GUSTA & GUSTA - [2020] FamCA 228

FAMILY COURT OF AUSTRALIA

GUSTA & GUSTA

[2020] FamCAFC 228

FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the mother sought to relocate with the child from Perth to Town A – Relocation found not to be in the child’s best interests – Weight challenges – Consideration of whether “compelling reasons” for relocation were impermissibly required – No error of fact or law established – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the mother has been wholly unsuccessful and the father has incurred unnecessary expense – Mother in stronger financial position – Costs order made against the mother.

Family Law Act 1975 (Cth) Pt VII, ss 60CC, 65DAA, 69ZN(6), 93A(2)

Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232
Beckham & Desprez (2015) 55 Fam LR 310; [2015] FamCAFC 247
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Stopford Malloy & Malloy and Anor (Costs) [2018] FamCAFC 6
Ulster & Viney (2016) FLC 93-722; [2016] FamCAFC 133

APPELLANT:

Ms Gusta

RESPONDENT:

Mr Gusta

FILE NUMBER:

PTW

7003

2017

FIRST APPEAL NUMBER:

WEA

2019

SECOND APPEAL NUMBER:

WEA

2019

DATE DELIVERED:

11 September 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Perth

JUDGMENT OF:

Ryan, Kent & O'Brien JJ

HEARING DATE:

16 October 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

21 November 2018 &

4 January 2019

LOWER COURT MNC:

[2018] FCWA 259;
[2019] FCWA 2

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Dr Ingleby

SOLICITOR FOR THE APPELLANT:

Carr & Co

COUNSEL FOR THE RESPONDENT:

Mr Hedges SC

SOLICITOR FOR THE RESPONDENT:

Dimond Family Lawyers

Orders

The mother’s Application in an Appeal filed 1 February 2019 to adduce further evidence be dismissed.
Appeals WEA 5 of 2019 and WEA 4 of 2019 be dismissed.
The mother pay the father’s costs in the amount of $30,000 within one (1) month of the date of these orders.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Numbers: WEA 5 of 2019; WEA 4 of 2019
File Number: PTW 7003 of 2017

Ms Gusta

Appellant

And

Mr Gusta

Respondent

REASONS FOR JUDGMENT

Introduction

On 4 January 2019, parenting orders were made pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) in relation to the parties’ daughter (“the child”). The effect of those orders was to confer Ms Gusta (“the mother”) and Mr Gusta (“the father”) with equal shared parental responsibility for the child, for the child to live with the mother and to spend time with the father for five consecutive nights each fortnight (Order 4(a)), half of school holidays and other special occasions. By Order 2, the parties were restrained from changing the child’s permanent residence from outside the Perth metropolitan area.
The parties and child live in Perth and, one of the pivotal issues at trial, was the mother’s proposal to move with the child to Town A. Town A is some three to three and a half hours’ drive from Perth. There was no clarity about when the mother planned to move and, in opening addresses, counsel for the mother explained that the mother hoped to move within the next two years. In closing addresses, the mother’s counsel indicated that the move might take place much sooner but repeated that the mother sought to move within the next two years (Transcript 19 July 2018, p.435 lines 15–32). The father opposed the child being relocated and sought that the child live with him on six consecutive nights per fortnight. The mother considered this was longer than the child could manage and irrespective of where the child lived, the mother proposed that the child not have more than four consecutive nights per fortnight with the father. In the event the mother and child moved to Town A and the father remained living in Perth, the mother proposed that during school term the child spends two nights each alternate weekend with the father.
As the terms of Orders 2 and 4(a) reveal, the primary judge was satisfied that it was in the child’s best interests for her to continue to live in Perth.
The primary judge published two judgments in relation to the parenting orders. The first judgment was published on 24 August 2018 (“the substantive trial reasons”). This judgment determined the larger issues of relocation and time arrangements. As the parties presented a large suite of consequential orders having determined the pivotal issues, the primary judge gave them the opportunity to resolve the lesser issues. Unfortunately, the parties were unable to agree on those arrangements and they each provided further minutes of order for consideration.
In the meantime, the mother applied to reopen the proceedings to adduce further evidence about the father’s work roster. The primary judge was not satisfied that evidence would impact in a substantial way on the ultimate findings made in the substantive trial reasons and, on 21 November 2018, the mother’s application to reopen was dismissed (“the reopening reasons”).
On 4 January 2019, the primary judge published reasons for judgment as to the form of orders and made the orders.
By Notice of Appeal filed on 1 February 2019, the mother appeals from Orders 2 and 4(a) made on 4 January 2019.
By Notice of Appeal filed on 18 April 2019, the mother appeals the order of 21 November 2018, dismissing her application to reopen the parenting proceedings. Generally speaking, an interlocutory order which affects the final result can be challenged in an appeal against the final judgment (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478). Whilst there are some limits to that rule, before us it was accepted that this issue could be considered in the appeal against the final orders. Thus, the later appeal was withdrawn and the evidence, which the mother sought to adduce in her application to reopen the trial, was presented in her application to adduce further evidence in the appeal filed on 1 February 2019. Upon the concession by senior counsel for the father that as part of the pre‑trial procedures the mother sought, but was not given, the father’s work roster issued from his employer, her application to adduce further evidence was reduced to specified parts of her affidavit as to the father’s actual work roster.
For completeness, the appeal against the order of 21 November 2018 will be formally dismissed.
By his Response filed on 8 October 2019, the father opposed the mother’s application to adduce further evidence in the appeal. However, if the application was granted, the father sought to rely on his affidavit filed simultaneously with his Response. In short, the father’s primary position is that a great deal of the mother’s evidence contained in her affidavit is contentious and, if admitted, there would have to be a new trial.
The application to adduce further evidence engages s 93A(2) of the Act which gives this Court a discretion to receive on appeal, further evidence upon questions of fact. The purpose of the further evidence here is to demonstrate that the orders under appeal are erroneous and to secure a rehearing. For the evidence to be admitted, the mother must demonstrate that the further evidence is likely to produce a different result, and secondly, that it is in the best interests of the child to have a new hearing. (CDJ v VAJ (1998) 197 CLR 172 at 218) (“CDJ v VAJ”).

Brief overview

So as to provide context to the appeal, it is necessary to refer to some background facts.
The parties commenced cohabitation in 2010 and were married in 2012.
The child was born in 2014. She is the father’s only child. The mother has two other children, both sons who are young adults.
The father is a tradesperson. The mother is an educator and company director of various businesses, which, at the time of trial, she had owned and operated for 21 years. The mother has a 25 per cent interest in a family owned and operated restaurant in Town A.
Following the child’s birth, the father ceased working in his industry and became involved in the business. Both parties were significantly involved in the child’s care, albeit the mother was the primary carer [5].
The parties separated in 2016, at which time the child was two years of age. Without disharmony, the father moved into rented accommodation and the mother and child remained living in the family home in Perth. It took the father a little while to settle into suitable accommodation but within months, he had established himself not far from the family home.
In the period following their separation, the parties were able to agree about the child’s living arrangements and established a cooperative co-parenting arrangement [6]. This included the child having overnight time with the father and, the father taking the child to visit his family in Town B for about a week. There were other periods when the child had longer periods with the father, including 13 days when the mother holidayed abroad.
Unfortunately, the easy cooperation established at separation did not persist.
In about July 2016, the father returned to the work site as a fly-in-fly-out (“FIFO”) worker. It was common ground that strictly speaking, the father worked a seven days on and seven days off roster. However, when travelling time was taken into account the case proceeded on the basis that in each fortnight he was at the work site (and travelling) eight days and was at home six days. In opening addresses, counsel for the father explained the situation as follows:
… [H]e flies in and out on a weekly rotation, although it’s described as an eight/six.
The reason for that is that he leaves his location at the moment on Tuesday afternoon and gets back to Perth between 6 and 6.30 pm when he normally – in fact, without exception, has taken [the child] and then he flies back in the early morning on the following Tuesday and that flight leaves at 6.30 which means effectively he has to get up at 3.30 or 4 to catch that flight. So that it’s not practicable for him to have [the child] overnight on what is effectively the seventh night. So he has [the child] for the six nights before he flies back in the early morning of the 7th day.
(Transcript 16 July 2018, p.16 line 46 to p.17 line 9)
In mid-July 2016, the mother became concerned that the father may have sexually abused the child. Following a medical examination at a local clinic, the child underwent a second examination at the Child Protection Unit at Princess Margaret Hospital. The Child Protection Unit informed the mother that the child was a “normal, healthy little girl” and they were “closing the case” [14]. Although the mother continued to be concerned about the risk of sexual abuse and was hyper-vigilant about it, she decided to take no further action [16]. It was later that month that the father took the child to visit his family in Town B.
In September 2016, the parties attended mediation where they agreed on a parenting plan. Relevantly, they agreed that the child would have a minimum of four consecutive nights with the father when he was in Perth and additional time, if he was in Perth for more than five days. Presumably, so they could plan whether the child would have additional time with the father, they agreed that he would send his work roster to the mother by email a month in advance. In terms of his work roster, the father did not give the mother his employer created roster and instead he put together a spread sheet which set out his movements. More will be said about this later and it is sufficient to note that there is no suggestion that the spread sheets were inaccurate. The primary judge was satisfied that the child routinely spent four or five nights (each fortnight) with the father and on occasion, six nights [7].
It was June 2017 when the father cared for the child while the mother was abroad.
Throughout the period, the child made statements and did things, which concerned the mother as “chronicled in some detail in her trial affidavit” [16]. As the mother no longer suggests the child is at risk of sexual abuse from the father, it is not necessary to record those matters in detail but some little detail is warranted to establish the level of intrusion and disruption they caused to the child’s time with the father.
In early October 2017, the mother contacted the Child Protection and Family Support division of the Department of Communities (“DCP”) about her concerns and, ultimately, she was referred to the police. Having first interviewed the mother, the police interviewed the child on 5 October 2017. The child did not make any disclosures to police who closed their investigation [27].
However, the mother was no longer willing to implement the parenting plan and she approached contact services to arrange for the father to have only supervised time. Later that month, the mother informed the father of her desire to move to Town A within the next two years. She suggested that he moves as well and there was no suggestion that in Town A, his time with the child would need to be supervised [29].
There was no agreement and, on 1 November 2017, the father reluctantly commenced seeing the child under supervision through an agency. Unhappy with this situation, on 9 November 2017 the father commenced proceedings for final and interim orders to have six consecutive nights with the child during his fortnightly periods at home. The mother opposed the father having unsupervised time with the child and she filed a Notice of Child Abuse or Violence (or Risk). With court and other investigative processes underway, the child continued to spend time with the father under supervision pending an interim hearing.
Police interviewed the child again on 4 January 2018, on this occasion in relation to an assertion that the father had photographed the child’s bottom in a “downward dog position” [32]. The child confirmed to police that the father had taken a photograph of her naked bottom and said that he sent the photograph to the mother. Until a few weeks prior to the trial, the mother denied receiving such a photograph. As it turned out, she did have the photograph and it contained “nothing inappropriate whatsoever” [33]. Nonetheless, the allegation resulted in the father’s phone and computer being seized by police. Nothing troubling was recovered and by mid-May 2018 police and DCP closed their investigations.
Judgment was given in the interim proceedings on 7 March 2018. The mother’s case for supervised time was rejected and orders were made whereby the child would continue to live with the mother and, in each fortnight, she would spend six consecutive nights with the father. Without notice to the father’s solicitors, immediately following the delivery of judgment, the mother’s solicitor contacted DCP to inform them of the outcome. DCP then advised the mother they had new information concerning the risk to the child of sexual abuse by the father and in their view, the child should not have unsupervised time with him. Thus, the mother applied for the orders to be suspended pending completion of this further DCP investigation and the report from Dr P (“the single expert”). The single expert is a clinical psychologist who the parties agreed to appoint to investigate and report on the family, including in relation to the allegations of child sexual abuse.
The Single Expert Report was released to the parties on 26 March 2018. The single expert found there was no evidence that the child had been sexually abused by the father or anybody, or that she was at risk of sexual abuse by the father. The mother’s application to suspend the orders made on 7 March 2018 failed but the orders were tweaked to provide a graduated development of overnight time before regular six consecutive nights in each fortnight commenced. After this tumultuous period, the child resumed unsupervised time with the father on 28 March 2018.
By Notice of Appeal filed on 3 April 2018, the mother appealed from the interim orders of 7 March 2018 and the dismissal of her application to suspend those orders. The appeals were abandoned as lacking utility [40]. In the meantime, the child continued to spend time with the father in accordance with the interim orders and, by the trial, six night periods had been in situ for a couple of months.
The primary judge addressed s 60CC of the Act first, in relation to which the parties were assessed as intelligent parents, who are committed to their daughter’s welfare [54]–[56]. They both had a great deal to offer the child [65] and irrespective of whether she was living in Perth or Town A, she would have a meaningful relationship with both her parents [65]. Both parties have been significantly involved in the child’s care and she was securely attached to each of them; albeit her primary attachment is with the mother [69].
Having agreed with the parties that an order for equal shared parental responsibility was in the child’s best interests [85], the primary judge turned his attention to s 65DAA of the Act and questions of equal time and substantial and significant time. Evidence from the single expert that it would be in the best interests of the child to live primarily with the mother was accepted.
Contrary to the father’s position that the child should have six consecutive nights a fortnight with him, his Honour concluded:
88.… I accept [the single expert’s] evidence that having four or five nights a fortnight with the father would be sufficient to ensure that he maintains a good relationship with [the child]. Given the significant involvement he has had in her life to date and the closeness of his existing relationship with [the child] I consider that it would be in her interests to spend five nights each fortnight with him. I note that when the mother was speaking with DCP in May 2018 she said she would be happy to agree to [the child] spending five nights per fortnight with the father.
However, his Honour did not stop there and turned his attention to how the practicalities of the parties’ proposals should influence the time arrangements. The primary judge examined the parties’ proposals for and against relocation and determined that the practicalities favoured the status quo. Moreover, his Honour was not satisfied that, if the child lived with the mother in Town A, she would be able to spend more than four nights a fortnight (at most) with the father and was patently concerned about the “very significant amount of travel” which would be required to maintain the child’s contact with the father [95].
His Honour concluded:
99.Overall, I am satisfied that [the child’s] interests would be advanced by her continuing to live in Perth where the time-sharing arrangement between her parents can be more easily managed than would be the case if she was to relocate. [The child] will continue to live in the home in which she has lived since she was a baby, remain in the same school community in which she is currently enrolled and move smoothly into her secondary education at nearby College A. She will still be able to continue to visit family in Town A regularly and the mother will, if she chooses, be able to be involved in the family business at Town A throughout the school holidays and during the five days a fortnight when she would not have [the child] in her care.

The grounds of appeal

Before considering the grounds in detail, it needs to be understood that this is an appeal against the exercise of discretion, to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only as to matters of weight by no means justifies a reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513). No challenge is made to the statement of the principles by which the decision was reached, and it is to the application of those principles and asserted errors of fact that the appeal is addressed.
The mother presented eight grounds of appeal (Grounds 7 and 8 were abandoned) which were refined in her Summary of Argument filed 16 August 2019. This distilled the challenges raised against the orders to assertions that the primary judge erred:
·by failing to consider the mother’s relocation proposal, in particular by adopting a “time first, relocation later” approach (Ground 1);
·by giving undue weight to the father’s chosen employment as compared to the mother’s choice of employment (Ground 2);
·in requiring the mother to demonstrate “compelling reasons” for relocation (Ground 3);
·in findings as to the father’s employment and in refusing the application to reopen (Ground 4);
·in finding that the father was likely to continue to work as a FIFO worker and there would not be employment opportunities in his field in Town A (Ground 5);
·in finding that the mother had underestimated the extent to which she could be freed from her business interests in Perth (Ground 6); and
·as to fact concerning the logistics of the mother’s proposal and the father’s connection to Perth given he did not own real estate (Grounds 9 and 10).
In the event that error is established, the parties agreed that the proceedings should be remitted for rehearing.

The parties’ proposals (Ground 1)

Ground 1 focussed on the manner in which the primary judge evaluated the parties’ proposals, as he was obliged to do. The mother acknowledges that the parties’ competing proposals are accurately recorded in the substantive trial reasons. Furthermore, having determined that the parties would have equal shared parental responsibility for the child, the provisions of s 65DAA of the Act were engaged. It is uncontroversial, that this meant once equal time was considered and rejected, the primary judge was required to:
·consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child (s 65DAA(2)(c));
·consider whether the child spending substantial and significant time with each of the parents is reasonably practicable (s 65DAA(2)(d)); and
·if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents (s 65DAA(2)(e)).
The definition of substantial and significant time is set out in s 65DAA(3) of the Act.
The mother contends that the primary judge erred by addressing the amount of time the child should have with the father before the competing proposals were evaluated. The contention being that instead of evaluating the competing proposals of the parties, his Honour:
…
a)first made a finding … that it would be in [the child’s] best interests to spend [five] nights a fortnight with the father; and
b)second found that:
i)this could not happen as a matter of practicality if the mother was living in Town A and the father was working FIFO out of Perth …; and
ii)the time-sharing arrangement could be more easily managed by the mother continuing to live in Perth than if she were to live in Town A … (rather than the father living in Town A area).
(Mother’s Summary of Argument filed 16 August 2019, paragraph 9)
Yet, the primary judge addressed the application of s 65DAA in an entirely orthodox fashion. Under the heading “parental responsibility”, he first considered whether the condition precedent which would trigger the application of this provision was established. Having determined at [85] and [87] that it was, under the heading “equal time and substantial and significant time”, the primary judge discussed s 65DAA(1)(a) and s 65DAA(2)(c). In doing so, the primary judge accepted evidence given by the single expert that the child spending four or five nights each fortnight with the father would be sufficient to ensure his good relationship with the child.
The primary judge continued:
88.… Given the significant involvement he has had in her life to date and the closeness of his existing relationship with [the child] I consider that it would be in her interests to spend five nights each fortnight with him. I note that when the mother was speaking with DCP in May 2018 she said she would be happy to agree to [the child] spending five nights per fortnight with the father.
89.Although not the primary reason for so ordering, such an arrangement will allow the father to settle in after returning from the location rather than immediately having [the child] come into his care as is occurring at present. It also allows a little more flexibility for those odd occasions when the father may be detained at the location or be required to return earlier. There is also a greater likelihood of the mother supporting the arrangement than there would be if the periods were as long as six nights. Given her past conduct, I would anticipate the mother would be looking for signs that [the child] was not coping with a six night regime. [The child] may “pick up” on her anxieties and this may interfere with the father having a satisfactory regime of visitation.
The finding at [88] as to time reflects the single expert’s opinion that “four or five nights a fortnight is what’s necessary at a minimum to have a good relationship with the child” (Transcript 18 July 2018, p.366 lines 14–16). Reference to the mother’s “past conduct” is to the very great disruption to the child’s relationship with the father resulting from the allegations of sexual abuse and how the mother’s anxiety may have impacted on the child’s statements and behaviours [8] and [16].
It is clear from [88] and [89] that his Honour placed weight on the benefits to the child from continuing the father’s significant involvement in her life and to not take steps that had the potential to interfere with her “having a satisfactory regime of visitation” [89]. These were important findings, but the primary judge did not stop there and, as we have already mentioned, he further analysed the parties’ proposals and answered the question posed by the provision of whether an order for substantial and significant time was reasonably practicable.
It needs to be understood that this ground specifically asserts that the primary judge erred in considering the question of time before relocation. The question of whether s 65DAA must be dealt with sequentially has been considered in a number of cases. In MRR v GR (2010) 240 CLR 461 at 466, the High Court explained that the words “if it is” in s 65DAA(1)(c) “refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made”. Otherwise, there is no suggestion that the best interests or time question must or must not be determined before the issue of reasonable practicability.
In Ulster & Viney (2016) FLC 93-722, Ainslie-Wallace and Ryan JJ (Strickland J agreeing on the point) said at 81,621–81,622:
… It would be a triumph of form over substance if, merely because a judge indicated which suite of orders would be in the best interests of the children first, we were to conclude the section was misapplied. The focus of both ss 65DAA(1)(a) and (2)(a) is whether those styles of orders would be in the best interests of the children. Given this commonality of subject matter, where a judge in the position of the primary judge is astute to the obligation to consider s 65DAA and palpably does so, there will be no error merely because the answer to the question of what orders are in the best interests of the children is stated first. For, as the Full Court said in Starr & Duggan [2009] FamCAFC 115 at [38], it is logical (but not mandatory) to consider “best interests” first.
See also Beckham & Desprez (2015) 55 Fam LR 310.
We do not accept that the primary judge erred by determining the contentions as to time before the reasonable practicabilities arising from the different proposals were examined. There can be no doubt that his Honour considered each of the parties’ proposals and that the ultimate determination was only made after all the evidence had been considered and weighed.
This ground has not been made out.

Weight given to the parties’ employment commitments (Ground 2)

Counsel for the mother suggested that the case was evaluated through the prism of a gendered preference for men and the mother was stereotyped as a “nurturing and submissive daughter performing her gender-appropriate helping role” (mother’s Summary of Argument filed 16 August 2019, paragraph 20(a)). This submission does not withstand scrutiny of the trial transcript or the reasons for judgment. It is unfair to a carefully nuanced judgment which grappled with sensitive and distressing issues and which, consistently with principle mandated by s 69ZN(6) of the Act, was obviously written to ease the parties into as cooperative a co-parenting relationship as possible and to not inflame the situation. The primary judge did not use the words appearing in quotation marks at paragraph 20(a) of counsel for the mother’s Summary of Argument or anything like them. They are a misleading rhetorical flourish. It is reasonable to assume that the flourish was introduced so as to counter the inconvenient truth that a fair analysis of the trial transcript and reasons for judgment does not reveal obvious error. Because the gendered preference is an essential component of this ground, the ground could be dismissed on the basis it misstates the facts.
We agree with the submission by senior counsel for the father that, shorn of its misused gendered hyperbole, the gravamen of Ground 2 becomes that the primary judge erred by giving greater weight to the father’s employment commitments than was given to those of the mother. In deference to the mother, we will examine whether the primary judge erred in this manner. As we have already explained, weight challenges are notoriously difficult and merely because another judge might have weighed matters differently, is not basis for appellate intervention.
The father is a FIFO worker of many years duration. It was uncontroversial that he gave up this style of work following the child’s birth and returned to it after the parties separated. The father’s employment prospects and FIFO conditions were closely examined in relation to which the primary judge determined:
52.The father is likely to continue to work fly-in/fly-out at his current location and would be likely to continue in similar employment if his present job ends. The advantage the father sees in this arrangement is that when he is in Perth he is free to devote himself to [the child] full-time. If he stopped working fly-in/fly-out, he would likely have to take up employment in Perth as there would not be opportunities in his field in the Town A region.
The primary judge understood that at some stage the father might cease working as a FIFO worker [43] but was satisfied “there is no indication that he is likely to do so in the near future” and “an order for equal time is presently not practicable given that the father works eight days a fortnight at a remote location” [87]. Thus, in considering the practical effect of the father continuing as a FIFO worker, his Honour addressed the logistical issues. His Honour said:
95.… Given the timing of flights to and from the location, the father would likely need to have a home both in Perth and Town A as he would need to overnight in Perth on his way home from work and certainly on his way back to work. Driving directly to and from Town A and the Perth airport would in my view be dangerous given the time of day/night and the father's long hours of work. The father also sometimes has work meetings in Perth during his days off the location…
The mother contends the word “given” indicates that the father’s circumstances were prioritised over her commitments and that her commitments “were not accorded the privilege of being ‘givens’” (mother’s Summary of Argument filed 16 August 2019, paragraph 18). Again, the submission misstates the reasons. First, the use of the word “given” does nothing more than record the effect of the facts as found. Namely, the reality of the father’s employment and the logistics thereto. The “givens” are the consequences of the findings at [52] and nothing more.
Secondly, the mother’s case was that she had considerable flexibility in how she managed her business interests and she was confident that she could manage her Perth based business interests from Town A and that her Town A business interests required her to be physically present more often than she could reasonably manage from Perth.
The primary judge understood the nature of the mother’s business interests [4] and acknowledged that she was “her own ‘boss’” [49]. Her “skills and previous success in business” were recognised and the import of [94] is that the primary judge was satisfied that her business skills would be put to good use “turning around the fortunes of the restaurant” [94]. To similar effect, the primary judge recognised that whilst living in Perth, the mother “has already begun to take on greater responsibilities with the restaurant” [96].
Looking to the longer term, which his Honour was required to do, the mother’s evidence was that she and the child would return to live in Perth for the child to start secondary school. Thus, as the mother did now, her work at the restaurant would be managed from Perth and during the periods that the child was with the father. None of these findings are controversial. Nor do they suffer from not being categorised as “givens”. Properly considered, they demonstrate that the primary judge accepted much of the mother’s evidence about her circumstances and gave proper attention to her proposals both short and long term.
A number of challenges touch on the mother’s contention that the father could move to Town A and, if he did, the child could be with him four consecutive nights a fortnight. Putting aside the finding that the child should have five nights a fortnight with the father, it is convenient to now examine the question of the father moving to Town A.
At the time of trial, the father was employed in a senior position at a different work site. Professionally, he has experience working with copper, uranium, gold and grinding. He does not have experience in iron ore or lithium and has never worked in heavy media separation. There was then an upturn in iron ore and lithium production but not in gold, which is a generally stable market. The gravamen of his evidence is that in examining his employment prospects it was necessary to take into account that his skill set is quite specific (Transcript 17 July 2018, p.172 line 31 to p.173 line 7).
The mother complains that the primary judge failed to give specific consideration to the “Town X opportunity” (mother’s Summary of Argument filed 16 August 2019, paragraph 17(c)). Ground 5 also raises the failure to consider the Town X opportunity and these challenges will be dealt with concurrently. It is correct that the primary judge did not specifically mention Town X. However, the primary judge commented that the father did not have job opportunities “in his field” in the Town A region [52]. Town X was the only job opportunity in the Town A region put to the father and, it is readily inferred that the reference in [52] includes Town X. It follows that Town X was not overlooked and it was rejected as a viable job opportunity for the father.
In relation to Town X, the father’s unchallenged evidence was:
[THE FATHER]: … Ms Farmer mentioned yesterday about whether I would apply for a job at Town X. While I was interstate and I had a – an interview with Town X, so that was all to – to get back to Perth. Actually [the mother] assisted, looking after [the child] while I went into the Suburb M office to – to have a – have an interview for a position… You know, what the logistics of Town X are, it’s a five-two/four-three roster and it’s, you know - - -
Five?---Two/four-three – five days of work, two days off. Now, generally, if you look at that roster, that means that I would have [the child] one night on that five-two and two nights on that three-four so – due to travel time. So it’s – it would – it ends up being three days – three nights a fortnight. So, you know, at the time, I didn’t get the position but, you know, that’s what Town X – you know, working at Town X generally means that. Any role higher than a – than a supervisor is basically a five-two/ four-three. And that’s what they ask of their management staff, which, all of that translates to less time with [the child], so it’s not favourable…
(Transcript 17 July 2018, p.171 lines 22–43)
The Town X work site is accessible by road albeit it would still involve travel from Town A or Perth. Whatever the distances, Town X did not eventuate and the evidence established that even if the father secured a position at Town X, he could not have the child more than two consecutive nights a fortnight and three in total. Thus, not only does the evidence justify his Honour’s conclusion as to job opportunities from Town A, the Town X opportunity did not provide a factual foundation which would have enabled his Honour to find that if the father lived and worked in Town A, the child could be with him four or five consecutive nights a fortnight.
Again, it is useful to remember that even if the parties and the child lived in Town A, the mother did not propose time along the lines the primary judge was satisfied were in the best interests of the child. As to the possibility that the father could fly in and out of either Town P or Town A, and continue his current employment, his Honour rejected both as possibilities [74]. The evidence established that the father’s employer used its own plane to transport its staff, which flew in and out of Perth. There was no prospect that the plane would divert to collect the father and the evidence did not establish reliable flight connections to and from the other locations.
We agree with the mother that the father gave evidence about job opportunities in Perth. His evidence was to the effect that if the parties lived in Perth he would consider working in Perth to have the child live with him seven nights a fortnight. But that concession did not establish that the father could live in Town A and work in Perth. As the father explained:
[COUNSEL FOR THE MOTHER:] Okay. Well, I appreciate you wouldn’t want to, but, if [the child] is allowed to move to Town A, that was the basis I was asking the question?---
[THE FATHER:] The other thing, I suppose – I mean, in my role now that I have jumped a position, I often have meetings on my days off in Perth. There’s a general manager at our other operation. He lives – he lived in Town P, and he found it too taxing to drive down there and then come back up, so he has relocated his whole family back to Perth because just the amount of driving on the main road is just too much.
(Transcript 16 July 2018, p.87 lines 7–16)
The effect of these matters is that the findings that the father did not have job opportunities in Town A and he was likely to continue as a FIFO worker based from Perth accords with the evidence. Furthermore, the evidence did not establish that if the father worked in Perth and the child lived in Town A, that she could have more than two nights a fortnight with him.

The submission by counsel for the mother that the father created his own case against his being able to live in Town A and work in Perth or thereabouts which the primary judge failed to evaluate, is unsustainable. As is the submission that the mother’s plans were subjected to more scrutiny than was the father’s. Both parties’ circumstances and proposals were closely scrutinised at trial and the primary judge did no more than appropriately analyse the evidence.
After all, the mother’s case was fluid and as the primary judge correctly observed:
93.… I observe, however, that the mother has prevaricated in her proposals about moving… Although she sought permission to relocate when she first filed documents in these proceedings, she initially effectively wanted only the option to relocate within the next two years. Notwithstanding what was said in her Minute of Proposed Orders, the mother maintained that position at the commencement of the trial but then, for reasons which were not clearly articulated, changed her mind by the end of the trial and said she wanted to relocate by the start of the 2019 school year. I note also that in December 2017 the mother told the Family Consultant that she was no longer intending to relocate, although she might do so at a later date. When she saw [the single expert] in February 2018 she appeared to him simply to be keeping her options open about relocating.
Grounds 2 and 5 have not been established.

Compelling reasons for relocation (Ground 3)

The mother asserts that the primary judge erred “by effectively” requiring her to demonstrate compelling reasons in favour of her application to remove the child to Town A. There is no doubt that if the mother’s case was evaluated on this basis, the primary judge will have fallen into error. But, as the words “by effectively” suggest, the primary judge was astute to the issue and expressly acknowledged that the mother “does not need to have compelling reasons for wishing to move to Town A and that my task is to make such orders as I consider would be in [the child’s] best interests” [93].
His Honour’s reference to “compelling reasons” is to well settled principles which are conveniently summarised in Adamson & Adamson (2014) FLC 93‑622 as follows:
65.It follows from the decisions of the High Court in AMS v AIF (1999) 199 CLR 160 and U v U (2002) 211 CLR 238 that in parenting proceedings there is no requirement for a parent to demonstrate “compelling reasons” to live where the parent proposes to live, be that a proposed new location or, axiomatically, in their current place of residence. Here, the mother was no more required to demonstrate “compelling reasons” for her choice to remain living in Town S than was the father to so do with respect to his choice to live in Town C or for either to not live anywhere else. The same may be said of their respective choices of employment, the mother’s in Town S and the father’s in Sydney. The Court must be sensitive to the wishes and rights of parents to live and work wherever they desire. (U v U at [82] citing AMS v AIF)
66.These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
67.Consequently, whilst the Court is not bound by the proposals advanced by parents and can, subject to natural justice considerations, adopt modified proposals, the justification for that is the same and the extent of modification legitimately can only be as far as is necessary to avoid adverse effects upon best interests…
…
69.Moreover, if ultimately it was determined that interference with parental rights was called for, all alternatives, including the father’s exercise of his right to choose where he lived and where he worked, would need to be considered…
(Emphasis in original)
The mother adopts his Honour’s findings as to the rationale for her desire to move to Town A, including the benefits for the child of a country lifestyle. According to the mother, the father’s concerns about “the long-term difficulties associated with him maintaining a relationship with [the child] while continuing in his well-remunerated fly-in/fly-out employment” [95] were determinative of the relocation application and thus, impermissibly required that she demonstrates compelling reasons (mother’s Summary of Argument filed 16 August 2019, paragraph 27).
We agree with the submission on behalf of the father that the reasons given for deciding against the proposed relocation are larger than Ground 3 acknowledges. True it is that the longer term ramifications of trying to ensure that the child has the benefits of the meaningful relationship with the father, which his Honour considered would be in her best interests, loomed large. However, his Honour also took into account the fact that the child had spent her entire life in Perth where she was well settled and well connected [95]. Furthermore, the mother as she presently did, would be able to take on greater responsibilities with the restaurant and spend at least half her time in Town A. The mother was able to maintain two residences (at least). Unlike the situation if the parties both lived in Perth, if the mother and child moved to Town A, because the mother might need to return to Perth “fairly frequently and not always at times of her own choosing” the child might need to be cared for by a third party [97]. Although in the appeal counsel for the mother sought to challenge this latter finding, in closing addresses counsel for the mother properly acknowledged that a finding to this effect could be made.It is not now open to challenge. As this finding sits at the heart of Ground 6, that challenge cannot be sustained.
His Honour continued:
99.Overall, I am satisfied that [the child’s] interests would be advanced by her continuing to live in Perth where the time-sharing arrangement between her parents can be more easily managed than would be the case if she was to relocate. [The child] will continue to live in the home in which she has lived since she was a baby, remain in the same school community in which she is currently enrolled and move smoothly into her secondary education at nearby College A. She will still be able to continue to visit family in Town A regularly and the mother will, if she chooses, be able to be involved in the family business at Town A throughout the school holidays and during the five days a fortnight when she would not have [the child] in her care.
When the substantive trial reasons are read in their entirety, it is clear that the primary judge did not require the mother to establish “compelling reasons” for the relocation and the case was decided by reference to a multiplicity of factors which informed his Honour’s determination as to the ultimate decision. It should be remembered that the same body of evidence in parenting cases may produce opposite but nevertheless reasonable conclusions from different judges (CDJ v VAJ at 219). We mention this, not because we disagree with the result, but to highlight that the exercise of discretion is quintessentially the role of the primary judge and that absent legal error or a plainly unjust result, the order of the primary judge must stand.
Error as alleged by Grounds 3 and 6 is not made out.

Eight days a fortnight (Ground 4)

The focus of Ground 4 is on findings that:
·“the father works eight days a fortnight at a remote location” [87]; and
·“[t]he father is likely to continue to work fly-in/fly-out at his current location and would be likely to continue in similar employment if his present job ends” [52].
Related to these findings are findings that:
· “[g]iven the timing of flights to and from the location, the father would likely need to have a home both in Perth and Town A as he would need to overnight in Perth on his way home from work and certainly on his way back to work” [95]; and
· the primary judge was not persuaded that the father would be able to fly in and out of either Town C or Town D [74].
By her Application filed on 8 November 2018, the mother sought to reopen the hearing to present the father’s work roster and demonstrate that he in fact worked seven days on and seven days off. The significance of this evidence being that this “may well” have allowed him sufficient time to travel to and from Town A and have the child five nights per fortnight. However, as counsel for the father correctly pointed out, the father’s case opened with the acknowledgement that strictly speaking the father worked an alternating seven days roster. Thus, there was nothing new in the actual work roster. There was no controversy about the father’s actual work arrangements, in the sense that at the commencement of each rotation he needed to leave home no later than about 3.30 am and he flew back into Perth at about 6.30 pm the following week. The father’s periods away usually commenced on a Tuesday and he had alternating weekends at home. Although the father was able to collect the child on the nights he flew in, he was not able to have her with him on the nights before he flew out. Hence the reference to eight nights away.
On the basis that the father would continue to live in Perth, even if, as the mother suggests (which we do not), the travel dates should be counted as the father being available at home, her challenge ignores that it was her case that the child should only have two nights each fortnight with the father in Perth. Her stance reflected the practical reality of it being too far for the child to travel from Perth to school in Town A. Thus, even if the father was treated as available to manage the regular trips to and from Town A without the risks of fatigue and dangerous driving conditions from driving three or three and a half hours after he landed and before flying, this would not establish error. This is because even if the father was able to collect and return the child to Town A, the child would only be able to come to Perth for the weekend.
No one suggested that the child should regularly miss school to spend time with the father and the primary judge did not err by failing to construct an arrangement for time on the basis she should. In this regard, the mother is bound by the conduct of her case at trial and it is not open to her to contend for an outcome at odds with her stance at the court below (Metwally v University of Wollongong (1985) 60 ALR 68).
We agree with the primary judge that the evidence sought to be introduced on reopening would not affect the outcome of the proceedings ([14] the reopening reasons) and with the father that the decision not to reopen the evidence was plainly correct. The mother’s complaint that by having regard to the logistical difficulties discussed at [16] of the reopening reasons the primary judge took into account irrelevant considerations is simply wrong. The ratio of the decision is at [14] and the discussion at [16] is mere surplusage.
For the same reasons, the mother’s Application to adduce further evidence qua the father’s work roster must suffer the same fate.
This ground has not been established.

The logistics and connections to Perth (Grounds 9 and 10)

Counsel for the mother explained that Grounds 9 and 10 represent the same complaint and could be considered together. Very little was said in relation to either ground. The first aspect of these challenges concerns the finding at [95] about the father driving between Perth and Town A, in particular that given the time of day/night and the father’s long hours of work it would be “dangerous”. The challenge is to the characterisation of the drive as “dangerous”. The broad facts are not in dispute and the challenge proceeds on the basis that the father would have worked his hours of work, then flown into Perth. Having arrived in Perth at between 6.00 pm and 6.30 pm, on the mother’s case, he would then make the three to three and a half hour drive to Town A. On the return journey, the father would need to leave Town A at midnight and take the same journey back to work and then complete a day’s work. The mother contends that the primary judge wrongly elevated the father’s concerns about “fatigue” to a conclusion that the drive was dangerous. Furthermore, that the primary judge failed to take into account that for a short period after separation, the father lived nearly an hour’s drive from Perth airport. Nothing was said about why that fact required consideration and we infer the point is that if the father could manage the journey of nearly an hour’s drive to and from Perth airport, he could undertake the much longer Perth to Town A journey safely. We do not agree and are satisfied that the conclusion that under these circumstances the journey would be “dangerous” was available.
Otherwise, the mother contends that the primary judge gave disproportionate weight to the father’s evidence that, in his Perth periods, he sometimes attends meetings in Perth. Nothing further was said in support of this challenge and we are unable to agree that it was a matter of significance in his Honour’s exercise of discretion.
Grounds 9 and 10 have not been made good.

Conclusion and Costs

The mother has failed to establish error and the appeal will be dismissed. In these circumstances, the father seeks costs calculated at scale in the amount of $48,305.83. The mother resists the application for costs and points out that her scale costs were $30,564.88.
Although we are unable to make findings concerning the parties’ financial circumstances, the evidence established that the mother has substantial real estate and commercial interests. The primary judge said she is wealthy. On the other hand, the father lives in rented accommodation and supports himself from income. Comparatively, the mother is in a substantially superior financial position to the father and it is inferred that she would be able to satisfy an order for costs against her without causing her hardship. The mother’s lack of success in the appeal justifies an order for costs in favour of the father. He has been put to unnecessary expense for which there should be some reasonable recompense.
As to the quantum, on our examination of the father’s schedule for costs, the schedule appears to be calculated in accordance with the scale but not on a party/party basis. We do not want to add to the parties’ legal costs and the stress inherent in further court processes by ordering an assessment. Thus, taking a broad-brush approach, we will allow costs at $30,000 (see Stopford Malloy & Malloy and Anor (Costs) [2018] FamCAFC 6 at [13] applying Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23).

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ryan, Kent & O’Brien JJ) delivered on 11 September 2020.

Associate:

Date: 11 September 2020