Chiles and Chiles - [2010] FamCAFC 84

FAMILY COURT OF AUSTRALIA

CHILES & CHILES

[2010] FamCAFC 84

FAMILY LAW – APPEAL - CHILDREN – APPEAL FROM A DECISION OF FEDRAL MAGISTRATE– Not established that Federal Magistrate erroneously failed to consider the mother’s attitude toward the children and the responsibilities of parenthood – Not established that the Federal Magistrate erroneously failed to criticise the mother’s absence of willingness/or ability to facilitate and encourage a close and continuing relationship between the children and the father – Father’s application being that children spend more than equal time with mother, adverse findings on these issues would not have altered the outcome of case – Not established that Federal Magistrate erred in finding that mother continuing to reside in southern New South Wales area was not “reasonably practicable” – Not established that Federal Magistrate erred in refusing father adjournment to pursue subpoena in relation to mother’s future employment in southern New South Wales area, or that documents produced in response to subpoena would have rendered Federal Magistrate orders erroneous – Appeal dismissed – Application to adduce further evidence dismissed

Family Law Act 1975 (Cth) - Part VII, ss 60CC and 93A

CDJ v VAJ (1998) 197 CLR 172
Collu & Rinaldo [2010] FamCAFC 53
De Winter v De Winter (1979) FLC ¶90-605
MRR v GR [2010] HCA 4 (3 March 2010)

APPELLANT:

Mr Chiles

RESPONDENT:

Ms Chiles

FILE NUMBER:

CAC

308

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

23 April 2010

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Canberra

JUDGMENT OF:

Coleman J

HEARING DATE:

24 March 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

22 December 2009

LOWER COURT MNC:

[2009] FMCAfam 1378

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Self-represented

SOLICITOR FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT:

Ms Haughton

SOLICITOR FOR THE RESPONDENT:

Dobinson Davey Clifford Simpson

Orders

That the appeal be dismissed.
That the application for leave to adduce further evidence be dismissed.
That there be no order for costs.

IT IS NOTED that publication of this judgment under the pseudonym Chiles & Chiles 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 CANBERRA

Appeal Number: EA 9 of 2010
File Number: CAC 308 of 2009

Mr Chiles

Appellant

And

Ms Chiles

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed in court on 24 March 2010 Mr Chiles (“the father”) appealed against orders made by Federal Magistrate Brewster on 22 December 2009 in parenting proceedings pursuant to Part VII of the Family Law Act1975 (Cth) (“the Act”) between the father and Ms Chiles (“the mother”).
The orders of the learned Federal Magistrate related to the three children of the parties who are now aged seven years, five years and almost one year.
In essence, the orders of the Federal Magistrate provided that the children primarily reside with the mother, and that the two eldest children spend each alternate weekend with the father.
Until August 2010, the time to be spent by the father with the youngest child was for shorter periods of time coinciding with weekends when the two eldest children were to spend time with the father. From 2011, the time to be spent by the father with all three children was essentially on an alternate weekend basis.
During 2010 the two eldest children were to spend half the school holiday periods with their father. From 2011, all three children were to spend half the school holiday periods with their father.
In lieu of those orders, the father sought a series of orders, the effect of which would be that the two eldest children spend almost equal time with each parent and half of all school holiday periods.
The orders sought by the father provided that, from May 2010, when he will be one year old, the parties youngest child spend each alternate weekend and every Wednesday with his father and elder siblings, such time gradually increasing until the child attained two and a half years of age, at which time he would spend the same time with his father as his elder siblings had been spending during the preceding eighteen months.
Implicit in the orders sought by the father is that the mother would need to reside within reasonable proximity of the southern New South Wales town of X. The orders of the learned Federal Magistrate were predicated on the mother residing in far western Sydney region of New South Wales.
The mother resisted the father’s appeal and sought to maintain the orders of the learned Federal Magistrate.
The father also applied to adduce further evidence pursuant to section 93A of the Act. The mother resisted that application.

Background

Under the heading “Background”, the learned Federal Magistrate referred to the age of the parties, the mother being forty years, the father thirty three years, and to their cohabitation from 2001 to December 2008.
There were three children of the marriage, C born in December 2002, M born in September 2004 and B born in May 2009. The children are accordingly aged seven years, five years and almost one year.
The mother has a child of a prior relationship, J who is nine years of age.
The parties were at all material times police officers in the NSW Police Service. They had both been posted to the X area in 2002, living in the nearby town of T from some time after 2002 until they separated in December 2008. Upon the sale of the T property the mother moved into rented accommodation in X, and the father to a property near T.
The proceedings in the Federal Magistrate’s Court commenced with the filing of an application on 24 February 2009.
On 20 April 2009 Federal Magistrate Brewster made interim orders providing that the children live with the mother and spend time with the father from Fridays to Tuesdays each alternate week. At that time, the third child of the marriage had not been born.
On 15 June 2009 Federal Magistrate Brewster ordered that B, who had been born the previous month, spend time with his father from 5pm to 6pm each Monday and Wednesday.

The Federal Magistrate’s Reasons for Judgment

Having recounted the matters of background to which this Court has referred, the learned Federal Magistrate identified “the parties’ applications”. In essence, the mother sought to relocate the children’s primary place of residence to the far western Sydney region, she having secured a posting to a Police Station in that area.
The mother proposed that the father spend time with the two eldest children each alternate weekend and half school holidays. Although the mother proposed that the youngest child spent shorter periods of time with the father until he turned one, his Honour recorded that the mother made no proposals with respect to time the child would spend with his father after turning one.
His Honour recorded the father’s proposal as being that the two eldest children spend six days a fortnight and half of the school holiday with him, and a regime of gradually increasing the time the youngest child would spend with him, culminating in an arrangement when the youngest child turned two and half years of age that was identical to that already in place with respect to the two eldest children.
The learned Federal Magistrate then referred to “the law”. It is to be noted that his Honour decided the proceedings prior to the publication of the High Court’s Reasons for Judgment in MRR v GR [2010] HCA 4 (3 March 2010). The father was informed of the High Court’s judgment prior to the hearing of his appeal.
The “reasons why the mother believes that relocation will be in the best interests of the children” were traversed by the learned Federal Magistrate. His Honour made clear however that he did not treat those reasons as a “discrete issue”.
His Honour referred to the mother’s assertion that she would have family support in the far western Sydney region, and detailed such family support. His Honour also recorded that the father of the mother’s child of a prior relationship, J, lived in the western Sydney region.
The learned Federal Magistrate also referred to the mother’s work environment. Having detailed aspects of the mother’s claims in that regard, his Honour concluded that whether or not the mother’s belief that she was “ostracised” by other Police at the Police Station, where both parties were based was objectively well founded was not something about which he needed to make a finding. The learned Federal Magistrate recorded however that he was satisfied that the mother “believes them to be true”.
His Honour considered the fact that both parties had apprehended violence proceedings instituted against the other was not of relevance in the circumstances of the case.
Referring to section 60CC of the Act, the learned Federal Magistrate recorded that the orders he proposed making would enable the children to have a meaningful relationship with their father albeit it would not be “an optimal relationship”. For reasons which he briefly detailed, the learned Federal Magistrate did not believe that issues of violence needed to play any part in his decision.
Referring to the wishes of the children, for reasons which he detailed, the learned Federal Magistrate did not place any reliance on the children’s views.
By reference to the family consultant’s report, the learned Federal Magistrate concluded that the children have a good relationship with both their parents, and with other relevant adults.
The willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent were not matters which the learned Federal Magistrate found warranted criticism of either parent.
The likely effects of any changes in the children’s circumstances were regarded as an “important matter” to which the learned Federal Magistrate later returned in his Reasons for Judgment. The practical difficulty and expense of a child spending time with and communicating with a parent was considered by the learned Federal Magistrate in the light of the fact that the area where the mother proposed to live with the children was about four hours driving distance from southern New South Wales.
His Honour concluded that there would be difficulty and expense in the father spending time with the children which would effect their right to maintain personal relations and direct contact with him although “whether that is a substantial effect I am unable to determine”. The issue remained one which the learned Federal Magistrate said that he would take into account.
The capacity of the parents to provide for the children was not a matter which assumed significance in the determination of the proceedings before the Federal Magistrate. Nor was the maturity, sex, lifestyle and background of the children or either of their parents or of any other characteristics of the children.
Neither the children nor the parents are Indigenous.
The attitude to the children and to the responsibilities of parenthood demonstrated by each of their parents was not a matter which the learned Federal Magistrate considered to reflect adversely on either parent.
Having concluded that section 60CC(3)(j), (k) and (l) of the Act were not relevant, the learned Federal Magistrate recorded that he would address other facts and circumstances which did assume significance.
Turning to section 61DA of the Act, the learned Federal Magistrate recorded that the presumption of equal shared parental responsibility was not sought to be rebutted by either party. Section 65DAA of the Act was thus enlivened. His Honour recorded that, as the father was not seeking that the children spend equal time with each parent, it was necessary to consider whether an order that the father had substantial and significant time with the children would be in their best interests.
As his Honour recorded, the father’s application was that he spend substantial and significant time with the children. His Honour then observed that he was “required to consider whether that is in the children’s best interests and whether it is reasonably practicable”. The alternatives emerging from the parties’ proposals were then discussed.
His Honour observed that the orders sought by the father constituted substantial and significant time albeit acceding to his application would “preclude the mother from relocating from the [X] area” whilst the orders sought by the mother, or orders similar thereto would permit the mother to relocate.
The “obvious and cogent” advantages of the mother and the children remaining in the X area were identified by the learned Federal Magistrate. These included the fact that the children had lived in the X area for all of their lives, it is where the two eldest attend school, and where their friends live. Of “much more significance” in his Honour’s view was that remaining in X would enable the children to have a “very close relationship with their father”, that being “very much in their best interests”.
The learned Federal Magistrate considered of “particular significance” the position of the youngest child of the parties, and articulated a concern about “making orders which would involve significant gaps in the time he spends with the father”. His Honour then referred to evidence of the family consultant who he described as having “downplayed” that concern. His Honour rejected the opinion of the family consultant that “contact to [B] [with his father] is less important at this stage” for reasons which the family consultant advanced. His Honour concluded that “it is a matter of commonsense to me that a child of [B’s] age needs to see the father as a familiar figure in his life in order to develop a meaningful relationship with him. This will be more difficult if he only sees him occasionally. I am not as sanguine as is Ms [C] [the family consultant] as to the impact of the relocation insofar as [B] is concerned”.
The factors favouring orders which would permit relocation were then discussed. The first of those was that relocation would enable the mother to have family support. His Honour accepted the assessment of the family consultant that compelling the mother to remain in X would result in her being “stressed and unsupported”, her unhappiness “inevitably” impacting upon the children.
The mother’s treating psychologist, Mr S, however expressed the view, to which his Honour referred, that the mother’s ability to parent the children “would not be diminished if she stayed in [X]. She is a responsible and resilient person”, although if obliged to remain in X against her will the mother would “face many difficulties”.
The learned Federal Magistrate regarded the mother’s career as another matter of significance, concluding that it was “quite impractical for the parties to work together at the [X] Police Station”. The dilemma arising from the reasonable expectations of both parents to continue their careers in the NSW Police Force was expressed by his Honour as placing him “in the invidious position of either allowing her to move or, in effect, ending her career with the Police Service”. Support for that conclusion was gained from the report of Mr S, whose opinion was that if obliged to remain in X the mother was “likely to suffer a major loss in terms of career”.
Reference was then made to an assessment of the mother by a consultant psychologist, Ms M. That assessment had been provided in relation to a workers compensation claim. Ms M reported that “the mother has met the criteria for diagnosis of adjustment disorder, of mixed anxiety and depressed mood”.
His Honour recorded that the family consultant and Mr S agreed that the mother had an adjustment disorder. The learned Federal Magistrate also recorded the opinion of Ms M that “if Ms [Chiles] is required to remain in [X], it is likely to “hinder her recovery since she may continue to feel unsafe and concerned about her employment options. Furthermore, she has a limited support network in [X]”.
The learned Federal Magistrate thus concluded:
52.If it were only a question of the mother wishing to have family support I would not have made orders which would permit a relocation, or at least orders which would permit a relocation in the short term. However, given that refusing to make such orders might well portend the end of her career in the Police Service, I propose to do so. I believe that the mother’s happiness and contentment are important to the welfare of the children. I accept that her psychological state is likely to deteriorate if she is unable to pursue her career. Furthermore there may be financial implications of her being forced to leave the Police Service. I do not know what other employment she might obtain in [X].
The necessity for the mother to return to work at the end of January 2010 created a “complication” with respect to the youngest child B. His Honour observed in that context:
55.…There can be no question of [B’s] having overnight contact from the time the mother relocates. He will be only eight months of age. There is no satisfactory alternative given the logistics involved. Ideally [B] should, at this stage of his life, see his father frequently during the day but for short periods. But the distances involved preclude this. I refer to delay overnight contact until a child is two years of age but I must play with the hand I have been dealt and I propose to fast track overnight contact in [B’s] case. The result of this is that for a time the other children’s contact will reduce to one night for a period. I do not propose to start [B’s] time overnight with two nights and the logistics involved preclude treating him differently to the other children. There is no satisfactory outcome in this case but this is usually the position in relocation cases.

The Grounds of Appeal

The father’s Amended Notice of Appeal articulated ten separate grounds.

Ground 1

Ground 1 asserted that the learned Federal Magistrate had made a factual error in relation to where the father lived.
Sensibly, the father conceded that, any misapprehension on the part of the learned Federal Magistrate as to exactly where the father was living could not have vitiated the exercise of his discretion (see De Winter v De Winter (1979) FLC ¶90-605).
Although not abandoning the ground, the father accepted that, in the circumstances, it could not succeed.

Grounds 2, 4 & 7

Grounds 2, 4 and 7 were, sensibly in the Court’s view, abandoned.

Ground 10

Ground 10 was conceded by the father to be a ground which could not succeed in isolation, but in any event, would be redundant if any of the earlier challenges raised by him was successful.

Grounds 3, 5 and 8

The remaining grounds of the father’s Amended Notice of Appeal fall within two broad categories. Grounds 3, 5 and 8 of the father’s Amended Notice of Appeal are directed to three different provisions of section 60CC of the Act. As the written and oral submissions of the father in support of them confirm, the subject matter of each of those complaints is identical or significantly overlapping.
As was acknowledged by the father during the course of the hearing of his appeal, success on any one of those three grounds would probably render both of the other grounds successful, whilst failure on any one would probably preclude success on each of the others.
Albeit the Court will have regard to the particular terms of the challenges articulated in Grounds 3, 5 and 8, considering them in the context of the identical or overlapping evidence relating to them cannot disadvantage the father.

Grounds 6 and 9

The second broad category comprises Grounds 6 and 9. Although referring to two different time periods, these grounds have a common theme, that being the practicality of the mother being able to continue to reside in the X area without rendering her ongoing employment by the NSW Police Service untenable or problematic.

Grounds 3, 5 and 8

These Grounds of Appeal provided:
3.In the Reasons for Judgment, Federal Magistrate BREWSTER made an error in placing no or an insignificant amount of weight on the mother’s attitude to the children and to the responsibilities of parenthood demonstrated by her.
…
5.In the Reasons for Judgment, Federal Magistrate BREWSTER made an error in placing no or an insignificant amount of weight in considering the extent to which the mother has fulfilled, or failed to fulfil, her responsibility as a parent.
…
8.In the Reasons for Judgment, Federal Magistrate BREWSTER erred in placing no or insignificant weight to the evidence of the mother’s unwillingness to encourage a close and continuing relationship between the children and the father.
The common theme of these three challenges is the father’s contention that the learned Federal Magistrate failed to consider what he submitted was a significant body of evidence which was capable of establishing that, contrary to the findings made by his Honour, the mother’s demonstrated attitude to the children and to the responsibilities of parenthood warranted criticism. That evidence was submitted to also render erroneous his Honour’s finding that the mother should not be criticised for having failed to fulfil her responsibility as a parent. The father further submitted that, contrary to his Honour’s finding, the evidence also demonstrated that the mother should have been criticised for her absence of willingness and/or ability to facilitate and encourage a close and continuing relationship between the children and the father.
These challenges arise from the learned Federal Magistrate’s conclusions with respect to each of these topics.
His Honour recorded that he did not criticise either of the parties with respect to the attitude to the children and to the responsibilities of parenthood demonstrated by each of them.
The father’s submission was that, as his Honour did not refer to this topic elsewhere in his Reasons for Judgment, or refer anywhere in his Reasons for Judgment to the evidence before him in relation to the topic, it could not be successfully asserted that he had regard to the evidence before him in relation to this topic.
His Honour had also said in his judgment that he did not criticise either parent in relation to whether or not either of the parties had fulfilled or failed to fulfil his or her responsibilities as a parent and did not criticise either parent in relation to any other matter “affecting their responsibilities as a parent”.
It was again submitted that, as his Honour did not elsewhere in his Reasons for Judgment further consider this topic, or anywhere in his Reasons for Judgment consider the evidence before him in relation to it, his Honour could not be seen to have taken evidence before him into account in reaching his conclusion.
The third of this group of challenges relates to his Honour’s conclusion that he did not criticise either parent as “lacking” in willingness or ability to facilitate or encourage a close and continuing relationship between the children and the other parent.
As with the first two challenges, it was submitted that the learned Federal Magistrate’s failure to refer to this topic elsewhere, or otherwise engage with the evidence before him in relation to it, demonstrated that his Honour could not have taken that evidence into consideration.

Ground 3

Counsel for the mother conceded that the learned Federal Magistrate’s Reasons for Judgment in relation to the three topics to which these challenges relate were “significantly brief”, but submitted that it had nevertheless been open to his Honour to conclude as he did with respect to them. Counsel for the mother did not suggest that any other paragraphs of the learned Federal Magistrate’s Reasons for Judgment revealed further engagement with the subject matter of these three complaints.
Counsel for the mother referred the Court to final addresses at trial. During the course of submissions to the learned Federal Magistrate, counsel then appearing for the father submitted:
…it’s difficult to see how trust can be reposed in her [the mother] to maintain and promote the relationship [between the father and the children].
His Honour replied:
Except that, of course, we’re in the middle of litigation. Litigation never really brings out the best in parents.
Whilst one could not sensibly disagree with his Honour’s observation, it is difficult to elevate that observation to the status of a finding or conclusion in formal Reasons for Judgment delivered after the completion of the trial. Even if regard was had to that observation, it does not materially alter the position, as, read in context, it is by no means clear that his Honour’s observation related to these particular issues, and even if it did, what his Honour actually said does not go beyond what he formally recorded in his Reasons for Judgment.
It is necessary to look at what the father submitted was the “extensive evidence” upon which he relied at trial, and upon which he based his submissions that the learned Federal Magistrate had erroneously failed to consider material evidence. The logic underpinning the father’s submission is not in doubt. In essence, the father submitted in support of each of these challenges that, having made no mention of the evidence before him, his Honour could not have given that evidence any weight. The father submitted that the failure to do so vitiated his Honour’s conclusion with respect to each of the three factors to which these challenges relate.
In his Summary of Argument, beyond submitting that there had been “extensive evidence” in affidavit material and “clear evidence” emerging in cross-examination of the mother which, if accepted, would have precluded the Federal Magistrate from making any of the findings referred to in these challenges, no clue was provided by the father as to what particular evidence he was relying upon, or where it was to be found.
The Court does not criticise the father for failing to particularise these matters, although, as the transcript of the hearing of the appeal would confirm, the failure to particularise the material did place counsel for the mother in a potentially invidious position.
The father confirmed that he relied in support of Ground 3 upon paragraphs 6, 90, 91, 92, 112, 117, 140, 141, 147, 148 of his affidavit sworn 18 August 2009. Rather than attempt to paraphrase those allegations, it is preferable that they be set out in full:
6.[Ms Chiles] and I are both serving members in the New South Wales Police Force.
…
90.On 19 March 2009, I had been trying to get in contact with the children for 3 days, by calling [Ms Chiles’] mobile, but was unable to do so. Finally, that morning I managed to speak briefly to [M]. [C] had gone to school. During the conversation, [M] said words to the effect of, “I hurt my arm and the doctor had to take pictures of it”. When I finished speaking to [M] I attempted to talk to [Ms Chiles] about it but she hung up. I contacted my solicitor and instructed her to write to [Ms Chiles’] solicitor seeking information on what happened to M.
91.Later in the evening I received a text message from [Ms Chiles] saying words to the effect of “[M] has a possible fracture to his left arm due to the fluid in his elbow he will need another x ray next week. His arm is in a sling and needs rest and care etc this happened at a friends [sic] house on the trampoline. He will be staying home with me. I will drop [C] off to you at [S] at 5” [sic] I contacted my solicitor and instructed her to amend the letter drafted to [Ms Chiles’] solicitor confirming I am capable of caring for [M] with this injury.
92.When I arrived at [S] to collect the boys that afternoon [Ms Chiles] said to me words to the effect of “Got the letter from the solicitors. I’ve got a doctors certificate. Bad luck.” [M] did not spend time with me that weekend.
…
112.About 1.15pm on … May 2009 the children that play in [C’s] team (that I am the coach of) started to arrive for our game. As one child, [N] arrived he said, “[C] isn’t coming today because his mum had a baby.” I said, “No mate, his mum isn’t having the baby for another month yet.” [N] said, “No she had the baby and its name is [B].” I said, “I don’t think so mate.” I continued getting the children ready for the game and the boys then played. [C] was not present.
…
117.Later that day I caused my solicitor to urgently write to [Ms Chiles’] solicitor seeking particulars as to [B] and offering to care for the children, including [J], while [Ms Chiles] was in hospital.
…
140.On 25 June 2009 I received a text message from [Ms Chiles] stating, “[Mr Chiles] I am informing you out of courtisy [sic] that [B] was at the hospital after you left last night he has the beginnings of a chest infection. I will drop [C] off to training and ask you bring him to [Ys] so that you can see [B] after training has finished. [Ms Chiles].” I spoke to [Ms Y] by phone during the day and arrangements were made in relation to [C’s] football training, my football training and attending the hospital. I also instructed my solicitors to send a facsimile to [Ms Chiles’] solicitor’s in relation to care of the children. … My solicitors did not receive a response to that facsimile nor did [Ms Chiles] indicate she was happy for me to look after the children while she was staying with [B] in hospital.
141.After [C’s] football training I attended my training for a short time. [C] was with me. After training, I took [C] to the hospital. [Ms Y] was at the hospital. [C] said to [Ms Chiles], “I want to stay with dad.” [Ms Chiles] said, “No, you are going to [Ms Y’s] with your brothers.” [C] said, “Why can’t I stay with dad?” [Ms Chiles] said, “Cause I said no.” I said, “I can take all of them if you want”. [Ms Chiles] said, “No.” [C] started crying and said, “I want to go with dad.”
…
147.On 13 July 2009 I attended [Ms Y’s] at 5:00pm. I took [C] and [M] with me as they were in my care for the holidays. [Ms Chiles] handed me [B] and I immediately smelt that [B] had a dirty nappy. I said to [Ms Chiles], “Can I have a nappy please? [B] needs changing.” [Ms Chiles] said “No, I’ll do it later.” I said, “I can do it.” [Ms Chiles] said, “Nappies are in the car.” I said, “Can you get one please?” [Ms Chiles] said, “I can do it later.” I said, “[B] shouldn’t need to sit in that for an hour.” [Ms Y] went outside at this stage and returned a short time later. [Ms Y] said, “The nappy bag’s not in the car.” [Ms Y] left and returned at 5:30pm. [Ms Chiles] walked through the lounge room to the kitchen holding a nappy, I said, “Can I have the nappy please.” [Ms Y] walked in and said, “Didn’t she give it to you. She had it.” [Ms Y] walked out to the kitchen and returned a short time later and said, “Well you deal with it. Sorry but she wants to change him.” [Ms Chiles] followed [Ms Y] and returned about thirty seconds later and gave me the nappy. I changed [B] and had no other problems.
148.On 15 July 2009 I attended [Ms Y’s] at 4:55pm. [Ms Chiles] arrived a short time later and again [sic] smelt like he had a dirty nappy. I said, “Can I have a nappy please.” [Ms Chiles] said, “No, I’ll change him later.” I said, “We did this last time. Can you just give [sic] a nappy please?” [Ms Chiles] said, “No, I will change him after I feed him.” I said, “What in an hour? Why should he have to sit in that. He will be uncomfortable.” [Ms Chiles] said, No, he will be hungry.” [Ms Chiles] walked out. [J], [C] and [M] all held [B]. I was moving some of [B’s] blankets and a fresh nappy fell out. I started to change [B] using this nappy. [Ms Chiles] walked in and said, “Next time listen to me.” [Ms Chiles] fed [B] from 5:30pm to 5:55pm. I asked to burp [B] before I left which I did. Since this visit I have taken my own nappies and wipes to avoid any further incidents. I have not seen [B] since this date.
In support of these challenges, the father relied upon the transcript of the mother’s cross-examination on 25 August 2009 which revealed:
In March 2009 did [M] get a broken arm?--No.
This year - did something happen to his arm?---Yes.
What happened to his arm?---He - I think it was a called - it was a possible fracture.
So something nasty happened to his arm and it looked like it could have been fractured?---Yes.
And you had it tested?---Yes.
And it turned out not to be fractured?---That's right.
And what - where in the week did this occur that he hurt his arm?---On which day? I would have to look at my notes, my affidavit.
He was due to see his father on the weekend and you declined to send him to his father because of the arm, is that right?---Yes.
And did you say that it was - to Mr [Chiles] that it's bad luck you had a doctor’s certificate?---No, I didn't.
Did you look after him while he had a sore arm?---Yes, I did.
Is there any reason why Mr [Chiles] couldn't have looked after him while he had a sore arm?---The doctor said he should be at home.
Being with Mr [Chiles] is not being at home?---No.
And is it the case that you simply saw that as an excuse for you to refuse him spending time with Mr [Chiles]?---No, I didn't.
The father also relied upon the following portion of the transcript:
And where did [C] and [M] stay while [B] was in hospital on those two occasions?---With [Ms Y] and my mother.
And Mr [Chiles] had volunteered to have the boys stay with him, hadn't he?---Yes, he did.
But you chose to have them stay with [Ms Y] and your mum?---Yes, I did.
And was there a particular reason why you chose for him to stay with [Ms Y] and your mum rather than spend that time with their dad?---Yes, there was.
And what was that particular reason?---Because - a couple of reasons: I could ensure that [Ms Y] would bring the kids into the hospital to visit me, of which she did.
Yes?---They came in a couple of times a day. I had the opportunity also to be able to contact the kids before school and after school and at night time. I wanted to keep the - the boys together because previously I had asked the boys if they wanted to go and [J] said, "No". And by [J] saying, "No" then the other boys told me, no, they wanted to stay with [J]. And also I could ensure that if - at that time I was under a lot of stress and I didn't want to put myself in a situation to have to fight with [Mr Chiles] in the hospital, and for any added stress on myself when I was caring for [B]. And I could ensure that I knew that the boys were being well looked after by [Ms Y]. And that they were all together, so that was one less stress that I had to worry about.
When you say "well looked after by [Ms Y]" - - - ?---Mm
- - - you're not suggesting, are you, that would be anything less than well looked after if they were with [Mr Chiles], either?---No.
He'd look after them perfectly well, wouldn't he?---Yes.
Had you asked him whether or not he could bring the boys in to see you if they were to stay with you?---No.
Had you asked him if they were to stay with him whether you'd be able to speak to them on the telephone?---No.
Had you asked him whether or not he could have [J] stay as well?---No.
How old was [J] when he started living with you and Mr [Chiles]?---Just over a year.
And you agree, don't you, that Mr [Chiles] looked after him well during the time that the two of you were together?---Yes.
And that they had a close relationship while the two of you were together?--- No.
They're certainly not in a position where they had close now, are they?---No.
And one of the effects of the orders that you seek would be that Mr [Chiles] wouldn't spend any time with [J] because of the way that [J's] contact with his father in relation to Mr [Chiles] contact with the other boys?---No.
You sorted that out so that when the boys, [M] and [C], and Mr [Chiles] that would happen at a time when [J's] with his dad?---Yes.
So there's no prospect that [J] would go with the boys to Mr [Chiles]?---No.
Now, when [Ms Y] was looking after [C] and [M], do you know if she had to work?---Yes.
And did she use her babysitter to look after the boys at some stages?---Once.
And you thought that that was, again, preferable to them spending any time with their father during that period?---Yes.
The father further relied upon the following cross-examination of the mother:
MR GILL: [B] went back into hospital, the … Hospital that was for a chest infection; is that right?---Bronchiolitis.
And you texted Mr [Chiles] telling him that [B] had the beginnings of a chest infection and that you'd drop [C] off at training?---Yes.
That was the training that Mr [Chiles] was going to be attending?---Yes.
And as far as you know [C] went to his football training?---I'm not too sure if he did.
But in any event he later came to the hospital and saw you, didn't he?---Yes.
He came to the hospital with his dad?---Yes.
And [Ms Y] was at the hospital with you?---Yes.
And your plan was that the boys would stay at [Ms Y's] that night?---Yes.
[C] asked you, didn't he, "Why can't I stay with dad?"?---Yes.
You said, "Because I said no.", is that right?---I can't remember the exact words.
Something like that?---Yes.
And [C] started crying and saying, "I want to go with dad"?---Yes.
But he wasn't able to go with dad?---No.
Why was it that you were so unkeen with him going with his father?---Because I wanted him with his brothers where [J] and [C] were – [M], sorry, [M] and [J] were.
Mr [Chiles] offered to take all of the children, didn't he?---Yes.
But, "No" was the answer to that?---That's right.
The father also relied upon the following passages of cross-examination of the mother:
Do you recall Mr [Chiles] saying to you that [B] smelled in the way that you thought about the child when it needs its nappy changed?---Yes.
Did Mr [Chiles] offer to change his nappy?---Yes.
It was submitted that the allegations made by the father were “substantially unchallenged” by the mother, and that cross-examination of the mother was corroborative of the father’s allegations. The learned Federal Magistrate was asserted to have been unable to find as he did in relation to the complaints raised by these grounds in the light of the affidavit and oral evidence upon which the father relied.
Having had the opportunity to consider the affidavit and transcript references provided by the father on the hearing of his appeal, counsel for the mother did not refer the Court to any other affidavit or transcript references.
Superficially, the complaint agitated by the father has some attraction, having regard to the nature and extent of the allegations made by him, a number of which do not appear to have been disputed by the mother.
Counsel for the mother however submitted that, to properly evaluate these complaints, it was necessary to consider the competing applications before the learned Federal Magistrate.
It was submitted that, in the light of the orders sought by each party, it was not incumbent upon the learned Federal Magistrate to make detailed findings of fact in relation to these topics. The basis of that submission was that, notwithstanding the father’s complaints about the mother’s attitude, demonstrated responsibility to parenthood, or willingness or capacity to facilitate an ongoing close relationship between himself and the children, the father’s own application was that the children spend somewhat more time with the mother than with him.
Although not specifically so expressed, the submission of counsel for the mother proceeded on the premise that, notwithstanding the father’s extensive criticisms of the mother, he still considered that the best interests of the children would be served by their spending more than equal time with her.
The orders sought by the father were identified by the learned Federal Magistrate in the following terms:
9.The father proposes that [C] and [M] spend six days a fortnight and half of the school holidays with him. I need not set out the details of his proposal. In relation to [B], he proposes a gradual increase in the times he spends with [B] culminating in an arrangement when he attains the age of two and a half years which will be identical to that in relation to the older two children.

There is no suggestion that his Honour erroneously recorded the substance of the father’s proposal. The father’s application was consistent with his Honour’s summary of it. Given the terms of the orders the father sought, notwithstanding the complaints which he made about the attitude the mother had demonstrated to the children, and to the responsibilities of parenthood, it was submitted by counsel for the mother that nothing would have changed had his Honour accepted the father’s allegations.
The case before the learned Federal Magistrate was whether the eldest two children, and ultimately the youngest child spending six days a fortnight and half of the school holidays with him, which could only occur if the mother remained living in the X region, was in the children’s best interests.
Had the father’s case before the learned Federal Magistrate been that the children should primarily reside with him, the learned Federal Magistrate may well have been obliged to have given more detailed consideration than he did to the father’s criticisms of the mother’s demonstrated attitude to the children, and to the responsibilities of parenthood, and other issues raised by these grounds.
In the circumstances, even if his Honour had made the findings for which the father contends, as Counsel for the mother has submitted to this Court, nothing would have changed. His Honour would have had to proceed to consider the reasonable practicability of making orders in the terms sought by the father. This he did.
As his Honour’s Reasons for Judgment clearly reveal, orders in the terms sought by the father were not made as a consequence of the learned Federal Magistrate’s conclusions with respect to the reasonable practicability of making orders in those terms, rather than as a consequence of any impermissibly favourable or benign conclusions reached by him with respect to the mother’s attitude.
The challenge specifically articulated in Ground 3 accordingly fails.

Ground 5

The father confirmed that the affidavit and transcript references relied upon in support of Ground 3 were also relied upon in support of Ground 5.
Largely for the reasons advanced with respect to Ground 3, this challenge also fails.

Ground 8

In support of Ground 8, the father relied, in addition to the affidavit evidence identified by him in support of Ground 3, upon a number of additional paragraphs of his affidavit, they being paragraphs 75, 80, 81, 127, 138, 139, 141, 143, 145, 150-156, 173, 174-178 and 180 of his affidavit sworn 18 August 2009.
Those paragraphs provided:
75.On the weekend of 7 and 8 of February 2009 I spent time with the children. [C] made numerous comments about his mother which I recorded at the time such as “Mum says you don't like us anymore” and “Mum told us you don't want to come home because you like going out with your friends.” I explained to the boys with words to the effect of, “Mummy and Daddy don't want to fight in front of you anymore and that's why Daddy is not at home.”
…
80.On 10 February 2009 I attended the boy's school to pick them up as is normal. I saw [C] who said to me “Mummy and grandma are already here.” I spoke to him about swimming and he said he would see me there. I sent a text message to [Ms Chiles] to confirm the boys would be at swimming. I received a reply to say they wouldn't. I asked why but did not receive a reply. I drove to the pool but the children were not there.
81.After the pool I drove to touch football but [Ms Chiles] did not take the children there either. I attempted to ring and then sent a message asking the boys to ring me did not receive a reply to either.
…
127.I attended … Hospital with my parents, [C] and [M] on 30 May 2009 at about 4pm. I had not received any message from [Ms Chiles] as to what time was appropriate for me to visit as indicated in her solicitors [sic] letter of 29 May 2009. Upon arrival I was met by [Ms J] in the hallway who is a friend of [Ms Chiles]. She stated, “The boys can come in but no-one else.” After a short conversation I took [C] and [M] into the room [Ms Chiles] was in. [Ms Chiles] said, “Get out, the boys can stay but you get out.” I said, “That's fine — can [B] come out to the nursery so Mum and Dad can meet him?” [Ms Chiles] said, “No, I told you they would not get to see him.” I walked out of the room. [C] and [M] walked out about 30 seconds later. I was upset that Mum and Dad could not meet [B]. They have not been able to do so to this date. Mum, Dad, [C], [M] and I left the hospital. I was extremely angry and upset that I could not see my son.
…
138.At 9.59am on 24 June 2009 I received a text message from [Ms Chiles] stating, “I will not be able to be at [Ms Y's] until 630 tonight” I sent a reply stating, “Cant [sic] do 630, 530 at the latest or 500 as per orders.” A number of text messages went back and forth with [Ms Chiles] adamant she could not be earlier than 6.30pm.
139.I arrived at [Ms Y's] at 5pm to see [B] as per the orders. I was met by [Ms Y] who said, “[Ms Chiles] will be here. I told her to be. Work is work I hate vindictive women. Oh did I say that out loud.” About 5.05pm [Ms Chiles] arrived with [B] but without the other three boys. [Ms Chiles] said, “[B] will need a feed. By the way, Thursday is not on the orders either so if you want to play that game you don't get to see [B] tomorrow. I was at the doctor's by the way.” I said, “Why didn't you tell me.” On 26 June 2009, [Ms Y] told me words to the effect of “[Ms Chiles] was at the movies not the doctors. [Ms Chiles] left [J], [C] and [M] at the movies by themselves while she came with [B] to my place. I left to go the movies to be with them.”
…
141.After [C's] football training I attended my training for a short time. [C] was with me. After training, I took [C] to the hospital. [Ms Y] was at the hospital. [C] said to [Ms Chiles], “I want to stay with dad.” [Ms Chiles] said, “No, you are going to [Ms Y's] with your brothers.” [C] said, “Why can't I stay with dad?” [Ms Chiles] said, “Cause I said no.” I said, “I can take all of them if you want.” [Ms Chiles] said, “No.” [C] started crying and said, “I want to go with dad.”
…
143.I understand [B] was released from hospital on 27 or 28 June 2009. [C] and [M] were in my care that weekend. On Monday 29 June 2009 I received a text message from [Ms Chiles] saying words to the effect of “[B] was readmitted to hospital today. [C] and [M] will be looked after by [Ms Y] until my mother comes down.” I told [C] and [M] about these arrangements at which point they both said words to the effect of “I want to stay with you.”
…
145.On 4 July 2009 I attended the boys soccer. The day was very cold. [Ms Chiles] was present with [B] in the pram. [Ms Chiles] said words to the effect of, “It's too cold for [B] to go to footy so the boys won't be there this afternoon.” I offered to take the boys to football then drop them home but [Ms Chiles] said “no.” Later in the day I went to football to coach [C's] team. [Ms Chiles] was there with [J], [C], and [M]. [B] was not there.
…
150. On Saturday 13 June 2009 I took [C] and [M] to football. Both were not playing as [Ms Chiles] had told me they were sick and a doctor had told her not to let them play. I respected this but as I coach [C's] team we still attended. As [Ms Chiles] was not going to be there, I took [Ms K] to watch as well.
151.While [Ms K] and I were watching [M's] team, [Ms Chiles] appeared. She kissed [C] and [M] and then looked at me said, “I can't believe she's here. Why is she here?” [Ms Chiles] then looked at [Ms K] and said, “Why are you here?” [Ms Chiles] then began to verbally abuse both [Ms K] and I in front of [C] and [M] and dozens of other people present watching the children's football.
152.[Ms Chiles] made comments like, “I will make sure the boys never like you” and “You will have nothing to do with my baby.” [Ms Chiles] then threatened [Ms K] by saying, “If I wasn't a police officer, I would punch your face in.” At this point another unknown female said, “How about you take this somewhere else. This is kids football.”
153.[Ms Chiles] grabbed [C] and [M] by the hands and said, “Come on boys you can come and see [B].” I said, “Seeing as you are in [X] for the weekend, can I spend some time with [B] please?” [Ms Chiles] replied “No”.
154.I coached [C's] team and while on the field saw [Ms Chiles] watching. She was holding [B] and showing him to some of the other mother's in the crowd. I could not see [C]. I later found out that [Ms K] had been so upset she went and sat in the car and did not watch the football because of [Ms Chiles'] behaviour.
155.I went and put [C] and [M] in the car with [Ms K] and then saw [Ms Chiles]. Again [Ms Y] was with her. I said to her, away from other parents so as not to make a scene, words to the effect of “The way you acted before was atrocious [Ms Chiles]. You can't do that. The kids were there and everything.” [Ms Chiles] said words to the effect of, “I don't care. If I see her again will do the same thing”.
156.I went to the car and drove home. [C] commented to me, “Mummy wasn't nice” and “Mummy doesn't like [Ms K].” I do not want my children to have to witness behaviour like that.
…
173.I am concerned that [Ms Chiles] will not encourage a continuing relationship between me and my sons. I was in a relationship with [Ms Chiles] during the parenting proceedings with [J’s father] concerning [J] and witnessed [Ms Chiles] attitude regarding [J's] relationship with [his father]. Those Court proceedings went on for about five years. There have been approximately 7 sets of Court orders between [Ms Chiles] and [J’s father].
174.As best I can recall, initially [Ms Chiles] and [J’s father] (when we were living in Sydney) signed consent orders so that [J] spent time with [his father] on [the father's] days off work. This was approximately 3 days out of every 8. [Ms Chiles] then made an Application to the Family Court to reduce this time to every second weekend and was unsuccessful.
175.In about early 2002 and after those orders were made and an Appeal dismissed, [Ms Chiles] said to me words to the effect of “If we move away the Court will have to give me more time.” Around this time, an opportunity arose for me to transfer to [D, a southern NSW town]. When I discussed this with [Ms Chiles] she said to me words to the effect of “Why don't we go down there? [J’s father] will hardly be able to see [J] then.” As I did not particularly like living and working in Sydney and spent some of my childhood in [D], I agreed.
176.[Ms Chiles] and I then put in transfer application and [Ms Chiles] and [J’s father] ended up in Court again. I do not recall who initiated these proceedings. [J’s father] opposed us moving to [D]. As a compromise, he agreed to us moving with [J] to the [X] area. [Ms Chiles] agreed. We moved to [T] in about November 2002.
177.[J’s father] maintained his time with [J] on his days off, about 3 out of 8 days. [Ms Chiles] then made arrangements for [J] to start school at an early age in [T]. [J] started school in [T] in 2005. [Ms Chiles] said to me around that time words to the effect of “If [J] goes to school, [his father] can only do every second weekend.” In 2007 [J] started attending [S] Primary school and had to repeat year 1 due to being behind the other students and not making the age requirement.
178.I am concerned that [Ms Chiles] will attempt to discourage my relationship with the children as she has between [J] and his father. On a number of occasions throughout our marriage, I witnessed [Ms Chiles] said to [J] words to the effect of “It makes me sad when you cuddle your dad.” [Ms Chiles] also said words to the effect of “it makes me sad” if [J] wanted to do something with [his father] rather than with her. I do not recall specific examples of this but I recall many occasions attending changeover for [J] to go to [his father]. [J] was clearly looking forward to spending time with his father. [Ms Chiles] would say things like “It makes me sad when you go to Dad's.” I observed [J's] whole demeanour change as a result. I observed him not to want to show [his father] affection in [Ms Chiles] presence.
…
180.On many occasions, further to those outlined otherwise in this Affidavit, I have had difficulty exercising telephone communication with the children. Most recently, I recall the following incidents:
a.[Ms Chiles] has allowed me time with the children I attempted to phone the children on [Ms Chiles’] mobile on 28 July 2009. I was successful at 8.15am when [J] answered the phone. [Ms Chiles] stated in the background words to the effect of “ring back in 15 fifteen minutes — they are eating breakfast.” I hung up and attempted again at 8.30am and 8.45am and 8.50am. [Ms Chiles] phone was turned off. I left a message for [Ms Chiles] to return my call but this did not occur. I tried again at 6.15pm that night but the phone rang out. I left a further message. I tried again at 7.30pm but [Ms Chiles'] phone was turned off.
b.On 29 July 2009 I again called the children on [Ms Chiles’] phone. [J] answered the phone and I spoke to him briefly before he handed the phone to [C]. I spoke to [C] briefly before he said, “Mum said I gotta hang up. Her phone is dying.” I could then hear the phone being passed around before I heard [Ms Chiles] say, “How dare you answer my phone [J]. That's my fuckin' phone not yours.” The phone call was disconnected. A short time later I received a message telling me I could contact the boys. I called [Ms Chiles’] mobile and spoke to [C] and [M].
In addition, the father relied upon paragraphs 12, 13 and 16 of an affidavit sworn by him on 26 November 2009. Although there is no clear indication from the transcript that those paragraphs were read before the learned Federal Magistrate on the third day of the hearing of the proceedings in December 2009, the affidavit having clearly been filed before that date, the Court is not comfortable in disregarding those paragraphs for the purpose of the present appeal.
Those paragraphs provided:
12.On the 2nd of November 2009 [Ms Y] showed me a response from Federal Magistrate BREWSTER’s Associate. In short, this letter states there is no onus on [Ms Y] to have the contact at her house and to inform [Ms Chiles] and I so we can work another arrangement out. Later that night I sent an email to [Ms Chiles].
13.On the 3rd of November 2009 I received two replies to the email. One of them is dated 2 November 2009 and the other 3 November 2009.
…
16.[Ms Chiles] grabbed [B] and tried to pull him from my arms. I said, “[Ms Chiles], don’t please. You will hurt him.” [Ms Chiles] continued to pull at [B] and [B] started to cry. I repeated for [Ms Chiles] to stop but I could see that she was not going to, so I let go of [B] to stop [Ms Chiles] from hurting him. [Ms Chiles] walked out of the restaurant and said, “You will never take [B] away from me.” I said, “What is your problem with me taking him?” [Ms Chiles] replied, “Your slut of a girlfriend is having nothing to do with my son. You will never take him away from me.”
The learned Federal Magistrate may not have had regard to the factual allegations upon which the father relies in support of this complaint in the light of the competing proposals of the parties to the proceedings which he was required to determine.
As is not in doubt, the father sought that the children spend substantial and significant time with their mother, broadly quantified as the learned Federal Magistrate recorded, as eight days in each fourteen day period. The father’s proposal to that effect was advanced, as the paragraphs of his affidavit evidence sworn prior to the commencement of the trial to which he has referred this Court confirm, against the background of his considerable discontent with respect to the mother’s willingness and ability to facilitate and encourage a close and continuing relationship between the children and himself.
In the circumstances of this case, the learned Federal Magistrate’s conclusions with respect to the matter to which this complaint relates were not material to the exercise of his discretion.
As his Honour’s Reason for Judgment make clear, the exercise of his discretion was ultimately influenced by his Honour’s conclusions with respect to the reasonable practicability of the children spending the substantial and significant time with the father which he sought. The father’s proposal was not rejected in reliance upon findings of fact which were erroneously favourable to the mother with respect to this issue. Nor was it rejected against the background of erroneously failing to make findings adverse to the mother.
Having referred to the provisions of s 65DAA, and recording, correctly, that the section was brought “into play”, his Honour directed his mind to the matters which were relevant by virtue of s 65DAA of the Act. The dilemma which then confronted his Honour was well summarised when he said:
41.I am thus faced with the following alternatives. On the one hand I could make orders as sought by the father or orders not dissimilar to those he seeks, which would have him spending substantial and significant time with the children. Perforce, that would preclude the mother from relocating from the [X] area. Alternatively, I could make orders, either in the terms sought by the mother or in some other terms, which would permit her to relocate.
His Honour clearly accepted that, in terms of the best interests of the children’s welfare, it would be “very much in their best interests” for the mother to remain in the X area. The paragraphs of his judgment which followed, save in one respect to which the Court will shortly direct its attention, are not controversial in this appeal. The learned Federal Magistrate there considered the reasonable practicability or, as it is sometimes described (see Collu & Rinaldo [2010] FamCAFC 53) the “feasibility” of making orders which had the effect of requiring the mother to continue to reside in the X area. His Honour clearly considered that so doing was not, for the reasons which he there summarised, and had earlier discussed in more detail, reasonably practicable.
It is convenient at this point to consider the father’s further evidence application.
On 9 February 2010 the father swore an affidavit of some 47 paragraphs, with numerous annexures, and sought to leave to adduce such further evidence in the appeal pursuant to section 93A of the Act.
As is not in doubt from the terms of the affidavit, the father made allegations with respect to events commencing 16 December 2009 and concluding with events on 3 February 2010.
The father concluded the affidavit by asserting:
47.I feel that [Ms Chiles] is purposely trying to alienate the children from [Ms K] and I and limit the time they spend with us. I feel that given the short period of time she has been living in the [far western Sydney region] she has shown that her attitude and behaviour in relation to the children’s and my relationship has not changed and will continue.
The thrust of the further evidence sought to be relied upon by the father is consistent with that of the extensive evidence to which he referred the Court in support of Grounds 3, 5 and 8 of his Amended Notice of Appeal. As noted earlier, there was evidence of similar matters before the learned Federal Magistrate, notwithstanding which the father sought that the children reside with their mother for eight days in each fourteen days.
For reasons which the Court has articulated earlier, the Court cannot accept that any asserted failure of the learned Federal Magistrate to take into account, or adequately take into account those matters lead to appealable error. There is no logical reason to conclude that similar further evidence would render erroneous the learned Federal Magistrate’s decision [see CDJ v VAJ (1998) 197 CLR 172].

As noted earlier, if the learned Federal Magistrate erroneously exercised his discretion, that must, in the circumstances of this case, be referrable to conclusions reached by him in the context of his consideration of the reasonable practicability of making orders for substantial and significant time of the kind sought by the father. The passages of his Honour’s Reasons for Judgment quoted above leave no room for doubt in that regard.
The Court will accordingly dismiss the father’s further evidence application. If the father’s appeal otherwise finds favour by reference to the grounds remaining to be considered, the further evidence adduced by the father would clearly be relevant to the re-exercise of the learned Federal Magistrate’s discretion, whether that be by this Court or another Federal Magistrate.

Grounds 6 and 9

Grounds 6 and 9 relate to what is in substance a challenge by the father to the learned Federal Magistrate’s conclusion that the regime of substantial and significant time advanced by him would not be “reasonably practicable”. The crux of these grounds is either, as in the case of Ground 6, that the learned Federal Magistrate’s conclusion at paragraph 48 of his Reasons for Judgment was erroneous, or that, as in the case of Ground 9, the father was impermissibly denied the opportunity to agitate that issue.
As the father clearly recognised in his written and oral submissions, although relating to the same issue, the two challenges differ in that the former proceeds in reliance upon what was, whilst the latter proceeds in reliance upon what might have been.
It is desirable, if not essential, to consider the grounds separately, commencing with Ground 6.
Ground 6 provided:
6.In the Reasons for Judgment, Federal Magistrate BREWSTER made an error in failing to give any or significant consideration to the alternative employment options available to the mother that would not require relocation.
The submissions in support of the ground were succinctly articulated in the father’s written outline of argument. Paraphrasing those submissions is unhelpful. The submissions asserted:
12.At paragraph 48 in the Reasons for Judgement, BREWSTER FM states, “...The choice for the mother is to either move or give up her career. I am placed in the invidious position of either allowing her to move or, in effect, ending her career with the Police Service.”
13.It is my submission this is an incorrect assumption made by BREWSTER FM and certainly not supported by any evidence. The mother does not have to return to [X] Police Station to remain in employment with the Police Force. The NSW Police College is located in [X] and is an option open to the mother.
14.There is evidence contained in cross examination of the mother on the 25 August 2009, and cross examination of Sergeant [R] of the New South Wales Police on the 15 December 2009 relevant to this matter.
In the course of oral submissions, the father identified a number of passages in the transcript as providing the evidentiary foundation for this challenge.
The mother was cross-examined on 25 August 2009, the first day of the trial. In support of this challenge, the father referred to the following evidence of the mother during the course of that cross-examination:
…
Is the police college part of the police station?---No.
Are they different places?---Yes, they are.
Are they run by the same people, like does the police station run the college?---No.
Do the college people work at the police station?---No.
FEDERAL MAGISTRATE: It's like a university for police officers all over the State. They all go to [X] - the south side of town, as I recall and it's got no connection whatsoever with the [X] Police Station as far as I'm aware.
MR GILL: So it's not part of the local area command?---No.
When you were working at [X] Police Station you weren't part of the [X] local area command, were you?---No.
The father also relied upon the following evidence of the mother in cross-examination on the first day of the trial:
When you first moved to [X] where did you work?---At the police academy, police college.
I think you explained before that that's different from the police station?---Yes.
What did you do at the college?---I basically taught the new recruits.
So you were - - -?---Subjects.
You were an instructor there?---Yes.
What were you teaching them?---At that time it was subject PPP115 which is Police, Crime and Society the topic was.
What inquiries were made with the academy as to whether there will be work there in the future that you could apply for?---I haven't made any.
To be clear one of your problems with [X] is you don't think you can work at [X] police station any more?---In the [X] area.
You've got a problem with [X] Police Station because you say that people talk about you there?---Yes.
You made it clear before that the academy is not connected with the police station?---It's not run by [G] Police but it is connected.
There's not an overlap of staff between the two organisations?---Yes.
Mr [Chiles] doesn't work there, does he?---At the [Office]?
At the academy?---Sometimes.
How often is that?---When he does courses or when he's training.
When he's showing how to shoot?---When he's instructing, like for weeks at a time or his [LSG] work, he works out of there as well.
You've made no inquiries there whatever about the possibility of working there?---No.
The father referred the Court to a submission made by counsel then appearing for him during submissions on the second day of the trial during which counsel said:
MR GILL: … The second is that she won't be working at the [X] Police Station. What seems to be connected to that is, well, she won't be in [X] – [X] being a place where she has friendships, [X] also being a place where, it seems, that there's an alternative employment opportunity for her other than the police station.
FEDERAL MAGISTRATE: Where? The Police College?
MR GILL: The Police College.
FEDERAL MAGISTRATE: There's really zero evidence of that, I would have thought, but if I were to speculate, I would have thought that that's a bit remote, because the Police College is like ADFA, as I understand it. It's not the hands-on policing, and you don't - they don't take the kids there to be taught about stranger danger and all the stuff that she does in [X].
These are, I would have thought - I have no evidence one way or the other - I would have thought very senior police officers and academics teaching. I wouldn’t have thought there was much room there for your foot soldiers. I could be wrong, but you're asking me to assume otherwise.
MR GILL: No, I'm not asking your Honour to assume, and why I say that is that there's evidence that she's previously worked as an instructor there. From her own mouth there's the evidence that she's previously worked as an instructor there, and - - -
FEDERAL MAGISTRATE: You're talking about - yes, but this is - if that's -yes, but you're now saying she can work full-time - or I should assume, or draw the inference that she can work full-time at the police college. You don't derive that from the fact that she's got a bit of work there from time to time as an instructor, presumably in the area that she knows about, or has a specialty, ….
MR GILL: Yes. The evidence is that she worked at the police academy and transferred later to the [X] Police Station. As to the extent of what work she intends to undertake in the future, it's not clear that she wants to undertake full-time work in the future. She's made no inquiries whatsoever in respect to the police college. So if [X] is to be viewed in a one-dimensional way, to say, “If you remain in [X] you've got to work at the police station,” that's simply not the case and no inquiries have been made by her about working at the college, which would seem to be the closest alternative.
The father relied upon evidence given by Sergeant C on the final day of the trial, 15 December 2009. Sergeant C was called as a witness in the mother’s case and was cross-examined by telephone.
In examination in chief, Sergeant C said in response to a question from senior counsel for the wife, that he was the “State Co-ordinator of the […] Police Programme” in which capacity he had been dealing with the mother’s proposed placement at S Police Station.
In cross examination, in a passage upon which the father relied, Sergeant C was asked by the father “Okay I don’t think you actually answered that question there Sergeant, if this court ordered her to stay in [X], would your position change?”. Sergeant C replied:
…Look, if the court makes a determination with whatever information they have at the time, we abide by whatever the court decision is. But at the moment, that is our plan for her to be moved to that location, based on a number of those considerations.
Although the father did not refer the Court to it, the previous question, and rather lengthy response to it are relevant to this complaint. The father had asked Sergeant C:
…Just another hypothetical, if the Court was to make?” Just another hypothetical, if the court was to make a ruling that Senior Constable [Chiles] was to stay in the [X] area, would your stance on that be likely to change?
Sergeant C replied:
---No, because look, we’ve got like I said to you, that would be one position in the area, but we’ve got a number a number of other issues in regards to why we wouldn’t like Senior Constable [Chiles] to stay in that either [X] LAC and/or the [X] police college (emphasis added). She’s raised a number of issues in regards to a written complaint that s gone to our professional standards command, and that’s still being investigated and the issues raised in that would be putting her back in a situation where she would be either open to harassment or some further vilification of her. Therefore, that with that background of what s happened at the LAC and what potentially could happen in the immediate area of [X], with running into a number of staff from the [X] LAC, there are a number of issues that we had to consider why we were seeking a move with her agreeance to another location away from the [G] LAC (emphasis added). And that’s basically you’d be looking at family support for her with the four children under the age of 10. She’s nominated she can move because of those reasons that have been raised in that complaint. So we’ve had to balance that and try to offer her another position where she feels safe and feels comfortable to go to work.
By reference to the evidence of the wife, and Sergeant C in the passages which have been quoted earlier in these reasons, and to the evidence of Mr S, the mother’s treating psychologist that the mother’s parenting ability “would not be diminished if she stayed in [X]. She is a responsible and resilient person”, the learned Federal Magistrate was asserted to have been precluded from finding that the children spending the substantial and significant time proposed by the father, and accepted as being in the children’s best interests, was not reasonably practicable. It was submitted by the father that making orders which had the effect of requiring the mother to continue to reside in the X region would not either possibly “portend” the end of her career with the NSW Police Service, or adversely impact upon her parenting capacity.
In response to the father’s submissions, counsel for the mother submitted that the evidence before the learned Federal Magistrate did not establish on balance that the mother could secure employment in the X area apart from the X Local Area Command (LAC), either at the Police Academy or elsewhere. In the alternative, Counsel for the mother submitted that, even if such a finding had been reasonably open to his Honour, that did not mean that the finding actually made by him had not also been reasonably open to him. It was submitted by Counsel for the mother that the evidence upon which the father himself relied supported the finding made by the learned Federal Magistrate with respect to the mother’s employment by the NSW Police Service. Whether or not it supported other findings was submitted to be irrelevant.
It was further submitted on behalf of the mother that the learned Federal Magistrate’s conclusions with respect to the mother’s “career prospects” in the NSW Police Service if she were obliged to remain in the X area related not only to the evidence given by her and by Sergeant C, but also to the expert psychological evidence which his Honour accepted.
As a reading of his Honour’s Reasons for Judgment makes clear, the question of the impact upon the mother’s parenting capacity of being obliged to continue to reside in the X area was not straightforward. The learned Federal Magistrate had evidence from three persons who were well qualified to give opinion evidence on that topic.
Whilst the mother’s treating psychologist, Mr S, expressed the opinion upon which the father relied, as the learned Federal Magistrate also recorded, his opinion in that regard was not unqualified. Mr S accepted that the mother would “face many difficulties” if she were obliged to remain in the X area.
The evidence of Ms M, the consultant psychologist who had assessed the mother in the context of a workers compensation claim, was that she “met the criteria for a diagnosis of adjustment disorder of mixed anxiety and depressed mood” with which diagnosis both the family consultant (Ms C) and the mother’s treating psychologist (Mr S) at least in part agreed.
His Honour referred to the evidence of Ms M that it was “likely” that the mother’s psychological wellbeing would “deteriorate” if she returned to her position at X Police Station. Ms M further recorded that if the mother was “required to remain in [X], it is likely to hinder her recovery since she may continue to feel unsafe and concerned about her employment options”.
This issue is not without complexity. As the learned Federal Magistrate’s Reasons for Judgment make clear, the question of the mother’s psychological wellbeing, and thus her parenting capacity, and issues concerning her “career” were significantly enmeshed. However, as no ground of appeal agitated by the father relates to the learned Federal Magistrate’s conclusions with respect to the mother’s psychological health, the focus of this challenge remains upon the father’s assertion that the learned Federal Magistrate erred “in failing to give any or significant consideration to the alternative employment options available to the mother that would not require relocation”.
The evidence to which the father referred the Court does not establish, on balance, that there was any particular employment within the NSW Police Service available to the mother which would effectively quarantine her from the father’s work environment if she were to continue to reside in the X area. At its highest, there was the possibility of such employment. Not insignificantly, the learned Federal Magistrate concluded that refusing to permit the mother to relocate the children’s primary residence “might well portend the end of her career in the Police Service”.
The Court does not understand his Honour to have found that, on balance, requiring the mother to remain in the X area would portend the end of her career in the Public Service. His Honour’s finding can in this Court’s view be comfortably accommodated within the evidence upon which the father has relied.
At its highest, the evidence before the learned Federal Magistrate suggested that a position for the mother other than within the X LAC, may have been a possibility. The evidence of Sergeant C in the passage which the Court has earlier set out reinforces that conclusion. His Honour was entitled to rely, as he clearly did, upon his unchallenged findings with respect to the psychological aspects of making orders which would have forced the mother to continue to reside in the X area when considering the reasonable practicability of so doing. Indeed, to have considered Sergeant C’s evidence without doing so would have been unrealistic. The two issues required for consideration in the context of a “reasonable practicality”.
This challenge accordingly fails.

Ground 9

Ground 9 of the father’s Amended Notice of Appeal provided:
9.Federal Magistrate BREWSTER erred in failing to allow the father to fully explore the issue of the mother’s employment issues before handing down his decision in the matter.
As the father’s written submissions make clear, this challenge relates to the learned Federal Magistrate’s conclusions with respect to the implications for the wife’s career in the NSW Police Service of making orders which required her to continue to reside in the X region.
The father complained that he was not allowed to fully explore this issue. The father referred to a subpoena which his submissions asserted he caused to be issued “before the hearing on 15 December 2009”.
With respect to him, as the sealed copy of the subpoena reveals, it was in fact issued on 15 December 2009, and required production of the documents referred to in it on 30 December 2009.
In oral submissions, the father referred to the matter having been relisted before the learned Federal Magistrate on 7 December 2009, and to his having known that the matter was going to be relisted by 29 November 2009. The father swore an affidavit on 26 November 2009, presumably with the knowledge, or in the expectation that the matter would again come before the Court. Why the father did not cause his subpoena to be issued prior to 15 December 2009 has not been explained.
The father complained, correctly, that the learned Federal Magistrate failed to allow time for the subpoena to be served, even after the father tried to explain that he contended that it may produce information which showed the mother did not have to relocate. The learned Federal Magistrate undoubtedly did refuse to further prolong the proceedings beyond 15 December 2009 in order that the father might pursue the subpoena which he caused to be issued earlier that day.
Although the father sought leave to adduce further evidence in the appeal pursuant to section 93A, and can thus be presumed to be aware of the Court’s powers to receive further evidence, no attempt has been made to adduce in evidence the documents, if any, produced by the NSW Commissioner of Police in response to the subpoena the father issued on 15 December 2009, assuming that the subpoena was ever served.
As the father fairly conceded, this challenge proceeds on the basis of what the subpoena may have revealed. Reference to the contents of the subpoena make clear that it referred substantially, if not entirely, to matters which the father was able to, and in some instances did cross examine Sergeant C in relation to, subsequent to the learned Federal Magistrate refusing the father an adjournment to inspect any documents which may have been produced in response to the subpoena which he caused to be issued on 15 December 2009.
There are a number of reasons why the Court does not accept that this challenge should succeed. As was submitted by counsel for the mother, and as the cross-examination to which the father has himself referred this Court in the context of Ground 6 confirms, where the mother could be based in the course of her employment by the NSW Police Service was a “live issue” as early as 26 August 2009, the second day of the trial before the learned Federal Magistrate.
There was, on the father’s own submissions, ample opportunity to issue a subpoena prior to the matter coming before the learned Federal Magistrate on 15 December 2009, or to have sought to pursue the subpoena for the purpose of seeking to adduce further evidence in the appeal pursuant to section 93A of the Act.
Perhaps more significantly, the terms of the subpoena, and the reality that the person repeatedly referred to in it, Sergeant C, gave evidence and was cross-examined by the father precludes him from successfully asserting that anything produced in response to the subpoena would or should have materially altered the facts as found by the learned Federal Magistrate.

To the extent that this ground involves a denial of natural justice complaint, it fails. To the extent that it involves any conclusion that the subpoenaed documentation would have rendered erroneous any material finding of fact by the learned Federal Magistrate, the Court cannot accept on the material before it that such was the case. It is of particular significance that Sergeant C, to whom the subpoena was really addressed, gave evidence and was able to be and was cross-examined by the father. The father’s own submissions asserted Sergeant C’s evidence precluded his Honour finding that it was not reasonably practicable for the mother to remain in the X area.
The Court thus cannot accept that the learned Federal Magistrate would or should “have arrived at a different conclusion in relation to the mother’s employment” if the learned Federal Magistrate had allowed the adjournment sought by the father.
The father complained that the learned Federal Magistrate had denied him natural justice by refusing to allow him to “cross-examine the mother on the issue of employment in [X]” on 15 December 2009. The Court cannot accept that complaint has been established.
The father referred the Court to his further cross-examination of the mother on 15 December 2009. The father asked the mother whether she had made any enquiries in relation to employment at the Police College [transcript page 15]. As was the case when the mother was asked that question in August, she replied in the negative.
The father suggested to the mother that “it’s Police policy to facilitate short loan arrangements with officers”, a proposition with which the mother would not agree. The father then asked “You don’t agree that Police will facilitate on loan arrangements?”, to which the mother replied: “By application”.
The father then asked:
MR [CHILES]: And if the Court was to order you to stay here do you think they might consider that in an application?
His Honour intervened and said:
HIS HONOUR: Look, this is really stuff that goes to doesn’t go to the reopened aspect of the case. This is really opening up the whole area of where she might be employed and my memory is questions were asked about this at the hearing. We’re dealing with just the changes in circumstances since the hearing, namely, that an assumption that she could remain away from the police service until the end of next year she says has changed.
Whereupon the father said:
MR [CHILES]: I hear your Honour on that and possibly the rest of my questions might be towards Sergeant [C].
His Honour replied:
HIS HONOUR: So whether she can get a job in the police college is something that was, as I recall, explored in the final hearing and I’m not going to allow that to be reopened. Yes, carry on.
MR [CHILES]: In light of your comments, sir, I think the rest of my questions might be for Sergeant [C].
HIS HONOUR: I think you re probably right.
Curtailing cross-examination of the mother could not in the circumstances of this case found any criticism of the learned Federal Magistrate. As the father’s own submissions in support of Ground 6 confirm, the answer he obtained from Sergeant C when he subsequently cross-examined him, that “if this Court makes a determination with whatever information they have at the time, we’ll abide by whatever the court decision is” was as good a concession as he could have obtained. Nothing which the mother could possibly have stated or conceded could have further improved the husband’s position.
This challenge accordingly fails.

Conclusion

No ground of appeal having been made out, and the application to adduce further evidence being unsuccessful, both will be dismissed.

Costs

Counsel for the mother fairly submitted that, as her client was in receipt of a grant of Legal Aid, she was obliged to seek an order for costs, but very fairly otherwise made no submissions in support of such application.

In the absence of any submissions providing a basis for the Court being of the opinion required by section 117 of the Act, there will be no order for costs.

I certify that the preceding one hundred and fifty seven (157) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Coleman

Associate:

Date: 23 April 2010