COOMBE & STONE - [2010] FamCAFC 132

FAMILY COURT OF AUSTRALIA

COOMBE & STONE

[2010] FamCAFC 132

FAMILY LAW - APPEAL – CHILDREN – Appeal from decision of Family Law Magistrate – Interim parenting orders – Application to change the child’s school – Where the mother had previously been ordered to return to “the Perth metropolitan area” – Where the mother returned to an eastern suburb of Perth rather than the southern suburb intended by the Court – Change of circumstances – The mother could only obtain a practical placement in the eastern suburb – The mother could not complete her tertiary qualification if she was required to give up the practical placement – The father’s time with the child would not be affected by the mother’s proposal – The mother should not be expected to cease her studies – Magistrate failed to consider the change of circumstances adequately – Magistrate placed too much weight on the inconvenience to the father if there was a change of school – Appeal allowed – Re-determination of Magistrate’s decision – Change of school allowed

FAMILY LAW - PRACTICE AND PROCEDURE – ORDERS – Variation – Magistrate’s new order further limited the area within which the mother could live – Slip rule not available as the order made was the order intended – The mother would have been unable to appeal the original order as an appeal must be directed against orders and not the intention behind the orders – Magistrate’s power to vary the original order questioned

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

AMS v AIF (1999) 199 CLR 160

APPELLANT:

Ms Coombe

RESPONDENT:

Mr Stone

FILE NUMBER:

PTW

6238

2008

APPEAL NUMBER:

2010

DATE DELIVERED:

14 July 2010

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

29 June 2010

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

14 April 2010

LOWER COURT MNC:

Unreported, Magistrates Court of Western Australia, Kaeser AM, 18 March 2010

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Grasso

SOLICITOR FOR THE APPELLANT:

Milsteed Grasso

COUNSEL FOR THE RESPONDENT:

Ms Farmer

SOLICITOR FOR THE RESPONDENT:

Kim Wilson & Co

Orders

The appeal be allowed.
Orders 2 and 4 made by Acting Magistrate Kaeser on 14 April 2010 be set aside.
The appellant and the respondent do all things necessary for the child, [the child], born … December 2004, to be enrolled at and attend [the eastern suburb school].
There be no order for costs in relation to the appeal.
The Court grants to the appellant a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT PERTH

Appeal Number: WA 6 of 2010
File Number: PTW 6238 of 2008

Ms Coombe

Appellant

And

Mr Stone

Respondent

REASONS FOR JUDGMENT

The mother has appealed against orders made by Acting Magistrate Kaeser on 14 April 2010 concerning her 5-year-old daughter, the child.
The orders required [the child] to attend a school in a southern suburb, near the former home of the parties in W. The mother wants the child to attend a school in an eastern suburb at which she is undertaking her training as a teacher.
The orders also required the mother to move the child’s place of residence to within 20 kilometres of the southern suburb Post Office. At the time she appealed, the mother hoped to continue to live in the eastern suburb where she had rented a house. However, her application for a stay of the orders was unsuccessful and she then moved to a home in another southern suburb, which she says is within the radius prescribed. Having made the move, the mother does not now propose to return to live in the eastern suburb but still wants the child to attend school there.
The southern suburb is located toward the southern extremity of the Perth metropolitan area. W is further south again. The eastern suburb is in the eastern suburbs. The mother’s evidence was that the eastern suburb is around 70 kilometres from the southern suburb and around 20 kilometres from Perth. The father said the distances would depend upon the route but provided no other evidence on this issue.
The father opposes the appeal. He does not accept that the mother’s new home in [nother southern suburb is within the radius prescribed by the orders.

Background

The father is 35 years of age and lives in a southern suburb. He works full time as a professional, based in the Perth CBD. The mother is the same age as the father and is in her final year of studies to qualify as a school teacher.
The mother and father commenced cohabitation in January 2004, were married in August 2004 and separated in October 2006. The child is their only child. She was born in December 2004.
The child has lived with the mother since the separation. The father’s time with the child has been mainly confined to alternate weekends. It is common ground that until Christmas 2009 the child had never spent more than four days in succession with the father (and that visits of this duration had only ever happened once or twice).
The mother and father acquired a home in W during the marriage. The mother remained there after separation and subsequently acquired the father’s interest. She is now in a relationship with Mr G, who used to live next door. His estranged wife continues to reside next door.
Mr G previously had employment at a mining town, which is north of Kalgoorlie. The mother was contemplating joining him there. She and the child stayed in the mining town four times in 2009. The second last visit was in October 2009, when the mother had a scholarship to undertake practical experience at the mining town school, during which time the child was enrolled at the school kindergarten. The mother claims she was advised she would be eligible for the same scholarship if she returned to the mining town in 2010.
During 2009 the mother began to prepare the father for the possibility that she would take the child away from Perth to undertake her compulsory practical training. There is dispute as to the extent to which she provided the father with details and in particular how long she planned to be away. What is not in dispute is that the father led the mother to believe that he would not necessarily oppose her arrangements, provided a “robust plan” was in place, especially the timing of the child’s return to Perth.
In October 2009 the father wrote to the mother saying he desired more involvement in the child’s life. He said he wanted the child to live with him if the mother proposed to move to “a remote location”. He said “a detailed logistics plan can be provided on request detailing how [the child] will be taken to and from school and who shall care for her during her time with myself”. He advised that if the relocation did not occur he wanted to have the child each alternate week from Thursday afternoon to Monday morning, as well as half of all school holidays.
On 11 December 2009 the father filed an Application in a Case seeking:
·    an injunction restraining the mother from changing the child’s place of residence from the former matrimonial home in W;
·    an injunction restraining both parents from changing the child’s principal place of residence “outside the [southern suburb] area”;
·    an order for shared parental responsibility;
·    an order allowing him to spend time with the child each alternate week from after school on Thursday to the start of school on Monday (and some time during the Christmas period), with a sharing of any necessary transport arrangements.
On 24 December 2009 Acting Magistrate Vanderfeen made orders for the filing of affidavits for an interim hearing which she set for 9 February 2010. Her Honour recognised that this date was after the start of the school year. She made no order preventing the mother from moving to the mining town in the interim and formally noted the Court record that “the child’s arrangement in existence at the hearing is without prejudice to the relocation application”.
The mother responded to the father’s application, seeking an order for shared parental responsibility and for the child to live with her. She proposed orders which would apply if she was permitted to relocate and alternative orders in the event she was required to live in “the metropolitan area”. In the latter event, she proposed the father spend time with the child from 5.00 pm Thursday until 5.00 pm Sunday each alternate week, as well as during school holidays.
The matter came before Acting Magistrate Kaeser on 9 February 2010. After hearing argument, his Honour reserved his decision. He gave liberty to the parties to relist on an urgent basis in relation to the father’s time with the child pending delivery of his judgment. That liberty was exercised on 2 March 2010 when the father filed an Application in a Case. In her affidavit in response the mother advised that she had temporarily moved to the mining town to take up her practicum placement pending delivery of the reserved decision. She also advised that the child had commenced at the mining town school.
On 8 March 2010 the Acting Magistrate delivered his reasons. These foreshadowed that he intended to refuse the mother’s application and that he would hear from counsel about when the mother was “able to return to Perth”. Having heard from counsel, his Honour made his orders which included an order that the mother return the child “to the Perth Metropolitan Area” by not later than 29 March 2010. A further order was made restraining both parties from “changing [the child’s] principal place of residence to outside Western Australia, without the written consent of the other party or order of the Court”.
Immediately his Honour announced the form of his orders, counsel for the father urged him to be more specific in the framing of the order concerning the child’s return to Perth, pointing out that it would be possible, for example, for the mother to take up residence in Joondalup (in the far north of Perth) in the event the order was made in the form proposed. His Honour declined to amend his order, but he made a further order that “the parties have liberty to apply in relation to the child’s schooling on an urgent basis”.
The exchange between his Honour and counsel on this topic is of importance and is set out in its entirety below:
HIS HONOUR: I therefore pronounce the following orders in this matter: Firstly, in terms of the orders set out in paragraph 73 of the reasons delivered today, and I formally deliver those reasons, there will be a further order that the mother return the child, [the child], to the Perth metropolitan area by no later than Monday, 29 March 2010.
Is there any further issue arising, counsel?
FARMER, MS:   Nothing further, your Honour, from our perspective in terms of the orders that your Honour has made. Perhaps one point, your Honour. Although in your judgment it’s clear I think that your Honour’s intention is the child returns to attend school where she has always attended school. It’s not actually reflected in your Honour’s orders. Perhaps if it could just be made clear that that is your Honour’s intention in terms of requiring her to move to Perth.
I’m not for a minute suggesting that the mother would do it, but it would cause some difficulties if the mother, for instance, was to return to Joondalup.
GRASSO, MR: The big problem there at the moment, your Honour, is because the mother has to attend … University to complete the theory part of the school - we’re just not sure what the situation will be with the school as to how it’s going to be arranged practically.
HIS HONOUR:   Well, the evidence before me was that the mother, if she was to return to Perth, she would be returning to the property in [W].
GRASSO, MR: That was if she was staying there for three years, having completed the one year of the last year of the course, but she’s going to have to be attending university full-time just to do the theory. So, that’s going to present all sorts of problems with transport and arrangements in relation to the schooling because of this year.
Perhaps I will advise my learned friend I’ll speak to my client and write to her by tomorrow morning.
HIS HONOUR:   Ms Farmer, please sit down. I’ll make it clear to your client, Mr Grasso, that my intention behind these orders is that the child was to be returned to the school that she was otherwise enrolled to attend in Perth before your client took the unilateral move, as it appears in the evidence on advice to move to [the mining town]. As I said in the judgment, that was a premature move, and with respect, your client should not have made that move and we would not be facing these difficulties had she chosen not to do so.
So, it is my clear intention that this child, [the child], is to be returned to that school. If there is a requirement for an order to be made, I will consider that order. I think I have preserved liberty to apply. I haven’t. There will be a further order today that the parties have liberty to apply in relation to [the child’s] schooling on an urgent basis. Otherwise, in terms of the overall proceedings, I accept counsel’s submissions for the father in that once these orders are put into effect and [the child] returns to the Perth metropolitan area, the degree of urgency that was present earlier, in my view disappears.
On the same day as the orders were made, the mother contacted her supervisors at the University, explaining she had to give up her placement in the mining town. The mother says she was informed she was out of time to gain a metropolitan placement but enquiries would nevertheless be made on her behalf. Later that day the mother was contacted by the University and advised to telephone the school in the eastern suburb. She immediately made contact with the Principal and a practicum placement was offered. These arrangements were confirmed by an email from the University on the following day.
On 16 March 2010 the mother filed an Application in a Case seeking an order that she “be given leave to have the child … change school from [the southern suburb school] to [the eastern suburb school]”. The father opposed the application and proposed that the child live with him until such time as the mother had taken up residence in the southern suburb area. He also sought an injunction restraining both parties from changing the child’s principal place of residence “outside the [southern suburb]”.
On 31 March 2010 the mother’s application came before Acting Magistrate Kaeser, who ordered, pending determination of the application, that the child should be enrolled at and attend the southern suburb school. The proceedings were adjourned to 14 April 2010 for argument. Having heard argument on that day, the Magistrate dismissed the mother’s application and made another order for the parents to ensure the child’s attendance at the southern suburb school. A further order was made requiring the mother, within 28 days, to “change the child’s residence to within 20 kilometres of the [southern suburb] Post Office”. The father’s response, which included his proposal for the child to live with him, was dismissed, as was his application for costs.

The Acting Magistrate’s reasons

Acting Magistrate Kaeser gave his reasons ex tempore on 14 April 2010. He referred briefly to the background and in particular the mother’s application to relocate to the mining town. He noted that the March 2010 hearing had been conducted on the basis that although the mother was then in the mining town, she was quite prepared to return to the Perth metropolitan area. He noted that the mother had said that she had retained her property in W and had confirmed that she was able to move back into that property if permission to relocate to the mining town was refused. He recorded that on the evidence presented at the previous hearing it was intended that the child would return to the southern suburb area. He also noted that in his earlier judgment he had referred to the fact that the child had attended the southern suburb school since she was 18 months old. He went on to observe that in his earlier judgment he had said:
I am satisfied that being removed from such close family links and to such a distance, being [the mining town], would have an adverse effect on [the child]. It is not just the father’s presence that she would miss. There may also be an impact on her being away from her school and friends and extended family.
His Honour said it was clear from his judgment that his intention in ordering the mother to return the child to the Perth metropolitan area had been that she would return to the southern suburb area. He said he did not think “I needed to make my orders any clearer than that in the circumstances of the terms of my reasons”. He went on to record that it seemed the mother was now saying that she was not seeking any variation of the March 2010 order because the eastern suburb was within the Perth metropolitan area.
Having described this proposition as “somewhat cute”, his Honour continued:
My determination and my reasons made it very clear what was intended and I intend to make orders today that will alleviate any difficulties or any doubt about my intentions. It seems that the mother now relies upon fresh evidence, in effect, to support her application to change the school from [the southern suburb] to [the eastern suburb]. She says that her partner has ceased his employment in [the mining town] and that she has made inquiries for a placement for her studies and that is at [the eastern suburb]. I accept that the mother has made a number of inquiries about the potential placement in order to complete her studies.
I am not satisfied that the mother has made any efforts at all in seeing whether it is possible to return to the [southern suburb] area to live. It should have been clear to her, given my reasons, that that was what was required. In my reasons, I made some comments about the mother’s unilateral decisions. It would appear based on the evidence presented that the mother has made further unilateral decisions. She says that she now lives in [the eastern suburb] and has rented a property in [the eastern suburb]. She notes her address on her affidavit at [the eastern suburb], so effectively has moved the child to [the eastern suburb]. I do not accept counsel for the mother’s submissions that there is very little change in the arrangements that would be required in the orders that I pronounced on 8 March 2010. Those orders were pronounced, contemplating a move back to the [southern suburb] area where this child [the child] would enjoy the benefit of having her parents and extended members of family close by. It is a very different proposition to have the amount of travelling that is required to put into effect the orders of 8 March when one parent lives in [the southern suburb] and the other lives in [the eastern suburb].
The mother in her affidavit accepts and I will just turn to that paragraph. Paragraph 10:
I am not prepared to put my studies ahead of my role as the primary caregiver to [the child] under any circumstance. In the event the Court does not permit the change of school, then I will take [the child] to school and collect her each day, as well as maintain all of her extra curricular activities that are local to our home.
It may well be that on an interim basis, it is necessary for the mother to cease her studies in order to comply with the terms of the orders made on 8 March and the intention behind those orders. As I said, there seems to be no reason or no reasonable reason why the mother cannot move back to the [southern suburb] area. In all of the affidavit evidence that has been filed in relation to this application, there does not appear to be a single reference, apart from the comment about not wanting to live next door to the mother’s partner’s ex-wife. There does not seem to be any reference to looking at accommodation options in the [southern suburb] area to put into effect the orders that were made on 8 March.
In relation to the father’s position, I am of the view that his application should be treated in the same way that I intend to treat the mother’s application, that is, that I intend to put in place orders that will clarify the orders made on 8 March and put in place the type of arrangements that were contemplated on 8 March. There has not been, in my view, a sufficient change in circumstances to warrant an order that changes where [the child] lives for the majority of the time. My reasons and my orders of 8 March 2010 were clear in that respect also. [The child] is to spend time with the father from Thursday to Monday on alternate weekends and for school holidays and other periods. It is not appropriate to change those arrangements some six weeks later for [the child] to then reside primarily with the father…

His Honour then made the orders the subject of the present appeal.

Grounds of appeal

It became apparent on hearing the oral submissions that the primary challenge to his Honour’s orders was his failure to acknowledge there had been a significant change of circumstances since the making of the orders in March and that his Honour had failed to properly consider and weigh the competing considerations that presented at the time of the hearing in April 2010.
It was also asserted that the Magistrate:
had regard mainly to the role of the mother as carer and paid [sic] insufficient importance on the mother’s potential role as a working mother, and the positive effect on the mother and the family of having her complete her degree and obtaining employment while still being the primary caregiver for the child;
and that the Magistrate had:
placed undue reliance on the effect of the choice of school and place of residence would have on the father and the convenience to him, as opposed to the effect of the choice of residence and school on the mother (who has at all times been primary caregiver) and child.
It was also argued that his Honour had erred in effectively punishing the mother for making “unilateral decisions” when she had not acted unilaterally.

The primary challenge – failure to recognise changed circumstances

In my view, there is substance in the primary complaint advanced on behalf of the mother. Analysis of his Honour’s judgment indicates that it was principally directed towards identifying the intention behind the order made in March 2010 and how that intention (as opposed to the order actually made) was to be implemented. This is illustrated by those parts of his reasons repeated below:
My determination and my reasons made it very clear what was intended and I intend to make orders today that will alleviate any difficulties or any doubt about my intentions.
…
I am not satisfied that the mother has made any efforts at all in seeing whether it is possible to return to the [southern suburb] area to live. It should have been clear to her, given my reasons, that that was what was required.
…
I do not accept counsel for the mother’s submissions that there is very little change in the arrangements that would be required in the orders that I pronounced on 8 March 2010. Those orders were pronounced, contemplating a move back to the [southern suburb] area where this child [the child] would enjoy the benefit of having her parents and extended members of family close by. It is a very different proposition to have the amount of travelling that is required to put into effect the orders of 8 March when one parent lives in [the southern suburb] and the other lives in [the eastern suburb].
…
It may well be that on an interim basis, it is necessary for the mother to cease her studies in order to comply with the terms of the orders made on 8 March and the intention behind those orders. As I said, there seems to be no reason or no reasonable reason why the mother cannot move back to the [southern suburb] area. In all of the affidavit evidence that has been filed in relation to this application, there does not appear to be a single reference, apart from the comment about not wanting to live next door to the mother’s partner’s ex-wife. There does not seem to be any reference to looking at accommodation options in the [southern suburb] area to put into effect the orders that were made on 8 March.
It is true his Honour acknowledged that it “seems the mother now relies upon fresh evidence” to support the proposed change of school for the child. In my view, however, that evidence was not adequately identified by his Honour, even making allowance for the fact he was giving his reasons ex tempore.
The mother’s evidence, which was corroborated in material respects by the principal of the eastern suburb school and by the email from the University, was to the effect that:
·    final year student teachers are “absolutely not” permitted to organise their own practicum placements;
·    the University had approved the mother’s request for a new placement at such a late stage only because of the “exceptional circumstances”;
·    the mother had been placed at school a long way from the southern suburb, which she would be required to attend for nominated periods during June, July, August and October 2010;
·    the mother was expected to attend the eastern suburb school at other times besides those specifically nominated, in addition to completing her final year requirements and assessments;
·    while undertaking her placement at the school, the mother is expected to attend as if she was working on a full time basis, defined as being 30 minutes before school and at least 30 minutes after school each day, as well as attending staff meetings when required;
·    if the mother did not take up the placement she would be recorded as having failed the entire year, which would adversely affect her employment prospects (and there could also be HECS implications);
·    having been advised of her placement in the eastern suburb, the mother and her de facto husband had taken a lease on a home in the area (her de facto husband having resigned from his employment in the mining town following the dismissal of the mother’s application to relocate);
·    there was a place for the child at the eastern suburb school, which is a “sister school” of the southern suburb school that the child had been attending;
·    the principal was supportive of the child attending and was concerned about how the mother would manage her placement if she was travelling from the southern suburb every day whilst the child attended school in the southern suburb;
·    the father was in full-time employment and the mother was primarily responsible for taking the child to her various activities.
I consider that on the state of this evidence his Honour should have accepted it was appropriate for the mother to have taken the only placement she had been offered in the metropolitan area. He should also have accepted that the mother was in no position to delay or bargain in the hope of obtaining a placement closer to the father’s home and the southern suburb school. Having accepted these significant facts, his Honour should then have recognised there had been a sufficient change of circumstances to warrant fresh consideration of where the child and the mother should live and where the child should attend school. These issues should have been considered on their merits and not by reference to how the intention underpinning the earlier order could best be implemented.
There were some factors which potentially could have indicated that it would be in the child’s best interests to remain living in the southern suburb area and/or attending school there. These were:
·    the fact that the father and his relatives lived around the southern suburb;
·    the inconvenience to the father of travelling to the eastern suburb area;
·    the fact that the child had been at the southern suburb school since age 18 months and had friends there;
·    the fact the child had been attending swimming and dancing lessons in the southern suburb and could continue doing so if she lived there.
The first of these points seems to have been influential in his Honour’s reasoning because he noted that the orders made in March 2010 contemplated a move back to the southern suburb area where “this child [the child] would enjoy the benefit of having her parents and extended members of family close by”. Had this factor been analysed, however, it ought not to have made any difference to the outcome. The father’s time with the child was going to be precisely the same regardless of where she lived in Perth. The time the relatives would be able to spend with the child was dependent upon the time she spent with the father and would therefore also not be affected.
The second point, namely the inconvenience to the father, was also influential in the decision since his Honour referred to “the amount of travelling that is required to put into effect the orders of 8 March where one parent lives in [the southern suburb] and the other lives in [the eastern suburb]” as being a “very different proposition”.
It is true the father would have to undertake additional travel if the mother chose not to live near him. However, this principally involved the father collecting the child from the eastern suburb on two afternoons a fortnight and getting her to the eastern suburb on two mornings a fortnight, as well as getting her to any extracurricular activities in the eastern suburb during one weekend a fortnight.
This inconvenience to the father should have been seen as ameliorated by two factors:
· the concession made at the hearing that the mother was prepared to undertake some of the travelling (she would take the child to the father on either the Thursday or Friday afternoon) and was prepared to allow the father to drop the child at her home rather than at school if he wished;
· the assurance given by the mother that she would not enrol the child in extracurricular activities during the father’s weekends.
The potential benefits associated with the remaining factors favouring the child living in the southern suburb (namely that she would have continuity of school and extracurricular activities) should have been weighed against other important matters, including:
·    the inconvenience to the child of having to be at school very early and very late on every one of the days that the mother was required to be at school in the eastern suburb;
·    the significant inconvenience to the mother associated with taking the child to a school in the far south of Perth while herself working at a school in the east (which would occur on eight out of every ten occasions the child was taken to or collected from school);
·    the distinct possibility (which his Honour recognised) that the mother might have to forgo her placement, thereby losing any prospect of working as a teacher next year – without any guarantee that the same scenario might not again be played out then;
·    the child was at a very early stage of her schooling (having been in kindergarten in 2009) and had already spent time away from the school at the southern suburb;
·    the child had been described by the father as having “a lot of friends and is an extremely social child”, which would suggest she would fit in fairly easily in a new environment;
·    the child would be returning to the southern suburb every second weekend and during holidays and would thus have some opportunity to keep up significant friendships she might have with local children.
In my view, had all of the factors been weighed on their merits, and without regard to the earlier order, the balance would clearly have fallen in favour of the mother being permitted to remain living in the eastern suburb and taking the child to school with her. His Honour’s failure to weigh all of the factors as they presented at the time, and his emphasis on the implementation of his earlier intentions, led him into error.
In my view his Honour also erred in considering it was an acceptable outcome for the mother to give up her placement at the eastern suburb and hence lose the prospect of working as a teacher next year. The fact her counsel had said she was prepared to do so to ensure she was able to get the child to school each day should not have been used as justification for putting her in a position where she might have to do precisely that – especially in circumstances where it was perfectly viable for her to complete her placement without adverse impact on her role as primary caregiver. If anything, the mother’s statement that she was prepared to subjugate her professional ambitions to the needs of her child should have helped alleviate any fears that she was putting her own interests before those of the child in proposing a change of school and residence.
In this regard, I respectfully adopt the sentiments expressed by Kirby J in AMS v AIF (1999) 199 CLR 160 at [193] – [194]:
Secondly, it is important to remember that in Australia, whilst the welfare (or best interests) of the child are, by statute, the “paramount” consideration in the exercise of jurisdiction such as was invoked here, they are not the sole consideration. In this respect, the position in this country is different from that in Canada. It more closely conforms to the language of the Convention on the Rights of the Child. Statutory instructions as to the paramountcy that is to be accorded to the child’s welfare or best interests are to be understood as they apply to a child living in Australian society, normally in relationship with both parents and other members of its family. Whilst the legislation considered in this case, and later statutory reforms, give the highest priority to the child’s welfare and best interests, that consideration does not expel every other relevant interest from receiving its due weight. In part, this is because (as the English courts recognised long ago) the enjoyment by parents of their freedoms necessarily impinges on the happiness of the child. But, in part, it is also because legislation such as [the Family Law Act 1975] and [the Family Court Act 1975] is enacted to take effect within a society of a particular character whose members enjoy a high measure of personal freedom, diminished only to the extent that the law obliges.
Thirdly, the mother complained that neither the primary judge nor the Full Court had given any attention to the alternative proposal which she had made for enlarged rights of access to, and contact with, the child by the father during school holidays and at other times if she relocated with the child to the Northern Territory. In part, the explanation for this may have been the concession which the mother made that she would not relocate to the Northern Territory if it meant separation from the child. But, mostly, the reason for the lack of attention to her alternative proposal arose from the conclusion that the arrangements in Perth were “ideal” because they meant regular physical contact with both parents (and an extended family), whereas this would be diminished if the mother relocated. That approach impermissibly restrained the residence choices open to the mother. It illustrates an application of the legislation unduly favourable to the interests of the non-residential parent. He is subject to no injunction and he lives where he chooses effectively requiring his former partner to remain close at hand to maximise his contacts with the child of their relationship (and, it must be added, the child’s contacts with him). Whilst the last stated consideration is certainly a matter proper to be taken into account, it is not the sole consideration to inform the Court’s decision.
The mother’s proposals in the present case would have no effect on the time the father would spend with the child. The clear convenience of the proposed arrangements to the mother, as the child’s primary caregiver, was a matter of clear importance to the welfare of the child, given the notorious difficulties associated with combining work and care of young children.
The mother had already postponed her studies following the child’s birth (a fact drawn to the court’s attention by the father). She had also allegedly lost credits for an entire year of studies when she changed universities to make it easier to manage her obligations to the child (a fact disputed by the father but which was not inherently implausible). On the other hand, the father has been able to pursue his career and undertake further studies (including completion of a Masters last year) without impediment.
All of these matters were relevant in considering the inconvenience to the father associated with the mother’s proposals. The inconvenience to him was not in doubt (having to take his car to work instead of catching the train on the days he had to transport the child) but not insurmountable, especially in light of the mother’s willingness to assist with the travel arrangements.
It follows from what I have said above that I consider his Honour misdirected himself in finding that he was “not satisfied that the mother has made any efforts at all in seeing whether it is possible to return to the [southern suburb] area to live” and erred in finding that “there seems to be no reason or no reasonable reason why the mother cannot move back to the [southern suburb] area”.
If the implication in these findings is that the mother should have made some attempt to look for a placement in the southern suburb area then that would have overlooked the evidence that the mother had no say in the matter. In any event, the findings overlook the fact that the mother had complied with the order made in March 2010. Whatever may have been the Magistrate’s intentions, her only obligation was to take up residence within “the Perth metropolitan area”.
It is important to recognise that, after the making of the March 2010 order, the mother had no remedy if she wanted to live anywhere in Perth other than where his Honour anticipated she would want to live when she was ordered to return to the city. An appeal must be directed against orders, not some underlying intention. Having accepted she had to leave the mining town, the mother could not appeal because the orders did not restrain her from living where she wanted to live. Indeed the only injunction contained in the orders was the one preventing either party from making the child’s principal place of residence anywhere outside Western Australia. The order could not be corrected by application of the slip rule because the Magistrate had had his attention drawn expressly to the width of his proposed order and he declined to amend it. If anyone was to appeal, it would have to be the father, since it was he who was aggrieved by the form of the order.
The question then arises what power the Acting Magistrate considered he had to vary the orders he had had already made? It was his order which defined where the mother could live – not his underlying intention or expectation. The order that his Honour made was precisely the order he intended to make. Arguably, in the absence of a finding of changed circumstances, his Honour lacked power to remedy what in hindsight may have been seen as an error made at the earlier hearing. However, in the absence of any Ground properly raising this issue I do not consider it appropriate for this appeal to be determined on this basis. Furthermore, different considerations apply in relation to the choice of school for the child, because his Honour expressly reserved liberty to apply in relation to that matter and thus it could not be suggested his power to determine that issue had been spent.

Unilateral decisions by mother

Having found merit in the mother’s primary complaint, it is unnecessary for me to determine whether there is any merit in other issues raised by this appeal. I do, however, consider it appropriate to make some remarks about the finding that the mother had made “unilateral decisions”. This was an important matter, as his Honour’s criticism of the mother on this account appears to have been influential in his decision.
His Honour was concerned by the mother’s initial decision to move to the mining town and her subsequent decision to take up residence in the eastern suburb rather than in the former matrimonial home or in the southern suburb area.
Dealing first with the move to the mining town I accept that the mother’s decision can be seen as “unilateral” as it was made over the father’s ultimate objection. However, there were a number of relevant matters that arguably ought to have been taken into account, including:
•    the mother had been foreshadowing to the father for some time her intention to move to the mining town and he had not been completely opposed to the move as discussed above;
•    the mother’s intentions were known to the Court at the December 2009 hearing, but no injunction was granted and the Magistrate expressly noted on the court record that any relocation in the interim would be without prejudice to the decision that was to be made early in the school year;
•    the southern suburb school was not prepared to allow the child to commence school on 1 February 2010 (as she might be removed following the hearing on 9 February 2010); accordingly the child would not have been attending school if the mother had remained in Perth;
•    the mother’s evidence was that she had moved to the mining town in accordance with legal advice and she made clear she would return to Perth if ordered.

Although Acting Magistrate Kaeser did not have the benefit of a transcript of the proceedings on 24 December 2009, Acting Magistrate Vanderfeen had said this on that occasion:
… I'm not going to put in place the injunctions as such. What I'm going to do is make it very plain that if she does go there, there's a chance that your client may have to come back, and if the child is put into school in [the mining town], then she may need to change schools. What I am going to do is the record to note that in the event that - I will make this in a minute - that in the event that upon the hearing of the matter the situation with respect to the child is not to be prejudicial to the relocation issue as such.
The following interchange occurred between Acting Magistrate Vanderfeen and counsel for the father later during the December 2009 hearing:
HER HONOUR:   I’ll also mark the record to note that the child’s arrangements in existence at the hearing is without prejudice to the relocation application.
RICHARDSON, MS:   Meaning if she has started school down here.
HER HONOUR:   Yes.
RICHARDSON, MS:   Yes.
HER HONOUR:   And vice versa.
RICHARDSON, MS:   Yes.
HER HONOUR:   That’s simply because the court is unable to accommodate the hearing until such time as arrangements obviously have to be made for her. Thank you.
RICHARDSON, MS:   Thank you, ma'am.
With the benefit of reference to the transcript, it is apparent it was not appropriate for the mother to be criticised for having made the move to the mining town given it was not out of the question that the Court would consider there was merit in her application for relocation. I have already recorded, however, that his Honour did not have the benefit of that transcript, nor was his attention specifically drawn to the note on the record made in December 2009.
His Honour was particularly critical of the mother’s second “unilateral” decision, namely taking up residence in the eastern suburb. In this regard, apart from what he said in his reasons, he also said this in the course of the hearing (Transcript 14 April 2010, page 27):
Mr Grasso quite frankly, it seems extraordinary to me that your client took the steps that she took in moving to [the eastern suburb], having moved to [the mining town] without permission from the court she then moves to [the eastern suburb] and takes on a six month lease without having permission to do so from the court.
These criticisms of the mother need to be considered in the context of his Honour’s findings in his careful and detailed reasons of 8 March 2010 about the commendable efforts both parents had made to be cooperative in relation to matters concerning the child. In that judgment he had said:
5.In my view, the mother has made an extraordinary effort in maintaining and fostering a relationship between [the child] and the father since separation. Her affidavit is littered with examples of ways in which she has encouraged the relationship between them. Whilst some of the details of those efforts are in dispute, and the Father says her motives are not necessarily pure, she is to be commended for her efforts.
6.The parties have also displayed an extremely co-operative approach to parenting in the past. An extraordinary (in the context of separated couples) example of this is the fact that each party had keys to the other’s house in case of emergency.
7.It is conceded by both parties that the other is an excellent parent and has a wonderful relationship with [the child]. Some criticisms were made by each party against the other but in the context of these interim proceedings, those criticisms have little bearing.
It will be apparent from my earlier remarks that I do not consider it was appropriate for the mother to be criticised for having elected to live in the eastern suburb. Having accepted the Court’s decision, which prevented her from taking up her preferred option of living in the mining town, it was to be expected the mother would explore options which would allow her to pursue her career whilst at the same time ensuring that the child was able to spend the amount of time with the father that the Court had determined was appropriate. She did not require the Court’s permission to live in the eastern suburb, as it is within the Perth metropolitan area. She did need permission to change the child’s school; however, liberty had been reserved to apply in relation to that issue and the mother properly exercised that liberty.

Re-determination

It was agreed that in re-determining the matter I could take notice of the fact that the mother has moved to A. The mother claims her new home is 18.5 km from “a” southern suburb Post Office (she says there are three post offices in the southern suburb). The father claims the home is outside the prescribed 20 km radius but concedes I can take notice of the other suburb’s proximity to the southern suburb.
I proceed on the basis that:
·    A lies to the north of the southern suburb, but is in the same general geographic region;
·    the mother would have to double back from the southern suburb having dropped off the child at school if the child remained at school in the southern suburb and the mother attempted to continue to work at the eastern suburb;
·    the journey from A to the eastern suburb is a lengthy one and the child would have to be taken to school in the southern suburb quite early and picked up quite late if the mother was to undertake the travel on those days she is required to be at the eastern suburb at least 30 minutes before/after school.
Counsel for the father argued that if the appeal succeeded the matter should be remitted for hearing by a Magistrate to allow evidence to be provided about how the mother has been managing the arrangements for the child to attend school in the southern suburb whilst she is undertaking her practicum in the eastern suburb. Counsel properly conceded that given the appellate jurisdiction of the Court was being exercised by a single Judge it would also be appropriate to allow such evidence to be given to me to avoid the expense and delay associated with remitting this urgent matter to another Magistrate.
I do not intend to remit the matter, nor do I propose to put the parties to the expense and inconvenience associated with the filing of further affidavits and further argument. I propose to deal with the matter on the basis of the evidence that was before the Acting Magistrate (supplemented by the knowledge that the mother is now living in A).
Clearly there would be inconvenience to the mother in whatever arrangements she is required to make in having to rely upon others to take the child to and from school in the southern suburb or alternatively having to make the detours required to manage the child’s schooling and her practicum commitments. The sensible arrangement would be to allow the mother to take the child to and from school with her each day. The child will still often be at school for an hour longer than would otherwise be necessary, but this will be significantly less than the time she would have to spend if her mother had to take her to school in the southern suburb. Importantly, during all of the extra time she is at school in the eastern suburb she will have her mother with her or nearby. The mother will also be on hand for all important events during the school year.
The father has in the past attended the child’s kindergarten once per term as a parent helper and tries to attend at least one swimming lesson per semester. His evidence is that his employer “understands his family situation” and his hours of employment are “flexible”. There is no reason the father could not continue the same level of involvement in the child’s schooling, albeit he would have to take his car on those days he was proposing to go out to the eastern suburb.

Orders

For these reasons I propose to discharge the order requiring the child to be enrolled at the southern suburb school and I will instead order the parents to enrol her at the eastern suburb school.
I also propose to discharge the order requiring the mother to relocate the child’s residence to a place within 20 kilometres of “the [southern suburb] Post Office”. I am not in a position to determine whether the mother’s home is in fact within that radius. In any event, it will be apparent that I do not consider the order should have been made in the first place.
The order made on 8 March 2010 requiring the mother to ensure the child resides within the Perth metropolitan area has not been the subject of appeal by either party and should stand, pending finalisation of the proceedings.

Costs

Counsel for the mother sought an order for costs in the event the appeal succeeded, but in the event I was not minded to make an order for costs, he sought a costs certificate pursuant to the Federal Proceedings (Costs) Act1981. Counsel for the father opposed any application for costs and sought a costs certificate in the event that the appeal succeeded.
The appeal has succeeded on a question of law. In these circumstances I do not consider it appropriate that the father be required to pay the mother’s costs and I propose to grant costs certificates to both parties as requested.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 14 July 2010