Hendy & Penningh

[2018] FamCAFC 257

Family Court of Australia

Hendy & PENNINGH [2018] FamCAFC 257

FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the mother sought to relocate with the children to a capital city – Where the mother’s employment was due to end – Where the family initially moved to a regional location for the father’s employment – Where there was no intention to settle permanently – Where father moved away – Whether the primary judge failed to balance the advantages and disadvantages of relocation – Where the mother was not required to establish compelling reasons to justify relocation – Mistakes of fact as to consequences of relocation on time the children spend with the father – Appeal allowed. 

FAMILY LAW – APPEAL – PARENTING – FAMILY VIOLENCE – Findings of fact not open and based on erroneous assessment of the evidence – Erroneous finding materially affected conclusion that the father did not pose not an unacceptable risk of harm to the children – Where the primary judge wrongly found that the mother stepped back from and abandoned allegations of family violence – Mother subjected to misleading and confusing questions – Improper questions – Misuse of documents in cross-examination to establish inconsistency in the mother’s evidence – Where questions should have been disallowed – Section 41 of the Evidence Act 1995 (Cth) discussed – Approach to evaluation of evidence of family violence discussed – Appeal allowed.

FAMILY LAW – APPEAL – PARENTING – PARENTAL RESPONSIBILITY – Where the presumption of equal shared parental responsibility does not apply – Where evidence of family violence wrongly isolated to application of the presumption – Where family violence relevant to the allocation of parental responsibility when that issue at large – Appeal allowed.

FAMILY LAW – APPEAL – PARENTING – Where evidence of single expert that graduated arrangement accepted – Where orders for children to spend time with the father inconsistent with that evidence – Where inconsistency not explained – Appeal allowed. 

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where error established – No utility in further evidence – Application dismissed.

FAMILY LAW – APPEAL – COSTS – Costs certificates issued for appeal and re-hearing.

Evidence Act 1995 (Cth) s 41
Family Law Act 1975 (Cth) ss 61DA, 65DAC, 93A(2)

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Collu & Rinaldo [2010] FamCAFC 53
Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Malcolm and Munro (2011) FLC 93-460; [2011] FamCAFC 16
U v U (2002) 211 CLR 238; [2002] HCA 36

Appellant: Ms Hendy

Respondent: Mr Penningh

File Number: SYC 7438 of 2016

Appeal Number: EA 92 of 2018

DATE DELIVERED: 20 December 2018

Place Delivered: Sydney

Place Heard: Sydney

Judgment of: Ainslie-Wallace, Ryan & Austin JJ

Hearing date: 29 October 2018

Lower court jurisdiction: Federal Circuit Court of Australia

lower court judgment date: 14 June 2018

LOWER COURT MNC: [2018] FCCA 1559

REPRESENTATION

COUNSEL FOR THE Appellant: Mr Dura

SOLICITOR FOR THE Appellant: Walter & Elliot Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Guterres

SOLICITOR FOR THE RESPONDENT: Shipton & Associates

Orders

1. The application to adduce further evidence in the appeal (EA 92 of 2018) filed on 12 October 2018 be dismissed.

2. The appeal (EA 92 of 2018) be allowed.

3. Orders 1, 3 –10 (inclusive), 13, 14, 18 and 20 dated 14 June 2018 be set aside.

4. The proceedings be remitted for rehearing to the Federal Circuit Court of Australia by a judge other than the primary judge.

5. There be no order as to costs.

6. The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

7. The Court grants the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the first respondent in respect of the costs incurred by the first respondent in relation to the appeal.

8. The Court grants both the appellant and the respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under this Act to the appellant and the first respondent in respect of the costs incurred by the appellant and the first respondent in relation to the new trial.

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

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

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

THE FULL COURT OF THE Family Court of Australia at SYDNEY

Appeal Number: EA 92 of 2018
File Number: SYC 7438 of 2016

Ms Hendy

Appellant

And

Mr Penningh

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Notice of Appeal filed on 9 July 2018, Ms Hendy (“the mother”) appeals against final parenting orders made on 14 June 2018 in proceedings between her and Mr Penningh (“the father”) ([2018] FCCA 1559). The orders concern the parties’ children, X, who was born in 2012, and Y, who was born in 2014 (“the children”).

2. The orders provide that the parties’ have equal shared parental responsibility for the children and that the children live with the mother.  The mother has always been the children’s primary carer and there was no issue that this arrangement should continue.  However, the amount of time the children would spend with the father was highly contentious.  Although the father wished it were different, in the period post-separation the children spent little time with him overnight and it had been quite some time since they had.  It was during the trial that the mother agreed the children could start to spend time with him overnight.  For his part, the father sought a more rapid increase in the children’s time with him and for longer periods than the mother considered appropriate.  The parties agreed that the distance between their homes was too great for the children to spend more than alternate weekends with the father during school terms.

3. At the time of trial the mother and children lived in the Town F region and the father lived in Sydney.  Until the parties moved to Town F in furtherance of the father’s career in August 2014, they had no connection to the area.  After separation, the father moved to the north coast of New South Wales before he settled in Sydney, some 2.5 hour drive from where the mother and children lived.  With the mother’s contract of employment in Town F due to end in December 2018, she wanted to move to City K with the children, which the father opposed.  Her application failed primarily because the primary judge was satisfied that “[a]lternate weekends that [sic] can only be achieved by not allowing the children to be relocated” (at [178]).  Although that finding was wrong, orders were made for the children to spend time with the father each alternate weekend and half school holidays.  The first two weekends would be for one night overnight and thereafter two nights.  Provision is also made for the children to spend time with the father on special occasions.  Otherwise there is a suite of orders designed to address the practical consequences of the parties inability to communicate and resolve necessary parenting issues. 

4. In broad terms, the mother appeals against all the substantive parenting orders other than the order that the children live with her.

5. The father resists the appeal and seeks to uphold the orders.

6. An application by the mother to adduce further evidence in the appeal filed on 12 October 2018 must also be considered.  This application is opposed by the father, but if it is granted he seeks to adduce further evidence in response.

Brief Chronology

1. So as to give this appeal context, it is useful to set out some key events in chronological order.  Ordinarily, these would be extracted from the trial reasons, however, as will become apparent, the primary judge’s engagement with the facts was cursory.  It is understood that what follows is uncontroversial unless stated otherwise.  

2. The parties met in 2005/2006 when working for the same company in North Queensland.  They commenced living together in North Queensland in early 2007. 

3. The mother has a son, Z, who was born in 1998.  For a number of years Z lived with the maternal grandmother and/or the maternal step-father.  The maternal grandmother has disabling mental health difficulties and there were significant periods when she was unable to care for Z, or indeed the mother when she was young.  The mother had a very difficult childhood which brought her into contact with child welfare agencies.  She looks back on those dealings with trepidation and has been strongly motivated to keep the child welfare authorities at arms-length from her family. 

4. When she and the father commenced living together, Z joined them. 

5. The parties and Z moved to Town T in 2010, which is where the children were born.

6. Upon X’s birth in 2012 the mother stopped paid work and from that point she was primarily responsible for the care of the children.

7. There were difficulties in the father’s relationship with Z.  In 2013 and 2014, and because of concerns that Z was being mistreated by the father, the Department of Family and Community Services (“the Department”), Police and/or school counsellors became involved with the family.  It is useful at this juncture to point out these agencies became involved primarily as a result of requests for help made by Z and not at the behest of the mother.  We mention this because a theme developed that because the mother did not seek assistance from the Department or police for Z, she was either a bad parent or her account of the relationship with the father was a lie.  We point out that it was not suggested that this disqualified her from continuing to have the children in her primary care.   This binary view of family violence is outmoded and has no place in modern family law.  In our view her evidence that she sought to preserve the family unit and to protect Z without the involvement of these agencies was neither incredible nor inconsistent with her evidence of her history of family violence.

8. Returning to the chronology, Z’s situation in the home was sufficiently difficult that he was sent to boarding school for the second half of 2013.

9. Following an ugly altercation between the father and Z on 2 March 2014, Z ran away (for the second time) and commenced living with a friend’s grandmother.  Z did not return to the family unit albeit since the parties’ separation he has spent regular weekend and holiday time with the mother and children.  Z lives in Sydney where he attends university.

10. The parties’ second child Y was born in March 2014.

11. In August 2014, when the parties and the children moved to Town F, Z remained in Town T.

12. The mother returned to work in March 2015 and nannies were employed to care for the children.

13. In April 2016 the father commenced work (with the same employer) at Town C in the Hunter Region.  This was a short term project and as the father had already accepted a position to commence at the end of 2016 in Town P (in northern New South Wales) he moved to the Town C area and the mother and children remained in Town F.  This avoided the mother and children needing to relocate twice; that is first to Town C short term followed by Town P for the duration of the project.  The point being it was common ground that by the end of 2016 the entire family would leave Town F permanently. 

14. In mid-July 2016 the parties agreed to separate.  In the months that followed the father travelled to see the children, essentially each alternate weekend.  During this early period he generally stayed overnight in what is now the mother’s rented property.

15. By October 2016 the parties were in serious disputation about the nature and extent of the time the children would spend with their father. 

16. The mother commenced proceedings in the Federal Circuit Court of Australia on 10 November 2016.

17. Interim parenting orders were made on 12 December 2016 which provided for the children to spend time with the father each alternate Saturday and Sunday from 8:30 am to 5:00 pm and for three days in early January 2017 supervised by a third party known to the children and approved by the mother. 

18. In around December 2016, the father commenced a relationship with his partner, Ms S.  The children met her that month.  She and the mother had been professionally acquainted for about eight years albeit her identity as the father’s partner was kept secret from the mother (at [186]).

19. The father and Ms S are engaged to marry.

20. In late December 2016, the father leased an apartment at Suburb W in Sydney, which is where he lived at the time of trial.  It would seem that by at least the end of January 2017 the children were spending unsupervised time with him each alternate weekend during the day. 

21. The parties have not spoken to each other since March 2017 (at [30]).

22. The children spent time with the father on Saturday … April 2017 and were due to see him again the following day.  However, the mother said their daughter repeatedly said she did not want to attend the following day and after the mother discovered a bruise on the child’s hip (which the child said was sustained on a slippery dip) she decided they should not attend.  Having communicated her decision to the father, she withheld the children.

23. As chance would have it, both parties ended up on the D Highway heading south from Town F.  The father tailgated the mother, cut her off and eventually forced her (and other drivers) to stop and another motorist felt the need to intervene.   It is not necessary to set out the details of this incident more fully here (we will return to this issue later); it is sufficient to record that the father pulled their daughter from the car, the mother and children were greatly distressed and he was convicted (on his plea) for malicious damage as well as intimidation.  An interim Apprehended Violence Order was issued for the mother’s protection and a final Apprehended Domestic Violence Order (“ADVO”) was made in October 2017 and is in force until October 2019.  The ADVO names the mother as the protected person and prohibits the father from approaching or contacting the mother (except through lawyers or as ordered by a court) or from attending the mother’s home or workplace.

24. Following the incident on the highway, the mother filed an urgent application for the suspension of the 12 December 2016 orders and withheld the children from the father.  The parties’ daughter was very distressed by the highway incident and at the behest of the mother she commenced seeing a counsellor.  The mother’s urgent application resulted in orders made on 22 June 2017 which continued the earlier arrangements save that changeover arrangements for the children would be professionally supervised.  From that point, changeovers proceeded smoothly and there were few difficulties associated with the children spending time with the father in accordance with the orders. 

25. The parties’ engaged Ms R who is a child and family consultant to prepare a report (“the single expert”).  Following interviews and other investigations, the single expert produced a report dated 1 November 2017 in which she made the following recommendations:

    137. In the event that it is determined that [the father] is unlikely to pose an unacceptable risk to [the children], it is recommended that the children live with their mother and spend alternate weekends (if feasible) and school holidays time with him, as well as specified time on special occasions.

    138.In the event that it is determined that [the father] poses a risk of physical harm to the children by way of violent behaviour when stressed or because of punitive parenting practices, a continuation of a combination of day only time with the children, Facetime and telephone communication is suggested as a possibility. The Court might also consider the option of the children spending overnight time with their father with the support of a professionally qualified, seasoned nanny.

    139.It is recommended that [the father] seek therapeutic assistance to specifically address stress management and to develop more flexible ways of thinking about and managing children’s behaviour. This is likely to take on particular importance once the children reach adolescence.

    140.It is recommended that [the mother] seek therapeutic assistance specifically to address the issue the question of her capacity to protect her children in circumstances where their needs clash with hers.

    141.It is noted that it would do no harm and could be of benefit if both of the parents were to seek assistance to attempt to ensure that they do not repeat any behaviours that have been stressful or otherwise problematic for their children.

26. With the parties’ daughter due to commence kindergarten in 2018, in mid-October 2017 the mother’s solicitor wrote to the father proposing that the child attend G Public School (on the astute assumption that he would not agree to the mother’s earlier request that she relocate with the children to City K).  When no response was received, a further letter was sent on 10 November 2017, to which a completed enrolment application was attached.  When that document was not returned, the mother filed an application on 20 November 2017 for orders that the child be enrolled in G Public School (inter alia).  On the same day, the father returned the completed enrolment application.

27. The parties divorced in December 2017.

28. On 1 May 2018 the parties entered into property settlement orders.  Not long after they entered into a binding child support agreement which relevantly provided that the father would not pay child support until 1 May 2021 and waived all child support arrears.  

29. At the request of the Court, the single expert prepared an addendum to her report, in particular in relation to the relocation issue.  This updated report, dated 8 May 2018, confirmed that the parties had acted on the recommendation that they each seek therapeutic assistance, which both found was valuable.  In terms of the addendum, the single expert evaluated the situation thus:

    25.The most salient issue regarding relocation concerns the potentially negative impact on the children’s relationship with their father if they live a significant distance from him. This is particularly so given that they do not spend overnight time of extended periods of time with him. It is also the case that where relocation is concerned communications through telephone or FaceTime become more important. If, as the father alleges, telephone communication between him and the children is not being adequately facilitated by the children’s mother, this would not portend well for the relationships between the children and their father in the long-term if they should live in different states, for example.

    26.It is this writer’s view that alternating weekend travel involving long distances, whether that be by car, plane or train, would be likely to become onerous for the children in the long-term. In relation to this single issue, it would be more in the children’s interest to limit the requirement for them to travel to around once or twice in a school term and otherwise for school holidays. Their spending more frequent time than this with their father would be desirable but would be best arranged by their father going to them rather than their coming to him.

    27.Overall, however, it would be better for the children if their parents did not live a long way away from one another. The reasons for this are: distance limits the ways in which parents can be involved in their children’s lives, particularly day-to-day; the frequency with which children can spend time with the other parent is usually limited – it is a long time between drinks so to speak and this can be difficult for children; both the financial cost and burden of travel leave the parenting arrangements more vulnerable to breakdown.

    28.The above is not intended to be read as an argument against the mother being permitted to relocate with the children. Some of the issues associated with that question need to be explored through evidence. It is more to suggest that, under normal circumstances, it would be better for the children if the parents were to live in reasonable proximity to one another, wherever that might be.

Grounds of Appeal

1. Before we turn our attention to the challenges advanced by the mother, it needs to be understood that this is an appeal against the exercise of discretion which is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court or disagreement only on matters of weight by no means justifies a reversal of a decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).

2. Although the mother presented numerous grounds of appeal, consideration of only a number is sufficient to establish that the approach taken to the allocation of parental responsibility, fact finding as to family violence and the assessment of risk, evidence given by the single expert and the mother’s relocation application was flawed and the decision cannot stand.  In this event the mother asks that we re-exercise rather than remit the proceedings for re-hearing.   However, as her counsel properly acknowledged the paucity of findings on contentious matters makes that approach impossible.

The relocation application – Grounds 4 and 11

1. The challenge mounted by these grounds is that the primary judge misstated various facts and failed to balance the advantages and disadvantages of the proposed relocation in the manner required (U v U (2002) 211 CLR 238).

2. In order to understand the challenges raised here, it is useful to identify at the outset evidence to which no challenge was made at trial.  In particular:

   ·The parties and children moved to Town F in August 2014 in furtherance of the father’s career;

   ·The father left Town F in April 2016 and it was intended that at the end of 2016 the parties and children would move to Town P;

   ·The mother specialises in project management;

   ·The father moves often for work and in recent years he lived and worked in North Queensland, Town T, Town F, Town C, Town P and Sydney;

   ·The mother has no family in Town F, albeit she has paid nannies;

   ·The mother has friends in City K, including Mr H (her partner), as well as mutual friends of the parties;

   ·For a period the mother proposed moving to Sydney but having finalised a property settlement with the father, she said she would be able to afford to purchase a home in City K suitable for her and the children but could not do so in Sydney, it is inferred, without a considerable mortgage; 

   ·The mother proposed to live within an eight kilometre radius of the City K CBD, which region offered a number of excellent state schools;

   ·The father’s extended family live closer to City K than Sydney or Town F; and

   ·The effect of the child support agreement was that the father would not pay child support until 1 May 2021.

3. It is also important to understand that in the event that the children lived in City K and the father remained in Sydney, it was common ground that during school term, the children could come to Sydney one weekend each month and the father would spend one weekend each month with them in City K.  The father, who has an annual salary of $300,000, did not say he could not afford to fly to City K.  Furthermore, irrespective of where the children lived, the single expert was of the opinion that the children’s time with the father during school term should be structured around alternate weekends.

4. Turning then to his Honour’s reasons against relocation, he was clearly dissatisfied with the mother’s reasons for wanting to move and criticized her for failing to adduce evidence which in his view might have established that her reasons were soundly based.  For example, the judge was “disturbed” about the fact that the mother’s partner did not give evidence and that she gave “no evidence of a deep commitment to a relationship with [him]” (at [157]).  Moreover, the mother gave “no evidence of how he could support her and the children in City K” (at [158]). 

5. These comments are surprising and unfair.  The mother was clear that she did not plan to live with her partner and intended to establish a home for herself and the children on their own.  She gave evidence about how she could afford to do so and there was no suggestion that she looked to Mr H to provide her or the children with financial support.  After all, she is a well-qualified professional who was then earning an income in the vicinity of $180,000 per annum and was supporting herself and the children without financial assistance from anyone. 

6. Further, the primary judge’s finding at [159] that the mother provided “no cogent evidence” that her employment in Town F was not secure is contrary to the evidence, including the work schedule attached to her trial affidavit.  In this regard, his Honour should have found that the mother’s employment contract was due to end in December 2018.  The primary judge was correct that the mother did not identify her City K-based friends (other than her partner) in her affidavit with whom she and the children “have good relationships.”  Nor, as was found, did she “give the particularisation of what support would be available” (at [162]).  However, his Honour appears to have overlooked that during cross-examination of the father it was established that he knew the couple with whom the children had long-standing relationships and with whom the mother (and he) were on friendly terms.  He also knew the mother’s partner. 

7. As to the mother’s prospects of employment, she gave evidence as follows:

   252.Further, I specialise in [project management] and in order to maintain my career I need to be able to move to a large city so that I can secure an ongoing stream of work particular to my expertise. Major projects are available within larger cities such as City K, and therefore my work security would be assured, enabling long-term stability for the children and me. There are currently, and will continue to be, several projects in City K which would be suitable for my skills and experience…

   (Mother’s affidavit filed 29 May 2018) 

8. In relation to this evidence, the primary judge said:

   159.As to employment prospects, she gives no evidence of negotiations or employment offers. She said she would not enter into searching for employment until allowed to relocate. The best I can state is that she believes she may get employment. That is not much to go on.

9. It is difficult to understand why, in this case, the mother’s evidence concerning her future career prospects and employment was dismissed as no more than a belief.  After all, she had a track record of securing work in her field in various states and spoke with the voice of experience as to her suitability for several projects then underway in City K.  Perhaps the explanation for the approach taken by the primary judge lay in the fact that he overlooked the fact that the mother’s contract of employment in Town F would shortly end and thought she was planning to leave secure employment for something less certain.  But this is mere speculation, whatever the reason, the evaluation of the mother’s plans to move to City K was flawed.

10. Unfortunately, the same must be said about the evaluation of the parties’ proposals for the children’s time with the father in the event that the children moved to City K.  Although the primary judge was correct when he pointed out that the single expert said that the children travelling to Sydney by aeroplane each alternate weekend would not be in their best interest, he failed to appreciate that neither party suggested that they should.  Furthermore, his Honour appears to have overlooked the fact that the father does not pay child support and it would be a number of years before he would.  His expressed concern (at [172]) that the cost of airfares could possibly affect child support payments is thus unsustainable.

11. Otherwise, his Honour was satisfied that:

    178.Alternate weekends that can only be achieved by not allowing the children to be relocated and their best interests in being relocated is not supported by the mother’s case.

12. As has already been explained, it was accepted that alternate weekends could be implemented even if the children moved to City K and without them needing to do all the travel. This was important evidence which required careful consideration by his Honour.  Had his Honour given this evidence any consideration he would have found that arrangements could be put in place which enabled the children to reside with the mother in City K and have the benefit of at least alternate weekend time with the father.  His Honour’s failure to consider these matters are errors of law (Collu & Rinaldo [2010] FamCAFC 53).

13. As the Full Court said in Malcolm and Munro (2011) FLC 93-460 at [83]:

    We emphasise that it is not the law that a parent wishing to relocate must establish compelling reasons for this to be permissible: see AMS v AIF (1999) 199 CLR 160, 179; and U v U (2002) 211 CLR 238, 259-260. Equally, there is no onus on a parent who may be “left behind” to demonstrate reasons as to why the other parent should not relocate. But it is properly part of a Court’s inquiry to consider what each parent proposes and to determine the context of those plans and reasons for them in determining what is in the best interests of a child.

14. The evidence called in the mother’s case was so unfairly critiqued and the findings made against her so obviously unavailable that it should be inferred that the only circumstance in which the mother would have been allowed to relocate the children was if she in fact established compelling reasons.   We share the mother’s dismay that, the primary judge having found that he could not rule out that the father might “move further away” (at [168]) and there was no evidence which would enable him “to determine anything about the father’s future movements” (at [169]), the mother was denied the opportunity to settle in a city where she could afford to buy a home for herself and the children, was confident she could secure employment in her chosen field and the children could attend good schools.  She would live in the same city as her partner and she and the children had long established relationships with the couple mentioned earlier.  These considerations weighed heavily in favour of the mother’s relocation application. 

15. Furthermore, the disadvantages of not permitting the relocation were obvious.  Namely, that the mother would remain in an area where she felt unsupported and would shortly become unemployed.  A troubling outcome for a primary carer who was not entitled to child support for some years.  It was an area selected by the father and was only ever intended to be short-term.  Whatever its attractions they were not enough for him to stay or entice him to return.  Had that balancing exercise been undertaken, the primary judge would have realised that the mother in fact presented a very strong case for relocation.

16. Grounds 4 and 11 are established.

Family violence – Grounds 7, 8, and 10

1. The essence of these grounds concern what is said to be erroneous findings of fact regarding family violence and the effect of those findings.

2. It was an important aspect of the mother’s case that the father “has been the perpetrator of family violence towards her and also exposed the children to family violence prior to the parties’ separation and subsequently” (Mother’s case outline dated 7 June 2018 at [9]).  The father denied the mother’s claims which he said were “attempts to undermine his relationship with the children” (Father’s case outline document dated 14 June 2018 at [13]). 

3. According to the mother, it is because of her concern that the children are at risk of being exposed to family violence in the care of their father that she adopted a cautious approach to their spending time with him.  Thus, when the hearing commenced, the mother proposed that the children spend time with the father each alternate weekend, during the day unsupervised.  However, during opening addresses the primary judge made some preliminary observations as to the strengths and weaknesses of the parties cases, and, in relation to the mother’s case he said “if [the children] have a relationship with him, but that’s only day time, it’s hardly the case that she’s likely to be going – taking them off to City K” (transcript, 12 June 2018, page 9, lines 1 - 3).

4. On the second day of the trial, the mother amended the orders she sought so that the father would instead commence overnight time on 23 June 2018 for one night each alternate weekend.  This was followed by a suite of orders which gradually increased the children’s time with him and culminated with the arrangements now set out:

   6.That from the commencement of the 2020 school year the children spend time with the Father as agreed in writing between the parties and if there is so no such agreement as follows:

   6.1During school term each alternate weekend from 10.00am on Saturday until 5.00pm on Sunday with the Mother to accompany the children to Sydney for the purpose of the children spending time with the Father on the first and every alternating occasion of such time and the Father to be at liberty to travel to City K to send time with the children from 4.00pm on Friday until 5.00pm on Sunday on the second and every alternating occasion of such time with the Father to give the Mother no less than 3 days’ notice in writing of his intention to do so on each occasion;

   6.2During the April, June/July and September/October school holidays for a period of seven nights commencing at 5.00pm on the last day of term and until 5.00pm on the day following the seventh night.

   6.3During the Christmas school holidays for three periods of seven nights as follows:

   6.3.1From 5.00pm on the last day of the school term until 5.00pm on the day following the seventh night;

   6.3.2From 5.00pm on the day falling 14 days following the last day of term until 5.00pm on the day following the seventh night;

   6.3.3From 5.00pm on the day falling 28 days following the last day of the school term until 5.00pm on the day following the seventh night.

5. In relation to the mother’s revised orders, the primary judge said:

   121.As to the mother, as stated, her case changed on the second day of trial – she would allow overnight time for the children with the father.

   122.That, in my view, was open on the evidence, but it is a decision she took and is a step back from the numerous claims being made here. It is calming of the situation, proper against the evidence, and recognition of what the family consultant said later – that the children have a good relationship with the father and he appeared to be attentive to their needs.

   (Emphasis added)

6. The finding that “the mother stepping back from her claims during the trial” was a recurrent theme of the trial reasons which undoubtedly influenced his Honour’s conclusion that the father did not pose an unacceptable risk to the children.  

7. On behalf of the mother, it was argued that the primary judge viewed the amendment of her orders as amounting to a retraction of the nature and extent of family violence.  There can be no doubt that the mother did not expressly resile from the evidence she gave about the nature and extent of family violence and nothing to which we were taken would permit that inference.  One interpretation of the words “stepping back” is that the primary judge intended to convey no more than the mother now agreed that overnight time could commence.  However, when discussing the highway incident, the primary judge again referenced the mother’s amended orders and said at [70]:

   In the mother’s case as it was initially run – this was an example of the father’s potential for violence and an example of that violence. She changed her case part way through, a matter I will come too.

8. Considered in the light of [70] it is apparent that the primary judge considered that by agreeing to overnight time, the mother abandoned her case concerning the father’s potential for violence and no longer seriously contended that the children were at risk if he had more extensive time with the children than she proposed.   She did not and it is apparent that the primary judge misunderstood a critical integer of the mother’s case.

9. Counsel for the mother undertook a careful comparison of the facts as found against the evidence adduced.  In so doing it was established that the primary judge made a number of important findings in relation to family violence which were not open on the evidence.  We do not intend to traverse each and every instance where this occurred and it is sufficient to identify a few to establish that the fact finding concerning family violence is seriously flawed. 

10. It will be recalled that the mother gave evidence about the father’s alleged mistreatment of Z.  In this regard, it was uncontroversial that from 2010 police and at some stage child welfare agencies were called to the family home and became involved with the family because of what Z said about the father.  At trial the mother gave evidence that the father assaulted Z in 2010 and subsequently.  Rather than analyse each incident, his Honour focused on the incident in 2010 and another in March 2014.  This analysis included consideration of police and other records which his Honour said established “[t]he alleged assaults on [Z] being claimed now appear to have no bases on the documentary evidence…” (at [100]).  We agree with counsel for the mother that this conclusion is not available.

11. When dealing with the evidence about the incident on 2 March 2014, the primary judge correctly recorded that Z told his school counsellor that the father punched him in the stomach.  According to the primary judge at [94] “[a] different version of events is recorded in the child safety documents” ,  in relation to which the following findings were made:

    95.The departmental notes, dated May 2014, records that [Z] reported to the school principal that he was not actually assaulted by the father. [Z] is recorded as stating the father punched and hit the wall next to him.

    96.The mother then stated she was referring to a different event.

    97.There is no evidence that there was a different event or in fact similar events.

12. There are no records from the Department (child safety documents) dated May 2014, but there is a record dated May 2013 which comprise a notification from Z’s school as follows:

    …excessive discipline, [name deleted] reported the step father has hit, punched, thrown [name deleted] against walls and has made threats that he will make him cripple and throw his head through the wall.  Reporter states the mother has not been able to respond protectively and school has attempted to raise these concerns with the mother.  [Z] has slept outside and at friend’s houses in attempt to get away from the step father.  There are no timeframes or injuries/bruising reported.

    (As per original)

13. Comparison of the findings at [95] and this record demonstrates that the primary judge relied on a record which bore no relationship to the event under consideration and, having done so he misstated what it said.  Furthermore, reference to the trial transcript demonstrates that in cross-examination the mother gave evidence of more than one event (transcript, 12 June 2018 pages 45 – 63) and thus the conclusion at [97] was wrong.

14. The same bundle of records contained a report received from a school counsellor at Z’s school dated May 2013 which states:

    ... that [Z] described what had happened during the incident and he said that he wasn’t actually hit by his stepfather, but that he had punched and hit the wall beside him.  [Z] said that his mother was present at the time and that she had intervened.  No-one was actually physically assaulted during the incident, but [Z] felt extremely threatened.  He said that after the incident he went outside and spent the night sleeping under a horse blanket.  [Z] told [the school counsellor] that his stepfather has told his mother that he won’t do anything like that again and he is happy with that.

1. Although the record clearly relates to an incident which took place nearly a year before that of March 2014, in relation to that later incident cross-examination of the mother proceeded as follows:

   [COUNSEL FOR THE FATHER]:   Thank you.  [The mother], are you aware that [Z] – I withdraw that.  Are you aware that caseworkers spoke with [Z’s] principal at [name deleted] on […] May 2013 and, on that occasion, she says [Z] had given a different version of events?

   [THE MOTHER]: ‑‑‑No.

   [COUNSEL FOR THE FATHER]: According to this file note record, the principal described – or said that [Z] described what had happened, and he said he wasn’t actually hit by [the father], but that he punched and kicked the wall beside him.  Are you aware of that?

   [THE MOTHER]: ‑‑‑No.

   HIS HONOUR:   Sorry.  This was in May 2013?

   [COUNSEL FOR THE FATHER]:   Yes.

   …

   HIS HONOUR:   And [Z] says?

   [COUNSEL FOR THE FATHER]:   [Z] is reported to have said to his principal that he wasn’t actually hit by his stepfather, but that he had punched and kicked the wall beside him.

   HIS HONOUR:   Right.

   [THE MOTHER]:   So – may I please just clarify?

   [COUNSEL FOR THE FATHER]:   Sure?‑‑‑

   [THE MOTHER]: Is that in relation to the same incident?  Because there were a number of incidents.

   [COUNSEL FOR THE FATHER]:   Well, I assume ‑ ‑ ‑

   HIS HONOUR:   Well, wait a minute.  Wait a minute.  Now I’m really getting confused.  I only understood that you were being questioned about one incident?

   [THE MOTHER]: ‑‑‑Yes, but the particulars which were just described appear to be discussing another incident, not the same incident.

   [HIS HONOUR]: Do you give evidence on another incident where [Z] claims that there was some act on the part of the father?

   [THE MOTHER]: ‑‑‑We’ve just established that there doesn’t appear to be any other details or any other particulars in regards to violence between [the father] and [Z].

   [HIS HONOUR]: Do you make reference to, in even a general way?

   [THE MOTHER]: ‑‑‑Yes.  Yes.  The very first paragraph of the section, under Violence, refers to the fact that [the father] had been violent to all of us, to varying degrees.

   [COUNSEL FOR THE FATHER]:   [The mother], you know, don’t you, that the Department of Family and Community Services were only investigating one incident, and that was the incident that led to [Z] leaving the home.  Correct?

   [THE MOTHER]: ‑‑‑I understand that they were investigating a child at risk.

   [COUNSEL FOR THE FATHER]: You gave evidence ‑ ‑ ‑

   HIS HONOUR:   No.  Excuse me.  That’s not what you were asked, all right?  I’ve got to direct you.  On many occasions you’re not answering the question.  You’ve got to answer the question, okay?  Because I might form the view that you’re being evasive otherwise, and that was most certainly an answer upon which I could form that view.  Okay?  I’m here deciding issues.  I’m here deciding them on what I’m hearing, what I’m reading.  Ask that question again, please.

   [COUNSEL FOR THE FATHER]:   You know, don’t you, that the Department was only investigating the incident which led to [Z] leaving the home?

   [THE MOTHER]: ‑‑‑No.  I’m not aware of that.

   [COUNSEL FOR THE FATHER]: You gave some incident earlier, in response to a question from his Honour, about whether or not there had been involvement by Family and Community Services up until that point, and you said no, there wasn’t.  Correct?

   [THE MOTHER]: ‑‑‑That is correct.  Yes.

   (Transcript, 12 June 2018, page 45 lines 1 – 10, and page 45 line 27 to page 46 line 24)

2. There is no doubt that the records dated May 2013 were misused in cross-examination of the mother so as to establish inconsistency with what she and Z said about the incident of March 2014. 

3. The mother’s answer that there were a number of incidents is corroborated by the documents which were wrongly used to cross-examine her to different effect.  As the questions clearly indicate, file notes dated a year earlier were used to create the false impression that these documents established inconsistency between the mother’s evidence and Z’s recorded statements as to the events of March 2014.  It is disappointing to say the least that that counsel for the mother took no objection to this line of cross-examination.  It was clearly improper and with or without objection, it should not have been permitted (see Evidence Act1995 (Cth), s 41). Furthermore, the primary judge ought to have been astute to the probable harmful impact on the mother’s testimony overall of questions which she knew misrepresented the facts but were allowed to continue. For this to occur in a case concerned with family violence in which there was no doubt the mother had been the victim of family violence and in relation to that very topic is unacceptable.

4. The egregious nature of what occurred is underscored when an interview undertaken by officers of the Department with Z in March 2014 is examined.  There, the child protection workers record Z as follows:

   [Z] said that and [sic] incident happened a couple of weeks ago with his stepfather [the father] that led him to now staying with [E].  [Z] said that a verbal altercation took place and as he was walking out the door his stepfather came over to him, [Z] put his hand up because he thought he was going to be hit.  [Z] said that his stepfather then tried to throw him on his back by first punching him in the stomach and then choking him. 

   [Z] said that his stepfather was very mad and was screaming at him to get out of the house.

   [Z] said that his stepfather was pushing him up the stairs and yelling at him all the while.  [Z] said that his mother who saw what happened was crying and getting [Z]’s little stepsister away from the area.

   …

   [Z] went on to say that “I was bit of a loner at boarding school, I thought I had learned to let it all wash over me, but I had’nt [sic]”’ referring to the difficulties between him and [the father]. 

   [Z] then said that at times he was living at home with his mother and [the father] he used to sleep with a pocket knife under his pillow because “I was worried that [the father] would come in at night and beat me up.”

5. This passage corroborates the mother’s evidence about the events of March 2014.  Thus, contrary to the finding made at [100] there is ample documentary evidence which corroborates her evidence that the father assaulted Z on more than one occasion.  There can be no doubt this evidence required careful consideration in the assessment of the magnitude of the risk the mother said the father posed to the children.  Lest it be misunderstood, it well settled that a party does not require their evidence to be corroborated before evidence of family violence can be accepted.  As the Full Court said in Amador & Amador (2009) 43 Fam LR 268 at [79]:

   Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.

6. We will now examine the highway incident.  As we indicated earlier, the father entered a plea of guilty to the charges raised against him arising from this incident.  It is worth setting out the fact sheet produced by police in full which was in evidence.  It records the event as follows:

   The [father] and the [mother] in this matter were previously married. They married in 2011 and separated in July of 2016. The [father] and the [mother] as a result of this union have two small children, a girl aged 4 and a boy aged 3. The [father] and the [mother] moved to the [J] area as the [father] worked for a […] firm that was involved in the construction of the […]. The [mother] has found work as a project officer with the [J …]. Since the separation the [father] has moved to the [Town P] area were [sic] he currently resides. The [mother] continues to reside in the [J area].. As a result of the separation both parties have sought legal advice in relation to the access to the children. At this time an interim Family Law Court Order is in place. The conditions of the order relate to access to the children by the [father]. The orders allow access to the children during the daytime every second weekend. On Saturday the […] of April 2017, the [father] had access to both his children. The children were returned to the [mother] on the Saturday afternoon.. On Sunday the […] of April 2017, the [father] has driven to the pre designated pick up point to collect the children. It was at this time that the [mother] in this matter has not delivered the children to the [father] as she was concerned for the welfare of her children in the company of the [father] as the four year old daughter had presented to the [mother] a bruise on her left hip.. The [father] then made a number of text messages to the [mother] and a telephone call to her with regard to access of the children. The [father] then at about 10am attended the [Town F] Police Station to seek legal advice and assistance with seeing the children. Police advised him at this time that they could check on the welfare of the children however could not remove the children from the mother and that he should make contact with his solicitor to speak with him about the breach of the Family Law Court Order.. It was at this time the [mother] and the children were driving around the [Town F] CBD. As the [father] has left the Police Station and drove from the Police Station, he has seen the [mother]’s vehicle and then commenced to follow the vehicle. . At this time the [mother] has seen the [father] motor vehicle behind her vehicle, the [mother] has then driven south along the [D Highway] from the [Town F] CBD towards South [Town F]. The [mother] then alleges that the [father] then overtook her and manoeuvred his vehicle in front of hers in an attempt to stop her vehicle. The [mother] was able to manoeuvre her vehicle around the [father]. The [mother] and the [father] continued to drive south on the Highway, at the intersection of the [D Highway] and [B] Street, [Town F], the [mother] merged to the lane three in an attempt to turn west into [B] Street. The [father] has manoeuvred his vehicle again in front of the [mother]’s vehicle. Both vehicle’s stopped it was at this time that the [father] has left his vehicle and approached the [mother]’s drivers side window.. The [father] is then alleged to have placed his fingers in a gap between the drivers side window and door frame.  The [mother] at this time was attempting to lock the vehicle. The [father] is alleged to have pushed the window down and has reached into the drivers side of the vehicle and wrestled with the [mother] with the ignition key in an attempt to manipulate the central locking. As a result of the ignition key has been bent. The central locking was opened and the [father] has then reached into the rear drivers side baby booster and removed the four year old girl from the booster seat. The [mother] was attempting to stop the [father] at this time.. A number of witnesses who had stopped behind the [mother]’s vehicle also alighted from their vehicles and were trying to assist the [mother]. The [father] at this time had the child in his hands and after some coaxing he returned the child to the [mother]. The [mother] and the child then returned to their vehicle and took refuge in the vehicle. The [father] then returned to his vehicle and left the location. A number of phone calls were made to Triple 0 about the incident as it took place. . The [father] drove to the [Town F] Police Station and attended the foyer of the Police Station. Police at this time had attended to the [mother] and her vehicle. Police observed the [vehicle] parked in the right hand turning bay at the intersection of [B] Street and the [D Highway]. They then saw two children in the rear passenger seats. The [mother] could not make the vehicle start as the metal key was bent. The [mother] was crying and in a heightened state of anxiety.. Police eventually were able to fix the damaged key and the vehicle was moved from the highway. The children were given to a third party and the [mother] attended the [Town F] Police Station. It was at this time a DVEC recording of the incident was taken. . The [father] re attended the Police Station and at about 1.10pm on this date the [father] was informed that he was under arrest. The [father] was cautioned and taken to the custody suite. The [father] having previously contacted his legal representative indicated to Police that he did not wish to participate in an interview.. The [father] was then charged with matters before the court.. Police estimate the damage to the key would be about fifty dollars. At the time of the incident, the [D Highway] at the intersection of [B] Street was heavy with weekend traffic. This incident occurred in and around the centre concrete driving strip and placed all parties at a greater or higher risk.

   (As per original)

7. The primary judge’s reasons give a more benign summary of the incident than the actual records of the event, for example overlooking the extent to which the mother was required to take evasive action so as to prevent an accident, albeit it was accepted that the mother and children were distressed and that other road users intervened on behalf of her and the children.  Nonetheless, the primary judge said of this incident:

   69. As I stated, this was an astonishing event, made even more astonishing because these parents are high achievers and should be able to exercise executive function decision-making by thinking through the possible results of actions they may take. Such applies to both parents, because there seemed to be no reason for the mother to be concerned about the bruise in the first place.

8. Applying the language used in the trial reasons, what is astonishing is that the primary judge found the mother in some way responsible, presumably equally responsible, for what happened.  There is no doubt she should have made the children available to see the father the day this incident occurred.  However, having failed to do so she might have anticipated that she would face a contravention application or at least a demand for make-up time.   There was no reason for her to anticipate that the children’s father would engage in what in lay terms was a road rage incident which placed her and the children (and other road users) at risk.  The primary judge should have found that the father was solely responsible for this dangerous incident of family violence and that it provided considerable support to the mother’s evidence of family violence and her concerns about his capacity to care for the children for longer periods of time than was proposed by her. 

9. We could go on, but it has been amply demonstrated that too many of the findings as to family violence (and the assessment of risk) are based on an analysis of the evidence which is erroneous (Devries v Australian National Railways Commission (1993) 177 CLR 472). As to the latter point, it seems that the approach to the evidence given by the mother, including under cross-examination, was that unless, when she (or Z) first spoke about family violence they gave a comprehensive account (including dates and times) of all that occurred, anything disclosed later was viewed with suspicion. Indeed anything said after the initial disclosure that was not included in the initial disclosure was treated as inconsistent with that disclosure. Inconsistency having thus been established, the totality of the evidence as to family violence was then evaluated as unreliable. No attempt was made to identify a core consistency in what she said. Amongst other things, this approach fails to recognise how hard it is for victims of violence inflicted by a family member, who is often someone they love or on whom they rely for sustenance, to speak about what has happened. The subject matter is distressing and giving voice to what has occurred can be traumatic in itself. We cannot say strongly enough that those involved in cases such as this must bear in mind that in this setting, disclosure is a process that often requires time before a complete picture emerges.

10. These grounds have been made out.

Equal shared parental responsibility – Ground 3

1. On the application of the father an order was made that the parties have equal shared parental responsibility for the children.  By Ground 3, it is argued that the order was contrary to the weight of evidence and failed to take into account the full effect of the evidence adduced in the mother’s case concerning family violence. 

2. The effect of s 61DA of Family Law Act 1975 (Cth) (“the Act”) is that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, the presumption does not apply, relevantly, if there are reasonable grounds to believe that a parent of the child has engaged in family violence (s 61DA(2)). By reference to the highway incident, it was found that the presumption did not apply. His Honour said:

   129.It is clear that after the highway incident, that such should be classified as an act of family violence perpetrated by the father – he grabbed the mother’s keys while stopped on the entrance to the [D Highway], blocking traffic and grabbing [the daughter] – and so the presumption of parental responsibility does not apply. 

3. However, in relation to the other evidence of family violence adduced in the mother’s case, his Honour said:

   144. The making of these allegations does not form the basis for sole parental responsibility and I was not taken to other factors which may cause disputes of such magnitude that the best interests of these children would be jeopardised because the parents have to make decisions together.

4. In deciding that an order for equal share parental responsibility should be made, the judge accepted evidence by the single expert that there was some understanding between the parents as to the children’s needs and that the father had demonstrated his commitment to the children and wished to be involved in making decisions for them.  Notwithstanding that the parties had not spoken since March 2017 and that they “refus[ed] to communicate” (at [136]), the primary judge found that this did not mean that they “cannot communicate” (at [137]).  Furthermore, his Honour relied on the fact that prior to separation the father left decision making about the children to the mother and, in 2016, she wanted to reconcile.  This appears to have given him confidence that the practical difficulties inherent in their refusal to communicate would not create problems for the children when joint parental decisions were needed.  The findings above are too flimsy a foundation for his Honour to be confident that such an order would not create difficulties for the children. 

5. The effect of s 65DAC of the Act is that an order for equal shared parental responsibility required that decisions about major long-term issues in relation to a child are made jointly. Those who share parental responsibility are required, pursuant to s 65DAC(3) to:

   (a) consult the other person in relation to the decision to be made about that issue; and

   (b)       make a genuine effort to come to a joint decision about that issue.

6. The term “major-long term issues” is defined in s 4(1) of the Act as follows:

   in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

   (a)the child's education (both current and future); and

   (b)the child's religious and cultural upbringing; and

   (c)the child's health; and

   (d)the child's name; and

   (e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

   (Explanation omitted)

1. We agree with counsel for the mother that it was necessary for the primary judge to consider the totality of the evidence concerning family violence and reflect on the reality of how these parents could give effect to an order for equal shared parental responsibility before an order of that type could be made.  To isolate the relevance of evidence of family violence merely to the application of the presumption of equal shared parental responsibility was wrong.  It was plainly relevant to the broader question of the allocation of parental responsibility once that issue was at large.

2. Ground 3 has been established.

The children’s time with the father – Grounds 5 and 9

1. As we have already recorded, orders were made that during school term for the children spend time with the father on two occasions for one night, thereafter each alternate weekend for two nights.  Orders were also made for the children to have half school holidays with each parent.  It is uncontroversial that the effect of these orders was that the children would have two weekends of one night each, half the September 2018 school holidays and then as provided. 

2. The primary judge explained the rationale for these orders as follows:

   127. ... I will accept the mother’s case that there should be overnight time, and I also accept the view of [the single expert], that such should be graduated because the children have not been in his overnight care.

   …

   177. The children will begin with an overnight for two visits, in the [Town F] area, and then they are free to go to the father’s home from Friday night to Sundays.  There is no reason to delay that increase in time beyond two visits.  Both parents will share the travel.

3. On behalf of the mother, it was argued that the findings at [127] are inconsistent with those made at [177]. The point being, in the former, the primary judge accepted evidence given by the single expert as to the need for a gradual approach to increases in the children’s time with the father, whereas in [177] that evidence is rejected. The evidence under discussion is oral evidence given by the single expert during cross-examination by counsel for the mother. Counsel for the mother provided a precise of the mother’s amended orders concerning time and the father’s proposals for time. The following exchange then occurred:

   [COUNSEL FOR THE MOTHER]:   The questions that I ask you hereafter, if I can get you to keep that in the back of your mind as to what the proposal is.  In light of the history of the children having spent time with their father at the times and under the current orders that they have, if his Honour was to permit the relocation, do you see that the proposal that the mother is now putting before the court as to building up the father’s overnight time with the children as being an appropriate regime to build up their time?  

   [THE SINGLE EXPERT]: Yes, I do.  Whether or not a relocation occurs.

   [COUNSEL FOR THE MOTHER]: Right.  So you would say, even if his Honour was not going to grant the relocation, having this step-up regime of what I will call weekend time is appropriate as the mother puts it before the court?  

   [THE SINGLE EXPERT]: Yes.

   [COUNSEL FOR THE MOTHER]: And do I take it you also say that it’s similarly appropriate to slowly step up the children’s time with their father during block school holiday periods?  

   [THE SINGLE EXPERT]: Yes.

   [COUNSEL FOR THE MOTHER]: As opposed to going from – and I don’t say this critically, because of the history of the matter – the father not having – or the children not having block holiday time with their dad to launching into a week at a time during the short school holidays?  

   [THE SINGLE EXPERT]: Yes.  That would be – I think, could be difficult for the kids to go from zero to 100.

   [COUNSEL FOR THE MOTHER]: Yes.  And it’s one of those things, would you agree, particularly in this case, where you would accept that there is a lack of trust between the parents?  

   [THE SINGLE EXPERT]: Yes.

   [COUNSEL FOR THE MOTHER]: All right.  I think his Honour has used the word on a number of occasions a dysfunctional relationship between the parents?  

   [THE SINGLE EXPERT]: I think, yes, very dysfunctional.  They are both quite controlling, I think, in relation to each other.

   (Transcript, 13 June 2018, page 177, line 24 to page 178, line 3)

4. It is this evidence that was accepted by the primary judge at [127]. Plainly it is inconsistent with his statements made at [177]. It is also inconsistent with his Honour’s statements at [184]:

   The best interests decision then is to make orders as the father seeks, with the amendments indicated and not for more than alternate weekend time. Holidays will be shared as proposed beginning during the next school vacation. Issues as to Christmas time were not ventilated and if the parties cannot come to agreements now, then those arrangements as sought by the father will be those put into place.

5. Simply put, the finding at [127] cannot be reconciled with [177] and [184].  Although the primary judge was not bound by the opinion expressed by the single expert as to the children’s time with the father, he could not on the one hand accept that evidence and, without more, make orders inconsistent with it.

6. Grounds 5 and 9 has been established.

Conclusion and costs

1. By an Application in an Appeal filed 12 October 2018, the mother seeks to adduce further evidence in the appeal in the form on an affidavit sworn by her.  The ability of this court to receive evidence in an appeal is constrained: CDJ v VAJ (1998) 197 CLR 172. Section 93A(2) of the Act is essentially designed to ensure that proceedings do not miscarry. As the mother has established that the orders under appeal are erroneous, there is no utility in her application to adduce further evidence and it will be dismissed. Nor is there any utility in giving further consideration to the challenges raised by Grounds 1, 2 and 6.

2. The orders under appeal will be set aside and the proceedings will be remitted for rehearing in the Federal Circuit Court of Australia for a rehearing by a judge other than the primary judge.

3. In the event the appeal was allowed, the parties agreed there should be no orders as to costs.  In these circumstances, both parties sought a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and rehearing. The pre-conditions for the issuance of certificate have been established and orders will be made to that effect.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Austin JJ) delivered on 20 December 2018.

Associate: 

Date:  20 December 2018