Ember & Assadi - [2013] FamCAFC 107

FAMILY COURT OF AUSTRALIA

EMBER & ASSADI

[2013] FamCAFC 107

FAMILY LAW – APPEAL – CHILDREN – where the mother had moved with the children to Victoria and the father remained living in New South Wales – where the Federal Magistrate made orders providing, inter alia, that the children live with the mother and spend substantial and significant time with the father, and that the mother ensure the children’s permanent residence was in New South Wales within 8 weeks from the date of order – where the mother argued on appeal, relying on s 65DAA of the Family Law Act 1975 (Cth), that the Federal Magistrate failed to properly consider the reasonable practicability of these orders – where the mother argued there was insufficient evidence to allow the Federal Magistrate to make findings as to where the children, and necessarily the mother, could live and what financial support would be available to ensure that could happen – where the Full Court found it was not reasonably practicable, on the evidence before the Federal Magistrate, to put in place the order for substantial and significant time that his Honour did, given what it would require – appeal allowed and matter remitted to the Federal Circuit Court for rehearing.

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

AMS v AIF (1999) 199 CLR 160
Cales & Cales (2010) FLC 93-459
Kuru v New South Wales (2008) 236 CLR 1
MRR v GR (2010) 240 CLR 461
Sampson & Hartnett(No. 10) (2007) FLC 93-350
U & U (2002) 211 CLR 238

APPELLANT:

Ms Ember

RESPONDENT:

Mr Assadi

FILE NUMBER:

MLC

6354

2011

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

19 July 2013

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Finn, Strickland & Ainslie-Wallace JJ

HEARING DATE:

3 October 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

23 December 2011

LOWER COURT MNC:

[2011] FMCAfam 1260

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Portelli

SOLICITOR FOR THE APPELLANT:

Gleeson & Co

COUNSEL FOR THE RESPONDENT:

Ms Masood

SOLICITOR FOR THE RESPONDENT:

Fiona R McGregor

Orders

The appeal be allowed.
Orders 2, 3 and 6 made by Federal Magistrate Connolly (as he then was) on

23 December 2011 be set aside.
The proceedings in relation to where the children X Assadi and Y Assadi should live with the mother and what time they should spend with the father be remitted to the Federal Circuit Court for rehearing by a judge other than Judge Connolly.
Until further order by the Federal Circuit Court the father spend time with the said children in accordance with paragraphs 2 and 3 of the Orders made by Federal Magistrate Connolly (as he then was) on 15 March 2012.
There be no order as to costs.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant mother in respect to the costs incurred by the appellant mother in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect to the costs incurred by the respondent father in relation to the appeal.
The Court grants to the parties costs certificates pursuant to the provisions of

s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the parties in respect to such part as the Attorney-General considers appropriate of any costs incurred by the parties in relation to the new trial.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 6 of 2012
File Number: MLC 6354 of 2011

Ms Ember

Appellant

And

Mr Assadi

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed on 20 January 2012 Ms Ember (“the mother”) appeals against parenting orders made by Federal Magistrate Connolly (as he then was) on 23 December 2011. The respondent in the appeal is Mr Assadi (“the father”) and he opposes the appeal.
The parenting orders relate to the parties’ two children, X Assadi, born in 2008 and Y Assadi, born in 2009 (“the children”). In summary, the orders appealed against required the mother to move to New South Wales within eight weeks and to ensure the children’s permanent residence was in Sydney or Newcastle. The orders also provided for the father to spend time with the children each alternate weekend from 5pm Friday to 5pm Sunday and, in the event the mother resided in Sydney, from 11am to 4pm on the Wednesday immediately following the alternate weekend time and from 11am Wednesday to 11am Thursday in the off week, as well as time during school holidays and on special days and telephone communication every second day.
On appeal the mother seeks orders that she be permitted to reside in Melbourne in Victoria, that the children spend time with the father four times per year for a period of one week, and that the children communicate with the father by telephone or Skype three times per week.
In her Notice of Appeal the mother also seeks leave to appeal, however, as that is unnecessary we do not propose to address that application.
By letter dated 27 September 2012 the Court was advised the Independent Children’s Lawyer (“ICL”) did not intend to participate in the appeal hearing.

Background

The father was born overseas in 1981 and at the time of trial was 30 years of age. He migrated to Australia with his family in 1984 and became an Australian citizen in 1985. The husband is of the Islamic faith.
The mother was born in 1987 and at the time of trial was 24 years of age. During the parties’ relationship the mother converted to Islam but no longer subscribes to its beliefs.
The parties commenced their relationship in 2006 and went through an Islamic marriage ceremony in early 2007, but they never underwent a marriage ceremony according to Australian law. In the four years the parties resided together there were a number of short separations and the parties finally separated in October 2010.
During their relationship the parties lived in Sydney and Melbourne and at the time of separation were living in Newcastle. Upon separation the father moved to his parents’ home in Sydney and the mother continued to live in Newcastle. On 2 January 2011 the mother moved to Melbourne, indicating to the father that she was going for six months for a holiday and to visit her father.
Whilst the mother lived in Newcastle the father saw the children each week from Friday to Sunday, however, after the mother and children moved to Melbourne there were difficulties with the father spending regular time with the children. The children spent time with the father in Melbourne in January 2011 and in Sydney during May and June 2011. The father then asked the mother if the children could spend time with him for a special children’s birthday party between 22 June and 13 July 2011. The mother said she felt pressured but agreed on the condition the father signed a parenting plan. The father said he did not agree with the contents of the parenting plan but signed it because he wanted to see the children. The father then refused to return the children to the mother and she commenced proceedings in the Federal Magistrates Court (as it then was) on 18 July 2011.
Orders were made on 2 August 2011 for the appointment of an Independent Children’s Lawyer, the preparation of a family report, and for the children to live with the mother on an interim basis and spend time with the father on specified weekends in Melbourne. There was also an airport watchlist order put in place. As a result of these orders the children were returned to the mother on 7 August 2011, however, the father did not spend time with the children as provided in the orders due to his lack of financial capacity.
At the time of trial the father was working two days per week and living with his parents in Sydney, whilst the mother was working three hours per week and living in a two-bedroom government housing residence in Melbourne. Since separation the mother had commenced a relationship with Mr P, who was 34 years of age at the time of trial.
The matter came before the Federal Magistrate for final hearing on 14 and 15 November 2011 and his Honour made orders and delivered his reasons for judgment on 23 December 2011.
As a result of the mother failing to comply with the orders made for the filing of the appeal books by 22 May 2012 the appeal was deemed abandoned. On

22 June 2012 the mother applied to reinstate the appeal. That application in an appeal was heard on 2 August 2012 and on that day the appeal was reinstated and costs were reserved.

Reasons for judgment of the Federal Magistrate

The Federal Magistrate commenced his reasons by outlining each party’s application. In summary, the mother sought final orders that the children live with her in Melbourne, that the father spend time with the children twice monthly for up to three nights duration, and that the father communicate with the children by telephone and Skype no more than once each day. The mother later conceded it would also be appropriate for the children to spend holiday time with the father. Ultimately, the father concurred with the ICL’s proposal that the children live with the mother in Sydney and spend time with the father from 5pm Friday to 5pm Sunday and 11am to 4pm each Wednesday in one week and 11am Wednesday to 11am Thursday in the other week, as well as time on special days and holidays once the children commenced kindergarten/school. During the proceedings the father also agreed to pay the mother spousal maintenance in the amount of $110 per week from the date she relocated to Sydney.
After setting out the relevant law, his Honour turned to the issues in contention. First, the mother had made various allegations about family violence, although the father denied any physical violence. The Federal Magistrate was of the view the father’s behaviour, particularly post-separation, was harassing and controlling, but also noted the mother had been comfortable to stay in the same room as the father when he visited Melbourne in January 2011. Secondly, the parties disagreed about the circumstances surrounding the mother going to Melbourne. It was the father’s evidence that the mother told him she was going to visit her father for a six month holiday as her father had been unwell and he was going to help her set up an internet business. The Federal Magistrate found the mother’s evidence on this issue was “vague and inconsistent” both in terms of dates and her purpose for going to Melbourne. Her reasons for going to Melbourne seemed to be based on her chances of obtaining employment, the fact she regarded Melbourne as home and had lots of contacts there, and her ability to obtain cheaper accommodation there. His Honour noted that after nearly nine months of living in Melbourne the mother had obtained only three hours of employment per week, had not generated any income from her internet business, did not mention the names of any of her friends or contacts in Melbourne, and had obtained public housing accommodation.
The Federal Magistrate went on to set out the evidence of the family report writer, Ms B. In summary, the mother told Ms B she believed the father was uncommitted to parenting and disinterested in the children’s lives and, although she acknowledged the importance of the children maintaining a relationship with their father, the mother believed the onus was on the father to travel to Melbourne to spend time with the children and that, despite the increased distance and the reduced frequency of the visits, the children’s relationship with their father was unaffected. The mother also reported the father was extremist in his Islamic views and expressed concern that he would take the children out of Australia. The mother offered to introduce the children to the Muslim community in Melbourne. The father told Ms B the mother was a “good mother”, although she seemed more interested in developing her own social life than in parenting the children. He indicated the children enjoyed a loving relationship with their paternal family and that they would be well cared for by them. The father also indicated the mother enjoyed a positive relationship with the paternal family and that she would be welcome to stay with them and spend time with the children.
His Honour then set out Ms B’s observations of the children, who were too young to be formally interviewed. Ms B observed the children were “confident and robust in the company of their parents”, enjoyed “close and connected relationships” with both parents, and had a close and positive sibling relationship. Ms B was of the view both parents were appropriate, attentive and responsive in their interactions with the children, and more specifically that the father’s style of play with the children was positive, encouraging and interactive, and that the mother was supportive and encouraging of the children engaging with the father. However, Ms B also observed the children became distressed when transferring from the father to the mother and that neither parent seemed confident in helping the children to transfer. In particular, the eldest child became very distressed when the father was leaving to return to Sydney and, whilst both parents attempted to comfort the child, the observation was terminated because the children could not be soothed.
Next his Honour set out an extract from the family report containing

Ms B’s evaluations. Ms B was of the view that, during their relationship, both parents were involved in the care and upbringing of the children and recognised the value of the children having a relationship with each parent and that, while they were living in the same State post-separation, the parents cooperated and supported the children to spend time with each parent. However, mutual mistrust arose when the mother sought to relocate the children to Melbourne and the children’s family life since that time had been disrupted and disorganised. In particular, the move resulted in a significant reduction of the time the father spent with the children, which had negative impacts on their relationship. Ms B was of the view that to remove the children from the mother’s care (with whom they had formed a secure attachment relationship) at such a young age would compromise their emotional security, and that the children’s relationship with the father and paternal family would become distant and unfamiliar if they remained living in Melbourne. However, Ms B opined that a return to New South Wales would require further upheaval and thus, would only benefit the children if the mother was able to settle comfortably in New South Wales and the father was able to spend regular time with the children. In the event the mother remained living in Melbourne, Ms B was of the view the children’s time with the father should be promoted and prioritised, although given both parents’ financial constraints it was difficult to see how that could be implemented.
Ultimately, the family report writer recommended the parties have shared parental responsibility and the children live with the mother and spend as much time as possible with the father, with that time to be regular and frequent (although not necessarily lengthy in duration). Ms B recommended the mother be encouraged to return to live in New South Wales until the youngest child was three to four years of age, at which point a review of the children’s circumstances should occur if the mother still wished to relocate. In the event the mother and children remained living in Melbourne, Ms B recommended fortnightly time in Victoria or New South Wales, or at a minimum two nights on a monthly basis.
On the evidence before him the Federal Magistrate found it was in the children’s best interests to have a meaningful relationship with both parents and to spend time with both parents. His Honour noted the children’s relationship with the father and his family would continue to deteriorate if the children remained in Melbourne and that “the only way” they could spend substantial and significant time with the father was if the mother returned to live in New South Wales. In particular, the Federal Magistrate noted the mother had failed to “keep the children in touch with the Muslim community in Melbourne”, that being “an important aspect of the children’s cultural and religious heritage”.
Ultimately, the Federal Magistrate considered it was practicable for the mother to return to New South Wales as she would probably be able to obtain employment, the father would pay spousal maintenance, and the mother’s mother (who lived in Sydney) would also be able to assist on an interim basis.

His Honour proposed to give the mother eight weeks to move to Sydney or Newcastle and, in the event she moved to Syndey, proposed the children spend mid-week time with the father to allow him to be part of their weekday routine.

Orders made 23 December 2011

The Federal Magistrate made the following orders:
1.The parties have equal shared responsibility for the long term decisions affecting the children [X ASSADI] born … 2008 and [Y ASSADI] born … 2009 (“the children”).
2.The mother ensures that the children’s permanent residence is in Sydney or Newcastle, New South Wales.
3.The mother have 8 weeks from this day in which to effect the move to New South Wales.
4.The children live with the mother.
5.The mother have sole parental responsibility for the day to day decisions affecting the children.
6.The father spend time with the children as follows:
(a)from 5pm Friday to 5pm Sunday each alternate weekend;
(b)in the event that the mother resides in Sydney:
i.from 11am to 4pm on the Wednesday immediately following the alternate weekend time;
ii.from 11am Wednesday to 11am Thursday in the off week;
(c)by telephone every second day at 5pm;
(d)once the children have commenced kindergarten, then for one half of the three term holiday (and upon the children commencing school, then for one half of the school term holidays and one half of the long summer holidays);
(e)for a period of time on special days; and
(f)at other times as agreed between the parties.
7.The mother authorize any kindergarten or school attended by the children to provide the father with copies of all school reports, newsletters, school photo forms and information to which parents are usually entitled.
8.Each parent notify the other as soon as practicable of any serious illness, medical emergency or hospitalization of the children including details of the medical practitioner or hospital attended.
9.The parties each inform the other of any change of telephone number or residential address within 24 hours of such change occurring.
10.Pursuant to section 62B and 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

The mother appeals against Orders 2, 3 and 6.

Grounds of appeal

At the hearing of the appeal counsel for the mother sought leave to amend the grounds of appeal to only rely on Grounds 3 and 6, and to add a new ground. Counsel for the mother, without objection, prepared a document setting out the amended grounds of appeal, which became “Exhibit 1”. We made an order granting leave to substitute the grounds of appeal contained in the Notice of Appeal with the grounds of appeal as they appear in Exhibit 1.
The grounds of appeal as contained in Exhibit 1 are as follows:
1.That the Federal Magistrate erred in failing to properly consider the reasonable practicality of the Mother being required to relocate and live in Sydney of [sic] Newcastle, NSW.
2.That the Federal Magistrate failed to provide adequate reasons identifying the exceptional circumstances which require the mother to live with the children in Sydney or Newcastle, NSW.
3.That the Federal Magistrate erred by making an order beyond the power of the Family Law Act, 1975.

Discussion

Ground 1

The complaint here is that his Honour failed to properly consider the reasonable practicability of requiring the mother to relocate with the children to New South Wales, and s 65DAA of the Family Law Act 1975 (Cth) (“the Act”) is relied upon.
So far as is relevant s 65DAA provides as follows:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
Substantial and significant time
(2)      Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Note 1:The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.
Note 2:See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)      the time the child spends with the parent includes both:
(i)       days that fall on weekends and holidays; and
(ii)      days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)       the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)      how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)      such other matters as the court considers relevant.
Note:Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
…
The approach to be adopted in applying this section has been settled by the High Court in MRR v GR (2010) 240 CLR 461 as follows (at paragraph 13):
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
(Footnotes omitted)
Of course, here there was no suggestion of equal time, and the issue was substantial and significant time.
We first observe that the issue is not strictly whether the relocation is reasonably practicable, but whether equal time or substantial or significant time is reasonably practicable. However, plainly the argument of the mother here is centred around the factors that must be considered by the Court in considering whether it is reasonably practicable to put in place the proposed order as set out in s 65DAA(5).
The issue highlighted by the mother here was that there was insufficient evidence to allow the Federal Magistrate to make findings as to where the children, and necessarily the mother as well, could live, and what financial support would be available to ensure that that could happen.
The relevant paragraph of his Honour’s reasons for judgment is paragraph 25, but it is necessary to also recognise what his Honour said in paragraph 24, given that that provides the first step in his Honour’s reasoning. Those paragraphs provide as follows:
24.There is no doubt that the only way that these children will spend substantial and significant time with their father is if their mother returns to live in New South Wales. Further, it is clearly in the children’s best interests for the children to have a meaningful relationship with both parents. The children at this stage of their lives need to spend time with both parents. The mother’s move to Melbourne has meant that the children have had reduced access to their father, and this has resulted in a negative impact upon the relationship that the children have with him. As the counsellor indicates, if the mother continues to live in Melbourne it is difficult to see how the father can continue to have a meaningful relationship with the children. There is also no doubt that the close relationship that they have with the father’s family will deteriorate if the children remain in Melbourne. The mother has indicated on a number of occasions that she would keep the children in touch with the Muslim community in Melbourne, but has failed to so. This is an important aspect of the children’s cultural and religious heritage. While it might be said that the children have not expressed any views in this case, it is useful to read what His Honour Faulks DCJ said in paragraph 24 of Hamill & Hamill (2007) FamCA 1736 (5 December 2007) (‘Hamill’):
In this matter there are no views expressed by the children which would have an effect upon the determination I should make. I say that even taking account of the more extended meaning expressed in some cases of the “happiness” of the children to be involved in one arrangement or the other. It is clear from the family report the children enjoy a good relationship with each parent, and moreover, it is more likely than not that being separated from one, in this case if it were to be the father, would cause them anguish. To be separated from the person identified by the family consultant as their primary attachment, being the mother, would no doubt produce further distress.
25.It is equally important that the children continue to have close contact and a significant relationship with their mother, which will occur if she also returns to New South Wales. She has indicated that she would use her best endeavours to do so should the Court make orders to this effect. In my view, it is practicable for her to return to New South Wales. She says that she will probably be able to obtain employment. The father will pay spousal maintenance of $110.00 per week on the mother’s return, and the mother’s mother can certainly assist her on an interim basis. There is no apparent reason why Mr [P] cannot move with the mother, if he is committed to the relationship. It was also argued by Counsel for the mother that she would be very unhappy if she were forced to return to Sydney. I am not certain that is necessary [sic] the case, but even if it were, I am fortified in my view that the mother should return by what Faulks DCJ had to say in paragraph 81 of Hamill:
I believe in the circumstances of this matter that it is appropriate that the mother's desire to go to Brisbane should be sublimated to the interests of the children being able to have a more effective relationship with both of their parents (and for the other matters which I have outlined in more detail for my consideration of the factors relevant to the children's best interests under s.60CC). This is not to suggest that I want to in any way diminish the concerns I feel for the mother's wellbeing. It seems to me that she is by any measure an unhappy person, particularly in relation to a requirement she should stay in Canberra. But, in my opinion, her happiness is not a determinative factor.
(Original emphasis)
We now address the issues raised in turn.

Accommodation

In Melbourne the mother has Government housing available to her and she was looking for more permanent accommodation at the time of the trial. In Sydney (or Newcastle) the mother’s evidence was that she had no housing available to her; she understood that to obtain Government housing in New South Wales was “much harder” and she did not have any links to any support services there to assist her in securing such housing, and rental accommodation was far too expensive particularly given she would have no initial employment and would have to find employment.
The evidence of the father was also consistent with the mother having limited capacity to obtain accommodation in New South Wales.
As can be seen, in paragraph 25 of his reasons for judgment the Federal Magistrate suggested that the mother’s mother could assist her on an interim basis, but that was not the evidence before his Honour. The mother’s mother did not give evidence, and all the mother said in cross-examination was that the mother lives in Newcastle (and not Sydney), and that she is “currently moving house and she does not have the ability for [her] to stay with her” (transcript

14 November 2011, p. 22, lines 31-32).
In paragraph 25 of his reasons for judgment the Federal Magistrate also seemed to take comfort in the mother saying in evidence that she would use her “best endeavours” to move to Sydney if the children were ordered to return there. In fact, what the mother said, on two occasions in cross-examination, was that she “would make every effort” to return to Sydney (transcript 14 November 2011, p. 30, line 28 and p. 32, line 26), but that error does not alter the thrust of what

his Honour said. What is important though is that his Honour indicated during final addresses that he did not know that he really understood what the mother was saying, yet his Honour was prepared to rely on that in finding that it was “practicable” for the mother to return to New South Wales.

Financial support

His Honour clearly proceeded on the basis that the father would pay “spousal maintenance of $110.00 per week on the mother’s return”. However,

his Honour made no order to this effect and there is of course no requirement for the father to actually do that.
This issue arose as a result of the father through his counsel offering to pay rental assistance to the mother if she moved to Sydney, and it seems that the figure of $110 was fixed upon because it was the amount of subsidised rent that the mother was paying for her Government housing in Melbourne. Apart from the fact that there was no evidence that she could obtain rental accommodation for $110 per week in Sydney, there was serious doubt on the evidence that the father could pay this amount. The father’s evidence was that he would “find the $110 out of [his] welfare payments” (transcript 14 November 2011, p. 44, lines 22-23). Notably, as was pointed out by the mother’s counsel, it was not in fact clear from the father’s evidence that he was working at the time of the trial.
Other factors arising under s 65DAA(5) that the mother says the Federal Magistrate failed to take into account include the impact on the children of requiring them to move given the lack of accommodation and the lack of financial support outlined above. We accept that his Honour failed to address these matters in his reasons for judgment.
Similarly, there is the alleged failure by the Federal Magistrate to “consider the practical and economic aspects associated with the Mother residing in [New South Wales]”. In this regard, the mother, in her written submissions, referred to and relied on what the Full Court said in Sampson & Hartnett(No. 10) (2007) FLC 93-350 at paragraphs 74 and 75:
74.… Where the court may be ordering the return of a parent to a location in which they have lived for some time, but from which they have moved without the consent of the other party and in circumstances in which existing orders or arrangements for the other parent to spend time with the children will be rendered ineffective, there will usually be arrangements in the original location for the practicalities of life, such as accommodation, schooling and employment if relevant, which can readily be identified by the Court. If there are not, that fact would normally be a relevant consideration.
75.To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstance of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.
It is apparent that his Honour failed to adequately take into account that the evidence before him did not permit him to find that “the practicalities of life equally or sufficiently exist in the place to which the party is required to move”.
Three final comments can be made. First, although the dilemma as to what orders should be put in place was brought about by the mother initially moving to Melbourne and doing so deceitfully, that can no longer be the primary concern. The fact is the mother and the children are now in Melbourne and the father is in New South Wales; the question then is what orders should be made to ensure that the children enjoy a meaningful relationship with both parents.
Secondly, it is apparent that his Honour failed to consider alternative orders in the context of what was reasonably practicable. There was of course the mother’s proposal, which his Honour did consider, that the father spend time with the children in Melbourne up to twice each month, and on one occasion the father be able to take the children back to Sydney. Further, the mother proposed that she take the children to Sydney to spend time with their father on four occasions each year. However, there may have been the opportunity for more time by utilising the proposed payment by the father to the mother of $110 per week for airfares instead of rent. There was also the option of the father moving to Melbourne as he did with the family in 2008. The father was asked about that in cross-examination, and his stated reason for not doing that was he needed to be near his family, which was hardly a persuasive response.
As is plain, his Honour considered that the only outcome should be to require the children to return to New South Wales, and for them to live with their mother which necessarily entailed her moving as well. Yet, as we have explored, his Honour erred in arriving at that conclusion. We also note that

his Honour gave no consideration to further time by utilising the offer of $110 per week, or to the return of the father to Melbourne, yet they were clearly available options.
Thirdly, although it was not a ground of appeal, the Federal Magistrate does not appear to have addressed in his reasons for judgment the issue of what was in the best interests of the children (having regard to the considerations of

s 60CC), yet that is necessary under s 65DAA of the Act. This omission reinforces our decision to allow the appeal on the basis of the Federal Magistrate’s approach to that section.
Apart from these three issues which have their own force, it is quite apparent on the evidence before his Honour that it was not reasonably practicable to put in place the order for substantial and significant time that his Honour did, given what that would require. Thus, there is merit in this ground of appeal.
This is sufficient to dispose of this appeal because it was common ground that if this ground was successful the proceedings would need to be remitted to the Federal Circuit Court for rehearing. However, it is still appropriate to address the remaining grounds of appeal given that they were fully argued (Kuru v New South Wales (2008) 236 CLR 1 at paragraph 12).

Ground 2

This is a challenge that is misconceived. Contrary to the assertion contained in this Ground, there is no requirement in the legislation or that can be gleaned from the authorities that to succeed in an application which entails relocation, and in particular to require a party to move with the children, “exceptional circumstances” need to be established.
Certainly there is an onus on the applicant (the respondent here) to demonstrate that the relocation in the context of the orders being made is in the best interests of the children and reasonably practicable, but that is the extent of it.
In oral submissions it was put by the father’s counsel that the requirement of “exceptional circumstances” emanates from the Full Court decision of Cales & Cales (2010) FLC 93-459. However, that is in fact not the case; the phrase “exceptional circumstances” was merely part of a ground of appeal.
Pared back then, this complaint could be treated as one of lack of reasons as to why the orders were made. In particular, the mother’s counsel in oral submissions submitted that his Honour’s reasons in paragraph 25 were inadequate. However, in our view it is possible to discern the path by which his Honour arrived at his conclusion; it is just that the evidence was simply not there to allow his Honour to reach that conclusion, and that is what Ground 1 raised.
Thus, there is no merit in this ground of appeal.

Ground 3

This Ground asserts that under the Act the Court does not have the power to make an order requiring a party to relocate, as opposed to an order restraining a party from moving. The latter order is clearly able to be made at least under

s 68B of the Act, and perhaps under other sections but, to repeat, it is submitted that there is no section which permits the Court to make the former order. However, even if there was, and it has been suggested that s 65D and even

s 68B of the Act do provide that power, it is argued that they “should be read down to conform to The Australian Constitution in relation to issues of freedom of movement between States”.
We observe that if valid, it is difficult to see how that argument does not also apply to those sections of the Act that allow a Court to restrain a party from moving interstate. The fact is of course that the High Court has considered the impact of s 92 of the Constitution in the context of relocation interstate, and on the basis that the impediment to freedom of movement is reasonably necessary to carry out the objects of Part VII of the Act the result has been not to read down the relevant sections of the Act, but to highlight that freedom of movement is an important factor to take into account (e.g., see AMS v AIF (1999) 199 CLR 160).
As was said by Kirby J in AMS v AIF at paragraph 191:
… Parents enjoy as much freedom as is compatible with their obligations with regard to the child.
And further, Gummow and Callinan JJ said this in U & U (2002) 211 CLR 238 at paragraph 89:
… 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.
As to the power to make an order that a party relocate, there is no doubt that the Court has proceeded on the basis that it has the power, and as we have indicated, s 65D and s 68B of the Act have been variously cited as providing that power. The difficulty suggested by the mother’s counsel is that there has not been any positive pronouncement that the power exists. For example, after reviewing the authorities, it was said by the majority of the Full Court in Sampson & Hartnett(No. 10) at paragraph 33:
In our view, there is nothing in the authorities that establishes that there is no power within the Family Law Act to directly restrain a parent from relocation or to directly require relocation. To the contrary, while there has been no decision expressly on point, there are some statements that support the existence of such a power.
And further at paragraph 57:
If it is within power to order a person not to relocate, it would be surprising if it was not within power to order a person to relocate, although one would imagine the exercises of power to the latter effect would be even more rare, because the effect is more drastic.
In Sampson & Hartnett (No. 10) the majority carefully considered each section of the Act that could possibly provide the power, namely, s 64B, s 68B,

s 114(3) and s 65D, and also referred to the objects of Part VII of the Act set out in s 60B. The majority then said this:
45.As seen, the sections are replete with references to parental obligations and duties. The first object of s 60B is to ensure “…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…”.
46.These and other provisions support the notion that, the parties having surrendered the resolution of dispute about parental arrangements to the court, the court has the function of crafting orders that ensure the best parenting arrangement is put in place and that parents “fulfil their duties, and meet their responsibilities…”. It is entirely consistent with that function that parenting orders, and orders that support those orders, such as injunctions, be directed to the parents and place obligations upon them.
(Original emphasis)
Ultimately, the majority concluded as follows:
58.However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i)the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii)in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.
59.The prospect of ordering a parent to relocate and in effect “parent” in a situation not of that parent’s choosing, legitimately gives rise to concerns, particularly in respect of enforcement. What if the parent, in response to such an order, simply hands the child to the other parent, perhaps in circumstances such as in the instant case, where for whatever reason, there is not a well-established relationship between the child and the other parent? Will the primary parent be punished? The fact that such vexing questions arise does not mean that the power does not exist and may be rightly exercised at times. Enforcement is discretionary and may be rare in the situation exemplified. On the other hand, enforcement may be appropriate if a primary parent ordered to relocate, simply did not do so.
We consider that these pronouncements are as definitive as they need to be to be relied on as identifying the source of power, although we consider that it may well be more appropriate to invoke s 65D and s 68B than s 114(3). In any event, what is overlooked in this appeal is that there was no order made by the Federal Magistrate specifically requiring the mother to relocate. The relevant orders are Orders 2, 3 and 4, and plainly they were made in the context of where the children should live, not the parents. They require that the mother ensure the children relocate to New South Wales within eight weeks, and that the children live with the mother. Understandably these orders would not be workable if the mother did not move, but it is readily apparent that they do not direct her to move. In that format at least we are satisfied that the Court has the power under s 65D and s 68B of the Act to make those orders.
We find no merit in this ground of appeal.

Conclusion

Having found merit in Ground 1 the appeal must be allowed and Orders 2, 3 and 6 made by the Federal Magistrate set aside. The question then is whether we are able to re-exercise the discretion or whether the proceedings need to be remitted to the Federal Circuit Court for rehearing. As was conceded by both counsel, if the appeal was successful we had no choice other than to remit the proceedings for rehearing, and that is what we propose to do.
We note that on 15 March 2012 the Federal Magistrate granted a stay of Orders 2 and 6 made by him “pending the outcome of the appeal”, and his Honour then made orders until further order for the children to spend time with the father. As discussed with counsel at the hearing of the appeal we need to continue those interim orders until the rehearing before the Federal Circuit Court takes place.

Costs

At the conclusion of the hearing we received submissions from counsel as to costs depending on the outcome of the appeal.
If the appeal succeeded on a question of law, as has turned out to be the case, both parties sought costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). We do not consider that an order for costs should be made, and in the circumstances we propose to order costs certificates.
We also note that the costs of and incidental to the application by the mother to reinstate the appeal were reserved, and it falls to us to address that issue. The mother did not pursue an application for costs but the father did. However, as with the costs of the appeal we do not consider that an order for costs should be made. Both parties are legally aided and neither are in a financial position to meet a costs order.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland & Ainslie-Wallace JJ) delivered on 19 July 2013.

Associate:

Date: 19 July 2013