Faure & Simons (No 2) - [2011] FamCAFC 110

FAMILY COURT OF AUSTRALIA

FAURE & SIMONS (NO. 2)

[2011] FamCAFC 110

FAMILY LAW - APPEAL – Appeal against discretionary judgment of the trial Judge in parenting proceedings – Not established that the trial Judge was in error in making any findings of fact or in the weight attributed to those findings – Not established that the trial Judge erred in his consideration of the findings and conclusions of the Family Consultant nor that he failed to provide adequate reasons in that regard.

Family Law Act 1975 (Cth) s 60CC

Abalos v Australian Postal Commission (1990) 171 CLR 167
Allesch v Maunz (2000) 203 CLR 172
Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621
CDJ v VAJ (1998) 197 CLR 172
Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588

APPELLANT:

Mr Faure

RESPONDENT:

Ms Simons

INDEPENDENT CHILDREN’S LAWYER:

Rafton Family Lawyers

FILE NUMBER:

PAC

5887

2010

APPEAL NUMBER:

2011

DATE DELIVERED:

23 May 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Ainslie-Wallace & Murphy JJ

HEARING DATE:

17 May 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 April 2011

LOWER COURT MNC:

[2011] FamCA 317

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Givney

SOLICITOR FOR THE APPELLANT:

David H Cohen & Co.

COUNSEL FOR THE RESPONDENT:

Mr Stenhouse

SOLICITOR FOR THE RESPONDENT:

Salvos Legal Humanitarian

Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Gersbach

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Rafton Family Lawyers

Orders

That the appeal be dismissed.
That there be no orders for costs.

IT IS NOTED that publication of this judgment under the pseudonym Faure & Simons 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 PARRAMATTA

Appeal Number: EA 53 of 2011
File Number: PAC 5887 of 2010

MR FAURE

Appellant

And

MS SIMONS

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed 16 May 2011 Mr Faure (“the father”) appealed against orders made by Johnston J in parenting proceedings between himself and Ms Simons (“the mother”) on 29 April 2011.
The effect of the trial Judge’s orders was that the one child of the parties, (“the child”), who was born in 2005, and is thus five and a half years of age, live with her mother, and that the mother be permitted to remove the child from the jurisdiction of the Court to reside with her in the United States of America.
The orders of the trial Judge set out in detail the times which, in the absence of agreement, the child would spend with her father, either in the United States where the mother would be living, Australia where the father was likely to be living, France, of which country the father is a citizen, or the Caribbean, from whence the father came and where his family resides.
His Honour’s orders set out in some detail the basis upon which the child would spend time with her father in the foreseeable and more distant future. They also provided for the cost of air travel which the child would have to undertake in order to spend time with her father pursuant to his Honour’s orders.
The Independent Children’s Lawyer (“the ICL”) supported the father’s appeal to this Court. The mother resisted the father’s appeal and sought to maintain the trial Judge’s orders.
On 11 May 2011 the Court heard and determined the father’s appeal against the trial Judge’s refusal of a stay of his orders of 29 April 2011 thus dealing with grounds 1 to 5 of the Notice of Appeal. In the course of its judgment in that appeal, the Court recorded a number of matters of background. None of the matters of background then referred to is controversial for present purposes.
Rather than again summarise it, we reproduce hereunder, and adopt, the background provided by the Court in the stay appeal:
7.As noted earlier, the child the subject of the parenting proceedings, is five and a half years of age. The mother is her biological mother. The father is her biological father. The mother is a citizen of the United States of America, having been born in [the United States in] 1977. The father is a French citizen, having been born in [the Caribbean in] 1979. [The child] has US and French citizenship.
8.At the time of [the child]’s birth in France, and for a period thereafter, the parties appear to have been predominantly resident in France. In about April 2006 the parties and [the child] visited the father’s parents and sisters in [the Caribbean] for approximately four weeks. In June of 2006 the mother’s parents and her elder sister visited the parties in France. In January 2007 the parties travelled to Australia with [the child] on a visitor’s visa. In August 2008 the parties applied for permanent residency in Australia.
9.Not long after that time, each of the parties secured employment. In May 2009 the mother’s employment contract expired and was not renewed. The father, at about that time, negotiated a new three-year contract with his then employer.
10.In about May 2009 the mother assumed the care of [the child] on a full-time basis, she not then being in employment, the father being in employment.
11.In about June 2009 the mother and [the child] visited [the United States] for six weeks. Thereafter they were in Paris, France with the father for about four weeks. They then returned to Australia in what was probably about September 2009.
12.The parties finally separated, their relationship having for some time prior thereto been problematic, on 6 February 2010. At that time, the mother and [the child] went to [the United States]. The parties disagree about the basis upon which that occurred.
13.In August 2010 the father and [Ms H], with whom the father had, by that time, re-partnered, took [the child] on a trip to … the Caribbean. [The child] was returned to the care of the mother in [the United States] on 2 September 2010.
14.On 8 October 2010 the father made an application for the return of the child pursuant to the United States legislative embodiment of the provisions of what is generally referred to as the Hague Convention.
15.On 20 October 2010 the mother commenced parenting proceedings in the Superior Court of the State of Alaska.
16.[In] December 2010 a child of the union of the father and [Ms H] was born, that is [the child M].
17On 22 December 2010 the mother agreed that her pending proceedings in the Superior Court of the State of Alaska be stayed pending her return to Australia to finalise these proceedings. Pursuant to the agreement, the mother arrived in Australia on 6 January 2011. [The child] accompanied her to Australia.
18.[In] January 2011 the mother married [Mr D] in Alaska. The mother and [Mr D] are expecting a child [in] May 2011.
19.The mother was in Australia earlier this year for the purpose of the proceedings before the trial Judge. She is now back in [the United States], the Court has been advised, and there is no reason not to accept that she will be unable to travel to Australia in the immediate future, given the impending birth of the child of her union with [Mr D].

Relevant legal principles

The principles governing the father’s appeal are not in doubt and do not require extensive restating for present purposes.
There is a presumption that the decision of the trial Judge is correct (see Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621).
In House v The King (1936) 55 CLR 499 the High Court explained the bases upon which appellate intervention may be enlivened in appeals against discretionary judgments. Dixon, Evatt and McTiernan JJ there said (at 504-505):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In CDJ v VAJ (1998) 197 CLR 172, Kirby J said (at 230-231):
Discretionary and evaluative decisions
186.A number of general propositions may be stated:
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.

As his learned Counsel correctly conceded, the father’s challenges to the trial Judge’s decision variously assert that the trial Judge failed to afford facts and circumstances sufficient weight, or afforded them excessive significance. The law governing such challenges is not in doubt. In Gronow v Gronow (1979) 144 CLR 513, Stephen J said (at 519-20):
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.

The Grounds of Appeal

Grounds 6 and & 7

Counsel for the father first agitated Grounds 6 and 7 of the Amended Notice of Appeal. Those grounds provided:
6.His Honour’s finding “the likelihood that the child had a closer relationship with the mother” was not available to him and was contrary to the evidence.
7.His Honour, finding the child had more time with the mother [between January 2010 and the time of hearing in April 2011] was a significant factor in support of the mother’s case ignores the fact that notwithstanding the circumstance the child maintained a close, safe and secure attachment with the father and that such separation was clearly contrary to the child’s interests.
Counsel for the father commenced his submissions in support of these challenges by referring to the evidence-in-chief of the Family Consultant who prepared a Family Report which was in evidence before the trial Judge, in which she said:
However, [the child] demonstrated that she had a close and meaningful relationship with both parents. This is consistent with having significant periods of time with both parents, as well as, two parents who loved and cared for [the child].
The critical finding of the trial Judge was identified by Counsel for the father as recording:
100.In my view, when one considers these matters they all point in one direction. This is that they point to the likelihood that the child has a closer relationship with her mother than with her father.
The crux of the first of these challenges is that the finding that the child had a “closer relationship” with the mother than the father was not reasonably open to the trial Judge. It was further submitted that the finding that the child “would grieve and in effect suffer a psychological injury” if separated from her mother was also not reasonably open to the trial Judge. Counsel for the ICL adopted and reiterated the substance of the submissions of Counsel for the father in support of these challenges.
In support of these challenges, Counsel for the father also referred to the cross-examination of the Family Consultant. That cross-examination commenced with an exploration of the time which the child had spent in the primary care of the mother, compared with the time which she had spent in the care of the father.
Although the Family Consultant did not appear to agree with the propositions advanced by Counsel for the mother in relation to the comparative time spent in the care of each parent, it was then suggested that the “logical consequence” of the time the child was asserted to have spent with each parent resulted in her being “primarily attached to the mother”. The Family Consultant disagreed with the proposition.
Ultimately the Family Consultant reiterated that she was not “prepared to say that the [child] is not primarily attached to the [mother]”. We have not been referred to any evidence of the Family Consultant in which she agreed that the child was “primarily attached to the [mother]”. It has not been suggested that the Family Consultant ever said that the child was “primarily attached” to the father.
The cross-examination then moved to whether the child had a “secure attachment to both parents”.
After discussion between his Honour and Counsel, the question was eventually asked “Does [the child] have a secure attachment to both parents?” to which the Family Consultant responded “I didn’t do an attachment assessment however, it would appear – there was nothing that led me to believe – she – it was other than a secure attachment”.
Further in cross-examination, the Family Consultant reiterated that:
“There was nothing that led me, from my observations, to believe it was anything other than a secure attachment with both parents.”
The Family Consultant was then asked:
“You certainly didn’t determine who the primary attachment was with?”
To which she replied:
“I was of the belief that both parents were – there were – you know, it is possible for a child to be primarily attached to both parents.”
No other passages in the transcript to which we have been referred or found for ourselves suggest that the Family Consultant ever resiled from the opinions which she thus expressed with respect to “primary attachment”, “secure attachment” or “attachment” generally.
It was submitted by Counsel for the father, correctly in our view, that:
25.There is further evidence of a secure attachment with both parents which can be found that notwithstanding the separation of the parties between February 2010 and June 2010 when the child had five weeks of time with the father there is no evidence to suggest issues with respect to separation from either parent and again consideration must be given to the counsellor’s observations of the child with both parents notwithstanding again a significant period of separation of the child from the father in her report.
Counsel for the father fairly conceded that:
26.Time obviously may be a factor in considering closer relationships however it is not necessarily fundamental as it appears His Honour’s found and is only one part of the ingredients in ascertaining whether the child is more attached to one parent then [sic] the other.
Counsel for the father submitted that the trial Judge did not “explore with the Family Consultant his ultimate view of the closer attachment of the child to the mother”. With respect to Counsel, that complaint overlooks the reality that the trial Judge did not find a “closer attachment of the child to the mother” (our emphasis). As is not in doubt, in the passage from his Honour’s reasons which Counsel for the father identified as the critical finding for the purpose of the first of these complaints, his Honour referred to a “closer relationship”.
Nothing to which we have been referred establishes that the trial Judge found that the child’s “attachment” to her mother was “closer”, more “secure” or otherwise superior in any way to her “attachment” to her father. That is unsurprising given the evidence of the Family Consultant, and the absence of any evidence supportive of a contrary conclusion.
To appreciate these challenges, it is necessary to have regard to the entirety of the trial Judge’s reasons, recorded under the heading “Section 60CC(3)(b) - the nature of the relationship of the child with each of the child’s parents and other persons”. It is apparent that s 60CC(3)(b) of the Family Law Act 1975 (Cth) (“the Act”) refers to “relationship” and not to “attachment”.
The trial judge referred to the Family Consultant’s report that the child “demonstrated that she had a close and meaningful relationship with both parents” which was “consistent with having spent significant periods of time with both parents, as well as, two parents who loved and cared for [the child]”. His Honour also recorded the Family Consultant’s reference in her report to the child having “a strong attachment to both parents”.

His Honour then referred to the child having “spent more time in the primary care of her mother than of her father”. That finding has not been challenged in this appeal, and sensibly so. As his Honour also recorded, and the passages of her cross-examination to which we have been referred confirms, the Family Consultant was not aware of the differences in time which the child had spent in the primary care of each of her parents.
The trial judge referred to the Family Consultant’s evidence that the “family” drawn by the child when requested by her to do so comprised the “members of her American family”, which did not include her father.
After referring to the Family Consultant’s observations of the child with the new partners of each of her parents, the trial Judge recorded:
97.It was submitted by counsel for the Independent Child Lawyer that there is nothing to suggest that [the child] has a closer attachment to one of her parents than she has to the other. In my view, this submission overlooks two matters. Firstly, as I have indicated above, there is no question that [the child] has spent more time in the primary care of her mother. Secondly, she has never lived away from her mother apart from the holiday in August 2010 for five weeks with her father and [Ms H], and over relatively brief periods with her father.
Counsel for the father submitted that a balanced reading of this paragraph revealed that his Honour accepted that the child had a closer “attachment” to her mother than she had to her father. We do not accept that interpretation of this paragraph. Nowhere did his Honour expressly or impliedly find that the child had a “closer attachment” to her mother than she had to her father. In our view, in recording that the submission on behalf of the ICL “overlooks two matters”, the trial Judge was in effect acknowledging that there were other considerations to which he could and did have regard within the context of assessing the child’s “relationships” as he was required to by s 60CC(3)(b) of the Act.
His Honour’s finding that the child had “spent more time in the primary care of her mother” than her father has not been challenged in this appeal, and was in our view relevant to an assessment of the child’s relationship with each parent, particularly given that the evidence with respect to her “attachments” to her parents did not establish any distinction of substance between them.
The second finding made by his Honour in the paragraphs we have set out above (para 97) has also not been challenged in this appeal, and was a matter to which his Honour was entitled to have regard when assessing the relationship of the child with each of her parents.
The trial judge was clearly, as the following paragraph of his reasons makes clear, not influenced by the “mathematical calculation” of the time the child has spent with each of her parents urged on behalf of the wife. His Honour said in that regard:
98.In relation to the first of these matters, learned counsel for the Independent Child Lawyer submitted that the child has spent a lot of time with each of her parents and that attachment and relationship are not assessed on the basis of a mathematical calculation. I accept the submission about the inappropriateness of a detailed mathematical calculation but am unpersuaded by the thrust of the submission. Little, if any, importance appears to have been placed by the Family Consultant and counsel for the Independent Child Lawyer on the fact that [the child] has never lived away from her mother for any substantial period.
His Honour recorded, correctly there is no doubt, that the Family Consultant, and Counsel for the ICL, appeared not to have attached any real significance to “the fact that [the child] has never lived away from her mother for any substantial period”. That did not mean that the fact was not of significance, or that his Honour was not able to take it into account. In the circumstances of this case, it was a matter that his Honour properly took into account.
The trial judge then referred to the other matter which he regarded as relevant to his “consideration of the child’s relationship with relevant persons”, that being “the likely reaction of the child to being separated from her mother”. His Honour recorded in that regard:
99.…There must be some reason for the likelihood that a separation of [the child] from her mother would almost certainly cause the child to suffer grief, a sense of loss and a difficult adjustment as referred to by [the Family Consultant]. Presumably the reason is that she has a strong attachment to her mother.
In the course of her cross-examination, the Family Consultant was asked :
Well, in the circumstances of the child having spent so much time in the primary care of the mother, and in circumstances where the child has been with the mother for the last year and a bit – a bit long, isn’t it? 16 months – what do you think the consequences will be of its separation from its mother in these circumstances, as you have recommended? What do you think the consequences will be to [the child]?
The Family Consultant replied:
Look, I think there is a potential for [the child] to certainly have a period of grief and loss, and I am certainly not – you know, I think it would be a difficult adjustment for [the child].
To the extent that the father and the ICL asserted that there was no evidentiary foundation for the trial Judge’s finding, the evidence of the Family Consultant, though not extensive or detailed, provided a basis for his Honour’s finding. We have not been referred to any other, or contradictory, evidence of the Family Consultant in relation to this issue.
Counsel for the father referred us to the trial Judge’s later reference (in the context of s 60CC(3)(d), which concerns “the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents”) to the Family Consultant’s evidence that the child has “a close relationship” with each of her parents and has a “strong attachment to both parents”.
His Honour then reiterated that:
126.…there is no question that [the child] has spent more time in the primary care of her mother. The reality is that she has been living with her mother in [the United States] over the previous year and has also developed a close relationship with [Mr D] and his children. I refer again to the Consultant’s reporting of the family picture drawn by [the child] which included herself, her mother, [Mr D] and his two children.
The trial judge further recorded:
127.In any event, [the child] has never been away from her mother except for the five week period in [the Caribbean] on holiday with her father and [Ms H] in August 2010 and some other short periods in her father’s care.
His Honour then said:
128.Just looking objectively at these matters one would anticipate difficulty for the child if she was not permitted to move back to live primarily with her mother and extended family in [the United States]. This objective prediction is reinforced by that of the expert [the Family Consultant]. During the course of her cross-examination [the Family Consultant] was asked what she thought the consequences for [the child] would be if she was to be living primarily with her father in Australia and separated from her mother and extended family as recommended by [the Family Consultant]. [The Family Consultant] said that there was certainly potential for grief, loss and a difficult adjustment for the child.
Reference was then made to evidence of the Family Consultant in her report as to the practical aspects of the child residing with one parent or the other.
129.[The Family Consultant] says (at paragraph 60) in her Report as follows:
A change of residence from living with [Ms Simons] in [the United States] to living with her father in Australia is likely to be a difficult experience for [the child]. It would appear that the environment both in a geographic, relational and philosophical sense is very different between the two households. [The child] having spent six weeks living with her father and attending school in Australia would likely make such a transition easier. [Mr Faure] and [Ms H] appeared to have skills that would assist [the child] to manage her grief and make this adjustment. In particular, they appeared to have the capacity to portray [Ms Simons] and her family in a positive light and encourage [the child] to remain in contact with them.
His Honour then recorded:
130.On the other hand it is clear that the child was able to separate from her father in February 2010 and to live in [the United States] with her mother without apparent damage to her relationship with her father as well as not suffering any serious emotional distress.
Ultimately his Honour recorded:
132.Accordingly I find that there would almost certainly be a serious negative effect for the child emotionally and psychologically of her being separated from her mother and extended family in [the United States] by reason of an order that she reside primarily with her father and [Ms H] in Australia. On the other hand I find that it is unlikely that there would be a serious psychological or emotional effect on the child upon being separated from her father if she were to move to [the United States] with her mother other than some level of upset and sadness at leaving them.
Counsel for the father also referred us to the trial Judge’s “Discussion and conclusion about the child’s best interests”, in which he again acknowledged that the child has a strong attachment to each of her parents. His Honour recorded, accurately there is no doubt having regard to the cross-examination of the Family Consultant, that it was “a pity that the Family Report does not reflect a closer focus on the nature of the relationship between [the child] and each of her parents” and correctly recognised that as being “a most important statutory consideration which the Court has to grapple with”.
His Honour then said:
181.…There is also something approaching near certainty that if [the child] is required to remain in Australia to live primarily with her father the consequent separation from her mother would cause serious emotional distress to the child. [The Family Consultant] spoke of the child’s potential to experience grief, a sense of loss and difficulty in settling down with her father and [Ms H] if she does not return to [the United States] with her mother.
Although we have not received specific submissions in relation to the topic, we perceive from the Family Consultant’s evidence in cross-examination that “attachment” may involve psychological issues in respect of which the only evidence before the trial Judge was in the terms to which he referred in his judgment. The evidence precluded the trial Judge from finding that the child’s “attachment” was “closer” to one parent than to the other. His Honour did not ever find otherwise.
In the absence of any authority to the contrary, and we have not been referred to any, the use of the expression “relationship” in s 60CC should be given its usual meaning or understanding, and involves findings of fact by the trial Judge. Whilst expert opinion evidence may inform and significantly impact upon the fact finding exercise by a trial judge, we do not understand that there needs to be such evidence before findings can be made. The evidence relevant to the issue of relationships overlaps, in the circumstances of this case, with evidence relevant to other issues.
It has not been established that, in addressing s 60CC(3)(b) the trial Judge had regard to any irrelevant fact or circumstance. Nor has it been established that his Honour failed to have regard to any relevant fact or circumstance. It has not been established that any finding of fact made by his Honour was not reasonably open to him. As is not in doubt, other findings of fact may have been open to his Honour, but that is not the test for present purposes.
It has not been established that the trial Judge’s conclusion that the child had a “closer relationship” to her mother than she did to her father was not reasonably open to him in reliance upon the findings of fact which he made and identified in the passages of his reasons to which we have referred.
The same is true of his Honour’s conclusion that there was a “likelihood” that a separation of the child from her mother would cause the child to “suffer grief, a sense of loss and a difficult adjustment as referred to by [the Family Consultant]”.
These challenges have not been made out.

Ground 8

Ground 8 was then agitated by Counsel for the husband. That ground provided:
8.His Honour’s finding at paragraph 132 that there would “almost certainly be a serious negative factor for the child emotionally and psychologically of being separated from her mother and extended family in [the United States]” was a finding not open to him and was contrary to the evidence.
The crux of this challenge was articulated by Counsel for the father in the following terms:
28.Notwithstanding His Honour’s error in maintaining a position that there was a closer relationship with the mother is it still then open to His Honour to find that the child would suffer a “serious psychological or emotional effect”. The terms are vague but seem to indicate that His Honour was of the view that the child would suffer a psychological injury which one could probably speculate to mean that the child would either go through a prolonged grieving experience and not recover from it or would likely suffer a sense of loss for the whole of her life and thus would bring about a situation where she had difficulties in forming relationship[s] in adulthood.
It was further submitted:
29.His Honour failed to explore the concept or the words with the counsellor and [it] is a formulation that His Honour has formed without including the views of the Family Consultant and with respect ignores the views of the Family Consultant.
We do not understand that the trial Judge had an obligation during the course of the trial to “explore the concept or the words” complained of with the Family Consultant. In what way his Honour failed to include the “views of the Family Consultant or to ignore those views” in his reasons for judgment has not been suggested.
Counsel for the father relied upon that part of the Family Consultant’s report in which she said:
60.A change of residence from living with [Ms Simons] in [the United States] to living with her father in Australia is likely to be a difficult experience for [the child]. It would appear that the environment both in a geographic, relational and philosophical sense is very different between the two households. [The child] having spent six weeks living with her father and attending school in Australia would likely make such a transition easier…
Counsel for the father referred us to the Family Consultant’s evidence in cross-examination with respect to this topic in which she said that although it was “very difficult for me to conclusively say”, the child “would probably – she would adjust but it would take some time, I mean there’s a possibility---”.
The Family Consultant then said:
I imagine that she will be distressed for a period of time because you know, it is a significant thing to occur. She may well cry, she may well become quite quiet…
His Honour then said the ultimate submission on behalf of the father, adopted by Counsel for the ICL was:
The counsellor’s views fall well short of His Honour’s ultimate finding as paraphrased by these submissions that the child would suffer serious psychological injury.
With respect to the submissions of Counsel in support of this challenge, the trial Judge did not make a finding “that the child would suffer serious psychological injury”. What his Honour found was that there “would almost certainly be a serious negative effect for the child emotionally and psychologically of her being separated from her mother and extended family in [the United States]”. That differs materially from the finding which it was submitted that his Honour made. There was evidence before his Honour from the Family Consultant which provided an adequate foundation for so finding.
As the trial Judge recognised, this issue did not relate solely to the impact on the child of being separated from her mother. The impact on the child of being separated from her father was also relevant to the trial Judge’s ultimate conclusion. The trial judge’s finding that it was “unlikely that there would be a serious psychological or emotional effect on the child upon being separated from her father if she were to move to [the United States] with her mother other than some level of upset and sadness at leaving them” has not been shown to have been other than reasonably open to the trial Judge. His Honour was required to, and did, balance the competing impacts of the child’s separation from one parent.
In our view, the conclusion reached by the trial Judge in the passage which gives rise to this challenge was reasonably open to him having regard to the findings of fact which he made, and detailed, in the paragraphs preceding his articulation of his conclusion, none of which findings have been shown to have not been reasonably open to his Honour. Balancing the effects of “separation” in the way his Honour did has not been shown to have been other than reasonably open to him.
This ground has not been made out.

Ground 5

Counsel for the father then agitated Ground 5 which provided:
5.His Honour’s finding that the Family Consultant’s view that the mother had not been willing to facilitate and promote [the child]’s relationship with the father was “an over critical assessment of the mother’s efforts to facilitate time between [the child] and her father…” [paragraph 120] was a finding against the [weight] of evidence and in carrying out the exercise His Honour erred in failing to compare the parents so as to ascertain which parent was more likely or best able to facilitate and promote the relationship of the child with the other.
In support of this complaint it was submitted:
4.His Honour’s task then was to consider the parties approach by looking at past behaviours and their oral evidence in the case. Although His Honour in a number of paragraphs considers the father’s approach and finds it was untested but then considers the mother’s approach and essentially says “it wasn’t as bad as everyone says”. His Honour was obliged to ascertain which party was better able and/or willing and with respect to His Honour this was the father.
Counsel for the father further submitted:
5.The mother in circumstances where she had had the care of the child out of Australia from February 2010 until February 2011 should have been able to demonstrate a proactive approach so as to form a view of confidence that the mother would promote and facilitate the relationship.
In support of that contention, Counsel for the father identified a number of matters which he submitted indicated the father’s “enthusiastic approach” to the child’s relationship with her mother. [Appellant’s Submissions, page 2 par 6]. Counsel for the father also submitted, correctly, that the Family Consultant expressed a “lack of confidence in the mother’s commitment to facilitate the relationship” between the child and her father.
In addition to some evidence given by the mother in cross-examination which was submitted to be “worrying”, Counsel for the father submitted that “although analysing various pieces of evidence”, the trial Judge failed to reflect on “the big picture” in respect of which a number of matters were submitted to be relevant. Those matters were said to be:
11.1The mother pursued a relationship in the USA.
11.2Married in the USA.
11.3Planned to have a family in the USA.
11.4Filed an Application in the USA.
11.5Upon receipt of notice of Hague Convention proceedings sought advice with a view to staying in the USA.
11.6Enrolled the child in a school where the Spanish culture and language was taught [the Family Consultant found this strange].
11.7Made no effort to encourage the child’s French language skills.

A number of submissions were made by Counsel with respect to the mother’s asserted demonstrated failure to facilitate distance contact between the child and her father, compared with the father’s asserted demonstrated positive attitude in that regard.
The trial judge was clearly acutely aware that a major issue at trial was the “willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent”, with which s 60CC(3) of the Act is concerned.
His Honour commenced his lengthy (23 paragraphs) analysis of this provision by recording the parties’ different version of events in relation to “Skype” communication between the child and her father. For reasons which he detailed, the trial Judge concluded that “the father’s version of the Skype communication between the parties and the child is more likely to be correct than the mother’s version”. His Honour further found that “there was regular telephonic communication between the father and [the child]. I accept the father’s version that he was the one who made almost all the telephone calls” and that the mother’s assertion as to the number of telephone calls she facilitated was “more likely than not” an “exaggeration”.
The trial judge concluded with respect to distance communication:
108.In my view there is almost certainly some force in the criticisms of each of the parties in relation to the other concerning these matters. But, as I say, there is also no question that the father has been able to have conversations with [the child] across the period and that such communication has been able to continue regularly although probably not as frequently as the father would like. I accept the mother’s estimate that such communication between father and child has been an average of two to three times per week over the period.
His Honour then referred to the mother’s agreement to the child “going on a trip to [the Caribbean] with her father for five weeks in August/September 2010”. His Honour clearly had regard, as he was entitled to in this context, to the mother agreeing, notwithstanding the concerns which she expressed, and which his Honour recorded, to the father taking the child on an overseas trip of that duration.
To the extent that the mother was criticised in relation to the proceedings instigated by the US Central Authority, as is not in doubt, the mother returned the child to Australia without an order being made pursuant to the Hague Convention. That was a matter which the trial Judge was able to take into account in her favour. It is clear that, albeit to a limited extent, his Honour did that.
The trial judge referred to his having asked the mother “what confidence this Court might have that she would facilitate a meaningful relationship between the child and her father” and recorded her response.
Reference was then made to evidence given by the mother, and to the evidence of the Family Consultant, in which she recorded that the father’s “capacity to facilitate [the child]’s relationship with her mother remains largely untested”. His Honour then had regard to the “intractable conflict between the parents particularly over the parenting arrangements for the child”.
His Honour reiterated, accurately, that the Family Consultant had recommended that the child “live primarily with her father” as a result of her conclusion that “the mother has not been willing to facilitate and promote [the child]’s relationship with her father”.
In the passage which gives rise to this complaint the trial Judge then said:
120.Clearly these observations must be seen in the context of all the evidence before the Court. In my view, these observations present a too-pessimistic version of events and involve an overcritical assessment of the mother’s efforts to facilitate time between [the child] and her father. For instance there is no question that the father agreed to the mother and [the child] going to [the United States] and for an undefined period. The other criticisms are also to an extent unbalanced in my view. This is not to say that the mother has been a model of reasonableness in terms of accommodating the father’s requirements to spend time with [the child]. And certainly some of the criticism is justified such as the mother taking [the child] to Brisbane without informing the father or making provision for the child to spend some time with him during that period.
His Honour accepted that “there was some thrust to the criticism of the mother by the Family Consultant”. Ultimately, he concluded:
122.My view about this legislative consideration is that although the father’s capacity to facilitate the child’s relationship with her mother remains largely untested as [the Family Consultant] has said, I would agree that on balance his willingness and ability for this is probably ahead of that of the mother. But, I am not persuaded that the mother would not comply with court orders in this regard. As indicated above, she returned to Australia voluntarily and without the necessity of a court order. She made the child available for the five week holiday with her father to [the Caribbean]. She has complied with the orders of Collier J. She has been able to facilitate telephonic and some Skype communication, albeit most having been initiated by the father. And, despite the criticism in this regard, she has facilitated some time between [the child] and her father since returning to Australia.
We are not persuaded that either of the two complaints which this challenge embodies has been established. As the paragraphs of his reasons for judgment to which we have referred reveal, the trial Judge did “compare the parents so as to ascertain which parent was more likely or best able to facilitate and promote the relationship of the child with the other”. As his reasons for judgment confirm, the difference, as his Honour suggested, was not as stark or as substantial as the father asserted.
The trial judge’s ultimate conclusion was in substantially the terms which this ground asserts that it should have been. His Honour accepted that “on balance” the father’s “willingness and ability” to promote a relationship with the other parent was “probably ahead of that of the mother”. The fact that his Honour did not regard the margin by which the father was “ahead” as being as great as the father urged him to does not demonstrate appealable error. Nothing to which we have been referred establishes that his Honour’s comparatively benign view of the mother’s willingness and ability was not reasonably open to him, although other findings may also have been.
This complaint has not been established.

Grounds 9 & 10

Counsel for the father then agitated Grounds 9 & 10 which provided:
9.His Honour erred when considering the task of comparing the parties personalities by considering the Family Consultant’s view as to the mother’s emotional fragility but did not then complete the task of finding whether either of the parties was emotionally stronger than the other.
10.His Honour found against the weight of evidence that the mother was not emotionally fragile as was maintained by the Family Consultant.
Counsel for the father relied upon the evidence of the Family Consultant in her report in which she said:
Both parents appeared to have adequate basic parenting skills. There does not appear to be a dispute over the day to day care that [the child] has received from either parent. [Ms Simons] reported that she had concerns about [Mr Faure] allowing [the child] to do things that were unsafe. Some of the concerns may have been related to cultural differences and some, should they be found to have occurred, raised concern that he may have been lax in regards [to] [the child]’s safety. [Mr Faure] alleges that he has concerns about [Ms Simons]’ emotional state and the potential impact on [the child]. [Ms Simons] confirmed that she was depressed in 2004 and made a suicide attempt. She reported that at the end of 2009 and beginning of 2010 she suffered from panic attacks, consulted [Dr X] for her condition, was prescribed an anti-depressant medication, lost her appetite and suffered from insomnia for three months. [Ms Simons] reported in an affidavit that she suffered a further panic attack in 2011 and was crying all the time and felt overwhelmed. [Ms Simons’] description is suggestive of an emotionally fragile person. Furthermore, [Ms Simons] presented on interview as emotionally fragile. A parent presenting with such a disposition can have an impact on the child’s well-being both in the short and long term. It can invite a child to move into the role of trying to emotionally support a parent, model to the child that the world is a difficult and overwhelming place and model poor coping mechanisms. Furthermore, if a parent suffers a period of low mood, anxiety or high stress it can be difficult for the parent at that time to be attentive and attuned to the child’s needs.
It was submitted by reference to the transcript of the trial that the evidence before the trial Judge established the following:
35.1The mother was described [sic] antidepressant medication in Christmas 2009.
35.2The mother saw her counsellor four weeks prior to returning to Australia.
35.3The mother gives evidence of suffering panic attacks.
35.4The mother was continuing to see a psychiatrist in the USA.
35.5The mother was also seeing a counsellor from March 2010.
35.6The mother suffered two panic attacks between January and March 2011.
It was submitted, correctly, that the mother provided “no evidence in her affidavit material as to treatment, diagnosis or even the name of the treating psychiatrist or counsellor”.
Reliance was also placed upon the following evidence of the Family Consultant in cross-examination in support of these challenges:
And when you say “emotionally fragile”, what do you mean? What were – how did she present?---Well, I mean, she was very teary throughout. Her – I guess her facial expression she showed demonstrated distress. Look, her affect certainly changed throughout the interview and at some times, she sort of seemed okay. At other times, you know, she became quite distressed. Then, I guess, there were things, like, following the observation with [the child] where she seemed – you know, she seemed okay.
What does “okay” mean?---Well, she wasn’t crying.
It’s not all right to cry; is that what you’re saying?---No, I’m not saying that. But in terms of her emotional affect during the observation with [the child], it seemed appropriate. It didn’t seem to be anything that would be of concern to [the child]. Following that, I then observed she became quite distressed and was being comforted by her husband, you know - - -
When was that?---Following the observation. As I was in - - -
Of?---Of [the child] with the mother, as I was in the - - -
As you were observing them?---As I was in the process of getting the next observation going, yes. So there was, sort of, quite a stark contrast in her affect there.
Why do you think that was? Do you have any idea?---I didn’t – no, I would be hazarding a guess.
Now, in paragraph 62 of your report, where you refer to emotional fragility, you go on to say that:
A parent presenting with such disposition can have an impact on the child’s wellbeing, both in the short and long-term.
So if a parent presents with that particular disposition on that particular day, you extrapolate out, is that what you’re saying, and say that they can have an impact on the child’s wellbeing in consequence of that presentation?---No. I’m not saying in that presentation based on occurring once. I’m saying based on that being a longer term presentation.
Yes. But you can’t make that diagnosis, can you?---Well, that comment is made in the context of obtaining a history from [Ms Simons] of - - -
I know. That’s not what I asked. I said you can’t make that diagnosis, or do you attempt to make the diagnosis?---I’m not sure I’m making a diagnosis. What do you mean by diagnosis? That’s - - -
Well, shall we cut to the chase? It occurred – it seems to me from your report that you are of the view that of the two parents, [Ms Simons] is the more emotionally fragile/the one more likely to suffer from mental health issues?---Yes. That’s right.
And that’s your assessment, isn’t it?---They’re presented as a history of mental health concerns with the mother and not the father, so yes. …
Counsel also relied on the following evidence of the Family Consultant:
… the point I’m trying to make is it would appear that there has been, over a number of years, a number of instances of difficulty with mental health. And those were things that [Ms Simons] both directly told me about and had provided in affidavit material, in terms of a suicide attempt, bouts of depression, anti-depressant medication, panic attacks, thinks like that. And then on my observation, even taking into consideration, you know, the very difficult situation that, sorry, [Ms Simons] is and was in at the time, she did present as very, kind of, teary and emotional. And I’m making those comments in the context of all of those things, not just her specific presentation on those two days. And what I’m saying is we need to just be aware of and considering those things, because they’re important to a child’s wellbeing, if there has been some – sort of, some concerns there about a parent.
It was thus submitted that:
39.His Honour’s task was to consider a comparison between the parties. His Honour in making findings as to the mother’s emotional stability did not himself question the Family Consultant as to his ultimate views about the mother’s emotional stability. His Honour found that the father was in effect the cause of the mother’s emotional instability. Such a finding is difficulty [sic] to make without the benefit of expert evidence or at least putting that proposition to the consultant the indicators are that the mother has underlying emotional problems that are exacerbated in times that she finds stressful.
This complaint conflates two issues. The first is the mother’s “emotional stability” or “emotional fragility”. The second is whether the trial Judge found that the father “was in effect the cause” of the mother’s emotional instability or fragility. Whilst his Honour accepted, as was not really in contest, that the parties had a conflictual relationship, we do not accept that his Honour anywhere found that the mother’s emotional wellbeing was “caused” by the father. That is not what he said, nor a reasonable implication from what his Honour said.
His Honour’s consideration of s 60CC(3)(f) (which concerns “the capacity of each of the child’s parents… to provide for the needs of the child, including emotional and intellectual needs”) commenced with a reference to the paragraph in the Family Consultant’s report (par 62) to which Counsel for the father referred us, and which we have earlier reproduced.
The trial judge then considered the “mother’s expressed concerns that the father does not always conduct himself with an appropriate level of care for the child’s safety”, in respect of which the father had made “some concessions”.
His Honour then directed his attention to “the state of the mother’s mental health”, noting that it had been “the subject of considerable inquiry during the course of these proceedings”. He found that the mother has “suffered from depression”, in respect of which she has in “more recent times…sought professional assistance”.
After traversing the parties assertions, and noting that there had been “no psychiatric assessment of the parties for the purposes of this litigation and that there is no expert evidence before the Court in relation to this matter”, the trial Judge recorded, in some detail, the mother’s admissions of “very serious emotional distress” in 2004 and November 2009.
His Honour then recorded:
143.The mother said that after returning to [the United States] and being with her family and friends she felt much better. As indicated above, she continued to see a counsellor in [the United States]. She said that she is no longer depressed. The mother also said that when the father did not return [the child] to her care on 3 February 2011, she became extremely alarmed and fearful that he would abscond with the child and refuse to return her to the mother’s care. She said that in these circumstances she had some recurrence of the panic attacks but that these subsided and then ceased. She has had no recurrence of either the panic attacks or depression since.
Nothing to which we have been referred establishes that any finding of fact there made by the trial Judge was not reasonably open to him. We do not read his Honour as having there made a finding that the mother was no longer depressed, although there was no evidence before the trial Judge to which we have been referred which would cause him not to accept her evidence on this point nor oblige him to find that the mother was depressed.
It ought not be forgotten that the trial Judge had some “concern about the father’s capacity always to be sensitive to the child’s emotional and psychological needs” which he detailed. His Honour also had some reservations of that kind about the capacity of the father’s new partner.
After referring to the evidence of the Family Consultant in her report (at par 63) critical of the mother, the trial Judge referred to the evidence of the Family Consultant “that both parents had been involved in considerable conflict between them in the presence of the child thereby indicating that they had not always been able to protect the child from their conflict.”
Ultimately, for reasons which he recorded in some detail, and which were underpinned by findings of fact made by him, the trial Judge concluded that:
151.…Looking objectively at these circumstances, by comparison with the devastation from the mother’s point of view of the break down of her relationship with the father including his deceptive and embarrassing behaviour towards her, one might have some confidence that the mother’s life will not be marked by depression.
His Honour then engaged directly with the Family Consultant’s description of the mother having presented on interview as being “emotionally fragile” and said:
152.…it seems to me that given all that has happened and the risk which the mother must perceive that she might have to face the situation where [the child] goes out of her primary care, it would hardly be surprising that she might not present as emotionally robust at an interview that she would know could have great bearing on the outcome of the litigation.
The trial Judge further recorded:
153.I must say in all these circumstances I do not share the same level of concern, at least not at this point, as [the Family Consultant] appears to have about the mother’s emotional and psychological state and what it could mean for [the child]. I do not accept that the mother is not adequately managing her vulnerability to depression and do not regard her state of health as having the consequence that she is less capable as a parent to provide for [the child]’s needs than the father when one considers all the relevant matters.
Quite properly, Counsel for the father did not submit that the trial Judge’s finding was other than a finding of fact. No evidence to which we have been referred establishes that it was not reasonably open to the trial Judge to find and conclude as he did in that paragraph of his reasons. Although only to a limited extent, as Counsel for the father sensibly acknowledged, the “trial judge’s advantage” is not without relevance to this challenge. The authorities in that regard are not in doubt (see Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588, Abalos v Australian Postal Commission (1990) 171 CLR 167; and Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472).

The trial judge’s conclusion with respect to this topic was substantially based upon findings of fact, none of which have been shown to have been other than reasonably open to him. As is plain from reading his Honour’s reasons for concluding as he did, the findings of fact upon which those conclusions were based were to some extent dependent upon his acceptance of the evidence of the mother. Nothing to which we have been referred establishes that by so doing his Honour “palpably misused” the advantage he had, which this Court lacks, of having seen and heard each of the parties give evidence and face cross-examination. It has not been established that the trial Judge’s finding with respect to the mother’s “emotional fragility” was unsafe for any reason.
These challenges have not been made out.

Conclusion

No other ground of appeal was agitated on behalf of the father. No ground of appeal having been made out, the father’s appeal must be dismissed.

Costs

Counsel for the mother sought an order that the father pay the mother’s costs if his appeal was dismissed.
We are of the opinion that no order for costs should be made in the circumstances of this case. Although “wholly unsuccessful” in the terms of s 117(2) of the Act, the father was in our view, justified in challenging the trial Judge’s decision, so significant for him are the consequences of that decision.
As is not in doubt, Counsel who represented the father conducted his appeal competently, expeditiously and economically.
We will make no order for costs.

I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Ainslie-Wallace and Murphy JJ) delivered on 23 May 2011.

Associate:

Date: 23.05.11