Hepburn & Noble - [2010] FamCAFC 111

FAMILY COURT OF AUSTRALIA

HEPBURN & NOBLE

[2010] FamCAFC 111

FAMILY LAW - APPEAL – CHILDREN – relocation – whether the Federal Magistrate erred in finding that the mother would be “extremely unhappy, bitter and resentful” if relocation was not permitted and that this would impact on the mother’s parenting capacity and on the children – whether these findings were inconsistent with the evidence – whether the Federal Magistrate failed to provide adequate reasons for concluding that the advantages of relocation outweighed the advantages of the children not relocating, or failed to provide adequate reasons generally – whether the Federal Magistrate erred in finding that equal time was not in the children’s best interests – whether the Federal Magistrate failed to give “proper” consideration to the children spending substantial and significant time with both parents – whether the Federal Magistrate erred in “preferring” the interests of the mother’s new partner over those of the father and the children – appeal dismissed.

FAMILY LAW - APPEAL – CHILDREN – relocation – discussion of whether the application of the principles in A v A: Relocation Approach (2000) FLC 93-035 is still appropriate in light of the amendments introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) in 2006.

FAMILY LAW - APPEAL - COSTS – where the appeal was wholly unsuccessful – appellant ordered to pay the respondent’s costs.

Family Law Act 1975 (Cth) s 60CC & s 65DAA
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)

A v A: Relocation Approach (2000) FLC 93-035
Bennett and Bennett (1991) FLC 92-191
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] HCA 4
Sealey & Archer [2008] FamCAFC 142
Starr & Duggan [2009] FamCAFC 115
Taylor and Barker (2007) FLC 93-345
Wen & Thom [2010] FamCAFC 81

APPELLANT:

Mr Hepburn

RESPONDENT:

Ms Noble

FILE NUMBER:

SYC

7564

2007

APPEAL NUMBER:

143

2009

DATE DELIVERED:

21 June 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Strickland and Crisford JJ

HEARING DATE:

5 February 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

30 October 2009

LOWER COURT MNC:

[2009] FMCAfam 1143

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Galloway

SOLICITOR FOR THE APPELLANT:

Wiltshire Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Rees SC

SOLICITOR FOR THE RESPONDENT:

Rossi Simicic

Orders

The Appeal is dismissed.
The appellant pay the costs of the respondent of and incidental to this appeal as agreed and in default of agreement as assessed.

IT IS NOTED that publication of this judgment under the pseudonym Hepburn & Noble is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 143 of 2009
File Number: SYC 7564 of 2007

Mr Hepburn

Appellant

And

Ms Noble

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed on 27 November 2009 the father appeals against parenting orders made by Federal Magistrate Brewster on 30 October 2009 with respect to the children C born in June 2000, now aged 10 years, and L born in April 2003, now aged 7 years.
His Honour’s orders provided that the parties have equal shared parental responsibility for the children, with the children to live with the mother. The effect of these orders was that the mother would be permitted to relocate from the Wollongong area, where both parties lived, to B, Victoria. The children were to spend time with the father for half of each school holiday period and on one specified weekend in each school term. Provision was also made for the father to spend additional time with the children on weekends upon giving notice to the mother, and to communicate with the children by telephone.
The mother seeks that the father’s appeal be dismissed.

Background

At the time of trial the father was aged 40 years and the mother was aged 35 years.
The father is a commercial pilot and is currently employed. The mother is not in paid employment.
The parties commenced their relationship in 1993 and married in January 1998. The parties moved a number of times due to the father’s work before settling in the Wollongong area upon the father commencing his current employment.
The parties’ first child C was born in June 2000.
The parties’ second child L was born in April 2003.
The parties separated in October 2007.
Following separation the mother unilaterally relocated to Melbourne with the child L.
The father commenced proceedings in the Federal Magistrates Court in November 2007. Orders were made on 7 November 2007 requiring the mother to return the child L to the Wollongong area. The mother complied with these orders and thereafter the parties shared the care of the children on a week about basis.
The mother has been in a relationship with Mr R at least since separation. Mr R lives in Victoria and has two children from a previous marriage whom he sees on alternate weekends.
In April 2008 the father commenced a relationship with Ms S. She has two children from a previous marriage and they live with her on alternate weeks. She is employed as a teacher in T.
The trial was heard by Federal Magistrate Brewster on 2 and 3 March 2009. Final orders were made and judgment delivered on 30 October 2009.

Reasons for Judgment of the Federal Magistrate

After commencing his judgment with a brief background, the Federal Magistrate recorded the parties’ applications. The father proposed at trial that the week about arrangement continue. The mother proposed to relocate to B, Victoria and for the father to spend time with the children each alternate weekend, one day during the week and for half of school holidays.
The Federal Magistrate firstly disposed of the mother’s proposal for the father to spend time with the children on weekends and mid week if he remained living in the Wollongong area and the mother relocated. His Honour considered this proposal to be “completely unworkable” given the travel that would be involved for the father with such an arrangement, and other practical difficulties, such as car hire and accommodation costs the father would have to incur.
His Honour was also satisfied that it was impractical for the father to relocate to Melbourne, firstly due to his employment and current position with the airline, which required him to commence each shift in Sydney, and secondly, because he had re-partnered.
The Federal Magistrate then turned to consider the possibility of the mother’s partner, Mr R, relocating to be with the mother. Although his Honour found that Mr R’s qualifications were portable and that he would be able to obtain employment if he relocated to the Wollongong area, Mr R himself has children who live in Victoria whom he sees on alternate weekends. His Honour considered in these circumstances it was unreasonable to expect Mr R to relocate.
The Federal Magistrate recorded the mother’s position that if he precluded her from taking the children to live in B, she would abandon her plans to relocate.
His Honour then observed that as this was a relocation matter, he was required to bear in mind the guidelines outlined by the Full Court in A v A: Relocation Approach (2000) FLC 93-035, and which his Honour proceeded to summarise. His Honour then discussed the reasons for the proposed relocation, emphasising however that “in doing so [he was] not treating this aspect of the case as a discrete issue.” His Honour identified that the mother’s most important reason for wishing to relocate was to be with her new partner, and in due course marry and have children, but that there were other, less compelling reasons, centred around the fact that she had family in Melbourne.
His Honour then discussed the relevant s 60CC factors.
With the primary considerations, the need to protect the children from violence was not relevant in this case, and his Honour proposed to consider the benefit to the children of having a meaningful relationship with both of their parents later in the judgment.
His Honour then turned to the additional considerations.
In relation to the wishes of the children, his Honour noted there was no reference in the Family Report to this issue, and his Honour thus assumed the report writer did not seek to ascertain the children’s views.
The Federal Magistrate was satisfied that the children have a close relationship with each of their parents and was also satisfied that the children have a good relationship with each of their parents’ new partners, their grandparents, and other extended family members.
The Federal Magistrate made no criticism of the parties’ willingness and ability to facilitate and encourage an ongoing relationship between the children and the other parent.
His Honour identified that an important matter in the case was subsection (3)(d), namely the likely effect of any changes in the children’s circumstances, including separation from either of their parents. If the mother was permitted to relocate, there would be a much greater separation from their father.
Addressing the practical difficulty and expense of the children spending time with and communicating with a parent, his Honour acknowledged that although air travel between Sydney and Melbourne was not of long duration and the father’s employment provided him with access to inexpensive airfares, the time the father would be able to spend with the children would nonetheless be circumscribed.
Addressing s 60CC(3)(f), his Honour commented that while the parties had made criticisms of each other that could fall within this paragraph, his Honour did not rely on this factor in reaching his decision.
There were no matters in paragraphs (g), (h), (j) or (k) of relevance.
With respect to paragraph (i) and the parents’ attitudes to the children and the responsibilities of parenthood, his Honour commented that the mother’s actions in unilaterally relocating with one of the children following separation was not an appropriate discharge of her parental responsibilities.
Concluding the discussion of the matters contained in s 60CC, his Honour did not make any adverse findings against either party with respect to subsection (4) and the extent to which they have fulfilled or failed to fulfil their responsibilities as parents.
The Federal Magistrate then turned to address parental responsibility.
Each party conceded before the Federal Magistrate that an order should be made for the parties to have equal shared parental responsibility, with his Honour identifying that such an order brought “into play” s 65DAA.
His Honour first outlined that if he decided it was in the children’s best interests and reasonably practicable for the children to spend equal time with both parents then it would follow “almost inevitably” that an order would be made for equal time, which would preclude any relocation by the mother.
The Federal Magistrate found there were two factors which led to a shared arrangement being in the children’s best interests, firstly, that they could see a “great deal” of both parents, and, secondly, that this had been the arrangement since November 2007. Counsel for the father explained at the hearing of this appeal that where his Honour referred to “shared care” or “shared arrangement” he was in fact referring to equal time.
His Honour then identified the factors which indicated a shared arrangement was not in the children’s best interest. Firstly, his Honour recorded that the order for shared care in November 2007 was a significant change from the prior long standing arrangements where the mother had been the “primary parent” to the children. Secondly, his Honour found the parties did not have a good relationship, and in particular had communication difficulties. In this regard his Honour appreciated that to date there had not been any “ill effects from the shared regime” but his Honour was not confident the arrangement was “workable in the long term.” The attitude of the father, including a finding by his Honour that the father had at times been “unreasonably directive” in the mother’s parenting of the children, was another factor militating against a shared regime.
The Federal Magistrate concluded that he was not satisfied that a shared arrangement was in the children’s best interests, but that it was in their best interests to be in the primary care of their mother.
His Honour acknowledged that he had “somewhat synthesised the ‘best interests’ criterion and the ‘reasonably practicable’ criterion’” in his analysis of equal time, but that while the two issues are dealt with in separate subsections of s 65DAA, his Honour considered them to be “inextricably linked in many cases” and that in this case it was convenient to deal with them together.
His Honour outlined that if he had made orders precluding the mother from relocating, he would have made orders for the father to have weekend and some midweek contact, and that this would have satisfied the definition of substantial and significant time.
His Honour observed that he was faced with two alternatives: one, to make an order allowing the father to spend substantial and significant time with the children which would preclude relocation, or two, to make orders permitting the mother to relocate. His Honour then proceeded to evaluate the advantages and disadvantages of these two options in so far as the best interests of the children are concerned.
The Federal Magistrate identified that the advantages of the mother remaining in the Wollongong area included that it was in the children’s best interests to have as close a relationship with the father as possible. If the children relocated the father would not be able to have as close a relationship with them as if they stayed in the Wollongong area. His Honour considered this to be “the matter which is of the greatest weight”. Another consideration was that the children were also settled in the Wollongong area, and moving would involve great change.
His Honour considered that the advantages of relocation were “mainly found in the consequences that would occur if [he] refused to do so”, namely his Honour found that the mother would be “extremely unhappy bitter and resentful” if she was not able to relocate to be with her partner and that this would impact on her capacity to parent the children. An additional consideration, which his Honour felt to be of comparatively limited weight, was that the move would enable them to see more of their extended family living in the Melbourne area. In reaching his decision his Honour commented that:
55. My task is made more difficult by the fact that I must compare two things which are quite different. How does one compare the advantages to the children seeing a lot of their father and the disruption a relocation involves with the disadvantages of their living in a household with an unhappy and bitter mother? That is no easy task. There is no satisfactory outcome to this case no matter what order I make.
The Federal Magistrate ultimately concluded though that the advantages of permitting relocation outweighed the advantages of making orders requiring the mother to remain in the Wollongong area.
Having outlined his conclusion, his Honour recorded that he had not explained how “matters balanced out” as required by A v A: Relocation Approach (supra). His Honour justified this by adopting Kirby J’s comments in AMS v AIF (1999) FLC 92-852 that in this case there was a large amount of “judgment, discretion and intuition … involved”.
Finally the Federal Magistrate observed that whilst he had found that the mother’s proposal of alternate weekend time with the father was not feasible, some weekend contact would be possible.

Grounds of Appeal

The father’s Notice of Appeal filed on 27 November 2009 contains the following grounds of appeal:
1.      The learned Federal Magistrate erred in law and in fact, such that the Orders cannot be supported in law, nor follow from adequate reasoning.
2.      The learned Federal Magistrate erred in preferring the interests of the Mother’s partner, Mr [R] [sic], to those of the Father and the children in his finding that although Mr [R] [sic] could relocate to the Wollongong area (where the Father, Mother and children lived) “his weekend contact (sic) will be completely impractical”… “it is therefore unreasonable to expect him to relocate.”
3.      The learned Federal Magistrate correctly summarised the guidelines set out by the Full Court of the Family Court in A v A. Relocation Approach (2000) FLC 93-035 but failed to apply or properly apply those guidelines to the case before him.
4.      The learned Federal Magistrate erred in that, having found the parties should have equal shared parental responsibility in relation to the children, he did not then give proper consideration to them spending substantial and significant time with their parents and thus he erred both in law and in fact.
5.      Further, the learned Federal Magistrate erred in determining that an arrangement of equal time was not in the children’s best interest in that:
(a)There had been a successful “equal time” arrangement since November 2007; and
(b)The learned Federal Magistrate placed excessive weight on an expressed objection by the Father to the Mother travelling to Melbourne in circumstances where she had earlier, without prior notice to the Father, left [the Wollongong area] with one of the children as part of a unilateral relocation attempt.
6.      In respect of “equal time”, the learned Federal Magistrate failed to support his assertion (in paragraph 43 of the Reasons) that he was not “confident the arrangement is workable in the long term” when he had immediately before stated “I appreciate that to date there do not appear to be any ill effects from the shared regime…”. In fact, the existence of the shared regime ought to have directed the learned Federal Magistrate towards the conclusion that it was likely to continue to operate in the interests of the children in the future.
7.      The learned Federal Magistrate erred in determining (as he did in paragraph 53 of the Reasons) that without relocation the Mother “would be extremely unhappy, bitter and resentful”, when this was not consistent with the evidence and was, at best, a speculation.
8.      Further, his Honour’s error was compounded by the speculative consequence expressed by his Honour in the sentence that next follows, i.e, “This in turn would impact on her parenting capacity and on the children”. Neither statement is supported by the evidence.
9.      The Reasons for Judgment are otherwise inadequate and insufficient to support the Orders made.
The father seeks that the appeal be allowed, that the children live in T, New South Wales and live with each party on a week about basis.

Discussion

Grounds 7 and 8

We propose to deal firstly with grounds 7 and 8 of the father’s appeal which challenge the Federal Magistrate’s findings that the wife would be “extremely unhappy bitter and resentful” if relocation was not permitted, and that “[t]his in turn would impact on her parenting capacity and on the children.” At paragraph 53 the Federal Magistrate said:
53. The advantages of my making orders that would permit the mother to relocate to [B] are mainly found in the consequences that would occur if I refused to do so. The mother is committed to a relationship with Mr [R]. She wishes to share their lives together. I believe that there would be a significant impact on her if she is unable to do so. She would be extremely unhappy bitter and resentful. This in turn would impact on her parenting capacity and on the children.
Counsel for the father submits that this is “the matter on which the entire case turns” and that the Federal Magistrate “shaped his reasons” around these findings. The complaint though is that these findings were not supported by the evidence.

Senior counsel for the mother did not cavil with the submission that the case turned on these findings but contended that there was evidence upon which the Federal Magistrate was entitled to make the findings.
Given the nature of the complaint raised in these grounds, it is necessary to analyse the evidence before the Federal Magistrate relevant to this issue to determine whether that evidence does support the findings of the Federal Magistrate.
In this regard senior counsel for the mother referred us to the following evidence:
53.1With respect to the issue of the impact on the mother if relocation was not permitted, in her affidavit filed on 18 November 2008 the mother said this:
48.I was struggling to find accommodation in [the Wollongong area]. I became increasingly distressed at this time. I found [the father’s] behaviour to be intolerable. I had no family and few friends in the Wollongong area so I decided to move back to Melbourne where I would have the support of my family both emotionally and financially.
…
52.On many occasions when [the father] would return to the home without any notice he would pick an argument with me in front of the children. He regularly said to me in front of the girls “You are a fucking bitch” or “You are an unfit mother, I will be going for full custody” or “I will go to the school and I will tell everybody what you have done”. I said to [the father] “We shouldn’t be fighting in front of the girls” [the father] replied “You caused it all, you’ll have to live with it.” [the father] in the same conversation also said “Get used to your life being ruled by me for the next ten years.
…
138.I am aware that [the father] has said many derogatory things about me to people in the Wollongong area. In particular to the mothers at the school. He has told me that he will tell them about my affair and denigrate me. I feel that mothers of the children at the school who once were friendly to me are no longer friendly to me as they were prior to my separation from [the father].
…
140.I’ve noticed that when waiting for [C] in the afternoon the mothers who used to gather around and chat will not include me in their conversation. As I have not have any falling out with any of these people, I can only assume that they are unfriendly towards me because of things [the father] says to them on the weeks that he is there to collect [C].
…
154.This is another example of how a morning outing with the girls becomes uncomfortable and stressful. I come away feeling sad and stupid and unimportant. The girls see me sad like this and it affects them.
…
204.I wanted to move as I missed my family and felt alone in [the Wollongong area]… I was always unsettled and often mentioned to [the father] about moving.
…
236.If I am not permitted to move to Melbourne, my partner [Mr R] is not able to live in [the Wollongong area]. Consequently I will not have [Mr R’s] ongoing financial support indefinitely as [Mr R] will need to obtain rental accommodation appropriate for himself in Melbourne…
53.2Then there was the mother’s more recent affidavit filed on 23 February 2009, shortly before the trial, where she deposed as follows:
18.He went on the make another smart comment to me. I again put up my open hand as though to motion “go away”. I did not want to get into an argument in front of the girls. I find these types of confrontations upsetting and distressing.
…
20.During the whole time the girls say and heard what went on. He has no respect for me now and he certainly never had in the past.
21.When I got into the car I began to cry. I found all of the barrage of insults very distressing. …
…
23.This is not the first time that [the father] has degraded me in front of the children. I cannot deal with him and it make me very upset. I should not have to be defending myself to my girls. He makes me feel like a bad mother. I had to say to the girls “I’m sorry for getting upset”. Both the girls were upset at seeing me upset.
53.3In relation to the effect of the mother’s unhappiness and distress on the children, there are paragraphs 21 and 23 of that affidavit filed on 23 February 2009, and in addition paragraph 22:
22.[C] was also crying with me. [C] of course was upset with me because her father had said she could do cheer leading and I said she couldn’t.
53.4Further to this issue, in the mother’s affidavit filed on 18 November 2008 she said as follows:
41.I then rang my step-mother […]. Whilst I was on the phone to my step-mother [the father] became very abusive and started yelling words to the effect of “Talk some sense into her, she’s mad and doesn’t know what she’s doing.” When [the father] was yelling these words at me [C] was standing behind [the father]. [The father] repeated this a few times. [C] was very upset and began crying. I had to comfort her.
…
76.At pick up and drop off [the father] speaks to me he [sic] will do so in a manner which is rude. [L] has made comments such as “Daddy doesn’t talk to you very nicely.” She has said this several times. When [the father] speaks to me in front of the children his whole manner changes. His voice and face become hard and angry. It is very uncomfortable for the girls. [C] has observed and says to me “Park the car away from Daddy’s”. The girls are scared of us coming into contact with each other.
…
79.I find it impossible to communicate with [the father] in any effectual way about the girls. He [sic] anger reduces me to tears. When he belittles me it upsets me and I cry. I find it difficult to controlling [sic] the crying in the presence of the children and so they often see my crying and upset. The girls will say “Has Daddy upset you”. He has done this frequently in the past year.
…
153.Shortly after this in front of the club house I said to [the father] “What’s makes [sic] you think you have more rights that I do about the children, you enrolled [C] into Netball and Nippers and didn’t even bother to tell me.[”] He made a remark about me not telling him things and then telling me that I if [sic] I am that concerned I can pay for half her nippers uniform. [C] was upset with tears in her eyes. I said to her “I’m sorry darling I don’t want to upset you” but I was upset and frustrated at [the father’s] lack of regard for me as their mother. I moved away so [the father] could organise the uniforms as [Ms S] arrived. The whole situation was uncomfortable and sad.
154.This is another example of how a morning outing with the girls becomes uncomfortable and stressful. I come away feeling sad and stupid and unimportant. The girls see me sad like this and it affects them.
…
156.After returning home from nippers that morning, [L] came up to me and gave me a cuddle. She wiped my face with a face washer and said “Why is Daddy mean to you and make you cry? Poor Mummy”.
157.That evening again I had difficulty with [L] leaving. As we were getting ready to go to the drop off at McDonalds [L] did not want to get in the car. She said “I don’t want to go Mummy”. She was very upset.
53.5Finally there are the observations of the Family Consultant in the Family Report dated 19 September 2008 (Appeal Book 330) as follows:
12.Ms [Noble] states that she has been extremely distressed by the separation from her children. She became extremely tearful when talking about the current situation and her feeling that Mr [Hepburn] was still trying to control what she did in her life… she states that she sees her future as being there [in Victoria] and would like to start a new life with Mr [R] in Victoria. She stated that they plan to marry in October 2009.
…
37.For Ms [Noble] the current situation has resulted in very significant changes in her day to day life and she is finding it hard to cope with the loss of her role as a full time mother and carer to the girls. Mr [Hepburn] has had the flexibility to adjust his work rosters and also draw on support from his mother and new partner to make the transition needed to being a part time parent. He is therefore quite happy with the current arrangements whereas Ms [Noble] is not.
38.The main complicating factor is Ms [Noble’s] desire to live to Melbourne and start a new life there with Mr [R]. If she were to remain living in the Wollongong area it would be more straightforward to negotiate an arrangement whereby the children spent significant and substantial time with both parents…
We observe that the Family Consultant was not cross examined at trial, and the mother was not cross examined as to the statements that she made to the Family Consultant. Indeed, the evidence of the mother as to her unhappiness was not challenged at all.
It was the submission of the mother’s senior counsel that the cumulative effect of this evidence was that the mother would be unhappy and bitter, especially given what the mother would be denied, if relocation was not permitted. It was further submitted that the whole of the evidence led to the inference and supported a finding that the mother’s unhappiness would impact adversely on her parenting capacity, and thus on the children.
Counsel for the father conceded at the hearing before us that it was understandable that the mother would be unhappy were she not permitted to relocate and share her life with her partner. He also conceded that expert evidence as to this was not required. However, counsel maintained that there was no evidence to support an inference that the mother’s unhappiness would be so profound as to adversely affect or impact on her parenting capacity or on the children.
Counsel for the father referred to the Family Report, where it was recorded that there were no issues as to the mother’s mental health (at Appeal Book 334, paragraph 13) and that the Family Consultant did not raise any concerns as to the mother’s parenting capacity. It was submitted that the Family Report in fact pointed away from any adverse impact on the children, in that it was recorded that neither parent held any concerns regarding the children’s health or development (Appeal Book 338, paragraph 32).
Counsel for the father relied on the decision of Taylor and Barker (2007) FLC 93-345 in support of his argument as to the lack of evidence, and in particular the dissenting opinion of Faulks DCJ. In Taylor and Barker (supra), at first instance, the Federal Magistrate had observed:
50. …by far the most significant matter in the mother’s case however concerns her happiness and contentment. She is in love with [Mr B] and wants to marry him. She wants to share her life with him. She has a child by him and wants to share the joys of parenthood with him. I imagine she sees him as her chance of future happiness. The corollary of this is that I infer that, were she forced to remain in Canberra without [Mr B], she would be unhappy and resentful. To a significant degree the happiness and contentment of [the child] depends on the happiness and contentment of his mother.
…
52. … I regard the issue of her happiness and contentment, and the corollary of her being unhappy, discontented and resentful if she were prevented form relocating, as being of more significance in all the circumstances than [the child’s] continuing to see a great deal of his father and extended family and the other matters to which I have averted.
On appeal, the majority, Bryant CJ and Finn J, said with respect to the complaint that the Federal Magistrate’s findings as to the mother’s unhappiness were based on speculation, rather than evidence (at 81,920):
109. Happiness is a state of mind to be inferred from evidence. The terms “happiness” and “contentment” were his Honour’s conclusions as to the state of the mother’s mind, being reasonable inferences which could be drawn from the findings which he made in paragraph 50 of his reasons for judgment.
§She is in love with Mr [B] and wants to marry him.
§She wants to share her life with him.
§She has a child by him and wants to share the joys of parenthood with him.
…
111. … The factual matrix in which his Honour’s conclusions were reached, namely that the mother had a child and wished to marry the father of that child and live with him and both children in a family unit, was an important background.
Faulks DCJ disagreed with their Honours’ conclusion on this issue, deciding that on the evidence the Federal Magistrate was not entitled to reach the conclusion he did. In discussing this issue, his Honour observed (at 81,923):
123.   In an appropriate case with adequate evidence to support it, I do not doubt that such factors may be determinative of whether it would be in a child’s best interests to relocate with a parent. It even may be that if all appropriate evidence had been given in this matter the conclusion would be justified. ..
…
126.   It is perhaps reasonable to infer as his Honour did that if a parent wishing to relocate has fallen in love with someone, and wants to share his or her life with that person and either shares having a child with that person or even wants to do so, that not being able to do so would make the person unhappy (indeed that is the conclusion their Honours the Chief Justice and Finn J reached). If that were enough it seems to me that there would be very few applications for relocation which would not succeed.
127.   The Act does not prescribe parental “happiness” as such, as a factor in determining the best interests of a child. It could be said that the point is so obvious that it does not need legislative prescription. However, the happiness of one parent is not necessarily the happiness of the other and in relocation cases it would be rare for the two to coincide. It is possibly reasonable to infer that the unhappiness of one parent may impact on a child who is with that parent and even more so if the child is more closely associated with that parent or perhaps more closely attached to him or her. It may be that evidence in the form of an expert opinion based on observation and fact rather than conjecture may establish the veracity of such an inference in an appropriate case.
128.   It is another thing in my opinion to elevate an inference, not directly supported by evidence, to the conclusive factor in preferring the new family of the parent proposing to relocate to the relationship between the child and his or her other parent.
The father’s counsel also relied on the decision of McCall & Clark (2009) FLC 93-405, where the Full Court likewise considered whether the Federal Magistrate had erred in reaching conclusions not supported by any or any sufficient evidence that the mother’s quality of parenting would be compromised or adversely impacted. The Full Court there said:
131. In his written submissions in support of ground 4 the father's senior counsel noted that the mother “did not adduce any kind of expert evidence in her case”. He further submitted “that there is a fundamental difference between a particular state of being in a parent and a state of being which compromises parenting capacity or results in an impact upon a child of the parents’ capacity to provide appropriate parenting” (father's submissions, para 5.2, p 10). He further submitted that “absent some cogent evidence the finding referred to was entirely speculative and amounted to appealable error” (father's submissions, para 5.3, p10).
132. The mother's counsel relied on the judgment of Kirby J in AMS v AIF at paragraph 145 where his Honour said:
One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected. [footnotes omitted]
133. We do not consider that the passage from Kirby J's judgment goes as far as supporting a proposition that the Federal Magistrate was entitled on the mother's evidence, and absent any expert evidence, to find that the mother's quality of parenting would be so compromised or adversely impacted because she may be required to live in Australia, that it would impact on the child.
134. We accept the Federal Magistrate was entitled to take into account the mother's statements that she suffered embarrassment about the father's rejection of their marriage plans, although it was not clear whether that embarrassment would impact on her if the father moved to, or visited, Dubai. He was also entitled to take into account that the mother lacked family support…
135. We accept that the availability of family support including such things as reliable quality child care, financial assistance, and emotional support for a parent and a child, can be very important considerations in any parenting case particularly one involving relocation, and are all matters to be balanced and weighed when considering competing proposals. But those factors, or a lack of them, do not automatically support a finding that a party's parenting capacity will be compromised particularly when they may be counterbalanced, at least in part, by other benefits, including the sharing of day to day care of a child.
It was contended on behalf of the father that the evidence that satisfied the majority in Taylor and Barker (supra) that the inferences were open to the Federal Magistrate in that case, is absent in this case and that it was thus not open for the Federal Magistrate to make the findings that he did. He said that in this regard the evidence in this case was more like the evidence in McCall & Clark (supra).
However, we do not consider that these cases assist the mother here. It is perhaps a truism, but each case is different, and in relation to this issue, each case turns on its own facts. Here, we consider that the evidence that we have been referred to is sufficient to support the findings of the Federal Magistrate as to the impact of the mother’s unhappiness on the children. There was clear unchallenged evidence on this topic. However, on a comparative basis, it is only just sufficient and should be viewed as being at the bottom end of the scale.
In any event the complaint that the conclusions of the Federal Magistrate that the mother would be unhappy, bitter and resentful if not permitted to relocate and that this would impact on her parenting capacity and on the children were not consistent with the evidence is therefore without merit.

Grounds 1 and 9

Grounds 1 and 9 essentially challenge the adequacy of the trial judge’s reasons.
There is an obligation upon a judicial officer to provide adequate reasons for his or her decision. The law with respect to the need to provide adequate reasons is well settled.
In Bennett and Bennett (1991) FLC 92-191, the Full Court stated at 78,266:
In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:
‘The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: —
(a) the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.’
We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments.

Their Honours went on to say at 78,267:
At the very least the failure to give adequate reasons places a duty on an appellate court to scrutinise the decision with particular care.
In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge's discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.
We stress that we are not suggesting that reasons must be extensive. Their adequacy must frequently be judged by reference to the issues raised by the parties at trial.
…
The important thing is that the appellate court must be placed in the position of being able to follow the trial Judge's line of reasoning, as must the parties, if they are to be satisfied that justice has been done.
In support of grounds 1 and 9, it was submitted on behalf of the father that the Federal Magistrate put “two matters into the balance”, namely on the one hand, that he could make an order allowing the father to spend substantial and significant time with the children, which his Honour determined would preclude relocation, or on the other hand his Honour could make an order permitting the relocation because the mother would be “disappointed” if she were not able to relocate and this may impact upon the children.
It was submitted that the “speculation” that the mother would become embittered “moved to a finding that this would become so in circumstances where” there is no evidence to support such a finding.
We have of course now dealt with the complaint of insufficient evidence to support the findings and rejected it. It is contended though that there was no “forensic justification” for the Federal Magistrate’s conclusion that the advantages of permitting relocation outweighed the advantages of the children remaining in the Wollongong area. Indeed, counsel for the father says that the Federal Magistrate himself acknowledged this at paragraph 56 where his Honour said:
56. I am aware that I am enjoined by the Full Court in A v A to “explain how matters balance out.” With respect to the Full Court that is easier said than done. Unfortunately the exercise is not an empirical science. I have said how, in my judgment, matters balance out but I have not explained it. In the High Court relocation case of AMS v AIF (1999) FLC 92-852 Kirby J said that in such cases there is a “large element of judgment, discretion and intuition …….involved”. That is the position in which I find myself here.
Counsel submitted that his Honour thus understood that he had not explained his reasons for concluding that relocation was in the children’s best interests, but he still did not proceed to do so. Counsel contended that it was not sufficient for his Honour to justify the asserted lack of explanation on the basis that there is judgment, discretion and intuition involved in the decision.
We do not consider that counsel for the father has established that his Honour failed to adequately explain his reasons, either in relation to his Honour’s finding that the advantages of relocation outweighed the advantages of the mother and children remaining in the Wollongong area, or more generally.
After discussing the relevant provisions of s 60CC with respect to the best interests of the children, and recording that the parties were in agreement that an order for shared parental responsibility was to be made, his Honour turned to discuss whether it was in the children’s best interests and reasonably practicable for the children to spend equal time with their parents. In this context, his Honour outlined those factors pointing to such an arrangement being in the children’s best interests, and those which went against such an arrangement, ultimately concluding (at paragraph 47) after consideration of these matters that a shared or equal time arrangement was not in the children’s best interests and that it was in the children’s best interests to be in the primary care of their mother. His Honour acknowledged that in his discussion he had “somewhat synthesised” the consideration of best interests and reasonably practicability, although they are distinct concepts in s 65DAA. Nonetheless, it is possible to discern and follow the Federal Magistrate’s consideration of reasonable practicability (see for example paragraph 8 – 12 and 43).
His Honour then addressed whether it was in the children’s best interests and reasonably practicable to spend substantial and significant time with each parent, and in this context the advantages and disadvantages involved with the mother’s relocation proposal. Again, after considering the advantages and disadvantages, his Honour concluded that the advantages of relocation outweighed the advantages of the children remaining in the Wollongong area (at paragraph 55)
His Honour did say (in paragraph 56) that although he indicated “how matters balance out”, he did not explain it. He suggested that in making this finding, he very much relied on his “judgment”, “discretion” and “intuition”. Nevertheless, the enquiry is whether his Honour’s judicial reasoning process has been adequately revealed, and taking his Honour’s reasons as a whole we consider that this test is satisfied. As Coleman J recently observed in Wen & Thom [2010] FamCAFC 81 with respect to adequacy of reasons:
57. As the authorities make clear, there is no absolute standard by which the adequacy of judicial reasons can be gauged. The authorities suggest that the essential requirement is that judicial reasons reveal why a case was decided the way it was. How much needs to be said for that requirement to be met will vary from case to case in the light of the issues raised which require adjudication. In many cases, very little will need to be said whilst in other cases a good deal of the reasoning process which leads to the ultimate decision will need to be revealed.
On this basis we find no merit in these grounds of appeal

Grounds 4, 5 and 6

It was conceded by both counsel that these grounds can conveniently be dealt with together.
By these grounds the father complains that the Federal Magistrate erred in his determination that equal time was not in the best interests of the children and he did not give “proper” consideration to the children spending substantial and significant time with both parents.
His Honour outlined why he determined equal time was not in the children’s best interests at paragraphs 41 to 47 of his reasons. His Honour acknowledged at paragraph 48 that in his analysis he had:
…somewhat synthesised the “best interests” criterion and the “reasonably practicable” criterion in the above analysis. One of the matters to be considered in determining if a shared arrangement is reasonably practicable is the capacity of the parents to communicate with each other. Whilst the “best interests” and the “reasonably practicable” criteria are dealt with in separate subsections within s.65DAA they are inextricably linked in many cases. This is such a case and it is convenient to deal with them together.
It is to be noted that his Honour also addressed the issue of reasonable practicability at paragraphs 8 to 12 of the judgment, where his Honour reached his conclusions that it was unreasonable in the circumstances for the children to spend time with the father on weekends and mid-week if relocation occurred, and for either the father or Mr R to relocate.
In support of his challenge with respect to the findings as to equal time, the father’s counsel referred to the equal time arrangement which had been in place since the orders made in November 2007, and which the father contended had been successful. It was the father’s position that it was the parties’ separation which brought about the changes to the children’s care, rather than the November 2007 order itself.
In addition, the father complained that the Federal Magistrate failed to support his conclusion that he was “not confident” that the shared care arrangement, which had been in place for the previous two years, would be workable in the long term.
In her written outline the mother’s senior counsel challenged the father’s assertion that the arrangement since November 2007 had in fact been successful. She referred to evidence contained in the mother’s affidavits regarding the communication difficulties between the parties, and the distress of the children at being away from the mother. It is quite apparent that this evidence was largely unchallenged at trial. Further, the father conceded in his oral evidence that there had been “very little communication lately” between the parties (at Appeal Book 354), that the parties did not communicate easily (at Appeal Book356), and that the mother was in tears quite often at changeovers (at Appeal Book 377). Finally, in the Family Report at paragraph 38 the Family Consultant recommended:
… That Ms [Noble], as the non-working parent, should have the children for more time than their father who is currently relying on his own mother to come from Melbourne and care for the girls during, at least some of the time the girls live with him.
It was clearly open to the Federal Magistrate on this evidence to conclude that the parties did not have a good relationship and did not communicate freely. Such a finding supports his Honour’s comment at paragraph 43 that he was not confident a shared care arrangement would be workable in the long term.
The father also complained that the Federal Magistrate placed excessive weight on the father’s objection to the mother travelling to Melbourne with the children. It can be seen from his Honour’s reasons at paragraph 44 that the Federal Magistrate was not merely taking into account the father’s objection to such travel, but rather the attitude of the father, which his Honour considered to be at times “unreasonably directive”, an example of which was the father’s objection to the mother travelling to Victoria with the children without his consent. Thus we do not accept that his Honour placed excessive weight on this circumstance in determining whether an equal time arrangement was in the children’s best interests.
This disposes of the father’s complaints as raised by grounds 5 and 6. It was, however, again raised in the context of these grounds that the Federal Magistrate had not sufficiently reasoned why the shared care (or equal time) regime should not continue. Counsel for the father contended that the Federal Magistrate’s reasons with respect to whether equal time was in the children’s best interests were too frailly based to be proper findings. We have referred to his Honour’s reasons where he addresses this issue (paragraph 41-47) and to the evidence that supported his Honour’s findings, and we consider that the path that his Honour took is readily discernable and soundly based.
With respect to ground 4 and the consideration of substantial and significant time, reliance was placed on comments made by the Federal Magistrate in favour of the implementation of substantial and significant time. Firstly, there was the comment that it was in the children’s best interests to have “as close a relationship as possible with their father and alternate weekend and some midweek contact would have promoted that relationship” (at paragraph 51). Secondly, there was the comment that the Federal Magistrate would have made orders for weekend and for some mid-week contact which would have satisfied the definition of substantial and significant time with the father if relocation was precluded (at paragraph 49).
His Honour determined that it was in the best interests of the children for them to be in the primary care of the mother. His Honour clearly acknowledged that if the children remained in the Wollongong area they would be able to have a closer relationship with their father than if they relocated, and that if relocation was not permitted, it was appropriate for them to spend substantial and significant time with their father.
However, after weighing the advantages and disadvantages of the proposals, it was his Honour’s ultimate determination that the advantages of relocation with the mother outweighed the advantages of staying in the Wollongong area, which would have allowed the children to spend substantial and significant time with their father. Given we have concluded that his Honour did not err with respect to his findings regarding the mother’s unhappiness and the likely effect of this on the children, it was open for his Honour to reach such a conclusion.
If relocation was permitted, substantial and significant time was not reasonably practicable given the distance and difficulties involved with travel as identified by his Honour (at paragraphs 8, 28 and 57). As such, an order providing for substantial and significant time was not reasonably practicable.
Thus grounds 4, 5 and 6 have no merit and must fail.

Ground 2

The father complains that the Federal Magistrate erred in preferring the interests of the mother’s partner over those of the father and the children. The Federal Magistrate’s discussion of this issue is found at paragraph 12:
12. Mr [R] is employed as a fire alarm technician and those qualifications are portable. I work on the assumption that it is likely that he could obtain employment were he to relocate to the Wollongong area. However, he has two children aged eight and five. He and his mother [sic] separated about the same time as the father discovered the relationship between Mr [R] and the mother. At the time Mr [R] and his mother [sic] were living in [A] in north east Victoria near [G]. He moved to the Melbourne area on separation. However, he is still able to see his children each alternate weekend. It is not necessary to describe the logistics by which this is achieved. Were he to relocate to the Wollongong area weekend contact would be completely impractical and contact would of course be confined to school holidays. It is therefore unreasonable to expect him to relocate.
It is clear from his Honour’s reasons that he did not conclude, as asserted by the father’s ground of appeal, that Mr R could relocate to the Wollongong area, but rather that it was likely he would be able to obtain employment in the event he did relocate. There is no challenge to the Federal Magistrate’s factual findings regarding Mr R’s ability to relocate.
Counsel for the father, whilst conceding the factual findings made with respect to Mr R and that it was open for the Federal Magistrate to find that it was not reasonable for either the father or Mr R to relocate, submitted that the Federal Magistrate overvalued both the relationship between the mother and Mr R and the relationship between Mr R and his children, and that his Honour elevated the relationship between Mr R and his children over the father’s relationship with his children.
The Federal Magistrate discussed the possibility and practicability of Mr R relocating in the context of outlining the options and difficulties associated with the parties’ proposals. In this context, his Honour found that it was impractical and unreasonable for the father to relocate due to his work on the one hand, and on the other hand that it was unreasonable to expect Mr R to relocate given the arrangements he has in place for spending time with his own children in Victoria.
Mr R’s ability to relocate was just one of a number of matters relevant to the determination of the mother’s application. We do not accept that in discussing the options and concluding Mr R was not able to relocate that the Federal Magistrate elevated the relationship of Mr R and his children above the relationship of the father and the children. Thus, we consider there is no merit in this ground.

Ground 3

By this ground the father asserts that the Federal Magistrate failed to apply or properly apply the guidelines set out by the Full Court in A v A: Relocation Approach (2000) FLC 93-035.
At the hearing of the appeal, counsel for the father clarified that this ground was in fact quite narrow, and that the father was challenging the sufficiency of the Federal Magistrate’s reasons. Counsel for the father referred to the need to explain “matters of weight” as outlined by the Full Court in A v A: Relocation Approach (supra). The challenge to the adequacy of reasons has been discussed above in relation to grounds 1 and 9, and we do not propose to revisit that.
With respect to the guidelines in A v A: Relocation Approach (supra), the appropriateness of these guidelines in light of the amendments to the Act introduced in 2006 was not the subject of substantial argument before us, although at first blush this issue is raised by this ground of appeal. For our part we are concerned that this decision is still being referred to given that since then the Act has been substantially amended via the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), and there have been a number of significant decisions of the Full Court addressing the issue of relocation since those amendments commenced on 1 July 2006. We refer to decisions such as Taylor and Barker (supra), Sealey & Archer [2008] FamCAFC 142, Starr & Duggan [2009] FamCAFC 115, and McCall & Clark (supra). Of course, the Federal Magistrate here had regard to and followed the legislative path now contained in the Family Law Act as amended, but it seems to us that rather than refer to and rely on a decision of the Full Court from prior to the amendments it would have been more relevant for the Federal Magistrate to have had regard to the guidelines and principles emanating from the subsequent Full Court decisions.
That is not to say though that as a result the Federal Magistrate fell into appellable error. Indeed, we find that there is no merit in this ground of appeal.

Conclusion

No ground of appeal having been made out the father’s appeal will be dismissed.
Following the hearing of this appeal the High Court published its reasons for judgment in MRR v GR [2010] HCA 4. We do not consider that that decision raised any issues necessitating further submissions to be sought from the parties given the nature of the appeal and the submissions already made on behalf of the parties. The decision does however reinforce our earlier suggestion that A v A: Relocation Approach (supra) no longer reflects the law.

Costs

At the conclusion of the hearing before us submissions were sought from the parties in relation to the costs of the appeal.
Counsel for the father indicated that in the event the appeal was not successful, it was nonetheless not an unreasonable appeal and on that basis there should be no order for costs against the father.
Senior counsel for the mother sought costs against the father in the event the appeal was unsuccessful. We note that the father conceded that he was in a better financial position than the mother and did not seek to avoid an order for costs on the basis of financial circumstances.
The appeal was wholly unsuccessful and we consider that there should be an order for costs in favour of the mother.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 21 June 2010