Holzmann & Holzmann - [2018] FamCAFC 2

FAMILY COURT OF AUSTRALIA

HOLZMANN & HOLZMANN

[2018] FamCAFC 2

FAMILY LAW – APPEAL – CHILDREN – With whom a child spends time – Relocation – Where the respondent was allowed to relocate from the Northern Territory to Western Australia – Appellant asserted the primary judge failed to consider the children spending equal time or significant and substantial time with each parent – Appellant’s proposal for equal time not strongly pressed – Held the primary judge appropriately considered the equal time proposal and substantial and significant time – Held the primary judge’s finding that the respondent’s unhappiness would adversely affect the children was open on the evidence – Appeal dismissed – Appellant to pay the respondent’s costs.

Family Law Act 1975 (Cth) s 65DAA

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
MRR v GR (2010) 240 CLR 461
SCVG & KLD (2014) FLC 93-582

APPELLANT:

Mr Holzmann

RESPONDENT:

Ms Holzmann

FILE NUMBER:

DNC

147

2015

APPEAL NUMBER:

2017

DATE DELIVERED:

11 January 2018

PLACE DELIVERED:

Perth

PLACE HEARD:

Brisbane

JUDGMENT OF:

Thackray, Strickland & Carew JJ

HEARING DATE:

16 November 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

14 July 2017

LOWER COURT MNC:

[2017] FCCA 1639

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Shoebridge

SOLICITOR FOR THE APPELLANT:

Terrill & Associates

COUNSEL FOR THE RESPONDENT:

Mr Mort

SOLICITOR FOR THE RESPONDENT:

Darwin Family Law

Orders

The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal, to be assessed if not agreed.

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 Holzmann & Holzmann 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 BRISBANE

Appeal Number: NA 37 of 2017
File Number: DNC 147 of 2015

Mr Holzmann

Appellant

And

Ms Holzmann

Respondent

REASONS FOR JUDGMENT

The father appeals against orders made by Judge Young in July 2017 allowing the mother to relocate the parties’ children from Darwin to Town A in January 2018. The orders otherwise provide for the parents to share parental responsibility equally and for the father to spend time with the children during school holidays and at other times if he travels to Western Australia.

Background

The parties met in 2005 in Town A, where the mother was born and raised, and where she has a large extended family. In 2006, they moved to Darwin, where some of the father’s family live, and where he now operates a business.
The mother and father married in 2008. There are two children of their marriage: X, born in August 2009 and Y, born in March 2013.
The parties separated in 2013 when the father left the family home. At the time, Y was a baby and X was about four. The mother continued to reside in Darwin and remained the children’s primary carer. She has not re‑partnered, whereas the father commenced a relationship with another woman in 2015 and they continue to reside together with her three children.
The mother received the family home as part of the property settlement agreed upon in 2015. She then promptly sold it and acquired a home in Town A in early 2016.
In February 2016 the mother took the children to Town A without consultation with the father, which prompted the father to commence proceedings for a recovery order and an order that the children live with him. In response, the mother sought permission to relocate to Town A, although she agreed that the children would return to Darwin with her pending trial.
Interim consent orders were made in February 2016 providing for the children to spend a total of five nights each fortnight with the father. This lasted only a few weeks before the parties agreed to reduce the time to four nights in one block (from after school on Friday until the start of school on Tuesday). This continued until just before the trial, when they agreed to increase the block time to five nights a fortnight (transcript, 7 December 2016, p 16, 17 and 59).
In March 2016, Mr L, a Family Consultant, provided a report to the court in which he recommended the mother remain in Darwin.
The matter proceeded to trial in the Federal Circuit Court over two days in December 2016. The judgment was delivered on 14 July 2017.

The primary judge’s reasons

The appeal is confined to two fairly narrow issues, rendering it unnecessary for us to dwell on much of his Honour’s reasons for judgment.
Importantly, his Honour found that “many of the difficulties” in the case revolve around the mother’s capacity to overcome the feelings of unhappiness and isolation she has while living in Darwin, which at times “overwhelms her capacity to focus on the children and her ability to identify what is really relevant to their welfare” (at [46] and [47]).
In a passage that is central to his reasoning his Honour held:
49.… [T]here was evidence of the mother experiencing periods of tearfulness in front of [X] and [X] being anxious about her mother. Mr [L] said that [X]’s awareness of her mother’s unhappiness, should it continue, would only become more developed as she grew older. The genuineness of the mother’s unhappiness in Darwin was not in dispute but it was asserted, by Mr [L], that it could be successfully addressed, and diminished, by counselling and greater social involvement. The father, in substance, asserted that the mother’s unhappiness was outweighed by the benefit to the children of remaining in close proximity to him and others.
50.I am not satisfied that the mother’s serious unhappiness in Darwin, which I accept is largely the result of a sense of grief and loss following the breakdown of her marriage, can be successfully addressed by counselling or greater social involvement. Although it is necessarily a speculative assessment I find on the balance of probabilities that the mother is likely to remain seriously unhappy should she continue to reside in Darwin.
51.The father’s assertion that the mother’s unhappiness is outweighed by the benefit to the children of remaining close to him as well as the mother rests on an assumption that the mother’s unhappiness will not significantly undermine her capacity as a parent, including her ability to protect the children from the consequences of witnessing her unhappiness. Again this is a speculative assessment but I find on the balance of probabilities that as the children become older they are likely to be adversely affected by witnessing their mother’s unhappiness. There is already evidence that [X] is anxious because of her mother’s unhappiness.
After describing the “legislative pathway”, his Honour said:
68.In determining what is in the children’s best interests in this case it is necessary for the court to consider as a primary consideration the benefit to the children of having a meaningful relationship with both of their parents. As the case law referred to above demonstrates this does not mean that it is obligatory to make orders that make for the “optimal” or best possible relationship between the children and each of the parents. In this case I have no doubt that it is in the children’s best interests that they have a meaningful relationship with their father as much as their mother. In the circumstances of this case where there is a danger that [Y]’s attachment to the father may not endure relocation to Western Australia the primary consideration of a meaningful relationship with both of the children’s parents in determining the children’s best interests might mean that the mother should not be permitted to relocate with the children or should be permitted to relocate only at a later time. On the other hand, if there is a danger that the parenting capacity of the mother as primary carer, particularly her ability to protect the children from anxiety and concern about her sadness and loneliness, is compromised that may not be in the best interests of the children.
Having thus described the dilemma, his Honour said:
76.… In broad terms each of the children’s parents have the capacity to provide for the needs of the children, including their emotional and intellectual needs. Both parents are competent and are usually able to effectively cooperate with each other to advance the children’s best interests. However, there is real doubt about the mother’s capacity to deal with her deep sense of unhappiness and isolation living in Darwin. As noted above, the parents and Mr [L] have expressed concern about the mother’s tearfulness in front of [X] and [X]’s anxiety about and growing awareness of her mother’s unhappiness. If the mother remains in Darwin and her deep unhappiness continues then the children are likely to be adversely affected although it is not possible to say in precisely what way.
His Honour concluded with the following crucial findings:
84.Both parties proposed that there be equal shared parental responsibility and I am satisfied that it is in the best interests of the children for the parents to have equal shared parental responsibility.
85.Consequently it is necessary to consider the provisions of section 65DAA.
86.Neither party suggested that there ought to be an immediate order for equal time although the father proposes that there be an order for equal time in the future.
87.Because I do not propose to make an order for equal time it is necessary to consider the provisions of section 65DAA(2). The correct approach is to consider whether spending substantial and significant time with each of the parents would be in the best interests of the children and, if so satisfied, to then consider whether the children spending substantial and significant time with each of the parents is reasonably practicable: MRR v GR [(2010) 240 CLR 461].
88.Subject to the matters to be discussed below, I am satisfied that it would be desirable for the children to spend substantial and significant time with the father. That would constitute a continuation of existing arrangements.
89.Since such parenting will be possible only if the mother remains in Darwin it is necessary that I consider the circumstances of the parties, particularly those of the mother, to determine if the arrangement is reasonably practicable [MRR v GR at [15]]. In determining whether it is reasonably practicable the court must have regard to the factors set out in subsection 65DAA(6) including how far apart the parents live from each other, their current and future capacity to implement the arrangements, their current and future capacity to communicate with each other to resolve difficulties, the impact of the arrangement on the children and other relevant matters.
90.An arrangement for substantial and significant time is possible only if the parties continue to live in Darwin. The question of the parents’ current and future capacity to implement the arrangement depends critically on the whether the mother’s present unhappiness is likely to continue in the long term and whether it is likely to adversely affect the children in a way that leads to a conclusion that it is not in their best interests that she remain living in Darwin.
91.For the reasons I have given above I have found that the mother is likely to remain seriously unhappy should she continue to reside in Darwin. I am not satisfied that her serious unhappiness will be adequately ameliorated by counselling or other means. I have found that as the children become older they are likely to be adversely affected by witnessing their mother’s unhappiness. I find that the need to safeguard the mother’s parenting capacity as primary carer outweighs the desirability of the children remaining in Darwin close to the father. Accordingly, I find that continuation of the existing arrangements is not reasonably practicable. I find that it is in the best interests of the children that the mother be permitted to relocate to [Town A] with the children. I find that the risks to [Y]’s enduring attachment to her father can be ameliorated, although not removed, by not permitting the mother’s relocation to [Town A] until January 2018.

Grounds 1 and 2 – failure to consider equal time

Grounds 1 and 2, which were argued together, assert that the primary judge:
· erred in that, having found that the parties should have equal shared parental responsibility, failed to give proper consideration to the children spending equal time between the parties, or significant and substantial time.
· failed to give any or any proper reason for his decision not to consider making an order for equal time.
When describing the “legislative pathway”, his Honour identified the key statutory provisions, including s 65DAA of the Family Law Act 1975 (Cth), which provides that if an order is to be made for equal shared parental responsibility then the court must consider whether the children spending equal time, or failing that, substantial and significant time with each of their parents would be in their best interests and reasonably practicable – and if both conditions are satisfied, to consider making an order for equal time or, failing that, substantial and significant time.
His Honour noted that the father’s position “was that if the mother remained living in Darwin the children should live with the mother under existing arrangements and moving towards an equal time arrangement in 2018” (at [13]). This was touched on again at [86], which we recited earlier.
The father’s formal position recorded at [13] and [86] stands to be considered in this appeal in light of the following finding:
61.The competing proposals were, for the father, that the mother and the children remain living in Darwin and, for the mother, that she and the children be permitted to relocate to [Town A]. The father sought, as an alternative in the event that the mother relocated, that the children live with him. However, he did not seriously argue in the conduct of his case that the primary care of the children should be transferred to him and did not challenge that the mother was a satisfactory primary carer.
(emphasis added)
Given that the thrust of the argument on appeal related to the father’s concern about the short shrift given to his application for an equal time arrangement, it is instructive to consider the way in which that proposal emerged.
It was accepted that the mother had always been the children’s primary carer. Thus, while his Honour found that the father had “rearranged his priorities” and was now available to be with the children on the weekends, he also referred to this evidence in the father’s affidavit of June 2015 (at [16]):
I have always worked very long hours at least 50 hours per week but mostly 70 hours per week, including shiftwork and on weekends. I have always been on 24 hour call since moving to Darwin both working for myself and as an employee.
Following the separation, informal arrangements were made by the parties regarding the children, which involved the mother continuing as their primary carer. The father’s application that the children live with him was made only in response to her removal of the children to Town A. Having commenced proceedings, the father promptly agreed to an order for the children to live with the mother nine nights a fortnight, and shortly thereafter agreed to this being increased to 10 nights a fortnight – an arrangement which remained in place until the eve of the trial.
The Family Consultant’s report recorded at [15] that while the father had sought that the children live with him, “in interview the father reported that it was not his intention to take the children from the mother but said that he wanted the children to continue to live with the mother in Darwin”.
The Family Consultant went on to say:
38.In discussing future parenting arrangements [the father] reported that he wanted the children to remain living in Darwin so that he could continue to be an active and positive presence in their life. He believed that if the mother needed “to get herself right” by living in [Town A] then she should go to [Town A] and leave the children in his care until such time as she was able to resume the primary care of the children in Darwin. He emphasized that he did not want to remove the children from the care of the mother and was content for the children to remain living primarily with her, but he believed that removing the children from him and his family was not an option likely to promote the best interests of the children in the long term.
In view of these statements, Mr L was correct in framing the dispute in these terms:
19.The primary issue for the Court to determine is whether it would be in the best interests of the children for them to live with the mother in [Town A] where the mother has family support, or whether it would be preferable for them to remain living in Darwin so as to be able to spend substantial and significant time with their father and his family.
The father’s trial affidavit was filed on 7 October 2016, two months before trial. Nothing was said in that document to indicate any departure from what the father had said when he met with Mr L in March 2016. Further, the affidavit did not set out any arrangements for the children if they were to live with the father in a week-about arrangement (remembering at that time they were with him on only one full weekday a fortnight during school terms).
It was not until the father filed a Minute on 18 October 2016 that he sought an order for equal time commencing in 2018. He explained the late change in the following passage of cross examination, which appears to be one of only two mentions of the equal time scenario in the entire transcript (bolded emphasis added):
[Counsel for the mother] … The guts of it really is paragraph 5, where you say until the commencement of school in 2018 you have this five night block that you’ve been having, or started to have?---Yes.
Half the holidays in the even years and half in odd years?---Yes.
And the balance of the holidays shared equally. You see that?---Yes.
And then in 2018:
Child spend equal time.
That’s week-about rotation. Do you see that?---Yes.
That’s the first time – it’s the first time you’ve ever sought equal time in any of your documents. That’s right, isn’t it?---Yes.
Yes. Why is that?---Because at that time [Y] will be in full-time school and she will be at an age – I’ve actually asked for school – but I haven’t pushed it, because [the mother] is under the impression that [Y] is too young, so we haven’t gone there.
Yes. You read Mr [L]’s report, did you?---I did.
All right. That’s not something he recommends, is it?---I can’t recall.
All right. So if you look at – just for a minute, look at the second proposal where you say if the children are allowed to relocate – have you got that in front of you?---Yes.
All right. And, again, paragraph 5 has the – it gets to the main issue. It says that the children – until [Y] can travel unaccompanied 10 days in each of the Western Australian school holidays. And then we’ve got half of the school holidays in Christmas, first half/second half. And then you go into the flight details and the like. You also say that – we will come to it in a second – but you also say that if you’re in Perth or [Town A], for that matter, you would spend some time with the children there. Do you see that?---Yeah.
All right. And you think they’re fair proposals … ?---Well, it’s very difficult because – I mean, obviously, this is not my preferred outcome, but it’s very difficult to work in with the opposite of school holidays here.
Sure. But you’re preferred outcome, of course, is the mother stay in Darwin?---Correct.
Because I’ve looked at all your materials and you seem to be saying – correct me if I’m wrong – if the mother stays in Darwin you’re happy for her to be primary carer, at least, up until 2018, it seems, now, where it’s a week-about scenario. Yes?---Yeah, correct.
All right. So what I would suggest to you – you would have – without going into conversations with you – what happened with your solicitor – you would have thought really hard about these proposals and you would have instructed your solicitor, of course, to put these forward as what you consider in the best interests of the children. Yes?---Mmm.
All right?---Obviously this one being the last resort, which I don’t – we had to put it in, though.
No, I’m talking about proposals: talking about – you’ve got one proposal. The proposal we’re all here for today as far as your case is concerned that the mother stays in Darwin with the children. You have your five night block?---More so the children stay.
(Transcript, 7 December 2016, p 19–20)

The only other mention of equal time in the transcript came at the tail end of Mr L’s cross-examination by counsel for the mother (emphasis added):
[Counsel for the mother] … Just one thing before I take a seat, I notice in your report there’s a recommendation in terms of reverting back to the February orders on the basis the mother remains in Darwin, yes?---Yes. That is correct.
Yes. And I – look, I realise, Mr [L], that you weren’t aware of the consent arrangements the parents have entered into. You would have no issue with a block period of time, would you?---No. I would have no issue with that at all.
No. And there’s no preference for four or five nights, is there?---I would prefer the five – five blocks - - -
Sure?--- - - - a five night block if the children are continuing to spend time here in Darwin with the father.
Sure. Why’s that?---I – because I’ve – I’ve assessed the father’s relationship with the children as being extremely positive, the children value the opportunity and I think five nights probably reflects a – a good working arrangement.
Okay. And one of the – we’re getting back to speculation I suppose again – but one of the father’s proposals is that the children reside with him on a week about basis in – well, I think it’s once [Y] starts school; is that right?
…
2018. That’s what he has putting [sic] forward. But I notice in your report – again, no criticism – that that’s not something – maybe I should withdraw this, but it seems that you didn’t turn your mind to a shared care arrangement, an equal time shared care arrangement; is that right?---No. I did not. Nobody was proposing equal time at that stage.
Right. And again, in terms of how the children are professing [sic] at that time, you would say something along the lines of what you said before about speculation; is that right?---That is correct. Yes.
(Transcript, 8 December 2016, p 118–9)
Mr L’s cross-examination by counsel for the father came straight after the above passage of cross-examination by counsel for the mother. Counsel for the father did not draw attention to the fact that his client’s proposal had recently changed, and no questions at all were asked about the desirability or otherwise of such an arrangement. In our view, if the father was genuinely pursuing his request for an equal time arrangement in 2018, it would have been expected that Mr L would be asked to express his opinion on that issue.
The closing submissions of both parties were provided in writing. The father’s submissions were almost entirely devoted to whether the mother ought to be permitted to relocate. It was only in the final paragraph that any argument was advanced about the issue of equal time. This is the sum total of the argument:
47.The Father seeks an order for equal time as of 2018. It is submitted this would make sense for the children to have this opportunity of spending slightly more time with the Father – particularly if the Court is also satisfied that the children should spend slightly more time with the Mother during school holidays to allow them to travel to [Town A] three times each year.
In his submissions on appeal, counsel for the father conceded that the argument relating to equal time was “thin”, but nevertheless submitted that “the argument was there”, and that the primary judge was obliged to turn his mind to it. We accept that his Honour was obliged to consider the argument, not only because it was presented but also because the legislation required him to “consider” equal time after he had decided to order equal shared parental responsibility.
However, as the Full Court explained in SCVG & KLD (2014) FLC 93-582, the statutory requirement is satisfied if examination of the judgment as a whole demonstrates, if necessary by inference, that equal time has been “considered”. Quite clearly the option was “considered” since the primary judge:
·    recorded at [13] and [86] that the father was seeking equal time, albeit not commencing until in 2018;
·    recorded at [58] that he was required by the legislation to consider the equal time option; and
·    indicated at [87] that he did not intend to make such an order, and that as a result it was necessary for him to consider the next step in the statutory pathway, namely the substantial and significant time scenario.
Importantly, when considering substantial and significant time, the primary judge made findings at [89]–[91] that are entirely inconsistent with any suggestion that equal time was “reasonably practicable”. If exercising substantial and significant time was not reasonably practicable, then, for precisely the same reasons, equal time was not reasonably practicable. This precluded an equal time order: MRR v GR (2010) 240 CLR 461 at [13].
We consider that the short shrift his Honour gave to the equal time proposal was warranted, given the way in which it was presented and the evidence (or lack thereof) in support of it: A v J (1995) FLC 92-619 at 82,233 referring to Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378.
In concluding that there is no merit in these grounds, we have not overlooked the argument of the father’s counsel that his Honour erred by failing to take into account that the mother may have been happier living in Darwin in the event that an order was made for the children to spend equal time with the father. The fundamental difficulty with that proposition is that it was never put to his Honour and there was no evidence at all to support such an argument.

Grounds 3 and 4 - the findings relating to the mother’s unhappiness

Grounds 3 and 4, which were also argued together, assert error by the primary judge in finding that the mother’s unhappiness, if she had to stay in Darwin, would affect her parenting and adversely affect the children. It is claimed these findings were “not consistent with the evidence before the Court”.
There was ample evidence before the Court of the mother’s long history of depression and unhappiness, including details of her treatment and medication. Her psychiatrist’s affidavit was not challenged. No challenge is made on appeal to any of his Honour’s findings about the mother’s past mental health issues. Instead, these grounds effectively seek to challenge what his Honour acknowledged were matters of “speculative assessment”. This view mirrored that of the Family Consultant who said in his report:
26.A difficulty with this case, as is often the case with relocation matters, is that the determination of this case involves a high level of speculation about future events and scenario’s [sic] that might impact upon the children’s future development and well-being.
Based upon the evidence and his own assessment of the mother in the witness box, the primary judge rejected what he called the assumption in the father’s case that the mother’s unhappiness would not “significantly undermine her capacity as a parent, including her ability to protect the children from the consequences of witnessing her unhappiness” (at [51]). In particular, his Honour’s consideration of answers given by the mother in cross-examination led him to his conclusion that at times “the mother’s own sense of unhappiness … overwhelms her capacity to focus on the children and her ability to identify what is really relevant to their welfare” (at [47]).
While conceding on appeal that the evidence established that the mother was unhappy, counsel for the father argued that the evidence did not establish that this impacted upon the mother’s ability to parent the children. We are not persuaded that there is any merit in this proposition, and indeed it seems to be contrary to much of the father’s own case at trial.
Thus, for example, the father said this in his trial affidavit about X’s awareness of his mother’s unhappiness:
68.I was at that time, and still am, very concerned for [X] in particular, mainly due to her age. I had noticed that she had become very anxious since the beginning of the year. [X]’s anxiety had gotten considerable worse [sic] over Christmas and I had noticed that she had been saying to me, more than normal, about how [the mother] cries some nights: I do not believe it is okay for such a young child to have to go through this and take on adult problems. [X] has been asking me why her mummy “is so lonely” and why no one goes to visit her but she has not been doing that so much lately.
The father went on to say:
70.I had noticed that [the mother] was neglecting herself and was not caring for herself at that time. I know that she had been drinking a lot of alcohol at night times. [The mother] has rung me when she has clearly been affected by alcohol as she has been very wound up, her words have been slurred, she repeated herself and she has been very emotional and crying …
71.In June last year [the mother’s] mother came up to Darwin for two weeks as [the mother] had alcohol issues and was not coping with the children. [The mother] improved but then went downhill again not long after and it was obvious that she had gone back to drinking again. Her mother has returned to Darwin for the same issue a couple of times since then.
After providing hearsay evidence about concerns that the mother might harm the children, the father expressed his own concerns on the topic:
78.I previously never thought that [the mother] would harm herself or the children, however, now I am not so sure as I would never have believed that she would deliberately lie to me and use deceit to take the children away, and I certainly would not have believed that [the mother] would have looked at websites dealing with mothers murdering their children. Now I do have concerns from time to time about her mental health, particularly when I get a text message from the school which says “[X] is not at school” or “[X] is absent” and that worries me and I have thoughts that something could be wrong with [the mother].
In the previous paragraph of his affidavit, the father even gave evidence that on one occasion the mother was “so depressed she forgot that she had left the family dog in her car, and so it died from heat exhaustion”.
In the course of cross-examination, the father also mentioned the impact of the mother’s unhappiness on X:
[Counsel for the mother] … And you, yourself, in the materials indicate that – well, I will withdraw that, your Honour. But it’s indicated in the materials that [X] is becoming aware of her mother’s unhappiness; is that right?---She had been, yes.
Yes. And that’s – that it’s fair to say that that’s having a negative impact on the child?---Yes.
(Transcript, 7 December 2016, p 30)
The Family Consultant also reported on his own discussions with X:
68.… [X] referred to her mother as tearful and sad at times as no one came to visit her and she was on her own. She contrasted this with her father’s situation noting the presence of [the father’s partner] and her children and many visitors to the family home.
69.[X]’s awareness of her mother’s loneliness and depressed mood has been commented upon by all the adults as a significant point of concern. The parents and [the father’s partner] are well aware of the burden of worry that [X] carries in relation to her mother’s unhappy and lonely state. They all view this as something that needs to be addressed due to the anxiety that this provokes in [X].
The Family Consultant had earlier referred to the father’s concerns on this topic as appears from the following paragraphs of his report:
31.[The father] expressed concern about the mother’s mental health and its impact upon the children. He described [X] as becoming increasingly aware of the mother’s unhappiness and her lack of friends in Darwin, stating that she contrasted her experience of spending time with him and a high level of social activity with that of being in her mother’s home where there were very few visitors and social activity was very limited. He expressed concern about the impact of this upon [X] who had witnessed her mother’s sadness and tears at times. He said that he had spoken to the mother about the impact of her depressed mood upon [X] and said that he was fearful that the mother’s mental health was causing [X] to be anxious and worried.
The Family Consultant was questioned at trial about this part of his report:
[Counsel for the mother] … You report at – yes – paragraph 31:
...express concern about the mother’s mental health, its impact upon the children ..... [X] has becoming [sic] increasingly aware of the mother’s unhappiness and her lack of friends in Darwin, stating she contrasted her experience of spending time with him, a high level of social activity, with that being in her mother’s home where there were very few visitors and social activity was limited.
It certainly – it’s certainly difficult for a child, isn’t it, to observe a parent that she loves obviously as being upset as the mother appears to be from time to time?---It is certainly difficult for any child in that situation.
Yes. And that upset and distress being related to probably a number of things, but one of them of course being her craving for emotional and physical support from family and friends, yes?---The mother’s craving, yes. I understand that.
Yes. And is that awareness from [X] – is that a thing that as she’s getting older it becomes more and more apparent to the child? Is that a normal developmental- - -?---It is a normal developmental process, that she has become more attuned to adult emotions and what’s happening between adults. She appreciates the contrast between being with her father and being with her mother and the different circumstances.
And certainly to state the obvious, it’s not a positive thing for that child, is it?---It’s not a positive thing for any child to see a parent distressed and - - -
No?--- - - - feel as though that they’re unable to assist or help them.
Yes. And unless the mother is unable to adapt to her current environment it’s highly likely, isn’t it, that [X] is going to become more and more attuned to her mother’s situation?---She is attuned to her mother’s situation already.
But more so?---She may well become more - - -
Yes?--- - - - more attuned to it and more concerned but, as I’ve said in my report, I believe those issues could be addressed by the mother attending at counselling and making some changes to her life that would lessen perhaps the distress that she feels and allow her to move on and for [X] to feel less encumbered by the mother’s distress.
But what if she can’t do that? What if the possibility is she just cannot do that, what are the options then, Mr [L]?---I’m – I’m of the opinion that the mother is capable of doing that. That is my view.
(Transcript, 8 December 2016, p 110–11)
The primary judge accurately stated the effect of the Family Consultant’s evidence, but came to a different conclusion about the mother’s capacity to overcome her distress. Counsel for the father properly did not argue that it was not open to his Honour to form a different opinion to that of the expert.
The mother’s psychiatrist advanced his opinion about the mother’s future mental health in his unchallenged report:
9.I believe that [the mother’s] happiness will improve if the court permits her to relocate the children to [Town A]. With better family support, [the mother] would be happier in [Town A]. I have no doubt that her children would notice her improved happiness, and be positively impacted upon by that happiness. I certainly consider that her depressive order [sic] is much more likely to improve and likely disappear altogether if she was to move to [Town A].
(emphasis added)
Mr L had met the mother only twice, and properly acknowledged that the mother’s psychiatrist was in a better position than he was to form opinions (transcript, 8 December 2016, p 107). He also accepted that this was a “rather difficult and finely balanced case for the Court to determine…” (at [72])
There is no doubt this was a very difficult case for the primary judge to determine. In reaching the result he did, we are not persuaded that his Honour erred in the way asserted in these grounds.

The outcome and costs

Having found no merit in any of the complaints, the appeal will be dismissed.
Counsel for the father properly conceded that if the appeal failed, it would be difficult for him to resist an order for costs.
The father having been entirely unsuccessful in the appeal, we consider it appropriate that he pay the mother’s costs, to be assessed if not agreed.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Carew JJ) delivered on 11 January 2018.

Associate:

Date: 11/1/18