Bonhomme & Bonhomme
[2025] FedCFamC1A 75
•2 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
APPELLATE JURISDICTION
Bonhomme & Bonhomme [2025] FedCFamC1A 75
Appeal from: Bonhomme & Bonhomme [2024] FedCFamC1F 854 Appeal number: NAA 371 of 2024 File number: SYC 6833 of 2023 Judgment of: MCCLELLAND DCJ, CAREW & CARTER JJ Date of judgment: 2 May 2025 Catchwords: FAMILY LAW – APPEAL – Where the principles applicable in an appeal against a discretionary decision are well settled – Where the appellant must establish some error in the decision-making process – Where the appellant contends the primary judge failed to take into account relevant facts or took into account irrelevant facts – Where the appellant contends the primary judge’s reasons were inadequate – Where the appellant contends the decision was plainly wrong – Where there is no merit to the grounds of appeal – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VII, s 60CC Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (No 3) (2000) 201 CLR 488; [2000] HCA 48
Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230
Pickford & Pickford [2024] FedCFamC1A 249
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Number of paragraphs: 97 Date of hearing: 3 April 2025 Place: Heard in Sydney, delivered in Brisbane Counsel for the Appellant: Ms Tabbernor Solicitor for the Appellant: Reid Family Lawyers Counsel for the Respondent: Ms Gillies SC Solicitor for the Respondent: Dorter Family Lawyers ORDER
NAA 371 of 2024
SYC 6833 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN: MS BONHOMME
Appellant
AND: MR BONHOMME
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, CAREW & CARTER JJ
DATE OF ORDER:
2 MAY 2025
THE COURT ORDERS THAT:
1.The appellant’s application to adduce further evidence is dismissed.
2.The appeal is dismissed.
3.The appellant is to pay the respondent’s costs fixed in the sum of $12,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bonhomme & Bonhomme has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, CAREW & CARTER JJ:
1 This is an appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 1) made on 12 December 2024.[1] The judgment of the primary judge dismissed an Application for Review of an interim parenting and interim property order made by a registrar on 24 October 2024. The appeal relating to the interim property order is no longer pressed.
[1] The issued order incorrectly records the name of the court as the Federal Circuit and Family Court of Australia (Division 2).
2 The gravamen of the appeal contends that the primary judge failed to give paramountcy to the best interests of the children.
3 Relevantly, the Review hearing, which was a hearing de novo, ultimately concerned two matters only:
(a)where the children were to attend school/daycare (although couched in terms of the mother having sole parental responsibility for decisions relating to education); and
(b)where changeovers were to occur at the commencement and conclusion of the father’s time with the children when not occurring at school/daycare.
4 The effect of the order dismissing the Review resulted in the continuation, on an interim basis, of the children travelling to and from school/daycare for about an hour or up to an hour and 40 minutes each way from the appellant mother’s recently changed residence, and for changeovers, other than from school, occurring at a train station proximate to the children’s school/daycare.
5 For reasons that will be explained, the appeal will be dismissed, and the appellant will pay the respondent’s costs fixed in the sum of $12,000.
RELEVANT BACKGROUND
6 The appellant and respondent were a married couple who separated under one roof in August 2023 and physically separated in September 2023. To assist with the anonymisation of these reasons, the appellant will be referred to as “the mother” and the respondent will be referred to as “the father”. No disrespect is thereby intended.
7 The mother, Ms Bonhomme, was born in 1989, and the father, Mr Bonhomme, was born in 1979. The mother works full time as a project manager with an annual income of about $192,000. The father is not employed save as a part time consultant for a few hours each month. The father pays no child support.
8 The children of the marriage are X born in 2019 and Y born in 2021. At the time of the Review hearing, X was five years old and Y was three years old.
9 At separation, the mother left the former matrimonial home in Suburb B, North Sydney with the children and initially lived with friends for about six weeks before moving to live with her grandmother in Suburb J on the other side of Sydney, about 40 kilometres south of Suburb B. The father remained in the former matrimonial home.
10 From May 2024, the mother and children spent increasing amounts of time at the home of her new partner, Mr G, at Suburb K, which is situated on the southern shore of City H,[2] about 100 kilometres north of Suburb B. Mr G and the mother commenced their relationship in about May 2023. By the beginning of August 2024, the mother and children were living at Suburb K six nights per week and spending every Wednesday overnight at Suburb J. At [49] of the mother’s affidavit filed 8 October 2024, she deposed that it was her intention to live with Mr G on a full-time basis. At the Review hearing, it seems the concession was made by the mother that she had in fact commenced to live on a full-time basis with Mr G.
[2] Throughout the primary judge’s reasons, the mother’s residence at Suburb K is sometimes referred to as City H and the names will be used interchangeably in these reasons where it coincides with the primary judgment.
11 Notwithstanding the mother’s initial move from the former matrimonial home to Suburb J and subsequently to spending an increasing amount of time at Suburb K, the children continued to attend a daycare centre at Suburb T (a suburb near Suburb B), called the E Early Learning Centre, which they have attended since January 2024. The mother has undertaken all the travel to and from her residence/s and the daycare centre, and to facilitate the children spending time with the father, which was for a time supervised at a contact centre, and thereafter transitioned to unsupervised time after the parties attended a mediation on 6 September 2024.
12 Prior to separation, the parents had agreed that X would commence her formal schooling at D School in 2025. The mother resiled from that agreement in June 2024.
13 At the hearing before the registrar on 24 October 2024, the respective orders sought by each party were couched in terms indicative of a parenting dispute involving ‘relocation’, i.e. the mother sought to relocate the children’s residence, and the father sought to restrict her ability to do so (seeking that she remain in the Greater Sydney district). The father conceded on an interim basis that the children should continue to live primarily with the mother and a consent order was made to that effect. Each party wanted X to commence at a particular school in 2025; the father proposed D School, and the mother proposed F School, a school close to Suburb K. The interim order made on 24 October 2024 did not require the mother to return to Sydney, nor did it give her liberty to change the children’s residence from Sydney. However, it did require the children to attend school/daycare in Sydney as sought by the father.
14 The operative interim parenting order made on 24 October 2024, relevantly provides for:
(a)the children to spend time with the father;
(i)on alternate weekends from Friday after school to Sunday at 5.00 pm;
(ii)on alternate Tuesdays from after school until 5.00 pm; and
(iii)on alternate Thursdays overnight.
(b)X to attend the D School;
(c)Y to continue at E Early Learning Centre; and
(d)changeovers to occur at the Suburb B train station when not from school.
15 By her Further Further Amended Initiating Application filed 20 June 2024, the mother’s proposed final order seeks to limit the father’s time with the children to times agreed between the parties. By his Amended Response filed 30 July 2024, the father’s proposed final order seeks an equal time arrangement.
16 The mother’s Review application was heard before the primary judge on 26 November 2024 with judgment delivered on 12 December 2024, dismissing the application.
17 The mother’s Review application challenged only parts of the order made on 24 October 2024, namely:
(a)Paragraph 4(b) in relation to the father’s time with the children during the 2024-2025 summer holidays and the commencement date of that time which is now otiose;
(b)Paragraph 4(c)(i) in relation to the commencement date of father’s time with the children but only so the time coincided with the time Mr G’s children spend with him and the mother;
(c)Paragraph 5 in relation to the changeover venue with the mother seeking a changeover venue between her Suburb K residence and the former matrimonial home at Suburb B;
(d)Paragraph 6(a) in relation to the school at which the eldest child was to commence her formal education;
(e)Paragraph 6(b) in relation to the daycare centre the youngest child was to attend; and
(f)Paragraph 10 in relation to interim property which as earlier noted is no longer pressed.
18 The mother filed her Notice of Appeal (subsequently amended on 12 March 2025) against the dismissal of her Review application on 23 December 2024.
19 The substantive parenting and property proceedings have been set down for an eight-day final hearing in November 2025.
20 At the commencement of the hearing of the appeal, the parties were given the option of a final hearing of the parenting matter (only) over three days in May 2025 and/or three days in June 2025. The parties declined to take up this option.
GENERAL APPELLATE PRINCIPLES
21 The principles applicable in an appeal against a discretionary decision are well settled.[3] To succeed in the appeal, the appellant must establish some error in the decision-making process. It is not sufficient that the judges hearing the appeal would have come to a different decision on the same facts. The appellant must establish that the primary judge applied the wrong legal principles, or failed to take into account some material consideration, or took into account some irrelevant consideration, or that the decision was plainly wrong in the sense that it was not a proper exercise of discretion at all.
[3] House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513.
GROUNDS OF APPEAL
22 The three grounds of appeal contend error because the primary judge:
(a)failed to take into account relevant facts or took into account irrelevant facts;
(b)provided inadequate reasons; and/or
(c)was plainly wrong.
GROUND 1
23 Ground 1 contends that the primary judge erred in the exercise of his discretion as follows:
(a) Failing to take into account or consider relevant facts, being:
(i)The travel time between the mother’s home and the children’s current daycare and proposed school in 2025;
(ii)That an intervening event had occurred since the parties’ agreed for the children to be educated near the former matrimonial home in [Suburb B], namely the parties’ separation and the mother and children’s residence in the [City H/City S] area; and
(iii)The father’s concession that if the children were to reside in the [City H/City S] area…that they should attend educational institutions in that area.
(b) Took into account irrelevant facts, such as whether the mother’s residence in the [City H/City S] area was “justified” and the reasons for why the mother and the children live in that area.
Failing to take into account travel time – 1(a)(i)
24 Dealing firstly with Ground 1(a)(i), the mother submitted at paragraph 28 of her Summary of Argument, that the primary judge had “failed to consider at all the material practical effects of where the children now live”.
25 Notwithstanding, the submissions made on behalf of the mother at the Review hearing that the travel between Suburb K and Suburb B created “logistical difficulties” (Transcript 26 November 2024, p.8 line 42) and an “unnecessary burden on these children and on [the mother]” (Transcript 26 November 2024, p.8 line 43), the only evidence of the “practical effects” of the travel was contained in the mother’s affidavit and Exhibit 3. In her affidavit, the mother deposed as follows:
46) As a consequence of Sydney traffic conditions, the travel time, as opposed to the distance, is largely the same between [Suburb K] (which is on the southern shore of [City H]), and the children's pre-school or [the father’s] home as it is from [Suburb J]. The drive takes about an hour from either [Suburb J] or [Suburb K], one way.
47) The girls and I make the travel time fun by singing songs, playing car games like ‘eye spy’ and practising their counting. Sometimes we travel to Sydney on the train which [X] and [Y] consider to be a big adventure.
26 Exhibit 3 indicated the travel time from Suburb K to Suburb B could range from one hour up to one hour and 40 minutes, but the best evidence was as quoted in the mother’s own affidavit.
27 The mother’s evidence that it made little difference to her travel time if she were living with the children at Suburb J or Suburb K was significant because the mother had been undertaking the travel since separation more than a year before. The mother’s evidence portrayed the “practical effects” as being fun and an adventure for the children.
28 While the primary judge did not specifically refer to the mother’s affidavit evidence, it could not be said that his failure to do so was an error given the apparent concession contained therein.
29 Further, at [87] and [126], the primary judge was critical of the mother’s failure to disclose the location and terms of her employment, or indeed any changes to her employment from when she lived in Sydney. It is tolerably clear that the failure to disclose this information was relevant to the alleged “logistical difficulties” created by the mother’s relocation to City H when her place of employment had previously been (and may have continued to be) located near Suburb B.
Failing to take into account intervening events since the agreement about schooling – (1)(a)(ii)
30 Ground 1(a)(ii) contends that the primary judge failed to take into account intervening events since the parties’ agreement for the children to attend school/daycare in proximity to the former matrimonial home. Namely, the parties’ physical separation in September 2023 and the mother’s relocation with the children to Suburb K up to six days per week from August 2024 and her intention to live full time with Mr G at Suburb K.
31 This ground must be rejected in light of the primary judge’s specific reference to the initial agreement and the intervening events in his reasons, as follows:
(a)the primary judge noted that it was “uncontentious that the parties had previously agreed for the children to attend school in 2025 in the [Suburb B] area” (at [52]);
(b)the primary judge recorded that the parties had formally separated on 13 September 2023 when the mother left the former matrimonial home at Suburb B with the children (at [21]);
(c)the primary judge referred to the agreement about schooling having been made prior to separation (at [121]);
(d)the primary judge noted that on 25 June 2024, the mother advised that she no longer adhered to a previous agreement between the parties for X to attend D School in 2025 (at [33]); and
(e)the primary judge noted that the mother “now admits to living with [Mr G] in [City H]” (at [20]) having deposed in her affidavit to not then living with him on a full-time basis (at [24]).
32 Axiomatically, the challenge to the judgment on this ground cannot be sustained in view of the primary judge’s specific reference to the “intervening events” from which we infer consideration was given.
Failing to take into account the father’s concession that if the children lived at City H, they should attend school there – (1)(a)(iii)
33 It could not be in doubt that at the time the father filed his Outline of Case for the Review hearing he was of the view that the Court would be asked to make an order that would either restrain the mother from relocating the children to Suburb K or grant her liberty to do so, and that the Court would also determine the children’s schooling (see Part C of the Outline of Case). It was in that context, that the following concession at paragraph 36 of his Outline of Case, must be read:
Schooling
36.It is conceded that if the Mother is successful in her application to relocate the Children to the [City H/City S], then their enrolment at [F School] (or a school in that area) would seem appropriate. The two issues are intrinsically linked due to the geographical considerations of the respective proposed locations.
34 At the Review hearing, the father’s King’s Counsel, informed the Court that the only order being sought by the father was to dismiss the Review application. No doubt that concession was made in light of the limited challenge to the order under Review by the mother and the existence of the operative order for the children to attend schools in proximity to the father. No submission was directed to the concession at paragraph 36 of the father’s Outline of Case by either counsel at the Review hearing and unsurprisingly the primary judge did not refer to it in his reasons.
35 The only apparent concession made by the father that was relied upon by the mother at the Review hearing was the father’s consent to an interim parenting order on 24 October 2024 providing for the children to live primarily with the mother (Transcript 26 November 2024, p.7 lines 12–16).
36 However, the primary judge noted during the hearing:
I don’t think it can be said he consented that that live-with be at large geographically.
(Transcript 26 November 2024, p.7 lines 33–34)
37 Counsel for the mother at the Review hearing conceded that to be the case, stating:
… I accept he sought certain restraints about the school, and that’s why we say he was successful in that aspect of his case …
(Transcript 26 November 2024, p.7 lines 37–38)
38 In that context, the primary judge said the following at [105]:
I maintain this view despite the father’s concession earlier in these proceedings to an interim live-with order in favour of the mother. I am comfortably satisfied that this concession was made in a climate of the mother not being completely forthcoming as to her intentions to relocate and further where the father had some comfort by reason of the recent agreement between the parents that the children would be enrolled at schools proximate to the former matrimonial home on Sydney’s North Shore.
Taking into account the mother’s reasons for relocating and whether the reasons “justified” the relocation – 1(b)
39 Before turning to a discussion of this ground we note that the primary judge correctly, with respect, identified at [55] that a parenting dispute involving relocation of the children is required to be decided in accordance with Pt VII of the Family Law Act 1975 (Cth), while noting certain principles that have developed to assist judges when dealing with such matters. Those principles are not contentious and do not need to be repeated.
40 The reference to “justified” in this ground purports to be a reference, if not quote, from the primary judge’s reasons at [128], which is set out below.
41 In her Summary of Argument, counsel for the mother, expanded upon this ground submitting at paragraph 34 that “central to this is challenge to [103]–[105], and [120]–[130], as well as His Honour’s general focus on whether or not this was a relocation case”. The mother’s counsel submitted that it was not a relocation case as there was no issue as between the parties at the Review hearing that the children would live with the mother on an interim basis and no order was sought for her to return to the Greater Sydney area.
42 Counsel for the mother submitted that in those circumstances, the primary judge’s discretion miscarried because he took into account the following irrelevant matters:
(a)the reasons why the children were living at City H;
(b)whether or not the mother was “child focussed” in having the children live at City H;
(c)whether the children’s best interests were served by living at City H when there was no other proposal before the Court;
(d)whether the mother was “justified” in relocating the children;
(e)whether the Court should give its “imprimatur” to the mother’s relocation; and
(f)whether it was the mother’s actions that led to the alleged burden of the children’s travel.
43 The part of the reasons said to be “central” to this ground, while somewhat lengthy, are reproduced below:
103The mother’s case here is, in my view, irresistibly a quest to have this Court give its imprimatur to her unilateral relocation of the children from Sydney’s North Shore to the [City H] area of New South Wales.
104Despite the equivocacy of the mother’s evidence and her disclosure to the father, it is now apparent that she has relocated with the children.
105Where the mother’s application seeks an order only in terms of she being granted sole responsibility to enrol the children in schools near [City H], any suggestion by her counsel that this matter is not, in all practical terms about unilateral relocation is, in my view, disingenuous. I maintain this view despite the father’s concession earlier in these proceedings to an interim live-with order in favour of the mother. I am comfortably satisfied that this concession was made in a climate of the mother not being completely forthcoming as to her intentions to relocate and further where the father had some comfort by reason of the recent agreement between the parents that the children would be enrolled at schools proximate to the former matrimonial home on Sydney’s North Shore.
…
120I am satisfied that the mother has acted unilaterally to remove the children from Greater Sydney to near [City H]. I am satisfied that she has done so for reasons of pursuing her own relationship with [Mr G].
121I am satisfied that the parents had, shortly prior to their separation, reached agreement that the children would be enrolled in and attend school on the North Shore of Sydney.
122I am satisfied that the mother’s unilateral relocation of the children has disturbed and impacted on their relationship with their father. I note that the children are just five and three years of age. It is generally accepted that children of such young age benefit from a high frequency of relationship with their parents so as to establish proper attachments. In doing so, the mother has added the burden of logistics and travel for the children and the parents.
123At just five and three years of age it is unlikely that the children would be able to rationalise their own best interests. Significantly, however, [Dr N] comments at [208] thus:
The mother was observed to have overtly influenced the children in their views regarding the family. Thus, they were encouraged to refer to [Mr G’s] daughters as their sisters and [Y] had started to refer to him as “daddy”. There was no indication that she (the mother) had acted to support the children’s relationship with their father.
124I am satisfied generally that the children have attached and loving relationships with both of their parents. I am not satisfied on the evidence that the mother has the insight to prioritise the children’s needs and, in particular, their need for a relationship with their father over her own self-interest. That is, whilst the mother may exercise her right of freedom of movement, she does not do so, in my view, with a prioritising of her children’s best interests.
125I harbour concerns that should the Court give its imprimatur to the mother’s unilateral relocation and decision-making in respect of these children then the children’s stability and routine might be further disturbed after a full and forensic final trial in this matter.
126I remain concerned as to the mother’s historical equivocacy of her now known residence for herself and the children with [Mr G] near [City H]. Similarly, I maintain concerns as to parts of the mother’s affidavit and, in particular, her failure to disclose in that comprehensive document the nature, terms and location of her employment or, indeed, any changes in that employment from when she was resident in Greater Sydney.
127The mother is in full-time work. She discloses a gross income of $192,375 per annum. She was able to accommodate herself and the children in Greater Sydney following separation from the father. She was offered $100,000 by the father to assist in re-accommodating herself and the children. She is the owner of an investment property. She now has the benefit of the $100,000 paid by the father pursuant to Senior Judicial Registrar Turner’s orders.
128Where the mother has unilaterally relocated the children, I cannot find the justification argued by her counsel. Her allegations of coercive/controlling family violence remain to be tested in their fullest.
129I am of the view that the children’s best interests are not served by the mother relocating the children to [City H] and enrolling them at school and acting contrary to the agreement reached with the father by enrolling them at schools proximate to her now known residence with [Mr G].
130Consequently, I see no reason why the orders of Senior Judicial Registrar Turner should be disturbed. The mother’s Application for Review in this respect will be dismissed.
(Emphasis added)
44 The reference to “justification” at [128] of the reasons must be seen in the context of the sentence immediately following, which states, quite unremarkably, that the mother’s allegations of coercive or controlling family violence remain to be tested in circumstances where the father largely denies the allegations. The mother’s reasons for relocation and her wish to have the changeover at a place closer to her new residence, were forcefully argued on her behalf at the Review hearing. The primary judge at [62] noted that, “the mother … grounds her argument for the orders she seeks predominantly, if not the [sic] entirely, on allegations of family violence where she says she has been the victim of the father’s violence with emphasis on what she says have been coercive/controlling/emotional instances of violence”. The evidence relied upon by the mother in support of her allegations was then set out in some detail in the reasons at [63]–[77] including reference to the guidance provided by the Australasian Institute of Judicial Administration Inc. Bench Book dated July 2024 and titled “National Domestic and Family Violence Bench Book”, to which both parties referred at the Review hearing.
45 Earlier in the reasons, the primary judge, correctly with respect, set out at [55(f)] that in parenting cases involving a parent relocating the residence of the children, it is not necessary to establish “compelling reasons” for relocation, and in our view, the primary judge did not do so. However, as the mother’s case was predominantly, if not entirely, run on the basis that her reasons for relocation were relevant to the determination of the matters then before the Court, it is difficult not to see the primary judge’s reference to “justification” as being a reference only to the way the mother’s case was conducted and the primary judge’s appropriate observation that contested facts would have to await findings at trial.
46 In our view, the submissions about whether the Review hearing was appropriately categorised as a ‘relocation’ matter to which certain authorities applied is a distracting exercise in semantics. There can be no doubt that the primary judge was fully cognisant of the fact that by the time of the Review hearing, the mother was living at least six days per week at City H and intended to live at City H full time (see [20], [24], [34] and [104]). There can also be no doubt that the effect of the order sought at the Review hearing by the mother was to change the children’s established connection to the locale near the former matrimonial home where they had friends and attended daycare, to a daycare centre and school in proximity to the mother’s new residence. Such an order would have pre-empted what may or may not be the outcome after a final hearing and if made, may have resulted in “the children’s stability and routine [being] further disturbed after a full and forensic final trial in this matter” (at [125]).
47 We disagree that the use of the term “imprimatur” denotes an intention by the primary judge to punish the mother or to send a signal to other litigants. The focus of the primary judge was on the children’s best interests and the need to avoid a move from the children’s familiar and stable connections on the North Shore of Sydney to commence daycare and school at a place proximate to the mother’s residence when, after a final hearing, the children’s stability may again be interrupted (see [57]). The primary judge appropriately considered (at [56]) the observations of Boland J sitting as a single judge of the Full Court in Morgan & Miles,[4] where her Honour at [88] said:
… except in cases of emergency, the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing, and these are the type of cases in which the child’s present stability may be extremely relevant on an interim basis.
[4] (2007) FLC 93-343 at 81,871.
48 The operative order will continue the stability for the children in maintaining their existing connections pending a final hearing.
49 We find no merit in Ground 1.
GROUND 2
50 Ground 2 contends that the primary judge “erred in failing to give any, or any adequate reasons as to why it was in the children’s best interests to attend schools and daycare centres which necessitate up to four [sic] hours’ travel per day and why the mother should undertake all travel for changeovers”.
51 It was conceded by counsel for the mother, that the reference to the mother travelling up to “four” hours per day was an error. There was no such evidence.
52 In the mother’s Summary of Argument and in oral argument, the challenge to the adequacy of reasons is expanded upon. It was submitted that the primary judge’s reasons:
… demonstrate no engagement with, and do not grapple at all with, the practical reality that the children were living in and would face in 2025 if required to continue to travel a significant distance daily to their educational facilities, no engagement with the benefit of the children attending local schools, no consideration of the father’s concession as to school in the [City H] area …
(Mother’s Summary of Argument, paragraph 43)
53 As with all cases, adequacy of reasons will depend on the nature and extent of the case conducted at trial.[5]
[5] Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267.
54 As noted earlier in these reasons, the only evidence about the travel time for the children and its effect on them was as contained in the mother’s affidavit and Exhibit 3. The mother’s evidence was that the travel time to and from the mother’s residence at either Suburb J or Suburb K was an hour, and she made it fun and an adventure for the children.
55 As to the failure to engage with the benefits for the children attending local schools, the submissions on behalf of the mother at the Review hearing, briefly referred to the importance of the eldest child commencing school close to where she primarily lives, “in terms of this child creating her friendships, her community”. However, as earlier noted in these reasons, the children had existing connections in the Suburb B area where they attended daycare and previously resided, and the primary judge afforded weight to the prospect that a change on an interim basis may again be disturbed after a final hearing.
56 We are comfortably satisfied that the existing stability for the children in terms of their friends and daycare connections together with the primary judge’s concern about further change after a final hearing adequately explained his Honour’s reasoning in relation to the school/daycare the children should attend pending a final hearing.
57 The father’s alleged concession in relation to the children attending school in the City H/City S area has already been discussed earlier in these reasons at [33]–[38].
58 The challenge based on the failure to provide reasons as to why the mother should undertake all the travel for changeovers, sounds suspiciously like a convenience argument. In that context, it is instructive to note that when the primary judge specifically enquired from then counsel for the mother whether the “[t]he real issue, as far as your client is concerned, is not the fact of changeovers, but the more convenient location?”, the mother’s counsel responded in the negative (Transcript 26 November 2024, p.10 lines 44–47).
59 The reasons advanced for the mother wanting to change the venue for changeovers was to avoid the father given the alleged history of family violence and its impact on the mother, but merely changing the venue would not address the mother’s wish to avoid contact with the father, and as already noted in the primary judge’s reasons, the allegations of family violence were largely disputed. The mother’s then counsel later submitted to the primary judge that the mother’s wish to have the changeover point occur midway between her new residence and the father’s residence “go hand in hand” with the change sought by the mother for the children’s daycare and school to be proximate to her residence (Transcript 26 November 2024, p.32 lines 21–23). If the change to daycare and school did not occur, it was not advanced by the mother that the changeover venue should change.
60 Finally, it was noted by the primary judge at [37] of his reasons, that when the parties attended mediation on 6 September 2024, they agreed that changeovers would occur at Suburb B Train Station.
61 We find no merit in Ground 2.
GROUND 3
62 Ground 3 contends that “[i]n dismissing the application for the children to attend a local school and daycare centre, [the primary judge’s] exercise of discretion erred in the making of a decision that was, in all the circumstances, plainly wrong”. It was submitted by counsel for the mother that the judgment was unreasonable and plainly unjust.
63 In the mother’s Summary of Argument, the focus of this challenge related to two matters. Firstly, the “fundamental misconception” that the primary judge was deciding a “relocation case” and that this “infected the reasoning process by way of the failure to consider relevant facts and taking into account irrelevant considerations, and thereafter, making irrelevant findings”. Further, that in so doing, “legal principle was wrongly applied, errors of material fact are discernible, and His Honour embarks upon speculative findings not open on the evidence”. Secondly, the judgment is challenged as plainly wrong in relation to how the primary judge dealt with the allegations of family violence.
64 The Summary of Argument, suggests at paragraph 49, that in considering whether the judgment was plainly wrong, this Court would be “troubled” by the primary judge’s “failure to consider (at all) the practical reality of the Orders that he upheld” and that he was “distracted by attributing blame for the parenting dispute as to school choice and changeover at the feet of the mother and making orders (particularly in respect of changeover) that, at first glance, appear punitive”.
65 The Summary of Argument continues at paragraph 50, to refer to the earlier grounds of appeal as support for the submission that the judgment was plainly wrong. Paragraphs 51 and 52 of the Summary of Argument refer to alleged errors of fact, although concessions are made at paragraph 53 that there has been no challenge on the findings themselves, and that the mother may have difficulties in establishing the materiality of the alleged erroneous findings. The concessions are appropriately made.
66 Lastly, from paragraph 56, the Summary of Argument challenges the “manner in which [the primary judge] dealt with [the mother’s] case that she was subject to coercive and controlling family violence”.
67 As to the submissions that the judgment was plainly wrong based on the earlier grounds of appeal, we reject those contentions for the same reasons earlier expressed.
68 In oral submissions made on behalf of the mother, it was submitted that the primary judge’s “attitude” and “minimisation” of the mother’s allegations were “concerning”. Criticism was directed to certain questions posed by the primary judge during the Review hearing for which condemnation by this Court is suggested to be warranted. An example of such conduct is expressed in the Summary of Argument at paragraph 59 where it is submitted:
… [the primary judge] went so far to suggest that the mother making a unilateral decision in enrolling them in a school in the [City H] area was an example of controlling and coercive violence on the part of the mother.
69 Given the seriousness of the accusations made against the primary judge, it is appropriate to firstly consider how the primary judge “dealt with” the contested allegations of family violence in his judgment.
70 At [41] of the reasons, the primary judge set out the relevant part of s 60CC of the Family Law Act 1975 (Cth) which provides that in determining children’s best interests the Court must consider a number of matters, including what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm), of the child and each person who has the care of the child, and any history of family violence.
71 At [61] of the reasons, the primary judge noted that the parties have had “an historical conflictual relationship and there have been mutual allegations of family violence”.
72 At [62]–[77], the primary judge set out the mother’s allegations of family violence including repeated derogatory taunts, such as “dumb”, “slut”, “whore”, “adulterer”; that the father mocked her when she fell (the mother has [redacted]); the father’s work commitments took priority; that the father “would not permit” her to attend work functions; that the father made threats to kill himself; he stalked her; his refusal in December 2023 to agree to changes to an interim parenting order; sending aggressive and derogatory texts; informing a school teacher that the mother had had an affair. The primary judge noted that there were “numerous other examples in the mother’s affidavit of particulars that she says are the father’s propensity for emotional/coercive and controlling violence” (at [73]). The primary judge referred to the National Domestic and Family Violence Bench Book to which the mother’s then counsel referred and which the primary judge said he was “considerably assisted” by. The primary judge also referred to some corroboration for the mother’s allegations “from admissions and acknowledgement made by the father himself to [Dr N], the Court Expert, and the parties’ marriage counsellor” (at [77]).
73 At [78]–[88] of the reasons, the primary judge set out the father’s response to the allegations noting that the father “makes some admissions” but “denies a majority of [the] allegations”. The father alleged that he was a victim of the mother’s physical violence on three occasions from which the mother was charged with one count and pleaded guilty. An Apprehended Domestic Violence Order was made against the mother for the protection of the father. The primary judge recorded the father’s contention that he had addressed the mother’s concerns and allegations by attending a 12 week Men’s Behaviour Change Course and had “gained insight and understanding of the cycle of conflict” (at [80]). The father maintained his ongoing concerns about statements to him which he interpreted as inappropriate touching of his daughter by Mr G. The father contended that the marriage continued for some months after the mother revealed her relationship with Mr G to him and alleged that the mother had been less than candid about her unilateral relocation and enrolment of the children at a school contrary to their previous agreement.
74 At [89]–[95] of the reasons, the primary judge discussed and quotes from the two reports of Dr N, the Single Expert. In particular, the primary judge noted at [89] and [91] the children’s happy and excited interactions with the father during observation. At [92], the primary judge quoted Dr N’s opinions that in presenting as very happy and optimistic about her future with Mr G, the mother omitted key pieces of information and had prematurely introduced Mr G to the children and restricted the children’s contact with their father.
75 At [97] of the reasons, the primary judge noted Dr N’s opinion that Mr G was the dominant partner in the relationship and that both he and the mother spoke about their relationship in an “idealised manner”.
76 The primary judge referred to the Child Impact Report at [98]–[102] and to the report writer’s observations about the “situational behaviour of the parents and generally during a relationship breakdown/separation”.
77 The primary judge then considered the evidence of family violence and says:
107I accept generally the submission of counsel for the mother that it would be remiss of this Court to take and consider each of the mother’s allegations singularly and where at least some might seem relatively innocuous. By reason of the nature of coercive and controlling family violence it is proper to consider the mother’s allegations and assertions in their cumulative form and, in particular, as to the impact on the mother being the alleged victim.
108Nevertheless, in my view, the Court would also fall into error if it was to consider the allegations of the mother, or even findings, of coercive and controlling family violence (or any type of family violence) as determinative of the ultimate consideration being the children’s best interests.
109Family violence allegations, as with all evidence, must be given weight in respect of contextualising the circumstances of the children’s best interests.
110In any evidentiary context it is the findings of fact to the requisite standard of on the balance of probabilities that allow the Court to attribute weight to each factual finding and then turn to consider the context and the impact on the children’s interests which remains the paramount, but not sole, consideration.
111Lest it be misunderstood, any and all findings of fact of family violence are abhorrent. Experience suggests that family violence is a scourge of our community. Family violence is a dominant issue in the majority of cases, both parenting and financial, now coming before these Courts. Judges are certainly alert to the impact of family violence on parent-victims and on their children.
112Nevertheless, the context and nature of the litigation with reference to the children’s ultimate best interest remains the dominant consideration for this Court.
113In this matter I can make a number of findings of fact on the balance of probabilities including:
(i)the father by his own acknowledgment admits some of the mother’s allegations of coercive/controlling/emotional family violence;
(ii)the mother, by reason of her plea of guilty, admits perpetrating physical violence on the father; and
(iii)the father has voluntarily entered into a course of men’s behaviour change where it is generally understood that acknowledgement by a perpetrator is the starting point of rehabilitation.
114The evidence generally satisfies me that the violence alleged against the other by each of the mother and the father was most prominently situational and circumstantial upon their separation.
115 The parties have now been separated in excess of 12 months.
116There is no allegation by the father against the mother of continuing family violence. There are no recent allegations against the father save and except the father’s notification to the Child Protection Authorities and the Police in respect of [Mr G]. Where the father maintains his concerns, I cannot find that this is a particular of family violence of malicious or false allegations as alleged by the mother.
117 The parties have now separated and, on my findings, the volatility of their separation occurring in continued proximity has now been removed.
118 [Dr N] gives an untested opinion but where I can place some weight on that opinion given his status as independent court expert and his prima facie expertise. At [188] [Dr N] says:
In my view, both children and the adults responsible for the care were not identified to be at risk of exposure to family violence, abuse, neglect or other harm should there be a reinstatement of regular, unsupervised, overnight contact.
119 Generally, therefore, I find that both parties have perpetrated family violence against the other but, on the evidence, untested as it is, I am unable to make findings in respect of all of the mother’s allegations against the denials of the father. Further, I am comfortably persuaded that the allegations of family violence have not continued and where the parties have now separated both emotionally and geographically. As such, I find on the balance of probabilities that the instances of family violence alleged by each against the other were situational and circumstantial.
78 As noted earlier, it is conceded on behalf of the mother that none of the findings made by the primary judge are the subject of challenge.
79 It is also important to note that the mother did not seek a review of the order made on 24 October 2024 in so far as it made provision for the children to spend time with the father each week. Indeed, even prior to the hearing before the registrar the mother had agreed to the father spending unsupervised time with the children. This was not a case where a party was contending that the allegations of family violence made it unsafe for the children to spend time with the other party.
80 The primary judge also had the assistance of reports from a Single Expert who had assessed the family and a Court Child Expert who had prepared the Child Impact Report.
81 During oral submissions, counsel for the mother submitted that despite the mother’s detailed allegations of controlling or coercive behaviour perpetrated by the father against her at a Christmas party in December 2023 and at the children’s daycare in January 2024, which was corroborated in many respects by others, the primary judge minimised her allegations at [72] of the reasons when he said:
The mother complains that the father informed a child’s school teacher that the mother had “had an affair” in discussions about the children’s parenting arrangements. The mother says that this is emotional or controlling violence.
(Emphasis in original)
82 While true that the primary judge did not refer to every piece of evidence relied upon by the mother in relation to the incidents, he was not required to. The High Court of Australia said in Whisprun Pty Ltd v Dixon at [62]:[6]
… The fact that his Honour did not refer to these matters in his judgment is not decisive. A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
[6] (2003) 200 ALR 447.
83 In any event, as noted earlier in these reasons, the primary judge had set out considerable detail of the mother’s allegations at [62]–[77] of the reasons and in relation to this particular criticism, the very next paragraph in the reasons at [73] records:
There are numerous other examples in the mother’s affidavit of particulars that she says are the father’s propensity for emotional/coercive and controlling violence.
84 Perhaps more importantly, it must be remembered that this was an interim hearing concerned with two issues: where the children attend daycare/school and the changeover venue. Further, this was not a case where it was alleged by the mother that it was unsafe for the children to spend time with the father. We reject the submission that how the primary judge “dealt with” the allegations of family violence in his reasons demonstrate that the decision was plainly wrong.
85 Turning then to consider the submissions critical of comments made by the primary judge during the Review hearing. It should firstly be observed that exchanges between counsel and the bench during contested hearings, sometimes even robust exchanges, are an important and necessary part of the judicial process.[7] On occasions, the judge may pose questions to clarify or challenge a submission or put to counsel an argument they anticipate the other side may raise so as to give counsel the opportunity to respond. It is to be hoped that counsel would prepare their clients for this process to allay any misconceptions that the questions posed are an attack on the case or a reliable indicator of how the judge will decide the case.
[7] Johnson v Johnson (No 3) (2000) 201 CLR 488.
86 The example provided by counsel for the mother set out above at [65] requires scrutiny. The relevant part of the transcript, while somewhat lengthy, is reproduced below:
COUNSEL FOR THE MOTHER: … At the very least, if your Honour doesn’t accept what I say is the pattern, and what the bench book says is a pattern available to the court in considering the dynamics of coercive control, if your Honour doesn’t engage with that or rejects that, in any event, what your Honour can find on the mere fact there was an AVO and criminal proceedings and a slap in the lead-up to it, is that this is an absolutely high conflict relationship. On either –
HIS HONOUR: Well, there’s no doubt, there’s no doubt, there’s no doubt about that because, circumstantially, it was, and it had a separation, not unusual that it was a conflictual one, it’s not unusual. Can I ask you a question, I mean, about coercive – and it’s a question, I’m not being facetious –
COUNSEL FOR THE MOTHER: Yes.
HIS HONOUR: – within this definition that you’re giving me that captures the material which you say would allow me to find that the father has perpetrated coercive and controlling violence, does the mother’s, I think unilateral relocation, but I might be wrong with that, but the mother’s unilateral decisions in respect of the children, enrolling them at a school some distance away and contrary to where there had been an agreement between the parents that the children would go to school, etcetera, does that constitute coercive control by the mother?
COUNSEL FOR THE MOTHER: No. That is entirely consistent with a mother seeking to create distance between herself and her abuser. So, your Honour would –
HIS HONOUR: Right. But it has the elements that you’ve just broadly defined, doesn’t it?
COUNSEL FOR THE MOTHER: No. The –
HIS HONOUR: It’s unilateral, denies the other party decision-making, etcetera, etcetera.
COUNSEL FOR THE MOTHER: No.
HIS HONOUR: So, why wouldn’t that be a fact of coercive and controlling behaviour?
COUNSEL FOR THE MOTHER: Firstly, your Honour, if one accepts that she was in a relationship where she was dominated by his family violence, both in direct form, but in the category of coercive control, if we say that that is her experience with the father, then it doesn’t follow that a person – and let’s be honest, the bench book says coercive control is a gendered dynamic, that is, it is very much more likely for it to be a female who is the victim of coercive control – so that is what the bench book says.
HIS HONOUR: It might say that, but in my experience on this bench – not this case, we might be digressing – I’ve seen instances of behaviour where facts can be found to the requisite standard of proof that would clearly fit within the definition of a female exerting coercive control over a male. So, I’m not sure about the – I’m not sure about the thrust of the bench book, if that’s what it says.
COUNSEL FOR THE MOTHER: Can I make it clear, I don’t say, and nor does the bench book say, that a person, namely a male, can’t be a victim of family violence. I accept that as a general proposition.
HIS HONOUR: Yes, all right. Anyway, look, I don’t want to digress. Again, I understand, I understand your point. And your point is that it’s open for me to find, on the balance of probabilities, that the mother has substantial and significant reasons to be fearful of the father because of a history of – with the emphasis on the coercive controlling and emotional part of family violence, with some physical stuff thrown in. That’s the thrust of your submission, isn’t it?
COUNSEL FOR THE MOTHER: It is the thrust of the submission, but I do want to grapple with your Honour’s question as to, well, isn’t the mother’s conduct also coercive control in the other way. Can I say –
HIS HONOUR: Well, I think, I think you’ve answered it. Go ahead, but I think you’ve answered it. Go ahead.
COUNSEL FOR THE MOTHER: Can I make it clear, if I haven’t already, if your Honour forms a view based on the corroborative evidence – and I will come to further aspects of corroborative evidence – but if your Honour forms a view that she was genuinely afraid of the father and intimidated by him, then that is different to coercive control. She is seeking to preserve her safety and that of the children, and she is, by virtue of being their mother, tasked, as she sees it, with protecting them. The worst thing for the children, if what she says is correct about the family violence, would be for her to remain in that scenario. So, she is fleeing, as opposed to making decisions which could be considered coercive control in the other direction. So, I make that clear. Now, importantly, your Honour, there’s two –
HIS HONOUR: I expect, I expect if we had an integer here of – added to the father’s behaviour that you’ve listed, and I’ve written down two pages worth of notes on it – if, at the time of the separation, he had taken the children, left the home, unilaterally enrolled the children in a school in Parramatta or somewhere, that you would say that that would be an instance of, another instance of his controlling behaviour?
COUNSEL FOR THE MOTHER: Save and unless, let’s just assume momentarily that he was in fear, let’s assume that he feared for his own safety and that of the children, then that could be a scenario where the father could have fled the family home, changed the children’s school, in circumstances where it wouldn’t be considered an aspect of coercive control. So, the difference is the rationale.
HIS HONOUR: Good answer, good answer. Okay. All right.
(Transcript 26 November 2024, p.19 line 20 to p.21 line 19)
87 The above exchange demonstrates what regularly occurs between the bench and counsel. Submissions are tested. Assistance is sought from counsel in understanding concepts such as, in this case, coercive or controlling behaviour. The complexities and subtleties associated with such behaviour were recently discussed by this Court in Pickford & Pickford.[8]
[8] [2024] FedCFamC1A 249.
88 In our view, the submission that the primary judge “went so far to suggest that the mother making a unilateral decision in enrolling them in a school in the [City H] area was an example of controlling and coercive violence on the part of the mother” (the mother’s Summary of Argument, paragraph 59), places an unfair and inaccurate gloss on the lengthy exchange between the primary judge and then counsel for the mother.
89 We find no merit in Ground 3.
DISPOSITION
90 We have found no merit in any of the grounds of appeal. The appeal will be dismissed.
91 The mother’s application to adduce further evidence in the event the appeal succeeded will be dismissed.
COSTS
92 In the event of the appeal being dismissed, counsel for the mother quite properly conceded that the mother being wholly unsuccessful must be a significant factor in the determination of the costs’ application by the father, although understandably costs were not conceded.
93 The mother is employed full time and earns approximately $192,000 per year. The father works casually for a few hours per month. He does not pay child support.
94 The initial costs schedule filed by the father set out total costs of $14,518.26 but did not include an estimate of costs in the appeal hearing. An additional costs schedule was handed up on behalf of the father disclosing costs of $25,405.59.
95 The mother’s costs’ schedule disclosed total costs of $20,303.06.
96 It was observed to both counsel that the respective schedules of costs do not appear to reflect party and party costs but rather solicitor and client costs. There is no suggestion that costs should be awarded on anything other than a party and party basis. Both parties sought that the quantum of costs be fixed.
97 Costs will be awarded to the father in the fixed sum of $12,000.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Carew and Carter.
Associate:
Dated: 2 May 2025
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