H v L

[2000] FamCA 752

[2000] FamCA 752

FAMILY LAW ACT 1975

IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal No. EA 118 of 1999
File No. PA 3643 of 1997

IN THE MARRIAGE OF:

H     Appellant Wife

AND

L  Respondent Husband

REASONS FOR JUDGMENT OF THE FULL COURT

BEFORE:  Nicholson CJ, Ellis and Coleman JJ
DATE OF HEARING:  8 May 2000
DATE OF JUDGMENT:                1 August 2000

APPEARANCES:               Mr J. Lloyd of Counsel, instructed by Champion Legal, Solicitors, Level 3, 60 Phillip Street Parramatta NSW 2150 appeared for the Appellant Wife.

Mr P. Batey and Mr A. Givney of Counsel, instructed by Judith Wickham & Associates, Solicitors, 110 George Street Parramatta NSW 2150 appeared for the Respondent Husband.

H and L  Appeal No. EA 118 of 1999
Coram:  Nicholson CJ, Ellis and Coleman JJ
Date of Hearing:       8 May 2000
Date of Judgment:    1 August 2000

Catchwords:             Family Law - Residence - Planned relocation of mother - Mother not to relocate as would restrict father’s contact with children - AIF v AMS (1999) FLC 92-852; Paskandy v Paskandy (1999) FLC 92-878 and A v A: Relocation Approach [2000] FamCA 751 considered and applied; Martin v Matruglio (1999) FLC 92-876 considered - Correct approach to relocation cases

This was an appeal by the mother against orders made by Flohm J. on 30 November 1999, as a result of which the mother was to have residence of the children of the marriage and the father was to have liberal contact with them. The orders also restrained the mother from moving the children’s residence from the Sydney metropolitan area without the written consent of the father or the Court. The wife’s proposal to relocate with the children from Sydney to Lismore was a central issue both before the trial Judge and on appeal.

The parties commenced cohabitation in 1983 and married in 1989. The parties separated in 1996 and were divorced in July 1997. There are two children of the marriage, S, aged 8 at the time of trial, and C, aged 6.

The trial Judge undertook an extensive analysis of the evidence, including examination of the parties’ respective circumstances and proposals, the mother’s reasons for relocation, the distance and costs associated with the relocation proposal, the children’s wishes, the effect of the proposed change on the children’s circumstances and the parents’ relationship with the children.

Her Honour observed that in parenting orders cases such as the present, the best interests of the child are to be regarded as the paramount consideration and referred to s 68F(2) of the Family Law Act and the objects of Part VII. Her Honour concluded that although the mother’s interests and desires for relocation were legitimate, the children’s interests would best be served by them living in an area where they could have frequent contact with both parents. Accordingly she made the orders against which the mother has appealed.

The mother submitted on appeal:-

• That the evidence before the Court did not entitled the trial Judge to objectively come to the view that the mother’s decision to relocate was brought about by an unwillingness to lose the final say on the issue of the children’s contact with their father;

• That the trial Judge failed to consider the mother’s legitimate interests and desires in seeking to relocate in circumstances where the children’s residence was not contested;

• That the trial Judge erred in accepting the Court Counsellor’s evidence, which was apparently prejudiced against the mother;

• That the trial Judge erred in the application of the relevant principles of law.

Held:-

1. The principles to be applied in the determination of a parenting case that involves a proposal to relocate the residence of a child are those enunciated in AMS v AIF; AIF v AMS (1999) FLC 92-852 and Paskandy v Paskandy (1999) FLC 92-878. These guidelines were summarised by the Full Court in A v A: Relocation Approach [2000] FamCA 751, which elucidates the steps to be taken by a trial Judge determining a case of this kind, as follows:

In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas, the following principles apply:

·     The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.

·     A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:

·     It is necessary for a court to evaluate each of the proposals advanced by the parties.

·     A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'."

·     The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.

· It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.

· The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.

·     It is to be expected that reasons for decision will display three stages of analysis and:

1.   A court will identify the relevant competing proposals;

2.   For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;

· As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.

·     The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.

·     Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.

3.   On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.

·     The process of evaluating the proposals must have regard to the following issues:

a)None of the parties bears an onus:

·In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child.  That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.

b)The importance of a party's right to freedom of movement:

·In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s92 of the Constitution, where applicable.

·In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity.  If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.

c)Matters of weight should be explained:

·In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.

·In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.

1. The Court was not persuaded that the trial Judge erred in applying the relevant principles of law to the parties’ competing proposals.  The conclusion reached by her Honour was not reached without regard to the mother’s stated reasons for seeking to relocate and was a conclusion which correctly applied the principle that a party’s legitimate interests and desires in relocating have to give way to the best interests of the children.

1. The trial Judge paid regard to the Counsellor’s evidence but was clearly not solely reliant on it and in any event it was open to the trial Judge to accept that evidence.

Appeal dismissed.

The mother to pay the father’s costs of and incidental to the appeal, such costs to be as agreed or failing agreement as taxed.

Reportable.

INTRODUCTION

1. This is an appeal by GH ("the mother") against orders made by Flohm J on 30 November 1999 as set out in paragraph 7 below, following a contested hearing of children's matters.  The respondent to the appeal is her former husband POL ("the father"). 

1. The father was born in 1959 and was aged 40 at the time of the hearing.  The mother was born in 1963 and was aged 36 at the time of the hearing.  They commenced cohabitation in 1983 and married in February 1989.  The parties separated in January 1996 and a decree nisi dissolving their marriage became absolute in July 1997.

1. There are two children of the marriage: S born 1991 and C born 1993.  Thus, the children were aged 8 and 6 respectively at the time of the hearing.

1. The proceedings before Flohm J concerned the residence of and contact to the children. Prior consent orders had been made on 12 March 1998.  These concerned both children's matters and financial settlement between the parties (AB 142).  In respect of the children, the orders provided inter alia that the children were to reside with the mother and the father was to have liberal contact with them.  The orders also contained a substantial number of Specific Issues Orders which, as noted by her Honour at paragraph 9 of her reasons for judgment, clearly envisaged parental consultation on matters relating to the children’s future and significant involvement by the father in all aspects of the children’s life.

1. A central issue both before the trial Judge and before us was the mother's proposal to relocate with the children to Lismore from Sydney which is over 800 kilometres in distance.  Her Honour said, at paragraph 51:

"He opposes any relocation of the mother and the children to Lismore.  He says that if the children live in Lismore, there is simply no regime of contact that could logistically be put in place that would not severely impact both quantitatively and qualitatively on the current contact, to the detriment of the children."

1. In the result, the trial Judge did not accede to the mother's proposal and paragraph 14 of her Honour's orders, inter alia  restrained the mother from moving the children's residence outside the Sydney metropolitan without the written consent of the father or the leave of the Court. 

1. The precise orders made by Flohm J were as follows:

   (1)That all previous parenting orders in relation to S born 1991 and C  born 1993 (“the children”) be discharged.

   (2)That the children are to reside with GH (“the mother”) who is to have responsibility for the day to day care, welfare and development of the children whilst they are in her care.

   (3)That the children are to have contact with POL (“the father”) as follows:

   (a)each alternate weekend from 6.00 pm Friday until 6.00 pm Sunday, or Monday if a long weekend;

   (b)the contact periods referred to in (a) above are to be suspended during school holiday periods;

   (c)for the first half of the Easter, June/July, September/October and December/January school holidays, being the second half in holidays commencing in 1999 and each alternate year thereafter, and the first half in holidays commencing in 2000 and each alternate year thereafter;

   (d)during the Christmas period, if the children are residing with the mother and the children have remained in the Sydney metropolitan area, from 6.00 pm on 25 December until 6.00 pm on 26 December;

   (e)each Father’s Day from 9.00 am to 6.00 pm when such day does not fall during the father’s contact period;

   (f)at such other periods as the parties may agree, including but not limited to a period on each of the children’s birthdays and the father’s birthday;

   (4)The father is to have telephone contact with the children between the hours of 6.00 pm and 7.00 pm each Tuesday and Thursday, the father to telephone the children at the mother’s residence.

   (5)During the Christmas period, if the children are on school holiday contact with the father and the children have remained in the Sydney metropolitan area, the children are to reside with the mother from 6.00 pm on 25 December to 6.00 pm 26 December, and the father’s contact period pursuant to these orders is suspended for that 24 hour period.

   (6)The children are to reside with the mother from 9.00 am to 6.00 pm each Mother’s Day when such day does not fall during a period when the children are residing with the mother, and the father’s contact period pursuant to these orders is suspended for that 9 hour period.

   (7)That the mother is to have telephone contact with the children between the hours of 6.00 pm and 7.00 pm each Tuesday and Thursday when the children are on school holiday contact with the father, the mother to telephone the children at the father’s residence.

   (8)The parties are to keep each other informed of a telephone number at which the children can be contacted pursuant to Orders (4) and (7) above if the children will not be at their usual place of residence.

   (9)For the purpose of contact changeover, the father is to collect the children from and return the children to the mother’s residence until such time as the mother obtains full time employment, at which time the father is to provide the transport at the commencement of contact and the mother is to provide the transport at the conclusion of contact.

   (10)Without admissions by or prejudice to the father, the father is hereby restrained from consuming alcohol during contact periods whilst he is taking medication of the type referred to in the report of Dr B of 9 November 1998 and which is annexed to Dr B’s affidavit sworn 13 August 1999.

   (11)The father is at liberty to attend the children’s sporting activities, including but not limited to S’s cricket and soccer games, if they take place during a period which is not a contact period.

   (12)The mother is at liberty to attend the children’s sporting activities, including but not limited to S’s cricket and soccer games, if they take place during a period in which the children are not residing with her.

   (13)That the mother and the father each have responsibility for decisions concerning the long-term care, welfare and development of the children.

   (14)That the mother is hereby restrained from moving the children’s residence outside the Sydney metropolitan area, or changing the children’s current school, without the written consent of the father or the leave of the Court.

   (15)That the mother shall provide to the father on a regular basis copies of all school photographs, school reports, any other reports on school progress and behavioural issues and other school circulars in relation to the children as soon as practicable after they are received, and each party shall pay one-half of any associated costs of photocopying and postage.  The husband shall pay the price of any school photographs he requires.

   (16)That the mother provide to the father in a timely manner copies of all notices received from school and details of all functions, parent/teacher nights and other activities to which the parties are invited.

   (17)That the mother shall consult with the father in relation to enrolment of the children into extra-curricular activities.

   (18)That the mother shall consult the father in relation to decisions about all operations and medical treatment other than day to day matters concerning the children, including dental treatment, speech therapy, physiotherapy and immunisations, surgery vaccinations, contraception and counselling.

   (19)That the mother shall consult with the father before enrolling the children into groups and associations.

   (20)That the mother shall consult the father in relation to decisions about the religion, religious instruction and observance of the children.

   (21)That each party will consult the other party in relation to making arrangements for the issues of the children’s passports and all overseas travel plans for them.

   (22)That the mother shall consult the father in relation to the children playing or being involved in any sporting activity or additional tuition and attendance of sport camps.

   (23)That these proceedings be removed from the Pending Cases List.

   (24)That all documents produced to the Court in response to subpoena or tendered as an exhibit in the proceedings be returned at the expiration of twenty-eight (28) days from today’s date."

THE APPLICATIONS OF THE PARTIES AT TRIAL

1. The proceedings before Flohm J were commenced by the father on 18 March 1999 when he filed an Application for Final Orders in the following terms:

1.That the applicant father shall exercise contact with the children of the marriage namely S born 1991 and C born 1993 defined as follows:

2.Each alternate weekend from 6.00pm Friday until 6.00pm Sunday commencing forthwith.

3.In the event of a long weekend falling on a contact weekend, contact to include the holiday commencing at 6.00pm the day before the public holiday or concluding at 6.00pm on the day of the public holiday.

4.For one (1) week during the mid year school vacation, in even numbered years commencing 9.00am on the first Saturday after school breakup and concluding at 9.00am the following Saturday and in odd numbered years commencing 9.00am the second Saturday after school breakup and concluding at 9.00am the following Saturday.

5.Each year for a period of two (2) weeks commencing at 9.00am on the first Saturday in January and concluding at 9.00am on the third Saturday in January.

6.In each odd numbered year, commencing 1999, from 5.00pm Christmas Eve until 3.00pm Christmas Day.

7.In each even numbered year, commencing 2000, from 3.00pm Christmas Day until 6.00pm Boxing Day.

8.In each odd numbered year, commencing 1999, from 6.00pm on the Thursday prior or Easter until 6.00pm Easter Monday.

9.By telephone each Tuesday and Thursday between the hours of 6.00pm and 7.00pm.

10.For the purpose of change over at contact the husband shall collect the children from the mother’s residence at the commencement of contact and the mother collect the children from the husband’s residence at the conclusion of contact.

1. As we have noted, at paragraph 51 of her reasons for judgment, Flohm J  summarised the father’s proposal as seeking contact on each alternate weekend and half of all school holidays. He opposed the  children’s relocation and maintained that it would severely impact on the current contact, to the children’s detriment. In the event that the mother were ‘permitted’ to relocate, the father sought monthly weekend contact from Friday to Sunday in Sydney, and half all school holidays in Sydney.

10. Although no reply or amended application was subsequently filed by the father, her Honour recorded:

"53.     The father says that as a second best option in the event that the mother is permitted to relocate to Lismore, he seeks monthly weekend contact from Friday until Sunday in Sydney, and half all school holidays in Sydney.  He said that he could be at Sydney airport by 6.00 pm on Friday to meet any flight arriving after that time, and that he could deliver the children to Sydney airport on Sunday afternoon for the return flight."

11. The mother filed a Response on 13 April 1999 seeking the following Final Orders:

1.That the Applicant Father have contact with the children S born 1991 and C born 1993, such contact to be defined as follows:-

(a)on each alternate weekend during school terms from 9.00 am Saturday until 5.00 pm Sunday provided that in the event of any contact weekend falling on a long weekend with the exception of the Easter weekend, then contact shall include either the Monday or Friday public holiday commencing at 9.00 am on the Friday public holiday or concluding at 5.00 pm on the Monday public holiday;

(b)for one week during the July school year vacation commencing at 9.00 am on the first Saturday after school concludes and concluding at 5.00 pm on the following Friday in even numbered years including the Year 2000 and commencing at 9.00 am on the second Saturday following the conclusion of school and concluding at 5.00 pm on the following Friday in odd numbered years commencing in 1999;

(c)each alternate year from 9.00 am on 10 January until 5.00 pm on 23 January commencing in the Year 2001;

(d)in each alternate year from 9.00 am on 27 December until 5.00 pm on 9 January commencing in the year 2002;

(e)for two one week periods during the 1999/2000 Christmas school holidays with no less that one week between each period as agreed between the parties;

(f)in each alternate year commencing 1999 from 5.00 pm on Christmas Eve until 3.00 pm on Christmas Day;

(g)in each alternate year commencing Year 2000 from 3.00 pm on Christmas Day until 5.00 pm on Boxing Day;

(h)reasonable telephone contact with the father to telephone the children between the hours of 5.00 pm and 6.00 pm on each Tuesday or Thursday.

2.That the father shall cooperate with the mother to ensure that each child is able to attend such formal commitments as they may have during each period of weekend contact.

3.That the father shall not consume any alcohol for a period of not less than 6 hours prior to the commencement of any period of contact and shall not consume any alcohol during any period of contact.

4.That the father will undertake to attend upon regular and formal psychiatric counselling with regards to his continuing diagnosis of depressive illness.

12. The mother then filed an Amended Response on 13 May 1999 seeking:

1.        That the Orders for contact made on 12 March 1998 be vacated.

2.That until 17 December 1999 the Applicant Father have contact with the children S born 1991 and C born 1993 as follows:

(a)on each alternate weekend during school terms from 9.00 am Saturday until 5.00 pm Sunday provided that in the event of any contact weekend falling on a long weekend then contact shall be extended to include the public holiday;

(b)for one week during the July school vacation and one week during the October school vacation commencing at 9.00 am on the first Saturday after school concludes and concluding at 5.00 pm on the following Friday;

3. That the father have contact with the said children from 9.00 am on 20 December 1999 until 5.00 pm on 31 December 1999.

4. That the father have contact with the children from 9.00 am on 15 January 2000 until 5.00 pm on 22 January 2000.

5. That the father have telephone contact with the children on each Tuesday and Thursday between 4.00 pm and 6.00 pm with the father to telephone the children at the mother’s residence.

6.That as and from the commencement of the school year 2000 the father have contact with the children as follows :-

(a)for one weekend in every four week period during school terms such weekend to be nominated by the father not less than two weeks in advance;

(b)for the first half of each of the short school holidays in the Year 2000 and every alternate year thereafter;

(c)for the second half of each of the short school holidays in the Year 2001 and every alternate year thereafter;

(d)for three weeks in each Christmas holiday vacation alternating between the first three weeks and the last three weeks with the husband to have the last three weeks in the Christmas vacation 2000/2001;

(e)should Easter not be part of the school holidays then on each alternate Easter vacation;

7. That for the purposes of contact pursuant to Order 2, 3 and 4 and 6(a) and (e) herein the Father shall collect the children from the Mother’s residence at the commencement of contact and return the children to the Mother’s residence at the conclusion of contact.

8. That for the purposes of Order 6 (b) to (d) herein the mother shall pay one half of the air fares for the children to travel from Lismore to Sydney and return should the father elect for the children to travel by plane.

9. That for the purposes of such travel the mother shall deliver the children to the Ballina airport at the commencement of contact and the father shall collect the children from Sydney airport at the commencement of contact and the father shall return the children to Sydney airport at the conclusion of contact to be returned to the mother at Ballina airport.

10. That the father shall cooperate with the mother to ensure that each child is able to attend such sporting and social commitments as they may have during each period of weekend contact.

11. That the father shall not consume any alcohol for a period of not less than 6 hours prior to the commencement of any period of contact and shall not consume any alcohol during any period of contact.

12. That the father will undertake to attend upon regular and formal psychiatric counselling with regards to his continuing diagnosis of depressive illness.

13. Her Honour described the orders sought in the Amended Response as follows:

"45.     In her Amended Response filed 13 May 1999, the mother proposed, in summary, that until she went to Lismore, the father have contact in Sydney each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday, for six consecutive overnights in the July and October 1999 school holidays, and for two period of 11 consecutive overnights and 7 consecutive overnights in the 1999/2000 Christmas holidays.  From the commencement of the school year in 2000, the mother proposed that contact take place on one weekend in four, for half the term holidays and three weeks in the Christmas holidays.  It is clear from the fact that the mother also sought that when she went to Lismore the father would collect and return the children to her home (Order 7) and that the father would ensure that the children attend sporting and social commitments during his weekend contact (Order 10) that the mother’s proposal required the father to exercise weekend contact in Lismore.

46.      The mother said in her oral evidence that her original proposal envisaged that the father would stay once a month in a granny flat or in student accommodation in Lismore which she may be able to assist him to arrange. … "

14. On 23 September 1999, the first day of the hearing before her Honour, the mother filed a further Amended Response which altered paragraphs 7 and 8 as follows:

7. That for the purposes of contact pursuant to Order 2, 3 and 4 herein the Father shall collect the children from the Mother’s residence at the commencement of contact and return the children to the Mother’s residence at the conclusion of contact.

8.That for the purposes of Order 6 (a) to (e) herein the mother shall pay one half of the airfares for the children and/or the father to travel to/from Lismore and Sydney and return should the father elect for the children or him to travel by plane.

15. The impetus for and effect of the further Amended Response were described by her Honour at paragraphs 47 - 48:

"47.     During the course of the hearing, and after the Court raised with the father the logistics of weekend contact taking place in Sydney, the mother filed a further Amended Response which varied from her Amended Response referred to above.  She no longer seeks an order that the father collect the children from Lismore at the commencement of contact thereby providing the father with the option of having contact, including weekends, in Sydney. Somewhat inconsistently the mother still sought that the father ensure that each of the children be able to attend sporting and social commitments during weekend contact and these presumably would take place in Lismore.  The mother’s latest proposal also provided for her to pay one-half of the total cost of air travel, for adults and children, for the weekend and holiday contact, although it was admitted in her oral evidence that the mother was putting that proposal without having worked out the cost to her.

48.      During her oral evidence, the mother expanded her proposal even further.  She said that not only was she agreeable to the monthly weekend contact taking place in Sydney, but that it could commence on a Friday night by the children flying to Sydney.  The mother said that since that possibility was raised during the husband’s evidence, she has looked at the airline timetables and the children could fly out from either Ballina or Lismore on Friday afternoon without missing any school, although clearly a departure from Lismore would be less rushed.  The mother said that initially she would accompany the children until they got used to the flight.  However, as I understand her evidence, the mother is still seeking the order that monthly weekend contact should accommodate the children’s sporting and social commitments in Lismore."

THE BACKGROUND TO THE PROCEEDINGS

16. The relevant background to proceedings set out by her Honour explains how the issue of relocation emerged between the parties and led to the hearing before Flohm J.

17. In January 1995 the mother informed the father that she considered the marriage to be over and from that time the parties lived separate lives, though they did not physically separate at that time. It is agreed that the mother said she was considering moving to Lismore with the children. In response, the father offered to resign from his job and move to Lismore with them, if that would save the marriage, which offer the mother rejected. The mother says she again mentioned moving to Lismore when the parties separated, which the father denies and there was no further mention of the issue until April 1999. The mother said she put the issue to one side until the children had established a solid relationship with the father.

18. It is agreed that between January 1995 and January 1996, the parties had extensive discussions about what contact would take place after the parties physically separated. The mother said that these discussions resulted in agreement as to the contact the father would have. The father contended that no such agreement was reached, but he would accept whatever the mother "would allow him to have", which was less than the father proposed. Her Honour found that a comparison of their respective proposals, tendered by the father as Exhibit “H4”, supported the father’s contention that the contact he had was in accordance with the mother’s wishes.

19. The parties separated formally on January 1996. The children continued to reside with the mother and have contact with the father pursuant to the mother’s proposal. The parties were divorced in July 1997.

20. From about mid-1996 the parties commenced a more flexible arrangement, whereby the father would draw up a three-month roster which the mother would then alter to suit her plans. The mother also agreed to S, then aged four and a half, staying overnight with the father one Saturday a month, which request the father said he had been making since March 1995, though she would not agree to an increase in frequency of contact or C having any overnight contact.

21. On 12 March 1998 consent orders were made in relation to property settlement and parenting issues, including that the children reside with the mother and have liberal contact with the father. There were also a number of specific issues orders "which clearly envisaged parental consultation on matters relating to the children’s future and significant involvement by the father in all aspects of the children’s life".

22. In May 1998, when S was six and a half and C four and a half, the father requested an increase in S’s overnight contact and that C commence overnight contact. The mother did not agree to either request and said that C cried when it was put to her. The parties agreed to discuss the issue further in June 1998. The father says that between early June and the end of July, the mother continued to oppose any change to the existing arrangement, notwithstanding statements by the father that C had told him “I want to stay but mum says no” and that the irregularity of the hours spent with S caused him to be stressed and anxious.

23. The father forwarded to the mother a roster for the period 25 July to 25 October 1998 to which she made substantial changes, but did agree to C having overnight contact. In cross-examination, the mother conceded that her proposal was “more or less” put into effect.  C’s first overnight stay was described by the father as “a huge success” and by the mother as “satisfactory”; when the father suggested a change to the arrangement, the mother said she wanted C to settle into the current monthly overnight routine before considering an increase for either child.

24. On 3 September 1998, the father forwarded to the mother, through their respective solicitors, a formal proposal for alternate Friday to Sunday weekend contact and some holiday contact. The mother responded that such an arrangement was one to be worked towards, being “a rather drastic and sudden alteration”.

25. The father arranged for confidential counselling on 5 November 1998, at which time agreement was reached but subsequent correspondence indicated that the understanding of that agreement differed, in particular about when, if at all, the weekend contact was to commence on a Friday. The trial Judge accepted that the father continued to request that weekend contact commence on Friday afternoon, which the mother continued to refuse on the grounds that the children were too tired. This was the significant issue between the parties when the father filed an Application for defined contact on 18 March 1999, to which the mother filed a Response on 13 April 1999.

26. On 15 April, the first return date of the father’s Application, the father was advised that the mother intended to move to Lismore with the children at the end of 1999. The trial Judge accepted the father's evidence, denied by the mother, that on that day she said to him, “Well, Friday nights won’t be a problem now, will they?” On 13 May 1999 the mother filed an Amended Response seeking orders for contact consistent with the children living in Lismore from the commencement of the 2000 school term.

27. In early July 1999 the father made an application for a Family Report, which the mother opposed, saying she didn’t want the children to become involved in the Court proceedings.

28. In July the children went to Lismore with the mother for a week. The husband said that during that visit, in a phone conversation with him, S said “Mum wants to come and live here but I told her I did not want to because you would have to fly up in a plane and could only stay an hour”, to which the father replied “Don’t worry, I will be talking to mummy about it.” When the children returned from Lismore, the father said that S appeared to be quite distressed and said he didn’t want to move to Lismore as he wouldn’t get to see the father enough.

THE TRIAL JUDGE'S ANALYSIS OF THE EVIDENCE

1. The Parties' Circumstances

29. After recounting the events leading up to the applications before the Court, her Honour set out the present circumstances of the parties, neither of whom was in a romantic relationship, and that of the children.

a)        The Mother

30. Her Honour said that the accommodation the mother has for herself and her children appeared "perfectly suitable".  Her Honour was satisfied that the mother "devotes a great deal of her time to her children and provides them with excellent day to day care".

31. The mother was due to complete a Bachelor of Arts degree in November 1999 and intended to commence a Graduate Diploma of Education this year in order to become a secondary teacher of social studies.  Her gross income was found to be $36,000 (mainly from child support by the father) with expenses of an equivalent amount.

32. The mother's parents and sister live in Sydney and the children have a good relationship with them.  It was the mother's evidence that she would try to maintain the children's relationships with family in Sydney if she were to move to Lismore.

b)The Father

33. The father lives in a large house in Wentworth and earns "a very good salary'" working in managerial positions and has a company car.   Her Honour accepted the evidence of the father as to his extensive contact with the children, in particular that he is actively involved in their progress at school and attends as many school functions as he can, as well as S’s cricket or soccer game every weekend. The mother agreed that the children gain security from having their father nearby and seeing him regularly and conceded that they would feel a great sense of loss if their father were not there.

34. In respect of the father's family, her Honour was satisfied that the children enjoy the time they regularly spend with their uncle, aunt and two cousins who live in Sydney, and that they benefit from those visits.  The children’s paternal grandmother, SHL, lives at Bowral, and her Honour found that she was a loving grandmother and that the children’s contact with her and their uncle and cousins would be restricted to occasions when the children are in Sydney. Her Honour found that the father and the children “have relied significantly on the emotional support provided by the father’s extended family”.

35. There was an issue at trial as to the father's use of alcohol while on anti-depressant medication and the mother's attitude to overnight contact.  The father had been enjoying overnight contact with the child S since he was four and a half however the mother had purportedly refused to increase such contact or to permit overnight contact with C due to his drinking.  It suffices to say here that her Honour accepted that the father has one or two drinks at night and also accepted expert evidence that such amounts would not combine with his medication so as to impair his care ability.  Her Honour did, however, make orders reflecting the father's offer to not drink while the children are with him on contact.

36. The issue also led the trial Judge to draw certain conclusions about the mother's approach, namely that her concerns about the father’s ability to act responsibly in emergencies were not so great as to explain her reluctance to agree to an increase in overnight contact with S or the introduction of such contact with C.

c)        The Children's Circumstances

37. Her Honour then set out her evidence and findings concerning the educational and health circumstances of the children.  These were unchallenged before us and may be summarised as follows:

38. Both children enjoy their current school life at B Primary School, they both have friends at their current school and are likely to miss these positive aspects of their life in Sydney if there is a move to Lismore.  There was no evidence before her Honour that either child has difficulty making new friends.  The child S has been identified as having learning difficulties with his reading and writing and the school is providing a remedial teacher on a more frequent that usual basis because the service is subsidised by the school's Parents and Citizens Association.

39. No health matters were mentioned by her Honour in respect of C, however, she recorded that it was undisputed that S has suffered all his life from chronic respiratory infections, which have regularly required medication.  He also suffers from eczema, bronchitis, and allergies to certain foods. He was hospitalised twice in 1999, and prior to that had been hospitalised to have grommets placed in his ears and to remove a stone from his ear.  He was absent from school due to illness for between 20 and 30 days in 1997, for 26 days in 1998 and for 15 days to July 1999.  Her Honour accepted the mother's evidence that when S is in Lismore on holidays he does not suffer from bronchitis or respiratory infections.

1. The Parties' Proposals

40. The trial Judge then identified and discussed the competing proposals of the parties in the proceedings before her.  We have set these out previously. 

41. The father's position remained as contained in his original application save that he turned his mind to what orders he would seek if the children were to relocate to Lismore.  In contrast, the mother's proposals altered during the lead up to the hearing and the course of the hearing itself.  The nature of the changes made by the mother to her proposals was the subject of significant findings by her Honour, who was satisfied that the mother’s original proposal represented a substantial change for the children, not “just in terms of seeing their father once a month, but in terms of depriving them of many benefits which flow from their current contact with their father".

42. During the course of the hearing, and after the Court raised with the father the logistics of weekend contact taking place in Sydney, the mother filed a further Amended Response, wherein she no longer sought an order that the father collect the children from Lismore at the commencement of contact, thereby providing the father with the option of having contact with the children in Sydney, although she continued to seek that the father ensure that each of the children be able to attend sporting and social commitments on the weekend, presumably in Lismore. During her oral evidence, the mother expanded her proposal further still, whereby she was agreeable to monthly contact in Sydney, which would commence with the children flying to Sydney on Friday night. At paragraph 49, her Honour stated:

“However, even the mother’s latest proposal is that until she goes to Lismore, contact should remain at one night a fortnight, ie, that fortnightly weekend contact should commence on Saturday morning and conclude on Sunday afternoon.  The mother will not agree with the weekend contact commencing on a Friday afternoon.  She persists with the contention that the children are tired at the end of the week and could not cope with it each fortnight.  The mother says that she is concerned about overloading the children, particularly S who gets ill and misses school.  However, if she goes to Lismore, the mother is now agreeable to a Friday routine which may or may not involve an hour’s trip from Lismore to the airport at Ballina, but which will involve a flight to Sydney which may involve delays etc. and the long car journey from Sydney airport to the father’s home at Wentworthville.   This will be repeated, in reverse, two days later.  There is no explanation offered by the mother for this lack of consistency on the Friday overnight issue.  I am aware that Friday night overnight would be monthly if the children are in Lismore, and fortnightly if the children are in Sydney, but consistency on the mother’s part would require that she propose overnight Friday contact at least once a month if the children are in Sydney.  The Court is led to the conclusion that the mother is seeking to make her Lismore contact proposal as attractive as possible in order to obtain the orders she is seeking and in so doing she is prepared to overlook “overloading the children”.  Alternatively, the conclusion to be reached is that the mother does not think that her Lismore proposal will overload the children, in which case her opposition to overnight contact on Friday night for the last at least 14 months and continuing must be attributable to something other than the interests of the children.  I am satisfied that either conclusion reflects poorly on the mother’s ability to place the children’s needs ahead of her own needs.”

43. Her Honour also did not accept the mother’s contention that the regular telephone contact between Lismore and Sydney would overcome “the loss of security the children currently feel because their father is nearby”.

1. The Mother's Reasons for The Relocation

44. Her Honour discussed at length (paragraphs 55 to 61) the mother’s  reasons for wishing to relocate to Lismore. The mother’s evidence was that it had long been her desire to live in Lismore, where she had spent the last two years of her secondary school education some 20 years ago. The mother said that she had expressed this desire from time to time during the marriage but the father’s work and both parties’ academic ambitions were obstacles. The father disputed that it was raised regularly as a serious option, other than in January 1995, and contended that it was not raised again until the mother announced her intention to relocate there with the children on 15 April 1999, which evidence the trial Judge accepted. Her Honour also held the planned relocation to be inconsistent with the agreement reached by the parties on 5 November 1998 and the with the mother’s Response filed 13 April 1999. At paragraph 57, the trial Judge observed:

“The mother says that as she approached the conclusion of her degree she again considered a relocation to Lismore.  If that is the case, then she did nothing to demonstrate that it was a serious consideration until the father commenced these proceedings.  It seems that the father’s decision to force the issue of a Friday evening commencement of contact in Sydney, with which the mother would not agree on the basis that the children are too tired at the conclusion of their school week, has now developed into a situation where the mother is saying that if she is permitted to relocate to Lismore, she would be agreeable to weekend contact in Sydney commencing on Friday after school.  Accordingly, I must draw the conclusion that it was not the Friday evening per se that the mother objected to in the orders sought by the father, but the fact that the father had approached the Court to seek orders at all rather than continue with a process which the mother saw as reaching agreement by negotiation but which the father saw as him having to accept what she offered…I am also satisfied that the decision to relocate has been brought about by her unwillingness to face the prospect of losing the final say in matters relating to the children’s contact with the father.”

45. The trial Judge turned to the Counsellor’s Report, which concluded:

"Ms. H has a strong desire to move to Lismore, mostly because it is one area where she has friends that she values from her teenage years.  She has many other very practical, good reasons for wanting to move and she admitted that many of these reasons, such as cheaper housing, could be satisfied if she moved to an area much closer to Sydney.   But, as she pointed out, she does not have friends in those areas.  Ms H also agreed that while she could pursue her chose career in Lismore (teaching training and then school teaching) she could live “almost anywhere” in New South Wales and make progress with her career.  Thus it seemed that a move to Lismore may be of great benefit to Ms. H but it is questionable that it would be as beneficial to the children or assist them to fulfil their emotional needs.”

46. Although counsel for the mother criticised the conclusion drawn about the mother in her Report, the trial Judge accepted the Counsellor’s evidence.

47. Her Honour then discussed and accepted the mother’s evidence about schools and sporting clubs in the Lismore area and that the mother would be able to obtain a Graduate Diploma of Education at the Lismore campus of Southern Cross University.

48. Her Honour then discussed the mother’s evidence as to housing prices and her expected living expenses in Lismore and  was satisfied that the mother was likely to be able to purchase a home there, which she would not be able to do in Sydney, and that this would provide the children with security of accommodation and the opportunity to have a pet.

1. The Distance and Costs Associated with the Relocation Proposal

49. The grounds of appeal raise no challenge associated with these matters which may therefore be briefly stated. 

50. Her Honour considered that the 800 kilometre distance between Lismore and Sydney was too far to travel by car or train for weekend contact and accepted that due to the plane timetables, the father would incur the cost of two nights accommodation, and car hire, as well as the plane fare to take contact in Lismore.  She was satisfied that each weekend in Lismore, excluding airfares, would cost the husband approximately $722.

51. She noted that the mother’s latest proposal did not preclude weekend contact in Sydney but that she continued to seek orders that the father ensure that the children’s weekend social and sporting arrangements in Lismore are not interfered with.   She was satisfied that the father would not be able to afford to travel too often to Lismore but that the costs involved with the trip are likely to reduce his child support assessment correspondingly. Her discussion of these matters concluded the total cost of airfares to be a minimum of $3472 per parent per year, though the mother may have underestimated the cost of air fares by almost $1500. Her Honour was satisfied the father would be able to afford the cost, but that it would “place some financial pressures on the mother until she completes her studies”.

1. The Children's Wishes

52. The next matter considered in her Honour's reasons was the children's wishes.  She accepted that S had expressed distress and concern to the father a number of times about seeing him less if the children went to live in Lismore. One particular incident assumed importance for the trial Judge:

"72.     There is evidence in relation to the children’s wishes in the father’s affidavit.  He says that on 15 July 1999, during the course of a telephone conversation with the children S said to him: “Mum wants to come and live here, but I told her I do not want to because you would have to fly up in a plane and could only stay for an hour.”  The father replied, “Don’t worry, I will be talking to Mummy about it”.

73.      The father says that on 18 July 1999, during a contact visit, S approached him and sat on his lap.  The father said S appeared distressed and said, “I don’t want to move to Lismore because it is too far away and I won’t get to see you enough!”  The father said he tried to console S by telling him that what he (S) wanted did matter, and that he wanted him to stop worrying about it.

53. The trial Judge accepted the father’s evidence that S's behaviour has changed since he became aware of “the Lismore issue”, that he has become clingy and wants to be around him, the father.

54. The trial Judge concluded both from the Counsellor’s Report and the mother’s manner in answering questions that she did not place any great importance on the wishes of S and C in relation to her relocation to Lismore. Her Honour accepted the Counsellor’s description of the mother as “somewhat dismissive” of S’s reluctance to move.

55. There was discussion of the father’s statement to S, “Don’t worry, I will be talking to Mummy about it” and that by so saying, he left S with the impression that living in Lismore meant that he would fly up only for an hour’s visit. The trial Judge found that this approach was “thoughtless” but “was not said out of lack of concern for the child’s feelings”. Her Honour found that:

“80.     The significant matter for analysis is not whether the remark was inappropriate, but whether S continued to hold the belief that living in Lismore meant seeing his father for an hour, and specifically whether he held that belief at the time he expressed to the Counsellor his opposition to living in Lismore.  Although the Court Counsellor, unaware of the conversation, did not specifically raise it with S, in my view there is substantial evidence that it is likely that at the time S expressed his wishes to the Counsellor, he was well aware of what living in Lismore meant in terms of contact with his father.”

56. Her Honour considered the oral evidence of the Counsellor and observed that

“…she had no doubt that S had a good awareness of what was being proposed, that he knew about the move and frequency of contact being proposed.  He told the Counsellor that he would see his father once every fourth weekend and for half the school holidays.  The Counsellor said that she did not believe that S was under any misapprehension as to what a weekend was.  I accept the Counsellor’s evidence….

85.      I am satisfied that at the time of the interview with the Counsellor, S did not think that a move to Lismore meant that his father would fly up for only an hour to visit him, and in my view the weight I attribute to S’s wishes should not be lessened by that possibility."

57. Having dealt with this matter, her Honour then incorporated extracts from the Court Counsellor's report and drew the following conclusions:

"89.     The Counsellor’s evidence as to the wishes of each of the children was not challenged other than as set out in para. 78 above.  I accept her evidence, both as to S and C’s wishes, and to their respective understanding of the issues.  I am satisfied that S fully understands how a move to Lismore will change his life, and in particular the amount of time he can spend with his father.  I am satisfied that S’s wish, consistently held and strongly expressed, is that he wants to remain in Sydney and that there be no reduction in the frequency or duration of the time he spends with his father on contact.  I am satisfied that C, whilst it appears that she is caught up in her mother’s enthusiasm for a move to Lismore, may not fully understand the significance of such a move and how different her life will be in terms of school, friends and contact with family members, particularly her father.  The Counsellor’s evidence is that C will be happy to go to Lismore but quite content to stay in Sydney.  I accept that evidence."

1. The Effect On The Children Of A Change In Their Current Circumstances

58. At paragraphs 91 to 99, her Honour made detailed findings as to how the children would not benefit from the relocation of their residence to Lismore and the concomitant change in their contact with the father.  At paragraphs 100 to 103, her Honour also set out matters associated with relocation that would benefit the children.  As these findings per se are unchallenged it is unnecessary to do more than quote her Honour's conclusion at paragraph 104 that "the detriment to the children’s welfare outweighs, both qualitatively and quantitatively, the benefit to their welfare by a change in their current circumstances".

59. In reaching this conclusion, her Honour relied upon the evidence of the Counsellor, including her finding that notwithstanding the current closeness between S and his father, the relationship and S in particular would be affected if this were reduced to contact only one weekend in four, by telephone and half school holidays. The Counsellor commented that the main disadvantage of the mother not relocating was that she could become angry and resentful at the children and/or their father at being denied the opportunity to test the option.

1. The Quality Of The Children's Relationship With Each Of The Parents

60. The trial Judge, based in part on the Counsellor’s findings, was satisfied that the children’s relationship with both the father and mother was a very important relationship to both children from which they derive love and security. Her Honour was also “satisfied that it is in both children’s interest that the relationship [with the father] is maintained”.

1. The Parties' Capacity To Meet The Children's Needs And Their Attitude To The Children And The Responsibilities of Parenthood

61. Her Honour was satisfied that both parents have the capacity to meet the children’s physical and intellectual needs, and that both had “many excellent parenting skills, including a commitment to their children’s education and to their development generally”. Her Honour found in the mother’s favour that she encouraged regular and frequent contact with the father and as such was not “a parent who has an agenda to marginalise the contact parent in the lives of the children”.  She acknowledged however that the mother had at times made it difficult for the father to have contact with the children and that she “does have a controlling aspect to her personality and at times is dismissive of other points of view…and other’s (sic) feelings”. Her Honour was also satisfied that the mother had “little empathy with what S in particular is feeling as he faces the prospect of a move that will separate him from his father” and that she “does not have the insight to meet the children’s emotional needs or offer them the emotional support required from the residence parent to cope with such a loss”.

62. In relation to the mother’s challenge of the Counsellor, her Honour rejected these complaints and was satisfied that the conclusions she made were available to her, and further, that:

“I do not accept that because Court Counsellor, whose task it is to provide material to assist the Court to determine what is in a child’s best interests, has been critical of a party’s approach to the responsibilities of parenthood, that the Counsellor’s evidence should be treated as other than objective…”

THE TRIAL JUDGE'S APPROACH IN LAW

63. Having made the detailed findings that she did, her Honour then turned to the applicable law saying:

"122. In cases in which parenting orders are sought, I must regard the best interests of the child as the paramount consideration. In determining what is the child’s best interests I must consider the matters set out in s 68F(2) of the Family Law Act. I must also have regard to the object of Part VII of the Family Law Act, which is to ensure that children receive adequate and proper parenting to help them achieve their full potential and to ensure the parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.

123.    I am also required to have regard to the four principles underlying the objects of Part VII. … ."

64. Her Honour then cited paragraphs 9.51 to 9.55 of B and B, Family Law Reform Act 1995 (1997) 21 Fam LR 676; (1997) FLC ¶92-755 and concluded:

"124.   Turning now to the matters set out in s 68F(2) to which I must have regard and which are relevant to these proceedings, I have already dealt with the evidence and made findings in relation to S and C’s wishes in relation to a relocation to Lismore, their relationship with each of their parents and other family members and the likely effect on S and C of any change to their current circumstances, including the effect on them of a separation from their father and other family members.  I have also dealt with the evidence and made findings in relation to the practical difficulty and expense of contact between Sydney and Lismore, and in relation to the parents’ capacity to meet the children’s needs and the parents’ attitude to the children and to the responsibilities of parenthood.  I am satisfied that the order I make is least likely to lead to further proceedings.  In considering any other relevant fact or circumstance, I have taken into account not only the reasons for the mother’s wish to relocate to Lismore but also that a Court should not ignore the legitimate interests and desires of parents.  I am satisfied that the mother’s interests and desires are legitimate.  However, in circumstances where those interests conflict with the best interests of children, priority must be accorded to the children’s interests.  Taking into account all the evidence, and in particular those matters to which I must have regard pursuant to s 68(F)(2) which are relevant to these proceedings, I am satisfied that S and C’s interests are best served by them living in an area where both parents can continue to be involved in their lives with the frequency with which the children are accustomed and from which they both derive significant benefit."

THE GROUNDS OF APPEAL AND ORDERS SOUGHT

65. The original Notice of Appeal filed on 23 December 1999 set out the following grounds of appeal.

1.That the evidence before the Court did not entitle the learned Trial Judge to objectively come to the view that the Wife’s decision to relocate was brought about by her unwillingness to face the prospect of loosing (sic) the final say in matters relating to the childrens’ (sic) contact with the Father.

.

2.That the learned Trial Judge failed to consider the legitimate interests and desires of the Mother in wishing to relocate within the State of New South Wales in circumstances where there was no contest in relation to the issue of residence.

3.That the acceptance of the learned Trial Judge of the evidence of the Court Counsellor was against the nature of weight of the evidence together with the apparent prejudice the Counsellor held towards the Wiife (sic).

4.That the Appellant shall seek to amend this Notice of Appeal upon the transcript being made available.”

66. We granted leave to amend the fourth ground to read as it does in the written submission for the appellant:

“4.The trial Judge erred in the application of the relevant principles of law.”

67. The mother sought the following orders if the appeal were successful:

1.    That as and from the commencement of the school year 2000 the father have contact with the children S born 1991 and C born 1993 as follows:-

(a)for one weekend in every four week period during school terms such weekend to be nominated by the father not less than two weeks in advance;

(b)for the first half of each of the short school holidays in the Year 2001 and every alternate year thereafter;

(c)for the second half of each of the short school holidays in the Year 2001 and every alternate year thereafter;

(d)for three weeks in each Christmas holiday vacation alternating between the first three weeks and the last three weeks with the husband to have the last three weeks in the Christmas vacation 2000/2001;

(e)should Easter not be part of the school holidays then on each alternate Easter vacation;

(f)by telephone contact with the children on each Tuesday and Thursday between 4.00 pm and 6.00 pm with the father to telephone the children at the mother’s residence.

2.    That for the purposes of contact pursuant to Order 1 herein the Father shall collect the children from the Mother’s residence at the commencement of contact and return the children to the Mother’s residence at the conclusion of contact.

3.    That for the purposes of Order 1 herein the mother shall pay one half of the air fares for the children and/or the father to travel to/from Lismore and Sydney and return should the father elect for the children or him to travel by plane.

4.    That for the purposes of such travel the mother shall deliver the children to the Ballina or Lismore airport at the commencement of contact and the father shall collect the children from Sydney airport at the commencement of contract and the father shall return the children to Sydney airport at the conclusion of contact to be returned to the mother at Ballina or Lismore airport.

5.    That the father shall cooperate with the mother to ensure that each child is able to attend such sporting and social commitments as they may have during each period of weekend contact.

6.    That the father shall not consume any alcohol for a period of not less than 6 hours prior to the commencement of any period of contact and shall not consume any alcohol during any period of contact.

APPELLATE PRINCIPLES

68. The leading authorities as to appeals against a discretionary judgment and orders, such as the present case, are well known and we think it unnecessary to do more than make reference to them: see House v The King (1936) 55 C.L.R. 499, Australian Coal and Shale Employees Federation and Another and the Commonwealth and Others (1956) 94 C.L.R. 621 per Kitto J at 627 and Gronow v Gronow (1979) 144 C.L.R. 513.

ANALYSIS OF APPEAL ARGUMENTS

69. It is convenient to first consider Ground 4, which contends that her Honour erred in the application of the relevant principles of law. If this ground is made out, the other grounds which go to specific features of her Honour’s reasoning may not require consideration by this Court.

70. In this regard we would record that on 4 May 2000, following the date by which written arguments by the parties were due to be filed and served, we caused a request to be issued to the parties’ solicitors in the following terms:

"The Full Court requests that at the hearing of the appeal, counsel present argument as to the correct legal approach to be applied in the determination of relocation applications having regard to the following authorities:

AMS v AIF; AIF v AMS (1999) FLC ¶92-852
Paskandy v Paskandy (1999) FLC ¶92-878
Martin v Matruglio (1999) FLC ¶92-876."

71. A similar request was issued in respect of another appeal heard during the same sittings: A v A: Relocation Approach [2000] FamCA 751.

Ground 4

a)        Arguments

72. The written submissions filed on behalf of the mother referred to the cases cited above in paragraph 70 and also to B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 as having dealt with and examined the principles for parenting cases where the proposal of one of the parties involves relocation of the residence of a child. The submission then stated:

“An Applicant need not show a compelling reason for a move.

The mother had significant contact with the Lismore area and there were reasonable reasons for her move including the advancement of her education, cost of housing, health of the child S.

The advancement of a career and of economic advantage has been recognised as sound reasons for relocation (Holmes v Holmes (1988) FLC 91-918).

It is submitted that the learned Trial Judge dealt with the question of relocation as a discrete issue and considered the paramount consideration of the childrens’ (sic) welfare as being practically the sole test.

The inhibition placed upon the wife in relation to her freedom of movement will have considerable impact upon her in terms of economic advantage including the acquisition of property in which to live with the children.

The mother’s proposal for a continuation of contact was feasible and offered to the father significant periods of time.

The paramount importance of the welfare of the children does not exclude consideration of legitimate interests and desires of the parties, and it is submitted that her Honour did not take into account in a proper way the legitimate interests of the mother.”

73. Elaborating these arguments before us, counsel for the mother contended that Flohm J’s consideration of the child’s best interests in effect placed an onus on the mother to demonstrate that the move would benefit the child and that she failed to take account of the nine principles advanced by Kirby J in AMS v AIF; AIF v AMS (supra) at paragraphs 141 to 150 of his Honour’s judgment. He also submitted that her Honour’s findings as to the mother’s unwillingness to lose control over the children’s contact with the father was the foundation of her decision not to permit the relocation and was thus wrong as a matter of law, quite apart from the separate contention advanced in the appeal that such a finding was not open to the trial Judge and thus contaminated her weighing of the evidence.

74. Mr Lloyd, counsel for the mother, further submitted that Flohm J had not undertaken a comparison of the proposals that arose in the present case in the manner required by AMS v AIF; AIF v AMS (supra) and Paskandy v Paskandy (supra), those proposals involving the children’s continued residence with the mother, the only matter in question being whether such residence should continue in the present location or whether the mother and the children relocate to Lismore. He said that the trial Judge should have analysed the proposals in successive steps and that by forming the view that the mother had ulterior motives in seeking the relocation and seeking to be satisfied that the relocation would enhance the children’s circumstances, her Honour had had not dealt with the evaluation of the proposals in the correct manner.

75. Mr Batey, counsel for the father, while not conceding that her Honour’s approach was erroneous submitted that the proper approach of examining the relevant s68F(2) factors as required by AMS v AIF; AIF v AMS (supra) and Paskandy v Paskandy (supra) need not be wholly undertaken in circumstances where, as in the present case, the reasons for relocation were found to be tainted by an ulterior motive such as the frustration of contact. 

76. He said that in any event, the trial Judge had worked through the evidence as it related to the relevant s68F(2) factors and in her concluding paragraph picked up on any other relevant fact or circumstance in explaining her decision.

b)       Conclusions

77. With the benefit of counsels’ arguments in both this matter and A v A: Relocation Approach (supra) which we heard the same day and reserved judgment, we determined that the following guidelines apply to the determination of a parenting case that involves a proposal to relocate the residence of a child.  As summarised in paragraph 108 of A v A: Relocation Approach (supra):

“In determining a parenting case that involves a proposal to relocate the residence of a child either within Australia or overseas:

·     The welfare or best interests of the child, as the case may be under the relevant legislation remains the paramount consideration but it is not the sole consideration.

·     A court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence contrary to the proposition that the welfare of the child would be better promoted by maintenance of the existing circumstances:

·     It is necessary for a court to evaluate each of the proposals advanced by the parties.

·     A court cannot proceed to determine the issues in a way which separates the issue of relocation from that of residence and the best interests of the child. There can be no dissection of the case into discrete issues, namely a primary issue as to who should have residence and a further or separate issue as to whether the relocation should be 'permitted'.

·     The evaluation of the competing proposals (properly identified) must weigh the evidence and submissions as to how each proposal would hold advantages and disadvantages for the child's best interests.

·     It is necessary to follow the legislative directions espoused in s.60B and s.68F of the Family Law Act (Cth) 1975. The wording of s.68F(2) makes clear that the Court must consider the various matters set out in (a) – (l) of that subsection.

·     The object and principles of s60B provide guidance to a court's obligation to consider the matters in s68F(2) that arise in the context of the particular case.

·     It is to be expected that reasons for decision will display three stages of analysis and:

1.A court will identify the relevant competing proposals;

2.For each relevant s68F(2) factor, a court will set out the relevant evidence and the submissions with particular attention to how each proposal is said to have advantages and/or disadvantages for that factor and make findings on each factor as the Court thinks fit having regard to s60B;

·     As one, but only one, of the matters considered under s68F(2), the reasons for the proposed relocation as they bear upon the child's best interests will be weighed with the other matters that are raised in the case, rather than treated as a separate issue. Paragraph 9.63 of B and B: Family Law Reform Act 1995 is no longer an accurate statement of the law.

·     The ultimate issue is the best interests of the children and to the extent that the freedom of a parent to move impinges upon those interests then it must give way.

·     Even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent.

3.On the basis of the prior steps of analysis, a court will determine and explain why one of the proposals is to be preferred, having regard to the principle that the child’s best interests are the paramount but not sole consideration.

·     The process of evaluating the proposals must have regard to the following issues:

a)None of the parties bears an onus:

·     In determining a parenting case that involves a proposal to relocate the residence of a child, neither the applicant nor the respondent bear the onus to establish that a proposed change to an existing situation or continuation of an existing situation will best promote the best interests of the child.  That decision must be made having regard to the whole of the evidence relevant to the best interests of the child.

b)The importance of a party’s right to freedom of movement.

·     In determining a parenting case that involves a proposal to relocate the residence of a child, care must be taken by a court to ensure that where applicable, it frames orders which in both form and substance are congruent with a party's rights under s92 of the Constitution, where applicable.

·     In determining a parenting case that involves a proposal to relocate the residence of a child and in deciding what is in the best interests of the child, the court must consider the arrangements that each parent proposes for the child to maintain contact with the other and, if necessary, devise a regime which would adequately fulfil the child’s rights to regular contact with a parent no longer living permanently in close physical proximity.  If the Court is not satisfied that suitable arrangements have been made for the child to have contact with the other parent, it may be necessary for the Court to order a regime which would best meet the right of the child to know and have physical contact with both its parents.

c)Matters of weight should be explained:

·     In determining a parenting case that involves a proposal to relocate the residence of a child, a court must consider all the relevant matters referred to in ss60B and 68F(2) and then indicate to which of those matters it has attached greater significance and how those relevant matters balance out.

·     In a parenting case that involves a proposal to relocate the residence of a child, no single factor should determine the issue of which proposal is preferred by a court.”

78. Applying this framework to the present decision under appeal, we are not persuaded that her Honour erred in applying the relevant principles of law to the parties’ competing proposals. The extent of her Honour’s error may when measured against A v A:Relocation Approach (supra) be described as one of form and style in that she did not first identify the approach which she was required to apply following AMS v AIF; AIF v AMS (supra) and Paskandy v Paskandy (supra) and then evaluate and make findings on the evidence using the object and principles of s60B to consider the relevant factors of s68F(2) factors.

79. The structure of her Honour’s judgment shows that she worked through the evidence and arguments in dispute and made findings on those matters in a very detailed fashion and then finally reminded herself of the legal obligation to determine the case on the basis that the best interests of the children are the paramount consideration having regard to s68F(2) factors and the object and principles of s60B.

80. When one looks at how her Honour organised the evidence and arguments and her findings, it is abundantly clear to us that she was using all of the relevant s68F(2) factors to structure that process without expressly saying so. When one examines the headings which she used, they so obviously reflect the matters to which 68F(2) requires regard that we think it cannot be said that the judgment should be impeached for the failure to explain in advance the framework she would apply, especially considering that this Court’s guidance in Paskandy v Paskandy (supra) and A v A: Relocation Approach (supra) as to how such a judgment should be set out was not available to her Honour at the time of her judgment.  When one considers the manner in which her Honour synthesised her findings and conducted her evaluation of the proposals against the dicta in A v A: Relocation Approach (supra) we do not see that she contravened any of the guidance therein in any substantive way. 

81. It remains however to deal with the other specific complaints raised under this ground.

82. We do not accept the contention that her Honour dealt with the question of relocation as a discrete issue or treated the children’s best interests otherwise than in a correct manner.  The trial Judge was, in our view, meticulous in her attention to the arguments advanced by the mother as to how the relocation would benefit her and through benefiting her, the children.  This dual focus was proper as was her Honour's consideration of what were said to be the disadvantages to the children if they relocated to Lismore.  Similarly, her Honour directed her attention to the positive and negative consequences for the children if they were to remain in Sydney. 

83. Her Honour acknowledged that the proposed relocation would have advantages, including economic advantages, but she was also clearly concerned with the disadvantages that would follow, including, but not limited to, the impact of relocation on the children’s contact with the father. 

84. In respect of this latter consequence, we would observe that the written submissions on behalf of the mother are not to the point in highlighting that significant periods of contact were offered to the father.  This manner of looking at the issue does not focus on the impact upon the children and their right to contact unless such contact would not be in their best interests.  Couching the issue in terms of the father also deflects attention from the other family relationships which her Honour found were of benefit to the children and which would be compromised if relocation were to take place.

85. In her Honour’s final analysis, she came to the view that a comparison of the advantages and disadvantages of the proposals for the children should lead to rejection of the relocation proposal.  That conclusion was not reached without regard to the mother’s stated reasons for seeking to relocate with the children; it was a conclusion which, in our view, correctly applied the principle that a party’s legitimate interests and desires in relocating had to give way to the best interests of the children.  Providing that the findings made by her Honour are not vitiated by the remaining grounds of appeal, we see no basis for setting aside her judgment on the basis of the manner in which she undertook the evaluation of the competing proposals before her. 

86. We turn now to the other three grounds.

Ground 1

87. This ground challenges the trial Judge’s finding that the mother’s relocation was motivated by her unwillingness to lose the final say in matters concerning the children’s contact with the father and that the impugned finding is therefore unsustainable.  Our extracts from Flohm J’s judgment show the careful manner in which her Honour examined the relevant sequence of events and it is important, we think to recall here the conclusion which her Honour came to in paragraph 57 of her reasons, namely

“Whilst I am satisfied that the mother would genuinely like to live in Lismore, satisfied that she has given it some thought and the move is likely to be a pemanent [sic] move, and satisfied that she has reached a suitable stage in her career path to make that move, I am also satisfied that the decision to relocate has been brought about by her unwillingness to face the prospect of losing the final say in matters relating to the children’s contact with the father.” (emphasis added).

88. Having regard to the reasoning displayed by her Honour, and the advantage which she had, as the trial Judge, of hearing the evidence in the case, we are unpersuaded that it was not open to her to make the adverse finding that she did.  We are also satisfied that her Honour's attention to the mother's reasons for wishing to relocate to Lismore were examined from the correct perspective, namely for their impact upon the children's best interests, and not as a separate or threshold issue. 

89. More importantly though, the above extract makes it clear that the finding was additional to other findings which express satisfaction with the genuine nature of the mother’s wishes.  While we accept that the finding complained of was a component within her Honour’s overall evaluation of the proposals, it was one of many which she made in the case and we do not consider that the judgment shows it was a finding which dominated her exercise of discretion.  In our view, this ground must fail.

Ground 2

90. This ground complains again about the lack of regard paid to the mother’s legitimate interests in a manner which would seem to contend that such interests should assume greater weight in circumstances where there was no contest in relation to the issue of residence. 

91. We have referred above to the fact that her Honour did not ignore the legitimate interests of the mother and indeed, so much is acknowledged in the written submissions in support of this ground. We have also referred previously to the principle that a party’s legitimate interests and desires in relocating must give way to the best interests of the children.  That principle remains applicable where the proposals before a court involve no challenge to the children continuing to reside with the same party.   It cannot be said that Flohm J was not conscious that the mother would continue to have the children living with her because at paragraph 103 of her reasons, she expressed satisfaction that the children were likely to benefit if the mother was able to live where she chose. Her Honour was also alert to the risk contained in the Counsellor’s report that the mother might become resentful if the relocation proposal was denied. 

92. These matters had to be balanced, however, against the other findings her Honour made and it was a matter for her  discretion as to how much weight she placed on them.  It is not the law that a legal presumption in favour of relocation is enjoyed by the parent with unchallenged residence of the children. In each case the focus of the evidence and submissions must remain, upon how the proposals are said to impact on the children.

93. For these reasons this ground of appeal fails.

Ground 3

94. This ground of appeal seeks to vitiate the judgment on the basis that the trial Judge should not have accepted the evidence of the Court Counsellor because that evidence was inconsistent with other evidence and the Counsellor was said to have held a prejudiced view of the mother.

95. We do not accept this submission.  First, we think it clear from her Honour’s judgment that she paid regard to the Counsellor’s evidence but was in no way solely reliant upon it.  So far as the mother’s motives for relocation were the subject of comment by the Counsellor, our extracts from the judgment show that the trial Judge drew her own conclusions from the pattern of evidence as to the history of contact in coming to the views that she did.  In fact, as paragraph 59 of the reasons makes clear (although the paragraph reference is erroneous and we think should read 54), the trial Judge in accepting the conclusions of the Counsellor, qualified that acceptance with reference to having the  benefit of receiving evidence that was not available to the Counsellor.

96. The second contention raised within this ground is that the Court Counsellor held a prejudiced view of the mother.  As pointed out by counsel for the father, this matter was ventilated during the trial and was directly considered by Flohm J at paragraph 121 of her reasons.  We see no basis for interfering with her Honour’s rejection of the mother’s complaint about the Counsellor.

97. Counsel for the mother submitted that if we rejected his submission on the question of the Counsellor’s attitude towards the mother then we should look to gaps in the Counsellor’s assessment of the relationship between the mother and the children and the Counsellor’s exploration of the children’s wishes.  In circumstances where the alleged shortcomings of the Counsellor’s report would be immaterial, we think it unnecessary to canvass such matters.

98. We find that ground 3 of the appeal is not made out.

99. Accordingly, as all grounds of appeal have failed, we would order that the appeal should be dismissed.

COSTS

1. In the circumstances of the case, we would further order that the appellant pay the respondent's costs of and incidental to the appeal, such costs to be as agreed or failing agreement as taxed.

ORDERS

1. The Orders of the Court are:

1.That the appeal against the orders of the Honourable Justice Flohm is hereby dismissed.

2.That the appellant pay the respondent's costs of and incidental to the appeal,  such costs to be as agreed or failing agreement as taxed.

I certify that the preceding 101 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.