial Judge also considered the parties’ respective capacities to provide for the needs of the children. Having recorded the father’s complaints about the mother and comments of the then Order 30A Expert, the trial Judge said the “evidence does suggest that the mother has not been a competent money manager and that she is less in touch with the views and needs of the children”.
In dealing with the attitude towards the children and to the responsibilities of parenthood demonstrated by each of the parents, the trial Judge accepted the evidence of the then Order 30A Expert, who opined that both parents had always been responsible and devoted to the children.
Having noted that, regardless of the orders made, there were likely to be further proceedings, the trial Judge concluded his reasons for judgment and said his primary reason for making orders that the children live with the father in Japan was:
“the wishes of mature boys (particularly [I] at 13, it being accepted that they should not be separated from each other), the mother’s difficulties with them and the advantages which can flow from new schooling and home environment for the boys who are not presently achieving or seeking to advance as they should”.
The trial Judge then noted his concern that the children might not adapt to the new environment, and recorded the concession made by the father that if the boys wished to return to Australia he would facilitate such a course. Whilst not suggesting it should become a common solution in “relocation cases”, the trial Judge decided that final orders should not be made, but that the matter should be subject of a further short hearing preferably in the first term in 2006.
The trial Judge then turned to the issue of the mother’s spousal maintenance application. The trial Judge accepted the father’s submission that the mother had chosen not to obtain paid employment and that she had expenditure habits well beyond her means. He found that the mother had “apparent temporary needs” and that the father had a “capacity which is not limitless”. The trial Judge found that the mother should receive spousal maintenance in the sum of $300 per week until the children left for Japan, together with $300 per week whilst they were exercising contact with her or she was travelling for contact.
The trial Judge finally considered child maintenance noting the mother was currently in receipt of $436 per week for both children together with other expenses. The trial Judge found by way of child maintenance that the father should pay $500 per week whilst the children were with the mother in Australia and during any period the mother resides with the children in Tokyo (up to ten days), as well as other travel and accommodation expenses.

Relevant law

The principles which govern this appeal in respect of the trial Judge’s parenting orders are not in doubt: see House v The King (1936) 55 CLR 499 at 504, Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627 and Gronow v Gronow (1979) 144 CLR 513 at 519.
In CDJ v VAJ (1998) FLC 92-828, Kirby J said at 85,465:
“186.A number of general propositions may be stated:
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another [Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345 cited in G v G (Minors: Custody Appeal) [1985] FLR 894 at 898, 903]. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong [House v R (1936) 55 CLR 499 at 504-505]. Obviously, what is ‘plainly wrong’ will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power [So called Wednesbury unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. See discussion in Re F (A Minor) (Wardship: Appeal) [1976] Fam 238 and in G v G (Minors: Custody Appeal) [1985] FLR 894 at 900]. The reference to ‘plainly wrong’ is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions [Lea and Lea (1981) FLC 91-115 at 76,877; (1981) 7 Fam LR 553 at 555-556; G v G (Minors: Custody Appeal) [1985] FLR 894 at 897-898]. This is an inescapable feature of the nature of this jurisdiction [In Re K (Infants) [1965] AC 201 at 218-219; Abdo and Abdo (1989) FLC 92-013; (1989) 12 Fam LR 861 at 870].”

Grounds of appeal

On 2 May 2005 the mother filed an Amended Notice of Grounds of Appeal. In his outline of submissions and orally, counsel for the mother argued grounds 1, 2 and 3 together and also argued grounds 5-8 together. We find it convenient to adopt the same approach in these reasons.

Ground 1

That the learned trial Judge erred in failing to give any adequate reasons for concluding that for reasons beyond the passage of time and fortune that the threshold test of a significant change in circumstances had occurred to warrant the Court setting aside final residence orders made on 20 May 1999.

Ground 2

Alternatively, the learned trial Judge erred in holding that the wishes of the children represent a change in circumstances which is significant enough to reconsider the parenting orders.

Ground 3

That the learned trial Judge erred in placing undue weight upon the childrens’ (sic) wishes in determining that they should reside with the father and he be permitted to relocate their residence in Japan.

(a) The parties’ submissions

In his written submissions, counsel for the mother asserts that in the circumstances the father “has not satisfied the Court that a significant change in circumstances has occurred.” He further submits:
“The only change in circumstance of a significant nature which has occurred is that the boys, and in particular [I], want to live in Japan. This is clearly of the father’s own doing. Learned Counsel for the Child Representative submitted that the boys have, ‘been bought by the father last year in particular when he showered upon them…[overseas holidays, glamorous lifestyle]’ and that they were swayed in their wishes thereby.”
Whilst not specifically addressing the issue of adequacy of reasons, in her written submissions counsel for the father sets out material relevant to the children’s wishes, including the expert opinion of the then Order 30A Expert who said:
“In my opinion they have sufficient maturity that their views should be taken into consideration.”
Counsel for the father further notes the then Order 30A Expert’s evidence, which is:
“They certainly would be most unhappy…”
“to prevent this move would create considerable difficulties and would only undermine the relationship between the boys and their mother.”
Counsel for the father further submits that the principles enunciated in Rice v Asplund do “not require that there be a ‘significant or substantial’ change in circumstances”.
She notes that the judgment refers to:
“some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material.”
In his written submissions, counsel for the Child Representative does not adopt a restrictive interpretation of the principles enunciated in Rice v Asplund and subsequent relevant decisions, and supports the submissions made on behalf of the father. Counsel for the Child Representative rather places emphasis on the best interests of the child. He submits:
“it may not be a particularly substantial change. What is important is for the Court, upon making a finding of such a change, to be thereafter satisfied that in accordance with the children’s best interest, such a change, however large or small that change is, justifies a new parenting order.”

(b) Discussion

(i) Rice v Asplund

In King v Finneran, a case decided after the Family Law Reform Act 1995 (Cth), Collier J, when discussing the nature of the change required to warrant further consideration of a fresh application at 88,368, said:
“The words in any event are not words of necessarily strict dictionary definition. In D and Y (1995) FLC ¶92-581 their Honours of the Full Court made a finding that a trial judge has a discretion whether to deal with a change of circumstances as a preliminary issue or to proceed to a full hearing. Their Honours indicated that in the circumstances that prevailed in that case, that is, a nine day hearing a little more than two years previously, that a judge would be extremely loath to reopen the issue of custody, except on strong grounds. The word strong (sic) in that case is a departure from substantial or significant as used in earlier cases. It indicates clearly what is required. The change or fresh circumstance must be such that upon becoming advised of it and being satisfied of its existence, a court would be left in no doubt that it was necessary to relitigate the parenting issue in dispute between the parties. That is not to say that a court must be satisfied that the fresh or changed circumstance would result in a change to the orders. It merely indicates that the change or fresh circumstance must be such that if taken into account there is a real likelihood that a change may follow.”
We agree with and adopt the principles espoused by Collier J in King v Finneran set out above.
The law in respect of adequacy of reasons is well settled. In Bennett and Bennett (1991) FLC 92-191, the Full Court considered that the test as to the adequacy of reasons propounded by Gray J in the passage appearing hereunder was a useful one and one which applies to discretionary judgments. The Court observed at 78,266:
“In Sun Alliance Insurance Ltd v Massoud (1989) VR8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principle judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reason upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
In A v J (1995) FLC 92-619 at 82,230-82,233, the Full Court comprehensively reviewed a number of decisions dealing with adequacy of reasons, specifically to discretionary judgments involving the welfare of a child and said at 82,232 where:
“competing proposals are evenly balanced, [it is] important to avoid an overly critical analysis of the reasons of the trial Judge. This is not to detract from the requirement to give adequate reasons. It simply means that there should be not a microscopic analysis of, for example, words used by a trial Judge, if, in all the circumstances, it is clear that the trial Judge has considered and evaluated all the relevant evidence, taken into account all relevant factors and, importantly, has considered the ultimate welfare of the child as the paramount consideration”.
We are satisfied that the trial Judge correctly and appropriately applied the relevant principles by his identification of the changes in circumstance at the time of the hearing before him. These changes included the children’s wishes at a time when they have, as found by the trial Judge, “demonstrated sufficient maturity to be involved in decisions that impact their lives”. Also relevant were the children’s relationship with the mother, and their poor school performance. Accordingly we find no error of principle or basis for the submission that it was inappropriate for the trial Judge to reconsider the parenting orders, or that he failed to give sufficient reasons for his decision to do so.
(ii) Weight to be afforded to children’s wishes
We turn then to the issue of the treatment of the children’s wishes in his Honour’s consideration of the parenting orders sought at trial.
In dealing with the wishes of the children the thrust of the submissions made by counsel for the mother is to the effect that the trial Judge failed to undertake the task referred to in R and R: Children’s Wishes (2000) FLC 93-000 at 87,072 where Nicholson CJ, Finn and Guest JJ said:
“Ultimately it is a process of intuitive synthesis on the part of any trial Judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.”
Counsel for the mother further submits that if change in children’s wishes were the only:
“significant change in circumstances that…there could potentially be a flood of litigation by non-residential parents claiming a change in their child’s wish to reside with that parent to justify a fresh residence application”.
We have already dealt with the latter submission in our consideration of whether it was appropriate for the trial Judge to reconsider the parenting orders. Suffice it to say we do not accept that submission as apposite to the facts in this case, nor do we envisage the principles referred to by us in paragraph 43, properly applied, will lead to a “flood of litigation”.
The trial Judge had the benefit of a comprehensive report by the then Order 30A Expert who had interviewed the children. We are satisfied that the trial Judge in his consideration of whether or not the children’s wishes were “soundly based” and “founded upon proper considerations”, correctly applied relevant principles.
In H v W (1995) FLC 92-598 Fogarty and Kay JJ said:
“The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children. There can be little doubt that there has been a perceptible change in the approach to the wishes and feelings of children not merely in custody cases in this Court but across the wider spectrum of society generally.”
The judgment discloses that the trial Judge carefully recorded and weighed assertions of each party about the wishes expressed by I and J, and took into account the submission made by counsel for the Child Representative at the trial that the children had, by reason of the father’s actions in providing, amongst other things, several overseas trips in the preceding year, “bought” or influenced the children with overseas travel and gifts.
Notwithstanding the comments of the Child Representative, we observe that the father lives in Japan and contact with him by the children inevitably involved overseas travel. While holidays were taken in places other than Japan, it may be unfair to treat the father’s provision of overseas trips in this case as “buying” or influencing the children, especially if it was intended to infer some comparison with other families against whom the provision of such trips might be measured. Given the fact that any travel to visit their father would include overseas travel we would expect something more concrete than counsel for the Child Representative’s mere assertions at trial that the children were bought or influenced. In his conclusions at paragraph 74 of his reasons for judgment his Honour noted that the primary, but not sole reason, he had, in the exercise of his discretion, formed the view that it was in the best interests of I and J for them to go to Tokyo and live with their father, was the mature wishes of the children.
We are satisfied the trial Judge carefully weighed all the submissions about the children’s wishes including those of counsel for the Child Representative. His Honour clearly noted that J’s wishes were equivocal and the concerns of the Child Representative who, notwithstanding these concerns, supported the father’s application. Having regard to the expert evidence before the trial Judge about the children’s wishes, the age of the children and their maturity, we are not satisfied that the trial Judge gave undue weight, in the circumstances of this case, to the children’s wishes.

Ground 4

That the learned trial Judge erred in finding insufficient weight to the mother/child attachment in finding that the children have a “better” relationship with the father.

In his written submissions counsel for the mother sets out the findings of the trial Judge at paragraph 33 where he records an extract from the then Order 30A Expert’s report as follows:
“The children have a strong attachment to both parents. They have a more relaxed and easygoing relationship with their father.”
On behalf of the mother, counsel for the mother asserts that the trial Judge’s summation of the then Order 30A Expert’s evidence in paragraph 33 of the reasons for judgment where his Honour says the then Order 30A Expert “is of the opinion that the children have a better relationship with the father’” is incorrect. He submits:
“That is not what [the then Order 30A Expert] said at all. ‘Better’ does not equate to ‘more relaxed and easygoing’. They are simply descriptions of two strong attachments and it is submitted that his Honour misinterpreted ‘more relaxed and easygoing’ as meaning superior or ‘better’.”
Counsel for the father submits that the trial Judge’s finding that the children have a better relationship with their father than their mother was a finding open to the trial Judge in the exercise of his discretion. Counsel for the father notes that the trial Judge placed considerable weight on the then Order 30A Expert’s opinion as evidenced in his finding:
“The most objective evidentiary material before the Court concerning wishes and relations is that of the independent expert, the well qualified and experienced psychologist…I accept her evidence in relation to these vital matters which are of great importance in the determination of this case.”
Counsel for the father notes that in her cross examination the then Order 30A Expert said both of the children “had a better quality of relatedness” with their father compared to the mother. The then Order 30A Expert also gave evidence that the mother was not “particularly tuned into” the children and that the father was “more tuned into them”.
We are satisfied, taking into account the then Order 30A Expert’s evidence set out above, that the trial Judge did not misconstrue her evidence and that his Honour’s assessment of the children’s relationships with each of the parties was open to him on the evidence. Accordingly we find no merit in Ground 4.

Ground 5

That the learned trial Judge erred in placing insufficient weight to the very significant change in the children’s circumstances by changing their residence and domicile.

Ground 6

That the learned trial Judge erred in placing insufficient weight to the disadvantages associated with relocation, being:

a.Japan is a non-signatory to the Hague Convention;
b.The fact that the children do not speak Japanese;
c.They will live in a largely expatriate community;
d.They will change schools;
e.Loose (sic) friends;
f.Live an entirely different lifestyle from the Northern Beaches of Sydney to an apartment in Tokyo;
g.The father is planning a large family with his new wife.
Ground 7

That the learned trial Judge erred in placing undue weight upon what his Honour described as a “circuit breaker” approach to the childrens’ (sic) future living arrangements.

Ground 8

That the learned trial Judge erred in placing insufficient weight to the fact that the father will regularly be absent from Japan on business and that his young wife would be the primary carer of the boys in his absence.

(a) The mother’s submissions

Counsel for the mother submits that the trial Judge erred in placing insufficient weight on the “very significant change” to the children’s circumstances that would result from changing their residence and domicile. He further submits that the trial Judge failed to place sufficient weight on the disadvantages associated with the relocation, these disadvantages being:
·the fact that Japan is not a signatory to the Hague Convention;
·the children’s inability to speak Japanese;
·that the children will live in a largely expatriate community;
·that the children will change schools;
·that the children will lose friends;
·that the children will live an entirely different lifestyle from the Northern Beaches of Sydney to an apartment in Tokyo; and
·the father is planning a large family with the new wife.
It is further submitted that the trial Judge erred in placing undue weight upon the move acting as a “circuit breaker” to the children’s future living arrangements.
It is finally submitted the trial Judge erred by placing insufficient weight on the fact the father will be regularly absent from Japan on business and that the new wife will be the primary caregiver of I and J in his absence.
In summary, it is submitted on the mother’s behalf, that the trial Judge failed to follow the full directions of the Full Court in A v A: Relocation Approach (2000) FLC 93-035 by failing to consider “each relevant s 68F(2) factor, to set out the relevant evidence and the submissions with particular attention to how each proposal ids (sic) said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s 60B.”.

(b) Discussion

Before commencing our discussion of grounds 5 to 8 it is appropriate to examine the submission that his Honour failed to follow the direction of the Full Court in A v A.
At paragraph 82 in A v A the Full Court said:
“Taking these matters together we would suggest that the following practical steps should be followed by a court:
·   In determining a parenting case that involves a proposal to relocate the residence of a child it is to be expected that reasons for decision will display three stages of analysis and will:
1. identify the relevant competing proposals;
2. for each relevant s 68F(2) factor, set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s 60B;
3. on the basis of the prior steps of analysis, determine and explain why one of the proposals is to be preferred, having regard to the principle that the child's best interests are the paramount but not sole consideration.”
In further expansion of the “second step” in a parenting case where one party wishes to relocate, the Full Court referred to the principles set out in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at paragraphs 9.61-9.69. These paragraphs, other than paragraph 9.63, which correlate with s 68F(2), were referred by the Full Court as relevant matters to be considered by a trial Judge “when faced with a relocation proposal”.
In U v U (2002) 211 CLR 238 at 260 Gummow and Callinan JJ said:
“We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child's best interests.”
In U v U the High Court reaffirmed that the “overarching issue” (at 260) is to ensure any parenting order is in the best interests of the particular child. We accept that whilst in some cases each s 68F(2) factor may be relevant in determining what is in the best interests of a child, in other cases a more limited examination of s 68F(2) factors may be appropriate as being the only relevant (our emphasis) factors to the particular issue to be determined.
We discern that the decision in U v U has ameliorated the somewhat rigid and/or formulaic suggested approach set out in A v A. In U v U the High Court said that the proper approach to be adopted in a relocation case is a weighing of competing proposals, having regard to relevant s 68F(2) factors, and consideration of other relevant factors, including the right of freedom of movement of the parent who wishes to relocate, bearing in mind that ultimately the decision must be one which is in the best interests of the child.

In the circumstances of this case we are satisfied that the trial Judge was acutely conscious of the likely effect on the children of the proposed relocation. His Honour found the relocation involved “a substantial change” in the children’s living environment including a new primary caregiver, a new country with substantial cultural differences, separation from family members and friends, and the father’s absence for work related reasons. The trial Judge, as he was required to do, balanced those factors against the following matters:
·the children would remain close to their mother with regular and significant physical contact and capacity to communicate with her;
·the children already had familiarity with Tokyo;
·the children had a strong and comfortable bond with the father and the new wife;
·the children were currently experiencing a disrupted routine;
·the school in Japan offered the children academic opportunities;
·that each location had particular advantages and comforts for them; and
·the children could enjoy extra curricular activities in either Japan or Australia.
We are satisfied that the trial Judge considered and weighed each of the matters raised by each of the parties as likely to have either a positive or negative effect on the children if they relocated to Japan. His Honour’s ultimate finding, that it was in the best interests of the children to live with the father in Japan, was one within the reasonable ambit of his discretion having regard to the evidence in this case.
Counsel for the mother submits on behalf of the mother that the trial Judge did not give sufficient weight to the disadvantage of Japan not being a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”). Counsel for the father submits the fact Japan is not a party to the Convention “is not a bar to relocation but the risk of abduction or non return is merely one of the factors which must be taken into account…”.
Before us counsel for the mother conceded that the mother did not in her Amended Response, or Outline of Case Document, seek in the event that the children were permitted to live with the father in Japan, any sum by way of security. The mother raised the issue of security for the first time in the written submissions filed on her behalf at the conclusion of the trial. The mother proposed that the father lodge a $100,000 bond to secure the return of the children, such sum to be placed in the mother’s solicitors’ trust account.
The trial Judge dealt with the issue of Japan being a non-signatory to the Convention, albeit briefly, and made the following finding at paragraph 47 of his reasons for judgment:
“I cannot conclude that the father will keep the children from the mother on the material before the Court”.
There is no dispute that I and J from December 2002 had the benefit of six overseas trips and that Court orders requiring payment for a bond only came into effect after the father filed his application in these proceedings, although the parties did have, on prior occasions, an informal bond procedure. The evidence before the trial Judge was that the father had always returned the children to Australia.
We are satisfied that the trial Judge’s finding that the father would not keep the children from the mother was open to him on the evidence. This finding negates, or at least minimises, the disadvantages flowing from the fact that Japan is not a signatory to the Convention.
On behalf of the mother it is submitted that the order made by the trial Judge to permit the children to relocate to Japan for approximately one year was “an inappropriate approach and not one known to the law”.
It is apparent from the trial Judge’s reasons at paragraph 79 that the trial Judge was making an unusual order. He noted, in our view appropriately, “[i]t is not suggested that this will be a common solution in ‘relocation’ cases”.
At the conclusion of the trial both the father and the Child Representative sought orders that the children live with the father in Japan on a permanent basis. However, before us, the Child Representative supported the orders made by the trial Judge on the basis that those orders, in the circumstances of this unusual case, reflected orders which were in the best interests of the children. The trial Judge raised with the parties during the course of the Child Representative’s oral submissions the proposition that he may make an interim order. The appropriateness of such an order was clearly canvassed by the then Order 30A Expert in her report where she noted:
“[the mother] would be greatly distressed if the court were to recommend relocation. This will have a serious impact on her and because of this the boys will also feel badly for her. As an alternative and perhaps halfway move, it might be possible for the boys to start school in Tokyo at the beginning of that school year in September and then return to visit their mother at Christmas. This would provide [the mother] with the opportunity to see that the boys are progressing well and that they are free to return to Australia and also free to inform her if they do not wish to return to Japan. Should that be the case they would have had minimal disruption to their schooling here and an adequate period of time to thoroughly absorb the realities of life in Tokyo and living with their father and stepmother.”
In U v U at paragraph 70 Gummow and Callinan JJ, when dealing with the appellant’s argument that the trial Judge had failed “to focus on, analyse and reach a conclusion on the separate proposals of the respondent and the appellant...”, said:
“There is, in our opinion, an air of artificiality about the appellant’s argument on the first ground. No doubt there will be cases, perhaps many cases, in which a court can and should adopt, with few changes or additions, the arrangements proposed by one of the parties for the future of the child or children whose welfare is paramount, in preference to the other.
…
There will, however also be cases, and not a few of them we suspect, in which it will simply not be possible for a judge to adopt exclusively or perhaps even substantially, a proposal of either party. In such a case the final order will evolve out of the evidence as it emerges, and submissions as they are developed.”
Hayne J at paragraphs 171 and 172, also dealt with the requirement, in some cases, for a trial Judge to look beyond the proposals of the parties, in his or her fundamental task of ensuring the parenting orders made are in the best interests of a child. He said:
“171. In these circumstances, it would be quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular ‘proposals’ that the parents may make for the residence of, and contact with, the child. So to confine the inquiry would, in this case, have required the Family Court to ignore admittedly relevant evidence that was led about what the mother would do if it were decided that the child should live in Australia rather than India. More fundamentally, it would confine the Court’s inquiry to what the parents suggested would be in the best interests of the child, regardless of whether those suggestions were informed, even wholly dictated, by the selfish interests of one or other of the parents. To confine the inquiry in this way would, therefore, disobey the fundamental requirement of the Act that the Court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact.
172. That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law. (I do not stay to consider how or to what extent that adversarial model has been modified by the Act or rules of court made under it.)”
The requirement to look beyond the proposals of the parties highlights the fundamental difference in litigation involving the welfare of a child, and ordinary inter partes litigation. This unique requirement may necessitate a trial Judge crafting orders which are outside the proposals presented by either party, subject to the caveats expressed by Hayne J set out above. This task requires a trial Judge to afford the parties procedural fairness by indicating and inviting comment on changes to the parties’ own proposals, for example, by way of additional or different contact to that proposed by the relocating party, or a limitation to a period of restraint in removing a child from its present geographical location.
It is submitted on behalf of the mother that the trial Judge’s finding that “[n]ew siblings are likely to be a bonus rather than a deficit for the boys” was made without expert evidence. It is submitted that this finding “must have been an exercise of judicial notice which his Honour was not entitled to take”.
We accept that the benefit to be derived by a child from sibling relationships is not a matter which could be subject of judicial notice within s 144 of the Evidence Act 1995 (Cth), see also Hevi Lift (PNG) v Etherington [2005] NSWCA 42. The mother raised the issue of the capacity of the new wife to care for I and J and she was cross-examined about her intention or proposals about having children. The raising of this issue by the mother no doubt lead to his Honour’s finding. We are not satisfied that this finding by the trial Judge was of itself a significant factor in the actual circumstances of this case or that it in any way vitiates his Honour’s overall findings.
In his oral submissions before us counsel for the mother submitted that the trial Judge had failed to deal with the likely effect on the mother of her being severely distressed and anxious as a disadvantage to the children. The then Order 30A Expert in her cross examination conceded that in the event the children were permitted to relocate it would be difficult for the mother. She also opined “I’m sure she’ll be extremely distressed”. When asked to comment as to the impact that might have on the children the then Order 30A Expert opined “I think this going to have a major effect on the children whatever way it goes”.
When asked to comment on a proposal that the children go for some months and the matter then come back before the trial Judge, and whether the effect of such arrangements would be traumatic for the mother the then Order 30A Expert opined “I thought that perhaps was a way of finding some kind of compromise between the two” . Later in her cross examination by counsel for the mother the following exchange occurred:
“[Counsel for the mother]:
…
And what I’m suggesting is it would be similarly traumatic for her even if they went for a period of a month?---Well, they have been away before for a period of weeks, I don’t know that that would be incomparable if there was a short term stay.”
The trial Judge had before him the then Order 30A Expert’s detailed assessment of the mother’s capacity to provide for the emotional and financial needs of the children. The trial Judge accepted the then Order 30A Expert’s evidence that the mother had “some serious psychological limitations” which included a “very dichotomised view of the world”. At paragraph 56 of his reasons for judgment his Honour noted this aspect of the then Order 30A Expert’s evidence and concluded “[t]he evidence does suggest that the mother has not been a competent money manager and that she is less in touch with the views and needs of the children”. The trial Judge had to weigh all relevant factors, including each party’s capacity to effectively parent the children.
The trial Judge took into account the then Order 30A Expert’s evidence about an interim arrangement being an appropriate compromise to allay the mother’s emotional distress. We find no error in his Honour’s approach in the unusual circumstances of the case. We are satisfied that Grounds 5 to 8 disclose no appellable error.

Ground 9

That the learned trial Judge erred in failing to consider the evidence relating to the father’s credibility as a witness and questions of non-disclosure of financial affairs.

It is submitted on behalf of the mother that the trial Judge “ignored the very significant evidence in relation to the father’s credit particularly in relation to full and frank financial disclosure”. Before us counsel for the mother submitted that the mother was entitled to have findings made by the trial Judge in respect of this issue. Counsel for the mother relied particularly on two examples of alleged non or false disclosure, being the father’s evidence about driving a motor vehicle in Japan and his expenditure on food.
Counsel for the father notes that the trial Judge did not make any credit findings in relation to either party. She further submits that “[f]or every credit point on which the father could be attacked, there was evidence before his Honour of similar or greater deficiencies in the mother’s evidence” and cites as an example a loan application completed by the mother.
Notwithstanding the matters identified by counsel for the mother, we reject the proposition asserted by counsel for the mother that there was an obligation on the trial Judge to make a general credit finding adverse to the father in the circumstances of this case, and in any event accept that the submission made by counsel for the father is soundly based on the evidence before the trial Judge. Accordingly, we find no merit in Ground 9, nor are we convinced counsel for the mother’s submission that a credit finding against the father on the specific issues raised would translate into a general credit finding relevant to the issues upon which the trial Judge was required to adjudicate.

Ground 10

That the learned trial Judge erred in ordering limited interim maintenance for the mother and children and failed to apply the proper principles.

On 2 May 2005 the mother filed an Application in a Case to seek permission to appeal the interim orders made by the trial Judge for spousal maintenance and child maintenance. In the event leave is granted the mother seeks to rely on Ground 10.
Section 94AA of the Family Law Act 1975 (Cth) (“the Act”) provides:
“Leave to appeal needed in some cases
(1)An appeal does not lie to a Full Court of the Family Court from a prescribed decree of a court other than the Federal Magistrates Court, except by leave of a Full Court of that Court.
(2)An application for leave under subsection (1) is to be determined by a Full Court of the Family Court.
(2A)An appeal does not lie to the Family Court from a prescribed decree of the Federal Magistrates Court, except by leave of the Family Court.
(2B)An application for leave under subsection (2A) is to be determined by a single Judge or by a Full Court.
(2C)The single Judge referred to in subsection (2B) need not be a member of the Appeal Division.
(3)The standard Rules of Court may make provision for enabling applications for leave to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing.”
Regulation 15A of the Family Law Regulations 1984 provides:
“Leave to appeal - prescribed decrees (Act s 94AA)
(1) For subsection 94AA(1) of the Act, a decree of the kind mentioned in subsection 94(1) of the Act that is an interlocutory decree (other than a decree in relation to a child welfare matter) is prescribed.
(2) For subsection 94AA(2A) of the Act, a decree of the kind mentioned in paragraph 94AAA(1)(a) of the Act that is an interlocutory decree (other than a decree in relation to a child welfare matter) is prescribed.
(3) In this regulation:
“child welfare matter” means a matter relating to:
(a) the person or persons with whom a child is to live; or
(b) contact between a child and another person or persons; or
(c) any other aspect of parental responsibility, within the meaning of Part VII of the Act, for a child.”
The principles governing an application for leave under s 94AA(1) of the Act are well known. In order to succeed in such an application the applicant must satisfy this Court that there has been an error of principle by the trial Judge and/or that the orders made caused a substantial injustice to the applicant: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Rutherford and Rutherford (1991) FLC 92-255. Leave may also be granted in cases where the applicant demonstrates that the case raises issues of general importance: Aarons v Knowles (1995) FLC 92-627.
There has been some debate about whether the twin criteria of error of principle and substantial injustice should be applied disjunctively or conjunctively. The Full Court in Rutherford restated with approval, the statement of the majority (Gibbs CJ, Aickin, Wilson and Brennan JJ at 177) in Adam P Brown at 78,715:
“As counsel for the father rightly remarked there is not as yet any reported authority on the principles to be applied in granting leave under section 94AA(1). However, there are a number of authorities dealing with equivalent provisions in relation to the Federal Court of Australia and the Supreme Courts of the States. In our view, [counsel] rightly invited us to seek guidance in the remarks of the High Court in Adam P Brown Male Fashions Pty. Ltd. v. Philip Morris Inc. (1981) 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ as follows:-
‘An interlocutory order for an injunction is a matter of practice and procedure: see McHarg v Universal Stock Exchange Ltd (1895) 2 QB 81 at 82; Minister for Army v Parbury Henty and Co Pty Ltd (1945) 70 CLR 459 at 489; White v White (1947) VLR 434 at 438.
Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd. [[1978] VR 431 at 440]; on the other hand, De Mestre v. A.D. Hunter Pty. Ltd. [(1952) 77 WN (NSW) 143 at 146]. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F.B. Gilbert (dec.) [(1946) 46 SR (NSW) 318 at 323]:
‘…I am of the opinion that,…there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.’
See also Brambles Holdings Ltd. v. Trade Practices Commission [(1979) 28 ALR 191 at 193]; Dougherty v. Chandler [(1946) 46 SR (NSW) 370 at 374]. It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.”

This approach has continued to be affirmed by the Full Court in subsequent cases (see Gilmore and Gilmore (1993) FLC 92-353; Smith and Grey (1993) FLC 92-366; Emamy and Marino (1994) FLC 92-487; Reed CJ and Reed RD and Draper MJ (Intervener) (1995) FLC 92-649; Brott and Joachim (2001) FLC 93-071).

Interim spousal maintenance orders

The criticisms by the mother of the trial Judge’s approach to the interim spousal and child maintenance orders is there “was no analysis of the income of the father, his needs and the needs of the mother. Nor was there any analysis of the needs of the children in the mother’s care”.
On behalf of the father, counsel for the father notes that the trial Judge found the mother had failed to establish a need for spousal maintenance. She submits “that in these circumstances the trial judge (sic) was under no legal obligation to make an order for even interim spousal or child maintenance but the father has chosen not to cross appeal”.
In his reasons for judgment at paragraph 84 the trial Judge noted the mother asserted a need for spousal maintenance on three bases:
·        her care and control of the children;
·        her lack of capacity for gainful employment; and
·        her need to complete current artwork projects before they could be marketed.
The father put in issue the mother’s need for spousal maintenance noting her concession in cross-examination that she had an anticipated income of $90,000, that she had chosen not to obtain paid employment, and that she demonstrated expenditure habits beyond her means. The trial Judge made findings that he accepted the thrust of the father’s arguments.
The power to make an order for spousal maintenance is found in s 74 of the Act. An applicant for spousal maintenance must satisfy the threshold test in s 72 which provides as follows:
“A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).”
In DJM and JLM (1998) FLC 92-816 at paragraph 17.21 the Full Court dealt with unexercised capacity to earn as follows:
“How one treats the question of voluntary unemployment or under employment is, however, fraught with difficulty. The Full Court in Scott’s case [Scott and Scott (1994) FLC 92-457]…said that earning capacity was a question of fact. The extent to which a person is reasonably able to support another is, in our view, a mixed question of fact and discretion. But it is a question peculiarly suitable for a trial Judge and thus susceptible to attack by an appellate Court only if the answer is clearly wrong or reached by the application of wrong principles or is against the weight of the evidence. The inferences to be drawn from findings of fact may be revisited by an appeal court, but the findings of fact themselves are within the province of the trial Judge and will not be lightly disturbed. (See Warren v Coombes & Anor (1979) 23 ALR 405; 53 ALJR 293.)”
We accept that, on the evidence before the trial Judge, the mother did not satisfy the requirements of s 72. The trial Judge also found that the father’s capacity was not limitless. Notwithstanding these findings the trial Judge found it appropriate to make an order for limited interim spousal maintenance. The father does not challenge that decision. As we are satisfied there was evidence before the trial Judge, which he accepted, and which is not the subject of challenge, that the mother had chosen not to obtain paid employment, we consider that the mother’s appeal in respect of spousal maintenance could not succeed. Accordingly we reject the mother’s application for leave to appeal his Honour’s interim spousal maintenance order.

Child maintenance order

In dealing with the mother’s application for an increase in child maintenance the trial Judge dealt with such application in an abbreviated manner on the basis that the children would reside shortly thereafter with the father in Japan who would have responsibility for their day to day financial expenditure, private school fees at the school in Japan and significant costs in respect of their travelling arrangements to maintain contact with the mother both in Australia and Japan. He increased the amount payable by the father from $436 per week to $500 per week. We note that the Lee table as at November 2004 shows total expenditure for one child aged 11-13 to be $317.05 per week and the Lovering table as at December 2004 discloses a weekly sum of $106.86 for an 11 year old and $160.66 for a teenager in a middle income family (Riethmuller G T, Wade J H and the CCH Family Law Editors, Australian Family Law Child Support Handbook (Sydney: CCH Australia Ltd, update 36-5-05) at 45,352-45,353). We accept the parties each have a responsibility to contribute to their children’s reasonable needs (see ss 66B and 66C of the Act). Having regard to the trial Judge’s findings about the type of expenditure to be incurred by the father, and having regard to the tables set out above, we are not satisfied that the trial Judge erred in making the interim order in the quantum ordered.
In these circumstances we are not satisfied that the appeal grounds are made out and accordingly we reject the mother’s application for leave to appeal the interim child maintenance orders.

The form of orders

At the conclusion of the hearing before us we sought submissions from the parties and the Child Representative as to appropriate orders to be made in the event that we dismissed the mother’s appeal.
The mother submitted, on the basis that we would publish our reasons for judgment during the first week of June, that there be no change to Order 7 of the Orders made by the trial Judge. The practical effect of the mother’s proposal is that the children would remain in Sydney with her until two weeks before the conclusion of the Japanese summer holidays on 23 August 2005.
The father submitted that the orders should be varied to provide for the children to leave immediately to reside with him in Japan and that they attend a summer school preparatory to their enrolment in the school in Japan between 10-24 June 2005 inclusive, that they thereafter return to Australia, and remain with the mother until two weeks prior to the resumption of school on 23 August 2005.
The Child Representative submitted that the orders only required “fine tuning”. Both the mother’s counsel and counsel for the Child Representative submitted there was no evidence before the Court about the summer school.
When taken out the orders by the trial Judge provided that the children should travel to Tokyo no later than 8 April 2005. The orders provided that the children should return to Australia for the long Japanese summer holiday in June, July, August returning to Tokyo approximately two weeks prior to the commencement of the next term.
All parties agree that the children should, in the event the appeal is dismissed, travel to Japan by 9 August 2005.
Whilst we are cognisant there is no evidence before us about the summer school which the father proposes the children should attend, the effect of the mother’s appeal and the stay granted by Rowlands J has delayed the children’s departure to Japan and time spent in the father’s household.
In these circumstances we believe it is appropriate that as soon as practicable after the delivery of our reasons for judgment that the children should travel to Japan and return to Australia on 26 June 2005 and remain with the mother in Australia until 8 August 2005.

Costs

At the conclusion of the appeal we sought submissions from the parties in relation to costs.
Counsel for the father said in the event that the mother was not successful she was instructed not to seek costs.
The submissions made on behalf of the Child Representative were that in the event the mother was unsuccessful she should pay the costs of the Child Representative. The Child Representative did not seek costs in a specific sum or provide an assessment of costs.
In these circumstances we propose to provide a timetable for submissions in relation to the Child Representative’s costs.

Orders

That the appeal filed by the mother on 7 April 2005 as amended by Amended Notice of Appeal filed 2 May 2005 is dismissed.
That the mother’s Application in a Case seeking permission to appeal orders 15 and 29 of the orders of Rowlands J of 18 March 2005 is dismissed.
That order 1 of the orders of Rowlands J on 7 April 2005 which provides as follows:
“That the Orders made by me on 18 March 2005 be stayed until further order or other disposal of the proceedings”
is discharged.
That the orders of Rowlands J on 18 March 2005 be varied as follows:
A.by the deletion of the date Friday 8 April 2005 in order 5 and the insertion in lieu of 10 June 2005.
B. by the addition of the following order:
7.3 For the 2005 St Mary’s long summer vacation the children shall reside with the mother in Australia from 26 June 2005 to 8 August 2005.
That the parties file written submissions with regard to the costs of the Child Representative in accordance with the following timetable:
(a)on behalf of the Child Representative within twenty-one days of the date hereof; and
(b)on behalf of the appellant mother and respondent father in response thereto within twenty-one days thereafter.

I certify that the preceding 121 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.

Associate