H and E

[1999] FamCA 358

[1999] FamCA 358

FAMILY LAW ACT 1975

IN THE FULL COURT  
OF THE FAMILY COURT OF AUSTRALIA  Appeal No SA52 of 1998
AT MELBOURNE  File No DG801 of 1996

BETWEEN:

H
Appellant Mother
- and -

E
Respondent Father

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  ELLIS, KAY and STEELE JJ
DATE OF HEARING:  10 March 1999
DATE OF JUDGMENT:                  20 April 1999

APPEARANCES:  Mr Davis of Counsel and Ms Fogarty of Counsel, instructed by Devenish & Co, Solicitors, DX 38053, Ringwood, appeared on behalf of the Appellant Mother.

Ms Thomson, Solicitor acting as Counsel, Thomsons, Solicitors, DX 13606, Croydon, appeared on behalf of the Respondent Father.

H and E

SA 52 of 1998
Coram:   Ellis, Kay and Steele JJ   
Date of appeal:      10 March 1999
Date of judgment:  20 April 1999

CHILDREN - RELOCATION - Child moved in breach of interim injunction - No proper reason to relocate - Bona fides - Genuine wish of mother not to return with child - Competing considerations balanced - Best interests of child to have frequent and regular contact - Ordered to return to be near non-residence father - Form of orders

The mother of a 4 year old child 'A' appealed against a decision of Smithers J requiring her and the child to return from Brisbane to Melbourne to enable regular and frequent contact between the child and his father. 

Save for 3 weeks after the child's birth, the parties had never lived together.  In 1996 the father sought defined contact.  Consent orders then provided for regular contact, and restrained the mother from removing A from Victoria.

The mother married Mr H in 1996.  They lived with T (a child of the mother from an earlier relationship aged 7 at trial), A (aged 4) and C (aged 1½).  There was evidence that the mother perceived contact between A and his father to be a nuisance.  Mr H applied for a work transfer to Brisbane, falsely claiming that it was necessary for A's asthma.  It was unclear whether the mother was then aware that Mr H initiated the transfer. 

Without informing A’s father and in breach of court orders restraining their movement, Mr H and the family relocated to Brisbane.  A flew to Melbourne on alternate weekends for several months for contact before the father discovered the relocation.  Contact then continued in monthly four day blocks.

The matter came before Smithers J.  His Honour criticised the mother for her deliberate breach of court orders, and Mr H for applying for a transfer without notifying the father (and possibly the mother).  The competing considerations for requiring the child and his family to return to Melbourne versus allowing them to remain in Brisbane were addressed and balanced.  The restrictions on the mother’s freedom of movement, expenses associated with moving back to Melbourne, and the mother’s genuine wish to remain in Brisbane were acknowledged.  His Honour found that frequent and regular contact was in the best interests of the child.  This required that A live near his father.

His Honour made orders that the mother live in Melbourne with A from 24 January 1999 onwards; that the mother be restrained from removing A from Melbourne without consent, save for holidays in Australia; and establishing a new contact regime.   

On appeal, the mother submitted that the orders requiring her to relocate with the child were against the weight of the evidence, that undue weight was placed on the issue of bona fides, and that s60B was misapplied.

HELD

• The effluxion of time makes it increasingly inappropriate to apply “relocation” principles notwithstanding the circumstances which lead to a child living in a different place from its non-resident parent (Rojahn v Butterfield (unreported 5 November, 1998)).

• It was correct to apply the approach to relocation cases set out in B v B in this case, ie to make orders that would best advance the welfare of the child, taking into account ss68F(2) and 60B.

• The findings that Mr H lacked bona fides in engineering the move to Brisbane and doubts about the mother’s role in the move were clearly open to his Honour.  The main significance of the weight given to bona fides was his Honour’s concern for the future of contact if the parties live far apart.

• Although the mother’s freedom of movement should not be subordinated to the concept of frequent and regular contact, and a good relationship between the father and child had developed and could be maintained on limited contact, and although the Full Court may not have reached the same result if sitting at first instance, his Honour applied the correct principles and properly balanced the competing considerations for and against allowing the relocation (Gronow v Gronow and House v The King).  The findings requiring the child to return to Melbourne were open to his Honour and the appeal must be dismissed.

• Concern was expressed at the form of the trial Judge’s orders which directly ordered the mother to live in Melbourne.  Where parents have previously been married to each other there may be a power to order a parent to relocate by operation of s114. Where parents have not been married the power to restrain the child’s movement may be found in ss65D and 68B.  It was unnecessary to determine the issue for present purposes.

Appeal dismissed
No order for costs
Reportable

1. This is an appeal by the mother of A against orders made by Smithers J on 2 July 1998, which had the effect of requiring her to return from Brisbane to Melbourne and reside in Melbourne with the child.

Background

1. The appellant is the mother of T born 4 June 1991, A born 17 November 1994, and C born 27 July 1997.  The respondent is the father of A.

1. The parties met in 1992.  In February 1994 the respondent fell pregnant with A.  The trial Judge accepted the mother's evidence that the parties only lived together for about 2 months after the birth of the child and then again for about 3 weeks in the latter half of 1995.

1. There was some contact between the father and A until January 1996 whereafter there was no contact until October 1996.  The trial Judge found that this absence of contact was due significantly to the father's lack of interest in contact for at least a few months early in 1996. 

1. In December 1995 the mother commenced a relationship with Mr H, and after about 9 months of cohabitation she married Mr H on 1 September 1996.

1. On 23 April 1996, following requests made of the father by the mother in February 1996, consent orders were made whereby the wife was granted sole guardianship and custody of the child, questions of the father's access to the child were reserved, and the father was ordered to sign all necessary documents to enable the child's surname to be changed from "E" to "P".

1. Whether it was a request by the mother that she and Mr H be allowed to adopt A or whether something else motivated the father, he chose to commence proceedings seeking defined contact to A by filing a Form 7 application in August 1996.

1. On 21 August 1996 orders were made by consent referring the parties to counselling and restraining the wife from removing A out of the Commonwealth of Australia, as well as restraining the father from removing the child from the mother's residence. 

1. On 18 November 1996 orders were made by consent that the father have contact with A on a weekly basis, increasing from two hours at the first meeting to up to six hours some three months thereafter. 

1. On 17 March 1997 Smithers J ordered by consent that there be further counselling and that the mother be restrained from removing the child from the State of Victoria until further order.

1. [...]  By March of 1997 it had become apparent that Mr H had made an application to his employer to be transferred from Melbourne to Brisbane.  The appellant mother claimed that when that application was made she knew nothing of its existence.  Mr H's basis for making the claim was that he said he had been advised that A's health required a change of climate.  A had suffered from regular asthma attacks. 

1. The orders of 17 March 1997 provided for weekly contact from 10.00am to 4.00pm each Saturday.  When the matter returned to court on 21 April 1997 orders were made altering contact to alternate weekends from 10.00am Saturday to 5.00pm Sunday, the child to be collected from and returned to an address in Melbourne.  It was further ordered:

"That until further order, and without admitting the necessity for the same, the mother be and is hereby restrained from residing with the said child outside the State of Victoria but nothing in these orders shall be taken to prevent the mother from travelling outside of Victoria with the said child (but not so as to interfere with the father's contact)."

The application was then adjourned to a Direct Track List on 15 August 1997.

1. On 29 April 1997 Mr and Mrs H took T and A and moved to Brisbane.  They made that move notwithstanding Mr H's employer having indicated that any transfer to Brisbane could be held in abeyance pending the outcome of the Family Court proceedings.  Over the next few months they surreptitiously arranged for A to travel from Brisbane to Melbourne each alternate weekend so as to enable contact to take place.  They did not advise the respondent that A was living in Queensland. 

1. When the father discovered the subterfuge he brought proceedings on a Form 49 application on 21 July 1997.  On the return of that application Nikakis JR found the mother had without reasonable excuse contravened the orders of 21 April 1997 and ordered her to enter into a recognizance to be of good behaviour for 12 months and to comply with all orders of the Court.  The restraint on the child residing out of Victoria was suspended until further order.

1. On 16 October 1997 the parties consented to contact taking place by means of a series of four day blocks each month, together with one week in January 1998.  That arrangement remained in place (subject to some missed periods) until the matter came on for hearing before Smithers J in March and May 1998.

1. At the conclusion of the hearing, which lasted for over nine sittings days, orders were made in the following terms:

1.      That the mother live in Melbourne with the child A born 17 November 1994 from at or before 24 January 1999 and the said child reside in Melbourne thereafter.

2.      That after 24 January 1999 the mother be restrained from removing the said child from Melbourne without the written consent of the father or further order of this Court save for holidays in Australia.

1. Further orders provided for 4 day blocks of monthly contact for the remainder of 1998, 23 days contact over the summer holidays, and, once the mother had relocated to Melbourne, alternate weekend contact from Friday evening to Sunday evening plus half school holidays, and special event contact, such as the child's birthday and Father's Day.  The cost of airfares for the child was to be borne equally.

1. At the conclusion of the hearing we expressed some concern as to the form of Order 1 in that it purported to directly order the mother to live in Melbourne rather than deal with where the child should live.  We were concerned as to the propriety of such an order and the source of power to make it.  Counsel quite properly indicated to us that the orders were drafted by counsel rather than his Honour and that any error of form was to be visited upon them rather than upon the trial Judge.  It was common ground that the gravamen of his Honour's judgment was that the child should live in Melbourne in order to facilitate regular contact with his father, and that no issue of power to require the mother to live in Melbourne was intended to be canvassed. 

1. Without exploring the extent of that power, it would appear that when dealing with a child whose parents have never been married to each other, the power to place a restraint upon movement of the child appears to be found in the Court's power to make a parenting order under s.65D or grant an injunction under s.68B. Whilst an order restraining a parent from changing the child's place of residence may in reality act as a severe impediment upon the freedom of movement of that parent, neither section is likely to be a source of power to directly restrain the freedom of movement of that parent. When dealing with parents who have been previously married to each other, it may be that such a power exists by operation of s.114 of the Family Law Act 1975.  It is unnecessary in this case to determine these issues, but it is important that judicial officers and practitioners bear in mind the possible limitations of power when determining the form of orders that are appropriate in any particular case.

The Judgment

1. In addition to the matters which have already been set out as background, his Honour made several key findings.  In mid-1996 (his Honour said "June" but the evidence appears to be "July" although nothing turns on it) Mr H said that whilst he was at the surgery of Dr S (the family’s GP), A had a severe asthma attack.  Mr H enquired of the doctor whether a move to a warmer climate would be of benefit to the child and when the doctor indicated that it might be Mr H took it upon himself thereafter to ask his employer to transfer him to Brisbane.

1. His Honour was also satisfied that by mid-1996 the mother had:

"reached the stage where she felt that it would be better [that the father] remained out of the picture in the future, thus removing one large complication from her life."

1. On 11 March 1997 the mother filed a Form 8 application seeking that she be permitted to reside with A in Brisbane.  In her affidavit in support she swore that the reason for the move was as a result of the husband being transferred and that:

"this transfer was not in any way requested by my Husband.  He in fact had no say in the matter."

It was subsequently the mother's case, supported by Mr H, that he did not tell her that he had engineered the transfer until 2 April 1997.  His Honour concluded:

"…the serious aspect of the behaviour of Mr H was that it resulted in, and was always likely to result in, A being taken to Brisbane and the family moving there, without any consideration of the merits of such a move from the point of view of the child."

1. Mr H was present in Court on 17 March 1997 and heard the mother swear that he had nothing to do with the transfer.  He did not attempt to correct the position that day.

1. After hearing from persons responsible for his transfer, his Honour found that the transfer would have been cancelled if Mr H's superiors had known of the injunctions made on 21 April 1997 restraining the change of residence out of the State of Victoria.

1. His Honour found that on 3 April the mother and Mr H went to Brisbane and in the ensuing weeks signed a lease on a property there.  They also booked a Brisbane hospital for the mother's confinement with C.  His Honour said:

"the mother's deliberate breach of the court order, ongoing over a period of almost three months is of concern, particularly given its surreptitious nature.  It contributes to my lack of confidence in her preparedness to comply with a court order if it does not suit her.  She should have acted openly and sought an order from the Court to cater for her difficulties."

1. His Honour then turned to the evidence relating to A's health.  Dr S gave evidence, as did a specialist paediatrician and respiratory physician, Dr B.  Dr S swore in his affidavit that "…a move to Queensland is not clinically indicated".  Dr B swore:

"In fact, there is no difference in the prevalence of asthma in any region of Australia and I believe therefore that moving interstate is no guarantee that his asthma will improve, in fact it may even deteriorate."

1. His Honour's conclusion of the medical evidence was as follows:

"Unfortunately by the time he gave his evidence the specifics of the considerable background of his conversations with Mr H and the mother were hard for Dr S to recollect.  Speaking generally his evidence is that Mr H or the mother, or both of them, discussed a warmer climate and also the possibility of a move or transfer to Queensland for Mr H.  However I cannot conclude on his evidence that the mother spoke to Dr S in a way which indicated that she was aware that Mr H had made his transfer request.  What is clear from all of the evidence is that it was Mr H, and not the doctor, who suggested that a warmer climate might help."

1. His Honour went on to say:

"There was no real imperative for the mother or Mr H to go to Brisbane, except after Mr H was actually transferred in his work... The move to Queensland was not bona fide as far as Mr H was concerned.  Whatever his view as to the asthma, to use it as an excuse without being open with A’s parents, was not to act in good faith...

I certainly have no belief that Mr H did not tell the mother.  I simply do not know...It is conceded on behalf of the mother that it cannot be said that it is necessarily any better for A’s asthma that he live in Brisbane as compared with Melbourne.

The combined evidence of Mr C and Mr V is that it would be most likely that Mr H would be accepted back in Melbourne in his work …, although not until mid 1999...

A relocation back to Melbourne would cause significant disruption to the mother and her family who are well settled in Brisbane.  There would be the considerable expense associated with the move, including changing housing and moving their furniture.  Mr H would have to bear these costs without recompense from his employer...

At this time the mother and her family are well established in Brisbane.  A move to Melbourne would separate the family from the friends they have made in Brisbane since April 1997.  It would mean another change of school for T after up to eighteen months in Brisbane and new creche arrangements for A.  It would also mean the loss of a good home and the loss of the day to day routine in Brisbane which so clearly is to the liking of the family.  On the other hand it would be a return to a place in which the family lived for some time, apart from C of course, and in which they would have friends.  It would place emotional stress on Mr and Mrs H and consequently some stress on A and T...

The mother concedes that the father, whatever his attitude in the past, has become dedicated to maintaining a close relationship with his son and a relationship in which he sees him frequently and regularly.  This case has been argued on the basis that this attitude of the father is not in dispute.  Since August 1996 the father has been constant in this regard.  I find that his contact has been greatly to the benefit of A.  There is a loving relationship between father and son...I conclude that, despite the period in 1996, the father’s attitude to A will be likely to be constant loving and supportive into the future.

In my opinion this is a case in which for the sake of A, contact between the father and A should be frequent and regular, contact along the lines of alternate weekends, even together with a few hours of weekday contact on say each fortnight (although the father has not sought weekday contact).  Of course there are other arrangements which could meet the criteria of regular and frequent contact.  I believe that four days contact each two months, or even each month, would be a significantly worse arrangement.  This is particularly so given A’s young age, where frequency of contact is often so much more important than in the case of older children.  Also the child was deprived of his father’s company during a long period in 1996 and it is important that he not begin to wonder whether he has lost him, because of long breaks in contact in the future.  This is not to say that there is any evidence that the 1996 situation impinges on A’s thoughts at this time, or is likely to do so in the future.

The infrequent contact proposed by the mother, of two monthly periods of four days and some holiday times would be inclined to cause substantial inroads in the growth of the relationship between the father and A in the future, as compared with frequent contact.  The father would be much less engaged in the normal life of A.  There would be much more of a tendency for the situation to be a holiday and entertainment one.  It would be hard to have ongoing activities with A.  It would tend to confirm him as belonging to a different family with a different father figure.  It would increase the influence on A of Mr H, at the expense of the influence of his father.  In any event Mr H will be a considerable influence on A; it is just that I believe there should be more of a balance from A’s point of view, particularly given the importance of parental influence, and parental obligation and responsibility now and into the future.  As the father says, A has only one father and that will never change.  He should have frequent recourse to his father, if that is compatible with the other imperatives and considerations in the case."

1. His Honour then examined the cost of travel and concluded, having regard to the finances of each of the households that:

"the ongoing financing of contact every two months and for holiday periods might be doubtful."

1. His Honour said further:

”I have stated that even now I am far from convinced that the mother is in favour of contact, or at least regular contact.  I have concern as to the attitude of the mother in the future should she have the benefit of a decision in her favour.  [Whilst] I am not of the view that I can say confidently that the mother is likely to attempt to undermine contact in the future.  On the other hand I am not confident that she will promote it wholeheartedly.  I do not accept her evidence that she sees real value in the relationship of the father with A.  I believe that the extent to which she may feel it has some value is not strong, and would be likely to give way in the face of relatively small difficulties or irritations, in favour of a non co-operative attitude.  I believe that Mr H has a limited view of the benefit of ongoing contact of A with his father, and his influence with the mother regarding contact would not be likely to be positive."

1. Finally his Honour indicated that he did not think regular air travel was good for the child, that it involved long hours of travel, detailed arrangements and a lack of flexibility. 

1. His Honour then turned to examine the relevant provisions of the Family LawAct and the authorities, especially B v B: Family Law Reform Act 1995 (1997) FLC 92-755, and after setting out s.60B said:

"In section 60B(2)(b) reference is made to contact to both parents on a regular basis as being a right of a child.  I think that includes the notion of reasonable frequency of contact."

1. After referring to Holmes and Holmes (1988) FLC 91-918 his Honour noted the importance of the consideration of the genuine wishes of an unchallenged custodian and said that in this case there existed a very strong wish, which would result in a most significant restriction if the mother was obliged to return to live in Melbourne. His Honour concluded that Mr H demonstrated a lack of bona fides and there were aspects of the mother's behaviour which threw doubt upon her actions and motives. His Honour observed that there would be less frequent contact if A stayed in Queensland and then concluded that the best interests of A required him to live in Melbourne, with regular and frequent contact with his father, which his Honour said was a conclusion "based on the proposition that the mother did not know of Mr H's actions seeking a transfer to Brisbane".

The Appeal

Further Evidence

1. At the commencement of the proceeding Mr Davis, who together with Ms Fogarty appeared on behalf of the appellant mother, made an application that he be permitted to rely on further evidence.  That evidence consisted of an affidavit by the mother in which she sought to detail the disappointment and resentment that her husband (Mr H) felt at the outcome of the proceedings and the impact the move back to Melbourne might have upon her family unit.  She also sought to lead evidence of contact difficulties and arrears of child support.  At the hearing we refused the application and indicated we would set out our reasons when delivering judgment.

1. The admission of further evidence on appeal is governed by the provisions of s.93A(2) of the Family Law Act 1975, which provides that the Court may in its discretion receive further evidence upon questions of fact.  In CDJ v VAJ (1998) 23 Fam LR 755 McHugh, Gummow and Callinan JJ said at para.111:

"Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial."

1. Their Honours said at para.115:

"[T]hat [the discretion] should only be exercised in favour of the receipt of the further evidence if that evidence is not only relevant to the welfare of the children but is also admissible according to ordinary principles..."

1. In our view, the evidence sought to be relied upon could not be said to have been likely to have produced a different result.  The trial Judge was aware of the disruption that would be caused to the family and aware of the attitude and role of Mr H in the proceedings.  His Honour foresaw difficulties in the logistics of contact, and indeed indicated that they would be magnified in the event that the parties lived in different States.  The issue relating to child support seems marginal at best. 

1. Further reasons for declining to exercise the discretion include the fact that some of the material sought to be relied upon was inadmissible in that the appellant sought to give evidence as to the state of mind of her husband.  Further, much of the evidence was contentious and the accuracy of the material would need to have been tested.

The Grounds of Appeal

1. Whilst the Notice of Appeal contained 14 grounds, counsel for the appellant opened his case before us on the basis that the appeal raised three main issues.  He identified those issues as follows:

1.The orders made by the trial Judge requiring the mother to relocate to Melbourne with the child were against the weight of the evidence and the weight of his Honour's findings and accordingly must be in error.

2.      Under the general heading of lack of bona fides -

(a)     The conclusion that either Mr H or the wife lacked bona fides was in error, in that the trial Judge made mistakes as to the proper interpretation of the evidence;

(b)     If there was no error then there was undue weight placed on the bona fides issue;

(c)     Any suspicions the trial Judge held as to the lack of bona fides by the wife unduly influenced the decision.

3.      That the trial Judge misapplied s.60B.

Weight of Evidence

1. Mr Davis informed us that the first issue which he sought to argue was raised in Grounds 1, 2, 3, 6 and 8 in the Notice of Appeal.  He submitted that all of the factors found by his Honour relating to the welfare of the child weighed heavily in favour of the appellant on a proper analysis of the case.  He asserted that his Honour treated the case as one requiring a determination of whether the mother should be allowed to move to Queensland when in fact the case was about whether the mother should be required to move back from Queensland.  He further submitted that the trial Judge placed too much weight on the frequency of contact and not enough weight on the dislocation of the mother's family unit and its adverse effects upon the child as compared to what were relatively minor gains in respect of frequency of contact. 

1. In Rojahn v Butterfield (unreported, 5 November 1998) the Full Court (Ellis, Lindenmayer and Warnick JJ) upheld an appeal against orders requiring the mother of a child to relocate with the child from Bundaberg to Brisbane.  In that case the mother had left the family home some 3 years earlier and had immediately settled with the child in Bundaberg.  The Full Court held that the trial Judge had erred in treating the case as a  "relocation case" in the sense used in B v B (supra).  Their  Honours said at para 4.15:

"Those cases, and the principles developed in them, relate to circumstances in which a custodial (now resident) parent either proposes to change, or in fact has already changed, his or her place of residence in such a way as to prevent the continued operation of an existing regime of contact by the other parent with one or more of their children, whether that regime has been established by a court order or an agreement of the parties.  In such circumstances, either the parent proposing the change approaches the Court for (effectively) permission to move despite the existing contact regime and for a consequential re-definition of the other parent’s contact rights, or the contact parent approaches the Court for an order either preventing the other from moving or compelling that parent to move back to his or her former place of residence so that the existing contact regime may continue.  Neither the concept of “relocation”, nor the particular principles developed in those cases with respect to that concept is properly applicable to a case such as the present, in which, immediately upon a marital separation, one spouse has moved with a child of the marriage to a location which creates some practical difficulties in relation to contact by the other party, despite which a regime of contact is established which operates for a substantial period (in this case three years) and, upon the hearing of the contested residence proceedings after the elapse of that period, the parent who remained living in the locality of the parties’ former matrimonial home seeks an order effectively compelling the other parent to return to live in that locality or risk losing the daily care of the child."

1. In this case the mother took the child to Queensland in April 1997 in breach of an existing injunction restraining her from so doing.  The issue of whether she should be allowed to continue living in Queensland was very much a live issue in the proceedings which could still be properly categorised as a "relocation case".   Whilst there may be cases where the effluxion of time makes it more inappropriate to continue to apply "relocation" principles notwithstanding the circumstances which led to the child living in a different place from that of its non-residence parent, this case had not yet reached that point.  In any event, the trial Judge reached a conclusion after examining all the factors which favoured allowing A to live in Queensland and weighing them against the factors which supported his compulsory return to Melbourne.  It is not apparent that any particular approach favoured in "relocation cases" ultimately effected the outcome which was made by looking for the order which best advanced A's welfare.

1. Mr Davis submitted that under the mother's proposals for contact, which were for most of the school holidays and for mid-term four day periods in each year, the father would spend 73 nights with the child each year spread over 8 different periods.  This was to be compared with the orders made by the trial Judge which saw the child spending half the school holidays and each alternate weekend with the father, which entailed a total of 81 nights during 24 contact periods.  Mr Davis submitted that the frequency gains needed to be offset against the genuine wish of the appellant to live in Brisbane, the loss of a good home which had been established in Brisbane, and the general disruption to the family unit which would be caused by an expensive move south against their wishes. 

1. Mr Davis further submitted that the key finding of the trial Judge, that the father's:

"contact has been greatly to the benefit of A.  There is a loving relationship between father and son"

needed to be viewed in light of the circumstances in which such a loving relationship had been engendered, namely weekly contact of no more than a few hours duration for six months from October 1996 to April 1997, then fortnightly overnight contact from April 1997 to August 1997, then something less than monthly overnight contact from September 1997 until the conclusion of the trial in May 1998.  It was submitted that in those circumstances a loving relationship had been able to be created and adequately sustained whilst contact was taking place for no more than 4 days per month.  The corollary of such an observation, it was submitted, was that the contact proposed by the mother was adequate for the purposes of ensuring that the loving relationship between father and son continued.

1. It was submitted on behalf of the respondent that his Honour took the view that the issue of frequency was a significant one.  His Honour concluded "the father  would be much less engaged in the normal life of A" if there was a reduction in frequency.  He was further concerned that distance would create its own problems and that the mother's attitude towards contact was such that those problems were likely to be magnified leading to the potential for contact to be undermined.

Bona Fides

1. Counsel for the appellant submitted that the findings that Mr H lacked bona fides were against the weight of the evidence.  He submitted that a proper view of the evidence ought to have led his Honour to conclude that Mr H reasonably and genuinely believed that A's health required a move to Queensland and that he undertook the move acting upon medical advice.  Reliance was placed upon a medical certificate signed by Dr S in October 1996 which read:

"A is a young boy with asthma brought on by damp, cold weather.  Thus a transfer to a warmer environment would be beneficial."

In his evidence, however, Dr S indicated that he was ambivalent about a move to Queensland suggesting that at best it would be experimental and that he only signed a report in that form at the urging of Mr H and the appellant to assist them in persuading Mr H's employers of the necessity for the move.  It was further explained to Dr S that the report was requested because the respondent was wishing to see the child and:

"they would need some written evidence from me saying that it may well be useful for A to be moved given of (sic) custody issues."

1. In our view, the arguments of the appellant relating to the issues of bona fides cannot be sustained.  There is ample evidence upon which the trial Judge could properly find that Mr H was acting without bona fides in planning and executing the move to Brisbane.  It was open to the trial Judge to find, as he did, that there was no real imperative for the mother or Mr H to go to Brisbane and that Mr H's planning, without consulting either of A's parents, indicated that he was not acting in good faith.  It was clearly open to the trial Judge to retain doubts as to whether or not the wife knew that Mr H had engineered the move prior to April of 1997.  She was clearly discussing the potential for the move with Dr S as early as October 1996. 

1. Ultimately, the significance of the finding as to lack of bona fides appears to be in his Honour's concern for the future of a relationship between the father and A in the event that geographical limitations precluded frequency of contact.  This is evident from his Honour's finding that:

"I am not confident that [the mother] will promote [contact] wholeheartedly.  I do not accept her evidence that she sees real value in the relationship of the father with A...I believe that Mr H has a limited view of the benefit of ongoing contact with A with his father, and his influence with the mother regarding contact would not be likely to be positive."

These findings were clearly open to his Honour.  No error of approach or weight has been demonstrated.

Misapplication of Section 60B.

1. After referring to the decision of B v B (supra) and setting out the provisions of s.60B, Smithers J summed up the approach to be taken in a passage that reads:

"The Court must consider what is in the best interests of the child, bearing section 60B in mind.  This is the requirement of section 65E.  Section 68F sets out the various factors which the Court must take into account in concluding as to what is in the best interests of the child.  B v B discusses many factors which may frequently be relevant in such cases as this one; these are all matters which are referrable to a consideration of the ultimate question, namely the best interests of the child."

1. In B v B (supra) at para.9.58 the Full Court said:

" As a matter of proper practice and to ensure that this essential task is performed, a judge in the adjudication of such a case would be expected in the judgment to clearly identify s.65E as the paramount consideration, and then identify and go through each of the paragraphs in s.68F(2) which appear to be relevant and discuss their significance and weight, and perform the same task in relation to the matters in s.60B which appear relevant or which may guide that exercise.  The trial Judge will then evaluate all the relevant issues in order to reach a conclusion which is in that child’s best interests."

1. Earlier, at para.9.54 the Court said:

"The matters in s.68F(2) are to be considered in the context of the matters in s.60B which are relevant in that case.  But s.65E defines the essential issue."

1. Notwithstanding the submissions by Mr Davis to the contrary, we can find no difference in the approach urged by the Full Court and that adopted by Smithers J in the passage from his judgment referred to above.  In our view, his Honour did precisely that which the Full Court indicated in B v B (supra) was the appropriate course to be taken, namely make an order which would, from his perspective, best advance the welfare of the child, taking into account the relevant considerations under s.68F(2) and s.60B.

Legal Principles to be Applied

1. This was a discretionary judgment.  The circumstances in which the Full Court should interfere with a discretionary judgment are well known.  In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519:

"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 House v. The King (1936) 55 CLR 499, at 504-505, Dixon, Evatt and McTiernan JJ said:

"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 discretion is reviewed on the ground that a substantial wrong has in fact occurred."

Summary and Conclusion

1. In our view the only submission which has the potential for demonstrating the existence of appealable error is that the child and the father have been able to establish and maintain a good relationship on limited contact and that in the circumstances it does not follow that any more frequent or regular contact is necessary for that relationship to be nurtured.  In essence the submission was that the freedom of the mother, as the principal caregiver of the child, to choose the life that she wishes to lead with the child, has to be given significant weight and ought not be subordinated to the concept of regular and frequent contact unless it is positively established that the child's relationship with his father is important to the child, and will be significantly damaged unless the mother is effectively forced to live in close proximity to the father.

1. These considerations were clearly identified by the Full Court in B v B (supra) as being important considerations in the exercise of any discretion concerning where the child ought live.  At para.9.62 the Court began by saying:

"Circumstances often arise where it becomes necessary or desirable for one or other parent to relocate."

The difficulty in this case is that the relocation took place in circumstances which were neither necessary nor desirable.  The relocation occurred in breach of an order restraining such behaviour and, on the appellant's case, only because Mr H thought it appropriate.  The medical evidence did not support the necessity for a change nor were there any employment or extended family factors which dictated the change.  Once the change had occurred, however, the trial Judge had to be attuned to the reality of the change. 

1. If the Court ordered a return to Melbourne based significantly upon its dismay at the manner in which injunctions had been flouted, then the Court would be open to the criticism that the welfare of the child had been sacrificed on an altar of high principle, namely that people should not be able to get away with flouting court orders.  However, an analysis of the manner in which Smithers J approached his task does not lead us to the conclusion that that was the path he chose to adopt.  His Honour expressly dealt with the matters favouring the wife's case, namely a genuine and strong wish to live in Brisbane, the fact that the family were well settled in Brisbane, the economic hardship involved in returning to Melbourne, and the disruption to the mother's family which would be entailed by the fact that she would have to return to Melbourne a lot earlier than she could expect Mr H to return to Melbourne.  These would have an impact not only on A but upon the other children as well.  His Honour off-set as against those considerations what his Honour perceived as the necessity for frequent access in order to ensure the continuation of a good relationship between father and son in circumstances where there was potential hostility in the mother's household. 

1. The trial Judge was cognisant of the amount of contact enjoyed by the child to his father and the quality of the relationship that had been developed and maintained given the comparative sparsity of such contact in recent months. However his Honour stressed the tender age of the child and the competing forces in the mother's household which would work against the quality of the father-son relationship if frequent contact was absent.   

1. Whilst the result requiring the mother to return to Melbourne might not have been the orders that any of the members of the Full Court may have made sitting as a judge at first instance, the issue that we must ask ourselves is whether or not any appellable error has been demonstrated.  That issue includes a consideration of whether the result is plainly unjust.  In our view whilst there were powerful reasons for reaching an opposite conclusion to that reached by the trial Judge, we cannot confidently say that an error has been demonstrated, nor that the result was not a proper exercise of his Honour's discretion.  In those circumstances the appeal must fail.

Costs

1. At the conclusion of the hearing we sought submissions from each of the parties in respect of the costs of the appeal.  In the event that the appeal was dismissed the father sought an order for costs.  Whilst the mother has been wholly unsuccessful in this appeal, the delicacy of the issues involved and the finances of the parties are such that we would not make an order for costs.

Orders

That the appeal be dismissed.

That there be no order as to costs of and incidental to the appeal.