Curtis & Gill

FAMILY COURT OF AUSTRALIA

CURTIS & GILL

[2007] FamCA 402

FAMILY LAW - APPEAL FROM FEDERAL MAGISTATE – Children - Parenting orders – where Federal Magistrate made a series of mistaken factual findings – where mistakes of fact permeate reasons – mistakes of fact render judgment unsafe – failure to consider relevant evidence – failure to give reasons for material findings - appeal allowed – matter remitted for rehearing before another Federal Magistrate
COSTS – Certificates granted under Federal Proceedings (Costs) Act 1981(Cth).

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC(2), 60CC(3), 60CC(4), (4A), 65DAA
Federal Proceedings (Costs) Act 1981 (Cth) ss 6,8 and 9

House v The King (1936) 55 CLR 499
Gronow v Gronow (1979) 144 CLR
De Winter and De Winter (1979) FLC 90-605
Rice & Asplund (1979) FLC 90-725
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Tyson v Tyson (No 2) (1993) FLC 92-401

APPELLANT:

MS CURTIS

RESPONDENT:

MR GILL

FILE NUMBER:

(P)SYM

5745

2004

APPEAL NUMBER:

2007

DATE DELIVERED:

30 April 2007

PLACE DELIVERED:

PARRAMATTA

JUDGMENT OF:

Finn, Coleman & Ryan JJ

HEARING DATE:

23 March 2007

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

31 January 2007

LOWER COURT MNC:

[2007]FMCAfam106

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Schonell

SOLICITOR FOR THE APPLICANT:

Gayle Meredith & Associates

COUNSEL FOR THE RESPONDENT:

Mr Price

SOLICITOR FOR THE RESPONDENT:

Price & Co

Orders

That the appeal is allowed.
That the orders made by Federal Magistrate Housego on 31 January 2007 are set aside.
That the matter is remitted for rehearing in the Federal Magistrates Court before a Federal Magistrate other than Federal Magistrate Housego.
That pending further order:
(i)R GILL born in October 2000 (“the child”) live with the mother during school terms, as follows:
(a)from the conclusion of school on Thursday to the commencement of school the following Tuesday for the first three weekends in each calendar month;
(b)in the event that the child is not in attendance at school on the day there is to be a change in the parent with whom the child is to live with, then the child is to commence to live with the mother at 4.00 pm on the Thursday until 9.00 am on the following Tuesday.
(ii)That the child is to live with the mother for one half of each school holiday period as agreed between the parties in writing or, failing agreement, the first half of 2007 and each alternate year thereafter and the second half in 2008 and each alternate year thereafter.
(iii) That the child is to live with the father at all other times not provided for in these orders.
(iv)That the mother and father are to have equal shared responsibility in respect of the child.
(v)Each parent is to have sole parental responsibility for the day to day decisions with respect to the care, welfare and development of the child when the child lives with that parent pursuant to these orders.
(vi)That the parties forthwith make arrangements to attend counselling for the purpose of disclosing to the child the circumstances of his conception.
That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (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 mother in respect of the costs incurred by the appellant mother in relation to the appeal.
That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (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 father in respect of the costs incurred by the respondent father in relation to the appeal.
That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

THE COURT NOTES that the parties agree that pending the rehearing the child will continue to attend School at P.

THE COURT NOTES that in connection with these orders that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as "Curtis & Gill".

FAMILY COURT OF AUSTRALIA AT SYDNEY

APPEAL NUMBER: EA22 OF 2007
FILE NUMBER: SYM5745 OF 2004

MS CURTIS

Appellant

And

MR GILL

Respondent

REASONS FOR JUDGMENT

Introduction

This is an appeal by Ms CURTIS (“the mother”) against parenting orders made by Federal Magistrate on 31 January 2007. Mr GILL (“the father”) resists the appeal.
The central issue before the Federal Magistrate concerned with whom the parties’ only child, six years old R should live and the amount of time he should spend with his other parent. Intrinsically linked to the issue concerning with whom R will live, is where he attends school. The parties agreed that during school holidays, R’s time would be divided equally between them. It was his living arrangements during school term where they disagreed.
Essentially, the Federal Magistrate’s 31 January 2007 orders provide that during school term R lives with his mother from after school Thursday until the commencement of school on Tuesday for the first three weekends in each calendar month. Concerning school, her Honour ordered that R attends a school located midway between C, where the father lives and W, where the mother lives. C is on Sydney’s northern beaches and W is in north western Sydney, at the foot of the Blue Mountains. Failing the parties agreeing within three weeks as to which school, R is to remain at his current school until the end of Term 1, 2007. Commencing Term 2 in 2007, R is to attend a school at Y chosen by his father.

Background facts

Unfortunately, the Federal Magistrate’s judgment provides few background facts. In order for us to understand the gravamen of the appeal, at the commencement of this hearing, it was necessary to request counsel to provide a précis of salient facts.
The parties married in January 1994 and separated in May 2003.
R was born in October 2000 and at separation he was two and a half years old.
Following separation the mother vacated the family home at C, where the father continues to reside. Until July 2003 the mother lived at her parents B home. In late July 2003 she moved temporarily to her employers, M, apartments at J. In August 2003 the mother moved to an apartment at A.
Between separation and August 2003 R’s time was divided equally between his parents. In August 2003, the parties reached an informal agreement, which provided for an equal shared care arrangement for R’s care.
On 27 April 2004 the parties entered into final s 79 orders which enabled the father to retain the C home upon his payment of a cash settlement to the mother. The mother used a portion of her settlement to purchase a two bedroom home at N. This is where the mother, and R when he was with her, lived until March 2006.
On 9 September 2004, at Sydney, the Family Court made interim orders which continued the parties’ equal shared care arrangement, albeit using a different formulation. In each two week cycle, these interim orders provided that R lives with his father as follows:
(a)From Wednesday afternoon to Monday morning in one week; and
(b)From Wednesday afternoon to Friday morning in the other week.
By order 2 of these interim orders, R resided with the mother at all other times. By order 3 of these interim orders, the parties were ordered:
“To do all things necessary to forthwith remove [R] from [V] child care and enrol him in [O] child care on the Thursday and Friday, where he is now enrolled on the Monday, Tuesday and Wednesday”.
The matter was listed for final hearing on 14 November 2005. That day, the parties entered into final parenting orders. Because the mother claims that the Federal Magistrate misunderstood the effect of these orders, they are set out below.
1.That all previous Orders in respect of the said [R GILL] born [in] October 2000 be and hereby are discharged.
2.       That during school terms [R] reside with the Father:
(a)from the conclusion of day care/school Thursday to the commencement of day care/school Monday (or in the event of a long weekend, Tuesday) in each alternate week commencing 24 November 2005 and recommencing following each school holiday period as follows:
(i)in the event that [R] has resided with the Father during the final half of the term immediately preceding school holiday period, on the final Thursday following the recommencement of school;
(ii)in the event that [R] has resided with the Father during the second half of the immediately preceding school holiday period, on the second Thursday following the recommencement of school;
(b)from the conclusion of day care/school Thursday to the commencement of day care/school Friday in each other week, commencing 17 November 2005.
provided that in the event that [R] is not in attendance at day care/school on a day when he is to change residence, then the Mother’s periods of residence shall conclude at 4.00 pm and the Father’s periods of residence shall conclude at 9.00 am at [D].
3.That in addition to that provided by Order 2, [R] shall reside with the Father:
(a)for one half of each school holiday period as agreed in writing and failing agreement for the first half in 2007 and each alternate year thereafter and the second half in 2006 and each alternate year thereafter;
(b)order 3(a) does not apply to the children’s holidays in 2005/2006 during which [R] shall reside with the Father from the conclusion of day care 23 December 2005 until 10 January 2006 and otherwise with the mother;
(c)notwithstanding an other Order, from 12.00 noon 24 December until 12.00 noon 25 December 2006 and each alternate year thereafter;
(d)in the event that [R] would not otherwise reside with the Father on the weekend which includes Father’s Day, from 5.00 pm Saturday to the commencement of school Monday over that weekend; and
(e)such other periods as the Father and Mother may agree in writing.
4.That save as provided in Orders 2 and 3, [R] shall reside with the Mother AND in addition thereto and notwithstanding any other Order, [R] shall reside with the Mother:
(a)from 12.00 noon 24 December until 12 noon 25 December 2005 and each alternate year thereafter; and
(b)in the event that [R] would not otherwise reside with the Mother on the weekend which includes Mother’s Day, the Father’s period of residence over that weekend shall conclude at 5.00 pm on Saturday.
5.That the parent with whom the child is not residing shall have telephone contact with [R]:
(a)between 6.00 pm and 7.00 pm each Sunday; and
(b)between 7.00 am and 8.00 am on [R’s] birthday;
and for that purpose the parent with whom [R] is residing shall do all things necessary to ensure [R] is able to participate in such phone call on the parent’s mobile phone.
6.That for the purposes of these Orders, residence changeover shall occur (when not at day care/school) at [D] at (when not otherwise provided for) 12.00 noon.
7.That each of the Mother and Father shall cause [R] to attend upon one general practitioner (“GP”) each, being:
(a)in the case of the father, Dr [PSW]; and
(b)in the case of the mother, Dr [TP]
or such GP as either may nominate in writing to the other parent in lieu thereof, and each of the father and mother shall authorise and request such GP to communicate with the other GP in relation to any matter concerning [R’s] health.
8.That the Father and Mother shall, whenever same is within her speciality, ensure [R] is referred to and treated by Dr [LA] and no other such specialist.
9.That the Father and Mother shall each do all things necessary and shall use their best endeavours to:
(a)secure [R’s] enrolment for 2006 at [P] including but not limited to attending upon an appointment arranged for 18/11/95, at 9.30 am;
(b)failing enrolment at the above school, to secure [R’s] enrolment at a Catholic primary school with before and after school care facilities and within a ten kilometre radius of the Sydney GPO and south of the Harbour AND in the event that more than one school is available, the mother shall be entitled to nominate that at which [R] shall attend;
(c)failing enrolment in accordance with Orders 9(a) and (b), to secure [R’s] enrolment at [D School] until such time as a place is available for [R’s] enrolment at a school contemplated by Orders 9(a) or (b).
10.That without admission each of the Father and Mother be and hereby is restrained from:
(a)discussing these proceedings or the documents prepared in connection with them; and/or
(b)causing or permitting [R] to see any of the documents prepared in connection with these proceedings; and/or
(c)denigrating the other or any member of the other’s household to or in the presence or hearing of [R];
and shall use their best endeavours to ensure that no other person does so.
11.That each of the Father and Mother shall:
(a)as soon as practicable prior to and not later than forty-eight (48) hours prior to the same, advise the other of the details (including name, date, time and location) of any specialist appointment for [R];
(b)inform the other and keep the other informed of all medical appointments attended by, and treatment administered to [R];
(c)provide all authorities and directions necessary for all health professionals consulted by [R] and all schools attended by him to provide to each of the Mother and Father all information and material held by them in relation to [R] and to ensure the other is at liberty to attend upon such health professionals and schools;
(d)inform the other and keep the other informed in writing as to their current residential address and contact telephone number;
(e)notify the other in writing of any intention to remove [R] from NSW and of the place at which R is to stay and the telephone number of the same;
(f)do all things necessary to attend upon and complete the Parenting after Separation course to be conducted by Relationships Australia in January 2006 (or similar).
12.That the Father and Mother have:
(a)joint responsibility for decisions concerning the long term care, welfare and development; and
(b)sole responsibility for decisions concerning the day to day care, welfare and development, whilst in their care
of [R].
13.That save as otherwise provided herein, all outstanding applications be dismissed.
14.     No others (sic) as to costs.
15.     That in relation to the issue of informing [R] about his parentage:
(a)the Father and Mother shall do all things as are necessary to jointly seek the advice and assistance of the Donor Conception Support Group;
(b)the Father and Mother shall jointly attend upon all interviews and meetings in relation to the issue and shall ensure the other is notified as soon as practicable in relation to all such events;
(c)the Father and Mother shall act in accordance with the advice so received;
and, to the extent (if any) necessary, this Order shall prevail over Order 12(a) above.
By these orders, the equal shared care parenting arrangement ended. During school term, R’s time with his father reduced from 14 to 10 nights in each 28 nights and his time with his mother increased from 14 to 18 nights in each 28 nights. During school holidays, equal shared care continued, albeit using a different formulation to that which preceded the November 2005 orders. S School was chosen for R’s school because the mother was, and had been for quite some time, working in the Sydney CBD.
On 25 March 2006 the mother advertised her N home for rent and shortly afterwards executed a 12 month lease. In early April 2006 she stopped work. Shortly before the end of first term, the mother withdrew R from S school at P and moved with him to her parent’s home at B. B is in the lower Blue Mountains, west of Sydney.
On 18 April 2006 the father filed an application in the Federal Magistrate’s Court at Sydney seeking the following orders:
1.That the mother be restrained from removing the child [R GILL] (born [in] October 2000) from the Sydney metropolitan area.
2.That the mother be restrained from removing the child from the school [at P].
In the alternative:
3.That the child [R GILL] (born [in] October 2000) reside with the father from Monday afternoon until Friday morning before school each week.
4.That the mother have contact with the child from Friday after school, until Monday before school, three weekends out of four each month.
5.That the mother pay the father’s costs of and incidental to this application.
6.That the matter be listed on short notice.
The father’s short notice application was successful and his application was listed before Federal Magistrate on 28 April 2006. Following a defended interim hearing that day, on 1 May 2006 Federal Magistrate made interim orders in the following terms:
The Court orders pending further order that:
1.Provided the mother resides in the Northern Beaches region of Sydney, the Eastern suburbs of Sydney, the Sydney CBD or its immediate residential surrounds then the orders of 14 November 2005 shall continue.
2.In the event the mother does not notify the father in writing within 7 days of these orders of her intention to reside in the abovementioned area and then take up residence within 14 days of the date of these orders the following orders shall apply:
(a)the child [R GILL] born [in] October 2000 reside with the father from Monday afternoon until Friday morning before school each week;
(b)the mother have contact with the child from Friday after school until Monday before school, three weekends out of four each month.
3.Each party is restrained from removing the child from the school [at P] and I order he recommence school tomorrow.
16.The parties have liberty to apply in writing for further orders and directions on 48 hours notice.
17.For the following 7 days the orders in paragraphs 2(a) and (b) shall be stayed and the child shall reside with the father until after school Friday and from before school Monday.
18.In the event that the mother gives written notice pursuant to order 2 then the orders in paragraph 2(a) and (b) shall be stayed for a further period of no more than 7 days until the mother relocates to Sydney. Until the mother relocates to Sydney in that 7 day period the child shall reside with the father.
In addition, her Honour listed the matter for final hearing before herself on 4 and 5 July 2006, directed the parties to attend Unifam, ordered a family report and made directions for the final hearing.
Pursuant to order 16 of the 1 May 2006 orders, on 9 May 2006 the mother filed an interim application. By her interim application, the mother applied for an order:
“That order 1 of the orders made in the Federal Magistrates Court of Australia at Sydney on 1 May 2006 be varied as follows:
Provided the mother resides in the northern beaches region of Sydney, the eastern suburbs of Sydney, the Sydney CBD or its immediate residential surrounds during the time that the child [R GILL] born [in] October 2000 (“R”) resides with her during the school week then the orders of 14 November 2005 shall continue”.

On 11 May 2006 the Federal Magistrate dismissed the mother’s application filed on 9 May 2006. The mother was ordered to pay the father’s costs of her interim application in the amount of $750. By this time the mother was living with her partner, SB at his rented W home. As the mother did not move into an area nominated in order 1 of the orders made 1 May 2005, order 2 of those orders became operative. Summarised this means that during school term, R’s time with his mother reduced from 18 to 9 nights in each 28 nights and with his father increased from 10 to 19 in the same period. During the school week R lived with his father at C and attended school at P. R’s weekends with his mother were spent at Mr B’s W home. R travelled between W and school at P at the start and end of weekends spent with his mother. The 1 May 2006 orders do not address school holiday arrangements. It appears that not without difficulty, the parties made arrangements for R to spend time with each of them during school holidays. With slight variation this arrangement continues.
The parties appeared for the final hearing on 4 July 2006. At paragraph 12 of her Honour’s Reasons, her Honour finds:
“An amended response was filed by the mother in May 2006 at which time the mother’s position in relation to parental responsibility had changed. At that time, although I was assured there was only a minimal change in the position of the mother, counsel for the father drew my attention to the fact that the position changed markedly in the sense that the mother now sought sole responsibility orders. These were justified, according to the mother’s counsel, because of difficulties with this issue in relation to the child’s parentage. In particular, it was suggested to me that the child should be told forthwith about the real facts of his parentage, which course of action the father opposed”.
The facts being that he had been conceived through an IVF procedure using donor sperm.
The mother’s amended response was filed on 7 June 2006. In her amended response, the mother does not apply to have sole parental responsibility. It appears this issue was raised shortly prior to the 4 July 2006 hearing, in all likelihood in an earlier case outline document. Of the Court’s own motion, her Honour adjourned the hearing to a date in September 2006. A further family report was ordered to address the parental responsibility issue.
Because her Honour was unavailable, the September 2006 hearing was vacated.
On 1 October 2006 the mother married SB.
The final hearing proceeded on 13 and 14 November 2006. At the conclusion of the hearing her Honour reserved her decision.
On 31 January 2007 her Honour made the orders which are the subject of this appeal. These orders are set out below:
1.All previous orders in respect of the child [R GILL] born [in] October 2000 (“the child”) are discharged.
2.From 8 February 2007, during school terms, the child is to live with the mother as follows:
(a)From the conclusion of school on Thursday to the commencement of school the following Tuesday for the first three weekends in each calendar month.
(b)In the event that the child is not in attendance at school on the day there is to be a change in the parent with whom the child is to live with, then the child is to commence to live with the mother at 4.00 pm on the Thursday until 9.00 on the following Tuesday.
3.The child is to live with the mother for one half of each school holiday period as agreed between the parties in writing or, failing agreement, the first half of 2007 and each alternate year thereafter and the second half in 2008 and each alternate year thereafter.
4.The child is to live with the father at all other times not provided for in these orders.
5.The mother and father are to have equal shared responsibility in respect of the child.
6.Each parent is to have sole parental responsibility for the day to day decisions with respect to the care, welfare and development of the child when the child lives with that parent pursuant to these orders.
7.The child is to attend a school in an area which is the mid-way point between the father and mother’s place of residence or, failing agreement within three weeks, the child is to continue to attend his current school until the conclusion of Term 1 and, thereafter, the child is to attend a school in [Y] to be nominated by the father until such time as the child completes primary school.
8.I DIRECT that the parties forthwith make arrangements to attend counselling for the purpose of disclosing to the child the circumstances of his conception.
9.The parties have liberty to apply on 7 days notice in relation to the implementation of these orders.
10.That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
On 22 February 2007 the mother filed a Notice of Appeal, challenging orders 2 and 7 of the orders made 31 January 2007.
On 27 February 2007 Federal Magistrate delivered her reasons for the 31 January 2007 orders.
On 28 February 2007 the hearing of the mother’s appeal was expedited.

The applications

Unfortunately, her Honour does not describe with clarity, the parties’ circumstances or proposals. We include these so as to aid our understanding of her decision.
The mother proposed that she would continue living with Mr B at W. For his part, Mr B would continue fulltime service with the Armed Forces. The mother would continue paid employment as a real estate agent at X and R would attend school at M Primary School, X. Concerning the disposition of the proceedings, the orders the mother proposed are contained in a minute of order which is set out below:
1.That the Orders of 1 May 2006 be discharged.
2.That the child, [R GILL] born [in] October 2000 (“R”) live with the mother.
3.That the mother be permitted to relocate to the place of [R’s] residence to the Hawkesbury/Nepean area in the State of New South Wales.
4.That [R] spend time with the father.
4.1from the conclusion of school on Friday afternoon to the commencement of school on Monday for three weekends out of four each month;
4.2for one half of each school holiday period as agreed in writing or failing agreement, for the first half of 2007 and each alternate year thereafter and the second half in 2008 and each alternate year thereafter;
4.3such other periods as the father and mother may agree in writing.
5.That in the event that the mother is not able to personally supervise [R] during the school holiday period when he is to reside with her, then the father shall be given the first option to care for [R].
6.That notwithstanding any other order [R] shall spend time with the father:
6.1from 12.00 noon on 24 December until 12.00 noon on 25 December 2007 and each alternate year thereafter;
6.2in the event that [R] would not otherwise spend time with the father on that weekend which includes Father’s Day the mother’s time with [R] over that weekend shall conclude at 5.00pm on Saturday.
7.That notwithstanding any other order [R] shall live with the mother:
7.1from 12.00 noon on 24 December until 12.00 noon on 25 December 2006 and each alternate year thereafter;
7.2in the event that [R] would not otherwise live with the mother on that weekend which includes Mother’s Day the father’s time with [R] over that weekend shall conclude at 5.00 pm on Saturday.
8.That the parent with whom [R] is not living or spending time with shall have telephone contact with [R]:
8.1between 6.00 pm and 7.00 pm on three occasions per week; and
8.2between 7.00 am and 8.00 am on [R’s] birthday.
And for that purpose the parent with whom [R] is residing or spending time with shall do all things necessary to ensure that [R] is able to participate in such telephone call.
9.That the mother and father do all things and sign all documents to cause [R] to be enrolled at [M] Primary School, [X].
10.That each of the mother and father shall cause [R] to attend upon on general practitioner each being:
10.1in the case of the father Dr [PSW]; and
10.2in the case of the mother Dr [SR];
or such general practitioner as either may nominate in writing to the other parent in lieu thereof, and each of the father and the mother shall authorise and request such general practitioner to communicate with the other general practitioner in relation to any matter concerning [R’s] health.
11.That the father and mother shall whenever same is within her speciality, ensure [R] is referred to and treated by Dr [LA] and no other such specialist.
12.That without admission each of the father and the mother be and hereby is restrained from:
12.1discussing these proceedings or the documents prepared in connection with them with [R] or in his presence;
12.2causing or permitting [R] to see any of the documents prepared in connection with these proceedings; and/or
12.3denigrating the other or any member of the other’s household to or in the presence of [R]; and
and shall use their best endeavours to ensure that no other person does so.
13.That each of the father and mother shall:
13.1as soon as practical prior to and not later than 48 hours prior to the same, advise the other of the details (including name, date, time and location) of any specialist appointment for [R]);
13.2inform the other and keep the other informed of all medical appointments attended by, and treatment administered to, [R];
13.3provide all authorities and directions necessary for all health professionals consulted by [R] and all schools attended by him to provide each of the mother and father all information and material held by them in relation to [R] and to ensure that the other is at liberty to attend upon such health professionals and schools;
13.4inform the other and keep the other informed in writing as to their current residential address and contact telephone number;
13.5notify the other in writing of any intention to remove [R] from New South Wales and of the place at which [R] is to stay and a telephone number of the same;
13.6do all things necessary to attend upon and complete the Parenting After Separation course to be conducted by Relationships Australia or similar.
14.That in relation to the issue of informing [R] about his parentage:
14.1the father and mother shall do all things as are necessary to jointly seek the advice and assistance of the Donor Conception Support Group;
14.2the father and mother should jointly attend upon all interviews and meetings in relation to the issue and ensure that the other is notified as soon as practical in relation to all such events;
14.3the father and mother shall act in accordance with the advice so received.
15.That the father and the mother shall have equal joint responsibility for decisions concerning the long term care, welfare and development of [R].
16.That the mother and father shall each retain sole responsibility for decisions concerning the day to day care, welfare and development of [R] whilst he is in their care.
17.That the mother and the father must consult with a family dispute resolution practitioner to assist with:
17.1resolving any disputes about the terms or operation of these orders; or
17.2reaching agreement about changes to be made to the order.
Many of the mother’s proposed orders duplicate provisions in the consent orders made 14 November 2005. The most significant changes are to the time R would spend with his father and where he would attend school. During school term, R would no longer spend each alternate Thursday overnight with his father. Alternate weekends commencing Thursday in school term, would change to three weekends in four commencing after school Friday. R would be withdrawn from P and enrolled at M Primary School at X. Thus R would attend school close to the mother’s home. Because the mother works primarily on weekends, R by residing with her predominantly with her during the school week would spend more time in her care. On this regime, R would spend less time travelling to and from school. Three weeks in four, during school term, R would make a significant journey between X and C. The father would make this journey twice in three of four school weeks.
The father proposed that he continue to live in the former matrimonial home at C. He is self employed and is the principal of “A and TI”, a consultancy he runs from home. The father’s clients are drawn from the aviation, tourism and hospitality sector located in the Sydney CBD and North Sydney. Because he is self employed the father’s working hours are flexible and he rarely works on weekends. In his minute of order the father proposed three suites of orders which address different scenarios. The father’s proposed orders are set out below.
1.That all previous orders in respect to said [R GILL] born [in] October 2000 are hereby discharged.
2.That during school terms [R] reside with the mother:
a.from the conclusion of school on Friday to the commencement of school the following Monday three weekends out of four;
PROVIDED THAT in the event that [R] is not in attendance at school on the day when he is to change residence, then the mother’s period of residence shall commence at 4.00 pm on the Friday and the mother’s period of residence shall conclude at 9.00 am the following Monday.
OR IN THE ALTERNATIVE
b.On a two week cycle as follows:
(i)from Monday after school until Wednesday before school in one week;
(ii)from Friday after school to the following Wednesday before school in the other week
PROVIDED THAT the mother agrees to permanently return to the Sydney metropolitan area such area including the Northern Beaches area, the CBD of Sydney and its immediate urban surrounds such as Pyrmont, Ultimo or Eastern Suburbs, and that she does so notify the father in writing within 14 days of the date of these orders of her intention to do so and does in fact take up residence within 28 days of the date of these orders.;
OR IN THE ALTERNATIVE
c.On a two week cycle as follows:
(iii)from Friday after school until the next Friday before school and in each alternate week thereafter;
PROVIDED THAT the mother agrees to the child attending a school in the [Y] area and further that the mother resides in or about the [Z] area and further that she does so notify the father in writing within 14 days of the date of these orders of her intention to do so and does in fact take up residence within two months of the date of these orders.
Proposed orders 2(a) and (b) addressed the situation if the mother lives in the area identified in the orders. In this scenario R would continue attending school at P. The third situation, contained in proposed order 2(c), involves the mother moving to the Z area and R attending school in Y or its vicinity. In this situation, the father proposed that during school term R would live week about with each parent. Thus, on the weeks he resided with the mother, R would travel between Z and Y to school and in the weeks he resided with the father, from C to Y for school.

The Federal Magistrate’s Reasons for Judgment

At the commencement of her judgment, Federal Magistrate correctly identifies that the proceedings commenced with the father’s application filed on 18 April 2006 in which he sought to restrain the mother from removing R from the Sydney metropolitan area. Her Honour refers to her interim decision delivered on 1 May 2006 and to an interlocutory order she made on 11 May 2006 dismissing an application by the mother for the amendment of the orders made 1 May 2006.
Under the heading “Background Facts” her Honour identifies that the parties’ resolved property issues by consent orders made 27 April 2004 and final parenting orders made by consent on 14 November 2005.
Following separation, the father remained in the family home at C and after the property orders were entered, the mother purchased a property at N.
Until April 2006, the parties were able to agree upon arrangements for R, albeit when orders were required these were largely consistent with the parties’ agreement.
Following a change in the mother’s employment, R’s child care centre was changed from V to O. At paragraph 7 of her Honour’s Reasons, she finds: “At the time the parties entered into final parenting orders in November 2005 the situation in relation to [R’s] care was that it was shared between the two parents on an equal basis”. This correctly states the position immediately preceding the orders made 14 November 2005. Her Honour then finds: “It is in the face of these orders that the mother now seeks to have fresh orders entered into which will provide primarily for her to be the carer of [R] with [R] to spend time with the father on some limited basis”. This is a finding challenged in the appeal.
Her Honour correctly identifies that the mother’s position varied throughout the course of the proceedings, but that ultimately she proposed that R spends time with the father three weekends in four and for half of each school holidays. Concerning the father’s stance, her Honour finds that: “The father opposes this change from his involvement on an equal basis in the care of [R] and more recently the primary carer of [R] pursuant to the orders made by me on 1 May 2006”. The appellant contends her Honour repeats her mistaken finding that the 14 November 2005 orders provided for equal shared care. Her Honour finds that following her orders on 1 May 2006, the father becomes R’s primary carer:
“Because the mother did not avail herself of the opportunity to live in the Sydney metropolitan area on a short term basis until such time as I could determine these proceedings without being unduly pressured to make a pre-empted decision or without the assistance of the family report”.
The mother’s conduct in relation to “her proposed relocation and the interim proceedings themselves” is significant “because when she originally sought assistance from this Court on an expedited basis her argument was to the effect that she had nowhere to live..”. The appellant contends this finding is erroneous as it was the father, not the mother who moved the Court for an expedited interim hearing.
At the time of the interim hearing on 28 April 2006, her Honour correctly finds that the mother had leased her home at N for 12 months. The mother said that because of the time constraints imposed by R attending school at S School at P she could not continue her employment in the Sydney metropolitan area. At this interim hearing, the mother sought her Honour’s “endorsement of a relocation that was then proposed to be to the Blue Mountains” on a temporary basis. This was in the sense that the mother did not propose living with her parents indefinitely and would shortly rehouse herself. The mother proposed her parents would assist with before and after school care as necessary, as well as providing her with a degree of financial assistance.
Her Honour finds that the mother takes issue with the father’s stance against disclosure to R that he was conceived through an IVF program using donor sperm. At the interim hearings, the mother proposed that the parties continue to jointly share parental responsibility. Prior to the final hearing, the mother changed her approach to the issue of parental responsibility and seeks that she alone has parental responsibility for R. This change arises from the parties’ continued disagreement concerning disclosure of their son’s parentage, with the mother’s stance being that R should be told the true position forthwith, which course of action the father opposed.

Having commented upon her inability to adjudicate contentious disputes in an interim hearing, her Honour turns to consider the final hearing. At paragraph 14 of her judgment her Honour finds:
“When the matter became before me for a final hearing a very different picture evolved. It was in the course of material filed for the final hearing that the existence of a relationship between the mother and her proposed husband was revealed, [Mr B], who filed an affidavit in the proceedings on 19 June 2006 and an updated affidavit on 8 November 2006, which I allowed to be filed in Court”.
Her Honour finds that the mother and Mr B had been in a relationship at the time the consent [14 November 2005] parenting orders were entered into. At paragraph 15 of her judgment, her Honour finds: “The existence of this relationship was not revealed to me in the interim proceedings”. The mother challenges the finding concerning the timing of her disclosure of her relationship with Mr B.
Her Honour finds that following her 1 May 2006 interim decision, the mother left her parent’s home at B and moved to Mr B’s residence in W. Mr B must live no further than 30 kilometres from his Armed Forces base.
On 1 September 2006 the parties and R were seen for the purpose of an updated family report ordered to address the mother’s application that she has sole responsibility for long term parenting decisions. Reliant upon the report her Honour finds R “misses his mum more and would like to spend more time with her”. Her Honour postulates that one explanation for this may be that R wants to spend predominantly more time with his mother than his father. However she concludes: “But there was nothing in the evidence to suggest that this is an accurate interpretation of [R’s] wishes”.
Concerning relationships, her Honour notes that the family reporter opines that R has a significant and substantial relationship with both of his parents. This suggests that he needs to spend significant and substantial time with each of them. Her Honour returns to R’s desire to live with his mother which is stronger than his desire to live with his father. She finds R misses each of his parents at times that he is away from them. Concerning the mother’s circumstances, her Honour finds that the mother is employed as a real estate agent in the W area and that she primarily works on weekends. This is one of the reasons the mother seeks orders that permit R to live with her during the week and with the father predominantly on weekends. The mother says that she needs to work for her financial upkeep. Concerning her employment, her Honour finds: “She also says that she could do no other arrangements in relation to work because of the nature of the work and she did not give any reasonable evidence of having sought work in an alternate or other field”. This is a finding challenged in the appeal.
In the updated family report, it is revealed the mother suffered a miscarriage on the morning of the appointment for her interview. The mother had told R she was pregnant and gave evidence “as to the descriptions she gave to [R] as to how this conception was different to the one that gave rise to [R]”. Her Honour says the mother’s evidence on this point was troubling. In a discussion with R, following his request that she picks him up, the mother spoke with R:
“As to the difference between conception for the child she had miscarried and [R] himself”. Her Honour says: “It simply defies belief that in the circumstances where there is such a live issue about the disclosure of [R’s] paternity to him that this information was imparted to [R] in such a seemingly uncalculated and spontaneously way”.
The father took issue with the mother’s decision to remove R from S School immediately prior to the conclusion of first term. Her Honour said that this issue did not warrant “much consideration, save to say that the mother clearly … take peremptory steps in relation to [R] and his relocation”. Her Honour finds the mother’s evidence concerning her leasing out of N is unsatisfactory and that “there is no explanation as to why a lease had to be entered into at that time”. This is a finding under challenge in the appeal. As is the finding: “There was no evidence before me on either the interim or final hearing as to why financially it was so necessary for this step to be undertaken”.
Commenting on the mother’s evidence, her Honour finds that the mother’s “purpose in bringing the initial proceedings was for her to take up residence either with or near [Mr B] so as to pursue that relationship and that she chose to portray her movements in a different light, that is, on the basis of financial necessity and hardship experience by her at work”. The appellant mother contends her Honour perpetuates her mistaken belief concerning the commencement of the proceedings.
At the time of the interim proceedings, the mother “hotly contested” the father’s contention that there was a pattern of instability in the mother’s proposals concerning R. Her Honour finds that the mother proposed three different arrangements, on a temporary basis. The first of these involved the mother and R living with her parents and then moving elsewhere. The second involved the mother living part-time in a rented apartment in the city, which apartment would change each time she lived in the city and the remaining time with Mr B in W. Her third proposal “was to live with [Mr B] fulltime and ultimately to marry and indeed to hope that he and she would have a child themselves”. The appellant mother contends and the respondent properly concedes that the mother and Mr B married prior to the commencement of the final hearing. Combined “with the history of changes in child care centres these factors are suggestive” of a lack of stability in the mother’s proposals. Her Honour finds “it may well be that now she is proposing to marry [Mr B] that a more stable life may await her”. The appellant mother contends that this is further evidence of her Honour’s mistaken finding concerning the mother’s relationship with Mr B and evidences that her Honour failed to appreciate the stability involved in the mother’s circumstances and proposals. Her Honour repeats her concern at the mother’s failure to disclose “at the time that interim orders were sought” her relationship with Mr B. Similarly, her concern that having proposed sole long term parental responsibility, when the matter was finally heard, the mother reverted to her original position of joint parental responsibility.
Under the heading “the law to be applied” her Honour turns her attention to whether the 14 November 2005 orders ought to be changed. After referring to Rice & Asplund (1979) FLC 90-725, her Honour finds:
“I am of the view that the mother’s change of circumstances such that she is now living with and to marry [Mr B], and as a result of that, she proposes to reside in [W], justify a further intervention by this Court and a change to the earlier orders”.
Her Honour does so reluctantly and comments “that, in any event the prospect of [R] continuing school at [P] when his father lives in [C] and his mother lives in [W] seems to be a very sad outcome for [R]”.
Concerning the applicable law, her Honour recites s 60B and s 601DA of the Family Law Act 1975. Having found that the parties agree they will share jointly parental responsibility, her Honour says she must consider the child spending equal time or substantial time with each parent. Next her Honour recites s 65DAA. Concerning her orders made 31 January 2007, her Honour finds: “Within the constraints of the geographical position of the parents the orders provide that [R] spends substantial and significant time with each of his parents.” Having correctly identified s 60CA requires that R’s best interests are the paramount consideration, her Honour turns to consider the primary considerations contained in s 60CC(2). Concerning s 60CC(2)(b), her Honour finds that in this case there is no issue of physical or psychological harm, nor expectation or experience of R being exposed to abuse, neglect or family violence. Her Honour alludes to the potential for psychological harm unless R is informed “in a structured and assisted manner” concerning his parentage. Concerning s 60CC(2)(a), her Honour finds that R benefits from and has a meaningful relationship with each of his parents and which her orders must ensure continues.
The judgment then turns to consider the s 60CC(3) additional factors. Concerning R’s wishes, her Honour finds that R’s desire to see more of his mother must be understood in the context of his having spent little time with her since April [2006] because of her current situation and her work. In the event the mother and Mr B have a baby, the mother said she would stop work and become a fulltime parent. Mr B would support her financially. Her Honour finds: “In those circumstances and absent compelling financial proof of her situation, I am not satisfied that for considerations in working should have been placed so highly above the needs of [R] to spend time with her”.
Concerning s 60CC(3)(b) her Honour finds each of the parents and R enjoy very good relationships, which are of considerable benefit to R. Mr B is an appropriate adult who enjoys very good relationships with his two children from an earlier marriage.
Under s 60CC(3)(c) (at paragraphs 42 and 43) her Honour finds:
“42. Despite criticisms by the mother of the father as to his flexibility and ability to accommodate her need for changes, I find that the father is able to facilitate and encourage a close and continuing relationship between the child and [Ms CURTIS]. I do not find that he has undermined that relationship in any way, and the fact that he still seeks orders for a shared care of [R] suggests that his attitude will continue.
43. However, I do not find that the mother’s evidence to support a view that she is able to facilitate and encourage a close and continuing relationship between the child and the other parent in references she has made to the issue of [R’s] actual parentage and the fact that she has suggested that this is a factor which may well diminish her relationship between [R] and his mother”.
Concerning paragraph 43, the mother contends there is no evidence that she said R’s parentage may diminish his relationship with her. Even if the final two words of paragraph 43 read “his father”, the appellant says there is no evidence to this effect. The father properly concedes that the finding on either possible interpretation is erroneous.
At paragraphs 44 and 45 of her judgment her Honour addresses the likely effect of any changes in R’s circumstances. These findings are challenged in the appeal. Her Honour finds:
“44. The proposals of the mother will significantly reduce the amount of time that [R] will spend with his father. Further, they will place [R] in a difficult circumstance in that he will be schooled in an area where he does not spend much weekend or free time. Although that does not fall within the section, it is something to which I have had some regard in terms of assessing the capacity of the parents to provide for [R’s] needs as required in ss (f).
45.Of course the contrary position, which is that an order placing [R] predominantly in the care of his father, is also going to have an effect on the child. The pity is that the arrangements have been in place and resulted in a shared care on an equal basis must inevitably now be disrupted because of the mother’s decision to move”.
The mother contends her Honour’s finding demonstrates that she failed to appreciate the father proposed that R attends school at Y, an area where he would spend no weekend or free time. Also that her Honour again repeats her mistaken finding that the 14 November 2005 orders continued equal shared care.
Her Honour considers the practical difficulty and expense of R spending time with and communicating with his parents and associated s 60CC(3)(e) issues at paragraphs 46 and 47 of her judgment. She finds the driving distance between C and W significant, as is the distance between N and P. The father’s proposal that R attends school near a midway point between the parties home is made “so that practicalities of picking him up and delivering him can be addressed in a slightly more beneficial way”. If an order is made that R attends school near to the father or mother’s homes, the other parent will be put to considerable effort and expense driving R to and from school and “ensuring that R will also be able to also develop friendships in the local”. No mention is made of the impact on R of travelling these distances every school day.
Concerning the parties’ capacity to provide for R’s needs, including his emotional and intellectual needs, no challenge is made to her Honour’s finding that the parties each provide well for R’s physical and intellectual needs. The real issue is identified as being “the extent to which each of the parents can provide for the needs of the child in a manner where those needs are met ahead of their own”. On this issue, her Honour finds:
“…. Both of the parties lack the capacity to completely place [R’s] needs ahead of their own, but I otherwise find that the father is able to meet the emotional needs of [R] and I am of the opinion that he is able to do this better than the mother in that he has provided a degree of security and stability for [R] in circumstances where the mother’s proposals were to contrary effect”.
The only s 60CC(3)(g) characteristic requiring consideration is that R is advised as soon as practicable of his parentage.
At paragraph 52 her Honour concludes that each of the parties has a very responsible attitude to parenting. The only qualification is that the mother has put proposals before the Court for the two preceding months which place R in a difficult position. She is found to put her own needs ahead of R’s in that “she has preferred to spend time with [Mr B] rather than with [R] during the temporary period leading up to these proceedings”.
Her Honour correctly finds that there are no family violence orders or issues requiring consideration. As far as possible and provided the mother does not change her place of residence, the orders are described as those least likely to lead to the institution of further proceedings.
Her Honour recounts in full ss 60CC(4) and 60CC(4A) and finds that there is no suggestion either party has failed to fulfil their financial obligations to maintain R and that both has previously decided major long term issues. Finally, and in relation to s 60CC(4)(A), her Honour finds:
“That since separation the care of [R] has been shared on an equal time basis and that in failing to take up the opportunities under the orders that I imposed on 1 May 2006 the mother has failed to spend available time with the child”.

The applicable law

The law governing an appeal from a discretionary judgment is well settled. In House v The King (1936) 55 CLR 499, Dixon, Evatt and McTiernan JJ said at 504 - 505:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or effect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred”.
See also Gronow v Gronow (1979) 144 CLR 513 where Stephen J [at p.519] held:
“The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be effected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight”.
In De Winter and De Winter (1979) FLC 90 - 605 the High Court held that if a trial judge has made a mistake of fact, the judgment will not be upheld merely because the result was within the range of discretion. However, in such circumstances, a judgment may be upheld if, notwithstanding the mistake of fact, the result is plainly right. Having referred to that part of the High Court’s judgment in House v King cited above, Gibbs J [at 78,091-092], , said:
“It is apparent from this statement, and is clear law, that a discretionary judgment which is based on a mistake of fact will not be upheld merely because the result reached in itself does not appear unreasonable or unjust. In Storie v Storie (1945) 80 C.L.R 597, both Latham C.J., at p.600, and Rich J, at p.604, cited from the judgment of Viscount Simon L.C. in Blunt v Blunt (1943) A.C. 517 at p. 526: “If it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take into account matters that are relevant, there would, in my opinion, be ground for an appeal. In such a case the exercise of discretion might be impeached, because the court’s discretion will have been exercised on wrong or inadequate material.” …. There are many other authorities from Young v Thomas (1892) 2 Ch. 134, at p.137, to Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 C.L.R. 621, at p.627, that recognised that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge”.

Grounds of Appeal

The mother moved on her third Notice of Appeal filed 9 March 2007. The Appeal is pressed on reliance of three grounds. Ground 1 argues that her Honour’s judgment is unsafe having regard to material mistakes of fact, 16 of which are identified in the Further Amended Notice of Appeal. Grounds 2 and 3 comprise reasons challenges. Ground 2 argues her Honour failed to consider the wife’s evidence as to the husband’s conduct relevant to his parenting. Ground 3 argues her Honour failed to give any or insufficient reasons for ordering that R attends school at Y where the father lives at C and the mother at W.

Concerning Ground 1, during argument, counsel abandoned grounds 1.8 – 1.10 inclusive. Of the remaining grounds, the mother’s counsel focused on grounds 1.1, 1.3, 1.11, 1.13 and 1.14. In the event these succeeded it was said we need not address the remaining factual mistakes.
At 1.1, the mother contends: “That her Honour erred in finding that the parenting orders made in November 2005 provided for equally shared care”.
This error is first apparent at paragraph 7 where her Honour finds:
“At the time the parties entered into the parenting orders in November 2005 the situation in relation to [R’s] care what that it was shared between the two parents on an equal basis. It is in the face of these orders that the mother now seeks to have fresh orders entered into which will provide primarily for her to be the carer of [R] with [R] to spend time with his father on some limited basis”.
Also at paragraph 8:
“The father opposes this change from his involvement on an equal basis in the care of [R] and more recently the primary carer of [R] pursuant to the orders made by me on 1 May 2006”.
And at paragraph 45:
“The pity is that the arrangements that have been in place and resulted in shared care on an equal basis must inevitably now be disrupted because of the mother’s decision to move”.
Finally, at paragraph 60:
“… the fact that since separation the care of [R] has been shared on an equal time basis”.
By failing to understand that the 14 November 2005 orders brought equal shared care during school term to an end, her Honour proceeded upon the erroneous assumption concerning the magnitude of change the mother sought. In particular that the mother sought to reduce R’s time with his father from equal to “some limited basis”. The effect of this is not only did her Honour fail to understand the orders she was asked to vary, she was mistaken about R’s parenting arrangements and the impact on the amount of time the mother’s application would have upon R spending with his father.
Concerning the mother’s contention that her Honour erroneously describes the impact of the 14 November 2005 orders, the father contends the argument is misleading and that her Honour’s comments are reasonable and sound. The father correctly points out that in the first sentence of paragraph 7, her Honour is describing the situation at the time the 14 November 2005 orders are made. However, it is in the second sentence of paragraph 7, and the findings outlined above in paragraphs 8, 45 and 60 where her Honour is clearly mistaken about the terms of the 14 November 2005 orders, viz a viz, R’s care. In his written submissions, the mother’s counsel argued that her Honour’s finding at paragraph 17: “Indeed this is one of the reasons why she seeks orders that permit [R] to live with his father predominantly on weekends and during the week with her” is further evidence of her Honour’s misunderstanding of the 14 November 2005 orders. The father correctly submits that this quote is taken out of context and her Honour’s comment is there referring to the mother’s weekend employment as a real estate agent. However notwithstanding the father’s submissions concerning the first sentence of paragraph 7 and paragraph 17, the second sentence at paragraph 7 and paragraphs 8, 45 and 60 to which we have referred, demonstrate that her Honour proceeded upon a mistake as to the effect of the 14 November 2005 orders and consequently the nature of change to R’s care the mother’s application proposed. The error is material and permeates her Honour’s judgment.
Ground 1.3 asserts that her Honour erred in finding that in the course of the interim proceedings, the mother failed to disclose her relationship with Mr B. This argument is based on her Honour’s finding at paragraph 14: “It was in the material filed for final hearing that the existence of a relationship between the mother and her proposed husband was revealed”. At paragraphs 9 and 10 of her affidavit filed on 9 May 2006, the mother disclosed that she and Mr B were in a relationship and planned to reside together. Based on her Honour’s erroneous finding, the mother contends that her Honour proceeded upon an assumption that she had in some fashion been misled which results in trenchant and unfair criticism of the mother. For example, at paragraph 15 her Honour finds: “The existence of this relationship was not revealed to me in the interim proceedings”. The mother concedes she did not reveal her relationship with Mr B in the interim hearing conducted on 28 April 2006. The first mention of it is located in her affidavit filed 9 May 2006. It is the father’s submission that her Honour’s comments concerning the mother’s non-disclosure of her relationship with Mr B relate solely to the 28 April 2006 interim hearing. With this submission we do not agree. Her Honour’s findings at paragraph 15 do not distinguish between the first and second interim proceedings and her finding is described in the plural. The father submits there is no evidence of the mother’s affidavit of 9 May 2006 being relied upon at any time between filing and completion of the proceedings. However, irrespective of whether the affidavit was read in the interim proceedings, which logic suggests it must have been, the mother’s trial counsel specifically draws her Honour’s attention to these parts of the mother’s 9 May 2006 affidavit.
To an extent, the mother’s complaint on this issue is hair splitting. The effect of her evidence is that she and Mr B were in a relationship from late 2005 and that at least, following her move to her parent’s home, R was spending weekends with the mother at Mr B’s W home. The mother’s relationship with Mr B made him a significant person in R’s life. There is no doubt this relationship should have been disclosed to her Honour in the 28 April 2006 interim hearing. The mother’s failure to disclose this relationship at the first interim hearing detracts from the force this ground may otherwise attract.
Ground 1.11 argues that her Honour erred in finding that the mother was to marry Mr B, in circumstances where the evidence was that they married on 1 October 2006. The father properly concedes her Honour’s error. However the father submits that her Honour’s reference to Mr B during the hearing as “your current husband” supports the view that her Honour’s finding in paragraph 26 “that she is now living with and to marry [Mr B]”, is suggestive of a typographical error rather than an erroneous finding. Although the finding is mistaken, the father contends the error is not of such significance as to have any substantial or material effect upon the decision.
At paragraphs 22, 23 and 49 of her judgment, her Honour comments unfavourably upon the mother’s proposals as evidencing a lack of stability on her part. Comparatively, the father is assessed as providing “a degree of security and stability for [R] in circumstances where the mother’s proposal were to contrary effect”. The mother contends that in failing to appreciate she and Mr B are married, her Honour misunderstood that irrespective of what the position may have been, she was now settled. Simply put, that through marrying Mr B, she was in a settled relationship, had secure accommodation with financial assistance that compliments her income earned working weekends as a real estate agent. At paragraph 23 her Honour finds: “It may well be that now she is proposing to marry [Mr B] that a more stable life may await her”. In this finding, her Honour alludes to the possibility that with marriage, the mother may improve her ability to provide R with settled living arrangements. Perhaps if her Honour set out a chronology of relevant events and described the mother’s circumstances and proposals, she would have better understood this aspect of the mother’s case. Of itself, her Honour’s erroneous finding concerning the mother’s intention to marry Mr B is, as the father contends, inconsequential. It is the consequences of her marriage in terms of the mother’s ability to provide R with settled living and educational arrangements which is significant and which her Honour’s judgment reveals she failed to appreciate.
At ground 1.13, the mother contends that her Honour erred in finding that the mother suggested that the facts of R’s parentage may well diminish their relationship. When addressing s 60CC(3)(c), at paragraph 43, her Honour said:
“However, I do not find that the mother’s evidence to support a view that she is able to facilitate and encourage a close and continuing relationship between the child and the other parent in references which she has made to the issues of [R’s] actual parentage and the fact that she has suggested that this is a factor which may well diminish the relationship between [R] and his mother”.
The mother contends that there is no evidence that she suggested that R’s parentage would diminish the relationship between R and her. The father concedes the mother gave no such evidence but submits that this finding is of insufficient significance to warrant reversal of any part of the 31 January 2007 orders. Having regard to the totality of her Honour’s “various discretionary findings and observations”, the father contends her Honour’s orders were quite properly open and, in effect, plainly right.
Before returning to the impact on the judgment of her Honour’s mistake, we point out there is a distinction between the nature of evidentiary fact finding and a discretionary judgment. In a case such as this, the decision in the Court below is undoubtedly discretionary. The findings, in this instance her Honour, are not discretionary in the sense the father argues. Fact finding requires that the facts as found have a probable basis.
Returning to the mother’s contention, we agree that there was simply no evidence to support the finding, potentially very adverse to the mother, that she suggested that R’s parentage would diminish the relationship between R and her.
Ground 1.14 argues that her Honour erred [at par 44] in finding that the mother’s proposal to school R in an area where he does not spend much weekend or free time compared unfavourably to the father’s proposal that he be schooled at Y. The mother contends that this statement demonstrates her Honour failed to understand that the father’s proposition that R would be schooled at Y involved an arrangement whereby R would attend school in a place where he spends no free time and no time at all on the weekend. Comparatively the mother’s proposal at least had the advantage that R would be spending time in the area he attends school on one weekend a month and all of the time after school during the week.
The father concedes this error but contends that this finding is not material to her Honour’s decision concerning the mother’s parenting capacity. It is submitted by the father her Honour’s finding at paragraph 48: “Of course the contrary position, which is that an order placing [R] predominantly in the care of his father, is also going to have an effect on the child” reveals that her Honour was alive to the potential detriments of both parties’ proposals. The difficulty with this submission is that in paragraph 45 her Honour makes no reference to the father’s schooling proposal, nor sets out the type of effect placing R in the father’s care will have upon him. It is impossible to discern what effect, for example advantageous or negative, the father’s proposals would have upon R. The impact of this error is that it underpins her Honour’s adverse findings concerning the mother’s parenting capacity. It is plainly material to her ultimate decision concerning with whom R should live.
The mother contends that as a result of these factual errors, her Honour’s decision is “clearly wrong” in the manner described by Kitto J [at page 67] in Australian Coal & Shale Employees’ Federation v The Commonwealth (supra). It is the mother’s submission that the errors of fact in combination are so material that it is unsafe to allow the decision to stand. When one has regard to the nature of her Honour’s factual errors, we agree they are so integral to her Honour’s process of reasoning that it is unsafe to allow her orders to stand.
Ground 2 complains that her Honour did not consider the mother’s evidence concerning the father’s conduct relevant to his parenting. At paragraph 42 her Honour finds that despite criticisms by the mother of the father’s inflexibility and inability to accommodate her needs for change, the father is able to facilitate and encourage a close and continuing relationship between R and his mother. Her Honour finds that the father has not undermined the mother and R’s relationship. This issue is linked with her Honour’s finding at paragraph 49 that the father is able to meet R’s emotional needs. In finding against the mother’s contention concerning the effect of the father’s alleged conduct, her Honour makes no evidentiary finding based upon the mother’s evidence, including her unchallenged evidence or the father’s cross-examination. If her Honour considered the mother’s and father’s evidence on this point, she does not say so. In failing to deal with this significant part of the evidence and mother’s case, including unchallenged evidence, her Honour fell into appealable error.
Ground 3 argues that her Honour gave no or insufficient reasons for ordering that R attends school at a place midway between the parent’s homes in circumstances where the father lives at C and the mother at W. We have already discussed her Honour’s statements at paragraph 44 of the judgment. At paragraphs 46 and 47 of her judgment, her Honour canvasses each of the two proposals, but provides no reasons for her ultimate conclusion. The father agrees with the mother’s contention that no reasons are provided, but submits that it is implicit that her Honour resolved the issue by choosing a school which is approximately equidistant between the parties homes, in reliance upon Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 249 where McHugh JA (as he then was) observed: “…. neither the need nor the appearance of justice requires that reasons be given for every decision made by judicial tribunal”. In circumstances where the parties’ schooling proposals were significantly distinguishable and a point of real contention between them, the resolution of the issue, one way or another, required findings and reasons. In failing to give any reasons, her Honour fell into appealable error.

Conclusion

The outcome of this appeal does not rely on credit findings or findings the father describes as “discretionary”. The paucity of findings made it difficult for the father to maintain his contention that the result would have been the same notwithstanding the factual errors. With few findings it could not be said that this is a case where notwithstanding the errors, the outcome is plainly right. We agree with the mother’s contention that her Honour’s errors render her decision unsafe and that her failure to make evidentiary findings or give any reasons for material findings in her judgment amounts to appealable error. The appeal is thus allowed and the matter remitted for retrial before another Federal Magistrate.
Both parties conceded that if the appeal is allowed a new trial is required. Initially, the mother contended that by setting her Honour’s 31 January 2007 orders aside, this Court would make orders in accordance with those made 14 November 2005. As the issue was teased out the mother conceded that the proper course is to allow the appeal, set the 31 January 2007 orders aside and, save for order 7, make interim order in similar terms. The father agreed. We are of the view that pending a rehearing, in the difficult circumstances of this case, this is in R’s best interests.

Costs

At the conclusion of the hearing, we took submissions concerning costs of the appeal. In the event she succeeded, the mother sought costs against the father and in the alternative, a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth). If the appeal succeeded, the father sought a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth). Both parties seek a s 8 costs certificate for any retrial. Each of these sections provides that a certificate may be granted where an appeal succeeds on a point of law, which has occurred here. Otherwise the legislation is silent on the criteria upon which we may grant or refuse a costs certificate. Ultimately the decision is discretionary. See Tyson v Tyson (No 2) (1993) FLC 92-401.
Neither party is in receipt of a grant of legal aid. The mother has been entirely successful and as far as we can discern is a person of reasonably modest financial circumstances. We know little about the father’s financial circumstances. Although the mother has been entirely successful it cannot be said that the father is in anyway responsible for difficulties with her Honour’s judgment. In this case it would be a harsh and unjust outcome that the father is ordered to pay the mother’s costs in circumstances where the mother succeeds because of factual errors and failure to give reasons by the Federal Magistrate. The mother’s costs application against the father is thus dismissed.
We consider the granting of cost certificates to both parties for the appeal and rehearing is appropriate.
Finally, having regard to the nature of the case we recommend that this matter is reheard by another Federal Magistrate as soon as possible.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 30 April 2007

[2007] FamCA 402

30 April 2007

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