Edhouse & Edhouse

[2022] FedCFamC1A 84

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Edhouse & Edhouse [2022] FedCFamC1A 84

Appeal from:

Edhouse & Edhouse [2021] FedCFamC1F 79

Appeal number(s):

NAA 40 of 2021

File number(s):

SYC 4161 of 2021

Judgment of:

MCCLELLAND DCJ, TREE & CHRISTIE JJ

Date of judgment:

2 June 2022

Catchwords:

FAMILY LAW – APPEAL – PARENTING – Where the appeal arises from the orders for an application for review of a senior judicial registrar’s decision – Where the primary judge made an order for sole parental responsibility – Whether the primary judge erred in making an order for sole parental responsibility when neither party pressed for an order of parental responsibility – Whether the primary judge failed to afford procedural fairness – Whether the primary judge erred when determining the time spent between the appellant and the child – Whether the primary judge erred in determining the respective day care enrolments for the child – Appeal dismissed – Appellant to pay the respondent’s costs in a fixed sum.  

Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CC, 60CG(1)(b), 61DA, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17

Cases cited:

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 350

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Bilson & Geer (Costs) [2017] FamCAFC 7

BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450; [2016] FCA 802

Fitzgerald v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33

House v The King (1936) 55 CLR 499; [1936] HCA 40

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Maldera & Orbel (2014) FLC 93-602; [2014] FamCAFC 135

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Rigby & Olsen [2021] FedCFamC1A 46

Number of paragraphs:

58

Date of hearing:

3 May 2022

Place:

Sydney

Counsel for the Appellant:

Dr Barnett

Solicitor for the Appellant:

Gayle Meredith & Associates

Counsel for the Respondent:

Mr Wong

Solicitor for the Respondent:

Horton Rhodes

ORDERS

SYC 4161 of 2021
NAA 40 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR EDHOUSE

Appellant

AND:

MS EDHOUSE

Respondent

ORDER MADE BY:	MCCLELLAND DCJ, TREE & CHRISTIE JJ
DATE OF ORDER:	2 JUNE 2022

THE COURT ORDERS THAT:

1.The Amended Notice of Appeal filed 17 February 2022 is dismissed.

2.The appellant is to pay the costs of the respondent in the sum of $14,665.74 within 14 days.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Edhouse & Edhouse has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

MCCLELLAND DCJ, TREE & CHRISTIE JJ:

INTRODUCTION

1. By Amended Notice of Appeal filed on 17 February 2022, the father, Mr Edhouse (“the appellant”), appeals from interim parenting orders made on 22 September 2021 by a Justice of Division 1 of the Federal Circuit and Family Court of Australia (“the primary judge”). Relevant to this appeal, in conducting a review of a decision made by a senior judicial registrar, the primary judge made orders for the mother, Ms Edhouse (“the respondent”), to have sole parental responsibility for the parties’ only child, Child X, born in 2019 (“the child”). The orders also provided for the respondent to take all reasonable steps to ensure that the child spends time with the appellant each week from 5.00 pm Saturday until 7.00 pm Monday. 

2. For reasons which we explain, we have dismissed the appeal with costs. 

   BACKGROUND

3. The appellant was born in 1968 and is presently 54 years of age. The respondent was born in 1983 and is presently 39 years of age. 

4. The parties commenced cohabitation in July 2014 and married in August 2015. They separated in 2021. Their child is now three years old. 

5. Following separation, the parties agreed upon an arrangement whereby the child spent three nights of each week with the appellant. In May 2021, the respondent unilaterally ceased facilitating time between the child and the appellant. 

6. On 4 June 2021, the appellant filed an Initiating Application in which he sought both final and interim parenting orders. Relevantly for the purpose of these proceedings, that application included an application for sole parental responsibility on a final and interim basis. 

7. On 28 June 2021, a Response was filed by the respondent joining issue with the parenting relief sought by the appellant and also raising financial issues. The Response included an application for final parenting orders that proposed the respondent have sole parental responsibility for the child. That order was not, however, sought on an interim basis.

8. Following a hearing on 6 July 2021, on 25 August 2021 a senior judicial registrar entered orders which included for the child to live with the respondent and to spend time with the appellant on an alternative week basis, with week one being from 10.00 am or the conclusion of pre-school on Friday until 5.00 pm on Sunday and, in week two, from 10.00 am or the conclusion of pre-school on Wednesday until 6.00 pm Thursday. The orders provided for that time to progressively increase such that, as and from 1 January 2022, during the second week, the child’s time would be extended from the Thursday evening until 10.00 am on Friday. No order was made in respect to parental responsibility.

9. On 14 September 2021, the appellant filed an Application for Review, in which he sought the following orders:

   1.That pending further order, [the child] live with the [appellant].

   2.That pending further order, the child spend time with the [respondent] in each week from the beginning of daycare/preschool/school on Wednesday (or 7:30am if [the child] is not at daycare/preschool/school) until the conclusion of daycare/preschool/school on Friday (or 5pm if [the child] is not at daycare/preschool/school).

   3.That pending further order, the parties do all acts and things necessary to ensure the child attend day care at [C Centre] at [Suburb D] on Mondays and Tuesdays and such other days that she is enrolled to attend by the [appellant] from time to time, and pre-school at [E School] on Fridays and such other days as recommended by [the child’s] educators at [E School] to prepare her for commencing kindergarten year in 2023.

   THE PRIMARY JUDGE’S ORDERS

10. On 22 September 2021, the primary judge made the following orders:

    1.Orders 2 and 3 made by the Senior Registrar on 25 August 2021 are discharged.

    2.The [respondent] shall have sole parental responsibility for [the child].

    3.The child shall live with the [respondent].

    4.The parties shall take all reasonable steps to ensure that the child spends time with the [appellant] each week from 5:00 pm Saturday until 7:00 pm Monday.

    5.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

    6.        Otherwise:

    a.The Application for Review filed on 14 September 2021 is dismissed; and

    b.The Application in a Proceeding filed on 21 September 2021 is dismissed.

    GROUNDS OF APPEAL

11. By an Amended Notice of Appeal filed on 17 February 2022, the appellant appealed on the following grounds:

    1.That His Honour erred in:

    1.1.refusing the application for an adjournment of the hearing; and

    1.2.refusing to permit the appellant to rely upon an affidavit of the appellant filed 2 July 2021;

    and in failing to provide sufficient reasons for each determination.

    2.That His Honour erred in entering an order for sole parental responsibility in favour of the respondent, including by:

    2.1.failing to afford procedural fairness to the appellant in respect of such order;

    2.2.finding, to the extent that the Court did so, that such an order was necessary and/or in the interests of the child;

    2.3.failing to provide sufficient reasons for the entry of such an order;

    and, consequently, in the application and consideration of the matters otherwise arising for consideration pursuant to Part VII of the Family Law Act 1975 in determining the application.

    3.That His Honour erred in determining the time to be spent between the appellant and the child, including by:

    3.1.determining such issue on the basis of that which was proposed by the appellant in respect of the respondent; and,

    3.2.failing to provide sufficient reasons for such determination.

    4.That His Honour erred in:

    4.1.determining that the appellant’s application in respect of daycare/preschool enrolment could not be appropriately determined; and

    4.2.failing to provide sufficient reasons for such determination.

12. At the hearing of the appeal, the appellant, appropriately, in our view, abandoned Ground 1.

    CONSIDERATION

13. The orders which are the subject of appeal were the result of the exercise of a discretion. In those circumstances, it is necessary for an appellant to establish grounds that fall within the principles identified by the High Court in House v The King (1936) 55 CLR 499 at 505 and Norbis v Norbis (1986) 161 CLR 513 at 539–540, that is, appellate intervention may be required where the primary judge:

    (a)Acts upon a wrong principle; or

    (b)Allows extraneous or irrelevant matters to guide or affect the decision; or

    (c)Mistakes the facts; or

    (d)Fails to take into account some material consideration; or

    (e)Makes a decision that, upon the particular facts, is unreasonable or plainly unjust.

14. An appeal may also succeed on the basis of an inadequacy of reasons. In that respect, in Rigby & Olsen [2021] FedCFamC1A 46, the Full Court recently stated at [38] that:

    The requirement for the giving of reasons is a fundamental requirement of the exercise of the judicial function, as it both demonstrates that justice has been done, and enables the proper challenge of a decision. The content required varies depending upon the circumstances of the case, but is that which makes apparent how the decision was arrived at (see Bennett and Bennett (1991) FLC 92-191 at 78,266). It is not required to give reasons regarding every argument, nor to perform a microscopic analysis "if, in all the circumstances, it is clear that the trial judge has considered and evaluated the relevant evidence, taken into account all relevant factors… (A v J (1995) FLC 92-619 at 82,230).

    Grounds 2 and 4

15. The appellant addressed Grounds 2 and 4 together. Those grounds challenge the decision by the primary judge to grant sole parental responsibility to the respondent, including with respect to determining which day care/preschool the child attends.

    Failing to afford procedural fairness to the appellant in respect of such order

16. The first element of Ground 2 contends that the primary judge failed to afford the parties procedural fairness; firstly, by failing to provide notice that he was contemplating making an order for parental responsibility and secondly, in failing to provide notice that he was contemplating making an order giving sole parental responsibility to the respondent rather than a more limited responsibility that addressed only the issue concerning the child’s day care and preschool arrangements.

17. What constitutes procedural fairness is to be judged by the nature of the decision that is being made and the context in which it is made. There is a flexible and chameleon-like quality to the principle depending upon those circumstances (Brennan J in Kioa v West (1985) 159 CLR 550 at 612).

18. We do not accept that there was a denial of procedural fairness in this case. Proposed Order 3 as set out in the appellant’s Application for Review not only proposes that the child attend a specific day care on specific days, but that the child attends on “such other days that she is enrolled to attend by the [appellant] from time to time.”

19. The primary judge noted that the proposed order “seeks to impinge upon the parental responsibility that both parties presently hold”.[1] In response, senior counsel for the appellant agreed that what the minute of order proposed “is an exercise of parental responsibility”.[2]

    [1] Transcript 22 September 2021, p.3 lines 11–12.

    [2] Transcript 22 September 2021, p.3 lines 14–15.

20. Upon the basis of the exchange between the primary judge and senior counsel for the appellant, there is, with respect, no reasonable basis for the appellant to contend that the primary judge did not communicate that he intended to consider the issue of parental responsibility. Further, there was no reasonable basis to assume that his Honour’s consideration of the issue would only be limited to the issue of the child’s day care and preschool.

21. The exchange between the primary judge and senior counsel for the appellant occurred in the context where the primary judge was, by legislative direction, obliged to consider the issue of parental responsibility. Specifically, s 61DA(3) of the Family Law Act 1975 (Cth) (“the Act”) provides that the presumption of equal shared parental responsibility applies when the Court is making an interim order “unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.”

22. Further, as noted by the primary judge at [4] in his reasons for judgment, an Application for Review of a registrar’s decision is in the nature of a “hearing de novo of the parties’ respective underlying parenting applications.” It is relevant that the appellant’s underlying parenting application had included an application for sole parental responsibility as an interim order.

23. The parties’ awareness that the primary judge was considering the issue of parental responsibility is further confirmed by the fact that submissions were made by counsel for the respondent that his Honour should not make an order for parental responsibility at the interim stage of the proceedings.[3] The fact that senior counsel for the appellant, in reply to the respondent’s submissions, did not respond to the issue of parental responsibility is not an indicator of the respondent’s lack of awareness that the issue was being considered as one that required determination by the primary judge. 

    Finding, to the extent that the Court did so, that such an order was necessary and/or in the interests of the child

    [3] Transcript 22 September 2021, p.39 lines 29–31.

24. The second aspect of Ground 2 considered that the order for the respondent to have sole parental responsibility was neither “necessary [nor] in the interests of the child.” This ground is closely related to the third aspect of Ground 2, which stated that the primary judge failed to provide adequate reasons for making the order that the respondent have sole parental responsibility.

25. In determining whether such an order was in the best interests of the child, it is contended that the primary judge was obliged to consider and address the principles underlying the objects to Pt VII of the Act as set out in s 60B. Relevantly, those objects and principles include:

    (1)The objects of this Part are to ensure that the best interest of children are met by:

    (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

    …

    (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

    (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

    (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests)

    …

    (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

    (d) parents should agree about the future parenting of their children; …

26. The Court’s discretion must, of course, be exercised having regard to those objects and principles. However, as observed in Maldera & Orbel (2014) FLC 93-602, while objects clauses, such as those contained in s 60B, are relevant to the construction and application of the legislative provisions set out in Pt VII, they are not to be used to cut down the plain and unambiguous meaning of a specific statutory provision if that meaning is clear. As noted by the primary judge, the Court may determine that the presumption that a child’s best interests are served by an order allocating equal shared parental responsibility may be rebutted by the considerations set out in s 61DA of the Act, including s 61DA(2) which relevantly provides:

    (2)  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

    (a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

    (b)  family violence.

27. In applying that provision, the primary judge held at [52] that the presumption of equal shared parental responsibility as set out in s 61DA(1) was rebutted as a result of the parties’ cross allegations that the other has engaged in acts of family violence.

28. That conclusion was well within the reasonable exercise of discretion on the part of the primary judge. This is particularly so in the context where s 60CG(1)(b) places a mandatory obligation on the Court, “to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, [to] ensure that the order … does not expose a person to an unacceptable risk of family violence.” While the primary judge was unable to make findings as to the veracity of each of the parties’ allegations, those allegations were nonetheless serious with the evidence presented that each of the parties had, on occasions, sought the assistance of the New South Wales Police Force.

29. It cannot be forgotten that, as at the time of the interim hearing before the primary judge, both parents had filed applications for final parenting relief seeking that an order for sole parental responsibility be made in his or her favour. This is a powerful statement to the Court that neither party has confidence that equal shared parental responsibility, joint and several parental responsibility or a partial sharing of parental responsibility can and will function in the best interests of their child.

30. The appellant submitted that the primary judge was in error in allocating sole parental responsibility to the respondent in circumstances where the only issue of parental responsibility identified by the documents concerned child care. Further, it was contended that by allocating all aspects of parental responsibility to one parent (the respondent), either (a) she could abuse that responsibility or (b) the child would not have the benefit of the appellant’s input. The first of the submissions is easily answered by the lack of evidence that the respondent would make long term decisions contrary to the child’s interest. The second may also be answered by recognising that the order for parental responsibility must function in the best interests of the subject child, rather than in the interests of either parent, and from time to time that will mean that one person is not involved in long term decision making, although notably here only on an interim basis.

    Failing to provide sufficient reasons for the entry of such an order

1. The third aspect of Ground 2 overlaps with Ground 4. Those grounds are that the primary judge erred in determining that the dispute between the parties concerning the child’s day care/preschool enrolment was one that could only be resolved by way of the allocation of parental responsibility and, as a related matter, the finding by the primary judge that he was unable to determine the issue on its merits. Both Grounds 2 and 4 also contended that the primary judge failed to provide adequate reasons for his determination in respect to those matters. 

2. In view of the overlap, we will deal with those grounds together.

3. It is well established that the adequacy of the reasons will depend upon the circumstances of the case (Bennett and Bennett (1991) FLC 92-191 at 78,266). This includes circumstances where, as in this case, the primary judge delivered ex tempore reasons in the context of an application for interim orders. As relevantly noted by Flick J in BKL15 v Minister for Immigration and Border Protection (2016) 241 FCR 450 at 455 [16]:

   … The judicial context in which decisions are made must necessarily be recognised – including (for example) a recognition whether a decision is of an interlocutory or final character and whether ex tempore reasons have been provided. … When an ex tempore judgment is delivered, however, it “should not be picked over” and “appropriate allowance should be given for the pressures under which judges … are placed by the volume of cases coming before them”…

4. The primary judge’s reasons for allocating sole parental responsibility to the respondent were adequately explained. In exercising a discretionary judgment, the primary judge was not required to detail each factor which he found to be relevant or irrelevant (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 (“Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd”) at 386). It was noted by the primary judge that the parties were in dispute as to what day care centre the child should attend. His Honour was cognisant of the fact that the parties required that aspect of their dispute to be adjudicated (at [53]). The primary judge noted however, that, in the context of the interim proceedings and on the basis of the evidence presented, he was not in a position to determine the merits of the parties’ respective contentions in respect to that issue (at [54]).

5. In those circumstances, the primary judge stated at [54] that “the only sensible way to resolve the dispute is by giving one party or the other parental responsibility for the child on an interim basis”. To focus upon the expression “only sensible way” as suggesting that the primary judge excluded from his consideration other options is to adopt an overly pernickety approach, having regard to the totality of his Honour’s reasons.

6. It is clear that the primary judge:

   (a)identified the subject matter of the dispute;

   (b)advised the parties that he considered that the nature of that dispute raised the issue of parental responsibility;

   (c)explained that the evidence presented was not such that he was in a position to determine the merits of the parties’ respective contentions in respect to the appropriate day care centre;

   (d)noted that a resolution of the issue was required in the best interests of the child;

   (e)determined that an appropriate resolution of the dispute, in the best interests of the child, was for one parent to be allocated parental responsibility; and

   (f)explained why, in circumstances where he chose the respondent as the child’s primary residential carer, that responsibility should be allocated to the respondent.

7. It was unnecessary for the primary judge to explain why he did not adopt alternative proposals from a series of potentially cascading options from parental responsibility down to responsibility only in respect to the issue of day care/preschool.

8. A trial judge exercising discretion is not required “to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear” (Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd at 386). In this case, it can reasonably be inferred that the risk of family violence including, as alleged by the wife, “gas lighting” and, by both parties, other controlling and coercive behaviour, would be as much a factor in unhealthy and dysfunctional communication between the parties regarding the child’s day care as it would in respect to parenting matters generally.

9. For these reasons, we are of the opinion that both Grounds 2 and 4 lack merit.

   Ground 3

10. Ground 3.1 contends that the primary judge erred in determining the spend time arrangements for the child on the basis “of that which was proposed by the appellant in respect of the respondent”. That ground relates to [57] of the reasons for judgment, where the primary judge stated:

    That brings me to the question of what time the child should spend with the [appellant]. In my view, the child should spend two days per week with the [appellant], that being the proposal he made for the [respondent] in reverse.

11. This argument is also without merit. It fails to recognise that the primary judge clearly explained, by reference to the relevant considerations set out in s 60CC of the Act, why he made the orders that he did in respect to both where the child would live and the amount of time that she would spend with the appellant.

12. His Honour acknowledged the guidance provided by the Full Court in Goode & Goode (2006) FLC 93-286 at 80,903 [81]–[82] as to the appropriate pathway to follow in considering an application for interim parenting orders.

13. After identifying the competing proposals of the parties, the primary judge spent quite some time in discussion with counsel for each of the parties with a view to identifying the issues in dispute in the proceedings. After identifying those issues, his Honour adjourned the proceedings until later in the day, at which time the parties were invited to address the primary judge in respect to those issues.

14. The agreed or uncontested relevant facts and inferences that could be drawn from those were identified by the primary judge to be the following:

    (a)Both parties agreed that it was in the child’s interest to have a meaningful relationship with both parents.

    (b)Both parties made detailed allegations against the other that they had engaged in acts of family violence, including acts which resulted in each of the parties, respectively, seeking police assistance.

    (c)Neither party had alleged an act of overt family violence being perpetrated by the other party for approximately six months prior to the September hearing before the primary judge.

    (d)Despite alleging that the respondent had engaged in acts of family violence, the appellant did not allege that the child had suffered, or was at risk of suffering, either psychological or physical harm as result of family violence. 

    (e)There were no allegations of abuse or neglect of the child by either party. 

    (f)The respondent has been the primary carer of the child since the time of the parties’ separation in 2021.

    (g)From the time of separation until May 2021, a consensual arrangement was in place between the parties whereby the child spent four nights per week with the respondent and three nights with the appellant.

    (h)In May 2021, the respondent unilaterally changed that consensual arrangement.

    (i)While diagnosing the respondent as suffering from mental health issues for which she is receiving ongoing care, the respondent’s treating psychiatrist has not diagnosed the respondent as being “mentally ill” and he was of the view that the respondent’s parenting capacity has not been impeded by mental illness. 

    (j)In rejecting the appellant’s contention that the respondent’s parenting capacity had been adversely impacted by mental illness, the primary judge stated at [45]:

    … On the evidence before me, his assumptions are misplaced and I accept the submission made on behalf of the [respondent] that there is no evidence which would reasonably allow any nexus to be drawn between the [respondent’s] managed psychological condition and her current capacity to care for the child. There is no evidence the child is deleteriously affected by her residence with the [respondent].

    (k)The appellant is a busy and competent healthcare professional and the appellant acknowledged that he would obtain the assistance of a nanny in caring for the child. The primary judge further noted that implicit in the appellant’s proposal for the child to live primarily with him, but to attend a day care close to his place of employment, was that the appellant would rely upon the child attending day care on some of the weekdays when he would be at work. 

    (l)The respondent is not currently in the workforce and, as a result, has a greater availability to provide primary care for the child.

15. Referring to Banks & Banks (2015) FLC 93-637 at [47]–[50], the primary judge appropriately focused upon those s 60CC considerations within the Act which were relevant to the issues to be determined in the proceedings and noted that “[n]ot every s 60CC factor need be discussed in that process” (at [30]).

16. In terms of s 60CC(2), the primary judge noted that both parties recognised the desirability of the child having a meaningful relationship with both of the parents. He further noted that, while there was a live issue regarding the parties’ respective allegations of family violence, neither party alleged that the child was at risk of family violence in either of the parties’ households.

17. The primary judge addressed the additional relevant s 60CC(3) considerations at [39]–[51] of his reasons. While reference was not made to the specific statutory provisions, it is clear that his Honour addressed:

    ·The immaturity of the child who is just three years of age (s 60CC(3)(g)).

    ·The nature of the child’s relationship with each of the child’s parents (s 60CC(3)(b)), noting his Honour’s conclusion that the respondent has been the child’s primary carer.

    ·The extent to which each of the parents has been able to take the opportunity to spend time with the child (s 60CC(3)(c)), noting his Honour’s conclusion that the respondent has a greater capacity to spend time with the child in circumstances where she is not engaged in the full-time workforce.

    ·The likely effect of any changes in the child’s circumstances (s 60CC(3)(d)) in the context of his Honour’s rejection of the appellant’s proposal for there to be a change of the child’s residence, in circumstances where the respondent has been the child’s primary carer. 

    ·The capacity of each parent to provide for the needs of the child (s 60CC(3)(f)), noting his Honour’s rejection, in the context of the interim hearing, of the appellant’s contention that the respondent’s parenting capacity had been detrimentally impacted by mental health concerns.

    ·The potential impact of family violence (s 60CC(3)(j)), noting his Honour’s conclusion that while he was not, in the context of interim proceedings, in a position to assess the parties’ cross allegations of the other perpetrating family violence, neither party contended that the child was at risk in the care of the other parent as a result of family violence. 

18. Having regard to the totality of his reasons for judgment, it is clear that the primary judge did not make a decision as to the amount of time the child would spend with the appellant simply on the basis that the outcome was the reverse of the appellant’s proposal. Reference to the appellant’s proposal was nonetheless quite appropriate in circumstances where, by necessary inference, the appellant was of the view that the child spending two nights per week with the other parent was adequate to ensure the child had a meaningful relationship with that parent.

19. The reasons of the primary judge for rejecting the appellant’s proposal and why his Honour instead made an order for the child to spend two days per week are clear. It was unnecessary for the primary judge to explain why he did not make orders which provided for the child to spend three, four, five or a greater number of days with the appellant. 

20. Accordingly, for these reasons, Ground 3 is also without merit.

    COSTS

21. In this matter, the respondent sought an order for costs in the event of the appellant being unsuccessful. The issue of costs is to be determined in accordance with s 117 of the Act, which relevantly provides as follows:

    (1)Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.

    (2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

    (2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:

    (a)       the financial circumstances of each of the parties to the proceedings;

    (b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

    (c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

    (d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

    (e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;

    (f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

    (g)       such other matters as the court considers relevant.

    …

22. There need only be one justifying circumstance to found an order for costs (Fitzgerald v Fish (2005) 33 Fam LR 123). In this case, it is relevant that the appellant has been wholly unsuccessful in the appeal (s 117(2A)(e)). The respondent has thereby been put to expense.

23. In terms of s 117(2A)(g) of the Act, it is also relevant that the subject matter of the appeal were interim parenting orders. The parties were well aware that the hearing was an abridged process, where there are constraints on a trial judge making findings of fact and where the role of the trial judge is to make such orders, as best that she or he can within those constraints, that are in the best interests of the child pending more detailed consideration at final hearing.

24. There are no other factors set out in s 117(2A) of the Act that mitigate against a costs order being made against the appellant. In particular, in terms of s 117(2A)(a), it is noted that the appellant is a successful healthcare professional and had the capacity to brief senior counsel for the interlocutory hearing.

25. For these reasons, we are satisfied that an order for costs should be made in favour of the respondent. The question becomes in what amount.

26. Rule 12.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) permits the Court to order costs in a specific amount. The power to do so is to “avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation” (Graham & Squibb (2019) FLC 93-892 at 78,858 [92] quoting Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120).

27. The respondent seeks party/party costs up to and including the hearing of the appeal in the sum of $14,665.74. The costs have been itemised and we are satisfied that they are logical, fair and reasonable in terms of the authorities considered and principles adumbrated in Bilson & Geer (Costs) [2017] FamCAFC 7 at [40]–[49].

28. Accordingly, there will be an order for costs in favour of the respondent in the sum of $14,665.74.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland, and Justices Tree & Christie.

Associate:

Dated:       2 June 2022