FABER & MADINA - [2010] FamCAFC 224

FAMILY COURT OF AUSTRALIA

FABER & MADINA

[2010] FamCAFC 224

FAMILY LAW - APPEAL – PARENTING – Whether the basis on which the Federal Magistrate found the presumption of equal shared parental responsibility under s 61DA of the Family Law Act 1975 (Cth) was rebutted was in error – Whether the Federal Magistrate failed to give adequate reasons when determining to make an order for equal shared parental responsibility – When Federal Magistrate had regard to matters under s 60CC of the Family Law Act 1975 (Cth) – Reasons adequate – No appealable error established.

FAMILY LAW - APPEAL – PARENTING – Whether the Federal Magistrate erred in finding that it was not in the child’s best interest to spend equal time or substantial and significant time with the father – Whether the Federal Magistrate failed to properly apply s 65DAA of the Family Law Act 1975 (Cth) – Whether findings relied on to support equal share parental responsibility order inconsistent with findings rejecting equal share time orders – Where no inconsistency found – Reasons adequate – No appealable error established.

FAMILY LAW - APPEAL – PARENTING – Whether the Federal Magistrate made factual findings without any or any sufficient evidential basis – Where evidence sufficient – No error in factual findings established.

FAMILY LAW - APPEAL – COSTS – Father wholly unsuccessful in appeal – Father in stronger financial position – Mother in receipt of grant of legal aid – Grant of legal aid not determinative of costs application – Father to pay mother’s costs of and incidental to the appeal.

Family Law Act 1975 (Cth), ss 60CA, 60CC, 61DA, 64B(2), 65D, 65DAA, 117(1)

Chappell & Chappell (2008) FLC 93-382
Goode & Goode (2006) FLC 93-286
Marvel & Marvel (No 2) (2010) 240 FLR 367; (2010) 43 Fam LR 348
MRR v GR (2010) 240 CLR 461

APPELLANT:

Mr Faber

RESPONDENT:

Ms Madina

FILE NUMBER:

CSC

365

2009

APPEAL NUMBER:

2010

DATE DELIVERED:

11 November 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Faulks DCJ, Boland & O’Ryan JJ

HEARING DATE:

3 June 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

18 February 2010

LOWER COURT MNC:

[2010] FMCAfam 74

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Page SC

SOLICITOR FOR THE APPELLANT:

Cope Family Law

COUNSEL FOR THE RESPONDENT:

Ms McDiarmid

SOLICITOR FOR THE RESPONDENT:

Legal Aid Commission (Qld)

Orders

The appeal is dismissed.
The father pay the mother’s costs of and incidental to the appeal as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004 (Cth).

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 43 of 2010
File Number: CSC 365 of 2009

Mr Faber

Appellant

And

Ms Madina

Respondent

REASONS FOR JUDGMENT

Introduction

The child is the only child of Mr Faber and Ms Madina. He is presently three years old. The parents lived together during 2007 and separated while living in the same home in R, on the North Queensland coast, in September 2008. They never married. When the parents physically separated the mother moved from R to N, a distance of approximately 95kms.
Before Federal Magistrate Willis the father sought a number of parenting orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) about the child and, in particular, sought that, once he was permanently residing in R, the child should live in R on a “week about” basis with each of the parties. That primary proposal of the father effectively required the mother to move from N back to R.
On 18 February 2010 Federal Magistrate Willis made a number of parenting orders including an order that the child live with the mother, and that she be permitted to reside with the child in the N area. The Federal Magistrate also made orders about the time the father should spend with the child and communication with him. The orders included a provision that, until the child commenced school, if the father was living and working in R, he should spend three weekends out of four with the father. This is the father’s appeal against those orders.
The gravamen of the father’s appeal is that the Federal Magistrate erred by failing to give adequate reasons why she determined not to make an order for the child to spend equal time, or if not equal time, substantial and significant time with the father. Linked to this complaint is the assertion that the Federal Magistrate, having determined she should make an order for equal shared parental responsibility, failed to apply or properly apply the provision of s 65DAA of the Act.
Other complaints raised in the Notice of Appeal are directed to asserted errors by the Federal Magistrate in finding:
·the father displayed a lack of insight into the mother’s role as primary caregiver of the child; and
·the father had not demonstrated an ability to promote the child’s relationship with the mother;
without the necessary evidentiary basis for such findings.
It is also asserted that the basis on which the Federal Magistrate found the presumption of equal shared parental responsibility was not rebutted was in error.
The father sought the appeal should be allowed and the matter be reheard by a Federal Magistrate other than Federal Magistrate Willis. The mother resisted the appeal.
As will become apparent from the discussion later in these reasons there were unusual factors which the Federal Magistrate was required to consider. At the date of the trial the father was employed by a mining company. He was working in shifts of block periods for two weeks overseas, and then had one week “off” which he generally spent in R and lived in a property he owned there.
The mother, prior to the hearing, had moved to N where she had previously lived for some periods and had strong connections with her Indigenous Australian family members. At first she lived with her mother, but by the time of the trial she had obtained a lease of a home. She was living in that home with the child and her eight year old child of a prior relationship. She was engaged in full-time home duties and parenting of the two children.

Background

The relevant background emerges from the Federal Magistrate’s reasons and the appeal book and is not controversial.
The father was born in 1971 and was aged 38 years at date of the hearing. At the time of the hearing the father was employed in a specialist role with a mining company and, as we have already explained, was working overseas on a “fly in fly out” contract basis, which involved him working for two weeks overseas and having one non-working week in R. The father had an employment contract which was to expire in December 2009. He asserted he would then seek full-time employment in R.
The mother, who identifies as an Indigenous Australian, was born in 1972. She was aged 37 years at the date of the hearing. The maternal grandmother is indigenous and is part of the […] Clan, the traditional owners of the land in the N area. The maternal grandfather is of Spanish background.
The father described himself as “first generation Australian”. He is of European and Papua New Guinean background.
The child was born in 2007. At the time of the hearing before the Federal Magistrate the child was just over two years old.
The mother has a daughter from a previous relationship (“L”). She was eight years of age at the time of the hearing. It was asserted by the mother that she was not seeing her father because he was an off shore fisherman who had a drug addiction.
The mother had suffered from anxiety since the birth of L, and was taking medication for this condition.
The parties agreed that they lived in a de facto relationship from early 2007 until September 2008 when they separated under one roof. The parties physically separated in late January 2009 when the mother left the family home which was owned by the father and moved, with the child and L, to N to live with the maternal grandparents.
After separation the father remained living in the family home. Subsequent to moving to N, the mother obtained what the Federal Magistrate described as low cost rental accommodation, a three bedroom home with a fully fenced yard in which she was residing with both children at the date of the hearing.
The father filed his initiating application on 12 June 2009. No copy of the initiating application is in the appeal book. However, the Family Consultant noted in his report that in the application the father sought time with the child during those times he was present in R, for the child to be returned to live in the R area and also a Recovery Order returning the child to his care in the event the mother failed to return the child to R. The father also sought that should he reside permanently in R, the child live with the parties on a “week-about shared arrangement”.
On 25 June 2009 Coker FM made interim parenting orders. Willis FM found that there was no evidence of any breach of the interim orders (paragraph 101), and that in accordance with those orders the child had spent time with the father during the father’s rostered third week off for block periods of up to six days.
The father filed an amended initiating application in the Federal Magistrates Court on 3 November 2009. In this amended application the father sought orders for equal shared parental responsibility, that the mother return the child to live in the “[R] region”, that while the father was not permanently residing in R, the child live with the father during the time he was “present in [R]” from 9.00 am on the day after his arrival in R until 5.00 pm on the day prior to his departure, and at all other times the child live with the mother. He also sought orders up to four weeks “block” time to be spent with him each year as well as special occasion times.
During the course of the hearing, at the request of the Federal Magistrate, the father’s counsel tendered a document entitled “Proposed order for the applicant father”. In that document the father sought orders for equal shared parental responsibility, and until 2013 that:
(a)the mother return the child to live in the [R] region before either 31 January 2010 or 31 March 2010;
(b)until 31 January 2009 [semble 2010] the child spend time with him from 9.00 am on the day after his arrival in [R] until 5.00 pm the day prior to his departure, as well as a two week block from 14 December 2009.
From 31 January 2009 [semble 2010] the father proposed:
(c)that the child live with the father and mother on a week about shared arrangement commencing and concluded at 10.00 am each Saturday.
In the alternative, the father sought orders that, once the child commenced school in 2013, if the mother lived in R, the child live in a week about shared parenting arrangement with changeovers occurring on a Friday afternoon during school terms, and for one half of the school holidays. In the event that, in 2012, the mother remained living in N, he sought orders that the child live with him and spend three weekends out of each four weekends with the mother, and that the child live with the mother for the whole of the Easter school holidays and one half of all other school holidays.
The mother filed an amended response on 30 October 2009. In her amended response the mother sought that, in the event the father was living in R or N, the child spend time with the father on three weekends out of four and (on seven days notice to the mother) on the father’s rostered days off from work. In the event that the father was not living and working in R or N, the mother sought that the child spend time with the father for the whole period the father is in R. The mother also sought orders in relation to special occasions, communication and other issues.
The proceedings were heard on 17 and 18 November 2009 and the Federal Magistrate delivered reasons and made the orders the subject of this appeal on 18 February 2010.
We pause here to observe that the Federal Magistrate’s reasons were published prior to the publication of reasons by the High Court in MRR v GR (2010) 240 CLR 461.

The grounds of appeal

In his Notice of Appeal filed 17 March 2010, the father relied on five grounds of appeal. In his written summary of argument, senior counsel for the father dealt with grounds 1, 4 and 5 when addressing the complaints in respect of the Federal Magistrate’s determination about s 61DA (the rebuttable presumption of equal shared parental responsibility) and the asserted errors in respect of the application of s 65DAA.
Thereafter the written summary addressed grounds 2 and 3 which were directed principally to the discrete issue of the Federal Magistrate’s findings about a trip on which the father took the child to Sydney.
We propose to consider the grounds in the same order as argued both orally and in the written submissions of senior counsel for the father. We will first consider ground 4, then deal with grounds 1 and 5 together, and then discuss grounds 2 and 3.

The equal shared parental responsibility ground

Order 3 of the orders made by the Federal Magistrate provides as follows:
That the parents have equal shared parental responsibility for the major long term issues of the child including but not limited to; education, religious and cultural upbringing, health, surname and any changes to the child’s living arrangement that make it significantly more difficult for the child to spend time with either of the parents.
Ground 4 of the Notice of Appeal is pleaded as follows:
That in assessing that the orders made by her were in the best interests of the child, the Federal Magistrate erred in that she failed to have regard to the fact that the finding that the presumption of equal shared parental responsibility should not be rebutted was dependent upon a finding that such determination was in the best interests of the child.

The Federal Magistrate’s discussion of equal shared parental responsibility

The Federal Magistrate explained the law to be applied in determining the parenting application before her at paragraphs 56 to 61 of her reasons for judgment. At paragraphs 57 and 58, her Honour recorded:
57.When I determine the best interests of [the child] I must consider the primary and additional considerations set out in s 60CC, noting that if the presumption for equal parental responsibility applies, I must have reference to s65DAA (5) which canvasses issues of reasonable practicality.
58.The parents in this matter agree that they should equally share the parental responsibility for the children. Once such an Order is made, the legislative pathway requires that I consider the child spending equal time with each parent and if equal time is not in the best interests of the child then I must consider significant and substantial time.
The Federal Magistrate then, having made some observations about the parties as witnesses and discussing the report and oral evidence of the Family Consultant, considered the competing proposals by reference to matters under s 60CC(2) and (3).
At the conclusion of that exercise, under the heading “Equal Shared Parental Responsibility – Presumption”, at paragraphs 167 and 168 the Federal Magistrate set out her conclusions on the topic of equal shared parental responsibility as follows:
167.Having considered and evaluated each of the s 60CC factors that are relevant, I have concluded that there are no factors of abuse or family violence that would displace the presumption. In relation to family violence that has occurred between the parties in the past, whilst I do not ignore these incidents, I do not consider that at this stage in their separated relationship that the events would displace the presumption of equal shared parental responsibility. I note also that each of the parties seeks an Order for equal shared parental responsibility and I have included this in my consideration, along with the other matters referred to in S 60CC in coming to my view.
168.I intend to order that the mother and father have equal shared parental responsibility. (our emphasis)
In his written submissions, senior counsel for the father submitted as follows:
There is, in the appellant’s submission, a misunderstanding based upon the wording of s65DA(1) [semble s 61DA(1)] and s65DAA(1). It is submitted that the presumption of equal shared parental responsibility needs application only in the process of the making of a parenting order. Nothing in that section requires a Court to include in an order a provision for equal shared parental responsibility whether or not the presumption has been rebutted on the basis set out in s65DA(2). (submissions, p 2, paragraph 4)
Senior counsel went on to assert that if an order is to be made that the parties have equal shared parental responsibility:
… then it is incumbent upon the decision-maker to provide adequate reasons for that provision. The presumption itself does not provide that reason. Likewise in this case, the fact that each of the parties seeks that order is not a reason in itself. (submissions, p 2, paragraph 6)
At paragraph 8 of his submissions, senior counsel said:
The first ground of appeal is therefore based upon an assumption that the provision in the order of equal shared parental responsibility for this child was properly exercised.
We find this last submission somewhat confusing. As we understand senior counsel for the father’s argument, he asserted error by the Federal Magistrate in failing to give reasons why she thought it appropriate to make an order for equal shared parental responsibility. This was notwithstanding that the father sought such an order, and then based his challenge in ground 1, on the Federal Magistrate’s consideration of s 65DAA, which section became the subject of mandatory consideration once the Federal Magistrate determined to make, as she was asked to do, an order for equal shared parental responsibility.
In paragraphs 7 and 8 of her submissions the mother’s counsel took issue with the father’s submissions on equal shared parental responsibility as follows:
7.Although the learned Federal Magistrate has given such reasons[3] it is submitted that the decision-maker is not required to give reasons for applying a statutory presumption. The reasons given relied upon a consideration of the s60CC factors and the fact that each party sought an order for equal shared parental responsibility. The court gave reasons for not rebutting the presumption. It is respectfully submitted that course was entirely appropriate.
8.The respondent contends that the presumption in s61DA was properly applied by including an order for equal shared parental responsibility for this child. (mother’s submissions, p 3)
[3] Reasons for judgment, para 167 (Appeal Book vol 1, page 68).

The law

Before commencing our discussion of this topic it is appropriate that we refer to the relevant statutory provisions. Section 65D gives a court the requisite power to make a parenting order. Section 60CA provides in determining whether to make a particular parenting order, a court must regard the best interests of the child is the paramount consideration. Section 64B(2) sets out the matters a parenting order may deal with, and includes provision for making an order for the allocation of parental responsibility. Section 64B(2) provides as follows:
(2) A parenting order may deal with one or more of the following:
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e) the communication a child is to have with another person or other persons;
(f) maintenance of a child;
(g) the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h) the process to be used for resolving disputes about the terms or operation of the order;
(i) any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).

Section 61DA, the section the subject of this ground of appeal, provides as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(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.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
As highlighted by senior counsel for the father if an order has been made for equal shared parental responsibility, or is to be made, then the application of s 65DAA is triggered. Section 65DAA provides as follows:
Equal time
(1) 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 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.
Substantial and significant time
(2) 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; and
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.
(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.
We accept that s 61DA does not, in its terms, prescribe the making of an order for equal shared parental responsibility. However, in Marvel & Marvel (No 2) (2010) 240 FLR 367; (2010) 43 Fam LR 348 the Full Court considered, without authoritatively deciding, the question of whether, if the presumption in s 61DA is not rebutted, the section implies by the nature of that presumption that an order should be made.
In Marvel the Full Court discussed this issue at paragraphs 91 to 99. At paragraphs 99 & 104 the Full Court said:
99. Section 65D(1) gives the Court, subject to the presumption of equal shared parental responsibility, the power to make such parenting order as it thinks proper.
104. As we did not have the benefit of any extensive argument before us on this topic it is inappropriate we determine this issue. It seems to us, as presently advised, that the implication of the legislation, having regard to the provisions of ss 61C, 61D, 61DA, 65D(1) and 65DAA is that if the presumption applies, an order for equal shared parental responsibility will generally be made, thus displacing s 61C and triggering consideration of the provisions of s 65DAA. That is, of course, in an interim matter subject to the exception contained s 61DA(3) and the qualification we have expressed in respect of s 65DAC.

Discussion

We have already set out paragraphs 167 and 168 of the Federal Magistrate’s reasons. We consider on a fair reading of those paragraphs Willis FM found that the presumption was not rebutted. Significantly, the Federal Magistrate, in addition to recording that the parties each sought an order for parental responsibility, made it clear that she had, prior to determining to make such an order, regard to her earlier discussion of matters under s 60CC in respect of the child’s best interests. It was on this basis the Federal Magistrate determined it was appropriate to make an order for equal shared parental responsibility.
Although the Federal Magistrate’s reasons are brief, we are satisfied that she gave proper consideration to the best interests of the child prior to making the order and no appealable error is made out. Ground 4 is without merit.

Asserted error by the federal magistrate in determining that it was not in the child’s best interests to spend equal time or substantial and significant time with the father

The essential challenge to these grounds as developed by senior counsel for the father before us was that the Federal Magistrate had failed to give adequate reasons as to why it was not appropriate for the child to spend equal, or substantial or significant, time with the father.
The father’s senior counsel argued that it was inconsistent for the Federal Magistrate having found the presumption of equal shared parental responsibility as being in the child’s best interests that it was not in the child’s best interests there be a time regime of equal time or substantial and significant time spent with the father.

The relevant grounds

Grounds 1 and 5 provide as follows:
1.That in determining that it was not in the best interests of the child to spend equal time or significant and substantial time with the father the Federal Magistrate erred in that she:
(a)failed to give any or any adequate reasons for that determination;
(b)failed to identify the findings made by her in weighing up the considerations required to be made under section 60CC which might have led her to a conclusion that equal time or significant and substantial time was not in the child’s best interests;
(c)failed to have any regard to the matters set out in section 65DAA(3) which might have constituted significant and substantial time which in the circumstances of these proceedings were not in the child’s best interests.
5.That having made the determination that equal shared responsibility was in the best interests of the child, the Federal Magistrate erred in that she failed to apply or to apply properly the provisions of section 65DAA.

The Federal Magistrate’s consideration of s 65DAA

Before turning to the Federal Magistrate’s specific consideration of relevant matters under s 65DAA it is important we note the following matters were considered and findings were made by the Federal Magistrate:
·the orders the father sought were to cover the scenario of whether the father was working away from R and that the mother, for reasons of convenience, should be ordered to return to R (paragraph 47);
·none of the father’s proposals involved him living in N (paragraph 50);
·the parties’ evidence and their demeanour and that where the evidence was in conflict that she preferred the evidence of the mother (paragraph 72);
·the primary considerations under s 60CC(2) (paragraphs 82 to 86);
·each of the relevant factors under s 60CC(3) (the additional considerations) (paragraphs 87 to 166).
The Federal Magistrate turned, at paragraph 170, to commence her consideration as to whether an equal time arrangement or a significant and substantial time arrangement was in the child’s best interests and whether such an arrangement was “reasonably practical”. The Federal Magistrate recorded that the travelling time between R and N would involve the child “necessarily … travelling twice a week for the 90 minute journey”. The Federal Magistrate also noted the difficulties presented if the child was enrolled in “different kindergartens, play gyms, swimming classes, pre-schools and other activities if either parent wished to have him attend such activities in their home base”.
The Federal Magistrate considered the basis the father said he could not move to N and although rejecting that basis, the Federal Magistrate accepted that he would not move to N.
At paragraph 172 of her reasons, the Federal Magistrate dealt with the mother’s evidence that she had “practical support on a day to day basis from her family and friends in [N]”, and that she had “better financial security with the ability to rent a house of a standard she could not afford in [R]”. She also noted that the mother’s elder child was “settled into her school”. The Federal Magistrate also explained that the mother wished “to have the [sic] [the child] exposed to the benefits of growing up in an area where his maternal grandmother is a traditional land owner and he is exposed in a meaningful way to his culture”.
At paragraph 173, the Federal Magistrate found that the father’s proposal of a week on/week off living arrangement would involve the child spending “considerably less time with his primary attachment figure”, and if the child was with the father, part of each day would be spent with the child in the care of a third party because of the father’s work commitments. The Federal Magistrate also noted the father conceded that the best arrangement for the child would be for the child to be with his mother, rather than with a third party as a result of his work commitments.
At paragraph 174 of her reasons, the Federal Magistrate discussed the communication difficulties between the parties recording that the Family Consultant’s evidence was the parties had an ability to communicate with each other in a business-like manner, but the Federal Magistrate went on to explain that had not always been the case. The Federal Magistrate concluded her discussion on this topic finding:
… I have no confidence in the parties’ ability to communicate about the variety of issues that will arise week in week out if [the child] is moving between the two households on such a regular basis.
The Federal Magistrate then went on to deal with the uncertainty about the father’s proposal to live and obtain work in R noting he had not obtained any work in R at the date of the trial, and the changes he proposed were all untested.
The Federal Magistrate then recorded that the father, in his oral evidence, had said his sister had volunteered to care for the child on a full-time basis, but this offer only came forward the week before the trial.
At paragraph 177, the Federal Magistrate noted:
It seems to me that the father’s idea to seek a shared residence order to come into effect now, as opposed to when [the child] starts commences [sic] school, it [sic] was not his intention when he filed his material on 3 November 2009. His affidavit material and his advice to Mr Ritchie indicate his wish to keep the current arrangements in place until [the child] starts school in 2013 and retain the current arrangements of working overseas and spending time with [the child] on his rostered days off.
Having referred to the father’s change of position and the fact that on the second day of the trial, at her request, a document was tendered setting out the orders sought by the father as a result of his oral evidence, the Federal Magistrate concluded at paragraph 179:
… All of these inconsistencies and the casual attitude of the father with regard to the day care arrangements for [the child], increase my impression that the father’s plans to live and work in [R] in 2010 are uncertain.
At paragraphs 180 to 193, the Federal Magistrate considered and made findings leading to her ultimate orders.
At paragraph 180, the Federal Magistrate expressed her concern about aspects of the father’s capacity to parent and his willingness to promote the child’s relationship with the mother. The Federal Magistrate went on to find, in paragraph 181, that she was not satisfied the parties had the ability to “effectively co-parent harmoniously in an equal shared care arrangement”.
At paragraph 183, the Federal Magistrate found that the father’s proposal that the mother move to R so that he could spend week on/week off with the child held “little benefit for [the child]”. The Federal Magistrate noted such arrangement would mean the child spending time in day-care or in the care of a third person five days a week from early in the morning, around 7.00 am, until 4.30 pm in the afternoon. The Federal Magistrate found the advantages for the child living with the father were outweighed by the advantages of remaining living with his mother and sister and being cared for by the mother.
The Federal Magistrate also found the father’s proposal would involve the mother giving up her family support and affordable housing. The Federal Magistrate said, at paragraph 183:
… The mother is clearly in the weaker financial position and I have no doubt that her family support in [N] is important in the mother’s ability to continue her role as primary carer for [the child]. The mother has chosen to be a full time mother. The father has a career path, he is continuing on with his part time degree for his future advancement and has achieved highly developed work skills. I consider his proposals to live and work in [R] is uncertain.
At paragraph 184, the Federal Magistrate found that if the child remained living in N he would have the opportunity of his “childhood enriched by the experience of living on his maternal grandmother’s traditional lands”.
At paragraphs 185 to 188, the Federal Magistrate said:
185.On weighing up all of the s 60CC considerations referred to elsewhere in these reasons and [the child’s] right to have a meaningful relationship with his father, I do not consider that it is in [the child’s] best interests to spend equal shared time with the father or spend significant and substantial time with the father.
186.I consider that [the child’s] best interests are served by him remaining living with his mother in [N] and spending time with his father as proposed by the Mother.
187.The father seeks an Order requiring the mother to move to [R], but says he is not moving to [N]. The reason that the father seeks an Order for the mother to live in [R] is largely to do with the inconvenience for him of travelling to [N]. Other reasons relate to the father’s inability to engage in play group or the child’s activities if they occur in [N]. I do not consider that reasons exist to make coercive orders requiring the mother to relocate to live in [R]. I have decided that a shared care arrangement is not in [the child’s] best interests.
188.I accept that as a single mother of two children, the emotional support and assistance the mother receives from her family in [N] is a significant factor for her overall happiness. I am mindful also of the mother’s anxiety condition when considering her overall sense of happiness. There was no challenge to the mother’s belief that the level of housing she has in [N] is a financial advantage. I have doubts about the father’s certainty in living and working in [R]. I consider that there are compelling reasons for the mother to remain in [N] that outweigh any advantages to [the child] of living in [R] with his mother and spending time with his father. (footnote omitted)
At paragraphs 189 to 191, the Federal Magistrate turned to consider the orders which would be in the child’s best interests.

Discussion

We note, and as already explained, the father’s senior counsel’s complaint about the Federal Magistrate’s reasons was his assertion that she had failed to give any adequate reasons for the determination that a substantial and significant time order was not in the child’s best interests and that the Federal Magistrate was required to do so by reason of the legislation.
In MRR & GR French CJ, Gummow, Hayne, Kiefel and Bell JJ referred to the statutory imperative contained in s 65DAA(1) in paragraph 13 of their reasons as follows:
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 (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (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. (footnote omitted)
Senior counsel for the father submitted that the Federal Magistrate’s reasoning in finding it was in the child’s best interests for an order for equal shared parental responsibility, which order would require the parties to communicate about and agree on, amongst other matters, major long-term decisions for the child, was inconsistent with her findings in paragraph 174 of her reasons.
We observe that paragraph 174 of her Honour’s reasons is found after her discussion and conclusions that the presumption in s 61DA was not rebutted, and it was in the child’s best interests that an order for equal shared parental responsibility should be made. Paragraph 174 formed part of the Federal Magistrate’s consideration of the two questions which must be addressed under s 65DAA when considering whether an order for equal shared parenting time or substantial and significant time should be made.

The effect of the submission is to confuse the two different tasks her Honour was obliged by the legislation to undertake. First, in determining whether an order for equal shared parental responsibility should be made, her Honour was required to consider whether the presumption was not applicable, or was rebutted as not being in the child’s best interests. As her Honour found the presumption was not rebutted (such an order being in the child’s best interests) she was then required to undertake the second task – consideration of the provisions of s 65DAA, a task directed to time a child shall spend with a parent. That is the task she addressed in paragraphs 170 to 193 of her reasons.
The consequence of the making of an order for equal shared parental responsibility, namely the triggering of the mandatory consideration of the provisions of s 65DAA is a requirement of the statute (see MRR v GR at paragraph 13; Goode & Goode (2006) FLC 93-286). Another consequence of an order for equal shared parental responsibility is that it requires the parties to consult and make a genuine effort to come to agreement about major long term issues affecting their child or children (see s 65DAC). This requirement is discussed in Chappell & Chappell (2008) FLC 93-382 at paragraphs 57-59. Thus it follows that a court determining a parenting matter necessarily must assess the ability or otherwise of parents (or persons) who shared parental responsibility for a child to consult and make a genuine effort to reach agreement about major long term issues.
Her Honour had the benefit of the Family Consultant’s report. The Family Consultant found the parties’ relationship at the date of the hearing was such that they could agree in a business like manner about significant matters affecting the child. We accept when her Honour determined to make an order for equal shared parental responsibility, she was satisfied that the parties would be able to consult and make a genuine attempt to reach agreement about major long term issues.
However, in her discussion of s 65DAA, the Federal Magistrate made it clear, in paragraph 174 of her reasons, that one of the matters which caused her to find that an equal or substantial and significant time arrangement would not be in the child’s best interests or reasonably practicable was based on her concern about the parties’ ability to communicate about day to day issues that would arise if the child was moving between two households on a regular week about basis.
We are satisfied there is no inconsistency in the Federal Magistrate’s reasoning, and her remarks in paragraph 174 must be read in the context of her consideration of whether the father’s proposal for equal shared time was in the child’s best interests and reasonably practicable.
A careful reading of the whole of the material appearing under the heading s 65DAA demonstrates to us the path of the Federal Magistrate’s reasoning. We are clearly able to discern why she determined it was not in the child’s best interests to spend equal time or substantial or significant time with the father.
We are also satisfied that the Federal Magistrate’s reasoning clearly exposes why she found neither an equal shared care arrangement or a significant and substantial time arrangement was reasonably practicable. Both considerations were based on the Federal Magistrate’s findings, including the findings:
·that the father would not move to N;
·N afforded the child the opportunity to be brought up on the land of which his maternal grandmother was a traditional land owner;
·that the mother, the child’s primary attachment figure, was available to look after the child whereas the father’s childcare arrangements were dependent on a relative or long-term day-care;
·it was uncertain whether the father would live in R even if the mother moved there, and that he had no employment in R;
·that the mother had and could afford appropriate accommodation in N which she could not replicate in R due to her weaker financial position; and
·the mother had family support in N which she would not have in R.
It is clear to us for these reasons the Federal Magistrate found it was not in the child’s best interests, nor was it reasonably practicable, for him to live with the parents in an equal shared parental arrangement, or with the father for substantial and significant periods of time if he lived and worked in R. In these circumstances, the Federal Magistrate went on to consider the orders she should make which were in the child’s best interests.
We observe, at this point, that the orders made by the Federal Magistrate if the father worked on a fly in/fly out roster (Orders 7 and 8), the special occasion time (Orders 12, 13, 14 and 16), block holiday time (Order 17) were ones which could satisfy the definition of substantial and significant time as defined in s 65DAA(3).
We do not consider that the assertion the Federal Magistrate failed to give adequate reasons for her consideration of the provisions in s 65DAA has been established. Consequently we find grounds 1 and 5 without merit.

Asserted error in making factual findings in the absence of any or any sufficient evidence to support the findings made

In grounds 2 and 3 it is asserted as follows:
2.That in finding that the father had displayed a lack of insight into the mother’s role as the primary caregiver to the child and in finding that the father had not yet demonstrated an ability to promote the child’s relationship with the mother, the Federal Magistrate erred in that she made those findings in the absence of any or any sufficient evidence which supported such findings.
3.That in finding a doubt as to whether the father understood the child’s young age and appropriate behaviour the Federal Magistrate erred in that she expressed such doubt contrary to the weight of the evidence relating to the father’s proposal to take the child to Sydney.
It is convenient for us to deal with these grounds together, particularly as the written submissions of the father’s senior counsel deal with the grounds concurrently.
The submissions were centred firstly on paragraph 27 of the Family Consultant’s report and the fact that there was no cross-examination of the mother in relation to the father’s trip with the child to Sydney. The Family Consultant, having referred to the father’s outings with the child with particular reference to a visit to Taronga Park Zoo in Sydney, said “[t]his suggests that a particular strength of [the father’s] parenting is to provide stimulating, fun and educational opportunities for [the child]”.
In his oral submissions, counsel for the mother directed our attention to paragraphs, 70, 71, 102 and 108 of the Federal Magistrate’s reasons, as well as the Federal Magistrate’s discussion of the trip to Sydney.
Paragraphs 70 and 71 of the Federal Magistrate’s reasons dealt with her observations of the father in the witness box, including her finding that:
… He left me with the impression that after separation he had shown a harsh attitude and indifference towards the welfare of the mother and importantly to his young son then aged about 16 months. (paragraph 70)
There was no controversy at that time the father had required the mother to leave the home which was registered in his sole name.
At paragraph 102 of her reasons, the Federal Magistrate found that the father expected the child to be made available to him “on demand” on his days off regardless of the mother’s plans. The Federal Magistrate also found that the mother had endeavoured to fit around the father’s work schedule. The Federal Magistrate further found that the father, who was earning close to $200,000.00 per annum, made no offer to assist the mother at separation with a bond or rental and that her move to N had to been seen in the context of her dire financial circumstances.
The Federal Magistrate went on to find that the father had a choice before January 2010 as to whether to change his job and accept a lower income and spend longer periods of time with the child, but he had chosen to renew his work contract. At paragraph 108, the Federal Magistrate expressed her concern about the father’s attitude and conduct in insisting on taking the child, who was then aged two years, to Sydney.
The mother’s counsel, in his oral submissions to us, said it was unnecessary to cross-examine the father about the Sydney trip because his own evidence:
… was very damning, and that appeared in the correspondence which made its way into the judgment where the father’s highhanded manner in dealing with the mother who, after all, has been the solo parent of this baby, that he is going to take this baby to Sydney no matter what and he doesn’t give her any details about the trip to the last minute, is very telling and it obviously made a significant impression on her Honour in reaching the decision that she did. (transcript, 3 June 2010, p 22)
We are satisfied there is no merit in this ground. We are satisfied there was ample evidence before the Federal Magistrate which she took into account and on which she based her findings. Accordingly, we are satisfied that grounds 2 and 3 should be rejected.

Costs

At the end of the hearing we sought submissions from each of the parties as to costs. The mother’s counsel sought, in the event that the appeal was dismissed, that the father should pay the mother’s costs of and incidental to the appeal. She readily conceded to us that the mother was in receipt of legal aid.
We have considered whether or not there are circumstances which would justify a departure from s 117(1) of the Act.
The father has been wholly unsuccessful in relation to this appeal. He is in a significantly stronger financial position than is the mother, although she has the benefit of a grant of legal aid.
We are of the view, in the circumstances of this case, that the fact the mother is in receipt of a grant of legal aid should not be determinative of the costs application. We are conscious that any costs ordered to be paid by the father will be remitted by the mother’s lawyers to the Legal Aid authorities, thus minimising the drain on their scarce resources to provide assistance to otherwise needy litigants. We propose to order that the father pay the mother’s costs of and incidental to the appeal.

I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 11 November 2010.

Associate:

Date: 11 November 2010