Cales & Cales - [2010] FamCAFC 237

FAMILY COURT OF AUSTRALIA

CALES & CALES

[2010] FamCAFC 237

FAMILY LAW - APPEAL – CHILDREN – Whether the court has power to make an order restraining a mother from moving the children’s home anywhere outside the radius of 30 km from the Sydney GPO – Consideration of Sampson & Hartnett (No. 10) (2008) 38 Fam LR 315 and MRR v GR (2010) 240 CLR 461 – Power to make an order restraining the removal of children from a particular location exists in a court exercising jurisdiction under Part VII of the Family Law Act 1975 (Cth) – No appealable error established.

FAMILY LAW - APPEAL – CHILDREN – Whether the trial Judge failed to provide adequate reasons for restricting the children’s residence to within a radius of 30 kms from the Sydney GPO – Where the finding by the trial Judge that the mother had undermined the children’s relationship with the father was not open to him on the evidence – Where the trial Judge failed to give adequate reasons why the restraint on the children’s residence was necessary or appropriate – Appealable error established.

FAMILY LAW - APPEAL – CHILDREN – Whether the trial Judge erred in determining that the father spending substantial and significant time with the children could only occur if the mother lived within a 30 km radius of the Sydney GPO – No error in the trial Judge’s finding that substantial and significant time with the father was not possible if the children resided in the Hunter Valley – Whether the trial Judge erred in considering the children’s “best interest” in the context of s 60CC but not in the context of s 65DAA – Whether the trial Judge erred in not considering whether an order would be “reasonably practicable” in the context of s 65DAA – Where the trial Judge failed to adequately consider the practical and economic aspects associated with the mother residing in Sydney – Appealable error established.

FAMILY LAW - APPEAL – CHILDREN – Whether the trial Judge erred by failing to examine alternatives that might enable the development of a meaningful relationship between the children and their father – Where the mother is the undisputed primary caregiver – Where the trial Judge did not consider whether a meaningful relationship could be maintained between the father and the children if the children resided in the Hunter Valley – Appealable error established.

FAMILY LAW - APPEAL – APPLICATION FOR LEAVE TO AMEND NOTICE OF APPEAL – Where the respondent father did not seek adjournment – Where the respondent father did not seek to file additional material – Application allowed.

FAMILY LAW - APPEAL – COSTS – Appellant’s success on appeal arose because of errors by the trial Judge – Appropriate to grant certificates to both parties under Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the re-hearing.

Family Law Act 1975 (Cth) ss 60CC(2) and (3), 64B, 64C, 65D, 65DAA, 65DAC, 65DAE, 68B, 69H(1)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Family Law Rules 2004 (Cth)

Federal Proceedings (Costs) Act 1981(Cth) ss 6, 8 and 9

A and A: Relocation Approach (2000) FLC 93-035
AMS v AIF; AIF v AMS (1999) 199 CLR 160; (1999) FLC 92-852
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Department of Human Services & Tran (2010) FLC 93-443
D v SV (2003) FLC 93-137
Goode & Goode (2006) FLC 93-286
H & E (1999) FLC 92-845
Hepburn & Noble (2010) FLC 93-438; [2010] FamCAFC 111
Morgan & Miles (2007) FLC 93-343
MRR v GR (2010) 240 CLR 461; (2010) 263 ALR 368; (2010) FLC 93-424
Nguyen v Nguyen (1990) 169 CLR 245
Rosa & Rosa [2009] FamCAFC 81
Sampson & Hartnett (No. 2) [2007] FamCA 241
Sampson & Hartnett (No. 10) (2008) 38 Fam LR 315
ZN & YH and The Child Representative (2002) 29 Fam LR 20; [2002] FamCA 453

APPELLANT:

Ms Cales

RESPONDENT:

Mr Cales

FILE NUMBER:

NCF

358

2006

APPEAL NUMBER:

2009

DATE DELIVERED:	26 November 2010
PLACE DELIVERED:	Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

May, Boland & Cronin JJ

HEARING DATE:

18 May 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

12 January 2009

LOWER COURT MNC:

[2009] FamCA 7

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Page SC with Mr Alexander

SOLICITOR FOR THE APPELLANT:

Kinnear & Company

COUNSEL FOR THE RESPONDENT:

Mr Simpson SC with Mr Serisier

SOLICITOR FOR THE RESPONDENT:

Connah Steed & Co Solicitors

Orders

The appeal be allowed.
Subject to Order 3, that Orders 2 and 6 of the Honourable Justice Cohen made 24 December 2008 be set aside.
The setting aside of Orders 2 and 6 of the Honourable Justice Cohen made 24 December 2008 be stayed pending further order of a Judge at first instance.
The mother’s application for parenting orders be remitted for re-hearing before a Judge in the Sydney Registry other than the Honourable Justice Cohen.
The re-hearing of the mother’s parenting application be expedited.
The Court grants to the appellant mother a costs certificate in relation to the appeal pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of such part as the Attorney-General considers appropriate of the costs incurred by the appellant in relation to the appeal.
The Court grants to the respondent father a costs certificate in relation to the appeal pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of such part as the Attorney-General considers appropriate of the costs incurred by the respondent in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.

IT IS NOTED that publication of this judgment under the pseudonym Cales & Cales 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 SYDNEY

Appeal Number: EA 24 of 2009
File Number: NCF 358 of 2006

Ms Cales

Appellant

And

Mr Cales

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal by Ms Cales (“the mother”) against two orders made by Cohen J on 24 December 2008 (amended under the slip rule on 12 January 2009). The trial Judge made orders in parenting proceedings between the mother and Mr Cales (“the father”).
The mother’s application before the trial Judge sought, in broad terms, that the parties’ two young daughters, who by the date of the orders, were aged 6 and 5 years, live with her, and she be permitted to “relocate” their residence to the lower Hunter Valley in New South Wales a distance of approximately 166 kms from the father’s home in an inner western Sydney suburb.
The trial Judge ordered the children should, subject to an order that they reside within a radius of 30 kms from Sydney GPO (Order 6), live with the mother (Order 7), and that they should spend time with the father during school terms each alternate weekend, and each Wednesday from after school until 7.00 pm. Additionally his Honour made orders that the children spend half of each school holiday period with the parents, and time on other special occasions.
The gravamen of the appeal as argued before us was articulated orally by Mr Page SC who appeared for the mother. He submitted that there was no power under the Family Law Act 1975 (Cth) (“the Act”) which enabled a trial Judge to restrain the mother from moving the children away from the Sydney metropolitan area, and that in reality, such an order was an order which prevented the mother, as the undisputed parent with whom the children should primarily live, from moving to the area of her choice.
The mother’s senior counsel sought, at the hearing of the appeal, to amend the grounds of appeal to include an additional ground as follows:
That in ordering that the mother be restrained from moving the children’s home to any place outside a radius of 30km from the Sydney GPO the trial judge erred in that there existed no power available to make such an order.
The amendment to the grounds of appeal was opposed by Mr Simpson SC, counsel for the father. However, the father’s senior counsel did not seek, in the event we allowed the amendment, that we should adjourn the appeal, nor did he seek to put further written submissions to us. We indicated that we would give our reasons in respect of the amendment sought with these reasons.
The mother otherwise relied in her Notice of Appeal on five grounds of appeal. However, before us the principal challenge raised in the oral submissions of the mother’s senior counsel was that identified in the proposed amended ground.
We propose, after setting out some brief background material, to first consider whether leave should be granted to amend the Notice of Appeal, and if leave is granted, to deal with the additional ground. We will thereafter consider the grounds as appearing in the Notice of Appeal filed on 30 April 2009. There was no dispute before us, that if the appeal was allowed, the matter would require remission for re-hearing.

Background

The relevant background emerges from the trial Judge’s reasons and the appeal book.
The mother was born in September 1973 and was 34 years of age at the time of the hearing.
The father was born in March 1974 and was 33 years of age at the date of the hearing
There are two children of the marriage, J, who was born in March 2002, was aged 5 years at the time of the hearing, and E, who was born in October 2003, was 4 years of age at the date of the hearing.
The parties married in February 1998 and separated under one roof in November 2005. The parties physically separated in early December 2005 when the father left the former matrimonial home in a northern Sydney suburb. Their divorce became final in May 2007.
The father briefly resided with his parents before commencing cohabitation with his current partner in January 2006. At the time of the hearing the father was living with his current partner in the inner western suburbs of Sydney, and working on the northern beaches.
The mother principally remained in the former matrimonial home after separation and was living in that home at the date of the hearing, although she and the children spent four nights each “non contact week” living in her parents’ home in the lower Hunter Valley.
In August 2006 the father filed an application for interim orders. On 15 November 2006 interim parenting orders were made by consent. Those orders provided that the children live with the mother and spend time with the father each alternate weekend, half of midterm school holidays, and specified time during the Christmas school holidays. Order 6 of the orders provided that the father also spend time with the children each Wednesday from 4.30 pm to 6.30 pm. The orders also provided for the father to communicate with the children via telephone on two occasions per week when the children were living with the mother.
The hearing of the mother’s application for final parenting orders took place in October 2007. The trial Judge made orders on 24 December 2008 (which were amended under the slip rule on 12 January 2009) and his Honour delivered his reasons on 12 January 2009.
We were advised the parties resolved their property dispute on the morning of the hearing before us.

The proposed amendment

Although senior counsel for the mother commenced his oral submissions by noting that no amendment was sought to the grounds of appeal, and submitting that his Honour’s reasons required greater scrutiny than is the usual case because there had been a delay of approximately 66 weeks since the conclusion of the hearing until the publication of his Honour’s reasons for judgment, during the course of the hearing he conceded that he should, in fairness, amend the grounds by reason of his oral submissions which departed from the grounds in the Notice of Appeal and his written outline of argument. After the lunch adjournment we were provided with a handwritten copy of the proposed amended ground.
We accept there was a very lengthy delay from the hearing of the proceedings until his Honour published his reasons for judgment and the requirement for greater scrutiny of the reasons in those circumstances. The matter was unfortunately further delayed when the mother’s Notice of Appeal was rejected for filing. On 3 April 2009 Boland J granted leave to the mother to extend time to file her Notice of Appeal. No application for expedition of the appeal was made.
Procedural orders were made by the Appeal Registrar on 7 July 2009, including an order that the mother file her summary of argument by 18 August 2009.The mother’s summary of argument was filed on 17 August 2009 and no updating or amended outline of argument was filed or sought to be relied on before us.
Before us, senior counsel for the mother submitted:
… the law does two things: (a) it does not provide a power in a court making a parenting order to determine that a parent shall live in a defined locality or not live in a particular place; (b) if the decision in Sampson & Hartnett (No. 10) (2007) FLC 93-350 in its-which adopted what the Full Court said in B & B … (1997) FLC 92-755 – if that case provided a justification for an order that a court could make an order as to where a parent should live or where it should not live, it is not now good law by reason of the decision of the High Court in MRR. (transcript, 18 May 2010, p 6).
Senior counsel further submitted:
… Sampson & Hartnett, if it hasn’t been overwritten [sic] by MRR in the way that I say it has – because you cannot consider that there is a power to make that order if you consider that the passages from MRR … and the regime which must apply in the particular circumstances where an order contains an order for equal shared parental responsibility – they are inconsistent with each other. You cannot contemplate that reasonable practicability might suddenly become open if you crafted an order that made a woman shift or confined her to a particular area. That was just what the High Court said could not happen before you considered making the order and the “if it is” word is the essential part of that section. (transcript, 18 May 2010, p 11).
Mr Page SC then submitted in the alternative, if there was a power, as explained in Sampson & Hartnett (No. 10) (2008) 38 Fam LR 315, it would be rarely and sparingly exercised, and the trial Judge had failed to give adequate reasons why such an order should be made in this case.
We note that the High Court’s orders in MRR v GR (2010) 240 CLR 461; (2010) 263 ALR 368; (2010) FLC 93-424 were made on 3 December 2009 and reasons were published on 3 March 2010 some two months prior to the hearing of this appeal.
Senior counsel for the father pointed out it was incumbent, having regard to the oral submissions then made before us, for the mother’s legal representatives to have put him or his solicitors on notice of the proposed amendment to enable the Court to “appreciate and deal with, by reference to the terms of the application and the response that was before his Honour, whether there was an absence of power.” We agree that this should usually be the case.
He further submitted that if the mother wished to agitate an argument based on the decision in Sampson & Hartnett (No. 10), a decision which was handed down some thirteen months prior to the decision in this case, she should have sought to re-open the matter before the trial Judge so this Court would have a reasoned decision it could consider on appeal. We think there is some validity in that submission, although we accept his Honour was bound to follow the decision in Sampson & Hartnett (No. 10).
The question of late amendment of pleadings, and the interface of such an application with rules relating to case management are the subject of the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.We observe that the main purpose of the Family Law Rules 2004 (“the rules”) is framed in similar language to the ACT Court Procedure Rules 2006, the subject of consideration by the High Court.
Although the case before the High Court dealt with an application to amend a pleading at first instance and not a Notice of Appeal, we are satisfied the principles referred to by the High Court have equal application to a Notice of Appeal. At paragraphs 97 and 98 of Aon, Gummow, Hayne, Crennan, Kiefel and Bell JJ, having earlier referred to reforms to implement case management and the discussion in State of Queensland v JL Holding Pty Ltd (1997) 189 CLR 146 said, at paragraphs 97 to 99:
97 The objectives of case management are now expressly stated in r 21 of the Court Procedures Rules. It cannot be overlooked that later rules, such as r 21, are likely to have been written with the decision in JL Holdings in mind. The purposes stated in r 21 cannot be ignored. The Court Procedures Rules make plain that the Rules are to be applied having regard to the stated objectives of the timely disposal of the proceedings at an affordable cost. There can be no doubt about the importance of those matters in litigation in the courts of the Australian Capital Territory.
98 Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a “just resolution” is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
99 In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party’s opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all. Such a view may largely explain the decision of this Court in Shannon v Lee Chun, which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh. (footnotes omitted)
Their Honours went on to note, at 102 and 103, as follows:
102The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court’s discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.
103The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in JL Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case. (footnote omitted)

No explanation was proffered to us as to the reason for the delay in seeking the amendment. Senior counsel for the mother commenced arguing the appeal on the basis that the amendment was unnecessary, and that what he sought to argue could fall within the existing grounds of the Notice of Appeal. We observe that no issue of power to restrain the movement of children is raised in any ground in the Notice of Appeal.
We have determined to allow the amendment. Significant to our consideration is the fact that senior counsel for the father did not seek, if the amendment was granted, that the appeal be adjourned to enable him to meet the new ground, nor did he seek to file additional material at the conclusion of the appeal. These factors weighed heavily in the exercise of our discretion in determining to allow the amendment. We are also cognizant that the proceedings are parenting proceedings affecting the best interests of young children, and that the proceedings have been protracted with a significant delay from trial to the publication of his Honour’s reasons.
Notwithstanding the delay to date, we observe that it was unfortunate, given the significance of the issue raised, that we did not have the benefit of written submissions by the mother and the father on the topic, or detailed oral argument. That deficiency has regrettably caused further delay than we would wish in the publication of these reasons.

The grounds of appeal

The grounds of appeal, other than the amended ground which asserts lack of power to make an order restraining the mother from moving the children’s home anywhere outside the radius of 30 kms from the GPO, may be summarised as errors by the trial Judge in:
·failing to provide adequate reasons identifying the exceptional circumstances which required the mother to live with the children within a radius of 30 kms from the Sydney GPO;
·failing to “scrutinize” alternatives which might develop the relationship between the father and the children;
·finding substantial and significant time with the father could not be achieved unless the children lived with the mother within 30 kms of the GPO;
·failing to examine adequately the practical and economic aspects of the mother taking up residence within 30 kms of the GPO; and
·error in making an order for residence of the children with the mother conditional without proper regard to the fact the father did not seek, in any circumstances, a residence order.
In his oral submissions, senior counsel for the father submitted that the grounds as set out in the Notice of Appeal were in substance “weight” grounds challenging the exercise of discretion by the trial Judge (transcript 18 May 2010, p 24).

The trial judge’s reasons

We do not propose to extensively review his Honour’s reasons at this point. Rather we will now summarise his Honour’s critical findings as they are relevant to the amended grounds of appeal. We will later, when considering the specific grounds of appeal, return to his Honour’s reasons where appropriate to do so.
His Honour commenced his reasons noting the agreement of the parties that the children should reside primarily with the mother, and that there should be an order for equal shared parental responsibility. His Honour then said “the central issue is on [sic] whether the children should live in Sydney where the husband lives or the Hunter Valley where the wife lives”. It was submitted by senior counsel for the mother that this sentence demonstrated that the trial Judge fundamentally misdirected himself at this point by focussing on where the children should live and not with whom they should live.
Having set out the background of the parties’ relationship and the care of the two children following their respective births, the trial Judge proceeded to make credit findings adverse to the mother.
At paragraphs 43 to 47, his Honour summarised the relevant statutory provisions to be considered by a judicial officer making parenting orders under the Family Law Act 1975 (Cth) (“the Act”).
His Honour recorded that both parties sought an order for equal shared parental responsibility and that he proposed to make such order.
At paragraph 46, his Honour said:
… This requires the Court to consider whether it is in the best interest of the children and reasonably practical for them to spend equal time with each parent (s.65DAA(1)). As the parties are in agreement that the children should not spend equal time with each parent, I conclude it is neither in the children’s best interests nor reasonably practicable to make an order that they spend equal time with each party.
Thereafter his Honour, at paragraph 47, summarised the effect of s 65DAA(3), which sub-section sets out what constitutes substantial and significant time.
His Honour then observed, at paragraph 48, that “[t]he orders the wife seeks would make it impractical for the father to spend substantial and significant time with the children” and concluded, at the end of that paragraph:
… The husband’s application, if successful, would allow a regime to be established which would, very conveniently for all concerned except the wife, allow the children and the husband to have substantial and significant contact as well as proper involvement in their daily lives because it would not be prevented by distance.
Having then discussed his findings about the parties’ respective attitudes to each other, and the lack of communication between them, his Honour turned, at paragraph 54, to make comments critical of the mother’s behaviour, finding she was intent on distancing the children from the father.
At paragraph 63 of his reasons, the trial Judge, having discussed relevant matters under s 60CC(3), observed as follows:
… A failure to move to the Hunter is likely to undermine the relationship between the children, their maternal grandparents and other relatives who live in the Hunter Valley and the Newcastle area. Of course, a move to the Hunter will place a substantial burden of travel upon the children if they are to have, as they should, contact with the husband in his home and environment and with his milieu. As most young children do not travel well, there is also the spectre of travel interfering with the quality of contact once the destination has been reached.
His Honour went on to note, at paragraph 64:
The expense of travel and other means of communication between the children and husband and his family is not likely to be a significant impediment to that communication if the children live in the Hunter Valley. The same can be said in relation to the wife’s family if the children live in Sydney…
At paragraph 68 his Honour flagged that he would later in his reasons deal with the mother’s assertions about her financial position if she lived in the Hunter.
Having concluded what appears to be his discussion of s 60CC(3) factors, his Honour then, at paragraph 73, turned to consider the principles in cases determined after the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amending Act”), as well as a decision of Nicholson CJ in ZN & YH and The Child Representative (2002) 29 Fam LR 20; [2002] FamCA 453 and found there was nothing in Part VII of the Act which was an impediment on an individual adult’s freedom of movement. His Honour went on to say “[n]o order of mine will prevent the wife from living in the Hunter Valley”.
At paragraph 78, the trial Judge set out the reasons the mother advanced as being of financial advantage to her if she lived in the Hunter Valley, including the fact that the cost of housing would be considerably less than in Sydney.
His Honour went on, at paragraph 79, to record the mother’s evidence about her ability to work from home, but found she would need to go to her Sydney office on an average of twice per week. His Honour concluded:
… I do not accept that she will be forced to obtain a higher paying job if she lives in Sydney or that, if she does, it will be any less flexible than her current job. There is no evidence that, for the type of work she is qualified to do, there are higher paying jobs available.
At paragraph 81, his Honour discussed the practical and emotional support available to the mother if she lived in the Hunter Valley and said:
I accept that practical and emotional support will be more readily available to the wife if she lives in the Hunter Valley. I am not convinced to the requisite degree that such support will significantly assist her in her parenting ability or will otherwise benefit the children. If she lives with the children in Sydney, the husband and his parents will be able to take care of them more than they now do and as much as the wife’s parents and family members would if she lives in the Hunter. She is likely to take advantage of whatever practical help is at hand...
His Honour found the matters on which the mother relied to support the relocation were tactical ones made to support her claim. His Honour recorded that the mother would feel frustrated and stressed if she was unable to relocate. His Honour did not specifically deal with the issue of whether it was reasonably practicable for the mother to live in Sydney but did, it appears in the context of the father’s application for a restraining order, explain, at paragraph 85, as follows:
The exact limit of the restriction on place of living requires consideration. There is no reason why the wife should not be able to have as much freedom of choice of a place of residence as is consistent with avoidance of making face-to-face contact a trial. An area which will provide her and the children with a good compromise between affordability and desirability while not being so far from the area where the husband lives or reasonably could wish to live is conveniently available. In an area of 30km radius of the Sydney GPO there are many areas where the wife will be able to obtain housing which she can afford. I do not accept the wife’s claim that she must live in a house with a suitable yard because she has dogs. The children are more important than dogs. If they have to be sacrificed to maintain the quality of the relationship between the children and the husband this is not much of a price to pay.
His Honour then explained that the mother said she was “likely to obtain about $200,000.00 from any property settlement” and concluded, at paragraph 86:
… She is likely to get a higher proportion than otherwise if she has to live in Sydney, so the issue of affordability of Sydney over the Hunter Valley is not as clear as she claims. I regard it as appropriate to limit the children’s residence with the wife to within a 30km radius of the GPO. This limit will mean that, generally speaking, there will be only minimal limits on where the parties might live in respect of one another within Sydney, including the northern outskirts, and that the children will not be too overborne by travel for the purpose of contact.
His Honour then indicated, at paragraph 88, the type of orders he proposed to make, which included orders for the children spending time with the father each alternate weekend and every Wednesday during school terms from after school until 7.00 pm, together with half of all school holiday periods and other special occasion contact.

The applications before the trial judge and his honour’s orders

It must be remembered that this is an appeal against Orders 2 and 6 of his Honour’s orders. Given the nature of the complaints we are now called upon to determine we think it necessary to set out those orders. They provide as follows:
2. That the said children shall reside with the husband:
a.from 6pm on Friday to 6pm on Sunday or on a long weekend 6pm on Monday on each alternative weekend during the children’s school term;
b.for the first half of all the children’s school holidays which commence in an odd numbered year with the first half to commence on the breakup of school on the last day of the school term and end at 6pm on the last day of the first half of the immediately following school holiday period;
c.for the second half of all the children’s school holidays which commence in an even numbered year with the second half to commence at 6pm on the last day of the first half of the school holiday period and end at the commencement of the first day of school in the immediately following school term;
d.during each school term from the commencement of school on each Wednesday until 7pm that day;
e.each Father’s Day from 6pm on the Saturday immediately preceding it until the commencement of school on the following Monday if it is not otherwise a day when the children would reside with the husband;
f.on the husband’s birthday each year:
i.if it falls on a school day when the children would otherwise reside with the wife from immediately after school on [the husband’s birthday] to the commencement of school the next day or if the next day is a weekend or non school day until 9am the next day if it is otherwise a day when the children would reside with the husband; or,
ii.if it falls on a school holiday or a non school day when the children would otherwise reside with the wife from 6pm on the preceding day to 7pm on [the husband’s birthday];
g.From 6pm on Christmas day to 6pm on Boxing day in each even numbered year commencing in 2010.
6.That the wife is hereby restrained from moving the children’s home when they are living with her to any place outside the circumference of the area within a radius of 30km from the Sydney GPO.
From the manner in which the appeal was argued before us, it was apparent the mother’s complaint was focussed principally on Order 2(d) in relation to the time the children spend with the father. Additionally, the arguments in the appeal were focussed on Order 6. We observe at this point that the mother did not seek to appeal Order 7 of his Honour’s orders which provides as follows:
That the said children shall reside with the wife:
a.at all times other than those provided for in order 2. herein for so long as she resides within the area provided for by order 6. herein; and
b.notwithstanding any general provision to the contrary in order 2. herein
i.each Mother’s Day from 6pm on the Saturday immediately proceeding it until the commencement of school on the following Monday if it is not otherwise a day when the children would reside with the wife;
ii.on the wife’s birthday each year if:
1.if [sic] falls on a school day when the children would otherwise reside with the husband from immediately after school on [the wife’s birthday] to the commencement of school the next day or if the next day is a weekend or non school day until 9am the next day if it is not otherwise a day when the children would reside with the wife; or,
2.if it falls on a school holiday or non school day when the children would otherwise reside with the husband from 6pm on the preceding day to 7pm on [the wife’s birthday]; and.
c.from 6pm on Christmas Day to 6pm on Boxing Day in each odd numbered year.
At trial, the mother sought orders as set out in her amended application filed on 25 September 2006, including orders that the children live with her (paragraph 1), and that “the mother be permitted to relocate the children to live in the Lower Hunter Valley in December, 2006” (paragraph 2). She also sought an order (paragraph 3) that the children spend time with and communicate with the father during school terms each alternate weekend (paragraph 3.1), every alternate Sunday from 10.00 am to 4.00 pm (paragraph 3.2) and for one half of each school holidays.
The father relied on a response filed on 31 January 2007. In that response he agreed that the children should live with the mother, spend time with him during school terms each alternate weekend, and for half of the school holidays. He did not agree the mother should be permitted to relocate the children to live in the lower Hunter Valley. Additionally, he sought orders the parties have joint (not equal) responsibility “for making decisions about the long term care, welfare and development of the children”, and that the children spend time with and communicate with him “[a]t such other times as agreed between the parties from time to time, including from 3.30 pm until 7.00 pm each Wednesday, and on the children’s birthdays”. Paragraph 5 and 6 of the father’s response sought orders as follows:
5.That to implement the time spent with the father while the children live within a radius of twenty kilometres or within a distance of thirty kilometres by road (whichever shall be the greater) or the father’s residence [in an inner western suburb of Sydney], the father collect the children from the residence of the mother at the commencement of the time the children are to spend with the father and return the children to the residence of the mother at the conclusion of the time spent with the father, and if the children cease to live within the said radius or the said distance, the mother shall deliver the children to the residence of the father at the commencement of the time to be spent by the children with the father and shall collect the children from the residence of the father at the conclusion of the time spent by the children with the father.
6.That the children continue to reside within a radius of twenty kilometres or within a distance of thirty kilometres by road (whichever shall be the greater) of the father’s residence [in an inner western suburb of Sydney].
Senior counsel for the father pointed out to us that the father’s counsel at trial had told the trial Judge that the father was seeking more extensive time than set out in his response, and that his “preferred option” was a “long weekend each alternate weekend, so it would be Thursday evening to Monday morning or plan B would be overnight on the Wednesdays” (transcript, 4 October 2007, p 24). Although there was no formal application by counsel appearing for the father at trial to amend his response, counsel did foreshadow the possibility of “a four day weekend each fortnight” (transcript, 3 October 2007, p 66).
We observe that no minute of order setting out the orders sought by the father during the course of the hearing is in the appeal book, and we conclude other than the transcript references to which we have referred, no formal application to amend the father’s response was before his Honour.
As we have already noted, the interim orders which were in place up to the hearing provided for the children to live with the mother, and spend time with and communicate with the father each alternate weekend from 6.00 pm Friday to 6.00 pm Sunday, or 6.00 pm Monday in the case of a long weekend, together with one half of the school holidays. Order 6 of the consent orders provided as follows:
6.That the father spend time with the children when they are attending pre-school, no later than 4.30 p.m. and until 6.30 p.m. each Wednesday.

The jurisdictional challenge

As we earlier indicated, we did not have the benefit of written submissions in respect of this challenge, and the oral submissions of senior counsel for the father were, understandably, not extensive given the late notice of the amended ground of appeal.
As we have already noted in paragraph 37, senior counsel for the mother submitted that where his Honour first fell into error was by determining the application on the basis of where the children should live, not with whom the children should live. He submitted that there was no power to make an order which dictated where the children should live, but rather s 64B(2) dictated that a court could only make an order about with whom a child should live. Senior counsel submitted that s 68B(1), part of the injunction section within Part VII “would require some very lateral imagination to encompass a power to make an order that a parent move or live in a confined space during the course of a parenting order”. Nor, he submitted, did s 114, the injunction section within Part XIV provide the appropriate basis for making the order.

The alternative argument put by senior counsel for the mother was that if we determined that Sampson & Hartnett (No. 10) is no longer correct law because of the decision in MRR then the power referred to in Sampson & Hartnett (No. 10) (to compel a party to move) should only be sparingly made, and his Honour had, in the circumstances of this case, not provided adequate reasons to explain why such an order was necessary or appropriate.

The legislation

The effect of the changes introduced by the amending Act were explained in Goode & Goode (2006) FLC 93-286 in paragraphs 5 to 9.
Later, at paragraph 56, in Goode the Full Court explained:
In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).
In MRR the High Court (French CJ, Gummow, Hayne, Kiefel and Bell JJ), at paragraph 13, observed:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent. (footnote omitted)
In Department of Human Services & Tran (2010) FLC 93-443 May J explained that parental responsibility under the Act “does not include where the child shall live”. Her Honour went on to note “[t]his of course is not surprising as orders usually separately provide for where and when children will live with parents”. In separate reasons, Boland J, at paragraphs 176 to 199, traced the history of the legislative amendments dealing with parental responsibility. It is unnecessary we refer in detail to much of that discussion, however, paragraphs 193 to 199 are relevant to the issue in this appeal. They are as follows:
193.It is to be observed that s 65DAC(1)(b) refers to “major long-term issues”. That phrase is defined in s 4(1) of the Act as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
194.It is clear that particular aspects of parental responsibility are identified in s 4(1) in the definition of “major long-term issues” but other than reference to “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children” in s 61B, parental responsibility is not defined precisely. The legislation does not, for example, define as an incident of parental responsibility the responsibility to determine where a child shall live, unless a change to the child’s living arrangements make it significantly more difficult for a parent to spend time with a child, but does provide for the making of a parenting order in favour of the person with whom a child shall live.
195.Section 64B sets out the types of parenting orders a court may make. Section 64B(2) provides, so far as is relevant to this appeal, as follows:
A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) the communication a child is to have with another person or other persons;
…
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
196.Section 64C now provides:
A parenting order in relation to a child may be made in favour of a parent of the child or some other person.
197.As there is some ambiguity as to precisely what is encompassed in the term “parental responsibility” and the words “duties, powers, responsibilities or authority” in s 61D I have had recourse to the Revised Explanatory Memorandum (“the EM”) (see s 15AB of the Acts Interpretation Act 1901 (Cth)). Paragraph 174 of the EM is as follows:
New subsection 64B(3) clarifies that a parenting order dealing with the allocation of parental responsibility under paragraph 64B(2)(c) may deal with the allocation of responsibility for making decisions about major long-term issues in relation to the child. Major long term issues are defined in item 4. This provision is not intended to limit other matters that paragraph 64B(2)(c) may cover.
198.The discussion in Chappell noted that there may be a blurring of matters which in some instances could be regarded as long-term issues, and those of a more temporal nature. The Full Court in that case also noted the repeal of orders known as “specific issues orders”.
199.It appears the legislature has not attempted to constrain the concept of parental responsibility by strictly defining the limits of its ambit. This has relevance when consideration is given to the order made by the trial Judge. It follows that the order made by the trial Judge did not purport to vest unqualified sole parental responsibility in the Director-General, although I note there is some confusion caused by the trial Judge’s reference in paragraph 232 to “[t]he Intervenor’s sole parental responsibility for the child especially in relation to major long-term issues”.
We propose to first consider the relevant provisions of the Act, in particular, s 65D, s 64B(2)(a) and (i), and s 68B.
It will aid discussion of the submissions if, at this point, we set out s 65D(1) and (2) of the Act as follows:
(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.
(2) Without limiting the generality of subsection (1) and subject to section 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
In MRR the High Court discussed the source of power to make a parenting order. Thus, while we agree with senior counsel for the mother that s 64B(2) provides that one of the matters with which a parenting order may deal includes “the person or persons with whom a child is to live” (s 64B(2)(a)) and not where a child shall live, s 64B(2) does not provide the source of power to make a parenting order. Section 69H(1) of the Act confers jurisdiction on the Court in relation to matters arising under Part VII, and the power to make a parenting order is found in s 65D.
In this case, as the trial Judge made an order for equal shared parental responsibility, it was mandatory for his Honour to consider the provisions of s 65DAA. If his Honour found it was in the children’s best interests, and reasonably practicable to spend substantial and significant time with the father, he was required then to consider making such an order. In considering whether an order would be reasonably practicable his Honour was required to have regard to the matters referred to in s 65DAA(5). On making an order for the equal sharing of parental responsibility, s 65DAC and s 65DAE of the Act also become relevant.
Thus, it falls for consideration whether a parenting order made under s 65D of the type referred to in s 64B(2)(i) can include an order which dictates where children live, and/or whether the requisite power to make such an order by way of injunction is grounded in s 68B. In this case the order restrained the mother from moving the children’s home to any place outside a radius of 30 kms from the Sydney GPO.
Section 68B provides as follows:
(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person with whom the child is to live under a parenting order; or
(iii) a person with whom the child is to spend time under a parenting order; or
(iv) a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
We observe, at this point, neither in Goode or MRR was the court considering the power to grant an injunction restraining a mother from moving the children’s residence, but rather the focus of those decisions was in respect of, in the case of the former, an interim parenting order, and in the case of the latter, a final parenting order in the context of the mother wishing to relocate. In the latter case we note that no order restraining the mother removing the child from regional Queensland was sought or obtained, rather the Federal Magistrate’s orders required, in the event the mother did not reside in regional Queensland, that the child should live with the father (see Rosa & Rosa [2009] FamCAFC 81, paragraph 1).
As senior counsel for the mother’s argument referred substantially to the decision of the Full Court in Sampson & Hartnett (No. 10) it is appropriate that we now turn to that decision. The actual order made by the trial Judge in Sampson & Hartnett (No. 2) ([2007] FamCA 241) was as follows: “The children’s residence is to be established in Sydney no later than 1 May 2007”. The effect of that order made by the trial Judge in that case was explained by Bryant CJ and Warnick J in their joint reasons at paragraph 4 as follows:
As seen, the orders did not actually mandate the relocation of the mother herself to Sydney. However, the orders would be unworkable if the mother did not relocate…
Accordingly the issue for determination on appeal was not whether a court had power to restrain a parent from changing a child’s residence, but whether a court could compel a parent to move to a location over that parent’s opposition to such a move (in that case from Geelong to Sydney).
In their joint reasons, Bryant CJ and Warnick J in summary concluded that:
·    a court may rule that a relocation should not occur (paragraph 9);
·    if a parent intends to relocate regardless of whether or not the child is permitted to relocate, that the court may order the child stay in a particular location;
·    if a court determines the child should not relocate, and the parent then indicates she/he will stay with the child then the child will live with that parent or if the parent does not wish to stay, then the child will live with the other parent (if both proposals are in the child’s best interests) (paragraph 10);
·    if a court refuses the relocation, the order made (as explained above) does not affect the parent’s freedom of movement, because the parent can hand over the child to the other parent; and
·    there is little doubt that the court has power to “effectively” order a parent not to relocate by an order that the parent not change the location of the child (the situation in this case).
Having set out these propositions, the majority discussed by reference to the decision of the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,234; H & E (1999) FLC 92-845 and AMS v AIF; AIF v AMS (1999) 199 CLR 160; (1999) FLC 92-852 (albeit that in the latter case their Honours’ focus was not on an order restraining the change of location of a child, but a parent’s right of freedom of movement under s 92 of the Australian Constitution) a court’s power to order a parent to relocate.
We think it is clear that since the introduction of the Act in 1976 the Court has proceeded on the basis that it has the power to restrain, either on an interim or final basis, the movement of children, and that such an order is either a parenting order (s 65D) or ancillary to such order being an injunction made under s 68B (or perhaps in the case of married spouses under s 114) (see H & E).
We observe that while s 68B was amended by the amending Act, the amendments were limited to matters of terminology and the provisions of the section have not changed in substance from those in force when H & E was determined. We have previously set out s 65D(1) and (2). Section 65D as in force after 1995 and up to its amendment by the amending Act provided:
(1)In proceedings for a parenting order, the court may, subject to this Division, make such parenting order as it thinks proper.
(2)Without limiting the generality of subsection (1) and subject to this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order.
We understood the practical effect of the submissions made to us, having regard to the facts in this case, was that the trial Judge had fallen into error in limiting himself to and framing the two proposals in the way he did.
The logical corollary of the submissions advanced by senior counsel for the mother is that if a party, who is the undisputed primary resident parent, wishes to move, and says he or she will not remain in their present location, and the other parent does not seek in those circumstances the children live with him or her, and an order for equal shared parental responsibility is made or proposed to be made, the primary resident parent must be permitted to move, and a time regime of less than substantial and significant time be made in favour of the other parent, because the two questions in s 65DAA required to be answered in the affirmative for an equal time or substantial and significant time regime can never be satisfied.
We observe that in the event the mother sought, in the alternative to her relocation proposal, that the children live with her in Sydney, the trial Judge was required to consider whether an equal and/or substantial and significant time regime was in the children’s best interests and reasonably practicable. It may be argued in such a case the making of an order restraining the movement of the children was not necessary.
In MRR v GR the High Court explained there is no power to make a parenting order under s 65D which provides for equal time or substantial and significant time when an order for equal shared parental responsibility has been or is proposed to be made unless the two questions in s 65DAA(1)(a) and (b) and s 65(2)(c) and (d) are answered affirmatively. In MRR v GR the High Court said, in the circumstances of that case, an equal shared time regime could only occur if both parents remained in their existing location (paragraph 11), and the error identified was that the Federal Magistrate had failed to consider whether that arrangement was reasonably practicable (paragraph 14). The High Court did not need to address the question of whether it was within power in such a situation to restrain the movement of children from their existing location and then determine reasonable practicability. But we agree with senior counsel for the mother the effect of such a restraining order could be considered as one which artificially creates an environment to allow an affirmative answer to “reasonably practicable”. However, in this case, as we will later explain, even if the movement of the children was restrained, that of itself did not mean a regime of substantial and significant time was necessarily in the children’s best interests and reasonably practicable.
In this case we were not directed to anything in the transcript which indicated that the mother would move to the lower Hunter Valley if her relocation proposed for the children was rejected. Our reading of the appeal book leaves the question of the mother’s position in the event her relocation proposal was rejected, uncertain.
The requirements of s 65DAA do not, in our view, necessarily render nugatory the power of a court to make an order restraining the child’s removal from a particular location whether the order is characterised as one of the types of order which may be made under s 64B(2)(i) or whether made under s 68B. It follows from this conclusion we do not accept the limitations which senior counsel for the mother sought to read into s 68B. It is important to note that whilst sub-sections (a), (b), (c) and (d) refer to situations in which the granting of an injunction may be appropriate, s 68B(1) is not so limited referring as it does to “such order or injunction as it considers appropriate for the welfare of the child including ….” (our emphasis). See also s 68B(2).

Although the majority in Sampson & Hartnett (No. 10) were dealing with the question of power to order a parent to relocate (a mandatory injunction), we think the caution expressed about making that type of order may also have resonance in the making of final orders if the power being exercised is by way of an enforcing injunction restraining the movement of children. In accordance with general principles applicable to the making of that species of injunction, many factors may require careful consideration, including the extent and duration of the restraint to be imposed.
While we agree the type of order envisaged by the majority in Sampson & Hartnett(No. 10) is one which will be rarely and sparingly made, we are not persuaded, as presently advised, that as a result of MRR the decision of the majority is no longer correct law (see Nguyen v Nguyen (1990) 169 CLR 245).
It follows, we do not accept there is a lack of power in a court exercising jurisdiction under Part VII to make an order restraining the removal of children from a particular location, and in this regard we note that this conclusion is consistent with the decision of the majority in Sampson & Hartnett (No. 10). We observe, however, what was not addressed directly in this appeal was the question about when the nature and scope of such an order should be considered by a court given the requirements of s 65DAA, but absent argument on this point it is unnecessary we determine that issue.
In conclusion, while we see some merit in the submissions of senior counsel which we have discussed above, we consider as the mother’s position in the event her proposal to relocate was rejected was not properly explored at trial and by the trial Judge, that we cannot conclude the new ground is established because an order restraining the movement of the children may not have been “artificial”. That, however, does not conclude the issue of the restraint. As we will later explain, when discussing other grounds dealing with the point in his reasons at which his Honour determined the restraint should be imposed, its extent and duration, these latter grounds are not without merit.

The grounds in the notice of appeal

Because of the overlap of issues in a number of the grounds, we propose to deal first with ground 1, and then discuss and consider grounds 3 and 4 together. We will then deal with grounds 2 and 5 together.

Ground 1

We have already recorded that while ground 1 as framed asserted lack of adequate reasons, counsel for the father asserted in reality the challenge was to the weight afforded by the trial Judge to relevant matters.
Ground 1 is framed as follows:
That in ordering that the mother live with the children within a radius of 30 km from the Sydney GPO the trial judge erred in that he failed to give any or any adequate reasons that made the making of such an order exceptional in the circumstances and or necessary to secure the best interests of the children.
In support of this ground the mother’s submission commenced with the assertion, based on dicta of the majority in Sampson & Hartnett (No. 10) and by reference to paragraph 58 in their joint judgment, that the “power to order a party not to relocate will be rare”. We note the statement by the majority was in respect of their discussion of an injunction granted under s 114 enjoining a parent to relocate, or not to relocate, rather than an injunction or order restraining the relocation of a child.
In support of the proposition that his Honour’s orders, the subject of the appeal were made erroneously, it was submitted that this was especially so where the father, who sought the imposition of the restraint, was not an applicant for the residence of the children, and that he sought orders “which were made impracticable as a result of the proposed relocation only to the extent of time with the children on Wednesday afternoon from 3.30 pm until 7.00 pm”.
It was further submitted (submissions, paragraph 4, p 2) that the trial Judge failed to give adequate reasons and that his Honour’s finding that the mother would undermine the children’s relationship with the father was not open given the father’s evidence that he had an excellent relationship with the children, and that the mother had been travelling between the matrimonial home and the proposed relocation for some time.
Senior counsel for the mother submitted this was a case where the principles espoused in D v SV (2003) FLC 93-137 were relevant because a meaningful relationship was able to be secured consistent with permitting the mother to relocate. In other words, it was not necessary that orders be made for substantial and significant time as defined in the Act for the children to have the benefit of a meaningful relationship with the father.
In the written submissions counsel who appeared for the father at trial (which were adopted by the father’s senior counsel) acknowledged that “[t]he case of the Father has always been that the primary place of residence of the children should be with the Mother”. Counsel submitted that while the time presently to be spent by the father with the children was limited to three and a half hours each Wednesday afternoon, as well as alternate week and school holiday contact, the orders “can be varied [at some future time] to permit the children to spend more time with the Father” (submissions, paragraph 2(a), p 4).
Senior counsel further submitted that the trial Judge had found that the mother had actively sought to undermine the relationship between the father and the paternal grandparents and the children, and the opportunity for her to do so would be increased if she was permitted to relocate the children to the Hunter Valley.

The trial Judge's reasons in respect of the restraint

It is necessary, before turning to his Honour’s reasoning in respect of the restraint imposed on the children’s residence, that we refer briefly to his Honour’s consideration of the parties’ competing proposals and how he assessed if they were in the children’s best interests and reasonably practicable. This examination is also relevant when we turn to consider ground 4.
We have earlier set out the father’s preferred position enunciated by his counsel at trial. It was not disputed by the mother that the father should spend time with the children each alternate weekend (Amended Application for Final Orders filed 25 September 2006, paragraph 3.1), as well as time every other Sunday (Amended Application for Final Orders filed 25 September 2006, paragraph 3.2) or for half school holidays.
His Honour did not appear in his reasons to make findings by reference to his consideration of s 65DAA(2)(c) and (d), although he touched on matters relevant to the parties’ proposals in paragraphs 48 to 52 of his reasons.
At paragraphs 53 to 72 of his reasons, the trial Judge dealt with the relevant primary and additional considerations (s 60CC(2) and (3)). His Honour then discussed various cases to which he had been referred by the wife’s counsel and essentially found those decisions were not relevant to the task which he had to undertake.
At paragraph 78, his Honour appears to discuss whether of the wife’s proposal if she lived in the Hunter Valley was in the best interests of the children.
His Honour made findings that:
·the mother would not be forced to obtain a higher paying job if she lived in Sydney (to offset her increased living costs), or that her employment would be less flexible than her current employment. He further found if she retained her present job she would “have the same capacity to choose work hours and work at home irrespective of the location of her home”;
·if the mother had more to spend (living in the lower Hunter Valley), that such additional income would not give the children any advantage;
·with child support, wages and social security the mother would have a net income of approximately $2,000.00 per week, and that people who earned that level of income in Sydney would be classified as “middle class”;
·the mother would have more practical, emotional and physical support from her family if she lived in the Hunter Valley, but if she lived in Sydney the father and his parents would be able to take care of the children “more than they do now”;
·the mother was not a person who needed much emotional and practical support;
·if she was not permitted to relocate the mother would feel frustrated and stressed by her inability to get her own way (his Honour did not explain how, or if, this would affect the mother’s parenting capacity);
·if she moved to the Hunter Valley the mother would not encourage contact between the children and the father;
·the travel involved from the Hunter Valley to Sydney would impact adversely on the children; and
·that although the children were involved in extra curricular activities this was unlikely to benefit them given they would be spending weekends with the father.

We pause to note no ground of appeal asserts error in the factual findings made which vitiated his Honour’s discretion.
At paragraph 84, the trial Judge concluded that it was not in the children’s best interests that they live with the mother in the lower Hunter Valley. His Honour did not, at this point in his reasons, move to discuss s 65DAA(2) but rather moved immediately to the question of whether or not he should impose a restraint on the children’s home being moved from outside the radius of 20 km from the Sydney GPO.
Thus, it may be seen that the trial Judge, as he was required to do, considered and made findings about relevant matters under s 60CC(2) and (3) and concluded it would not be in the children’s best interests that they live with the mother in the Hunter Valley.
At this point in his reasons, his Honour had not specifically considered whether the mother’s proposal was reasonably practicable, nor had he considered whether the father’s proposal which was that the children live primarily with the mother but the mother remaining in Sydney, was in their best interests and reasonably practicable. Rather his Honour set out his conclusions, at least to that point, in paragraph 84, where he said:
A careful weighing of all the matters discussed above, in the knowledge that there are no other matters which that [sic] have been raised which could be regarded as significant, leads to the clear conclusion that the children’s best interests demand that they not be permitted to be taken out of Sydney to live and the wife’s wishes and needs are such that, giving these as much force as the circumstances allow, they cannot tip the balance in favour of the move she seeks for them. An order restraining her from taking them to live outside a certain area of Sydney should be made. My major reason for reaching this conclusion is my strong conviction, created by the wealth of evidence in its support, that the wife will use such a move to undermine the excellent relationship the husband and his parents have with the children because her conscience will not inhibit such manipulation.
His Honour concluded, at paragraph 85, that the mother would be able to obtain housing which she could afford in an area of a 30 km radius of the GPO. His Honour said:
The exact limit of the restriction on place of living requires consideration. There is no reason why the wife should not be able to have as much freedom of choice of a place of residence as is consistent with avoidance of making face-to-face contact a trial. An area which will provide her and the children with a good compromise between affordability and desirability while not being so far from the area where the husband lives or reasonably could wish to live is conveniently available. In an area of 30km radius of the Sydney GPO there are many areas where the wife will be able to obtain housing which she can afford. I do not accept the wife’s claim that she must live in a house with a suitable yard because she has dogs. The children are more important than dogs. If they have to be sacrificed to maintain the quality of the relationship between the children and the husband this is not much of a price to pay.

Discussion

The father’s senior counsel submitted that his Honour’s reasoning supporting the restraining order was to be found elsewhere in the trial Judge’s reasons, and we should not confine our consideration to paragraphs 84 and 85 of his Honour’s reasons.
We accept that his Honour, who had the opportunity to observe the wife in the witness box, made a number of findings adverse to her credit, particularly in paragraphs 17, 27, 28, 30 and 49 of his reasons. We have scrutinised his Honour’s reasons on this topic given the delay from the hearing of this matter until the publication of his Honour’s reasons for judgment. That scrutiny has satisfied us that his Honour took into account not only the mother’s demeanour but a number of actions by her. We conclude his Honour’s criticism of aspects of the mother’s behaviour was supported by the evidence adduced before him in the proceedings. However, there was no evidence, and in fact evidence to the contrary by the father, that the mother’s actions (which the trial Judge found, at paragraph 49, were attributable to her perception the father had rejected her), had undermined the children’s relationship with him.
Further, we were not taken to any evidence by the father’s counsel, which supported the trial Judge’s reasoning as to why the 30 km restraint on the children’s residence from the Sydney GPO was necessary or appropriate. We note that the mother could have moved to a Sydney suburb such as Engadine (28 kms from the Sydney GPO) which would have the effect that after school time with the father, whilst not impossible, would in reality not be practicable unless the father spent the time in the Engadine area.
The principles to be applied in granting an injunction are explained in Meagher, Gummow and Lehane’s Equity Doctrines and Remedies (Meagher, Heydon and Lemming, 4^th ed, LexisNexis Butterworths, 2002, [21-005] - [21-560]).
While the cases discussed in that text are generally applicable to commercial law remedies, they have application in a case such as this where the restraint can be of lengthy duration, and cause potential hardship to a parent restrained from moving the children’s home location which, of course, is the home of the parent too. We are satisfied that there is substance in this ground.

Ground 3 and 4

Grounds 3 and 4 are as follows:
3.That the trial judge erred in that he accepted that the legislative requirement of a need for a child to spent substantial and significant time with the father could only be effected by the children residing with their mother within a radius of 30 km from the Sydney GPO.
4.That the trial judge erred in that he failed to examine or examine adequately the practical and economic aspects associated with the mother taking up a residence within a radius of 30 km from the Sydney GPO.
In summary, senior counsel for the mother argued that the trial Judge’s approach to the question of the father spending substantial and significant time with the children was flawed because of his Honour’s determination that such a time regime could only occur if the mother lived within a 30 km radius of the GPO. In support of this argument he relied on paragraph 12 (page 4) of his written submissions as follows:
12.There are three aspects to this ground of appeal:
(a)It was open to the trial judge to find that the children spending substantial and significant time with their father was impracticable when measured against the criteria set out in Section 65DAA(5);
(b)If so, there was no impediment to the children having a meaningful relationship with the father as they already had in circumstances where the children already spent substantial time in the Hunter Valley (Transcript 2.10.07 Pages 56-57); and
(b)It was open to the trial judge to find that the children spending substantial and significant time with their father was reasonably practical when measured against the criteria set out in Section 65DAA(5). (appellant’s submissions, p 4)
We found that paragraph of senior counsel’s submissions somewhat confusing. However, in the following paragraphs of his submissions, he explained that to the extent the trial Judge rejected the mother’s proposal it must be because her proposal did not provide for non-weekend and non-holiday time, and the lack of involvement in the children’s daily routine. He further submitted as the father had given evidence of flexible work arrangements, the mother’s evidence of the travelling time between the matrimonial home and the Hunter Valley (two hours), and the possibility of the father and his new partner moving their residence [it appears implied closer to the Hunter Valley] that it was “open to the trial judge to find that the Father was able to pick up the children on Friday afternoon and that he was able to attend any events of significance involving travel to the Hunter Valley. The extent of travel does not preclude involvement in the routine activities of children”. (appellant’s submissions, paragraph 14, p 4)
Section 65DAA(3) defines substantial and significant time to include “days that do not fall within weekends and holidays” and for a parent to be involved in “occasions and events that are of particular significance to the child”.
His Honour found that the father spending mid-week time with the children would not be practical if the children lived in the Hunter Valley, although he did find the father could attend school functions, and other extra curricular activities in which the children may engage if they lived with the mother in the Hunter Valley.
It was not in dispute that the proposed move would result in a distance of some 166 km between the mother’s home in the Hunter Valley and the father’s home in inner western Sydney, or his place of employment on the northern beaches. Nor was the father’s evidence about the delays in travel which occur, particularly on a Friday evening, by reason of traffic on the only freeway route to the north of Sydney (“the F3”) seriously challenged.
His Honour’s reasons in rejecting as reasonably practicable a regime which would allow the father to spend substantial and significant time with the children, was because he determined the issue of mid-week time with the children could not occur. The rejection of any time other than weekends, holidays or some special occasions of significance to the children, meant his Honour did not err in finding the mother’s proposal would not permit a substantial and significant time regime. That finding, however, does not fully address the issues in this appeal and, in particular, ground 2 to which we will shortly turn. Thus we cannot conclude that his Honour erred as submitted, finding he could not craft orders for the children to spend substantial and significant time with the father if they lived in the Hunter Valley.
Further, it was not in doubt that the father did not propose that he would move to the Hunter Valley to permit a substantial and significant time regime to occur. Thus the consideration which his Honour had to undertake was whether it was in the children’s best interests and reasonably practicable that they live with the mother in Sydney, and only if those two questions could be answered in the affirmative, could his Honour consider making an order for substantial and significant time with the father. If the two questions could not be answered affirmatively, his Honour was bound to consider what orders would be in the best interests of the children.
We accept that the trial Judge was not bound by the proposals of either party and his task was, without engaging in a frolic, having regard to the parties’ proposals to make orders which were in the best interests of the children.

Although neither party sought an order that the children spend equal time with each of them, his Honour was required, as the result of the order for equal shared parental responsibility, to consider whether it was in the children’s best interests and reasonably practicable to make such an order. His Honour essentially found such an order would not be in the children’s best interests because neither party sought the children should live in an equal share time arrangement.
His Honour found that it would not be in the children’s best interests to live with the mother in the Hunter Valley. However, the structure of his reasons does not allow us to find that he considered whether a substantial and significant arrangement as proposed by the father, by answering the two questions required by the legislation, namely, was it in the children’s “best interests” and “reasonably practicable” in the context of his consideration of s 65DAA (including s 65DAA(5)), but rather that his Honour’s best interests conclusions were made in the context of his discussion of s 60CC findings.
An overall reading of his Honour’s reasons demonstrates that he rejected the mother’s proposal that the children live with her in the Hunter Valley as being in the best interests of the children.
In the same context, the trial Judge found that the children’s best interests would be served by them living with the mother (a position which was not in issue at the trial), and spending substantial and significant time with the father. His Honour, not in the context of s 65DAA(2)(c) and (d), but in the context of the discussion of the type of restraining order he intended to impose, discussed whether such an order would be reasonably practicable.
While ground 4 is not specifically directed to whether or not the trial Judge provided adequate reasons that it was reasonably practicable for the mother to live in Sydney within a 30 km radius of the GPO, that is, the overall effect of the ground.
His Honour’s findings about the mother’s capital position after the property settlement was not subject of challenge before us, nor was the trial Judge’s assessment of the mother’s income called into doubt, notwithstanding that in her cross-examination, she did not agree it was $2,000.00 per week. We were not taken to any evidence adduced by the father, whose proposal it was that the children should remain living in Sydney, of the cost or availability to the mother of suitable housing for herself and the children within the 30 km radius of the GPO, or other practical support available to the mother other than the paternal grandparents from whom the mother was estranged.
We see some merit in the challenge that his Honour failed to examine adequately the practical and economic aspects associated with the mother obtaining a home, and having the benefit of practical support if she lived in Sydney. Nor was there any real discussion by his Honour of how, if the parties lived, as they may as a result of his order, a substantial distance apart in Sydney, it would be practical for mid-week time with the children to occur. Thus we are satisfied there is merit in these grounds.

Failure to scrutinise alternatives that might enable the development of the relationship of the children with their father (Ground 2 and 5)

Having found appealable error in respect of ground 4, it is not strictly necessary we consider ground 2 but we do so for completeness. It is also convenient that we encompass in our discussion ground 5.
Those grounds are as follows:
2.That in so ordering the trial judge erred further or alternatively by failing in his reasons to scrutinize alternatives that might enable the development of the relationship of the children with their father
5.The trial judge erred in that he made the orders relating to the place of residence of the children without any or any proper regard to the fact that the father in the proceedings did not seek an order that the children reside with him in any circumstances.
It was submitted by the mother’s senior counsel, by reference to the decision of Boland J exercising the appellate jurisdiction of the Court in Morgan & Miles (2007) FLC 93-343, that the “core principles” governing relocation before July 2006 remain valid and “…it is still incumbent on a judicial officer to consider all proposals and, if necessary to formulate proposals in the best interest of the children”.
It was further submitted as the father had flexible work arrangements, and the possibility he may move closer to the Hunter Valley, it was incumbent on his Honour to evaluate alternatives which would allow the children to maintain a meaningful relationship with the father whilst living with the mother in the Hunter Valley.
First, it is important to remember in Morgan & Miles (an appeal dealing with a interim parenting order) that having referred, in paragraph 80, to earlier identified core principles which had not changed, Boland J went on, in paragraph 81, to explain what the legislation, after the amending Act now requires as follows:
81. What the legislation now requires is:
– consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;
– if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility applies the consequences of an order for equal shared parental responsibility
but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.
Further, at paragraph 86, her Honour said:
86. I conclude, the legislation, including the matters referred to above in Goode, does require consideration of s 60CC, s 61D, and s 65DAA (with reference to s 4(1)) in dealing with all interim applications for parenting orders including applications involving a relocation, or where an “unauthorised” relocation has occurred.
Thus it is clear, as her Honour indicated, that if an order for equal shared parental responsibility is made or proposed to be made that consideration of s 65DAA is mandatory. We take this opportunity to point out that recent Full Court decisions have stressed that A and A: Relocation Approach (2000) FLC 93-035 no longer reflects the principles to be applied in a “relocation” case and should not be followed (see Hepburn & Noble (2010) FLC 93-438; [2010] FamCAFC 111, paragraph 100).
We also take this opportunity to reiterate that in MRR the High Court has made it clear that s 65DAA requires consideration of both “best interests” and “reasonable practicable” in respect of both equal time and substantial and significant time.
In Morgan & Miles Boland J considered the impact of the amending Act on what may be described as a “local” move and at paragraph 91 and 92 said:
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.
92. Sensibly, the legislation does not seek to define “local”, intrastate, interstate or international moves. Rather, it requires a judicial officer to consider, on a case by case basis, the effect of a move on the particular child in determining the overall parenting application (see particularly s 60CC(2)(d) and (e), and if applicable s 65DAA(1)(a) and (b), s 65DAA(2)(a) and (b) and s 65DAA(5)), and affords the opportunity to craft orders which are in that child’s bests interests.
In this case, as the parties had asked his Honour to make an order for equal shared parental responsibility, he was required by reason of s 65DAA to consider, notwithstanding it was not in issue between the parties that the children should continue to live predominantly with the mother, a time regime which would, if in the children’s best interests and reasonably practicable, provide for them to spend substantial and significant time with the father, and if those two criteria were satisfied to go on and consider whether he should make such an order.
It must be remembered that although the two criteria may have been answered affirmatively, that fact alone did not dictate his Honour must make an order for substantial and significant time. What the legislation obliged him to do was to consider whether he should make such an order. In his overall consideration his Honour should, in the circumstances of this case, have weighed and balanced the undisputed fact that regardless of where the mother lived, the children were to remain primarily in her care for the majority of the time and balanced the benefits the children would experience living with the mother in the Hunter Valley, including the provision of more suitable affordable accommodation, and support for the mother from her family members, against the reduction of time to be spent with the father, including essentially the opportunity to spend time with him mid-week. This consideration would have involved his Honour in assessing whether, if the children lived in the Hunter Valley, the time spent with the father and their communication with him would enable them to maintain a meaningful relationship with him. This we are satisfied his Honour did not do.
His Honour’s reasons disclose no significant discussions of the fact that the mother was to remain the children’s undisputed primary caregiver, and that the extra time sought by the father at trial involved, in reality, only one extra daytime period per week in his care. It was not suggested in this case (as discussed in Sampson & Hartnett (No.10)) that in the event the children were not permitted to relocate, and the mother moved to the Hunter Valley, that the children would live predominantly with the father. We are satisfied that his Honour’s reasoning did not adequately deal with this aspect of the mother’s case and grounds 2 and 5 have substance.
We have found appealable error by the trial Judge, and as both parties acknowledged, it will be necessary for there to be a retrial. Given the substantial delay since the commencement of these proceedings, it is our view that the re-hearing should be given priority over other cases awaiting re-hearing.
We do not have the benefit of any up to date information about the welfare of the children which would enable us with any confidence to make interim orders in their best interests pending the re-hearing. In those circumstances, we propose, that unless the parties otherwise agree, his Honour’s orders should not be set aside until the matter is placed into a judge’s docket for re-hearing and appropriate interim orders can, if necessary, be made pending the determination of the mother’s application.

Costs

At the conclusion of the appeal we sought submissions from both parties as to costs. Both parties sought that we make no order for costs, and in the event the appeal succeeded by reason of error of law by the trial Judge that they each receive certificates for the appeal and the re-hearing.
As we are satisfied there was an error of law we propose to grant the certificates as sought.

I certify that the preceding one hundred and forty eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 26 November 2010.

Associate:

Date: 26 November 2010