FOSTER & FOSTER - [2010] FamCAFC 49

FAMILY COURT OF AUSTRALIA

FOSTER & FOSTER

[2010] FamCAFC 49

FAMILY LAW – PARENTING PROCEEDINGS – APPEAL - Not established that exercise of discretion vitiated by erroneous findings of fact, or that findings of fact not established by the evidence – Not established that Federal Magistrate’s finding that mother had been children’s primary carer not reasonably open – Not established that Federal Magistrate’s discretion vitiated by failure to have regard to relevant facts and circumstances, or by having had regard to irrelevant facts and circumstances – Not established that allowing mother to relocate children’s primary place of residence from the western plains area of New South Wales to Canberra or Sydney not in children’s best interests – Not established that Federal Magistrate erroneously evaluated parenting capacities of the parties – Not established that Federal Magistrate had erroneously applied provision of s60CC – Not established that further evidence, if admitted would render decision of Federal Magistrate erroneous.- Application to adduce further evidence dismissed – Appeal dismissed – No order for costs.

Family Law Act 1975 (Cth) ss 93A; 60CC; 69ZU

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
House v The King (1936) 55 CLR 499
CDJ v VAJ (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
De Winter v De Winter (1979) FLC 90-605
Abalos v Australian Postal Commission (1990) 171 CLR 167
SSHontestroom v SS Sagaporack [1927] A.C. 37
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 (“Earthline”)
C & S [1998] FamCA 66
MRR v GR [2010] HCA 4

APPELLANT:

Mr Foster

RESPONDENT:

Ms Foster

FILE NUMBER:

PAC

2781

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

19 March 2010

PLACE DELIVERED:

Dubbo

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Strickland & Crisford JJ

HEARING DATE:

4 February 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

2 April 2009

LOWER COURT MNC:

[2009] FMCAfam394

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Self represented

SOLICITOR FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT:

Self represented

SOLICITOR FOR THE RESPONDENT:

Orders

That the appeal and application for leave to adduce further evidence is dismissed.
No order for costs.

IT IS NOTED that publication of this judgment under the pseudonym Foster & Foster 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 S

Appeal Number: EA 52 of 2009
File Number: PAC 2781 of 2008

Mr Foster

Appellant

And

Ms Foster

Respondent

REASONS FOR JUDGMENT

By Amended Notice of Appeal filed on 17 July 2009 Mr Foster (“the father”) appealed against orders made by Federal Magistrate Henderson in parenting proceedings between himself and Ms Foster (“the mother”) on 2 April 2009.
The Federal Magistrate’s orders provided, in essence, that the parties have equal shared parental responsibility for their children, J born in April 2000, S born in February 2002 and A born in June 2005, that the children live with the mother in the Sydney or Canberra area and live with the father each alternate weekend, for the great bulk of the holidays following the first, second and third school terms in each year and for one half of Christmas school holiday periods. The learned Federal Magistrate’s orders were predicated upon the father continuing to reside in G, a town on the western plains of New South Wales.
The learned Federal Magistrate’s orders provided that, if the father moved closer to the mother’s place of residence, the children spend three (3) days and four (4) nights with the father in one week and overnight with the father in the alternate week during school terms and for one half of all school holidays. A number of ancillary orders were also made by the learned Federal Magistrate which do not assume significance in this appeal.
In lieu of the orders made by the Federal Magistrate, the father sought orders that the children live with him in G and spend time with the mother on the basis the learned Federal Magistrate ordered that they spend time with him whilst residing with their mother in Sydney or Canberra. The mother resisted the father’s appeal and sought to maintain the Federal Magistrate’s orders.
On 7 December 2009 the father filed an application for leave to adduce further evidence in the appeal pursuant to section 93A of the Family Law Act (Cth) (“the Act”). In an affidavit sworn the same day, the father identified the further evidence which he sought leave to adduce. The mother resisted the father’s application for leave to adduce further evidence in the appeal.
At trial, and before this Court, both parties were unrepresented. Each party filed detailed written submissions in support of their respective cases.

The Judgment of the Federal Magistrate

Having identified the competing applications before her, and the evidence upon which each party relied, and recounted a brief history of the proceedings in the Federal Magistrate’s Court, the learned Federal Magistrate identified the competing proposals of the parties.
The first option was considered by her Honour to be that the children’s mother remained their “primary carer” in Sydney or Canberra, the children spending time with the father in G and “the impact on the children of such an order”.
The second option was identified by her Honour as providing for the children to live in G in the primary care of their father, spending time with the mother in Sydney or Canberra, and “the impact on the children of such an order”.
The third option identified by the learned Federal Magistrate was that the mother return to G from Sydney (where she and the children had been living since early June 2008).
Her Honour accepted the evidence of the mother, which was “repeated” in the evidence of the family counsellor, that the mother “cannot return to [G]” as it would be “emotionally traumatic for her” and “would seriously impact upon her ability to parent the children”, a position which the father was said to accept. The learned Federal Magistrate accordingly concluded that the third option identified by her was not a realistic option.
The fourth option identified by the learned Federal Magistrate was that the mother and the children reside primarily in Sydney or Canberra with the father moving closer to them. The father’s position was that he “could not move from [G]” precluding that option from serious consideration.
The learned Federal Magistrate recorded that:
29.The facts are that no matter what order I make it is 6 or 7 hours travel from Sydney to [G]. From Canberra it is between 5 to 6 hours. On any option it is a long trip each way for the children and the parents. Distance and travel times are a major difficulty in this matter.
Her Honour further recorded:
30.There is no request by the parties or any evidence that would support an order being made to rebut the presumption of equal shared parental responsibility. Unless the parents live within close proximity to each other I cannot consider an order for equal or substantial and significant time due to distance between the parents residences. The mother made it clear she will remain in Sydney or Canberra and the father was equally clear he would remain in [G] no matter what order I ultimately made.
Whilst we have some reservations as to the correctness of this approach, neither party having raised any issue in relation to it, this is not a matter which we can take further, particularly as both parties are unrepresented, and the Court has not had the benefit of submissions by an Independent Children’s Lawyer. Moreover, whatever its correctness, we do not consider that her Honour’s approach led her into error in the circumstances of this case.
The learned Federal Magistrate then examined the “benefits and deficits” inherent in the mother’s proposal. Her Honour recorded, and apparently accepted the evidence of the family counsellor that in the context of a proposed move by the mother from S to C, “provided the children are living with either parent in a secure, attached relationship they could well tolerate another move to another place”.
There followed detailed consideration of the considerable body of evidence which the parties had adduced in relation to migraines from which the father had suffered in the past, and their impact upon his parenting capacity.
For reasons which she detailed, her Honour preferred the evidence of the mother and her witnesses to that of the father and his witnesses in relation to the migraine issue, concluding that the father “suffered migraines up to at least 2004”, albeit with what “frequency and intensity” her Honour was “unable to say”. Whilst her Honour accepted that, “up to at least 2004”, the father’s migraines “would have made the mother’s role as a parent of young children more onerous”, her Honour’s decision in the proceedings before her was not referrable to any impairment of the father’s parenting ability by virtue of migraines.
The learned Federal Magistrate recorded that the father agreed that the mother was “a very good mother”.
Her Honour also recorded that the two older children missed their friends, their school, the paternal grandmother, G and their father and missed being with the father “as much as they were used to before the move” to Sydney in 2008. However, as her Honour observed the children may have believed that if they went “back to [G] their mother would come with them and they would all be together in that town again”. Her Honour considered that the children did not “realise that their mother would not move back to [G] and they would then be living in that town with their father only”.
Her Honour recorded that the family counsellor’s reports concluded that having regard to the children’s ages, and that the mother was the “stay at home parent”, A’s primary attachment was to her.
The learned Federal Magistrate further recorded that:
71.Both parents agreed that [S] and [J] could live with either of them and whether they lived with their mother or their father these children will be able to maintain the benefit to them of a meaningful relationship with the other parent. That was also Mr [L’s] conclusion.
For reasons which she detailed (pars 74, 75 and 76, page 32, 33) the learned Federal Magistrate accepted that living in G would not “satisfy the mother’s need to maximise her potential” whilst living other than in G would “be a vastly different life” for the father.
After referring in some detail to the contents of the further family report, published in the month prior to the trial of the proceedings, the learned Federal Magistrate addressed the relevant matters arising from s 60CC of the Family Law Act.
The learned Federal Magistrate reiterated that:
102.The older two children are of an age where they can maintain the benefit of their meaningful relationship with each of their parents no matter with which parent they live with. I do not see that there's any issue there.
Her Honour concluded however with respect to A, the youngest child, that:
103.…If he does not continue to live with his mother until at least his primary attachment process is over, which is about age 6, …such a separation will affect his capacity to have a secure secondary attachment to his father as his older brother and sister clearly have. Those risks are significant and to effect such a separation of [A] from his mother at this time is an experiment. The risks are profound.
For reasons which she detailed, the learned Federal Magistrate did not consider the wishes of the children to be “solely determinative” of the proceedings.
Her Honour recorded that the children “have an excellent relationship with their parents, their grandparents, their friends and family but [A’s] primary attachment figure is his mother and that attachment is still developing at this stage”. Her Honour also recorded that both parents had the “willingness and ability” to facilitate and encourage a close and continuing relationship between the children and the other parent.
The “likely effect of any change”, was then addressed, her Honour concluding that the children “seem to be settling in (in Sydney) although they still do pine for [G] and their father”.
Her Honour referred to the family consultant’s evidence that a change of residence to Canberra could be “accommodated by the children because of their secure attachment to their parents”. Her Honour reiterated her earlier conclusion that “a change back to [G] would mean that they are no longer living with their mother. She cannot return. That factor would be a significant change to their living arrangements”.
The father’s proposal was considered by the learned Federal Magistrate as likely to result in “the greatest change to these children’s living arrangements and have the greatest impact upon them”.
Her Honour reiterated her earlier observation that, whatever order she made, there would be “huge practical difficulty and expense in the children spending time with their parents”.
The capacity of the parents to provide for the children’s needs was, for reasons which her Honour detailed (pars 113, 114, 115), considered to favour the mother who had a “more expansive and open approach (to parenting) in exposing the children to other options and lifestyles” than did the father.
Both parents were found by the learned Federal Magistrate to have a proper attitude “to the responsibilities of parenthood” and to have “taken all opportunities to engage with and be involved in their children’s lives”.
Against the background which she had detailed, the learned Federal Magistrate concluded:
117.The least disruptive order I could make today would be that the children remain living with their mother either in Sydney or Canberra. A move of the children to live in [G] with their father would separate the children from their mother. There is significant risk to [A's] attachment and his emotional and psychological stability in the future of such a separation. As Mr [L] said [A] is still continuing with his primary attachment. I accept the older children would be returning to an environment with which they are very familiar and have very fond attachment to and have expressed a clear wish to return to live. The older children can live with either parent successfully.
Her Honour reasoned:
118.By [A] remaining with his mother he will continue to benefit from the growing relationship he has with his father which has not diminished despite the mother’s move. Remaining in his mother’s primary care is essential for [A], his relationships in the future and his emotional health.
Whilst her Honour considered that the “best case scenario” would be for the father to move close to where the children were living so that he could be more involved with them on a daily basis, she accepted that such a scenario was not on the father’s “horizon at this time” and would “cause him some difficulty”.
In concluding her Reasons for Judgment, her Honour recorded in summary:
120.On the fine balance in this matter the factors that are weighing most on my mind is to ensure by any order I make [A's] primary attachment is not disrupted and his ability to form close relationships in the future is not compromised. As the children must all live together this means, on the weight of evidence, the children should remain living with their mother in Sydney or Canberra and spend time with their father in [G] or in Sydney or in Canberra. That is the order I find that is in the children’s best interests and I will so order.

Relevant Legal Principles

Whist the principles governing the father’s appeal to this Court are not in doubt, as both parties have been self represented, and there has not been an Independent Children’s Lawyer, it may be helpful for the parties to briefly record the principles by reference to which we approach the father’s appeal and his further evidence application.
There is a presumption at law that a trial judge’s decision is correct, and the onus rests on the appellant to show otherwise (see Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 per Kitto J at 627 – 628; Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 per Windeyer J at 206 – 208).
In House v The King (1936) 55 CLR 499 the High Court 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.
Kirby J in CDJ v VAJ (1998) 197 CLR 172 explained the basis of appellate intervention at 230-231; 85,465 (at pars 186(1) and 186(2)) in the following terms:
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.
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.’

The principles which govern challenges to the weight afforded relevant matters are well settled, and do not require extensive restating in this appeal. In Gronow v Gronow (1979) 144 CLR 513, S 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.
In De Winter v De Winter (1979) FLC 90-605 Gibbs J said at 78,092:
There are many other authorities, from Young v. Thomas (1892) 2 Ch. 134, at p.137, to Australian Coal and Shale Employees’ Federation v. The Commonwealth (1953) 94 C.L.R. 621, at p.627, that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error.… The question is whether the invalid reason has influenced the ultimate conclusion, or whether the error was immaterial; if the error did affect the conclusion, the result may nevertheless be so plainly right that it can be allowed to stand notwithstanding the unsoundness of some of its foundations.
In CDJ v VAJ (1998) 197 CLR 172 McHugh, Gummow and Callinan JJ discussed the scope of s 93A (2) at 109:
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.

Grounds of Appeal

In his Amended Notice of Appeal, the father articulated 24 separate complaints. Albeit we shall deal with each of the father’s complaints, it is convenient to do so, so far as possible, by reference to the subject matter of such complaints.

Asserted errors of fact

Grounds 1, 2, 3, 4 and 7 asserted that the learned Federal Magistrate made erroneous findings of fact.
How those asserted errors of fact were suggested to have vitiated the exercise of her Honour’s discretion was not articulated.

Ground 1

Ground 1 of the father’s Amended Notice of Appeal provided:
1.Her Honour erred in her addition to what the Family Consultant Mr [L] stated under oath on 1 April 2009 that [A] had “an ability to tolerate an absence from his mother” if he went to live with his father, and which he did not qualify with the addition inserted by Her Honour in her Reasons for Judgment, paragraph 90 “but he would need professional intervention”. There was no suggestion by Mr. [L] in his sworn evidence given in court on 1 April 2009 that if [A] was to live with his father he would need professional intervention.
In his written outline of argument, the father asserted:
2.Her Honour erred in her addition to what the Family Consultant Mr [L] stated under oath on 1 April 2009 that [A] had “an ability to tolerate an absence from his mother” if he went to live with his father, and which he did not qualify with the addition inserted by Her Honour in her Reasons for Judgment, paragraph 90 “but he would need professional intervention”. There was no suggestion by Mr. [L] in his sworn evidence given in court on 1 April 2009 that if [A] was to live with his father he would need professional intervention.
3.In fact Mr [L], while outlining what can occur if a child is removed from his attachment during his sworn evidence on 1 April 2009, page 36 and line number 15 of the Transcript, stated “but of course, in this case, if your Honour were to decide to allow [A] to remain with his father, I think that he may adjust, because he knows his father”.
In response, the mother submitted:
3.I would ask the court to note that Mr [L] has stated in his Family Report dated 10.12.2008 in paragraph 32 “…if he ([A]) goes into his fathers care now he would encounter a difficult adjustment task and may need the assistance of appropriate professionals”.
4.This shows that FM Henderson did have a thorough understanding of Mr [L’s] professional opinion given through both written and oral evidence.
As submitted by the mother, Mr L did, in the Family Report of 10 December 2008, express the qualification to which the learned Federal Magistrate referred in her Reasons for Judgment. The fact that he did not reiterate that in later oral evidence does not alter or detract from that statement. To the extent that the father may perceive that Mr L’s oral evidence was in some way entitled to greater weight than his earlier report, that perception is misconceived. Whilst Mr L does not appear to have formally adopted his reports when commencing to give evidence in chief before the learned Federal Magistrate, the parties could not have been under any misapprehension that the reports were before the learned Federal Magistrate and formed part of the evidence in the case.
The transcript of Mr L’s evidence in chief records that he drew to the attention of the learned Federal Magistrate, and the parties, two typographical errors appearing in his report. Mr L’s reports were in evidence before her Honour and were, subject to matters emerging from his cross-examination, or other evidence suggesting that to do so was unsafe, able to be accepted by the learned Federal Magistrate and afforded weight. We have not been referred to anything meeting either of those requirements. We thus do not consider this complaint to have substance.
Moreover, the learned Federal Magistrate’s decision, as her Reasons for Judgement reveal, was not based upon a finding that the child A would be unable to tolerate an absence from his mother, but rather from her Honour’s conclusions as to the likely impact upon the child of not living with his “primary carer”. Indeed, the orders made by the learned Federal Magistrate with respect to school holiday periods are predicated upon the child A being able to tolerate an absence from his mother.

Ground 2

Ground 2 provided:
2.Her Honour erred in the finding “the longest the child has spent away from his mother at this stage is the six or seven days when he was with his dad in [G]” The children’s care arrangements had been a form of equal time from very soon after the separation in 2006, not just from April 2008, including where they, including [A], were with me for 2 and 3 weeks at a time, including 3 weeks during the last Christmas holidays which he spent in [G] with me. The evidence was clearly shown in my affidavits, the court orders previously made, and was agreed to substantially by both parties during the court hearing. It is a view held only by Her Honour and was misleading to the expert Mr [L] whilst he was giving evidence. [A] in particular has spent much more time with me than with his mother since separation, except for the removal of him recently.
In support of this challenge, the father submitted:
4.Her Honour erred in the finding “the longest the child has spent away from his mother at this stage is the six or seven days when he was with his dad in [G]” paragraph 91 in her Reasons for Judgement. The children’s care arrangements had been a form of equal time from very soon after the separation in 2006, not just from April 2008, including where they, including [A], were with me for 2 and 3 weeks at a time, including 3 weeks during the last Christmas holidays which he spent in [G] with me. The evidence was clearly shown in my affidavits, the court orders previously made, and was agreed to substantially by both parties during the court hearing. It is a view held only by Her Honour and was misleading to the expert Mr [L] whilst he was giving evidence. [A] in particular has spent much more time with me than with his mother since separation, except for the removal of him recently.
5.In making generalised assumptions about attachment Her Honour states “In our society it’s often the mother because the mother is the one who stays at home” on 1 April 2009, page 21 and line number 19 of the Transcript. It is incorrect to make these assumptions as every family is different and because of [the mother’s] Post Natal Depression and the devastation she experienced after the miscarriages, along with other illnesses including gallstones and migraines, I had to care for both her and the children much more than traditionally may have been the case in the past. If attachment is the actual time that the child spent with the parent as asserted by Mr [L], then in this particular case I would be [A’s] primary attachment as I was more present than the mother, and this is also shown by [A’s] always asking to come home with daddy whenever he is with me. The mother’s account of her care of him is dishonest such as her assertion that she “was often asked to work casually on a Monday, and I had him booked in on Mondays as well” on 1 April 2009, page 20 and line number 37 of the Transcript, which was clearly shown to be false as I cared for him on Mondays.
6.Her Honour in saying “So, the fact that you have spent the time with your son – so it was equal time or say it was a few more days – that doesn’t mean that his primary attachment was not his mother” on 1 April 2009, page 21 and line number 23 of the Transcript, shows an incorrect understanding of attachment and I believe gender bias, and also shows that Her honour did understand that I did have an equal or greater role in the care of [A] and that Mr [L], he being the expert witness, stated in response to Her Honour’s question on 1 April 2009, page 35 and number 38 of the Transcript, “All right. So it’s the actual time that the child spent with the mother?” he said “Yes”.
In response, the mother submitted that the transcript of the proceedings, at page 21, lines 15-25, made clear that the learned Federal Magistrate was not “making assumptions” but rather was “explaining that the position of primary attachment in one parent does not in any way minimise the importance of the child’s ongoing relationship with the other parent”.
It was further submitted on behalf of the mother that:
6.There was no evidence before FM Henderson to suggest that any health concerns on the Mother’s behalf inhibited her ability to care for the children.
The father’s submissions in support of this challenge go well beyond the matter articulated in the ground of appeal, but do not refer to any evidence which the learned Federal Magistrate was obliged to accept contradicting the “six or seven day” finding made by her. Nor have we been referred to evidence which her Honour should have accepted which enlivened the matter complained of in the final sentence of this ground.
Early in her Reasons for Judgment, the learned Federal Magistrate recorded that, from “at least April 2008 until the mother’s move (to Sydney) the children’s care arrangements had been a form of equal time”, from the separation of the parents in August 2006 to that time the children’s time with their father having been “no less than significant and substantial”.
Significantly, her Honour proceeded to record that the child A’s relationship with his father had “not diminished despite him being separated from his father for lengthier periods than he had been used to when the family lived in [G]”.
As a balanced reading of the learned Federal Magistrate’s Reasons makes clear, her Honour’s ultimate conclusion turned significantly upon her findings, and the inferences she drew from them, with respect to the child A’s “primary attachment” and the comparative “benefits and deficits” associated with the proposals of each of the parents.
Nothing to which we have been referred establishes that her Honour erred in fact in the manner complained of in this ground. Nor has it been established that Mr L was misled by her Honour or anyone else. Although not strictly relevant to the ground, nothing to which the father has referred us, or which we have ourselves discerned from the transcript of the proceedings, either in the passages identified by the father or elsewhere, provides any basis for concluding that her Honour’s understanding was deficient in the ways suggested by the father, or that bias of any kind was demonstrated by her.

Ground 3

Ground 3 provided:
3.Her Honour erred in her finding that the mother was the children’s primary care giver. It was shown that both Her Honour and the Family Consultant had made incorrect assumptions and been misinformed about the amount of care provided by the mother, and shows the danger of depending on unsubstantiated hearsay.
In support of this challenge, the father submitted:
7.Her Honour erred in her finding that the mother was the children’s primary care giver. It was shown that both Her Honour and the Family Consultant had made incorrect assumptions and been misinformed about the amount of care provided by the mother, and shows the danger of depending on unsubstantiated hearsay
8.When Mr [L] stated on 1 April 2009, page 35 and line number 30 of the Transcript, “the child lived with his mother, and, as a consequence, Mr [Foster] had involvement with him fairly regularly but not upon a daily basis” and on page 35 and line number 35 of the Transcript, “That was the pattern subsequent to the separation and is the pattern which currently exists, I understand” shows he based his report on entirely incorrect information and assumptions about the care arrangements since separation in 2006 and it wasn’t until well into his appearance in the court that he realised he had been misinformed and stated on page 37 and number 40 of the Transcript, “Well, then, following on from Mr [Foster’s] assertion, it would seem the child has some ability to tolerate an absence from his mother and life in his care” and “but, of course, in this case, If your Honour were to decide to allow [A] to remain with his father, I think that he may adjust, because he knows his father”. [
In response, the mother submitted:
7.Mr [Foster] re-asserted and re-explained his proposal that he was in fact [A’s] primary attachment throughout the proceedings. This proposal was heard by both Mr [L] and FM Henderson, and yet both came to the conclusion that Mr [Foster] was not the child’s primary attachment. The time that the children spent between Mr [Foster] and myself was clarified and agreed upon by both parties, still the conclusions that Ms [Foster] was the primary attachment was reached.
Nothing to which the father has referred in support of this challenge establishes that the learned Federal Magistrate’s finding was not reasonably open to her. It may be that other and different findings were also open, but that is not the test for present purposes.
To the extent that the father contends that the Family Consultant was misled as to the arrangements for the children at any particular time, it was open to the father in cross-examination of him to suggest his version of events. The father has not referred us to anything in the transcript of the trial which establishes that the Family Consultant “based his report on entirely incorrect information and assumptions about the care arrangements since separation in 2006”. Nor does the evidence to which the father has referred in support of this complaint establish such complaint.
For reasons which she provided, the learned Federal Magistrate preferred the evidence of the mother to that of the father where such evidence was in conflict. Nothing to which we have been referred, either in the context of this challenge or elsewhere, provides a basis for concluding that her Honour palpably abused the advantage she enjoyed as the Federal Magistrate.
In Abalos v Australian Postal Commission (1990) 171 CLR 167 (at 178) McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ concurred) referred to “the power of the Court of Appeal” and to the judgment of Lord Sumner in SSHontestroom v SS Sagaporack [1927] A.C. 37 (at 47):-
“not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.”
In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 (“Earthline”), having extensively reviewed the history of “Appellate review of facts”, and the “Emphasis on the duty of appellate review and its constraints”, Kirby J explained “the trial judge’s real advantages” in relation to the credit of witnesses. In the course of his judgment (619, paragraph 90) his Honour said:-
“The true advantages in fact-finding which the trial judge enjoys include the fact that the judge hears the evidence in its entirety whereas the appellate court is typically taken to selected passages, chosen by the parties so as to advance their respective arguments. The trial judge hears and sees all of the evidence. The evidence is generally presented in a reasonably logical context. It unfolds, usually with a measure of chronological order, as it is given in testimony or tendered in documentary of electronic form. During the trial and adjournments, the judge has the opportunity to reflect on the evidence and to weigh particular elements against the rest of the evidence while the latter is still fresh in mind. A busy appellate court may not have the time or opportunity to read the entire transcript and all of the exhibits. As it seems to me, these are real reasons for caution on the part of an appellate court where it inclines to conclusions on factual matters different from those reached by the trial judge”.
The fact that the learned Federal Magistrate made a finding other than that urged upon her by the father does not establish that so doing was erroneous. Nothing to which we have been referred establishes that it was not reasonably open to her Honour to find as she did.
It is clear beyond doubt that, for whatever reasons, from June 2008 to the trial of the proceeding some 8 months later, the children had lived in Sydney with the mother and had spent time with the father. It is not in doubt that the mother’s care of the children had not been disturbed or reduced in ways which the father asserted that his care had been.

Ground 4

Ground 4 provided:
4.Her Honour erred in the finding that “[A’s] living arrangement, living with his mother and spending time with his father are suiting him at the moment”. This is an assumption for which there is no evidence. The fact is he does becomes [sic] upset when he is parted from me, often crying for his daddy and he often asks to come to “daddy’s house” whenever I visit Sydney and asks to stay with me when I have to return him to Sydney, showing his attachment to me.
The father did not advance anything in his outline in support of this complaint. Nor did he refer the Court to any evidence which precluded the learned Federal Magistrate from finding as she did.
In response the mother submitted:
8.In regards to Mr [Foster’s] assertion that FM Henderson erred in “assuming” that the current living arrangements are suitable for [A].
9.I would like to draw the courts attention to Mr [L’s] report dated 10.12.2008. In the “Conclusion” section after paragraph 35, Mr [L] states “The assessment indicates that the attachment process remains important for [A] and his relationship with his mother ought not to be disturbed” and in the second Family Report dated 20.3.2009, in paragraph 18 Mr [L] States “Ms [Foster] emerged as [As] primary attachment figure…[A] needs an affectionate and continuing relationship with his father. But, a change in [A’s] primary carer, before he matures, represents a risk to the child’s stable emotional development. Therefore this assessment indicates that [A] should remain in his mothers care at least until he is five or six years old”.
10.These statements by Mr [L] are the grounds by which FM Henderson has formed the opinion that “As living arrangements, living with his mother and spending time with his father are suiting him at the moment” (Reasons for Judgment 2.4.09 paragraph 92).
There is merit in the submissions of the mother. Nothing in the evidence of the Family Consultant to which we have been referred, or discovered for ourselves, was inconsistent with the Federal Magistrate’s finding.

Ground 7

Ground 7 provided:
7.Her Honour erred in finding that the father has changed his behaviour towards the mother and the children. The mother did not say this in her final submissions and this was purely Her Honour’s idea and suggestion. The fact is that there has never been any of the behaviour falsely alleged by the mother.
In support of this challenge the father asserted:
13.There is a contradiction when Her Honour puts forward the idea that there has been a change in the father’s parenting and her comments such as in paragraph 21 of her Reasons for Judgment “They were each courteous and respectful of the other and of the court process. I was most impressed with these two parents who were gentle, caring and very much focused on what was best for their children. Their children are very fortunate indeed to have such competent parents”.
14.There has never been any of the behaviour falsely alleged by the mother who I believe brought these allegations to justify herself in her unilateral relocation and taking the children from their long term home. The mother proves by the final orders she sought, by the text messages and email she sent to me prior to her removal of the children, and by her other actions that she has never had any fears or concerns at any time about me, either for herself or the children. Neither has she made any previous complaints to any school or police or medical professional of any of her false allegations. This is supported by the evidence attached to my affidavits. She is proved to be presenting to the court and to Mr [L] false statements.
In reply, the mother submitted:
14.That the mother did not state that there had been a change of the Fathers behaviour. I would like to draw the courts attention to pg 6 of the Transcript of Proceedings dated 2.4.2009 (day 2 of proceedings) where Ms [Foster] states “it has also been demonstrated over the previous months that the father and the children have been able to establish a healthy relationship under the new circumstances” (lines 13-15).
15.Again, on page 8 of the “Transcript of Proceedings” dated 2.4.2009 Lines 21 Ms [Foster] is quoted as saying “Your Honor [sic] I believe that both Mr [Foster] and myself desire to be responsible parents”. This was followed by bringing up Section 60CC ss 3(j) Consider the risk of family violence and other members of the family. To which FM Henderson asks “would you say its, if any, minimal now?” and Ms [Foster] replied “Yes your Honor”.
16.Her Honor clarified this by saying “Good. It may have been in the past that you would say: now it’s pretty normal?” to which Ms [Foster] replied “Yes your honor”. (Transcript of Proceedings, page 8 lines 30-40).
17.Clearly Ms [Foster] is not a passive participant in this conversation, on the contrary she initiated these statements.
18.In regards to Mr [Foster’s] summary of argument Paragraph 13, where he quotes FM Henderson as commenting on both Mr and Mrs [Foster’s] courteous and respectful behavior during the court proceedings. This was clearly an observation and complement [sic] to both parties regarding our presence during the judicial proceedings. This does not have any significance relating to attitudes or behaviors which the parties may have exhibited outside the courtroom.
Nothing to which we have been referred establishes the “contradiction” complained of by the father. For reasons which she provided, the learned Federal Magistrate made a number of favourable observations of the father’s parenting skills. Moreover, in the passages of her judgment to which we have earlier referred, the learned Federal Magistrate acknowledged the capacity of the father to adequately provide for the children in every relevant respect.
As the final paragraph of her Honour’s Reasons reiterates, her conclusion that the welfare of the children would be better served by living with their mother in Sydney or Canberra than primarily residing with their father in G was significantly influenced by her findings of fact with respect to the primary attachment of the youngest child A, her concerns about the impact on A’s welfare if that primary attachment were to be disturbed, and the “benefits and deficits” of each of the competing proposals.
None of the asserted errors of fact has been demonstrated. Even if, contrary to our conclusion, any of the errors of fact asserted by the father had been established, we would not conclude that such errors could have vitiated the exercise of her Honour’s discretion. None of the facts asserted to have been erroneously found, or not found, related to the matters which, in the exercise of her discretion, the learned Federal Magistrate considered influential.

Failure to consider relevant evidence

Two grounds articulated by the father asserted that the Federal Magistrate erred by not taking into consideration certain evidence.

Ground 5

Ground 5 provided:
5.Her Honour erred in not taking into consideration such evidence as the observation of [Ms C] in her affidavit that [A] “got upset that it was time to leave [the father]” in paragraph 48, and this paragraph and paragraph 17 should not have been struck out when 2 paragraphs of hearsay were allowed.
In his written outline of submissions, the father did not submit anything further in addition to the complaint conveyed by this Ground.
In her written outline, the mother asserted that the evidence of Ms C “actually confirms her viability and honesty as a witness”. The evidence to which the parties referred (paragraph 48 affidavit Ms C sworn 28.1.2009) provided:
48.I was also present at the initial court ordered visitation. The children were happy to see [the father], but left him after a few minutes to continue playing on the equipment in the play centre. They did not seem overly upset or engaged after not seeing their dad for the past month. I offered [the father] the option of starting earlier the following day, and that I would bring the children an hour earlier so that they could get their initial playtime out of their system so that they would be more interested in spending time with him. On the following day, the children did spend more time with [the father], but were still more interested in playing on the equipment. [The father] tended to spend most of his time with [A]. On leaving, [A] was the only one of the children that got upset that it was time to leave [the father]. The other kids showed no sign at all of any sadness or want for him to stay.
The matter complained of by the father could not have impacted upon the learned Federal Magistrate’s exercise of discretion. Given the lay and expert evidence before her Honour as to the children’s close attachment to each of their parents, and having regard to the child A’s age, and the learned Federal Magistrate’s findings of fact with respect to the children’s attachment to their father in G, it would be little short of extraordinary if there had not been some evidence of one or more of the children becoming “upset” when their time with their father came to an end. How, having regard to evidence of that kind, without more, and nothing more has been suggested, this asserted deficit could have vitiated her Honour’s exercise of discretion has not been established.

Ground 10

Ground 10 provided:
10.Her Honour erred in not considering the fact that the mother currently depends a great deal on her family to care for the children as she herself asserted, and previously depended a great deal on me, our friends and my mother to care for them. By moving to Canberra she won’t have this support and will cause further hurt to these children.
In support of this challenge the father asserted:
20.The mother in reference to her move to Canberra on 1 April 2009, page 8 and line number 40 of the Transcript, said “I believe that the amount of distance between them and their father means they could have a weekend trip to [G], and I think that would sort of outweigh re-establishing a new routine”. I do not want to prevent her moving to Canberra, but I believe another move will be very hard for the children and I will not be able to continue to see them fortnightly as ordered because of the greater distance and the extra expense of accommodation, where at present I am able to stay with relatives in or near to Sydney.
In response the mother asserted:
23.Her Honor FM Henderson and myself both considered the impact of moving away from my support structure in Sydney. This can be seen in the transcript of proceedings pg 7 Lines 30 Ms [Foster] says “the negative is that I would have to work out pretty much how to do it with my friends rather than my family. My Friends would support me. I have some friends there, but my mother and my father who support me a lot, would be willing to help me, but wouldn’t live next to me”.
Although the learned Federal Magistrate may not have expressly referred to the mother’s support networks, her Reasons for Judgment leave no basis for concluding that her Honour was unaware that residing in Sydney or Canberra represented an arrangement which was untried in the case of Canberra, and of relatively short duration (8 months) in the case of Sydney. As her Honour recorded, the mother’s evidence was that she intended to study part time if the children were in her care.
Her Honour expressly recorded that the negatives of a move to Canberra would be that the mother would “not have the support of her family which she has in Sydney, and the children will be moved again and be subject to further change”.
Her Honour accepted the evidence of the Family Consultant that “provided the children were living with either parent in a secure attached relationship they could well tolerate another move to another place”.
There can be no doubt that the learned Federal Magistrate had regard to the fact that a move to Canberra would deny the mother the support of her family.
The evidence of the Family Consultant, to which we have referred, and which her Honour accepted, did not establish that such a move would “cause further hurt” to the children. Nothing to which we have been referred provides any basis for concluding that it was not reasonably open to her Honour to accept the evidence of the Family Consultant in relation to this issue.
Nothing to which we have been referred establishes that the mother had previously “depended a great deal” on the father, his mother and/or friends to care for the children.
The learned Federal Magistrate made positive findings as to the capacity of both parties to adequately provide for the children in the circumstances detailed in their competing proposals for the children’s care. As her Honour recorded, many of those matters were, sensibly, conceded by the parents. Nothing to which we have been referred persuades us that the learned Federal Magistrate failed to consider the matter complained of by the father in this ground.

Erroneous conclusions

Grounds 6, 8, 9 and 11, although not necessarily expressly so stated, in substance assert that the learned Federal Magistrate reached erroneous conclusions.

Ground 6

Ground 6 provided:
6.Her Honour erred in her conclusions drawn from the ambiguous questions “have you noticed any change in your relationship with [A] since the mother’s unilateral move to Sydney?” to which I replied “I haven’t noticed a change, no”. By this I meant that [A] still has a close attachment to me and still becomes quite upset when parted from me and Her Honour’s use of this question to prove her view shows considerable bias. I did not use the word “diminution” which Her Honour asserts in her reasons for judgment.
Beyond reiterating the ground, the father did not advance the complaint which this challenge raises. With respect to the father, accepting he may not have used the word “diminution” does not render erroneous the Federal Magistrate’s finding.
The learned Federal Magistrate clearly, and repeatedly in her Reasons for Judgment, accepted that A had a close and loving attachment to his father. The strength of that relationship had not been “diminished” despite A being separated from his father “for lengthier periods than he had been used to when the family lived in [G]” after the mother unilaterally moved the children to Sydney in June 2008.
Although the father would probably not see it as such, the finding made by her Honour was favourable to the father. Had the attachment between father and child been weaker, given A’s age, it would have been reasonable for it to have been “diminished” to some extent at least after the move to Sydney and the impact of that move upon the time A was able to spend with his father. This complaint lacks substance.

Ground 8

Ground 8 provided:
8.Her Honour erred in stating that returning the children to [G] would be an experiment, as they would be returning to the same familiar and stable home they have lived in for most of their lives, the school they are familiar with, their gran, their long term friends and their dad and is where they want to live. There are no risks, profound or otherwise, and this view goes against the evidence given in court by the expert witness where her understanding of attachment was shown to be incorrect by Mr [L].
In support of this challenge the father submitted:
16.Mr [L] also noted in his second report that “it might be noted that by referring to the attractions of the school and the town they may be avoiding the disclosure of an inclination to live with their father and consequently disappoint their mother
In response the mother submitted:
19.FM Henderson did not refer to sending the children back to [G] as an “experiment”. Her Honor states “I am most concerned if he ([A]) does not continue to live with his mother until at least primary attachment is over, which is about the age six, that such a separation will affect his capacity to have a secure secondary attachment to his father as his older brother and sister clearly have. Those risks are significant and to effect such a separation of [A] from his mother at this time is an experiment. The risks are profound”. (Reasons for Judgment 2.4.2009)
20.The “experiment” referred to is separating the [A] from his primary attachment, which risks his ability to form a secure secondary attachment with his father.
As is not in doubt from her Reasons for Judgment, the “experiment” which concerned the learned Federal Magistrate was separating A from his mother at the present time, rather than returning the children to G.
Had the “experiment” been as the father described it in this ground, the evidence before her Honour would not have rendered such a conclusion erroneous in any event. As is not in doubt, the children had never lived in G with their father in the absence of their mother, other than for the periods revealed by the evidence subsequent to June 2008. This ground lacks substance.

Ground 9

Ground 9 provided:
9.Her Honour erred in that, while the mother should be allowed to move to Canberra to study, allowing the children to be further relocated and not returning the [sic] them to their home in [G] is not in the best interests of these children, and did not consider the affect it will have on [J] in particular, given the assessment in the Family Report that he is depressed which has only occurred since the mother’s removal of him to Sydney. They still have a strongly held desire to return to [G], and they will not easily adjust to another move away to Canberra.
In support of this challenge the father asserted:
18.In fact if the children were to live in [G] with me and live with their mother during the holidays it would facilitate her completing her studies. As it is there is no guarantee that there will be anyone to care for the children while she is attending classes, especially during the evenings, and shows a lack of forethought in how these children will be cared for. Friends can only be relied on occasionally and not in the long term as she found out in [G] where she outwore her welcome by expecting her friends to too often look after the children during the times she cared for them, ultimately depending on me or my mother to care for our children if she needed assistance.
Other than repeating what would have been a matter for submission at trial, nothing raised by the father in support of this challenge establishes appealable error.
As the mother submitted in her outline, the learned Federal Magistrate [transcript page 41, lines 20-30] canvassed with the Family Consultant the impact on the children of a move to Canberra:
FEDERAL MAGISTRATE: ….one thing I did forget to put - and I'm sorry to cut you off, Mr [Foster] - is that the mother has been offered a scholarship to [a university] to study a degree in psychology - which would be your second year, ma'am, would it - and she's deferred that. She could have taken it up this year but she deferred it and it’s worth about $6000 to her. What would your view be if the mother - if I said the children would live with the mother and gave the mother the ability to move to the [university] in Canberra to take up that opportunity at the university, what impact, if any, would a further move with the children and their mother to Canberra have upon the children?‑‑‑Well, I think it would have some impact on their adjustment tasks. They do adjust and deal with the - perhaps a measure of grief, what have you, at leaving their previous school, et cetera, but I think they would adjust. I think the important thing is that they, irrespective of where they're living, have a relationship with both parents on a continuing basis as far as is possible.
In the first of his two reports, Mr L recorded that “[J] appeared depressed and confused by a lack of contact with his father”. Notwithstanding that observation, Mr L expressed the opinion in concluding his report that A’s “attachment process” remained important and that “his relationship with his mother ought not to be disturbed”. Mr L also concluded in that report that whilst either parent could care appropriately and adequately for the children in general, the mother was “better placed to meet the children’s emotional and intellectual needs than was the father”.

In his second report, some months later, Mr L recorded that nothing emerged from his second assessment of the parties and the children to “change the conclusions of the previous report”. Mr L did not refer to any depression or confusion on the part of A although he reiterated in some detail his opinion that A should remain with his mother by reason of his age, maturity and primary attachment to his mother. It is to be remembered that between Mr L’s first and second reports, arrangements had been implemented for the children to spend significant time with the father. The learned Federal Magistrate acknowledged that the two older children expressed clear wishes to the Family Consultant, which were revealed by both his reports of their wish to return to live in G.
Her Honour also recorded:
71.Both parents agreed that [S] and [J] could live with either of them and whether they lived with their mother or their father these children will be able to maintain the benefit to them of a meaningful relationship with the other parent. That was also Mr [L’s] conclusion.
Nothing to which we have been referred establishes that so concluding was not reasonably open to the learned Federal Magistrate on the evidence. The evidence of the Family Consultant, which the learned Federal Magistrate accepted was that:
82.It is clear from the report that the children still pined for [G]. [J] said he was used to living apart from his dad now but if he was asked he would “probably” prefer to live in [G]. [S] was much more reluctant to be as open as [J] but it is fairly clear she would also prefer to live in [G].
83.In that second report, in his evaluation at page eight, paragraph 15, Mr [L] stated:
Nothing emerged from this second assessment to change the conclusion of the previous report. [J] and [S] demonstrated a somewhat impartial attitude to their parents and would adjust to living with either.
85.It was clear the children did not want to take sides because they love their mum and their dad.
Both children vaguely indicated that they want to live in [G] with [S] simply saying “I like it there”, and [J] referring to his friends, better play equipment at school, and to his recollection that the children are “nicer”. It might be noted that by referring to the attractions of the school and the town they may be avoiding the disclosure of an inclination to live with their father and consequently disappoint their mother.
At paragraph 109 the learned Federal Magistrate recorded:
109.The likely effect of any change. The children have been moved to Sydney. They seem to be settling in although they still do pine for [G] and their father. Mr [L] tells us a change to Canberra to live can be accommodated by the children because of their secure attachment to their parents.
Nothing to which we have been referred establishes that her Honour erred in relying upon the evidence of the Family Consultant to which she referred, or, in concluding as she did in reliance upon that evidence. This ground lacks substance.

Ground 11

Ground 11 provided:
11.Her Honour erred in making orders that allow the mother to move anywhere in the Sydney and Canberra areas. The Sydney area can be considered to reach from Gosford to Campbelltown. If in future I find a job and rent a house closer to the children, the orders leave it open for her to move from Sydney to Canberra and back as she pleases or if we have a disagreement or when she has a depressive episode.
In support of this challenge the father submitted:
22.The mother has not completed one year of a psychology degree but has deferred beginning this degree to next year. She has been studying chemistry since mid 2006 at [a university] in [A] and apparently is now studying at … TAFE. Previously she began studying a Bachelor of education at [sic] but did not complete this, leaving Sydney to go to … Queensland and then to [far western] NSW, then to [G] where we met in 2008. After we were married she took up another Bachelor of education through [the university] in [A] but did not continue. To my knowledge she has not completed any of the university studies she has began [sic].
In response the mother submitted that:
25.In response to paragraph 22 of Mr [Foster’s] “Summary of Argument” I would assert that Mr [Foster] shows an overt lack of respect for my desire to become educated and qualified. I have obtained a Diploma of Health Counselling through the Australian Medical Registrar through my studies since being in Sydney…
26.In regards to the studies I have undertaken at the University [at A], I have completed first year of a Bachelor of Science, and have been accepted into [the University at Canberra] with my previous study from [the University at A] being taken with me. Therefore, as I commence a B. Science (Psychology) I will have already completed first year, and shall progress immediately into second year. I am achieving a distinction average.
Neither party has referred us to any evidence in relation to the various assertions made by them with respect to this topic. The matters raised by the parties are not capable of advancing the complaint articulated by this ground, the thrust of which is apparent from its terms.
There seem to be two aspects of the complaint, the second of which asserts a “depressive episode” on the part of the mother.
We have not been referred to any suggestion before the learned Federal Magistrate that the mother’s psychological or mental health was a factor relevant to the determination of the best interests of the children.
The learned Federal Magistrate referred, in some detail, to the evidence that the parties had adduced before her in relation to alleged “psychological abuse”. Whilst referring to the mother’s evidence that she had been “much happier since separation”, her Honour did not address any suggestion that the mother had ever suffered from, was suffering from or would in the future suffer from any depression or similar psychological or mental impairment.
We have not been referred to any evidence establishing the prospect of the mother having a “depressive episode” in the future. Nothing to which we have been referred reveals this to have been an enduring concern to the father at trial. We have not been referred to any cross-examination of the mother suggesting the concern articulated in this ground, or any submission to her Honour to that effect. A number of the father’s own concessions to the learned Federal Magistrate as to the mother’s capacity are inconsistent with the assertion contained in this ground.
It is apparent, that through no fault of hers, some uncertainty surrounds whether the mother will in 2010 reside in Sydney or Canberra. The reasons why that was so were traversed by her Honour in her Reasons for Judgment. Her Honour recorded:
31. The mother is weighing up whether she will take up the scholarship she has been offered in 2010 worth $6,000 to finish her degree in psychology. If she commences study in 2010, takes up the scholarship and the children are in her care she will study part time. If they are not in her care she will study full time. She said to the Court that she would weigh up her options with the children’s best interests in mind. She said she could see positives and negatives, benefits and deficits on either option for the children.
If, notwithstanding the absence of any evidence rendering likely the scenario to which the father referred in this ground, the mother did move in the manner described, the father would have grounds for applying to vary the court’s orders. This complaint has not been made out.

The father’s capacity

The challenges articulated by the father in four of his grounds (12, 13, 14 and 15) could be described as relating to the father’s parenting skills or capacity.

Ground 12

Ground 12 provided:
12.Her Honour erred in making much of [the mother’s] intellectual abilities as a reason for her decision and me being a “farm labourer”, even when I was in a management position. My references indicate that I am highly competent and professional in what I do and have a wide degree of skill, knowledge and experience. Choosing to be available for my children during a difficult time in their lives though this has interfered with my career, does not reflect on my abilities to provide the intellectual, emotional and physical needs of my children both now and in the future.
Beyond repeating the ground, the father made no submissions in support of it.
The mother asserted that the learned Federal Magistrate had not made any statements “as to intellectual abilities” of either of the parties. We agree that the learned Federal Magistrate did not make comparisons unfavourable to the father in relation to the intellectual capacities of the parties.
Her Honour clearly found that the mother would be likely to benefit in various ways from being able to pursue tertiary education in Canberra.
Her Honour concluded:
32.The benefits would be that the children would be marginally closer to [G] being two hours on a round trip. The study furthers her career and her ability to provide financially for her children which is an important theme in the mother's evidence. A new career will be beneficial for the mother’s self esteem and ability to maximise options for her children which will be a positive benefit to her parenting capacity.
33.The negatives are that in Canberra she will not have the support of her family which she has in Sydney, and the children will be moved again and be subject to further change.
Her Honour concluded, in reliance upon the evidence of the father and that of the Family Consultant that the father would “find living in a large city both financially and emotionally challenging” and would find it quite “difficult” to obtain work there, not by reason of any lack of “intellect” but because the father “has skills as a farm labourer, not skills in working and living in a large city”.
Her Honour reiterated that “for the father to live even in Canberra would be a vastly different life to living in [G]”.
Perhaps the only hint in the learned Federal Magistrate’s reasons for judgment of what the father complains arises in paragraph 113 where the learned Federal Magistrate said this:
113.The capacity of each of the parents to provide for the needs of the children. Both parents have a high capacity to provide for the emotional and physiological needs of the children. The mother has a high capacity to provide for the children's intellectual and educational needs. I do not say the father has not a similar capacity but these matters are important to the mother. It is also important for the mother that each child’s potential is maximised as is their exposure to the world. The mother is anxious to provide a secure financial basis for the children which she sees as not available to her in [G]. Financial difficulty was a feature of the parent’s marriage.
However, this still does not provide a basis for the complaint that the father makes. Indeed, this is borne out not only by a close reading of that paragraph but also by what the learned Federal Magistrate said in paragraph 114, namely:
114.The mother has a very child focussed approach. The close attachment the children have with their father indicates to me that the father is able to parent his children to the same emotional and physiological level as the mother. Both are kind, competent and caring parents.
The learned Federal Magistrate certainly recognised that the parents have different approaches to parenting. She said this at paragraph 115:
115.The father's vision for the children is similar to his vision for himself. Namely, [G] is where they should be living and will provide all the children and father need. The mother has a more expansive and open approach in exposing the children to other options and lifestyles. The parents certainly have a different approach.
However, again that is not a reflection on the father’s parenting abilities in comparison to the mother’s.
Other than to the extent that we have referred to it, nowhere did the learned Federal Magistrate, expressly or impliedly, refer to the intellectual capacities of the parties. Nothing, to which we have been referred, save perhaps in one respect, suggests that her Honour was in error in anything which she there recorded. To the extent that the father may have worked as a farm manager in the past, as the evidence of the mother to which the learned Federal Magistrate referred in her judgment suggests she acknowledged he had, the failure to so describe the father did not render erroneous any conclusion the Federal Magistrate reached.
As her Honour’s reasons make abundantly apparent, the nature of the father’s work on farms (in whatever capacity) differed fundamentally from anything which was likely to be available to him in Canberra. Our understanding of the father’s case was that part of the reasons for his unwillingness to leave [G] related to those matters.
We are not persuaded that the father’s lack of success before the learned Federal Magistrate was in any way referrable to any perceived difference between his intellect and that of the mother.

Ground 13

Ground 13 asserted:
13.Her Honour erred in finding that “He became depressed and sought assistance and treatment for the effects the marriage breakdown had on his health” as I did not become depressed nor did I have treatment for it and this is shown in my medical records and both parties agreed I did not have treatment for depression.
Beyond reiterating the ground, the father made no submissions in support of this challenge.
The mother submitted in response to this challenge:
28.In regards to FM Henderson’s statement “He became depressed and sought assistance and treatment for the effects the marriage breakdown had on his health (paragraph 44 reasons for judgment) this is an accurate reflection of the Mothers statements in Paragraph 111-117 of the mothers affidavit dated 9.2.09.
The reference to the father having become “depressed” was:
44.The father describes a happy, fulfilling relationship and family life. He was devastated when his wife left him. He became depressed and sought assistance and treatment for the affects the marriage breakdown had on his health.
In his affidavit sworn 22 January 2009, the father denied that there was any “basis in fact” for suggesting he was depressed. Later in the same affidavit, the father reiterated that he was not “highly anxious or depressed”.
In her affidavit sworn 9 February 2009, the mother deposed that after the party’s separated in June 2006 the father “told me that he was considering suicide and that if I didn’t come back to him he had nothing left to live for”. The mother further alleged that the husband had spoken of suicide “frequently”. The mother further asserted that during a period when the party’s were “intending to reconcile the marriage”, the father “became more and more depressed and emotionally manipulative,” stating to her that he was “considering suicide”.
Not insignificantly, much of the behaviour asserted by the mother does not appear to have been specifically traversed or denied by the father in his affidavit material. We have not been referred to any medical evidence supporting a diagnosis of “depression” on the part of the father. The mother could not give admissible evidence of clinical “depression” on the part of the father. Read in context, we are not persuaded that her Honour purported to make a finding that the husband was clinically “depressed”. There was evidence before her Honour which she was able to accept, suggesting that the father struggled to accept the break up of the marriage. For whatever reason, the father did, to his credit, seek help in dealing with the break up of his marriage.
Whatever the father’s state of mind at the time of separation in 2006, the learned Federal Magistrate made no findings adverse to the father, either with respect to care of the children, or capacity to care for them at that or any other time. If, which has not been established, the learned Federal Magistrate erred in finding that the father had become “depressed”, that could not have vitiated the exercise of her discretion. The absence of any adverse findings in that regard, and the numerous positive findings about the father made by her Honour supports such a conclusion.

Ground 14

Ground 14 provided:
14.Her Honour erred in that the trivial matter of whether or when I had migraines in the past is irrelevant to the matter in hand, being my ability to care for our children.
Each of the parties made a number of submissions with respect to this topic. We do not need to refer to those submissions. We accept the contention of the father that “whether or when” he had migraines in the past, though not “irrelevant”, could not have impacted upon the determination of the parenting proceedings before the learned Federal Magistrate. As is clear from the transcript, this issue was vigorously agitated by the parties at trial. We do not criticise her Honour for giving the parties, who were unrepresented, the benefit of her conclusions with respect to the topic. Nothing to which we have been referred however establishes either that her Honour’s findings with respect to this topic were not reasonably open to her or, whether or not the conclusions were reasonably open to her, caused the exercise of her Honour’s discretion to miscarry.
It is clear beyond doubt, that, whatever the truth of the matter in relation to the father’s migraines until “at least 2004”, no part of the learned Federal Magistrate’s decision was influenced by the findings she made in that regard. Nowhere in her Reasons for Judgment did the learned Federal Magistrate draw inferences adverse to the father by virtue of her findings with respect to his migraines some five years earlier. No more needs to be said about this ground.

Ground 15

Ground 15 provided:
15.Her Honour erred in using the alleged migraines to find the mother’s version of events were true as the mother’s version of events and that of her witnesses have been clearly proved to be false, in some instances deliberately and her perception I believe was also clouded by her depression. It was clearly shown that the mother suffered from post natal depression and continued to suffer depression after the separation and spent a week in hospital because she was suicidal. This conflicts with Her Honour’s comments in paragraph 56 of her reasons for judgement about the mother’s depression.
In support of this challenge the father submitted:
29.[The maternal grandmother] and [Ms C’s] statements depend on what the applicant told them and on their opinion. The mother provides no corroborating evidence other than those who based their opinion on what the mother has told them. The few incidents which the mother’s witnesses claim to have observed were shown to be untrue or grossly exaggerated under cross examination.
30.Federal Magistrate Terry in her Reasons for Judgment of 29 August [sic] stated “in my view a consideration of the evidence as a whole casts considerable doubt on the reliability of the mother’s evidence” and “all of these things lead to a suspicion that the mother has at the very least exaggerated matters, in order to justify her unilateral relocation…” “These things” include the mother’s allegations that we belonged to a “cult” group, which was shown to be false, allegations of “psychological” violence, which the mother seems to equate to when we had minor disagreements where I walked away rather than continue to argue or my “not cooperating” by leaving [A] with my mum one day that I was working instead of in day-care.
31.The mother also made allegations of violence to the children but made no compliant [sic] to the Police, school or medical professionals, or see a lawyer, or commence court proceedings, or apply for a family violence order, or file a Notice of Child Abuse. The mother’s “perceptions” also include such things as a false claims about where she was living in [G] last year.

In response the mother submitted:
31.In Examination and cross examination of [the maternal grandmother], Ms [C], and Mr [T] there is, as Her Honor describes “…weight of evidence is against the father’s assertions that he has not suffered from migraines since 2001…” (Reasons for Judgment 2.4.2009).
32.In regards to FM Terry’s statements, I would ask the court to be reminded that Her Honor FM Terry did not have the opportunity to examine witnesses, or to test any evidence.
As is not in doubt, the learned Federal Magistrate heard the evidence of each of the witnesses relied upon by the parties with respect to this topic.
Her Honour was not precluded from relying upon the evidence in relation to that topic when determining the credibility of the parties. Nothing to which we have been referred establishes that the learned Federal Magistrate abused the advantage which she enjoyed as a result of having seen and heard the parties give evidence. With respect to him, the father’s beliefs in that regard are not relevant to the issue. To the extent that the father’s complaints relate to the decision of another Federal Magistrate on another occasion, those are matters which may have been material to an appeal against such decision.
As the learned Federal Magistrate in the current proceedings noted, in our view sensibly, the father’s appeal against the orders of Federal Magistrate Terry was not pursued. To his credit, the father devoted his energies to the final hearing of the parenting proceedings which have given rise to the present appeal rather than pursue an appeal against interlocutory orders a month prior to such final hearing. Our conclusions with respect to this ground have relevance to ground 16.

Ground 16

That ground provided:
16.Her Honour erred in her perception that she heard the stay application on the orders of Federal Magistrate Terry made on 29 August 2008 that the children be returned to [G] to live with their father as it was heard via phone from Darwin by Federal Magistrate Terry on 3 September 2008. I did not consent to the stay and Her Honour’s claim that I did consent is, with respect, incorrect, she was not present.
Beyond asserting that the learned Federal Magistrate “exercised her discretion wrongly” on that occasion, the father made no submissions in support of this challenge.
The appeal against the orders made by Federal Magistrate Terry is not before us. We have no need to speculate about what may have happened had it been.

The erroneous exercise of discretion

Ground 17, 18 and 19 of the father’s Amended Notice of Appeal asserted that the learned Federal Magistrate “exercised her discretion wrongly”.
Ground 17 asserted:
17.Her Honour erred in that the clearly proven dishonesty of the mother and her witnesses has been disregarded while quite rightly expecting me to be scrupulously honest. The Applicant, her mother … and sister … have been so dishonest to the Court and the Applicant to the Family Consultant about everything they claim about me, that to believe anything they say is questionable and should have cast doubt on all their evidence.
Ground 18 provided:
18.Her Honour erred in not considering the fact that the mother made threats about my contact with the children and then carried out those threats by removing them to Sydney and not allowing them to see me, over a trivial disagreement about day-care, and would Her Honour have made the same decision if I had removed the children and prevented them from seeing their other parent.
Ground 19 provided:
19.Her Honour erred in the inequality of requiring me to prove that I have family support if the children return to [G], if I’m at work or they need to be picked up from school, yet not requiring the Applicant to have the same support or show she has adequate accommodation if she moves to Canberra with the children.
Not insignificantly, beyond reiterating these grounds, the father made no submissions in support of them.
To read the grounds is to realise why, in the absence of more, they cannot succeed.
There is a presumption that the decision of the Federal Magistrate was correct. Sweeping assertions, unsupported by any reference to the evidence at trial does not provide a recognised basis for appellate intervention. To the extent that these complaints appear to assert that the learned Federal Magistrate abused the advantage she gained by seeing and hearing the parties and witnesses give evidence, nothing to which we have been referred establishes such complaints. We need not speculate about what these challenges seek to assert when the submissions in support of them give no clues in that regard.

Asserted errors of law

Grounds 20, 21, 22, 23, 24 of the father’s Amended Notice of Appeal provided:
20.Her Honour erred in that allowing the children to be relocated to Canberra, did not consider the practical difficulty and expense of the increased cost of accommodation and distance. It could mean I can’t continue fortnightly contact as ordered and prevent me from continuing to see the children regularly and provide materially for their needs and will be detrimental to them as they struggle with being relocated to an unfamiliar place. I refer to Family Law Act 1975 s 60CC 3 e [sic].
21.Her Honour erred in not considering the mother’s attitude in unilaterally removing the children from [G], their father, their grandmother and their school, and the subsequent false allegations brought before the Court to justify her actions which does not suggest the mother has any insight into how her own actions might have affected the children or may have caused harm to these children. I refer to the Family Law Act 1975 s 60CC 3 i [sic].
22.Her Honour erred in not considering that the mother in her unilateral relocation prevented the other parent from participating in making decisions about major long-term issues in relation to the children, and subsequently prevented the other parent from spending time or communicating with the children until Federal Magistrate Terry ordered her to do so. I refer to the Family Law Act 1975 s 60CC 4 b [sic].
23.Her Honour erred to take into account in her reasons for judgement, untested opinions expressed by the family consultant that were not given sworn evidence in preference to the family consultant’s sworn evidence in court that [A] would not be adversely affected if he were to live with me. I refer to the Family Law Act 1975 s 69 ZU.
24.Her Honour erred in making a decision which significantly alters the circumstances and relationship of the children to what they had been. I refer to [C & S] [1998] FamCA 66.
Beyond repeating the grounds, nothing was submitted by the father in support of most of these challenges. Notwithstanding the absence of submission we have directed our attention to what appears to be the substance of each of these challenges.

Ground 20

It is reasonably apparent from the learned Federal Magistrate’s Reasons for Judgment that both parties are in modest financial circumstances. Having outlined the competing proposals, the learned Federal Magistrate recorded, accurately there can be no doubt, that “distance and travel times are a major difficulty in this matter” no matter what order the Court made.
Her Honour further accepted that, unless the parties lived “within close proximity to each other”, an order for equal or substantial significant time could not be made “due to distance between the parents’ residences”.
Later in her Reasons for Judgment the learned Federal Magistrate recorded:
112.Practical difficulty and expense of the child spending time. Whichever order I make there is a huge practical difficulty and expense in the children spending time with their parents. The distance and cost is large. The parents have managed the travel since August/September 2008 with the father doing all the travel and not the children.
The father has not referred us to any evidence before the learned Federal Magistrate of matters of the kind articulated in this complaint. Nor has he referred us to any submission made to her Honour in that regard. In the absence of any evidence that the father would not be able to afford to “continue fortnightly contact as ordered”, or continue to see his children regularly, and we have been referred to none, this complaint cannot succeed.
The learned Federal Magistrate’s orders sought to visit the burden of travel to facilitate time being spent with the father fairly upon both parties. No ground of appeal seeks to challenge the terms of that order.

Ground 21

In support of this challenge the father submitted:
38.Her Honour in paragraph 67 of her Reasons for Judgement referred to the mother’s opinion that she was the better parent, but she is not the better parent just because she says so, especially given the mother’s irresponsible actions. As noted by Federal Magistrate Terry in her Reasons for Judgement on 29 August 2008 “I have concerns about the mother’s ability to meet the children’s emotional needs, concerns which cannot be resolved in these interim proceedings. The mother unilaterally and suddenly removed the children from [G], and their father, and their grandmother, and their school, and her affidavit does not suggest that she has any insight into how this might have affected the children. It appears to be the mother’s case that if the children are experiencing any adjustment difficulties at the moment it is because of the past behaviour of the father. The mother is blind to the possibility that her own actions may have caused harm to these children”.
We do not accept that the learned Federal Magistrate failed to consider the mother’s unilateral removal of the children from G.
Early in her Reasons for Judgment, the learned Federal Magistrate recorded that:
14.…The mother does not resile from nor cavil with the fact her move was unilateral and without the father’s knowledge or consent.
Her Honour further found:
15.The father had no idea of his wife’s plans and her move with the children would have come as a terrible shock to him.
Her Honour further recorded:
16.It was agreed between the parties that from at least April 2008 until the mother’s move the children’s care arrangements had been a form of equal time. From separation in August 2006 the children’s time with their father had been no less than significant and substantial. Since their birth the parents and children had always lived in [G], a country town, with which they were very familiar. The mother’s move caused the older children to be taken away from their school, friends, and family and for all children to be away from their father.
The learned Federal Magistrate considered in some detail the circumstances surrounding the parties’ separation. On balance, and for reasons which she detailed, the learned Federal Magistrate preferred the evidence of the mother in relation to the deterioration of the parties’ marriage to that of the father. Her Honour further considered those issues in subsequent paragraphs of her judgment.
It is incorrect to suggest that the learned Federal Magistrate failed to consider the mother’s attitude in relation to the removal of the children. Her Honour also considered the mother’s cooperation with arrangements for the children to spend time with their father and the evidence of the mother’s changed (and improved) attitude toward the father and his role in the children’s lives.
Whilst there may be cases where unilateral removal of children assumes major or even decisive significance in determining parenting proceedings, the learned Federal Magistrate’s undisturbed findings of fact remove this case from that category. With respect to the father, the learned Federal Magistrate’s findings of fact preclude him from successfully asserting that her Honour was impermissibly charitable to the mother in relation to that issue.

Ground 22

Beyond reiterating the terms of the ground, the father made no submission in support of it. This complaint can be swiftly disposed of in view of our consideration of and conclusion with respect to ground 21. It is apparent, as the learned Federal Magistrate recognised that, by unilaterally removing the children in the circumstance in which she did, albeit in circumstances less critical of the mother than the father asserted, the mother’s actions adversely impacted upon the relationship between the father and the children. Her Honour took these matters into account. As the learned Federal Magistrate explained in her reasons, notwithstanding the mother’s unilateral removal of the children, their relationship with their father remained strong.
It has not been demonstrated that the exercise of her discretion was vitiated by the failure to take into account, or to adequately take into account, the matter which impels this complaint.

Ground 23

Beyond reiterating the ground, the father made no submission in support of this challenge. With respect to him, this challenge is predicated on the apparent misconception that the Family Consultant’s oral evidence was in some way inherently preferable to the evidence contained in his reports. We have earlier dealt with what may be the substance of this complaint.

Ground 24

In support of this challenge the father asserted:
43.These children were torn away from their friends, home, school, and one of their parents for no good reason and prevented from seeing that other parent until the Court ordered otherwise. I am concerned that the orders made by Her Honour Federal Magistrate Henderson will encourage the mother that she was correct in bringing false accusations so that she could justify her actions, and I am concerned that she will repeat her actions on impulse again. I am also concerned that she now will create further false accusations if and when she sees fit to do so and try and prevent the children from seeing me again. Her actions and false allegations over the past year have destroyed any trust I had remaining of her and this is unfortunate as we both remain responsible and involved as parents of our children to care for them as they grow and develop into adulthood.
In support of this decision the father relied upon the following passage from the judgment of Warnick J in C and S [1998] FamCA 66:
42.“In my view it is clear that the interests of any child or children including the children here, are very much connected with any questions directly affecting those children, such as relocation being determined by a Court without the impediment of a situation of recent development, which situation significantly alters the relationship of the child or the circumstances of the child with regards to one of its parents from what it or they had immediately before hand”.
In response the mother submitted:
43.Her Honour FM Henderson did not make a decision that significantly altered the children [sic] situation. Her Honour states that the option of leaving the children with the Mother would the least disruptive option to the children. In paragraph 109-111 of Reasons for Judgment (2.4.2009) Her Honor sets out the issues surrounding “The likely effect of any Change”.
44.Her Honor states in paragraph 109 that Mr [L’s] opinion is that a change to the ACT can be accommodated by the children.
45.In paragraph 110 Her Honor states “a change back to [G] would mean that they [the children] are no longer living with the mother. She cannot return. That factor would be a significant change to their living arrangement”.
46.In paragraph 111 He [sic] Honor states “Thus the fathers proposal which asks me to return the children to [G], would, as I see the evidence, result in the greatest change in these children’s living arrangements and have the greatest impact upon them”.
47.I would ask the court to note that Her Honor FM Henderson has given a careful and considered opinion to this case, and that the orders that she has made are a fair reflection of the cases presented.
As is plain, the fact that the learned Federal Magistrate’s decision “significantly alters the circumstances and relationship of the children to what they had been” does not of itself render her decision erroneous, and not surprisingly, nothing emerging from C & S [1998] FamCA 66 suggests otherwise. In many parenting cases, any decision will have the effect complained of by the father. In this case, the learned Federal Magistrate was acutely aware of the implications for the parties’ children of any conclusion reached by her. Whatever her Honour decided, the children’s lives would be significantly altered.
In her submissions, the mother referred to a number of passages in the learned Federal Magistrate’s Reasons for Judgment where the implications of the competing proposals before her were discussed. We have set out a number of those paragraphs.
In earlier paragraphs of her judgment, and with some thoroughness, the learned Federal Magistrate considered the evidence before her with respect to the children’s “wishes” [par 105-106], the nature of their relationships with their parents, each other and other persons [par 107] and the “willingness and ability” of each of the parties to “facilitate and encourage” the children’s relationship with their parents and other people of importance in their lives. The learned Federal Magistrate then commenced a detailed analysis of the “likely effect of any change” [par 109]. Having referred to the matters upon which the mother relied in her submissions, the learned Federal Magistrate considered the “practical difficulty and expense of the child spending time” [par 112]. Her Honour said in that regard “whichever order I make there is a huge practical difficulty and expense in the children spending time with their parents” [par 112].
Later, the learned Federal Magistrate recorded that:
117.The least disruptive order I could make today would be that the children remain living with their mother either in Sydney or Canberra. A move of the children to live in [G] with their father would separate the children from their mother. There is significant risk to [A's] attachment and his emotional and psychological stability in the future of such a separation. As Mr [L] said [A] is still continuing with his primary attachment. I accept the older children would be returning to an environment with which they are very familiar and have very fond attachment to and have expressed a clear wish to return to live. The older children can live with either parent successfully.
Ultimately, her Honour concluded:
120.On the fine balance in this matter the factors that are weighing most on my mind is to ensure by any order I make [A's] primary attachment is not disrupted and his ability to form close relationships in the future is not compromised. As the children must all live together this means, on the weight of evidence, the children should remain living with their mother in Sydney or Canberra and spend time with their father in [G] or in Sydney or in Canberra. That is the order I find that is in the children’s best interests and I will so order.
Nothing to which we have been referred by the father, or discerned for ourselves, establishes that the learned Federal Magistrate failed to consider any relevant aspect of the implications for the children of the parenting proposals of each of their parents. Nor has it been established that her Honour’s consideration of that difficult issue was flawed by any factual error or misunderstanding of the evidence before her.
Further, it has not been established that, in undertaking the difficult task of evaluating the factors for and against the competing proposals of the parties, that the learned Federal Magistrate gave excessive or inadequate weight to any particular fact or circumstance.
No other basis for upholding this challenge emerges from a consideration of the learned Federal Magistrates Reasons for Judgment.

The father’s further evidence application

The effect of the father’s submissions in support of his application to adduce as further evidence the material produced on subpoena in the Federal Magistrates Court but not tendered in evidence before the Federal Magistrate is that, had such evidence been before her, the learned Federal Magistrate would not, or could not have made the decision she did.
The material produced by O Primary School was sought to be relied upon on the basis that the mother at no time asserted to the school that she had any concerns about the father’s attitude to or capacity to care appropriately for the children. The documents indeed are silent in the respects to which the father referred. That however is not inconsistent with any finding made by the learned Federal Magistrate, or any evidence of the mother at that time. The records speak from the time in 2008 when the mother enrolled the children at the O Primary School. These documents could not satisfy the test for admission pursuant to Section 93A of the Family Law Act 1975 (Cth) (“the Act”) which emerges from the judgment of the majority in the High Court in CDJ v VAJ (1998) 197 CLR 172.
The second group of subpoenaed documents are medical records of Dr D of the G Family Medical Centre. These documents were submitted by the father to provide evidence that the mother was depressed. The documents contain references to the mother for the period 28 September 2006 to 28 April 2008. Blood test results attached to the records do not shed any potentially useful light on the issue to which the father asserted the documents were relevant.
On 28 September 2006 the medical records record as “Reason for visit: Depression – Endogenous”. The mother was then prescribed 50 mg of Zoloft daily. Zoloft is an antidepressant medication. Subsequent entries in the medical reports also refer to the mother’s “depression” (see November 23, 2006) and changes in the medication prescribed by Dr D.
Subsequent entries in late 2006 and early 2007 record that the mother was “feeling better in her depression” (February 14, 2007). Albeit the mother continued to report “great pressure” (April 30, 2007) in relation to her relationship with the father, the 2007 entries in the medical reports generally record that the mother’s psychological health was improving although, as entries such as that for February 26, 2008 reveal, the mother continued to take antidepressant medication on prescription and to feel “very down” with thoughts of self harm.
The medical records contain nothing subsequent to July 2008.
Nothing emerging from the medical records emerging from the G Medical Centre are inconsistent with any finding of fact made by the learned Federal Magistrate. The documents accordingly cannot satisfy the requirements of section 93A of the Act. The fact that, had the medical records been before her, the learned Federal Magistrate may have found that the mother had been depressed in the period prior to mid 2008 would not have obliged her to find that the mother continued to be depressed at the time of trial.
Reading Dr D’s medical records makes it apparent that the state of the relationship between the mother and the father, prior to the mother’s move to Sydney was a recurring source of anxiety for the mother, and relevant to the health issues recorded in those records. Significantly, the wife ceased to live in G in June 2008.
Documents produced on subpoena by G Public School similarly fail to reveal anything inconsistent with any relevant finding of fact made by the learned Federal Magistrate. No basis for receipt of the further evidence having been established, leave will not be granted pursuant to section 93A of the Act.

Conclusion

No ground of appeal having been made out and the application for leave to adduce further evidence having failed, the father’s appeal and application will be dismissed.
Subsequent to the hearing of this appeal, the High Court published its reasons for judgment in MRR v GR [2010] HCA 4. Had the challenges to the learned Federal Magistrate's decision been different to those agitated by the father before us, or anything emerging from the High Court's raised doubts as to the correctness of our conclusion that the father's appeal lacked merit, we would have invited the parties to make further submissions in the light of MRR v GR (supra). We are satisfied that, in the circumstances of this appeal, not doing so does not deprive either party, and particularly the father, of procedural fairness.

Costs

Neither party sought any order for costs whatever the outcome of the proceedings. There will be no order for costs.

I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 19 March 2010