DRH & DKM

Case •

[2005] FamCA 269

•

13 April 2005

[2005] FamCA 269  JFDRHDK

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT PARRAMATTA

Appeal No. EA 52 of 2004
File No. NCM 740 of 2004

IN THE MATTER OF:

DRH

Appellant/Mother

- and -

DKM

Respondent/Father

REASONS FOR JUDGMENT

BEFORE:  JUSTICE I R COLEMAN
HEARD:  28th day of February 2005
JUDGMENT:  13th day of April 2005

Name of Appeal  DRH & DKM

Appeal Number  EA 52 of 2004

Date of Appeal Hearing                   28th day of February 2005

Date of Judgment  13th day of April 2005

Bench  Coleman J

Catchwords:               Appeal against orders of Federal Magistrate restraining mother from relocating children’s residence from the Newcastle area, NSW to Victoria. 

The appellant’s complaint that inadequate weight was given to the mother’s pregnancy with her new partner who lives in Melbourne, and to the relationship between the mother, her partner and her unborn child  if she was unable to relocate, unsuccessful – the Federal Magistrate took these factors into account and considered the level of support able to be provided by the mother’s new partner.

The Federal Magistrate not found to have placed excessive weight on the close relationship between the children and their father and paternal grandparents –no challenge to the finding of fact with respect to this close relationship. His Honour took into account the mother’s lack of financial ability to facilitate regular contact – his findings of fact with respect to financial circumstances not challenged.

The appellant’s contention that the Federal Magistrate failed to place sufficient weight on the mother’s right to freedom of movement, not made out – Federal Magistrate addressed the mother’s right to freedom of movement, deferring to the paramount consideration in accordance with U v U (2002) 211 CLR 238.

The appellant’s assertion that there was a paucity of evidence on which the Federal Magistrate based a finding with respect to the children’s education as to their Aboriginality by the paternal grandmother and that excessive weight was placed on the children’s Aboriginality, unsuccessful – evidentiary foundation for finding existed – children’s Aboriginality not a factor of great significance but rather one of many taken into account.

The Federal Magistrate not found to have erred in either giving inadequate weight to the mother’s capacity to promote the relationship between the children and the father, or not considering alternatives to face to face contact.  His Honour did not criticise the mother’s capacity but found the contact proposed to be beyond her financial means.  His Honour’s failure to refer to the possibility of web cam contact did not vitiate the exercise of discretion.    

The Federal Magistrate not found to have given inadequate weight to the father’s remarriage and subsequent change in living arrangements – nothing adverse suggested in the relationship between the father’s new wife and the children – failure to call father’s wife for cross-examination not significant.

Application to adduce further evidence refused – further evidence not found to render the Federal Magistrate’s decision erroneous -  CDJ v VAJ (1998) 197 CLR 172 followed.

Appeal dismissed.

Costs reserved. 

  1. By Notice of Appeal filed 21 May 2004 DRH (“the mother”) appealed against orders made by a Federal Magistrate on 23 April 2004 in proceedings between the mother and DKM (“the father”).  The father resisted the mother’s appeal. 
  2. In essence, the focus of the mother’s appeal was against the order of the learned Federal Magistrate restraining the mother from changing the place of residence of the children of her former relationship with the father “to a place outside a radius of 100 kms of the Post Office in [a town near Newcastle] in the State of New South Wales”. Before the learned Federal Magistrate the mother sought unsuccessfully to relocate the children’s place of residence to an area near Melbourne in the state of Victoria.  In lieu of the orders made by the learned Federal Magistrate, the mother sought to “be permitted to relocate with the children to Victoria” and, in consequence of so doing, orders for contact on a substantially less frequent basis than the orders of the learned Federal Magistrate provided, namely for two weekends during each school term, for the whole of the terms 1, 2 and 3 school holiday periods, for one half of the Christmas school holiday periods and “telephone contact” at all reasonable times.
  3. On the 21 January 2005 the mother filed an Application for leave to adduce further evidence pursuant to s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”).
  4. The father opposed the mother’s Application for leave to adduce further evidence.

BACKGROUND

  1. The father was born on 31 March 1974 and was aged 30 years at the date of the Federal Magistrate’s judgment.  The mother was born on 12 August 1974 and was then also aged 30 years. 
  2. The parties commenced cohabitation in April of 1996 and separated on 28 July 2002. 
  3. There were three children of the relationship KJ, born in November 1998 and aged 6 years, KL, born in March 2000 and aged almost 5 years and LD who was born on in March 2002.  LD died on in June 2004. 
  4. Orders for residence in the mother’s favour were made in October 2002.  The father had contact with the children from the date of the making of those orders to the date of trial before the Federal Magistrate. 
  5. The mother, by Amended Response filed 8 April 2004, sought to relocate the residence of the children to “Victoria” or, in the alternative, a town in southern New South Wales.  The father opposed the mother’s application to relocate the residence of the children and sought contact each alternate weekend, after school each Wednesday, one half of all school holidays and, in the case of LD, periods prior to his commencing full time schooling, on the children’s birthdays and other special occasions.

THE TRIAL BEFORE THE FEDERAL MAGISTRATE

  1. As the transcript of the proceedings makes clear, the learned Federal Magistrate was invited to determine the proceedings before him on the affidavit material presented by the parties without such material being tested through cross-examination.  There was no expert evidence before the learned Federal Magistrate, nor was there any order for representation of the children the subject of the proceedings. 
  2. The mother’s grounds of appeal sensibly recognise the limitations on the scope of her appeal to this Court by virtue of the manner in which the proceedings were conducted before the learned Federal Magistrate.  With one exception (part of ground 11) the whole of the mother’s grounds of appeal involve “weight arguments”.
  3. The law governing the appeal is not in doubt and does not require extensive re-statement.  There is a presumption that the decision appealed from is correct unless the appellant is able to establish appealable error (see Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627). The law governing challenges to the weight attached to the evidence before the Court is clear. In Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-520:

“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 affected 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.”

THE JUDGMENT OF THE FEDERAL MAGISTRATE

  1. In the course of recording the “BACKGROUND”, to which reference has earlier been made in these reasons and which is not controversial, the learned Federal Magistrate referred to the mother’s “relationship” with a Mr T, to whom the mother was then pregnant, being “due to give birth [in] July 2004”. 
  2. His Honour found that:

“Since separation, the father has had regular contact with the children.  There is a dispute on the evidence about the frequency and duration of that contact, but generally it seems to be common ground that the father had alternate weekends and other times had some extended periods.” (Judgment, paragraph 28)

  1. Utilising funds received from the proceeds of sale of the former matrimonial home of the parties, the mother had, shortly prior to the trial before the learned Federal Magistrate, completed the purchase of a home near Melbourne in the State of Victoria, “her intention as disclosed” being to “purchase that property as an investment”.  Reference was made to the mother having stated in an affidavit sworn on 1 April 2004 that she did not “intend to live in the property in the near future”. 
  2. His Honour referred to the mother’s “primary proposal in her earlier affidavit” to move to a regional town in Southern New South Wales.  The mother’s case at trial was that she “felt by then she had no choice but to move into the … property [near Melbourne] and occupy it as a home”. 
  3. The learned Federal Magistrate referred to evidence of the mother’s financial position in the event of her remaining in the “… Newcastle areas” or relocating to the area near Melbourne.  The learned Federal Magistrate concluded with respect to the mother’s proposal that:

“I am left with the impression from the mother's evidence that her proposals were unclear and that she made a number of decisions which changed from time to time and without considering the full impact of each decision she made, either for herself or for her children.  The evidence is that she and Mr T have never lived together.  Inevitably, if the mother's proposals that Mr T live with her [near Melbourne] come to fruit, there is an attendant risk that relationship may fail.” (Judgment, paragraph 52)

  1. He further concluded that:

“There is also an unknown factor as to the effect upon his children or indeed the contact that he would continue to have with his children.  Further, the mother relies substantially upon Social Security benefits and the effect of living with Mr T is unclear upon the continuation of Social Security benefits.  The mother does not propose in her evidence to rely upon Mr T financially.” (Judgment, paragraph 53)

  1. The “RELEVANT LAW” was detailed by the learned Federal Magistrate.  There is no suggestion that his Honour did so other than accurately.
  2. The “PROPOSALS” of the parties were recorded by the learned Federal Magistrate.  There is no suggestion that such recording was other than accurate. 
  3. Under the heading “SECTION 68F(2) MATTERS”, the learned Federal Magistrate addressed the various provisions to which he was obliged to have regard in determining the proceedings before him. His Honour concluded that s 68F(2)(a) had “no application” for reasons which he gave. There is no suggestion in this appeal that declining to afford weight to any wishes expressed by the children was erroneous.
  4. His Honour recorded, uncontroversially, in the context of his consideration of s 68F(2)(b) that the children were “close to their mother”, she having “been their primary carer since separation”. The evidence did not enable the learned Federal Magistrate to make any findings with respect to Mr T or his children of a prior relationship, the learned Federal Magistrate observing that there had been “no evidence before me that his children have spent any time with the children the subject of these proceedings”.
  5. The children were found to have “a close relationship with their father” and with the paternal grandparents who filed affidavits in the proceedings.  His Honour was “satisfied that in all probability the children have a developing relationship with the father’s fiancee Ms B who did not file an affidavit in the proceedings”.  His Honour recorded that “whilst unable to make findings in relation to Mr T or the father’s fiancee”, “no complaint is made by any of the parties in their evidence about the children’s relationship with any of the significant adults with whom they have contact”. 
  6. Inferentially, the learned Federal Magistrate did not regard the relationship between the children and any significant adults or other children as impacting significantly on the decision he was obliged to make.  There has sensibly been no suggestion in this appeal that such approach was erroneous.
  7. So far as the “capacity of each parent to provide to the children’s needs, including their emotional and intellectual needs” was concerned, his Honour recorded that:

“There is no evidence before me at all that any of the people involved in these children's lives are not capable of providing appropriately for the children's needs and that includes their emotional and intellectual needs.  I am satisfied too that both the parents and especially the paternal grandparents are able to meet those needs and have that respective capacity.” (Judgment, paragraph 75)

  1. Inferentially, his Honour did not see this as a factor which impacted significantly upon the exercise of his discretion.  There has been no suggestion in this appeal that such approach involved error.
  2. Section 68F(2)(f) was considered by the learned Federal Magistrate by virtue of the children’s Aboriginal “culture or heritage”, the paternal grandmother being an Aboriginal woman with what appears to be elder status within a particular tribe. The father is Aboriginal and “a member of the [an] Aboriginal Land Council since he was a teenager”. His Honour concluded that the responsibility for the children’s on-going education in Aboriginality would “lie primarily with the paternal grandmother and the father”, the mother making “no complaint about that”. Before this Court there has been no challenge to the learned Federal Magistrate’s conclusions with respect to the future course of the children’s Aboriginality.
  3. Although, as his Honour said, “slightly out of order”, the practical difficulty and expense of contact was closely considered by him.  He concluded in that regard:

“The mother's proposal for two weekends a term is not a practical proposition if she is living in Melbourne and that is her stated intent.  It is not realistic for children of this age to travel by air, because that is the only way they could do it, for two weekends each term.  The mother proposes to live [in a town]… to the east of Melbourne and some distance from the airport.  There is no evidence before me as to the distance from the airport or the travel time to and from the airport.” (Judgment, paragraph 82)

  1. His Honour further concluded that:

“… there are no specific proposals before me as to whether or how indeed the weekend contact could be implemented as to time and from which airport in Victoria to which airport in New South Wales.” (Judgment, paragraph 83)

and that:

“There is no evidence before me as to the costs of travelling to and fro.  There was an oblique reference to cheap airline tickets with the advent of Virgin Airlines, but I am left with no evidence at all as to the actual cost.  There is no evidence before me as to the frequency of flights.” (Judgment, paragraph 84)

  1. Having referred to suggestions made on behalf of the mother that she would contribute to the cost of air fares for the children’s travel to facilitate contact, his Honour said:

“I find on the evidence the practical reality is that contact will not occur during term times and will be confined to school holiday periods.” (Judgment, paragraph 85)

  1. In support of that conclusion his Honour said:

“The mother puts forward no evidence at all that she is able to afford to fly the children to and fro or indeed fly herself to and fro on a number of journeys each year.  Her own evidence is that her present expenditure exceeds her income. There is no provision for her to set aside money for the cost of meeting air fares.” (Judgment, paragraph 56) 

  1. The findings of fact of the learned Federal Magistrate in relation to future contact have, sensibly, not been challenged in this appeal, although the same is not necessarily so with respect to his Honour’s conclusions in that regard.
  2. “[V]iolence between the parties or affecting the children” was not an issue in the case and has not been an issue in this Court. 
  3. Section 68F(2)(h) was considered, his Honour concluding that neither party was “critical” of the other’s “parenting ability”. No part of this appeal relates to such conclusion.
  4. Section 68F(2)(k) was considered, his Honour suggesting that:

“There are different views about the frequency of contact, particularly for especially young children such as LD.  But it is the widely held view is that for especially young children, it should be weekly or fortnightly, but certainly not for two periods during a period of 10 weeks or thereabouts.  Younger children not of school age need that regular contact for their ordinary development.

Having said that, it is equally widely accepted that older children can maintain a close relationship with the non-residential parent with less frequent contact.  But for that to occur, that foundation must have been laid and that is the frequent contact when they are young.” (Judgment, paragraphs 90 and 91)

  1. There has been no challenge in this appeal to the foundation for such statements by his Honour.
  2. Under s 68F(2)(l) the learned Federal Magistrate revisited s 68F(2)(c), the “likely effect of change in the children’s circumstances and separation from the parents or other persons with whom they have been living”. Extensive reference was made in this context to the children’s history of contact with the paternal grandparents.
  3. Having thus reviewed the relevant s 68F(2) factors, the learned Federal Magistrate proceeded to consider “THE ADVANTAGES AND DISADVANTAGES OF THE PROPOSALS”. He recorded, accurately it is conceded, the “mother’s proposal”. He also considered the mother’s alternative “proposal to move to [a rural area in Southern New South Wales]”. It is neither necessary nor helpful in this appeal to refer to his Honour’s consideration of that alternative proposal. His Honour recorded that:

“The disadvantages of the mother's proposal in moving to Victoria or indeed [the Southern New South Wales town], it seems to me are these:  if the children are able to go with her, there is a serious risk of the children losing the close relationship they have with their father and the paternal grandparents for the reason that the contact with the father and the paternal grandparents would be infrequent and in essence confined to probably four periods each year, each of about two weeks duration.” (Judgment, paragraph 100)

  1. He concluded:

“The Children would lose the benefit of their familiar environment at the present time albeit that environment has been fragmented in recent weeks consequent upon the sale of the home.  KJ who now attends school would lose the benefit of the friendships he presently has at school, although the mother gives some evidence about his misbehaviour at school and the children may lose the benefit of the friends they have in the area in which they currently live.” (Judgment, paragraph 101)

  1. So far as the feasibility of the mother’s contact proposals were she to relocate the children to Victoria was concerned, his Honour concluded that:

“… it is one of those cases where the financial circumstances of the parties do not permit the proposals to be put into place if I adopt the mother’s application.” (Judgment, paragraph 105)

  1. The disadvantage to the mother if she stayed in the Newcastle area was found to be that:

“… she will be emotionally and financially isolated.  She has concerns that this will have a serious and negative affect upon her health, not only her health, but also the health of her new baby and the happiness of the children living with her.” (Judgment, paragraph 105)

  1. His Honour declined to “give any significant weight” to medical evidence relied upon by the wife in relation to the impact on her health of her pregnancy.  No part of this appeal relates to his Honour’s decision in that regard. 
  2. His Honour further recorded:

“In all likelihood the mother will feel isolated initially.  She has no immediate family and either few or no friends in this area. Her family was located either in the … area in Southern New South Wales or on the south coast of New South Wales, although there is a relative in Melbourne.  Geographically, she will be distant from her partner Mr T upon whom she relies for emotional support.  But Mr T has been a frequent visitor to the mother whilst she has lived in this area and comes every fortnight.” (Judgment, paragraph 107)

  1. His Honour concluded that the mother would “no doubt require considerable support” from Mr T “leading up to the baby’s birth in now a little less than three months time and will rely upon him being able to visit frequently”.  The implications of the mother being required to remain within the Newcastle area were concluded to be that:

“… within such an enlarged area, the mother may well be able to find appropriate accommodation for her and if she is to remain in this area, then the home near Melbourne can be sold and the mother can then utilise the proceeds of sale of that home and if she wishes, apply that towards the purchase of a home here or to assist her with renting.” (Judgment, paragraph 109) 

  1. The “advantages to the mother” of not relocating were suggested by the learned Federal Magistrate to be that Mr T “because of his ability to travel” could visit the mother and “give her emotional support on a regular basis” being “at least fortnightly”, the children would continue to have “regular contact with the father”, the mother thereby being “better able to devote herself to the care of her new baby when the baby is born” and “the children will stay in the local area  and thus be able to have regular contact with the father and maintain the relationship which has been established with him” and “be able to see the paternal grandparents on a regular basis”.  The children would “have the support of both parents” which the learned Federal Magistrate regarded as “a critical factor”. 
  2. His Honour thus concluded:

“… I give greater weight to the need for each of the children to be able to continue to maintain the close and loving relationship with the father that they now have and to the benefits to them of being able to enjoy frequent contact with him and to a lesser extent the paternal grandparents.” (Judgment, paragraph 111)

  1. The learned Federal Magistrate considered that the mother would be “in all likelihood bitterly disappointed” with the outcome and address the “unhappiness” which she might experience as a consequence of his decision, concluding that:

“… her ability to cope, even with her disappointment of not being able to relocate and being pregnant will not have any impact on the children to such an extent as to outweigh the benefit to the children of continuing the present arrangements.” (Judgment, paragraph 114)

Such conclusion has not been challenged in this appeal.

  1. His Honour concluded his reasons by stating:

“I have taken into account the mother's right to choose her place of residence and freedom of movement.  The mother should be enabled to relocate if it was in the children's best interests, but I find that if the mother was enabled to relocate, the relationship of the children with their father would be seriously endangered and quite possibly irreparably because of the infrequency of contact and at the very least compromised to a very significant degree.  That risk is not warranted and is to be avoided.” (Judgment, paragraph 115)

THE GROUNDS OF APPEAL

  1. Learned Counsel for the mother provided the Court with thorough and closely reasoned submissions in support of the grounds of appeal, conceding that save for one aspect of ground 11 of the Notice of Appeal, the grounds involved “weight” challenges. 

GROUND 1

  1. Ground 1 provided:

“That the learned Magistrate erred by failing to give adequate weight to the pregnancy of the mother and the impending birth of her child in July 2004.”

  1. In support of the ground it was submitted that:

·     “There was evidence placed before the Court by the mother that as at the date of the hearing she was pregnant to her partner, Mr T and was due to give birth in July 2004.

·     There was evidence placed before the Court that the mother would need the emotional support of Mr. T during the latter stages of the pregnancy and following the birth of the child.

·     The learned Magistrate placed excessive weight on Mr. T’s ability to continue to travel to Newcastle each alternate weekend to spend time with the mother.

·     The learned Magistrate failed to properly consider the impact on the mother of having Mr. T available to her only for short limited periods of time.” (Appellant Mother’s Summary of Argument, page 10)

  1. It was submitted on behalf of the father that the learned Federal Magistrate’s references to the mother’s pregnancy and conclusions with respect to such pregnancy fell within the scope of a reasonable exercise of discretion.  In relation to this and all grounds raised on behalf of the mother, learned Counsel for the father relied on the dicta of Stephen J in Gronow v Gronow to which reference has earlier been made.
  2. There has been no suggestion that the learned Federal Magistrate was under any misapprehension or was mistaken as to any of the facts relating to the mother’s pregnancy, proposed arrangements and relationship with Mr T.  In paragraph 12 of his judgment his Honour referred to the mother’s pregnancy.  He again referred to such pregnancy in his consideration of “THE ADVANTAGES AND DISADVATNAGES OF THE PROPOSALS”, accepting that the mother needed emotional support from Mr T who was ordinarily resident in the State of Victoria and not reasonably able to relocate away from Victoria. 
  3. For reasons which his Honour gave, and which have not been challenged, no “significant weight at all” was given to the medical report relied upon by the wife.  There has been no challenge to his Honour’s decision in that regard.  Nor has it been suggested that there was any “other [relevant] medical evidence” before him. 
  4. His Honour accepted that the mother “will feel isolated initially” referring to her absence of family support and geographical distance from Mr T “upon whom she relies for emotional support”.  He recorded that Mr T had “been a frequent visitor” to the mother whilst she has lived in “this [the Newcastle] area and comes every fortnight”.  That finding of fact has not been challenged in this appeal. 
  5. His Honour later (paragraph 108 and 110) referred to the mother’s reliance upon Mr T “being able to visit frequently”.  There is no challenge to his Honour’s finding that Mr T had been able to visit the wife “at least fortnightly” in the recent past, and no suggestion that there was evidence that such ability was likely to cease in the future.
  6. The learned Federal Magistrate was clearly obliged to have regard to the mother’s pregnancy.  It is clear beyond doubt that his Honour did so.  It is of significance that beyond suggesting that insufficient weight was given to the mother’s pregnancy, nothing has been urged upon this Court as to how that factor should have impacted upon the exercise of discretion.  It has sensibly not been suggested that this factor could have been decisive of the issue of relocation.  It was but one of a number of factors to be considered.  Nothing to which this Court has been referred suggests that his Honour failed to adequately do so.
  7. Ground 2 was sensibly not pursued.

GROUND 3

  1. Ground 3 provided:

“That the learned Magistrate erred by placing excessive weight as to how the proposed relocation may impair the father’s and paternal grandparents’, contribution to the children’s upbringing on a day to day basis.”

  1. On behalf of the mother it was conceded that the learned Federal Magistrate had referred extensively to the positive aspects of the children’s relationship with the father and the paternal grandparents (paragraphs 28, 73-75, 89-94, 100 and 110–111).  Reliance was placed upon the absence of evidence to suggest that the relationships that existed as at the date of hearing would in any way be impaired or damaged by the proposed move of the mother in the light of the proposals for contact. 
  2. It was further submitted that his Honour had erred in suggesting that “there is a serious risk of the children losing the close relationship they have with their father and the paternal grandparents” (paragraph 100).  In oral submissions, learned Counsel for the mother clarified that the learned Federal Magistrate had placed excessive weight on the impact of relocation upon the relationships between the children and their father and paternal grandparents and insufficient on the positive aspects of the mother’s proposal for relocation.
  3. On behalf of the father, particular reliance was placed upon paragraph 100.  The Court was referred to the decision of the Full Court of this Court in D and SV (2003) FLC 93-137.
  4. It is to be remembered that the positive findings with respect to the children’s relationships with the father and paternal grandparents have not been challenged in this appeal.  It is also to be remembered that there were unequivocal positive findings so far as the relationship of the children with the mother was concerned and, albeit without necessarily being supported by evidence, positive findings with respect to the relationship between the children and Mr T. 
  5. As both learned Counsel suggest, paragraph 100 encapsulates his Honour’s conclusions in relation to the matters agitated pursuant to this ground.  In that paragraph his Honour said that the “disadvantages of the mother’s proposal in moving to Victoria” involved a:

“… serious risk of the children losing the close relationship they have with their father and the paternal grandparents for the reason that the contact with the father and the paternal grandparents would be infrequent and in essence confined to probably four periods each year, each of about two weeks duration.” 

  1. His Honour later reiterated (paragraph 111) that conclusion, stating that:

“… I give greater weight to the need for each of the children to be able to continue to maintain the close and loving relationship with the father that they now have and to the benefits to them of being able to enjoy frequent contact with him and to a lesser extent the paternal grandparents.” 

  1. His Honour had examined the feasibility of the mother’s proposals for contact in the event of relocation, concluding that “it is one of those cases where the financial circumstances of the parties do not permit the proposals to be put into place if I adopt the mother’s application”.  There has been no challenge to any of the evidence of financial circumstances of either party to which his Honour referred and upon which he relied for that conclusion.  Such reliance was not unjustified. 
  2. As is also apparent, the learned Federal Magistrate was conscious of the potential impact upon the mother of being obliged to continue to reside in the Newcastle area if she wished to retain the residence of the children (see paragraphs 105, 107, 108 and 109), the substance of which has previously been referred to.
  3. It has not been demonstrated that the learned Federal Magistrate erred in concluding, upon the evidence before him, that there was a “serious risk of the children losing the close relationship they have with their father and the paternal grandparents”, not by virtue of any intention in that regard on the part of the mother, but by the financial inability to provide contact more often than “probably four periods each year”. 
  4. To the extent that the mother sought to rely upon his Honour’s observations in paragraphs 90 and 91 of his reasons, it cannot be successfully asserted that his Honour was there suggesting that the two eldest children had reached an age where contact at “10 weeks or thereabouts” intervals would be desirable. 
  5. It has not been shown that the conclusion reached by the learned Federal Magistrate in paragraph 100 of his reasons was not reasonably open to him on the findings of fact he had made, particularly given his conclusions with respect to the history and “close nature” of the contact relationships between the children and their father and paternal grandparents and the financial viability of the mother’s proposals. 
  6. Ground 3 is accordingly not made out.

GROUND 4

  1. Ground 4 provided:

“That the learned Magistrate erred by failing to place adequate weight on the significance of the mother’s partner and father to her then unborn child, who resides in Melbourne and not able to relocate to Newcastle, to reside with the mother and their child.”

  1. Having referred to the nature of the mother’s relationship with and reliance upon Mr T (paragraph 97), and his history of “travelling on a fortnightly basis to visit the mother” (paragraph 107), it was submitted on behalf of the mother that there was:

“… no evidence before the learned Magistrate to support the finding as contained in paragraph 110 that Mr T is “…able to continue to visit the mother and give her emotional support on a regular basis, that is fortnightly or at least fortnightly;…”.” 

  1. It was fairly conceded on behalf of the mother that there was no evidence before the learned Federal Magistrate to suggest that Mr T could not continue to visit in the future.  In the circumstances it would not have been open to the learned Federal Magistrate to so conclude.  If the mother’s case was that Mr T could not afford to continue to visit her in New South Wales “at least fortnightly”, she bore the onus of adducing evidence to support such assertion. 
  2. It was submitted on behalf of the father in response to this complaint that, as paragraphs 107 and 110, to which reference has previously been made, confirm, his Honour had considered the implications for the mother, her unborn child and Mr T in reaching his conclusion, and that the mother could not demonstrate that any aspect of such consideration vitiated the exercise of the learned Federal Magistrate’s discretion.
  3. As is clear beyond doubt from a balanced reading of the learned Federal Magistrate’s judgment, the case before him was difficult and involved considering the “advantages and disadvantages” of the competing proposals.  Decisions of the High Court and of the Full Court of this Court in recent years clearly establish that such an exercise was required of the learned Federal Magistrate.  The impact on the mother of continuing to be separated from Mr T was a factor, albeit clearly one of importance as the learned Federal Magistrate’s reasons make clear, to be considered as an advantage flowing from permitting relocation or a disadvantage flowing from the refusal of leave to relocate the children’s residence.  Ultimately however it could not seriously be suggested that this factor could have assumed decisive significance in the dispute given the “paramountcy” of the welfare of the children of the mother and father.  Nothing to which this Court has been referred suggests that the learned Federal Magistrate failed to afford this factor the weight or significance to which it was entitled.  As with most, if not all of the factors which the learned Federal Magistrate had to evaluate, other minds may have afforded this matter more or less weight, without thereby erring.  This complaint accordingly is not made out.

GROUND 5

  1. Ground 5 provided:

“That the learned Magistrate erred by placing excessive weight on the effect on the children should they be removed from the support network they have available to them in their current arrangement.”

Nothing to which this Court has been referred establishes this complaint. 

GROUND 6

  1. Ground 6 provided:

“The learned Magistrate erred by making findings as to the role of the father in the lives of the children prior to and following separation in light of disputed evidence of the parties.”

  1. This ground was sensibly not pursued with any enthusiasm.  It is sufficient to dispose of it by recording that the findings of the learned Federal Magistrate have not been shown to have been without foundation.  Apart from the fact that the findings were favourable to the mother insofar as her primary care was concerned, it is difficult to understand what complaint this ground seeks to advance.  Moreover, as was sensibly conceded by Counsel for the mother, the findings of fact made by the learned Federal Magistrate can be supported by reference to uncontested evidence.

GROUND 7

  1. Ground 7 provided:

“That the learned Magistrate erred by failing to give adequate weight to the mother’s right to freedom of movement between the State[s] of the Commonwealth.”

  1. Reference was made to the learned Federal Magistrate’s discussion of the issue (at paragraphs 64 and 115 of his reasons), the complaint being that “There does not appear to be any assessment of what significance the learned Magistrate placed on this factor in light of the proposals advanced by the parties, and in particular, the mother”. 
  2. It was submitted on behalf of the father that the weight given to the mother’s right to freedom of movement had not been shown to have been unreasonable.  Reliance was placed upon the decision of the High Court in U v U (2002) 211 CLR 238. 
  3. In U v U the High Court said:

“The appellant argues that the proper interpretation and application of the Family Law Act in this case required that the trial judge make an order as to the relocation of the child to India with the appellant, because to do otherwise, would be to place an unacceptable restriction upon the appellant’s freedom to leave Australia.

There are two answers to the appellant’s argument. The first is that whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent. The second answer is that the primary judge did weigh up and treat as a relevant, important consideration, the appellant’s wish to return to India.” (per Gummow and Callinan JJ at 262)

  1. In this case (paragraph 115 of his judgment), the learned Federal Magistrate did precisely that. The statement was made after the learned Federal Magistrate had carefully considered, by reference to s 68F(2), what “was in the children’s best interests”. His conclusion with respect to relocation was an example of the “right of freedom of mobility of a parent” deferring to the paramount consideration. This Court is thus not persuaded that this complaint has substance. Indeed, for this complaint to succeed would reverse the paramountcy principle and subvert the welfare of the children to the rights of a parent to freedom of movement. The decisions of the High Court preclude such an approach.

GROUND 8

  1. Ground 8 provided:

“That the learned Magistrate erred by failing to give adequate weight to the impact on the mother’s relationship with her partner in the event that she was required to remain in Newcastle area and not permitted to relocate.”

  1. It was submitted in support of this ground that:

“There was no evidence before the Court to suggest that the relationship was anything but a loving and close relationship that had stood the test of distance and time.”

  1. No finding of the learned Federal Magistrate is inconsistent with that assertion. That factor was entitled to limited weight in the comparison of the competing proposals.  The reference to the “attendant risk that relationship may fail” must be read in context and in the light of the history of the relationship presented by the mother herself and the reality that any relationship had a “risk” of failing. 
  1. Despite the caveat expressed by the learned Federal Magistrate, the reasoning process which he evinced with respect to “THE ADVANTAGES AND DISADVANTAGES OF THE PROPOSALS”, does not reflect any adverse view of the mother’s relationship with Mr T.  On the contrary, the findings in that regard are entirely positive. 
  2. It cannot in this Court’s view be successfully asserted that the “attendant risk” of the mother’s relationship with Mr T may fail in the future was a factor in the decision to refuse relocation of the children’s place of residence.  
  3. The other complaint which this ground agitates relates to the learned Federal Magistrate’s criticism of “the mother’s lack of clarity in her proposals”.  In the course of his judgment, the learned Federal Magistrate carefully recorded the history of the proposals presented by the mother.  It is not suggested that such history was inaccurate.  It is to be remembered that the findings of fact in relation to the mother’s proposals derive entirely from the statements made by the mother in that regard.  It has not been demonstrated before this Court that the learned Federal Magistrate’s criticisms of the mother’s proposals were without evidentiary foundation. 
  4. Moreover, that the learned Federal Magistrate’s ultimate conclusion was predicated on the mother’s proposals, save with respect to contact with the father and paternal grandparents, having been satisfactory, notwithstanding the matters earlier recorded.  So far as the complaint that:

“The learned Magistrate does not appear to place any significance on the relationship that was to be established between Mr. T and his child with the mother in light of the learned Magistrate’s comments contained in paragraph 90 of the judgment.”   

is concerned, it is to be noted that at trial all that was submitted in that regard was:

“[COUNSEL FOR THE MOTHER] Your Honour, the situation is that if the mother were to remain in Newcastle then the child that she is carrying would suffer a disadvantage and that disadvantage would be in relation to knowing and being cared for in respect of the father of that child.” (Transcript page 14, line 13 and following)

That issue was addressed by his Honour.  To criticise the learned Federal Magistrate for having failed to have regard to the factor complained of is not, in this Court’s view, reasonably open. 

  1. In the proceedings before the learned Federal Magistrate, the welfare of the children of the parties was the paramount consideration.  It has not been shown that the learned Federal Magistrate failed to have adequate regard to the position of the mother’s unborn child, either in relation to her capacity to facilitate contact between the children and their father and paternal grandparents or otherwise.  This challenge lacks substance.

GROUND 9

  1. Ground 9 asserted:

“That the learned Magistrate erred by placing excessive weight on the Aboriginality of the children and finding that the education of the children as to their Aboriginality would be left to the paternal grandmother.”

  1. It was submitted in this regard:

“The learned Magistrate made this finding in circumstances where there was no evidence placed before the Court as to how much time and/or effort either of the parties and/or the paternal grandparents spent promoting the Aboriginality with the children prior to the date of the hearing.”

and further submitted:

“… that the evidence that was placed before the Court concerning the children’s “aboriginality” was scant and did not provide a sufficient basis for the learned Magistrate to make the findings he did as contained at paragraphs 79 and 80 of the judgment.”

  1. Thus it was asserted:

“There was no evidence placed before the Court that could in any way suggest that the proposed relocation by the mother would impact on the paternal grandmother’s proposals to promote their children’s background and heritage.”

  1. Nothing to which this Court has been referred demonstrates that the learned Federal Magistrate erred in his conclusions with respect to the children’s Aboriginality.  The evidentiary foundation for such findings was to be found in the father’s affidavit:

“I am Aboriginal through my mother. I am a member of [an] Aboriginal Land Council.

I have been a member of the Land Council since I was in my teens.” (Affidavit sworn 8 April 2004, paragraphs 25 and 26)

and in the affidavit of the paternal grandmother:

“I am aboriginal. I am from [a particular] tribe. This is a tribe based in South Australia. I believe that it is important that my grandchildren grow up knowing about their aboriginal background.

I am affiliated with [a] Land Council. I am a member. I was Chairperson for 4 years. All three (3) grandchildren are “registered” with the … Land Council.

I have taken the children to an open day at [M]. I believe that as the children became [sic] older there will be an increasing role for me in promoting the children to learn the tribal language, and of their heritage.

The younger two (2) children are too young to teach much at this stage. I have endeavoured to teach KJ some language from the [tribal] dialect.

On a number of occasions when the children have stayed with me and have been ill I have taken the children [a] Medical Centre at [H].” (Affidavit sworn 8 April, paragraphs 8-12) 

No evidence to which this Court has been referred on behalf of the mother put those matters in issue. 

  1. Objectively, on the evidence before him, the learned Federal Magistrate could only have concluded that the children’s education with respect to Aboriginality would rest with members of the father’s family.  It is apparent from the learned Federal Magistrate’s reasons that the frequency of the contact which he found could take place, if the mother were to relocate the children’s place of residence, was not conducive to the continuing close relationship of the children with their father and paternal grandparents.  The children’s Aboriginality was but one aspect of that relationship and was not ultimately regarded as a matter of great significance, as a reading of paragraphs 100 and 111 make clear.  This challenge is not made out.

GROUND 10

  1. Ground 10 provides:

“That the learned Magistrate erred by placing excessive weight on the omission by the mother to properly identify and explain the circumstances surrounding the purchase of the property [near Melbourne], Victoria.”

  1. The matter complained of under this ground has largely been dealt with in the course of considering earlier challenges.  Notwithstanding his Honour’s comments earlier in his judgment with respect to the “circumstances surrounding the purchase of the property [near Melbourne in] Victoria” his Honour did not, when considering the factors, the significance of which led to his ultimate conclusion, again refer to this matter.  It is correct to assert that the learned Federal Magistrate “does not indicate in his reasons as to why this is a matter that he attaches some significance to, and just how much significance he does attach to it”.  As he in fact did not ultimately attach significance to it, doing so was unnecessary. 
  2. Notwithstanding the matters to which he had earlier referred, his Honour did not determine the matter on the basis that the mother’s proposed residential arrangements were other than satisfactory, despite anything which he may earlier have said to suggest otherwise. This challenge accordingly lacks substance. 

GROUND 11

  1. Ground 11 provided:

“That the learned Magistrate erred by failing to give adequate weight, or in the alternative, to consider the mother’s capacity to properly and adequately promote the relationship between the children and the father should she reside with the children [near Melbourne].”

  1. It emerged in the course of oral submissions on behalf of the wife that this ground involved two broad challenges, the first being confined to “weight arguments” as the ground suggests, the second being summarised in the submission that “the learned Federal Magistrate erred in failing to consider the alternatives to face-to-face contact in light of the ages of the children”. It is convenient to deal with the two challenges separately as different issues are raised by them. 
  2. The submission that:

“There was no suggestion throughout any of the evidence that should the children relocate with the mother, that she did not possess the necessary attributes to foster and promote the relationship between the children and the paternal family.”

is undoubtedly correct.

  1. It was further submitted that:

“There is no consideration by the learned Magistrate of this factor contained within the reasons for judgment and how this may reduce or lessen the impact of any “fracture or loss” the children may suffer from not having regular and frequent contact with the paternal family.”

and that:

“… given the lack of complaint raised by the father as to the facilitation of contact by the mother as at the date of the hearing, the learned Magistrate erred in finding, as he did at paragraph 115 of the judgment, that “… if the mother was enabled to relocate, the relationship of the children with their father would be seriously endangered and quite possible irreparably because of the infrequency of contact and at the very least compromised to a very significant degree. That risk is unwarranted and is to be avoided.”

  1. Finally it was submitted that:

“… the learned Magistrate was in error in finding that such contact as proposed by the mother “ …would be infrequent and in essence confined to probably four periods each year, each of about two weeks in duration.” Paragraph 100 of the judgment.

  1. As previously recorded, the learned Federal Magistrate gave detailed reasons for his finding that, by virtue of the financial position of each party, contact would, on the balance of probabilities, not be able to occur on more than four “periods each year”, these necessarily falling within school holidays.  The findings underpinning that conclusion were undoubtedly open to his Honour.  The reasoning process of the learned Federal Magistrate in relation to the adequacy of contact was based upon those findings.  None of his conclusions in that regard involved any criticism of the mother in terms of attitudes, intentions or bone fides.  The learned Federal Magistrate clearly accepted that the mother genuinely advanced the regime of contact set out in the Amended Application, and believed the implementation of such a regime to be within the capacity of the parties.  These parts of the ground are thus without merit. 
  2. It remains to consider the complaint that the learned Federal Magistrate erred in failing to consider the alternatives to face-to-face contact in light of the ages of the children.  In support of that the Court was referred to observations of the Full Court in Hatton v Tomlinson (unreported, Nicholson CJ, Kay & Chisholm JJ, 26 March 2004).  It was there said:

“The disadvantages are the loss of an opportunity of developing as meaningful a relationship with her father and grandparents as she might otherwise develop if she could see them on a regular basis.  These disadvantages, which should not be understated, can however be somewhat alleviated through the medium of modern technology.

The cost of telephone calls between Australia and the United States has dropped dramatically over the past few years.  In many cases it is now cheaper to phone a landline in America than it is to phone a mobile in Australia.  The Internet offers the opportunity for webcam and email communication at negligible expense.  Whilst we can empathise with the husband’s sentiments when he said in evidence that he did ”not fancy hugging a monitor” (transcript p 95) we do not necessarily agree with his subsequent observation that telephone contact and email contact is “only slightly better than useless”.

The technological advances of the past decade have been remarkable.  The communications revolution has created the capacity for cheap instantaneous worldwide video and sound linkages.  Of course they are no substitute for the joy of holding hands or hugging or cuddling or simply being together, but they do offer opportunities for developing and continuing relationships that were virtually impossible as recently as 10 years ago.” (Paragraphs 80, 81 and 82)

  1. The mother’s Amended Application, upon which it is clear she moved the Court, made no reference to alternatives to face-to-face contact apart from the telephone.  Submissions on her behalf by her then Counsel confirm that such was the case.  Counsel for the mother said:

“[COUNSEL FOR THE MOTHER]: Perhaps, your Honour, web cam might be the way to go.

FEDERAL MAGISTRATE: Well, there’s no proposal here, as I understand it, for contact by web cam.

[COUNSEL FOR THE MOTHER]: Well, your Honour, it is an issue that I’d wish to address on in that the father has the facilities and the ability to deal with web cam, as has the mother. I’ve made inquiry from the mother and she tells me that in one of the father’s regular overseas trips the situation has been that they were able to have this communication with web cam whilst he was away overseas.”

and subsequently said:

“[COUNSEL FOR THE MOTHER]: It is referred to, of course, by the mother in her affidavit, the father’s ability and skill with web cam. Your Honour, it was only as early as this year that your brother, Scarlett FM dealt with a case in which he utilised web cam with some strong recommendations.

FEDERAL MAGISTRATE: Yes. I’m familiar with that decision.”

  1. It is clear that the learned Federal Magistrate did not anywhere in his reasons discuss the possibility of “web contact” as an alternative to face-to-face contact.  This omission was said to be significant given that the offer of additional contact to the father at any time that he was in Victoria was referred to by his Honour (paragraph 68).  It was submitted on behalf of the mother that had the learned Federal Magistrate directed his mind to the prospect of web cam contact, he would not have concluded as he did.  Reliance was placed on the statements of the Full Court to which reference has been made and to the judgment of the Full Court in D and SV (2003) FLC 93-137. It was there said by the Full Court:

“Then, in AMS v AIF (1999) 199 CLR 160; (1999) FLC 92-852; (1999) 24 Fam LR 756, Kirby J, when speaking of relocation within Australia, said at CLR 224; FLC 86,050; Fam LR 806:

“192     …the attention of the decision-maker should ordinarily be to the possibility of formulating different arrangements for access and contact which would meet the child’s welfare…”

Recently in U v U (2002) FLC 93-112; (2002) 29 Fam LR 74 Gummow and Callinan JJ, with whom Gleeson CJ, McHugh and Hayne JJ agreed, said at FLC 89,089; Fam LR 92 (emphasis added):

“80.     We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. …But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child's best interests.”

. . .

It was essential that her Honour give consideration to how the best interests of the children could be advanced in this case.  This did not confine her Honour to the competing proposals of the parties.  Her Honour needed at least to turn her mind to whether alternate arrangements could be made to those being put forward by each of the parties that would meet all the criteria needed to determine what was best for these children.” (per Nicholson CJ, Kay & Monteith JJ , paragraphs 17-21)

  1. On behalf of the father it was submitted that the learned Federal Magistrate was entitled to rely upon the proposal which the mother set forth in her Amended Response, particularly as it was filed only a week before the hearing before the learned Federal Magistrate.  It was submitted that the submissions made on behalf of the mother did not change that position and that, even if the submissions had the potential to do so, the evidence before the learned Federal Magistrate was not such as would have resulted in his reaching a different conclusion. 
  2. Having regard to the authorities to which reference has been made, it could be suggested that the learned Federal Magistrate ought to have considered the prospect of web cam as an alternative to face-to-face contact if the children’s residence were to be relocated to Victoria.  The issue then becomes whether the failure to do so vitiates the exercise of discretion on the part of the learned Magistrate.  The only evidence before his Honour in relation to web cam was paragraph 53 of the affidavit of the mother sworn 8 April 2004.  That paragraph read:

“In the past I have known that [the father] has used the internet video link to maintain relationships with people overseas or in other parts of Australia. I would have no difficulty and would encourage [the father] and the children to maintain contact by video link each week and I would be happy to make whatever other arrangements necessary for the children to have contact with [the father].”

  1. This Court has not been referred to any evidence establishing that facilities of the kind needed for such contact were or would be available in the household of either parent, or that the cost of such facilities was within the capacity of either party, a not insignificant matter having regard to the evidence before the learned Federal Magistrate with respect to the financial circumstances of each party, or that any of the children had the experience or maturity to utilise such facilities in any event.  It cannot thus be seriously asserted that, having had regard to such evidence as the mother would have adduced, would have resulted in a different conclusion.
  2. The Court is accordingly not persuaded that the learned Federal Magistrate’s failure to consider “web cam contact” constitutes an error justifying this Court’s intervention. 

GROUND 12

  1. Ground 12 provided:

“That the learned Magistrate erred in finding that the mother would be able to make available to herself a support network over the course of time should she remain residing in the Newcastle area in circumstances where she had no family and/or friends in the area.”

  1. In support of this ground it was submitted that there was no issue “that the mother had no relatives in the local area”.  The learned Federal Magistrate made a finding in those terms.  It was further submitted that there was no issue “that the family had only commenced living in the local area in July or October 2001”.  The learned Federal Magistrate was in no doubt that such was the case. 
  2. Reference was then made to the learned Federal Magistrate’s conclusions with respect to the impact on the mother of being obliged to remain in the Newcastle area.  It is clear from the passages of his judgment, to which reference has previously been made, that the learned Federal Magistrate accurately recorded the history of the residence of the mother and children in the Newcastle area.  There was no evidence before him that the mother had experienced difficulty in any facet of her care of the children in that area during the period in which she and the children had been living there, notwithstanding the absence of support to which reference has been made and of which the learned Federal Magistrate was aware.  With respect, the learned Federal Magistrate clearly recognised the impact of his decision upon the mother but, as was open to him in this Court’s view, was not satisfied by the evidence before him, or anything emerging from that evidence in relation to the past, that the mother would be unable to cope with that outcome. 
  3. No aspect of the mother’s future residence in the Newcastle area has been shown to have been omitted from consideration by the learned Federal Magistrate.  It has not been demonstrated that his Honour erred in concluding as he did.  None of the findings of fact upon which that conclusion was based has been successfully challenged.  This complaint accordingly lacks merit.

GROUND 13

  1. Ground 13 provided:

“That the learned Magistrate erred by failing to give adequate weight to the change in the father’s circumstances following his marriage to his current partner and the impact that may have on the children.”

  1. It was submitted that:

“The learned Magistrate fails to consider the likely impact on the children of the father commencing to reside with his wife and not in the home of the paternal grandparents.”

And that:

“The learned Magistrate failed to consider the father’s evidence as to his employment and the hours associated in running his own business and how this impacts on his availability to care for the children during contact periods.”

  1. So far as the complaint with respect to the developing relationship between the father and Ms B is concerned, as the learned Federal Magistrate recorded, no one suggested anything adverse in the relationship between the father and Ms B or Ms B and the children.  The failure to adduce evidence must be looked at in context.  Where a matter is in issue, the failure to call admissible evidence from a witness able to testify with respect to that fact or circumstance is a matter which impacts upon the findings able to be made and inferences able to be drawn. Where however, as was the case with Ms B, nothing adverse is asserted, the failure of Ms B to give evidence is not a matter of significance. The learned Federal Magistrate clearly recognised this and explained, adequately in this Court’s view, why he concluded as he did in that regard. 
  2. The submission on behalf of the mother that:

“… the learned Magistrate felt that he was unable to make any findings regarding the relationship between Mr. T and the children when he was on affidavit and placed evidence before the Court.”

is not sustainable having regard to the terms of the learned Federal Magistrate’s findings.  The terms of paragraph 74 and 75 of his judgment leave no room for doubt in this regard. 

  1. Moreover, his Honour’s ultimate decision was not predicated upon there being anything unsatisfactory in the relationship between Mr T and the children or anything negative or positive in the relationship between the children and Ms B.  A balanced reading of his Honour’s judgment makes clear that he did not regard the children’s relationship with either Ms B or Mr T as superior to that of the other.
  2. No evidence to which this Court has been referred demonstrates either that the father would be less able to continue to have contact with the children were he to reside away from his parent’s home, or that his business commitments would impact upon his availability to care for the children during contact periods.  Nothing was submitted on behalf of the wife to the learned Federal Magistrate with respect to either of these matters.  On the evidence before him, for the learned Magistrate to have concluded as this complaint asserts would have been to speculate in ways not supported by the evidence.

CONCLUSION

  1. None of the grounds of appeal has been made out. The case before the learned Federal Magistrate was finely balanced.  The correct law was applied.  The findings of fact were made which were in every instance reasonably open to his Honour.  The inferences he drew and conclusions he reached in reliance upon that evidence have not been shown to fall outside the ambit of a reasonable exercise of discretion. 

  1. The dicta of Stephen J cited early in these reasons has particular application to this case.  Put simply, the case “could have gone either way” without error on the part of the learned Federal Magistrate. Indeed, had the mother succeeded before the learned Federal Magistrate, the father would have faced the difficulties which the mother has in this appeal.  Such is the nature of the exercise of discretion.  The appeal thus fails.

    THE FURTHER EVIDENCE APPLICATION

  2. In CDJ v VAJ (1998) 197 CLR 172 the majority, McHugh, Gummow and Callinan JJ, explained the operation of s 93A of the Act:

    “One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.” (at 201)

    Their Honours further said that:

    “… the operation of s 65D, which contemplates subsequent applications, has to be taken into account:

    "(1) In proceedings for a parenting order, the court may, subject to this Division, make such parenting order as it thinks proper.

    (2) Without limiting the generality of subsection (1) and subject to this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order."

    Applications for a variation of an order, rather than resort to s 93A(2), will generally be the preferred mode of procedure even where there has been a change of circumstances between the making of the order and the hearing of any appeal.” (at 204)

    1. The further evidence sought to be relied upon by the mother falls within two broad categories.  In part the further evidence relates to matters which the learned Federal Magistrate dealt with in his judgment on the evidence then presented, finding such evidence wanting.  The further evidence with respect to transportation is, with respect, not evidence which was not available at the time of trial but evidence which has now been sought to be advanced in the light of deficiencies in that regard at trial. Evidence in relation to travel arrangements and Aboriginality could have been adduced at trial.  It is difficult to resist the conclusion that such evidence has now been sought to be advanced in the light of the learned Federal Magistrate’s conclusions with respect to such matters.
    2. If admitted, the further evidence would not render the learned Federal Magistrate’s decision erroneous. On the evidence before him the learned Federal Magistrate concluded that the parties had no capacity, whatever the cost, to facilitate contact on more than “probably” four occasions a year.  It was the capacity to facilitate contact rather than its cost which was the significant issue, his Honour’s findings with respect to each party being based upon that party’s own financial evidence.
    3. Though tragic, the death of LD subsequent to the learned Federal Magistrate’s judgment does not render his Honour’s decision erroneous. Notwithstanding some apparent discussion which suggested that his Honour perceived the needs for contact of LD and the two older children to be potentially different, the reasoning of the learned Federal Magistrate proceeded on the basis that the needs of all three children were not so dissimilar as would render LD’s death a matter which would change his decision.  As such, that evidence ought not be admitted. 
    4. The balance of the further evidence of the mother and Mr T really relates to events subsequent to the decision of the learned Federal Magistrate. It has not been established that any of those matters, if accepted, would demonstrate that the decision of the learned Federal Magistrate was erroneous. It may be that the circumstances of the parties have changed sufficiently since his Honour’s decision as to warrant an application to vary his orders based upon such changed circumstances, but the further evidence sought to be adduced in this Court’s view ought not, having regard to the High Court’s statements with respect to the operation of s 93A, be admitted.

    CONCLUSION

    1. It follows that no ground of appeal having been made out and the further evidence application being refused, the appeal must be dismissed.

    COSTS

    1. The Court was requested to reserve costs and direct that written submissions be made in relation thereto.  The Court proposes so doing.

    ORDERS

    1.   That the appeal be dismissed.

    2.   That the costs of the appeal be reserved.

    3.   That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal within 21 days of the date hereof.

    4.   That the other party have a further 14 days in which to make written submissions in answer thereto.

    5.   That the first mentioned party have a further seven (7) days in which to make any written submissions in reply thereto.

    6.   That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

I certify that the preceding
132  paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A. Coleman
Associate
Date: 13/04/05

Key Legal Topics

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  • Family Law

  • Civil Procedure

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  • Appeal

  • Costs

  • Remedies

  • Procedural Fairness

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Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25
Gronow v Gronow [1979] HCA 63
Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25