CARTWRIGHT & MANOLAS - [2017] FamCAFC 37

FAMILY COURT OF AUSTRALIA

CARTWRIGHT & MANOLAS

[2017] FamCAFC 37

FAMILY LAW – APPLICATION IN AN APPEAL – where mother sought leave to adduce further evidence and for appeal to proceed without transcript – where the evidence sought to be adduced did not satisfy requirements – where mother alleged her failure to file a transcript arose from her impecuniosity – where the trial judge had obtained a copy of the transcript – where the trial judge gave leave for counsel to uplift and read the transcript from the lower court file – where counsel for both parties considered it appropriate for the appeal judge to have reference to the transcript – application dismissed.

FAMILY LAW – APPEAL – final parenting orders – where the central ground of appeal was the absence of adequate reasons – where the proceedings were confined to very narrow issues – formal reasons not required as trial judge’s reasoning was sufficiently apparent from the transcripts – where the remaining grounds concerned issues of weight given to specific matters – where the trial judge was clearly guided by relevant considerations and the Objects and Principles of the Act – where there is no error in the attribution of weight – appeal dismissed.

FAMILY LAW – COSTS – where mother was wholly unsuccessful but the appeal was not frivolous – where impecuniosity is not determinative of the question whether to order costs – where a costs order would add a further financial impost – no costs ordered.

Family Law Act 1975 (Cth), Div 12 A, ss 60B(1)(a), 94AAA(3), 97(3), 117(2A)

CDJ v VAJ (1998) 197 CLR 172
Brien & Burns [2004] FamCA 950
Gregory R Ball Pty Ltd v Stead CA (NSW), Full Court, CA 40254/1991, unreported
Lenova & Lenova (Costs) [2011] FamCAFC 141
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
U v U (2002) 211 CLR 238
Wen & Thom [2010] FamCAFC 81

APPELLANT:

Ms Cartwright

RESPONDENT:

Mr Manolas

FILE NUMBER:

BRC

1391

2013

APPEAL NUMBER:

2016

DATE DELIVERED:

15 March 2017

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

3 March 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT DATE OF ORDERS:

3 November 2016

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Galloway by direct brief

COUNSEL FOR THE RESPONDENT:

Ms Wardle

SOLICITOR FOR THE RESPONDENT:

Richard Gray & Associates

Orders

The application in an appeal filed 16 February 2017 be dismissed.
The oral application made by counsel for the mother to amend the Notice of Appeal so as to include the further ground of appeal be allowed.
The appeal be dismissed.
Each party bear their own costs of and incidental to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cartwright & Manolas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 87 of 2016
File Number: BRC 1391 of 2013

Ms Cartwright

Appellant

And

Mr Manolas

Respondent

REASONS FOR JUDGMENT

The mother of a four year old child appeals final parenting orders made by Judge Cassidy on 3 November 2016.
The Chief Justice, on 25 January 2017, certified pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (‘the Act’), that it is appropriate for the jurisdiction of the Family Court in relation to this appeal to be exercised by a single judge. This hearing proceeded before me accordingly.

Application in the Appeal

The mother filed an Application in an Appeal seeking orders that she be given leave to adduce further evidence and that the appeal proceed in the absence of a transcript of proceedings which occurred on 30 August 2016 (a transcript of the subsequent proceedings on 3 November when the orders were made was provided).

(a) Transcript

The failure to file the transcript (despite a procedural order requiring it) was said by the mother to arise from her asserted impecuniosity.
At the hearing on 3 November 2016, her Honour gave leave for the parties to uplift and read the transcript of 30 August 2016 which her Honour had obtained for herself.[1] Both parties were represented by counsel who read the earlier transcript and made submissions before her Honour on 3 November accordingly.
[1]Although leave was given to access the transcript, neither party was permitted to copy the same: See Transcript of proceedings, 3 November 2016, page 7, line 43 – page 8, line 13.
In the proceedings before me, both counsel made submissions based on their recollection of the 30 August proceedings and their reading of this transcript on 3 November 2016. It was made clear by me to both parties that should they require a further opportunity to read the transcript, it would be afforded to them. Neither counsel considered it necessary to do so. Both counsel submitted that it was appropriate for me to read and have reference to the 30 August transcript.
As a result, the mother’s application in respect of the transcript effectively became moot.

(b) Further Evidence

Mr Galloway appeared on behalf of the mother pro bono; the mother had prepared her own material in respect of the appeal. During argument Mr Galloway effectively conceded, properly in my view, that the mother’s affidavit did not satisfy the requirements for the receipt of further evidence set out, for example, in CDJ v VAJ.[2] Her application to adduce further evidence should be dismissed.
[2](1998) 197 CLR 172.
The Application in an Appeal will be dismissed.

Ambit of The Challenged Orders and Issues on Appeal

The parties cohabited in Melbourne for approximately 12 months. In February 2013, when their child was about four months old, the mother unilaterally relocated with the child to Brisbane without notice to the father. Proceedings for parenting orders were subsequently initiated by the mother in Brisbane on 27 February 2013.
By the time final parenting orders were made on 3 November 2016, this matter had been in the judicial docket for nearly four years. There had been 13 separate prior appearances before her Honour. Whatever might have been the underlying or ostensible issues between the parties when the proceedings commenced, or as they progressed, by the time of the proceedings on 30 August 2016 the issues between the parties were of extremely narrow compass.
On that date the parties, through their respective counsel, had reduced to writing “in scratch form”[3] those matters upon which agreement had been reached, and those which continued to require determination. The submissions before her Honour made reference to that document. Her Honour dealt seriatim with numerous issues that remained outstanding between the parties and determined most of them on that occasion, including relevantly that the parties should share equally the costs of travel associated with the child having time with the father in Melbourne.
[3]Transcript of proceedings, 30 August 2016, page 3, line 25.
At the conclusion of the August proceedings, the parties expressed optimism that, having regard to the issues that had been determined by her Honour that day, any outstanding issues could be resolved by the parties with the assistance of their respective counsel. A directions hearing was scheduled to occur subsequently on 3 November 2016. By that time her Honour anticipated having received consent orders together with a joint application that those consent orders be made in chambers. Unfortunately this did not occur.
On 3 November her Honour heard further argument and ultimately made a number of orders. The instant challenge is directed to Orders 5(b), 9 and 10.
Order 5(b) provides for the child to spend 12 nominated monthly periods of five nights in 2017 with his father in Melbourne. The child cannot fly unaccompanied. It is common ground that the child and mother would incur return air fares to Melbourne.
Notably, the periods of time specified within Order 5(b) anticipate the necessity for periods of time to change in 2018 when the child commences school. From 2018, the orders provide that regular monthly time is to be spent with the child in Brisbane (Orders 5(e) and (f)).
Order 9 requires that the “costs of travel” be borne equally by the parents and Order 10 facilitates that order by requiring one party to pay for the child’s outward journey and the other for the homeward journey.[4]
[4]Order 9 also contemplates that the child may fly unaccompanied from October 2018 when he turns six but this order has no impact on regular monthly time as the orders provide for that time to occur in Brisbane after 2018, save for other periods on notice at the father’s expense (Order 5(f)).
The change in the arrangements from 2018 will see a significant reduction in the costs of travel pertaining during 2017 as it will no longer be necessary for the mother and child to fly to Melbourne and return to Brisbane as Order 5(b) contemplates. The only costs of travel for regular monthly time after December 2017 will be the father’s return air fare to Brisbane.
On 30 August, counsel for the mother referred her Honour to the mother’s affidavit filed 29 July 2016. There, the mother tabulated her income and expenses, the latter including a sum of $270 (or $135 per week) for “Travel to Melbourne”. Counsel for the mother accepted that the figure for travel to Melbourne represented the equal sharing of costs pursuant to existing orders and arrangements.[5] Below, counsel for the mother sought that the mother only contribute one third of these costs of travel. No calculation was provided to her Honour as to the cost of the mother meeting this portion of the travel costs. No calculation was provided to her Honour as to the significantly reduced costs (whether met as to one half or one third) that would pertain from 2018.
[5]Transcript of proceedings, 30 August 2016, page 18, line 21-35.
The narrowness of the issue confronting her Honour in respect of the costs of travel can be expressed in dollar terms by reference to the mother’s calculations as being whether the wife should pay approximately $45 per week more in travel costs than she was prepared to pay. Over the twelve month period to which Order 5(b) pertains, the issue was whether the mother should be ordered to pay approximately $2,300 more than she contended before her Honour.
The 12 periods of monthly time in Order 5(b) all commence on a Friday. The mother contended before her Honour, and contends now, that they should have been ordered to commence on a Saturday. At the heart of the mother’s contentions before the primary judge was her assertion that the orders impeded her from obtaining a full time job (she was then working part time) and, thus, impacted adversely on her finances.
Counsel for both parties properly conceded before her Honour that she should approach the matter on the basis of submissions made to her. Quite properly, given the nature of the proceedings and the issues within them, neither party sought to cross examine. The impugned orders made by her Honour occurred against a background where the parties agreed that they should have equal shared parental responsibility and where, crucially, it was agreed, at least ostensibly, that the child would benefit from a meaningful relationship with both parents. There was expert evidence before her Honour by way of a family report, which recommended that significant time be spent with the father every month and during holiday periods.
Describing the relevant issues between the parties as narrow is not necessarily to demean them; they were, and are, undoubtedly important to the parties. But, they are issues peripheral to an agreed central premise: this young child’s best interests lie in him benefiting from a meaningful relationship with both of his parents which includes regular time of significant duration with his father. That is, both parents (ostensibly at least) seek to promote the first of the Objects of Part VII of the Act, namely “ensuring children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”.[6]
[6] Section 60B(1)(a) – an object reflected, of course, in the Principles enshrined in s 60B(2).
That is a fundamentally important consideration underpinning her Honour’s approach and orders.
It is also important to understand that the mother’s assertion that she was in a difficult financial position (particularly in the context of being the primary carer of the child) was not in issue before her Honour. Indeed the relevant issues to be determined were framed by the acceptance of that assertion. Equally, however, it was not in doubt that the father had lost his employment shortly prior to the August proceedings, and remained unemployed at the time of the November proceedings. Similarly it appears that there was no challenge that the orders as made would, in practical terms, impede the mother from becoming employed full time.

The Grounds of Appeal

The grounds of appeal as pleaded in the Notice of Appeal are:
1. That the trial Judge failed to take into account the financial incapacity of the mother to fund what was required by her by Orders 9 and 10.
2.That the trial Judge failed to take into account that the orders providing for commencement of time on Friday would not permit the Appellant to work on that Friday and would inhibit her from securing employment where she would not be able to work one Friday each month.
3.That the trial Judge failed properly to take into account the financial circumstances of the Appellant requiring the Appellant to fund half the costs of travel for the child and for herself and the child when that was beyond her financial capacity to do so.
At the hearing of the appeal, counsel for the mother sought and was granted leave to amend the grounds so as to add the following:
4.That the trial judge gave no, or no adequate, reasons for her determination that:
(a)the parties should share equally the cost of the child travelling between Melbourne and Brisbane, as distinct from the mother bearing one third of the costs.
(b)time with the father in Melbourne in 2017 should commence in most cases on Friday.
Whilst not abandoning grounds 1 to 3, counsel for the mother made it clear that the gravamen of the appeal lay in the asserted inadequacy of the reasons. It is convenient to address that issue first.

The Challenge to the Adequacy of Reasons

The Absence of Formal Reasons

The mother’s argument as to inadequacy of reasons derives some force by reason of the uncontroversial fact that her Honour did not in fact deliver any formal reasons. Can there be adequate reasons in circumstances where no formal reasons are given and the transcript is relied upon solely?
The first point that should be made is that reasons – even short or summary reasons – are always desirable: “[t]he controversy is no longer whether judicial officers are obliged to give reasons … [n]ow it is clear that they usually are … [albeit that] not every trivial decision by a judicial officer … must be formally explained”.[7]
[7]“Reasons for Judgment: Always Permissible, Usually Desirable and Often Obligatory”, Kirby J, (1994) 12 Australian Bar Review 121, 125-6.
In that regard, some decisions draw a distinction between procedural orders not involving the determination of substantive rights and those decisions which do. In Soulemezis v Dudley (Holdings) Pty Ltd[8] – a decision frequently cited by the Full Court – McHugh J, then a member of the New South Wales Court of Appeal, said: “when the decision constitutes what is in fact or in substance a final order, the case must be exceptional for a judge not to have a duty to state reasons”.[9]
[8] (1987) 10 NSWLR 247.
[9] Ibid, 279.
Equally, however, it has been made clear that a balance is required with the interests of justice as its criterion: “Appellate courts exist to remedy errors of law and miscarriages of justice not to dot ‘Is’ and cross ‘Ts’ in the reasons for judgment of trial judges”.[10] Thus, it has been held that:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will … be inadequate if: (a) either the appeal court is unable to ascertain the reasons upon which the decision is based; or (b) justice is not seen to have been done.[11]
[10]Gregory R Ball Pty Ltd v Stead CA (NSW), Full Court, CA 40254/1991, unreported, per Handley JA as quoted by Kirby J, above, 131.
[11] Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 18.
Included within the broad rubric of the interests of justice is a recognition, particularly in parenting cases, that what might be a “trivial decision” in another context may not be – at least in the eyes of parents – when the best interests of children are concerned. Also included within that rubric is the statutory context provided by, for example, s 97(3) and Division 12A of the Act.
The nature of the proceedings, the manner in which they were conducted – particularly consensually – and the nature and breadth of the issues joined must all be relevant to whether reasons, rendered in whatever form, are sufficiently adequate to be immune from appellate interference.
The specific question as to whether adequate reasons might be contained within the transcript of proceedings was considered by Coleman J in Brien & Burns.[12] His Honour concluded:
The reasons did not have to be given formally, provided the reasoning process emerged. The transcript, particularly in an application such as this, could be sufficient.[13]
[12] [2004] FamCA 950.
[13]Ibid, at [19], having referred to Soulemezis, above; Dudley (Holdings) above; Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378; Massoud, above and Bennett & Bennett (1991) FLC 92-191.
The reference to “an application such as this” relates to the case involving orders being made consequent upon the non-appearance of the father.
I can see no distinction in principle between that case and this. As I have said, the proceedings here were confined to very narrow issues against a background where the central factual parameters, including a crucial central premise directly related to the child’s best interests, were agreed. The proceedings were conducted by the parties making submissions; without cross-examination; and by reference to otherwise broadly agreed terms.
I conclude that no error is established by reason of such reasons as were given being contained within the transcripts rather than separate formal reasons.

Adequacy of Reasons and the Nature of the Proceedings

Counsel for the mother relied on the decision of Wen & Thom.[14] In that case (involving orders for settlement of property) counsel for the father submitted that the trial judge had given “no adequate reasons to support the assessment of contributions”.[15] Counsel for the mother in this case referred specifically to [96] of the Full Court’s reasons where a “series of questions” considered instructive in determining whether adequate reasons were given, are set out:
(a)Can the basis of the decision be seen and understood?
(b)Can the parties see which of their arguments had been understood and accepted as forming part of the basis of the judicial decision?
(c)Can an appeal court ascertain the reasoning upon which the decision was based?
(d)Is the losing party denied knowledge as to why his or her case was rejected?
(e)Did every matter raised on behalf of a party require determination and exposition in judicial reasons?
(f)Did the judicial reasons fail to address an essential part of the reasoning which led to the judicial decision?
(g)Were matters complained of on appeal the subject of submissions or otherwise of significance in the proceedings in the court below in a way which called for a reasoned consideration of them?
[14][2010] FamCAFC 81.
[15][2010] FamCAFC 81, [41].

While these questions might be instructive, they are not determinative of the question in any particular case; “[v]arious attempts at judicial formulae are made in cases but these necessarily deal with the specific facts before the court [and] they are expressed in language of considerable generality”.[16]
[16] Kirby J, above, 125-6.
The narrowness of the issues, and the issues agreed between the parties, including those fundamental to the child’s best interests, impacted not only upon the manner in which the proceedings were conducted but also the manner and depth by which the judge might explain the decision reached.
Even if her Honour decided that the nature of the issues and the manner in which the case was conducted did not necessitate separate formal reasons, it may very well have been preferable for her Honour to have given a summary, even if brief, of her reasons for determining these very narrow issues in the way that she did. However, the question for me is not whether that which was done was not ideal nor whether it could have been done differently or better. The question is whether, by reference to principles of justice, what was done by her Honour was sufficient so as to not warrant interference by this court.
In my judgment, reference to the transcript permits the basis of her Honour’s decisions, that the mother should pay one half of the costs, and that time should commence on Friday rather than Saturday, being understood. Sufficient reasons were given by which it can be understood why the mother’s case was rejected. In my view, no aspect of the mother’s case was left undetermined or unexplained.
In particular the transcripts reveal her Honour’s conclusions that:
·It is in the child’s best interests to have a meaningful relationship with both parents and that in turn requires monthly periods of time with his father of significant duration;
·The mother’s financial situation was acknowledged but at the same time it was acknowledged that the mother had “brought [sic] a townhouse, [and] presumably, she has been able to save a deposit or someone has given her some money or someone supported her in some way to get that”.[17] There was no evidence otherwise.[18]
·Both parties had financial difficulties. The father was unemployed at the 30 August hearing and remained unemployed at the 3 November hearing;
·In that respect, the father had met solely the costs of flights for about two years when “he was coming up [to Brisbane] for all of it”,[19] subsequent to the mother’s unilateral relocation with the child from Melbourne to Brisbane;
·Further, “the opportunities that the father might have to gain employment might be opportunities the mother might have to gain employment … as the child grows as well”.[20] That is, her Honour recognised that both parties are subject to “the vicissitudes of life”. [21]
·The costs will reduce significantly when the child can travel alone.[22]
[17]Transcript of proceedings, 30 August 2016, page 21, line 46 – page 22, line 1.
[18]Transcript of proceedings, 30 August 2016, page 22, line 19.
[19] Transcript of proceedings, 30 August 2016, page 25, lines 15 – 20.
[20]Transcript of proceedings, 30 August 2016, page 24, line 27 – line 39.
[21] Transcript of proceedings, 30 August 2016, page 24, line 28.
[22]Transcript of proceedings, 30 August 2016, page 25, line 35 – 47.
Counsel for the mother argued that time should start on Saturday as otherwise “her Friday is consumed”, and “she is part time” and “hoping to be able to extend that to five days because her financial circumstances are dire”.[23] Counsel for the mother referred to “submissions … made last time [ie on 30 August] about her finances”.[24] Counsel for the father submitted that if the child arrived on Saturday, “the little boy will be tired” and the child would be “left with one day … to interact with his extended paternal family”.[25] It was acknowledged that the father was not currently employed and that his own time with the child would not be affected by this change.[26]
[23]Transcript of proceedings, 3 November 2016, page 13, line 27 – 32; page 14, line 18 – 19.
[24]Transcript of proceedings, 3 November 2016, page15, line 36 – 37.
[25]Transcript of proceedings, 3 November 2016, page14, line 9 – 13.
[26]Transcript of proceedings, 3 November 2016, page13, line 34 – 46.
As against that, her Honour discussed that the mother in fact worked part time; the father was unemployed but in any event “whether people are working or not, the lifestyle of parties working or not is different on … weekends from what is during the week”;[27] and “[the] child is always going to have a less than advantageous relationship with the father because the mother elected to move”.[28] Her Honour concluded that it is “probably in the child’s best interests to have that full weekend”[29].
[27]Transcript of proceedings, 3 November 2016, page15, line 11 – 17.
[28]Transcript of proceedings, 3 November 2016, page 15, line 25 – 27.
[29]Transcript of proceedings, 3 November 2016, page15, line 28 – 29.
While Mr Galloway eschews it (as he must), it seems to me that the mother’s central contention, however it might otherwise be clothed, is that the mother’s financial position should be determinative of the duration and/or frequency of the child’s time with his father. The practicality of orders is, of course, important, but other factors central to the child’s best interests must also be considered. As it seems to me her Honour predominated the child’s needs over those of the mother in deciding that his best interests lay in time with his father of the frequency and duration ordered. That approach was entirely consistent with the Act’s central statutory mandate and her Honour’s duty accordingly.
Her Honour’s reasons as revealed by the transcripts are firmly grounded in the best interests of the child, and the need to maintain the strong and healthy relationship between the child and both parents. This can be seen emphasised by the exchange between her Honour and both counsel at the beginning of the 3 November hearing where her Honour expressed concern that the father had not been spending time with the child and the need to “make some sort of arrangements for the child to see the father”.[30]
[30]Transcript of proceedings, 3 November 2016, page 5, line 17 – 20.
Given those central premises, her Honour was confronted by two parents, both of whom had to find the money to make arrangements that best meet the child’s bests interests given his parents’ geographic separation. In doing so, her Honour ordered that the costs of specific responsibilities and burdens should be borne equally.
As Callinan J has pointed out in another context, arriving at a parenting decision involves “a multiplicity of considerations” and:
The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.[31]
[31] U v U (2002) 211 CLR 238, 263.
In my view, an analysis of both transcripts reveals that her Honour’s decisions in respect of the very narrow issues which required determination were, in the particular circumstances of this case and the particular manner in which the proceedings were conducted, supported by reasons adequate to explain them.

Failure to Take Account of Relevant Considerations

Grounds 1 and 2 assert that the trial judge “failed to take into account” specific matters. However, on any view, her Honour did in fact take those matters into account in reaching her conclusions. The true gravamen of the ground is that her Honour failed to attribute sufficient weight to those matters.
In a similar vein, ground 3 contends that the limited financial circumstances of the mother were not properly taken into account when considering her ability to fund half the costs of travel for herself and the child. Again, it cannot in my view fairly be said that her Honour did not take account of that consideration. The use of the word “properly” in the ground is itself indicative of the challenge being one of weight and in my view that is how it should properly be seen.
Challenges to discretionary decisions, particularly those involving the attribution of weight, face the considerable hurdles emerging from well-settled principle explained in long-standing High Court authority to which reference has frequently been made by the Full Court.[32] Challenges to the attribution of weight become all the more difficult when the issues are as narrow as those in this case and the manner of their determination is as occurred in this case.
[32]See, for example, House v the King (1936) 55 CLR 499, 504-505; Gronow v Gronow (1979) 144 CLR 513, 519; CDJ v VAJ (1998) 197 CLR 172, 218-219.
The narrow issues which confronted her Honour did not require forensic fact finding. They were issues which render acute what was said by McHugh, Gummow and Callinan JJ in CDJ v VAJ.[33] Those comments bear repeating to the parties:
… applications for parenting orders necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. … The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G [(1985) FLR 894, 897-8], Lord Fraser of Tullybelton pointed out:
"The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory."
[33] Above, 218-219.
A fair reading of the transcripts (from both 30 August 2016 and 3 November 2016) cannot lead to the conclusion that her Honour was unaware of each and all of the matters to which the grounds refer. Her Honour was plainly aware that those facts were central to the arguments advanced by the mother. Contrary to that which is asserted in the grounds of appeal, her Honour took them into account.
Her Honour needed to, and did in fact, consider and attribute such weight as she considered appropriate to the mother’s financial circumstances. But her Honour also needed to, and did in fact, consider and attach weight to other considerations including the father’s financial circumstances and the age and needs of the child.
Her Honour gave predominance to the assessed benefit to the child of a meaningful relationship with his father and, given the child’s age and consequent developmental needs, the need for regular time between the child and his father while seeking to take account of the consequences of the parties’ geographical separation.
Her Honour was in my view plainly aware of the Objects and Principles guiding her decision as she was of the relevant considerations. Her Honour weighed those considerations in a manner which her Honour determined was in the best interests of the child. In my judgment, no error in the attribution of weight is apparent.
Grounds 1 to 3 fail.

Conclusion

The appeal should be dismissed.

Costs Of The Appeal

A number of matters referable to s 117(2A) are relevant.
Although the appellant mother has been wholly unsuccessful I consider conduct irrelevant; the appeal was not frivolous and the grounds were focussed. Further, I have not been made aware of any offer in writing.[34]
[34] See Lenova & Lenova (Costs) [2011] FamCAFC 141, [11].
The father is represented and has incurred significant costs. The mother prepared her own material and Mr Galloway appears pro bono. The mother asserts she is financially unable to pay costs. The court is told that she now has a full time job but her overall income is similar to that which it was before her Honour. Impecuniosity is not determinative of the question of whether the circumstances justify an order for costs; as has been said, if it were, the impecunious could litigate with both impunity and immunity.[35] The father, too, is unemployed.
[35] Ibid, [12].
Her Honour’s orders, left undisturbed as a result of this appeal, in effect require the mother to find the money to fund the ordered time. Taking her at her word, she sincerely desires that the child should spend time with his father in Melbourne. A costs order adds a further financial impost. The money might otherwise be used to fund time between the child and his father. I consider it appropriate to take account of that consideration (s 117(2A)(g)).
On balance, I am not persuaded that the circumstances justify an order for costs.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 15 March 2017.

Associate:

Date: 15 March 2016