BUTTON & LO CRICCIO - [2010] FamCAFC 87

FAMILY COURT OF AUSTRALIA

BUTTON & LO CRICCIO

[2010] FamCAFC 87

FAMILY LAW - APPEAL – CHILDREN – Appeal against decision of a Federal Magistrate allowing the father to relocate with the child from Brisbane to Perth – Whether the Federal Magistrate gave sufficient weight to the child’s expressed wishes and the views of the single expert – Whether the Federal Magistrate adequately considered the difficulties the mother would fact if she moved interstate – Where the mother advised the Federal Magistrate she would not move interstate – Unnecessary to consider difficulties the mother would face in these circumstances – no error demonstrated

FAMILY LAW - PROCEDURAL FAIRNESS – Alleged incompetency of mother’s legal representation at trial – Whether alleged incompetency resulted in procedural unfairness and miscarriage of justice – Mother’s counsel at trial not found to be incompetent – no error demonstrated

FAMILY LAW - APPLICATION TO ADDUCE FURTHER EVIDENCE – most of the evidence sought to be adduced was available at the time of the trial – evidence of the father moving with the child to another place in Queensland after judgment better explored by a fresh application at first instance – application dismissed

Family Law Act 1975 (Cth)

CDJ v VAJ (1998) 197 CLR 172
G & G [2004] FamCA 1179
OP v TP & The Child Representative (Conduct of Counsel) (2003) 30 Fam LR 281

APPELLANT:

Ms Button

RESPONDENT:

Mr Lo Criccio

FILE NUMBER:

BRC

11116

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

29 April 2010

PLACE DELIVERED:

Canberra

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, Thackray & Murphy JJ

HEARING DATE:

20 November 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

6 March 2009

LOWER COURT MNC:

[2009] FMCAfam 177

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Martin

SOLICITOR FOR THE APPELLANT:

Berck & Associates

COUNSEL FOR THE RESPONDENT:

Ms Carmody

SOLICITOR FOR THE RESPONDENT:

Carne Reidy Herd Lawyers

Orders

The appeal is dismissed
The application to adduce further evidence is dismissed.
There be no order as to costs.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 25 of 2009
File Number: BRC 11116 of 2008

Ms Button

Appellant

And

Mr Lo Criccio

Respondent

REASONS FOR JUDGMENT

Introduction

This is the mother’s appeal against orders made on 6 March 2009 by Federal Magistrate Wilson which allowed the father to relocate with their daughter, B, then aged 6, from Brisbane to Perth. The father previously lived in Perth, where his family lives. The mother and her parents live in Brisbane.
The orders permitted the mother to spend time with B for half of all school holidays and each alternate Easter, and such other times in Perth as the mother can arrange. The father was required to fund two return visits (or half the cost of four visits) each year.
Although the mother originally proposed an order that the child live with her if the appeal succeeded, her counsel conceded that a re-hearing would be required if appealable error was found.

Background

The father was born in 1962 and is unemployed. The mother was born in 1981 and is also unemployed.
The father and mother commenced cohabitation in 1999 and finally separated in June 2007 after what the Federal Magistrate called a “tumultuous relationship”.
There is one child of the relationship, B Lo Criccio, who was born [in] 2000.
In September 2003, following an earlier separation, consent orders were made providing for B to live with the father and for her to spend time with the mother as agreed.
The mother and the father resumed cohabitation between September 2005 and June 2007. The mother said she had been imprisoned for nine months in 2005, although there was some doubt about precisely when this occurred.
In 2007 the father was imprisoned for 12 months for [a drug offence]. During the time he spent in prison B was initially left in the mother’s care, although she required extensive assistance from her own mother. The mother suffered a relapse of her drug addiction in November 2007 and her parents then removed B from her care.
B returned to live with the father after his release from prison in 2008. The mother was again imprisoned for six months but was released on parole in 2008. Since that time B has continued to live with the father and has had what the Federal Magistrate called “somewhat irregular time” with the mother.

The Federal Magistrate’s reasons

The Federal Magistrate commenced his reasons by noting that the relocation issue was inextricably intertwined with the issue of the time B should spend with each parent and whether she should spend time with her maternal grandparents. He noted that although the grandparents had participated in interviews for the family report they were not parties to the proceedings and had therefore not sought any orders for B to spend time with or communicate with them. In fact, they had not even sworn an affidavit.
His Honour recorded that B’s best interests were the paramount, but not the only, consideration in determining what orders to make. He also observed that often the choice confronting the Court in parenting cases is between alternatives, both of which are less than optimal.
His Honour then recorded the orders proposed by each party, noting that it was only in the course of closing submissions that the mother amended her application so as to seek an order for B to remain living with the father. He said it was only then that the mother realised that her original proposal for B to live with her and spend each alternate weekend with the father was “not at all child focused”.
Having noted that consent orders had been made in September 2003, his Honour accepted it was appropriate for the Court to look again at what parenting orders would be in B’s best interests.
The Federal Magistrate recorded that between September 2003 and August 2005 the father had the care of B and the mother had spent periods in gaol. During this time the mother’s contact with B had been “episodic and irregular”.
The Federal Magistrate then referred to the mother’s “extensive” criminal history. He recorded her assertions that most of her convictions were the result of drug dependency and that she was now abstaining from drugs, although she confessed to having a relapse in November 2007 when B was in her care.
His Honour noted that the mother was on parole until April 2009, but was awaiting sentence for various breaking and entering offences. He recorded that her evidence about the pending convictions was “vague and unhelpful”. He accepted the submission that the mother must have more detailed knowledge of the criminal matters outstanding. He said he did not know whether the mother would receive a further custodial sentence but considered the possibility could not be ignored, given her extensive criminal history and the nature and number of the offences. He recorded that there was no evidence as to the likelihood of a custodial sentence, nor of the possible length of the sentence.
The Federal Magistrate then recorded his understanding that the parole condition preventing the mother leaving Queensland would expire [in] April 2009. He said that provided the mother was not imprisoned for the further offences, there was no evidence of any impediment to her relocating to Perth after April 2009, once the remaining criminal matters had been dealt with.
Having recorded details regarding the resumption of cohabitation between September 2005 and June 2007, and the circumstances relating to B coming into the care of the grandparents in November 2007, his Honour noted that it was “evident that the relationship between the mother and the maternal grandmother is somewhat fractious”. By way of example, he referred to the mother’s evidence of having had a verbal altercation very recently with her mother. He said it was not an unreasonable conclusion that the grandmother in particular had little confidence in the mother’s ability to parent B.
Having recorded brief details concerning B coming back into the care of the father after his release from gaol in 2008, and the mother’s subsequent release from gaol [later that year], his Honour recorded that the father had given unchallenged evidence that the mother had been “inconsistent in her attitude towards spending time with [B] and often disappointed the child either by not turning up to spend time with her, or by promising to undertake some activity with her and then resiling from that promise”.
His Honour then turned to discuss the father’s employment position. He made the following findings:
·    the father had not been in paid employment since he was released from prison;
·    this had allowed the father to care for [B] full‑time but had curtailed his ability to provide her with the standard of living he would have liked to provide;
·    a significant part of the reason for the father wishing to relocate to Perth was the availability of employment there;
·    before going to prison the father had been operating a … business and the mother had assisted him from time to time;
·    the father claimed that he would have difficulty carrying on such a business in Queensland because he had to look after [B] full-time and because of the unreliability of the mother in assisting with her care;
·    the father’s brother is the manager of a [business] in Perth and had offered to refer [associated] work to him if he commenced a business in that city;
·    the evidence of the brother was not challenged.
His Honour next referred to the father’s evidence that all members of his extended family live in Perth, including his parents and siblings, and that there were a number of children in the family of a similar age to B. The father therefore considered he would have an extensive support network to assist him in B’s care, which would allow him to work full‑time and thus provide B with a better standard of living, while at the same time facilitating B developing a relationship with the father’s family.
The Federal Magistrate next recorded that the mother’s family live in southeast Queensland and that the mother had no family in Perth. However, he noted that the relationship between the mother and her parents was “strained”. He also noted that it was of significance that the maternal grandparents had not sworn an affidavit in support of the mother’s case, so that they could continue to have a relationship with B.
His Honour then referred to the family report prepared on 2 March 2009 (i.e. the day before the trial). He recorded that the report writer had spoken with both parents, with the maternal grandparents and with B.
The Federal Magistrate recorded that the report writer had noted that the maternal grandparents had been involved in B’s care from a very early age and that B had a “very loving relationship with them”. His Honour said that the father, in his oral evidence, had “sought to underplay the strength and importance of the maternal grandparents relationship with [B]”. His Honour expressed his view that the child’s relationship with her grandparents, but in particular the maternal grandmother, was “much stronger and more important than the father is prepared to acknowledge”.
Having noted that there was no criticism of the father’s care of B, the Federal Magistrate said the same could not be said of the mother. In this regard he noted that the report writer had said that both the father and the maternal grandparents considered that the mother’s care of B in quite recent times had been “unreliable”, and that the “mother had often not attended on a regular basis to see [B], and had made promises which were not kept”.
His Honour also recorded that the mother and maternal grandparents could not agree between themselves what time B would spend with each of them. He again noted there were continuing difficulties between the mother and the maternal grandmother.
His Honour noted that the report writer had recorded that B was doing well at school, and presented as “being a very assertive and well adjusted little girl”. The father had also presented to the report writer as “a very committed and enthusiastic father”.
His Honour then referred to the fact that the mother was boarding in a house in Brisbane. Also living in the home were the owner and another boarder, as well as the owner’s young son who stayed with him on a shared care basis. His Honour recorded that “no evidence was forthcoming from the mother’s two housemates regarding the mother’s living arrangements, nor of their adequacy for [B]”.
His Honour then recorded that it was the report writer’s view that the mother presented as “focused, rational and credible”, and had claimed that she was now capable of playing a much more active part in B’s life.
The Federal Magistrate then noted that the mother had indicated that in the event that the father and B were permitted to relocate she would remain in Queensland. Although the father had not been asked, the tenor of his case suggested to the Federal Magistrate that he would not move to Perth if B was not able to move with him.
His Honour then recorded the report writer’s impression that both of the parents and the maternal grandparents were “extremely focused on making a contribution to [B’s] physical and emotional life”, and there was no doubt they all loved her “intensely”. The report writer said he had not seen or heard anything that would lead him to be concerned about the mother’s present personal and social functioning, and he also found the father was equally impressive and focused.
Turning to the child’s wishes, the Federal Magistrate recorded that B had expressed a wish not to move to Perth because she thought she would miss her mother and her maternal grandmother. His Honour then recited the following observations made by the report writer about B:
I was very much impressed with this sensitive and pleasant little girl. She is very cognitively gifted also, I would say. I was certainly left with an impression that she is resilient enough to tolerate, admittedly after some initial adjustment, a relocation to Western Australia with her father, but that ideally she would wish to remain in Queensland where she has frequent access to not only the mother, but also the maternal grandparents.
His Honour then recorded that the report writer had questioned whether it was really necessary for the father to relocate to Western Australia and deprive B of frequent time with the maternal grandparents and with the mother. The report writer considered that the ideal way forward was for B to have frequent visits and interaction with both parents and the maternal grandparents.
His Honour then recorded that the father had made the point very well that if B remained living in Queensland “there is the strong possibility that nothing much will change”. He recorded that as recently as the weekend before the trial there had been an altercation between the mother and maternal grandmother and that B had been disappointed by the mother not taking her to a promised activity.
The report writer was not required for cross‑examination. His Honour noted that he read his report as being “equivocal to what is in [B’s] best interests”. Although the report writer considered it would be “ideal” for B to live close to both parents and grandparents, his Honour said it was equally clear that the report writer believed that B would tolerate a move to Western Australia. He observed that the report writer’s opinion was that both parents should continue to spend significant time with B, but this was based on his perception that the mother would, “despite her past history, facilitate that in the future”. His Honour said there was no assurance this would, in fact, occur.
His Honour then cited with approval observations made by Boland J in Morgan and Miles (2007) FLC 93-343. Amongst other paragraphs which the Federal Magistrate cited from Boland J’s judgment was the following:
91.The artificiality of determining a parenting application involving relocation on the basis of distance is well demonstrated by the example given in the Family Law Council report (see paragraphs 2.28 to 2.32). This leads me to conclude that it is not distance per se which should be the determinative criteria. In many cases what is relevant is the consequence of the move or proposed move. The issues to be determined may be quite different for example, for an infant or toddler developing attachments, to those of older children; or for economically impoverished families where fuel costs may be unaffordable thus impeding maintenance of a meaningful relationship. Conversely, there may be little impact on maintaining a meaningful relationship between a child and the non relocating parent particularly if the child has a history of living predominantly with the relocating parent, and spending time with the other parent where, with alternate arrangements, the child’s relationship with the non relocating parent can be maintained and fostered.
The Federal Magistrate then referred to passages from the decisions of the Full Court in Taylor v Barker (2007) 37 Fam LR 461 and Sampson v Hartnett (2008) 38 Fam LR 315, as well as Pender & Hayward [2007] FamCA 1526. Having done so, his Honour noted there was no evidence that the presumption in favour of equal shared parental responsibility contained in the Family Law Act 1975 did not apply, but also noted that the presumption may be rebutted by evidence satisfying the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
His Honour recorded his satisfaction that it would not be in B’s best interests for her parents to have equal shared responsibility, noting that the history of their relationship did not augur well for such a regime. He further found that the mother had not yet demonstrated an ability to fully participate in B’s care and that the parties still had considerable difficulty communicating. He accepted the father’s evidence that the mother was “unreliable and inconsistent in her behaviour towards [B]”. His Honour concluded that the better course was to make no order allocating parental responsibility.
His Honour then recorded that as no order for equal shared parental responsibility had been made it was strictly unnecessary for him to consider an order for equal time, or substantial and significant time, in accordance with ss 65DAA(1) and (2). He nevertheless noted that the time B spends with each parent was a matter which he was required to resolve and he further noted that whether it would be “reasonably practicable” for B to spend equal time, or substantial and significant time, with both parents would in large part be determined by whether the father was permitted to relocate. However, he said that even if the parents remained living close to each other he was not persuaded such outcomes were reasonably practicable. He said such arrangements had not been able to be implemented over the last eight and a half years. He also said the report writer was “sceptical as to whether the mother is sufficiently rehabilitated as to be able to care for [B] by herself”.
His Honour also found it was not in B’s best interests to spend equal time, or substantial and significant time, with the mother. He observed that while the mother’s position at the conclusion of the hearing was that B should remain with the father, she proposed that when the criminal matters were resolved there should be a week-about shared care arrangement. His Honour said such an arrangement had never been in place and was “not supported by any evidence”.

His Honour then went on to consider the matters set out in ss 60CC(2) and (3). He said it was plain from the family report that B “has a bond with her mother which ought continue”. He noted that the central question was whether or not the mother can maintain a meaningful relationship with B if the father is living in Perth and the mother is living in Queensland. In considering this question the Federal Magistrate recorded that it was accepted that the only time the mother could see B would be during school holidays. The mother could also travel to Perth if her parole conditions permitted, but he said there was no evidence to allow him to conclude that she could afford such travel.
In a paragraph that is of particular importance to this appeal the Federal Magistrate then said:
64.In my view, the mother’s decision to remain living in Southeast Queensland, if the father and [B] relocate to Perth, is one that lacks child focus. The mother is unemployed. She has a troubled history in Queensland with an extensive criminal record. Her relationship with her parents is not good. The mother was unable to offer any cogent reason why she could not move to Perth so that she could spend more time with her daughter, if the father and [B] lived there. [B] would obviously benefit from continuing to have a meaningful relationship with both of her parents.
The Federal Magistrate then said that B’s view that she would prefer not to move to Western Australia had to be given some weight in light of her maturity and level of understanding.
His Honour next considered B’s relationships with members of her family. He found that her relationship with her father was “a strong one”. He also found that B had “a close and loving relationship” with her mother, although she suffered when her mother let her down.
He also accepted that B had “a close and loving relationship particularly with her maternal grandmother with whom she has spent a lot of time”. He recorded that B also has a relationship, albeit not as strong, with the paternal grandparents. In this regard he noted the father’s contention that if permitted to relocate, the child’s relationship with the paternal grandparents would strengthen, as it would with other members of the father’s “close Italian family”.
His Honour next found that the father had been willing and able to facilitate an ongoing relationship between B and her mother, although the mother had “not always been willing to reciprocate the offers made to her”. His Honour also expressed the view that B would “experience a sense of loss in being separated from her mother and the maternal grandparents, particularly the maternal grandmother”, but then expressed his satisfaction that the father had the capacity to provide for B’s needs, including her emotional and intellectual needs, whereas the mother’s capacity to do so was untested.
In concluding his reasons, the Federal Magistrate said:
68.Putting it in practical terms the issue that I must decide is whether it is in [B’s] best interests to move to Perth to a place where her father will have the support of his extended family, and receive a more substantial income with which to support [B], and she will have the availability of the members of the father’s extended family to care for her and to form a relationship with her balanced against the substantial diminishing to her of her close relationship with her maternal grandparents and with her mother. The latter could be ameliorated if the mother relocated to Perth. However it is her choice, once parole conditions permit, whether she is prepared to do so. On the other hand, if the father is forced to remain living in Southeast Queensland he will not have the support network that he craves. There will be the opportunity for [B] to spend more time with her mother although past history, including events on the most recent weekend that [B] was to spend time with her mother give cause for concern that the relationship will not develop as the mother hopes and the report writer assumes.
69.In my view the matter is balanced but I have concluded that the best interests of [B] are better served by allowing the father to relocate to Perth. [B] will then have the benefit of a stable extended family network, her father will be able to better care for her, and she will have a large measure of stability in her life. [B] will be able to continue to spend time with her mother and maternal grandparents during school holidays and whenever either the mother or maternal grandparents are able to travel to Perth to see her. The mother should carefully reconsider her refusal to move to Perth to spend more time with her daughter as it seems to me there is no compelling reason putting aside the outstanding criminal matters for her to remain in Queensland.
70.In those circumstances the father’s proposal should be preferred, and I will make orders accordingly.

The Grounds of Appeal

The mother’s amended Notice of Appeal filed 15 October 2009 asserts that:
·    there was “procedural unfairness and a miscarriage of justice arising from the mother’s incompetent legal representation”;
·    decisions made by the mother’s counsel during the trial “had the effect of producing an unfair result”;
·    “the incompetence of the mother’s counsel” was such that there had not been a “fair trial”;
·    the Federal Magistrate failed to give sufficient weight to the wishes expressed by B and the reasons for those wishes;
·    the Federal Magistrate failed to give sufficient weight to the views of the report writer; and
·    the Federal Magistrate failed to give sufficient weight to the “difficulties the mother would encounter should she relocate to Perth”.
We will deal first with the alleged incompetence of the mother’s representatives and then discuss the errors said to have been made by the Federal Magistrate. We will conclude by explaining why we are not prepared to accede to the mother’s application to adduce further evidence.

Ground 1 - incompetence of mother’s legal representation

Ground 1 contains 18 particulars of the alleged incompetence of the mother’s former legal representatives. Before dealing with the various complaints it is important we outline the principles that apply where the challenge to the decision relates not to error on the part of the decision maker, but rather the incompetence of the appellant’s legal advisers.
In OP v TP & The Child Representative (Conduct of Counsel) (2003) 30 Fam LR 281 (“OP v TP”) the Full Court observed that:
90.In civil litigation a client is normally bound by the actions of his/her counsel. Similar considerations apply in criminal cases. However, in criminal cases the courts have been prepared to set aside convictions in circumstances where the incompetence of counsel has led to a miscarriage of justice…
In referring to an earlier case where a party had sought to have property orders set aside based on the incompetence of her counsel, the Full Court said:
97.The Full Court [in Clifton v Stuart (1991) FLC 92-194] accepted a submission from counsel for the husband that it was not sufficient for the wife to claim incompetence or neglect by her counsel because nothing could be pointed to which established that the means by which the judgment was obtained was so wrong as to involve a clear injustice. The court agreed that there might conceivably be cases in which professional incompetence did result in a miscarriage of justice, for example, if the representation was so bad as to be the equivalent of no representation at all, or if the representation was perverse, or if the representative was in league with the other side…
98.In that case the court distinguished between an unfair result and an unfair trial and held that only the latter could constitute a miscarriage of justice.
99.It must be remembered that this was a decision relating to the meaning of a particular section of the Family Law Act and we think that the principles there stated should be confined to property proceedings in so far as they indicate that an unfair result is not an indicia of a miscarriage of justice.
After considering authorities from overseas, and noting that a distinction must be drawn between property matters and cases involving children, the Full Court went on to say:
122.So far as the children’s jurisdiction is concerned, the Full Court has pointed out in the past that this is not strictly an adversarial jurisdiction: see Separate Representative v JHE and GAW … (1993) FLC 92-376; Hutchings and Clarke … (1993) 92-373; Re Z … (1996) FLC 92-694; T and S … (2001) FLC 93-086. It is a jurisdiction in which the children’s best interests are paramount. The children, though not parties, are the subjects of the litigation. In such circumstances we think that the principles to be applied to children’s cases are different to property cases, and perhaps should be more liberal than in criminal cases in relation to this issue.
123.We think that it clearly emerges from the cases that we have cited that in criminal and child protection cases the incompetence of counsel can operate to constitute a miscarriage of justice in a number of ways. If the incompetence is of such a nature as to so affect the conduct of the trial that it ceases to be a fair trial then that, of itself, can require the ordering of a retrial, regardless of whether the result is apparently fair.
124.On the other hand, from a procedural point of view the trial may appear to be regular, but incorrect or unjustified tactical decisions made by counsel may have had the effect of producing an unfair result. If this be the situation it is necessary for an appellant to establish, not only that the decisions were wrong or incompetent, but that their effect was likely to have brought about a different result if they had not been made.
Counsel for the father submitted before us that no findings had been made by any court or tribunal that the mother’s legal representation was incompetent or unprofessional, nor that any disciplinary action had been taken against the mother’s representatives. We accept the submission of counsel for the mother that none of these things need to be established in order to enliven the power of the Full Court to set aside a decision made following an unfair trial.
It was further submitted on behalf of the father that there was no evidence to suggest that even if the mother had the benefit of alternate representation the result of the trial would have been any different. Again we accept the submission of counsel for the mother that this is not the only test. As the Full Court said in OP v TP, if the incompetence is such that the trial ceases to be a fair trial, that of itself can require a retrial regardless of whether the result may appear to be fair.
We turn now to consider the complaints made concerning the conduct of the mother’s former representatives. We do so mindful of what was said by the Full Court in OP v TP at paragraph 153, namely:
153.Given our findings that no miscarriage of justice has been established, it becomes unnecessary for us to consider the other issue that the husband would have needed to establish in order to attack the judgment, that being the alleged incompetence of his counsel. We agree with the views expressed by Major J on behalf of the Supreme Court of Canada in R v GDB, above at 29, to the effect that in those cases where no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. In referring to the performance component, his Honour was referring to the issue as to whether counsel’s acts or omissions constituted incompetence. In that regard, we also bear in mind the comments of O’Connor J in Strickland’s case, endorsed by Major J in the above case, as to the need to be cautious when exercising hindsight.
Unlike the position in OP v TP, the outcome of the father’s application here was by no means clear-cut. Indeed, the Federal Magistrate described the case as “balanced”. It is not possible for us to say with confidence that the alleged incompetence of the mother’s advisers, if established, would not have resulted in prejudice. While we therefore propose to consider the complaints, we keep in mind the importance of being cautious in employing the benefit of hindsight.
The first group of complaints (Grounds 1(a)(i), 1(a)(ii), 1(b)(i)) was directed to the failure to call evidence from the maternal grandparents. It was asserted that as a consequence of that failure, the Federal Magistrate had:
·    wrongly concluded that the mother’s relationship with her parents was strained;
·    wrongly concluded that there were continuing difficulties between the mother and the maternal grandmother;
·    attached weight to the failure of the grandparents to file affidavits;
·    failed to give sufficient weight to the effect relocation would have on the child’s relationship with the maternal grandmother; and
·    wrongly concluded that the maternal grandmother had little confidence in the mother’s ability to properly parent B.
In support of these grounds it was submitted that the Federal Magistrate’s conclusions were based on the mother’s evidence, the information contained in the family report and the evidence of the father. It was submitted that at times the evidence was conflicting. It was asserted that if there had been evidence from the maternal grandparents “this evidence would have been unequivocal and capable of being tested by cross examination”.
It was conceded that while the Federal Magistrate had acknowledged the closeness of the relationship between the child and the grandparents, there was insufficient evidence of the extensive role of the maternal grandmother in particular in her life. It was also asserted that the grandmother provided significant support not only to the mother but also to the father while the child was with him.
In reply, counsel for the father submitted that the conclusions drawn by the Federal Magistrate with respect to the mother’s relationship with the maternal grandparents, and the views of the maternal grandparents of the mother, were primarily based on the family report. It was also submitted that while the father had been somewhat dismissive of the role of the grandparents, his Honour had found in favour of the strength of their relationship with the child.
We find no substance in this part of the mother’s complaint. There was a sound tactical reason why the grandparents would not have been called as witnesses. This is apparent from consideration of what was said in the family report.
The report writer observed at the outset of the report (Appeal Book 109):
5.It should be noted here that although they [the maternal grandparents] have a profound and very definite interest in this matter, so far as it affects the welfare of the subject child, they are not parties to the litigation.
6.They were to tell me during interview that they had hoped to join with the mother in her legal response to the father’s application. However, it transpired, also during interview, that the mother does not agree with the maternal grandparents’ position. I will detail the conflicting positions later in the report.
The report writer later noted:
51.The maternal grandparents told me that they had hoped to encourage the mother to join with them in a “shared-care” arrangement. When I questioned the maternal grandparents concerning their conception of what a shared-care regime might be, they said that they envisaged that [B] would “live with us”, for most of her time, and would see the mother most weekends.
52.The mother made it clear to the maternal grandparents, as she made it very clear to me, that she does not agree with this division of [B’s] time, but considers that now that her lifestyle is stable, that [B] should now be living with her, if the father insists on relocating to Western Australia.
The report writer also later recorded:
71.She said that she was not in agreement with the maternal grandparents’ proposal for “shared-care”, because she had come to a conclusion that this effectively meant that the maternal grandparents would not allow the mother to play an active part in the child’s life.
The report writer also recorded (in paragraphs 83 and 84) that the maternal grandparents said they considered B should be living with them if the father was to relocate to Perth, and that they were “not happy about the mother’s environment”.
The mother’s primary application, up until the time of the closing addresses, was for B to live with her. The grandparents were opposed to that outcome. Once it is seen there was a tactical basis for not having called the maternal grandparents as witnesses, it becomes unnecessary to consider the consequences of that decision. We accept there may have been some adverse consequences for the mother’s case, but we are unable to conclude these would have outweighed the potentially detrimental consequences if the grandparents had been called.
The assessment of the decision not to call the grandparents should also be made in the context of the mother’s own evidence. In her oral evidence-in-chief she said that while she would visit her parents during the daytime, she would not stay overnight in order to avoid conflict (Appeal Book 187). She also volunteered that on the weekend prior to trial she had “a pretty big argument” with her mother, during which the grandmother threatened to call the police to deal with an issue about B (Appeal Book 187). She also acknowledged that her parents sometimes had concerns about her capacity to care for B, although she said they now expressed such concerns only during arguments, when her mother would “throw stuff” at her about the past (Appeal Book 188).
Apart from the mother’s evidence, there was the evidence of the report writer that the grandparents had expressed the view that in quite recent times the mother had been “unreliable”. The grandparents had also informed the report writer that the mother “had often not attended on a regular basis to see [B], and had made promises which were not kept”. The grandparents had told the report writer they did not want B to live with the mother fulltime. If they had been called to give evidence they would no doubt have been invited to expand upon their reasons for holding these views. Such evidence, coming from the mother’s own family, was potentially highly prejudicial to the mother’s case.
The Federal Magistrate gave careful consideration to the conclusions to be drawn from the failure of the grandparents to give evidence. As soon as the evidence concluded, he observed, “It’s a curious case isn’t it, that we don’t have the expert giving evidence and we don’t have the maternal grandparents giving evidence. That’s your case?” – to which counsel for the mother responded in the affirmative without further comment, although shortly afterwards he properly conceded there were “obvious issues” between the mother and her parents (Appeal Book 195 & 196). When the Federal Magistrate later enquired, “What am I to make of the fact that neither of the maternal grandparents have put on any evidence…?”, counsel for the mother replied, “My submission is that they think that is something to be sorted out between the parents” (Appeal Book 197).
The Federal Magistrate also raised his concerns about the absence of the grandparents in his interchange with counsel for the father. After counsel had conceded that the grandparents “have played some role to some significant extent in [B’s] life”, his Honour asked what he was to make of their absence. Before counsel answered, his Honour went on, “I don’t know if it is a Jones & Dunkel case because their evidence may well have assisted your side as well”. Counsel for the father responded by saying she could take his Honour to a number of places in the family report where concerns had been expressed by the grandparents; however, the Federal Magistrate said, “I don’t think you need to go any further than last weekend, do you? ‘If you don’t have the child back by 3 o’clock I’m calling the police’”.

The Federal Magistrate was entitled to accept the mother’s own evidence to establish that her relationship with her parents was strained and that the difficulties between them were continuing. There was evidence also to indicate that the grandparents had reservations about the mother’s parenting capacity. There was evidence to establish, and his Honour so found, that the grandparents had been involved in B’s care from a very early age and there was a very loving relationship between them. Indeed, he found the relationship was much stronger and more important than the father was prepared to accept.
All of these findings were made without the grandparents being called. It is entirely speculative for the mother to now suggest the findings would have been more helpful to her case if her parents had been called. The Federal Magistrate was quite right to observe that their evidence may have provided support for the father’s case.
We conclude our discussion of these complaints by observing that it has always been open to the maternal grandparents to intervene in the proceedings if they considered an order should be made for B to live with them, or for B to spend time with them that would be inconsistent with the father being permitted to relocate. For whatever reason, they did not do so, although it is clear from the family report they had been aware the proceedings were on foot.
Ground 1(a)(iii) asserts that the mother’s representatives were incompetent in failing to adduce evidence concerning her pending conviction as to the likelihood of a custodial sentence being imposed and the likely length of such sentence. It was said this omission created uncertainty as to whether the mother would be able to properly care for the child and also allowed the Court to wrongly conclude that there was no impediment to the mother relocating to Perth after 6 April 2009. The written submissions of the mother did little more than repeat the complaint.
The father’s counsel submitted that the mother had been cross-examined at length with respect to the pending charges and observed that the mother had ample opportunity to inform the Court as to the nature of the charges and any possible sentence. It was submitted that it would have been difficult for the mother’s representatives to obtain evidence concerning these matters where the mother herself was unable to convey even basic information concerning the criminal proceedings. It will be recalled that the Federal Magistrate found the mother’s evidence on this topic to be “vague and unhelpful” and found that she must have had a more detailed knowledge of the pending charges than the mother had provided in her evidence.
His Honour did attempt to explore this issue during closing addresses. When he enquired concerning the likelihood of a custodial sentence, counsel for the mother responded by saying that from his experience and from “the little bit I know of the charges, I think that gaol is not inevitable”. He went on to give reasons, but ultimately said he could not “assist any further without a crystal ball” (Appeal Book 203). He had previously said (Appeal Book 198) that “notoriously, one cannot second guess what might happen in those situations”.
We were informed at the hearing of the appeal that the mother had received a suspended sentence and had been placed on “parole” on the same terms as previously, including that she not leave Queensland for 18 months. However, nothing was said which persuaded us that this outcome could have been confidently predicted at the time of the hearing before the Federal Magistrate. There is therefore no substance in the complaint that the mother’s advisers were in some way incompetent, presumably in failing to call an expert in criminal law to prophesy on the likely sentence.
We accept that evidence might have been produced which would have satisfied the Court that if the mother was not imprisoned she might at least be sentenced on some basis which would prevent her from leaving Queensland for a period. We are not satisfied, however, that this would have provided any assistance to the mother given her unconditional statement to the Federal Magistrate that she did not intend to leave Queensland in the event that B was allowed to relocate to Perth.
Ground 1(a)(iv) relates to the failure of the mother’s legal representatives to put evidence before the Court concerning the adequacy of the mother’s proposed living arrangements. It is asserted that this omission precluded a conclusion that the mother could provide adequate living arrangements for the child. Once again, the mother’s written submissions in support of this ground do no more than repeat it. We should observe, however, that there did not seem to be any concern on the part of the Federal Magistrate about the mother’s accommodation as such, but rather about the identity and background of the people with whom she was living.
The evidence established that the mother was boarding with two men. We are not persuaded that the failure to call evidence from them was anything more than a tactical decision. There is no reason to assume that the mother’s housemates would have done anything to support her case. In this regard we note that the mother now seeks to introduce further evidence in the form of an affidavit from one of these men, namely [Mr C], with whom the mother is now in a relationship. That affidavit acknowledges that Mr C was previously a drug user and has a criminal record – albeit he says he has been drug free for many years and claims his criminal record is minor. Had he been called, issues associated with his past may have been explored. It is conceivable also other issues would have been explored, such as the real status of his relationship with the mother. In this regard we note that the mother’s case is that she was once in a relationship with Mr C, was not in a relationship at the time of trial, but is now back in a relationship with him.
In any event, as counsel for the father submitted, it could be concluded from the Federal Magistrate’s orders that he had no immediate concerns about the mother’s living arrangements, since he did not make the order sought by the father that the time the mother was to spend with B should be at the home of the maternal grandparents. His orders would permit B to spend half of all school holidays living in the mother’s home.
Ground 1(b)(ii) attacks the failure of the mother’s counsel to cross‑examine the father’s brother. It was asserted that, given the father’s proposed employment was a significant factor, “it was incumbent on the mother’s legal representatives to test the voracity [sic] of the evidence relied upon by the father”. In support of this ground it was submitted that no “collateral evidence” had been provided to support the statements made by the brother, and no particulars of the employment had been provided. It was further submitted that counsel should have put to the brother that the father’s criminal history might be an impediment to either the referrals he intended to give, or alternatively, to the father actually obtaining work as a consequence of the referrals.
The affidavit of the brother (Appeal Book 104 - 105) did contain some detail of the sources of the work that could be referred to the father. More importantly, there was no suggestion that the mother or her representatives had any information to suggest that his evidence was anything other than accurate. In the absence of such information it would arguably have been unsafe or even inappropriate for the mother’s counsel to require the brother to be cross‑examined. There may also have been other tactical reasons why the mother’s counsel elected not to cross-examine him.
Ground 1(b)(iii) complains that the failure of counsel to “properly explore the father’s ability to obtain work given his criminal history” had allowed the Court to wrongly conclude that the father would receive a larger income in Perth. There is no substance in this proposition. The evidence was that the father anticipated having work referred to him by his brother. There is no reason to consider that the father’s criminal record would preclude him from undertaking the work that would be referred to him.
Ground 1(b)(iv) concerns the failure of counsel to cross‑examine the report writer in circumstances where it was asserted that the report had not adequately addressed the effect the relocation would have on the mother’s ability to maintain a relationship with the child. The mother’s counsel initially indicated at the hearing that it was intended the report writer be cross‑examined; however, there was no indication that any arrangements had been made for him to be available. In any event, after the mother’s evidence was completed, counsel indicated that he was no longer needed.
We do not consider there is any substance in this complaint. The report writer had stressed his significant concerns about the impact on the relationship between B and the mother in the event that the relocation was permitted. It was arguably a sound tactical decision by counsel for the mother to content himself with that evidence and not open up the possibility that counsel for the father might take the opportunity to challenge those parts of the report favourable to the mother. A question may also have arisen as to whether the report writer’s qualifications (Bachelor of Arts in German Language and Literature and Master of Arts in Social Work – Appeal Book 107) would have been sufficient to allow him to give expert evidence on the impact of relocation on the mother’s ability to maintain an ongoing relationship with B.
Ground 1(b)(v) asserts that the mother’s counsel “failed to effectively challenge the father’s evidence” which in turn led the Court “to wrongly conclude that the mother chose to spend irregular time with the child, and had an inconsistent attitude towards that time”. In support of this ground it was submitted that the mother’s affidavit material had deposed to the difficulties she had experienced spending time with B in the past. It was further submitted that “these difficulties do not unilaterally arise from the mother, but are generally associated with the father’s attitude towards the mother as well”.
Having examined the questions put to the father during cross-examination by the mother’s counsel at trial (Appeal Book 173 and following), we do not accept that the father’s case relating to the mother’s inconsistency in spending time with B went entirely unchallenged (notwithstanding what the Federal Magistrate said on that topic). In any event, the mother’s parents had told the report writer that the mother had often not attended on a regular basis to see B and had made promises which were not kept (Appeal Book 114).
The remaining complaints in Ground 1 assert that the incompetence of the mother’s counsel “was of such a nature that it affected the conduct of the trial so that the trial ceased to be a fair trial”. Nine different particulars were provided in an attempt to demonstrate this proposition. It was submitted that the failure of the mother’s counsel to adduce evidence from the grandparents, to cross-examine the report writer and the father’s brother, and the limited cross-examination of the father, precluded submissions by counsel which would have had an effect on the Court’s determination.
In this grouping it was first asserted, by Ground 1(c)(i), that the mother’s counsel had failed to “properly explore the father’s criminal history”. It was submitted that:
…. the mother’s counsel failed to properly explore the father’s criminal history so as to allow submissions to the Court in respect of the liklihood [sic] of the father reoffending, the father’s associates and their involvement in criminal activities, the exposure by the father of the child to criminal activities or to associates of the father involved in criminal activity, and the effect such exposure may have on the child’s welfare in the future.
The mother has sought to adduce further evidence on the hearing of the appeal concerning the extent of the father’s involvement in the criminal underworld. She is concerned that these issues were not brought to the Court’s attention or explored fully during the hearing. However, reference to the evidence on which the mother relied establishes that these matters were at least before the Federal Magistrate. The mother gave “evidence” of the father’s associations with criminals in paragraph 17 of her affidavit (Appeal Book 78 - 79), although he joined issue with these allegations in his affidavit (Appeal Book 91 - 92). The mother’s own “evidence” on this topic was vague to say the least. Given her apparent incapacity to provide information about her own criminal offending it would not be safe to assume that she was able to provide her legal advisers with any information concerning the father’s behaviour which could usefully have been put to the father in cross-examination.
We also accept the submissions made by counsel for the father that there would be issues concerning the admissibility of the further evidence the mother seeks to introduce regarding the father’s involvement with criminals. Putting that to one side, there is no evidence to indicate that the mother drew this additional “information” to the attention of her former legal advisers. No issues of incompetence could arise if the information was not conveyed to the mother’s legal advisers. Importantly, the further evidence does not provide any basis for concluding that the father misled the Court when he asserted that he has only ever been in prison once and has not used drugs for approximately 15 years.
There was then a series of complaints (Grounds 1(c)(ii) to (viii)) asserting that as a consequence of the incompetence of the mother’s advisers, “evidence before the Court at the conclusion of the hearing was incomplete or untested”, which in turn had led the Court to a variety of incorrect conclusions. This included, for example, that the mother would still be able to maintain a meaningful relationship with the child if the relocation went ahead. The submissions made in support of this ground did no more than repeat the grounds. No submissions were made to indicate what evidence the mother’s legal representatives should have led which would have resulted in the Federal Magistrate coming to a different conclusion. These grounds lack merit.
The final complaint in this group (Ground 1(c)(ix)) asserts that counsel for the mother was incompetent because he put the proposal for the child to live with the father as an amended proposal, rather than as an alternative which might be ordered in the event that the court was prepared to make an order for the child to live with the mother. It was submitted that the mother did not understand the effect of the amendment and did not intend that her application for B to live with her would be abandoned.
Regardless of the instructions that may have been given, there was no prospect on the evidence that the Federal Magistrate would have contemplated an order for the child to live with the mother. The only realistically available options were the child to live with the father in Perth or with the father in Brisbane. The Federal Magistrate stated this firmly to counsel for the mother in closing addresses (Appeal Book 199 – 201). After he had done so, the following exchange is recorded in the transcript (Appeal Book 201 and following):
FEDERAL MAGISTRATE: Well, now is the time for final addresses and what orders you want me to make and I am inviting you to say do you press order 1 and 4(a)?
MR WESSLING-SMITH: Sorry, your Honour, if I could have a moment? Your Honour heard in cross-examination [the father] about orders in place for the mother to spend time with [B]. Your Honour will see from the orders there hasn't been that, there's been (indistinct) which appears to not work on occasion. My instructing solicitor has taken instructions and what she would be happy to see implemented is if the father remains in Queensland and remains in full - that [B] lives with the father, that orders be put in place allowing for increased and fixed time for the mother to spend with [B]. And I had a brief indication that in accordance with what is in [the report writer’s] report, that weekend arrangements would be appropriate, and also in the mother's unsupervised care. Your Honour will see from [the report writer] that [the report writer] at least has no great concerns about where my client is living and other people who are living there, so he doesn't share those concerns.
FEDERAL MAGISTRATE: So what that means is order 1 except live with the father, and order 4(a) except spend each alternate weekend with the mother, so that is the opposite of the final orders sought.
MR WESSLING-SMITH: I'm sorry, would your Honour mind repeating that?
FEDERAL MAGISTRATE: What you have just put to me is that the child live with the father and spend each alternate weekend with the mother which is the converse of 1 and 4(a).
MR WESSLING-SMITH: What [the report writer] puts up is every weekend with the mother and that is a situation my client is happy to see, and he also says this, that she can pick up [B] from Friday afternoon school until Monday morning and take her back to school on Monday morning, which I think, and I am second guessing where he is going there, but that might be to get my client more involved in the school routine. But that is not to say that my client gives up completely on a shared care arrangement, should [the father] stay in Queensland, so what I see [the report writer] recommending in his report is a transition from what the situation is at the moment. In my submission he says there should be fairly immediate fixed orders about my client seeing [B] more on weekends, and that there be a transition up to a shared care type arrangement.
Perhaps what might be the best thing is for me to put together a minute of those orders, and I can even do that in writing now, as I'm doing it on the fly a bit. (emphasis added)
It will thus be seen that instructions were taken from the mother before her counsel advised the Federal Magistrate that the application would be amended. Immediately before the midmorning break was taken the Federal Magistrate invited counsel for the mother to formulate the amended orders proposed. After the break, counsel announced the detail of the amendments the mother was seeking, namely that B would live with the father until the finalisation of the criminal proceedings and thereafter there would be a week-about arrangement (Appeal Book 202).
The mother has applied for leave to adduce further evidence to establish the basis for the submission about her lack of understanding of the effect of the amended relief sought at trial. Even if this evidence were to be admitted and accepted it would not advance the mother’s appeal for the reasons we have given. There must, however, be some doubt about the accuracy of the mother’s current assertion given what can be seen from the transcript of the way in which the mother’s application was amended.

Grounds 2, 3 and 4 - errors on the part of the Federal Magistrate

The mother asserts that the “fundamental error” was the “lack of sufficiency of weight” given by the Federal Magistrate to:
·    the child’s wishes (and the reasons for those wishes);
·    the views of the report writer; and
·    the difficulties that the mother would encounter should she relocate to Perth.
Appeals directed to matters only of weight in cases involving the exercise of judicial discretion face obvious difficulties, as reference to the authorities will demonstrate. Those authorities were conveniently collected and discussed in G & G [2004] FamCA 1179 where Warnick J said :
82.The statements of principle applicable to appeals from discretionary judgments are familiar. Revisiting those statements, one is struck by the regularity with which the width of discretion of the trial court and the caution that the appeal court should exercise, are stressed. This is demonstrated by adding emphasis within some of the often quoted statements of principle. In Bellenden (formerly Satterthwaite v Satterthwaite) (1948) 1 All,ER 343 at 345, Asquith LJ stated the rationale of an appellate court’s approach:
“…We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.” (emphasis added)
83.In Norbis v Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178 Brennan J stated:
“The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.” (emphasis added)
84.Kitto J in Australian Coal & Shale Employees Federation v. The Commonwealth (1953) 94 CLR 621 at 627 said:
“…there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.”
85.In Gronow & Gronow (1979) 144 CLR 513 at 520, Stephen J said:
“…an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.”
86.Finally, in CDJ & VAJ (1998) 197 CLR 172 at 231, touching upon the features applicable to the exercise of discretion in the Family Court, Kirby J said:
“1.…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…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 difficulty 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.”
87.While I think one must be careful not to lose the ordinary sense of a passage by focussing excessively on one or two words, I note that the passages refer to the ambit being wide enough, at a minimum, to contain reasonable disagreement. In other words, something more even than actual disagreement is required before interference is justified. Attention is then drawn to the strength of disagreement, to determine whether the appellate court may interfere or not.
88.It seems reasonable to imagine that, along the continuum of levels of disagreement, before a conclusion is reached that the result below was plainly wrong or manifestly excessive, the appellate Judge may pass through a stage of uncomfortable uncertainty about the result below, of which uncertainty that result is entitled to the “benefit of the doubt”.
89.Reinforcing the proper reluctance of an appellate court to interfere, is the observation that a trial Judge, in exercising a discretion, may have an advantage over the appellate court in reviewing that exercise. We are, of course, familiar with discussion of the advantage of a trial Judge, particularly in relation to conclusions about the credibility of witnesses. But there are other reasons for such advantages beyond the opportunity to observe witnesses.
90.In Fox v Percy [2003] HCA 22, the High Court considered a decision of the Court of Appeal of the Supreme Court of New South Wales, reversing a judgment of the District Court of that State, following a review by the Court of Appeal of findings of fact based on the trial Judge’s assessment of the credibility of witnesses, but which findings were inconsistent with other incontrovertibly established facts.
91.In discussing the powers and functions of the Court of Appeal, Gleeson CJ, Gummow and Kirby JJ said: [para 23]
“[the appellate court] …must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.” (emphasis of Warnick J)

Dealing first with the ground relating to the weight given to B’s wishes, the Federal Magistrate correctly recited B’s view that she would prefer not to move to Western Australia because it would mean that she could not spend as much time with her mother and maternal grandparents. His Honour properly acknowledged that the views B expressed should be given some weight, considering B’s advanced maturity and level of understanding. His Honour considered, however, that other factors weighed more heavily in the balance. He was entitled to form that view in the exercise of the wide discretion available to him.
Similarly we are not satisfied that his Honour failed to give sufficient weight to the views of the report writer. His Honour accurately recorded the opinion of the report writer who felt that the “ideal” way forward was for B to have frequent contact with her mother, her father and the maternal grandparents. Although the report writer felt it would be better for B that she have continuing frequent contact with each of the parents and maternal grandparents, he also acknowledged he could not say that B would not, given time, tolerate the move to Perth. There is no obligation on a judicial officer to accept the opinions of a report writer, even in circumstances where the opinions are not challenged in cross‑examination. In this case his Honour had the benefit, which the report writer did not, of seeing both parents cross‑examined. It would seem that his Honour formed a less sanguine view than did the report writer of the likelihood of the mother’s relationship with B developing in the way she hoped it would (see in particular paragraph 68 of the reasons). Again, his Honour carefully weighed the matters in favour of and against the relocation and in the exercise of his discretion determined that the relocation option was the one most likely to promote B’s best interests. We are not persuaded that in doing so his Honour fell into error.
Finally, we reject the proposition that the Federal Magistrate failed to give sufficient weight to the difficulties the mother would encounter should she relocate to Perth. In support of this ground counsel asserted that the mother had the support of her family in Queensland and that “there was no evidence before the Court that the same support infrastructure would be available to the mother should she have agreed to relocate to Perth”. It was therefore asserted that the mother’s decision not to relocate to Perth was “not one of simple choice, but is rather based on her present inability to do so”.
The mother’s case was that she did not intend to relocate to Perth even if B was permitted to move. Her case was presented by her counsel on the basis that her “support base and her parents have given her great support with [B]… Her support base to some extent is here [i.e. Brisbane]…” (Appeal Book 196). At the conclusion of the closing address of the mother’s counsel the Federal Magistrate enquired what the mother’s intentions would be if the father was permitted to move with B. Counsel took instructions and then informed the court, without any qualification, that the mother intended to remain in Queensland (Appeal Book 204).
The Federal Magistrate’s decision was based on his acceptance of the fact that the mother would not be moving to Perth, albeit he expressed the hope that she might change her mind. Knowing that the mother did not intend to move, the Federal Magistrate still determined it was in the child’s best interests to be permitted to relocate with the father. The difficulties the mother might therefore experience if she did decide to move to Perth were academic.

Application to adduce further evidence

The mother made an application for further evidence to be admitted on the hearing of the appeal. This comprised affidavits by the mother herself, the maternal grandmother and [Mr C]. The mother had told the report writer that although she had previously been in an intimate relationship with Mr C they were no longer in such a relationship at the time of trial; however, Mr C’s affidavit now indicates that they are living in a relationship.
The mother’s counsel summarised the additional evidence as going to:
the relationship between the maternal grandparents and the mother, the relationship between the maternal grandparents and the child and the father, the views of the maternal grandparents as to the Mother’s parenting ability and relationship with the child, and importantly, in regard to the relocation order made by his Honour, the fact that the father did not relocate to Perth but instead moved the child to [another location in Queensland].
The mother’s counsel also drew attention to the fact that the mother had annexed to her affidavit of further evidence a variety of documents demonstrated to show the mother’s “support infrastructure” in Queensland. We do not regard those documents as advancing matters since evidence about the services the mother was accessing in Brisbane had been led at trial (see paragraph 14 of the mother’s affidavit (Appeal Book 78) and paragraph 68 of the family report (Appeal Book 118)). In any event, there is no reason to believe that similar services would not be available in Perth. In fact, it is noted that the mother had previously travelled to Perth to obtain [treatment for her addiction] which presumably was not available in Brisbane (Appeal Book 179).
The scope of the discretion of the Full Court to allow further evidence pursuant to s 93A(2) of the Act was considered by the High Court in CDJ v VAJ (1998) 197 CLR 172.We refer in particular to the following passages from the joint judgment of McHugh, Gummow and Callinan JJ:
104.In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors...
…
106.Other features of the statutory regime laid down by Pt X also distinguish the power to admit evidence under s 93A(2) from that existing at common law. Unlike courts in banc hearing applications for new trials, the Full Court of the Family Court can evaluate the facts of the appeal for itself and in many cases is in a position to evaluate the further evidence and take it into account in considering the appeal without the necessity to have the proceedings re-heard.
107.The discretion conferred by s 93A(2) to receive further evidence on appeal is not expressed to be limited in any way. In particular, the subsection contains no requirement, comparable with that often found in statutes conferring power on an appellate court to receive further evidence, that “special grounds” or “special leave” be shown before the evidence can be adduced…
108.When regard is had to Pt X and its place in the scheme established by the Act, it is apparent that the common law rules which govern the admission of fresh evidence in the common law courts cannot exhaustively define the scope of the discretion. The discretion is more ample than the principles applicable in common law proceedings and applied in Wollongong Corporation. That, of course, does not mean that the discretion reposed in the Full Court by s 93A(2) is unfettered… Although the discretion to admit further evidence is not attended by any express words of limitation, the subject matter, scope and purpose of the appeal provisions in Pt X of the Act and the issues involved in each appeal will point to the considerations which are or are not extraneous to the exercise of the power.
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures…
110.Another consideration is the effect of the principle that a provision conferring judicial power upon a court should be construed liberally and without the making of implications or the imposition of limitations not found in the words used by the legislature…
111.Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court's jurisdiction is neither purely appellate nor purely original. In Attorney-General v Sillem, Lord Westbury LC pointed out that “[a]n appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below”. Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable. In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal. Speaking of the similar jurisdiction of the English Court of Appeal, the Master of the Rolls, Sir George Jessel, said that the appeal is a “trial over again, on the evidence used in the Court below; but there is a special power to receive further evidence”. Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
114.No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
115.Other limitations on the exercise of the power arise from the fact that the discretion which s 93A(2) confers must be exercised judicially. In most cases concerned with parenting orders that means that it should only be exercised in favour of the receipt of the further evidence if that evidence is not only relevant to the welfare of the children but is also admissible according to ordinary principles or by statute, and if there is no reason apparent to the Full Court of the Family Court for believing that the evidence is not credible.
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
The application to adduce further evidence was strongly opposed. In reply to the application it was submitted that both the grandmother and Mr C were available at the time of trial to provide evidence on behalf of the mother. It was submitted that the grandmother and Mr C had sworn their affidavits “with the benefit of the decision and reasons of his Honour; and after deficiencies in the evidence supporting the Mother’s case at trial have been identified”. It was also noted that the affidavits provided evidence of matters that had occurred after the trial concluded (although that of course is not an impediment).
With one possible exception, we do not consider any of the further evidence on which the mother now seeks to rely meets the various tests laid down by the High Court in CDJ v VAJ (supra). Much of it was available at the time of trial. Some of it was, in fact, provided at the trial.
We have already indicated that we are not satisfied it was due to the incompetence of the mother’s advisers that any of the evidence now sought to be adduced was not put before the Federal Magistrate. Nor are we satisfied that reception of the evidence would lead to a conclusion that the decision of the Federal Magistrate was erroneous. Furthermore, a good deal of the evidence is either hearsay, opinion or argumentative. Significant proportions of it would be controversial and would require cross‑examination, hence necessitating a re-hearing.
The one aspect of the further evidence that requires separate consideration is the assertion that by the time of the hearing of the appeal the father had not moved to Perth, but instead had taken up residence [elsewhere in Queensland]. It was submitted that the Federal Magistrate “considered that at most, the child may be inconvenienced by a short move to Perth [and] did not contemplate that the father would relocate first with the child to [another location in Queensland], and later, at an indeterminable time, to Perth”. It was further submitted that the Federal Magistrate may not have made the relocation order “if there was no certainty as to the time frame of the anticipated move”. It was also noted that because the move to Perth had been considered imminent, no orders had been made providing for the child to spend regular time with the mother while she remained in Queensland. We nevertheless note that in paragraph 25 of her affidavit in support of her application to introduce further evidence the mother deposes to having had regular time with B each alternate weekend and during school holidays.
In dealing with this issue we note that the report writer recorded that the father had told him that he had originally hoped to relocate towards the end of 2008, but that he was now hoping to do this in June or July 2009 “during the school break”. The mother’s appeal was filed on 2 April 2009. There was an application for a stay but that application was dismissed on 1 May 2009 (B & L [2009] FMCAfam 407). The appeal was listed for hearing on 20 November 2009. We accept that in the meantime the father was free to relocate in accordance with the Federal Magistrate’s order.
The father did not provide an affidavit in response to the mother’s application to adduce further evidence which was filed on 15 October 2009 (nor was he obliged to do so as the further evidence had not been admitted). We are therefore unaware of the reasons why the father has apparently not yet moved to Perth by the time the appeal was heard. Ultimately, however, we consider that issues associated with the decision of the father to change his place of residence from Brisbane to another place in Queensland, rather than to Perth, is a matter that would be best explored by the mother making a further application at first instance.
Should further proceedings be commenced it would be open to the mother, and possibly the maternal grandparents, to seek orders defining their time with the child during weekends and on special occasions. It may be necessary for all parenting issues to be considered afresh depending on the evidence provided to the Federal Magistrate.
For these reasons we propose to dismiss the application to adduce further evidence.

The outcome and costs

For the reasons we have given we find no substance in any of the mother’s complaints. The appeal will therefore be dismissed.
We took submissions in relation to costs at the conclusion of the hearing. The father advised that he would seek an order for costs in the event the appeal was dismissed. We were informed that he had been legally aided at the hearing before the Federal Magistrate and on the hearing of the appeal. The mother was not legally aided on the hearing of the appeal and we were not informed how she was funding the appeal. There was no evidence to suggest that she had any income other than from social security or any assets against which a costs order could be enforced.
Given the mother’s limited means, and the expense she will incur in spending time with B, we consider each party should bear their own costs.

I certify that the preceding one hundred and twenty one (121) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 29 April 2010