CCC & MJR

[2005] FamCA 784

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA 122 of 2004

File No. PAF 6049 of 1998

IN THE MATTER OF:

CCC

Appellant/Mother

- and -

MJR

Respondent/Father

REASONS FOR JUDGMENT

BEFORE:Faulks DCJ, Coleman, and Boland JJ
HEARD:27 July 2005

JUDGMENT: 19 August 2005

APPEAL SUMMARY

MATTER:Collison and Rendoth
APPEAL NUMBER: EA 122 of 2004 (PAF 6049 of 1998)
CORAM:Faulks DCJ, Coleman and Boland JJ
DATE OF HEARING: 27 July 2005

DATE OF JUDGMENT: 19 August 2005

CATCHWORDS:

APPEAL – child relocation – 7-year-old child residing with mother in Blue Mountains, New South Wales – proposed relocation to central western area of New South Wales with block holiday contact with father – regular contact at date of trial – whether trial Judge failed to give proper reasons – whether the trial Judge failed to set out her conclusions in respect of alleged incidents of domestic violence – whether the trial Judge failed to adequately weigh the competing proposals of the parties – whether trial Judge gave appropriate weight to the benefits which would flow to the child from the proposed relocation – whether trial Judge gave appropriate weight to the effect on the child of concluding contact at the commencement of school on Monday mornings rather than on Sunday evenings

House v The King (1936) 55 CLR 499

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

Gronow v Gronow (1979) 144 CLR 513

CDJ v VAJ (1998) FLC 92-828

Bennett and Bennett (1991) FLC 92-191

A v J (1995) FLC 92-619

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

U v U (2002) 211 CLR 238

KB and TC [2005] FamCA 458

Appeal dismissed.

Introduction

This is an appeal by the mother against orders made by Stevenson J on 28 October 2004 concerning the child (“K”) born in August 1997. The orders provide K shall live with the mother but their effect is to prevent the mother’s proposed relocation with K from the Hawkesbury/Blue Mountains area to the central western area of New South Wales.
The grounds of appeal are cast in very general terms. Before us, counsel for the mother formally abandoned ground 1 of the grounds of appeal, but relied on the remaining four grounds.
The mother’s appeal is brought on three bases. First, she asserts the trial Judge failed to give proper reasons, and in particular that she failed to set out her conclusions in respect of alleged incidents of domestic violence. Second, she asserts the trial Judge failed to give appropriate weight to the benefits which would flow to K with the proposed relocation. Third, it is asserted that her Honour failed to accord proper weight to the effect on K of having contact conclude at the commencement of school on Monday mornings rather than on Sunday evenings, such arrangement involving K in approximately two hours travelling prior to the commencement of school.
The father, who is self represented, provided detailed written and brief oral submissions in support of the trial Judge’s orders and reasons for judgment.

Relevant background

The judgment and Court record discloses the following relevant background material.
At the date of the trial the father was aged 31 years and the mother was aged 28 years.
The parties commenced cohabitation in 1995 or 1996 and finally separated in July 1998.
K was born in August 1997.
Following separation the mother initially moved into her parent’s home in the Hawkesbury/Blue Mountains area with K where they remained until December 1998. Thereafter she moved into rented accommodation for approximately six months, and then returned to her parent’s home. In January 2004, after her parents purchased a motel in the central western area of New South Wales, the mother commenced residing with her sister and brother-in-law in the Blue Mountains.
The father moved to the Central Coast of New South Wales in mid 2000.
Following the parties’ separation the father purchased a car for the mother which she drove for approximately 12 months.
In January 2002 the father commenced living in a defacto relationship with Ms J at another location on the Central Coast of New South Wales. The father and Ms J commenced their relationship in September 2001.
On 14 May 1999 the parties entered into consent orders which made provision for the father to have alternate weekend contact to K, as well as contact for half of all of the school holidays.
On 25 August 2003 the parties entered into further consent orders which provided for alternate weekend contact to commence on a Friday evening, rather than on Saturday morning as had previously been the arrangement.
The mother made a general assertion that she was physically assaulted by the father on a weekly basis during the parties’ cohabitation. The mother also alleged a number of incidents of violence perpetrated on her by the father between November 1996 and June 2003.
The mother asserted the father was causally involved with her loss of ability to see in her left eye in November 1996. The mother conceded during the hearing she did not tell her treating doctors or professional staff at the hospitals to which she was admitted that the father may have been involved in her loss of sight. Further, she conceded that on her admission to hospital she had been asked whether the condition could have been the result of trauma or a hit, and that she did not tell the hospital staff she had been hit.
In 1997 the father was admitted to hospital after inhaling carbon monoxide fumes in a garage.
The mother obtained an Apprehended Violence Order (“AVO”) in October 1997, which order was in force for a period of three months.
A neighbour of the parties deposed to hearing arguments and loud bangs when she lived next to the parties from early 1997. She also deposed to hearing the father using obscene language and shouting at the mother.
In 1997, when the mother was pregnant with K, she alleged she was pushed into a wall by the father. Records of the local Health Service dated 25 July 1997 disclose “[the mother] presented with a history of being pushed by her boyfriend – [the mother] states she and her boyfriend were having a disagreement”.
In December 1997 the mother asserted the father hit her causing a black eye. The incident was witnessed by Mr W. Mr W’s evidence was that he observed the parties yelling at each other, and that the father held the mother’s wrists when she swung at him. He did not observe that the mother had a black eye.
In a statement made to the police, dated 3 September 1998, the mother recorded alleged incidents of domestic violence. The statement was made in support of an application for an AVO.
In October 1998 the mother obtained a further AVO for a period of 12 months, and subsequently in October 2003, a further order was made for her protection for a period of two years. The father did not oppose the making of any of the AVOs.
On 10 May 1999 the father came to the mother’s home. The mother asserted that the father broke into her home and refused to leave. The father was subsequently charged with breach of an AVO.
On 29 March 2000 the mother alleges she was assaulted at the paternal grandmother’s home. The mother alleged the father grabbed her in the genital area. A report from the mother’s general practitioner, Dr C, on 30 March 2000 notes observations of abrasions and scratches on the mother’s thigh and an abrasion on her labia.
In May 2000 the father lost his driving licence for 12 months and travelled by train for six hours to see K for the purposes of contact.
In late 2002 the mother was unaccompanied when she collected K from the father. Between 2002 and June 2003, three or four contact changeovers occurred when both parties were unaccompanied.
On 22 June 2003 the mother claims the father smacked her on the side of her face with his hand. The father asserts that the mother hit him twice on the face before he slapped her on the face. The father’s version was corroborated by the paternal grandmother.
On 28 November 2003 the mother filed an Amended Application in these proceedings in which she sought to discharge the earlier contact orders and for contact to be exercised as block holiday contact periods for the whole of the second and third school terms, for one week during the first term school holidays, and for one half of the Christmas school holidays. The mother proposed contact changeover be effected by the maternal grandfather and the father in the Upper Hunter are of New South Wales, unless otherwise agreed between the parties.
In 2004 the maternal grandparents and one of the mother’s sisters jointly purchased a motel in a town in the central western area of New South Wales and moved to that town.

The trial Judge’s judgment

At the commencement of her judgment the trial Judge noted that, notwithstanding the parties had in the past been able to agree on arrangement for K’s care, they were unable to agree on arrangements in the light of the mother’s proposed relocation to the central western area of New South Wales.
The trial Judge set out each of the parties’ proposals as follows:
“3.Each of the parties made two broad proposals and indicated a clear preference for one of these options. [The mother]’s primary or preferred proposal was that [K] live with her [in the central western area of New South Wales] and have contact with her father during school holidays. If [the father] could go to the Dubbo district, she proposed that he have additional contact by agreement between the parties. She proposed that contact changeovers occur at [an] approximately equidistant between the Central Coast and [the central western area of New South Wales], with her parents to be responsible for transporting [K]. She also proposed that there be telephone contact between [the father] and [K].
4.[The mother]’s less preferred option was that she not relocate to [the central western area of New South Wales] but continue to be [K]’s primary residence parent. Her proposal as to ongoing contact between [K] and her father was unspecified but it seemed to be assumed that the present arrangements would continue.
5.[The father]’s primary or preferred proposal was that [K] live with [the mother], in the vicinity of [the] Public School. She would continue to have contact with her father each alternate weekend, for half of all school holidays, on special occasions and by telephone. He sought that weekend contact conclude on Monday morning, rather than Sunday night.
6.[The father]’s less preferred option was that [K] live with him, if [the mother] moves away from the vicinity of [the] Public School. [K] would have contact with her mother each alternate weekend, if [the mother] lives close by, for half of all school holidays and by telephone.”
Thereafter her Honour recorded the background history of the parties which we have referred to above.
The trial Judge set out the relevant legal principles to be considered in determining a relocation application. The trial Judge rejected submissions made on behalf of the mother that her application was one merely for a change of contact arrangements. Her Honour identified the proposed relocation as one which would necessitate “a significant change in parenting arrangements for [K]”, and that the application should be treated as a relocation case. The trial Judge also referred to the fact that the father placed K’s residence in issue as an alternative to the proposed relocation.
Having set out the material relied on by each of the parties, the trial Judge made findings that the maternal grandparents “were impressive people” who were devoted to K and very supportive of the mother. Although the trial Judge expressed some reservations about the mother’s candour to the counsellor, Dr R and the Court, her Honour found that her mother “created a reasonably favourable impression”.
The trial Judge noted the father was somewhat defensive in giving his evidence, but found “he endeavoured to be frank”. The trial Judge found Ms J to be a very impressive witness. Her Honour made similar findings about the paternal grandmother whom she described as “a very devoted grandmother”.
Thereafter, the trial Judge dealt with the parties’ competing proposals using s 68F(2) factors as a framework, setting out the relevant evidence, her conclusions on the benefits and detriments to K relevant to each factor, and her overall assessment of the competing proposals.
The trial Judge discussed K’s wishes in light of the evidence from the court counsellor, Mr G. The trial Judge found K’s wish to spend alternate weekends with the father to be “genuine and soundly based”. Her Honour rejected a submission, made on behalf of the mother, that the father had “influenced K’s wishes” about the central western area of New South Wales. The trial Judge concluded her findings under s 68F(2)(a) as follows:
“I am of the view that [the father]’s preferred proposal holds more advantages, and [the mother]’s preferred proposal corresponding disadvantages, to [K]’s best interest in terms of this factor”.
The trial Judge thereafter considered K’s relationship with each of the parties, and with other persons. Her Honour noted that the father did not challenge the counsellor’s assessment that K loved each of her parents, but appeared to be more emotionally dependant on the mother than the father.
The trial Judge concluded that both of the mother’s proposals and the preferred proposal of the father, whereby K continued to live primarily with the mother, were more advantageous to K than was the father’s proposal that she live with him.
In dealing with the likely effect on K if she relocated to the central western area of New South Wales, the trial Judge noted that this would involve a significant change to her circumstances, the most significant factor being the substantial reduction in the frequency of contact periods with the father, whom she would only see during school holidays, although there was a possibility that contact may occur if the father was prepared to travel to the Dubbo area.
The trial Judge set out an extract from Mr G’s report as to his opinion of the effect of the proposed relocation on K. The trial Judge noted the recommendation of Mr G that alternate weekend contact should continue subject to the caveat of there being “no necessity to rob [K] of fortnightly contact”. The trial Judge concluded her findings on the effect of a move to the central western area of New South Wales by K as follows:
“I cannot be confident that contact which occurs only during school holidays would be sufficient to sustain the high quality of the close, loving relationship which [K] presently enjoys with her father.”
The trial Judge accepted Mr G’s assessment of K’s relationship with Ms J and the paternal grandmother. She noted that a move to the central western area of New South Wales “would reduce significantly K’s opportunity for contact with these two important figures in her life”.
The trial Judge also found it was “highly likely” that K would settle quickly into a household comprising the mother and the maternal grandparents, noting she had previously lived in that situation.
At paragraph 41 of her reasons for judgment, the trial Judge set out her conclusions about the mother’s assertion that she was fearful of the father and unable to parent K adequately if prevented from living in the central western area of New South Wales. Her Honour thereafter set out the evidence and her findings underlying her conclusions. The trial Judge dealt both with the generalised allegation made by the mother of domestic violence, and specific incidents of violence set out in the mother’s affidavit.
The trial Judge carefully analysed two reports of Dr C, the mother’s general practitioner. Her Honour said “[i]t is strange that [the mother] presented to Dr [C] on only one occasion with physical signs of a violent encounter with [the father]”.
The trial Judge implicitly rejected the mother’s version of an incident on 22 June 2003, when she asserted the father smacked her face, and accepted the unchallenged evidence of the paternal grandmother, whom she found to be a truthful witness, that the mother had hit the father across the face with her open hand and had then swiped at his head again.
The trial Judge set out the assertions of the father that the mother approached him on several occasions and sought a reconciliation. She noted the mother admitted she stayed overnight with the father on one occasion when he purchased a car for her in 1998.
The trial Judge discussed the evidence of Mr W, who observed arguments between the parties from mid 1996 to mid 1997, and noted that his evidence was unchallenged.
The trial Judge also discussed the events of 10 May 1999 when the father was at the mother’s house notwithstanding the terms of a current AVO. The trial Judge noted that she had “some difficulties” with the mother’s account of events on that evening.
The trial Judge accepted the evidence of the paternal grandmother, Ms J and Mr W concluding “[i]t follows that I am satisfied that [the mother] has directed physical and verbal aggression at [the father], as he claimed”.
At paragraph 73 of her reasons for judgment the trial Judge set out her findings in relation to a history given by the mother to Dr R, an expert psychiatrist, called on her behalf. She concluded she was not satisfied that the mother gave “an accurate or objective history” of incidents between herself and the father to Dr R. The trial Judge said “[t]his is a matter of concern because Dr [R] agreed that he assumed her history was correct, for the purpose of reaching his conclusions”.
The trial Judge carefully recorded aspects of Dr R’s evidence and discrepancies in the history given to him by the mother. The trial Judge made a finding that, notwithstanding the mother’s denial that she had told Dr R the father had broken into her parent’s home, she had conveyed this information to Dr R.
Thereafter the trial Judge set out a history of occasions of contact changeover when the changeover took place between the parties without the presence of third parties. The trial Judge also noted the mother’s concession that “there were frequent arguments during which she and [the father] shouted and screamed at each other”. Her Honour recorded that Dr R said his report would not have been different had he been aware that the mother participated directly in physical altercations with the father. Her Honour said “[h]e did not explain this proposition”.
The trial Judge recorded Dr R’s diagnosis that the mother had developed post traumatic stress disorder. She also noted he was of the view there had been a considerable improvement in the mother’s condition following separation. The trial Judge recorded Dr R’s opinion that it was “‘vitally important’ for the sake of [the mother]’s mental health, that she has no contact whatsoever with [the father]. Such contact will inevitably cause a worsening of PTSD and a delay in her recovery”. The trial Judge thereafter noted that, when giving his oral evidence, Dr R “agreed that a person in [the mother]’s situation would avoid voluntarily coming into physical contact with [the father]”.
The trial Judge recorded that the mother had seen a counsellor for considerable time but had not recently undertaken counselling “presumably because she does not find it necessary”.
The trial Judge set out her conclusions about Dr R’s evidence as follows:
“With respect to Dr [R], it seems to me that his opinions and conclusions were based in part upon inaccurate information and an exaggerated account of events provided by [the mother]. I do not suggest that his report cannot stand but it seems to me that [the mother] has come to terms with her experiences with [the father] and the breakdown of the relationship to a significantly greater extent than his assessment would indicate. In significant respects, her conduct is inconsistent with his conclusions.”

Her Honour concluded her assessment of the mother’s allegations of violence, finding under s 68F(2)(g) that none of the proposals put by the parties had advantages or disadvantages to K.
Her Honour thereafter examined each party’s capacity to provide for K’s needs. Whilst expressing concern about the mother’s attitude to the maternal grandmother, the trial Judge concluded “[the father] is untried as primary residence parent and Ms [J] has participated in [K]’s day-to-day care only on weekends and during periods of holiday contact”.
Having noted that the mother was not required to demonstrate compelling reasons for her proposed relocation, the trial Judge determined that she should consider the mother’s reasons for moving to the central western area of New South Wales. The trial Judge then set out the reasons advanced by the mother for wishing to relocate, principally her need to live with her parents in order to feel “safe and secure”. The trial Judge recorded the mother’s claim “that she would be very frightened to live alone and that she would have no support on contact change overs”. Her Honour also recorded the mother’s assertion she would be afraid that the father may come to her home, and her fear at each contact changeover. Her Honour said that there was no suggestion that the father had attempted to come to the mother’s home for the last five years. She also recorded the father’s proposal that he collect and return [K] for contact periods at her school “thus avoiding any meeting between himself and [the mother]”. The trial Judge said “[i]f such an order were made, it would only be necessary for a scheme to be devised to avoid contact between the parties on occasions of holiday and special occasion contact, to allay this fear of the mother”.
The trial Judge noted the evidence of the mother’s sister of support. She also noted that the mother had not lived with her parents since their move to the central western area of New South Wales in January 2004.
The trial Judge then dealt with the issue of the father potentially moving to the central western area of New South Wales. Having noted he gave no evidence about his refusal to move to that town, her Honour said “I am prepared to infer that he would not wish to do so because he is in a stable relationship with Ms [J] and because he has just commenced work as a parcel deliverer…”. Her Honour concluded by reason of Ms J’ employment and home ownership that the father would continue to live on the Central Coast.
The trial Judge then assessed and weighed the competing proposals of the parties. Her Honour found that the mother could fulfil K’s psychological needs, and concluded that the father’s second proposal that K live primarily with him held more disadvantages than advantages for K. Her Honour concluded that K’s best interests dictated she continue to live primarily with the mother. The trial Judge then considered the “balancing [of] the advantages and disadvantages, or the positive and negative consequences” of the relocation proposal.
The trial Judge recorded her awareness of a right of the mother of freedom of movement.
Her Honour listed the positive aspects of a relocation for K including the following:
·she would live with the mother and the maternal grandparents in close proximity to her aunt and cousins; and
·the move would accord with the mother’s wishes and make her happy.
Her Honour also set out the negative consequences of the move:
·a reduction in the frequency of contact with the father involving lost opportunity for meaningful input by him into her every day life; and
·less frequent contact with Ms J and the paternal grandmother.
The trial Judge concluded she should not require the mother to enrol K at a particular school, as the father sought in his proposed orders, rather the mother should be free to choose where she wished to live, “subject to being close enough to [the Central Coast] to allow alternate weekend contact to occur”.
Finally, her Honour noted that no submission was put on behalf of the mother as to why weekend contact should conclude on a Sunday evening and had regard to the advantage which would flow from the father’s proposal by reason of there being no contact between the parties at changeovers.

Grounds of appeal

Before us counsel for the mother formally abandoned reliance on ground one. The remaining grounds of appeal relied on by the mother are as follows:
“2.That her Honour fails to properly weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties.
3.Her Honour failed to properly indicate to which of those matters she attaches a greater significance and how all of those matters balance out.
4.Her Honour failed to provide in an appellant sense a lack of reasons.
5.Her Honour failed to properly consider the effect upon the mother of her not being permitted to relocate with the child to [the central western area of New South Wales].
6.Her Honour failed to properly consider the effect of the Form of Orders made by her, including in that context the effect of the Monday morning changeover.”
The written outline of argument filed on behalf of the mother addresses only grounds four and six. Before us counsel for the mother dealt with the grounds of appeal in three broad categories:
·the alleged failure by the trial Judge to give proper weight to the issue of domestic violence and to make findings about the mother’s assertions of domestic violence;
·the alleged failure by the trial Judge to properly weigh the benefits which would flow to K from the mother’s relocation; and
·the alleged failure of the trial Judge to give reasons for, and to weigh the benefits to K, of contact concluding at the commencement of school each alternate Monday morning during school terms.

Relevant law

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

The issue of domestic violence

The thrust of the submissions made on behalf of the mother in relation to the issue of domestic violence alleged to have been perpetrated on the mother by the father involve firstly a challenge to the trial Judge’s finding at paragraph 46 of her reasons that “[t]here was little evidence to corroborate [the mother]’s allegations of physical assault at the hands of [the father]”.
Counsel for the mother initially referred to the notes of the local Health Service dated 25 July 1997 as being corroborative of the mother’s assertion that she had been the subject of physical violence by the husband. However, learned counsel for the mother very properly conceded before us that whilst admission to a hospital could be relied on as corroboration per se, the self corroborating statement in the notes of the local Health Service was not, of itself, corroboration of the truth of the fact asserted by the mother. The assertion of corroboration by Dr C’s notes falls largely into a similar category.
It is not in dispute that the thrust of the mother’s case at trial was as set out in paragraph 2 of her affidavit sworn on 18 February 2004 namely: “I say that I am fearful to remain in Sydney living by myself with [K] following the previous actions of the father”. It is clear that the trial was conducted before her Honour on the basis of the mother’s alleged fear of the father, it being asserted that that fear necessitated her move to the central western area of New South Wales. It is asserted that the reasons of the trial Judge in respect to the issue of domestic violence and, as between the parties, who was the perpetrator of such violence are inadequate.
The law in respect of adequacy of reasons is well settled. In Bennett and Bennett (1991) FLC 92-191, the Full Court considered that the test as to the adequacy of reasons propounded by Gray J in the passage appearing hereunder was a useful one and one which applies to discretionary judgments. The Court observed at 78,266:
“In Sun Alliance Insurance Ltd v Massoud (1989) VR8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principle judgment, said, at 18:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reason upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.”
In A v J (1995) FLC 92-619 at 82,230-82,233, the Full Court comprehensively reviewed a number of decisions dealing with adequacy of reasons, specifically to discretionary judgments involving the welfare of a child and said at 82,232:
“[where] competing proposals are evenly balanced, [it is] important to avoid an overly critical analysis of the reasons of the trial Judge. This is not to detract from the requirement to give adequate reasons. It simply means that there should be not a microscopic analysis of, for example, words used by a trial Judge, if, in all the circumstances, it is clear that the trial Judge has considered and evaluated all the relevant evidence, taken into account all relevant factors and, importantly, has considered the ultimate welfare of the child as the paramount consideration”.
As is apparent from the judgment the trial Judge carefully, and comprehensively, set out the relevant incidents of domestic violence asserted by the mother.
We have already noted the concession made by the mother’s counsel that the trial Judge’s finding “there was little evidence to corroborate [the mother]’s allegations of physical assault at the hands of [the father]” was open to her on the evidence.
It was not submitted before us that the trial Judge failed to deal with any assertion of domestic violence. Her Honour’s reasons disclose a careful recitation of the allegations of domestic violence by each party, her acceptance of the paternal grandmother’s unchallenged evidence in respect of the incident of 22 June 2003, some corroboration of the father’s evidence by Mr W and in particular in respect of the incident in December 1997, concessions by the mother concerning her condition of optic neuritis, her further concession that she had not told Dr R the “whole story”, and that she had given him incorrect information.
We are satisfied that her Honour did make the necessary and appropriate findings. In paragraph 46 of her reasons for judgment her Honour clearly set out her conclusion that the father’s “version of events seemed more plausible”, thus inferentially rejecting the submissions of the mother that the father was the sole perpetrator of domestic violence.
However, it is apparent to us that the determination of whether or not the father was the sole or major perpetrator of domestic violence was not the pivotal issue which the mother raised for determination by the trial Judge. The pivotal issue was whether the mother’s fear for her safety if she came into contact with the father necessitated a move to the central western area of New South Wales.
The issue of the mother’s asserted fear was succinctly set out by the trial Judge in paragraph 101 of her reasons for judgment. The trial Judge’s rejection of the mother’s position that the father may come to her home is found at paragraph 102 where her Honour records that the father had not made any attempt to go to the mother’s home for the last five years. Of more significance however is the trial Judge’s conclusion on this issue. Her Honour said:
“I am not satisfied that [the mother] is fearful of [the father] to the extent which she suggests. I am not satisfied that she would be unable to parent [K] adequately and appropriately if she were prevented from living in [the central western area of New South Wales], for reasons to which I will refer.”
This finding was based on her Honour’s detailed examination of all the evidence relevant under s 68F(2)(g), including the mother’s allegations of domestic violence, and her asserted associated fear of the father.
Counsel for the mother sensibly conceded before us the manner in which the mother’s case was conducted at trial. The mother raised as the central issue to be determined by the trial Judge the bona fides of, or weight to be accorded to, her alleged fear of the father, some five years after the parties’ separation when the parties lived some geographical distance part, although interacting for the purposes of contact exchange.
We are satisfied that the concessions made by the mother during the hearing, the trial Judge’s acceptance of the evidence of the father, particularly in respect of the circumstances of the father being at the mother’s home on 10 May 1999, and unchallenged evidence of the maternal grandmother and Mr W provide the necessary foundation for the trial Judge’s conclusions referred to above. We are not satisfied that the grounds directed to this challenge to her Honour’s judgment are made out.

Assessment of the competing proposals

It is asserted on behalf of the mother that the trial Judge failed to adequately weigh the competing proposals of the parties, and that she failed to give sufficient weight to the benefits which would flow to K from a move to the central western area of New South Wales, including the prospective employment of the mother, the residence of the mother and K with the maternal grandparents, and the mother’s proximity to her sister and K’s cousins.
It is conceded that the mother’s case before the trial Judge was not one based on economic factors but, as we have already set out, was principally run on the basis of the mother’s assertion of her fear of the father and the consequences of that fear on her ability to parent K.
The trial Judge set out at the commencement of her judgment the parties’ competing proposals.
In A v A: Relocation Approach (2000) FLC 93-035 the Full Court, commenting on the necessary elements of a judgment where a child’s relocation was in issue, said:
“Taking these matters together we would suggest that the following practical steps should be followed by a court:
·   In determining a parenting case that involves a proposal to relocate the residence of a child it is to be expected that reasons for decision will display three stages of analysis and will:
1. identify the relevant competing proposals;
2. for each relevant s 68F(2) factor, set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s 60B;
3. on the basis of the prior steps of analysis, determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.”
The suggested approach in A v A was subject of comment in U v U (2002) 211 CLR 238 at 260 where Gummow & Callinan JJ said:
“We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests.”
(See also KB and TC [2005] FamCA 458 at paragraphs 71-72).
The trial Judge’s reasons disclose that she carefully followed the suggested approach in A v A by weighing and assessing the competing proposals having regard to each relevant s 68F(2) factor.
The trial Judge noted the evidence of Ms H to the effect there was a position available for the mother as a dental therapist in Dubbo.
At the conclusion of her reasons for judgment, the trial Judge summed up the significant factors relevant to each of the parties’ proposals for K. In the exercise of her discretion, the trial Judge found the most significant matters impacting on K’s best interests were her psychological dependence on her mother, and the negative impact a move to the central western area of New South Wales would have on her relationship with the father.

We are satisfied that her Honour’s reasons disclose she had due regard to a right of freedom of movement of the mother, and her desire to live with her parents in close proximity to her sister, brother-in-law and their children.
The trial Judge’s finding that the mother would cope, and that her parenting would not be impaired if she did not move to the central western area of New South Wales, was supported by the evidence and in particular the trial Judge’s finding the mother was not as fearful of the father as she suggested, this finding based substantially on the trial Judge’s careful analysis of the parties’ disparate accounts of domestic violence during and after the cessation of their relationship.
An examination of the transcript of the proceedings before the trial Judge, and in particular the submissions made to the trial Judge at the conclusion of the case, is illuminating to evaluate this ground. The submissions made on behalf of the mother by her then counsel were almost exclusively centred on the mother’s assertion of her fears based on the history of the parties’ relationship. At the conclusion of her submissions the mother’s counsel said:
“…and in terms of benefit the child will benefit by far more greatly residing with her mother in an environment where her mother is both safe, secure, comfortable, has the prospect for good employment and has a strong family support network.”.
We are satisfied that the mother’s employment prospects if she moved to the central western area of New South Wales were, in the way the case was conducted before the trial Judge, not raised as a significant issue. The trial Judge, in her weighing and assessment of the competing proposals for K’s residence, balanced factors supporting the move to the central western area of New South Wales as being in K’s best interests, against those factors adverse to her interests in such a move. The trial Judge, on the evidence before her, identified the predominant factors relevant to K’s best interests to be her emotional needs which could best be met by the mother, and the benefits flowing to her from a meaningful relationship with the father which could only be appropriately maintained and fostered by regular contact with the father. Thus we are satisfied it has not been demonstrated that the trial Judge in exercising her discretion relied on any extraneous fact or circumstance, nor has it been demonstrated that she failed to have regard to any significant fact or circumstance in the process of evaluating the competing proposals of the parties. Accordingly, we find no merit in the challenge to her Honour’s assessment of the parties’ competing proposals.

Commencement time for contact

Ground six of the Notice of Grounds of Appeal is directed to the form of orders made by the trial Judge, including the order providing for contact to conclude at the commencement of school on Monday morning. No other challenge to the form of her Honour’s orders was argued before us. In her written submissions, counsel for the mother sets out the address of each of the parties, namely that the father resides on the Central Coast of New South Wales and that K lives in the Blue Mountains. She submits at paragraph 6.3: “[h]er Honour failed to consider the effect of the travel distance on the child attending school on Monday”.
In his written submissions the father notes at paragraph 6.2: “[t]he Appellant did not submit evidence to prove that the travel to school on Monday morning from [the Central Coast] would have an adverse effect on [K]”.
There is no dispute that in his Amended Response filed 17 December 2003, the father sought orders that K’s contact with him during school terms should conclude at “the commencement of school on Monday, or Tuesday in the event of a public holiday or pupil free day”. Her Honour’s reasons for judgment disclose that, in the exercise of her discretion, she carefully considered the benefits which would flow to K from this arrangement, namely that such a scheme would avoid the necessity for contact between the parties, and only require a scheme to be devised “to avoid contact between the parties on occasions of holiday and special contact, to allay this fear of the mother”. The mother gave no evidence in her affidavit of any adverse impact on K of travelling from the Central Coast. She did, however, say in the event that she was not permitted to relocate K’s residence that “I also will have no support for the times of contact changeover, which has been in the past the cause of conflict between the father, his family members and myself”. The order ultimately made was a practical one which addressed substantially the mother’s concern about interaction between herself and her family members and the father at weekend contact changeover. We are satisfied that the order made by the trial Judge was, in the circumstances of this case, a practical one in K’s best interests and we find no merit in this ground.

Conclusion

The mother’s Grounds of Appeal were very widely drawn. Before us, counsel for the mother, very properly conceded the limited basis of challenge to the trial Judge’s judgment.
The challenge before us was principally one directed to exercise of discretion by the trial Judge. It has not been demonstrated before us that her Honour acted on a wrong principal, or reached a conclusion which was plainly wrong. Further, for the reasons previously particularised we are satisfied the trial Judge’s reasoning discloses that she considered and evaluated the relevant evidence, and her reasoning process, having regard to the manner in which the case was conducted before her, is readily discernible. It follows, therefore, we are not satisfied any of the grounds of appeal have merit.

Costs

At the conclusion of the hearing before us we sought submissions from each of the parties in respect of costs.
In the event that the mother’s appeal was unsuccessful, she sought there should be no order for costs. In support of that submission we were advised that the mother is in receipt of a grant of Legal Aid.
The father submitted that an order for costs should be made in his favour in the sum of $384. The father did not particularise the basis on which he claimed that sum. We have considered relevant factors under s 117(2A) including the evidence before us of the husband’s employment, the fact that the mother is in receipt of a grant of Legal Aid, and that the mother has been wholly unsuccessful in this appeal. Although the sum sought by the father is a modest one, we have no breakdown of that sum. Weighing up all of the relevant factors we determine there should be no order for costs.

Orders

That the appeal is dismissed.
Each party pay their own costs of and incidental to the appeal.

I certify that the preceding 106 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.

Associate

[2005] FamCA 784

19 August 2005

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