Horan & Beckett - [2010] FamCAFC 200

Family Court of Australia

HORAN & BECKETT

[2010] FamCAFC 200

FAMILY LAW - APPEAL – PARENTING – Appeal against a discretionary judgment – Where the orders changed a long standing arrangement in relation to the care of the child – Where the orders provided that the child reside with the Mother and spend time with the Father when the child had resided with the Father previously – Where the single expert witness and Independent Children’s Lawyer submitted that the child had a primary attachment to the Father – Where the Federal Magistrate did not err in rejecting the findings of the single expert witness – Where it was found that the Federal Magistrate was entitled to draw an adverse inference from the Father’s failure to have his partner, a significant carer in the child’s life, give any evidence – Where it was found that the child would reside in a more stable environment with the Mother – Where it was found that the Father could not properly care for the child on his own – Where the Father was found to be using drugs – Appeal dismissed

FAMILY LAW - COSTS – Where the Father is wholly unsuccessful – Where the Father does not have any capacity to meet an order for costs – Where only the Mother was granted legal aid – Where it was appropriate for the Mother to be represented at the hearing of the appeal – No order for costs

A v J (1995) FLC 92-619
AMS v AIF (1999) 199 CLR 160
Bennett & Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Collu & Rinaldo [2010] FamCAFC 53
Friscioni & Friscioni [2010] FamCAFC 108
Goode & Goode (2006) FLC 93-286
Gronow v Gronow (1979) 144 CLR 513
House v King (1936) 55 CLR 499
Jones v Dunkel (1959) 101 CLR 298
Norbis v Norbis (1986) 161 CLR 513
Rollings v Rollings (2009) 230 FLR 396

Evidence Act 1995 (Cth) – s 69(3)
Family Law Act 1975 (Cth) – s 60CC, s 117, s 69ZT

Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT:

Mr Horan

RESPONDENT:

Ms Beckett

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

6731

2007

APPEAL NUMBER:

2010

DATE DELIVERED:

14 October 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

May, O’Ryan & Le Poer Trench JJ

HEARING DATE:

2 August 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court
of Australia

LOWER COURT JUDGMENT DATE:

29 January 2010

LOWER COURT MNC:

[2010] FMCAfam 64

Representation

COUNSEL FOR THE APPELLANT:

Ms Awart

SOLICITOR FOR THE APPELLANT:

Bayside Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Carmody

SOLICITOR FOR THE RESPONDENT:

Parker Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Selfridge

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

1. The appeal filed by the Father on 26 February 2010 be dismissed.
2. There be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Horan & Beckett 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 BRISBANE

Appeal Number: NA 27 of 2010

File Number: BRC 6731 of 2007

Mr Horan

Appellant

And

Ms Beckett

Respondent

And

Legal Aid Queensland

Independent Children’s Lawyer

Reasons For Judgment

Introduction

This is an appeal by Mr Horan (“the Father”) against parenting orders made by Federal Magistrate Wilson on 29 January 2010. The orders changed a long standing arrangement in relation to the care of H (“the child”) born in May 2005. He was, on that date, aged four and a half years. The orders provided that the child reside with Ms Beckett (“the Mother”) and spend time with the Father.
The order changing the child’s living arrangements was contrary to the submissions of the Father and the Independent Children’s Lawyer. It was also against the written recommendations of the single expert, Mr C, who had prepared two family reports dated 28 February 2008 (“the first family report”) and 21 November 2008 (“the updated family report”).
The parties began a relationship in the Melbourne area in November 2003 and relocated to the Brisbane area in early 2004. They separated in November 2005 when the child was six months old. The Father moved with the child back to the Melbourne area to be with his extended family. That allegedly occurred with the consent of the Mother although she later denied that consent.
At the time of trial, the Father was living in Victoria and the Mother in Queensland.
In May 2006 the Mother filed an application seeking final parenting orders. The matter was heard over four days, namely, 15 and 16 December 2008 and 29 and 30 April 2009. Final submissions were received on 10 June 2009 and judgment was pronounced on 29 January 2010.
We were informed that a stay of the orders made 29 January 2010 was refused. The child has therefore been living with the Mother since the early part of this year.
During the trial the Father made no particular attack on the Mother’s parenting skills but relied on the recommendations of Mr C. Notwithstanding each party sought orders for equal shared parental responsibility and shared time, should the parties live sufficiently close to each other to make that practical, the Mother attacked the Father’s parenting in the trial.
In oral submissions before us, counsel for the Father drew our attention to paragraphs 98 and 99 of the updated family report where Mr C observed:
98. [Mr Horan]’s continuing drug use is of some concern. There is substantial research in regard to the negative consequences to the children of substance abusing parents. Such children often experience distortion and secrecy, as well as social isolation. They are more vulnerable to accidents and injuries and to exposure to traumatic events including violence. They generally have more health problems and poorer developmental outcomes.
99. However, I accept that [Mr Horan]’s recent drug use has been somewhat limited and that he has actively engaged in a rehabilitation process.
As can be seen from the evidence, to which we were taken during the appeal and also to the determination of the Federal Magistrate, the acceptance by Mr C of the Father’s asserted “recent drug use” and his meaningful participation in a rehabilitation process was not supported by the evidence accepted by the Federal Magistrate.
Another matter of great significance was the failure of the Father’s fiancé, Ms P, who was a significant care giver to the child, to give any evidence.
In the updated family report, Mr C concluded that with family support behind the Father, the child would be well cared for. Mr C said:
103. What does appear to separate the parents’ competing claims is that [Mr Horan] has had a much more significant role in parenting [the child] and appears to be a more important attachment figure. Additionally, [Mr Horan] appears to significantly benefit from the support of family members …
…
106. I accept that [the child] has demonstrated some concerning behaviour at times. I consider it most likely that he has experienced stress and anxiety associated with somewhat unrealistic expectations that he spend extensive periods away from familiar carers. In my view it is predictable that emotional or psychological distress would manifest in the form of behavioural problems …
Mr C continued at paragraph 107: “On the basis of available information it is my opinion that, on balance, there is no net benefit to [the child] associated with a change in his living arrangements.” He then concluded that an equal shared parental responsibility arrangement was appropriate for the family. He recommended that the parties have equal shared parental responsibility and that the child live with the Father.
We specifically mention those parts from the updated family report because they were the subject of submissions in relation to a number of the grounds of appeal.
The Father filed a notice of appeal on 26 February 2010. That notice specified 12 grounds of appeal. All grounds, with the exception of Ground 7, were addressed in the Father’s written submissions.
It was conceded by the Father’s counsel that all grounds were complaints that the Federal Magistrate had exercised his discretion incorrectly and were generally arguments about the weight given to certain evidence. It was also contended there were errors of fact and errors of law.

Background

The Father was almost 21 years old and the Mother 19 years old when the child was born.
The Father has an older child with whom he does not have contact. The Father and Ms P have a daughter J, who was born in June 2008. Ms P also has another child, T, born in 2006.
The Mother has a child Q, born in May 2003 and another child O, born in November 2008. O is the child of Mr S who was the Mother’s partner at the time of the hearing. Mr S has children from two previous relationships.
At the time of the hearing the Father was living in a house owned by the paternal grandmother and paternal stepfather near Melbourne. The Father was spending two to three days a week with Ms P.
The Mother commenced residing with Mr S in the early months of 2008. They live with the Mother’s other children in rented premises in Brisbane.
In July 2008 the Mother and Father agreed that the child should spend time with the Mother in Brisbane for periods of two to three weeks during August and December 2008 and in May 2009.
The Father had been working in the paternal stepfather’s business at some stage, however, he was not working there in November 2008, when the updated family report was prepared.
The Father and the child were spending time with the paternal grandmother, each Friday until Saturday and at other times. The Father also lives near the paternal great grandmother and sees her regularly. The paternal great grandmother sometimes cares for the child for a few hours.

The Reasons of the Federal Magistrate

The Federal Magistrate commenced his reasons by setting out the principles and statutory pathway he proposed to follow in determining the parenting dispute. His Honour was of the opinion that while both parties clearly love the child, neither party was completely forthcoming with the court. Neither party was found to be an impressive witness, particularly in the case of the Father. This was attributed to the young age of the parties and their disadvantaged upbringing. The parties were also found not to be in affluent circumstances.
The Federal Magistrate then went on to note the Mother was 23 years of age and has three children aged 6, 4 and 13 months. None have the same father. The Federal Magistrate noted that the Father was 25 years of age and has three children, none of whom have the same mother.
The Federal Magistrate made the following further findings.
·The Father had an extensive history of drug abuse and continues to “abuse cannabis”: see [7];
·Ms P has mental health issues, abuses drugs and has difficulty coping with three children: see [8]; and
·The Father has no intention of leaving Victoria to reside near the Mother. The Mother lives in Queensland and also has no intention of relocating: see [10].
Early in the Federal Magistrate’s reasons for judgment it was stated that his Honour had come to the conclusion that the child should live with the Mother. His Honour was cognisant of the submissions of the Independent Children’s Lawyer and the recommendations of Mr C against such a determination.
The Federal Magistrate, having stated that conclusion, set out his principal findings at [12] which led him to that conclusion. The findings were:
a)     The father is heavily reliant on the support of his mother, grandmother and fiancé for the proper care of [the child] and could not properly care for him on his own;
b)      The father continues to be addicted to cannabis and, despite an assurance to the contrary, continues to ingest that substance;
c)     The father’s relationship with [Ms P] is fraught with difficulty and is likely to expose [the child] to unacceptable behaviour;
d)      The mother’s household is more settled and is likely to provide a more stable environment for [the child];
e)      The mother is more likely than the father to facilitate an ongoing relationship with the other parent;
Having determined that the child should reside principally with the Mother, the Federal Magistrate noted at [13] that he was satisfied that “the father (with considerable assistance from family) has provided [the child] with a level of care since the parties separated that, although not ideal, was in most cases appropriate, and was not abusive”.
The Federal Magistrate found that the child was fit and well at the time of the hearing. The child had presented for interviews with Mr C as active and healthy. Other evidence established that he was meeting appropriate milestones and was otherwise in good health. His Honour noted that evidence of health practitioners working with the Father and Ms P found that they were diligent with appointments, co-operative and keen to follow recommendations.
The Federal Magistrate noted that much of the focus of the hearing was on the Father’s capacity to parent the child. His Honour noted that the Father did not mount a case that the Mother was incapable of properly parenting the child. In fact, his Honour noted at [15] that the Father had described the Mother as “a fundamentally good mother” when being interviewed by Mr C.
The Federal Magistrate at [16] accepted the Mother’s evidence that the Father had not provided her with information as to the child’s health or well being since the separation. Notwithstanding those circumstances, the Mother sought an order for equal shared parental responsibility and further, should the parties live in close proximity, the Mother sought that they equally share time with the child.
The Federal Magistrate at [19] and [20] set out in detail the orders sought by each of the parties. He noted that in final submissions, counsel for the Father conceded that the format of the orders sought by the Mother was appropriate, subject to a transposition of the Father’s name for that of the Mother.
The Federal Magistrate at [24] rejected the Mother’s evidence that the Father had relocated to Victoria with the child without her knowledge or consent following the separation.
The Federal Magistrate at [32] noted the evidence of each of the parents early childhood experiences and said “I do not think it is unreasonable to say that both were juvenile delinquents. Their criminal histories were put into evidence”.
The Federal Magistrate further noted at [33]:
The father presented as still being a very immature person who is heavily reliant on others, particularly members of his family, for almost all of his activities of daily living. His mother has provided him with a house in which to live, she transports him to and from [F], because he does not have a drivers’ license, and the paternal great-grandmother who lives very close by to where the father now lives provides almost daily assistance. The father works only sporadically, in a position provided to him by his mother’s husband, but is mainly reliant on government benefits. The father lacked insight into a number of important issues, most notably the difficulties that his drug consumption and his relationship with [Ms P] would have on [the child].
The Federal Magistrate detailed complaints raised by the Mother as to the quality of care provided to the child by the Father. He considered corroborative evidence which he thought supported the Mother’s accusation. His Honour particularly noted evidence from W Childcare, G Childcare, the Victorian Department of Human Services and the paternal grandmother. That evidence principally addressed the child’s behaviour and the state of the residence in which he was residing with the Father and Ms P. This residence was described by Ms K, from the Victorian Department of Human Services, as “shocking and very untidy” and “one of the worst if not the worst she has seen” (italics in original).
The Federal Magistrate observed at [41] the concessions made by the Father that he suffered “bad moods” and when so suffering, yelled, and the further concession by the Father that he had a problem with anger management.
The Federal Magistrate also accepted at [41] that the Father had consulted a specialist in “toddler behaviour” and that the specialist had provided the Father with strategies for dealing with the child’s behaviour. That specialist was not called as a witness.
The Federal Magistrate concluded:
42. … that the father’s parenting of [the child] is such that he allows the child to display aggressive and volatile behaviour … I do not accept that the father could contain himself such that he never yelled at [the child] or in his presence.
43. … I place less weight on the statement by [Mr C] that [the child]’s concerning behaviour is most likely caused by the stress and anxiety associated with his being moved between households … [the child]’s presentation is more likely attributable to the atmosphere and behaviour at times in the father’s household.
The Federal Magistrate referred to the evidence of Ms A, who is a friend of the Mother. When the trial commenced Ms A was only 17 years of age. Although determining that he would not place any great weight on Ms A’s evidence his Honour noted that there was other reliable evidence which raised similar concerns to that of Ms A. The other evidence referred to was critical of the physical environment provided by Ms P’s residence for the child, was critical of the state of cleanliness and presentation of the Father’s residence and provided support for a conclusion that the Father was a regular marijuana user. His Honour concluded at [48] that he could not “accept that the father never smoked marijuana in front of [the child].”
The Federal Magistrate rejected the allegation of Ms A as exaggeration when she alleged physical abuse perpetrated by the Father against the child. His Honour also rejected her evidence in relation to a physical altercation which she had alleged took place in the presence of the child in the Father’s residence. The Federal Magistrate accepted at [50]:
that the father would have been verbally abusive to [the child] in the nature of yelling and his physical discipline of [the child], in the nature of smacking, may have been more than he was prepared to admit, but I do not accept that the father was as violent as [Ms A] has sought to portray. I also do not accept that the father’s care of [the child]’s day to day requirements was as lacking as [Ms A] alleges. Whether or not it is out of some allegiance to the mother, or her memory is clouded by her marijuana use, I do not accept that [Ms A]’s evidence is inherently reliable, and except where it is supported by other evidence, I would not rely on it.
The Federal Magistrate referred to the evidence given in relation to the Father’s marijuana use. His Honour referred to the impact on the Father’s capacity to parent the child. His Honour accepted at [54] that Mr C considered that “there are matters of degree involved, and a low level of drug use may not impede the father’s ability to safely care for [the child]”. His Honour did, however, emphasise that “the Court should be slow to condone illegal drug use by either parent.” His Honour then noted the uncontested evidence that the Mother, although she had taken drugs in the past, “now no longer uses illegal drugs.”
The Federal Magistrate found at [55] that the Father had breached the order of 26 June 2006 restraining each party from consuming illegal drugs and that “the father has regularly used cannabis when [the child] has been in his care.” His Honour set out the evidence he relied on to make that finding. Counsel for the Father referred to what the Father had said in oral evidence before the Federal Magistrate that he would stop taking drugs (Transcript, 16 December 2008, p 160). In the last days of the hearing the Father’s evidence was that he had not taken drugs. His Honour was satisfied that statement was not true and referred to the evidence of drug testing at [60] and [61] on which he relied to make such a finding.

The Federal Magistrate also referred to the evidence of Mr C and, in particular, to his statement in his updated family report at paragraph 98, which we have already observed, that: “There is substantial research in regards to the negative consequences to the children of substance abusing parents.” His Honour referred to the evidence contained in the Department of Family Services file, namely, that the Father had ceased to engage the Department in relation to his drug use. The Father had failed to attend appointments on a regular ongoing basis and consequently failed to significantly address his issues with cannabis. Based on that evidence his Honour concluded at [65] that he would reject “the father’s evidence that he is attempting to cease using cannabis, and is undertaking regular counselling to achieve that purpose.” His Honour further concluded that a combination of the Father’s continuing drug use and the circumstances of Ms P raise “even greater concerns.” His Honour referred to the Department of Human Services file and a note dated 4 February 2009. The note inter alia stated:
If the [Father and Ms P] do not continue to address their substance abuse issues then there is a risk that their substance abuse will impact on the children’s safety and their ability to parent appropriately. If [Ms P] does not continue to attend Headspace then her mental health may become unstable, thus impacting on the children and her ability to parent them appropriately.
The Federal Magistrate noted in other evidence that the Father had requested material assistance, namely, food coupons and milk from the Victorian Department of Human Services.
The Federal Magistrate noted at [68] that in his oral evidence the Father acknowledged there had been a discussion between the departmental officers and Ms P about short term fostering of her children because of her inability to cope. One of those children was the Father’s daughter.
The Federal Magistrate noted at [70] that from the Father’s oral evidence, that he had acknowledged “that if either [the Father] or [Ms P] were involved in drugs to the knowledge of the Department, the Department would likely intervene.”
The Federal Magistrate said at [72] that Mr C did not speak with Ms P before compiling either of the two family reports. His Honour noted at [73] that Ms P did not give evidence either in affidavit or orally. His Honour observed that a report had been provided by Dr V in relation to Ms P which noted she had last been seen on 29 January 2009. His Honour recited the following extract from the medical report at [73] of his reasons for judgment:
[Ms P] presented to me on 6 November 2008 being a mother of three small children who felt she was struggling to cope … and Edinborough Post Natal Depression Scale revelled [sic] her to have moderate Post Natal Depression … this mental illness would have impacted on her ability to cope with a court appearance, apart from the fact that she had three children to mind. (italics in original)
Having noted that there was no further evidence produced as to why Ms P did not attend in the final part of the hearing the Federal Magistrate said at [74]:
The failure of the father to call [Ms P] to give evidence is very significant. He acknowledges that [Ms P] is a significant carer of [the child]. [Ms P] clearly has problems with substance abuse and mental illness. Her evidence would be very important. I should draw the inference [Ms P]’s evidence would not have assisted the father (Jones v Dunkel (1959) 101 CLR 298).
The Federal Magistrate went on to address aspects of the Father’s parental capacity in light of the evidence, thus far referred to, in particular, the Father’s drug use and Ms P’s circumstances.
The Federal Magistrate turned his mind to the Father’s general reliability. His Honour referred to evidence, which would support a conclusion, that the Father was most unreliable. He found at [77] that “the father has demonstrated an inability to comply with therapy or any serious attempt to withdraw from using cannabis.”
The Federal Magistrate turned to the Mother’s allegations against the Father and, in particular, the allegation of sexual and physical abuse. His Honour concluded at [80] that “[t]here is simply no evidence to support a finding that the father has behaved inappropriately towards the child in terms of inappropriate touching.”
The Federal Magistrate at [81] accepted the Mother’s evidence that the Father does not communicate with her regarding the child. His Honour noted the evidence of Mr C which expressed a concern about the Father’s ability to care for the child alone and unassisted. His Honour noted at [85] that “[i]t appears, therefore, that the father spends little time caring for [the child] on his own.”
The Federal Magistrate then at [86] referred to the report of Ms D, a social worker, dated 1 November 2006. His Honour referred to her finding that the child had a more secure bond with the Father and primary attachment with the Father. The report had been prepared at a time when the child had been with the Father for 12 months. His Honour noted that Ms D considered it was not appropriate to separate the child from his primary carer.
The Federal Magistrate also noted at [88] that Mr C, who observed the interaction between the child and both his parents, had reached a similar conclusion to Ms D in the first family report. It was further observed in the same report, however, that Mr C had reported “generally speaking, there were no particular concerns with regard to the parenting capacity of either parent that arose from the observation” and that interrupting a child’s primary attachment relationship after the child turned three is less of a concern, so far as potentially serious consequences, for the child.
The Federal Magistrate observed that in the updated family report Mr C said that the child “continues to be most strongly attached to his father” and in the opinion of Mr C the Father appeared to be a more important attachment figure for the child than did the Mother. His Honour noted at [93] that Mr C considered, on the balance, that “there was no net benefit to [the child] associated with a change in his living arrangement.”
The Federal Magistrate noted at [92], from the oral evidence of Mr C, that he had clarified that “the notion of attachment has application mostly to a child below the age of three.” His Honour continued:
[Mr C] opined that a change of residence would be quite traumatic for [the child] in that he would have a sense of loss not only for his father but a number of people familiar to his daily life. He says that the theory would caution against that kind of dramatic move … [and] that the concerns that he expressed in his report about the adverse consequences of a change in residency was not as valid given [the child]’s current age as they were at the time he did the report.
Towards the conclusion of his reasons the Federal Magistrate said at [93]:
I am unable to agree with [Mr C] that there is no net benefit in removing [the child] from his father’s care and for him to live primarily with his mother. I accept that such a move would be dramatic and would cause distress to [the child]. However, he would then live in a more stable environment with his mother and her partner. He would be removed from the somewhat chaotic lifestyle that he currently has moving from [outer Melbourne] to [F] between his father’s house, his grandmother’s house and [Ms P]’s house, and from being exposed to the difficulties that the father’s drug use presents and [Ms P]’s drug use and mental issues presents.
The Federal Magistrate went on to state at [94]: “That is not to say that the mother’s care is beyond criticism.” His Honour then detailed where that might be criticised. His Honour said at [95] that it was quite impracticable for the Mother to relocate to Victoria, as the Mother’s partner operates his own business in Brisbane. His Honour rejected the Father’s reasons for not relocating to Queensland. His Honour found “the real reason is because he could not cope with parenting [the child] on his own”. His Honour also acknowledged at [97] that the Mother had completed a “Triple P Parenting Course.”
The Federal Magistrate then dealt with various subsections in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). His Honour concluded that with the child living with the Mother, he would benefit from having a meaningful relationship with both parents. His Honour concluded that the child is more likely to enjoy a relationship with the Father if he lived primarily with the Mother than he would likely enjoy with the Mother should he remain living with the Father. In the opinion of the Federal Magistrate “both the primary considerations favour [the child] living in his mother’s care”.
The Federal Magistrate made an order for the Mother and Father to have equal shared parental responsibility. His Honour made it quite clear in his reasons, that the geographical distance of the parties’ residences, together with their financial circumstances, made equal time impractical. His Honour further found that the child spending substantial and significant time with each the Mother and the Father was impractical in the circumstances of the case, including the fact that the child attends school. His Honour concluded that the proposal of the Mother, for the child to spend time with the Father was the preferred model to accept for the making of the court orders. His Honour otherwise adopted the orders sought by the Mother.

Grounds Of Appeal

As stated earlier there were 12 grounds of appeal.
The appeal is acknowledged, by the Father, to be principally an appeal which attacks the exercise of discretion by the Federal Magistrate. The complaint of the Father in this appeal is chiefly related to the weight which his Honour gave to facts or failed to give to facts established by the evidence. The Father further claims there are errors of fact and errors of law. The errors of fact and law are said to arise where:-
·his Honour drew an adverse inference against the Father arising from the fact that Ms P did not file an affidavit and did not give oral evidence;
·a refusal to allow the Father to tender documents produced under subpoena by the Victoria Police. The same complaint is made in relation to documents produced by the Victorian Department of Human Resources;
·an error of fact when arriving at the conclusion that the Father allowed the child to display aggressive and volatile behaviour; and
·his Honour failed to address the totality of the matters required to be addressed by him pursuant to s 60CC of the Act.

Legal Principles

To the extent that this is an appeal against a discretionary judgment, the principles to be applied are well established: see House v King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513 and CDJ v VAJ (1998) 197 CLR 172.
To the extent that this appeal complains about assessment of weight, where no error of law or fact is obvious, we are mindful of the High Court decision in Gronow v Gronow at 519-20 where Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have been done so at all.
Further, we are mindful of what Kirby J said in AMS v AIF (1999) 199 CLR 160 at 211 that “an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved”: see also A v J (1995) FLC 92-619 per Full Court (Fogarty, Lindenmayer and O’Ryan JJ) at 82,232 and Rollings v Rollings (2009) 230 FLR 396 per Full Court (Boland, O’Ryan and Murphy JJ).
To the extent this appeal complains of a less than required consideration of the provisions of s 60CC of the Act, we are mindful of the mandatory nature of that section on the task his Honour was required to undertake. We are also mindful of the Full Court’s decision in Collu & Rinaldo [2010] FamCAFC 53 (25 March 2010). In particular the Full Court (May, O’Ryan & Strickland JJ) said as follows:
361. Then there are the proposals of the parties. Without repeating what each party sought, the trial Judge failed to consider precisely what each party sought and in particular the Mother. Thus, when considering each of the relevant considerations in s 60CC of the Act and undertaking the comparison of advantages and disadvantages her Honour did not do so having regard to what each party sought. For example if the Mother lived in Dubai her Honour did not compare the Mother’s proposal for the parties to have equal or at least substantial and significant time with the child against the Father’s proposal of 13 weeks for the Mother.
362. When consideration is given to all of what the trial Judge said in her reasons, it is apparent that she identified the best interests statutory considerations in s 60CC of the Act. However, what her Honour did was not sufficient. We are of the view that her Honour did not consider, weigh and assess the evidence touching upon each of the relevant matters and then indicate to which of those matters she attached greater significance, and how all of those matters balanced out. For example, it is not possible for us to understand why the matters relied upon by her Honour far outweighed other relevant matters. Thus, her Honour also failed to give adequate reasons. In our view, this is not a case where, as in A v J, it can safely be said that the trial Judge considered and evaluated all the relevant evidence and took into account all relevant factors.
The case under appeal is, in our opinion, one to which the decision in A v J is applicable. In that decision the Full Court (Fogarty, Lindenmayer & O’Ryan JJ) said the following at 82,232:
It must be remembered that in child welfare proceedings the Family Law Act confers a wide discretion and that ultimately the Court must be satisfied that the orders proposed are in the best interests of the child. It is the paramount welfare of the child which is the material ultimate finding which must be made in those proceedings. It is, in our opinion, particularly in matters where it is considered that the competing proposals are evenly balanced, important to avoid an overly critical analysis of the reasons of the trial Judge. This is not to detract from the requirement to give adequate reasons. It simply means that there should not be a microscopic analysis of, for example, words used by a trial Judge if, in all the circumstances, it is clear that the trial Judge has considered and evaluated the relevant evidence, taken into account all relevant factors and, importantly, has considered the ultimate welfare of the child as the paramount consideration. As we have said, the Act confers a wide discretion on a trial Judge in child welfare proceedings and, provided the approach which has been laid down in Smith’s case and Maday’s case is followed, an appellate court will be hesitant to undertake a detailed examination of alternative interpretations of words and phrases used by a trial Judge if it is clear that overall the trial Judge has done that which he/she is required to do by the Family Law Act and authority and has sufficiently evaluated the evidence. (italics in original)

Discussion

Ground 1

Ground 1 asserts that the Federal Magistrate erred and his discretion miscarried, by placing insufficient weight on the importance of the child’s primary attachment to the Father, in assessing the child’s best interests.
The Father submits that the Federal Magistrate failed to give sufficient weight to the opinion of Mr C that “when you have disrupted attachments, often that has implications in the long term for future relationships, personal securities and the health of future relationships.” It was submitted that his Honour should not have made a determination which effectively disregarded the importance of the child’s primary attachment to the Father. In response, the Mother said that primary attachment is not the only issue to be considered by the Court. She pointed out that the child may be primarily attached to an abusive parent. The Independent Children’s Lawyer, who supported the Fathers’ appeal, submitted that although his Honour did address the primary attachment of the child to his Father, he did not consider “the true nature of the affect of change on the stable and secure nature of the relationship between the father and son.”
The Mother referred to the oral evidence of Mr C before the Federal Magistrate on 30 April 2009. During proceedings Mr C was asked to address the need to balance the child’s primary attachment to his Father with the potential risk to the child in remaining in the primary care of the Father, given the Father’s deficiencies, such as, drug dependence and dependence on family and others to care for the child. Mr C said (Transcript, 30 April 2009, p 43):
When you have a dependency often when you are coming down and people can genuinely crave marijuana … it is not as innocent as we thought 30 years ago and the varieties that are around today… are much more potent, people can often experience irritability … and frustration, short temperedness … all these things can have an impact on the capacity to parent, particularly young children … And the other concern is that if you have a dependency you are spending a lot of money on drugs and other aspects of looking after the family, paying the rent, buying the groceries, attending to medical needs, are being compromised … My understanding is that the father and probably [Ms P] are on a supporting parents’ benefit so they would have a limited income so if they are spending on a weekly basis a fair bit of money on drugs, that has got to compromise their capacity to look after the children in their care … this young man has used drugs … for a very long time, for a very large part of his life and it is tough to envisage that he might stop and never ever use it again … if he uses, and it is casual use, that does not have an impact on his functioning, if it does not have an impact on family resources, I would see that as fairly low risk; if it is established that his use is substantially so it has an impact on his psychological and emotional functioning, and a significant drain on the family resources, then the risk is much, much higher and the concern about leaving the child in the father’s care, I think would be much greater … what I am saying is if there is a test that says “yes it is positive” that doesn’t help me as much as an understanding of “is the use regular, is there a dependency?” or … “was he invited to a party and someone was passing around a joint and he thought what the hell” … different scenarios with different implications.” (emphasis added)

It is submitted by the Mother that the Federal Magistrate correctly found the Father was dependant and a regular user of cannabis. We were taken to passages in the transcript which demonstrated evidence upon which his Honour could have made such a finding. It was submitted therefore, that the decision to move the primary care of the child from the Father to the Mother was, in fact, supported by the evidence of Mr C and the findings of fact made by the Federal Magistrate.
There is no challenge to the findings of fact made by the Federal Magistrate in relation to the use of marijuana by the Father. The only challenge is to the Federal Magistrate placing too much weight on the positive test for marijuana use when he assessed the risk to the child of being in the care of the Father.
In those parts of the Federal Magistrate’s reasons for judgment there are specific references to his Honour’s acceptance of the evidence contained in the two family reports advocating the importance of primary attachment between the child and the Father. His Honour was very aware of that evidence and specifically dealt with it when finally determining that the child should live primarily with the Mother.
The Father submitted that the first family report noted “when there are disrupted attachments often that has implications in the long term for future relationships, personal securities and the health of future relationships”. His Honour, in his reasons, canvassed the evidence in relation to the importance of primary attachment for a young child to a particular parent. His Honour relied on the evidence of Mr C, which stated, that attachment was more important for children under the age of three than it was for older children. Nonetheless, the Federal Magistrate accepted at [93] that a change of primary carer for the child would be dramatic and would cause distress to him.
We do not accept that his Honour erred as alleged in Ground 1.

Ground 2

Ground 2 provided that the Federal Magistrate erred and his discretion miscarried by placing too much weight on the Father’s positive test for marijuana use in assessing risk to the child in the care of the Father.
It is conceded by the Father that this is a ground attacking the exercise of discretion. The argument is directed to the weight given by the Federal Magistrate to the evidence relating to the Father’s marijuana use and its potential impact on his parenting capacity. It is the submission of the Father that a significant factor in the decision of the Federal Magistrate was the Father’s ongoing use of marijuana and, in particular, a positive test result, from the final test conducted, following the conclusion of the oral evidence. The Father’s submissions drew attention to the Federal Magistrate’s reasons for judgment, where his Honour stated at [12] that he had reached a conclusion that the child should live primarily with the Mother. The Federal Magistrate observed that his principal findings which gave rise to that conclusion included “the father continues to be addicted to cannabis and, despite an assurance to the contrary, continues to ingest that substance.”
The Father further highlighted evidence from Mr C, namely, “it is not the use of marijuana as such but the effect on the family functioning of ongoing use of marijuana that is the concern (Transcript, 30 April 2009, p 44).”
A significant portion of the evidence of Mr C in the transcript of proceedings dated 30 April 2009 has been set out by us in considering Ground 1, we have emphasised part of the passage quoted which has significance in the consideration of this ground.
The Federal Magistrate concluded that the Father had misrepresented his current and continued use of marijuana. That determination, clearly, had a substantial impact on his Honour’s overall consideration of the consequences to the child, of the Father’s future capacity to care for him as a primary carer.
In the Mother’s submissions our attention was drawn to the proceedings before the Federal Magistrate on 15 December 2008 where the Father conceded he had not stopped the use of marijuana in which the following was said (Transcript, 15 December 2008, p 101):
MS CARMODY: You haven’t actually been able, as of today, to stop taking drugs have you?
[THE FATHER]: No. Marijuana – I am only doing marijuana.
The Father, in his oral evidence, said he was seeking help, for his drug use, with “a worker” and said “I’ll definitely be off it soon.”As that evidence was given on 15 December 2008 the Federal Magistrate concluded that the drug test in 2009 established the Father was still using marijuana.
The Father claimed he was only spending $20 a week for marijuana supplies at that time (Transcript, 15 December 2008, p 101). There was other evidence that Ms P was spending $80 per week on marijuana.
In written submissions the Mother submitted:
[The Father’s] evidence was that he would take one cone every day or two depending on his stress and how he feels at the time. This should be contrasted with his later evidence that he smokes 5 to 6 cones a day and then further evidence that he smokes about a dozen cones a day and that as a result of that consumption that he would be “stoned”. He confirmed that he consumed drugs on Mondays and Fridays because [the child] is at kindy. (citations omitted).
There was, therefore, ample evidence to support the Federal Magistrate’s stated concerns as to the extent of the Father’s drug use and dependence.
In his reasons for judgment the Federal Magistrate referred to the evidence of the necessity of the Father to seek food coupons and financial assistance for himself and his family. His Honour concluded that, notwithstanding the Father had sought such assistance to support the family, he still had the capacity to buy marijuana. Those conclusions were open to him on the evidence before the court.
We conclude this ground has not been established.

Ground 3

In Ground 3 it is contended that the Federal Magistrate erred and his discretion miscarried by placing insufficient weight on the recommendations of Mr C.
The Father conceded this is an argument in relation to discretion and the weight which was given by the Federal Magistrate to the particular evidence. No individual submission was made in support of this ground, with the Father relying on the arguments in support of Grounds 1 and 2.
As we have stated earlier, although the Federal Magistrate’s determination was against the recommendation of Mr C, his Honour did in fact have support from Mr C in the evidence he gave concerning the marijuana use and its impact on the Father’s parenting capacity.
The Mother submitted that Mr C’s two reports were seriously compromised by evidence which was unknown to Mr C when he delivered the reports. That evidence emerged during the course of the trial. It was submitted that once it was apparent Mr C did not have the benefit of very important evidence relating to the Father’s drug use, the family report recommendations could no longer carry significant weight.
We accept the submissions of the Mother that this ground has no merit.
We would also mention in this context what the Full Court said in Friscioni & Friscioni [2010] FamCAFC 108 (17 June 2010):
95. In this case the trial Judge had before her a large amount of written and oral evidence and also had the opportunity to observe the parties and various witnesses being cross-examined. The evidence before her Honour included what was in the family report prepared pursuant to s 62G of the Act by a Family Consultant. In the family report the Family Consultant expressed an opinion, as she was entitled to, on the ultimate issue, namely, what proposal would be in the best interests of the child: see s 80 of the Evidence Act 1995 (Cth).
96. Although the Family Consultant was an expert appointed by the Court to prepare a family report she was not in a privileged position and was required to give her evidence in the ordinary way. As Gibbs CJ observed in Re JRL; ex parte CJL (1986) 161 CLR 342 at 348: “In the performance of this function the court counsellor becomes a potential witness - a court appointed witness who is perhaps in some respects analogous to an expert witness - but is not part of the court”: See also BBT and JMT (1980) FLC 90-809 per Wood J.
97. In Hall and Hall (1979) FLC 90-713 the Full Court (Evatt CJ, Asche SJ and Hogan J) said at 78,819:
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a)There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC 90-098 at p. 75,447; Harris and Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285.
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c)While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d)Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e)Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f)Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g)It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h)Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation. We draw attention to an article by Mrs.A. Marshall, Director of Court Counselling Sydney Registry — “Social Workers and Psychologists as Family Court Counsellors within the Family Court of Australia”. The article appears in the March 1977 edition of Australian Social Work, vol. 30 No. 1, p. 9 and at p. 11 appears the passage:
“Family Law reg. 117 provides for the cross-examination of a counsellor in relation to the Report. It is seen as an advantage by counsellors that they can in this way be held accountable for the Report”.
(i)Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied. In the case of Harris (supra) Fogarty J. said at FLC p. 76,474; F.L.R. p. 289:
“It is in my view inimical to the proper workings of the Court and in particular to the proper carrying out of the functions of a welfare officer that it might be thought by practitioners or litigants that welfare officers or their reports occupy some special or privileged position before the Court unchallenged or unchallengeable but yet perhaps decisive of the issue. Custodial proceedings still basically fall to be determined by the Court in accordance with the traditional system of determining cases. Where a welfare report is delivered which contains either factual matters or matters of opinion which a party desires to challenge but is not permitted to do so that party may be pardoned for feeling that justice has not been seen to be done.”
Similarly, in M. and M.(1978) FLC 90-429 at p. 77,182; (1978) 30 F.L.R. (Notes) at p. 562, Marshall S.J., in adopting the views of Fogarty J. set out above, stated:
“If the contents of such a report are not open to challenge by cross-examination the Court would leave itself open to the criticism of conducting a trial `by report' rather than on the whole of the evidence.”
This Court is in full agreement with the views set out above.
98. Although the Act has been significantly amended since 1979, what the Full Court said in Hall and Hall remains apposite to the situation before the trial Judge in this case: see also D & P [2006] FamCA 170 (unreported, Finn, Holden & Boland JJ, 22 March 2006) and Andrew & Delaine [2009] FamCAFC 182 (unreported, May, Boland & Strickland JJ, 6 October 2009).
99. The family report reveals that the Family Consultant was of the view, as recorded at paragraph 18 of the report, that the issues for consideration were the “living arrangements” for the child; the Mother’s “request to relocate with the child” and the Father’s alleged problem with “alcohol and marijuana use”. Thereafter, in the report, the Family Consultant recorded the outcome of her interviews with each of the parents, the child and the paternal grandmother and also her observations. Then at paragraphs 81 to 91 of the report under the heading of “Assessment” the Family Consultant expressed certain opinions. The Family Consultant did not, and she was not required to, deal with the various relevant provisions of the Act such as s 60CC.
100. In our view, the observations the trial Judge made in [7] and [8] related to the evidence of the lay witnesses which each of the Father and the Mother called to give evidence. What her Honour said at [9] to [11] related to the evidence of the Family Consultant.
101. Thereafter, what the trial Judge said about the evidence of the Family Consultant did not involve a rejection by her Honour of that evidence. In fact, her Honour said at [11] that the evidence was “helpful” and thus her Honour, in our view, considered and gave weight to what the Family Consultant said. For example, her Honour at [40] to [45] was assisted by what the Family Consultant said at paragraphs 87, 88 and 89 of the report regarding the effect on the child of aspects of the behaviour of the Father and the Father’s use of alcohol and marijuana. Her Honour accepted at [67], [68] and [69] what the Family Consultant said about the relationship of the child with the parents. Her Honour at [72] and [73] referred to what the Family Consultant said at paragraph 86 of the report about the child’s reliance on a parent to facilitate a relationship with the other parent. Her Honour at [92] to [94] dealt with what the Family Consultant said at paragraph 89 of the report about the capability of the Father as a parent. We have already referred to what her Honour said at [106] to [111] and it can be seen that her Honour considered what was in the report. As we have observed, the trial Judge at [115] to [127] weighed up the advantages and disadvantages of the child remaining in T and was mindful of the recommendation of the Family Consultant.
102. The trial Judge had the responsibility of making a judicial decision on the ultimate issue and in undertaking that task she undertook a very thorough and detailed consideration of the evidence, including from the Family Consultant, and the relevant statutory considerations and reached a conclusion which did not accord with the ultimate opinion of the Family Consultant. The trial Judge was entitled to do what she did. We are of the view that there is no merit in the complaint in ground 2.

Ground 4

In Ground 4, it was asserted that the Federal Magistrate erred and that his discretion had miscarried by drawing an adverse inference from the Father’s failure to call evidence from Ms P and, in any event, by placing too much weight on the adverse inference.
In oral submissions the Father’s counsel submitted that this ground not only attacked the exercise of discretion by the Federal Magistrate but also alleged an error of law. It was submitted that his Honour erred in fact by finding there was no evidence produced, explaining Ms P’s inability to attend during the second tranche of oral evidence in the case. It was submitted that although his Honour referred to a report provided by Dr V, which was filed between the first and second groups of hearing dates, his Honour failed to accept the report as an adequate explanation for Ms P giving no evidence at all. It was also submitted that he failed to accept the report as an adequate explanation for why she had not participated in any interview for either of the family reports with Mr C.
The two paragraphs of his Honour’s reasons for judgment which are the subject of criticism in this ground are [73] and [74]. We have already observed the contents of the report of Dr V earlier in these reasons, however, for convenience we will set out again the relevant part of his Honour’s reasons for judgment:
73. Further, [Ms P] did not give evidence before the Court nor did she provide an affidavit. During the first tranche of evidence it was contended that [Ms P] was unwell and could not attend to give evidence. A report was prepared by [Dr V]. However, [Dr V] had not seen [Ms P] since 29 January 2009 (Exhibit 8). In her report [Dr V] states:
“[Ms P] presented to me on 6 November 2008 being a mother of three small children who felt she was struggling to cope … an Edinborough Post Natal Depression Scale revealed her to have moderate Post Natal Depression … this mental illness would have impacted on her ability to cope with a court appearance, apart from the fact that she had three small children to mind.”
74. No evidence was produced of [Ms P]’s inability to attend during the second tranche of evidence at the final hearing. The failure of the father to call [Ms P] to give evidence is very significant. He acknowledges that [Ms P] is a significant carer for [the child] … I should draw the inference [Ms P]’s evidence would not have assisted the father [Jones v Dunkel (1959) 101 CLR 298]. (italics in original)
A close analysis of Exhibit 8 shows that it is a medical report obtained to explain the failure of Ms P to give evidence on either 15 or 16 December 2008. It does not suggest that as at 29 January 2009 she could not have coped with a court appearance. It attests to the fact that when seen on 6 November 2008, she had commenced taking anti-depressant medication, which she continued to take as at 29 January 2009. The report does not suggest that Ms P was incapable of giving instructions for the preparation of an affidavit in support of the Father’s case or being able to give oral evidence by telephone or video link in circumstances which would not be as taxing on either her mental wellbeing or her ability to mother three small children.

Our attention was drawn to a letter dated 29 January 2009 addressed to the Father from the Department of Human Services (Child Protection), advising that an investigation into concerns which had been expressed in relation to the child and the other children J and T, would not continue.
Our attention was then taken to a “Closure Summary” from the Department of Human Services and a “Summary of Intervention” which set out events dating from 14 October 2008 to 5 November 2008. This document may have been enclosed with the letter from the Department of Human Services dated 29 January 2009. Amongst the information contained in the “Summary of Intervention” the following appears:
17/10/2008 … Mother acknowledged that she has been drinking more lately but has not had a drink for a week. Parents discussed marijuana use and stated they had 1 or 2 cones a day which they do not believe affect their parenting. The mother clarified that she spends $80 a week on marijuana and has approximately ¼ of a gram per day… Concerns were raised in relation to the stated [sic] of the house.
…
On 5/11/2008 CP received a new report regarding all the children. The reported [sic] indicated that the mother was not coping with the children due to her mental health and that she required some respite (with the children temporarily out of her care) in order for her to prioritise her mental health by attending appointments. The reported [sic] stated that the mother also required some respite for [sic] the children so that she can attend to the state of the house and clean up… No concerns were observed in relation to the children’s immediate safety in their presents [sic] … [Ms P] stated that she was very stressed and sick of people thinking she was a bad mother. [A social worker] discussed a more intensive support service with the family and [Ms P] refused to work with a more intensive support service although agreed to continue to work with Anglicare.
As part of that same document, at paragraph 12.1, there is a table which appears under the following heading “Risk and Need Factors Warning List for [the child].” The following then appears:
Child Safety- Pattern and History:
Child has history of child protection substantiation.
Parenting Capacity/Family Composition:
Non-Biological Parent as Carer. Poor Parenting Skills/Knowledge. Severe or Inappropriate/Inconsistent Discipline. Substance Abuse. (bold in original)
There are other aspects of the table which raise concern for the child.
Considering all the above submissions and references to the evidence, we do not accept that this ground has been made out. No explanation was provided as to why Ms P did not, or could not, sign an affidavit. No explanation was provided as to why Ms P did not, or could not, give oral evidence, either by telephone or by video link, should that be necessary. We conclude that the Federal Magistrate was entitled to find Ms P was a very significant part of the Father’s proposal for the care of the child. Further, the evidence provided positive proof that she was using marijuana; that she was experiencing difficulty with her mental health; and that she was struggling with caring for the three children.
We are satisfied that the Federal Magistrate was entitled to draw an adverse inference from the Father’s failure to have Ms P give any evidence, or participate in the family report interviews with Mr C.

Ground 5

In Ground 5 it is contended that the Federal Magistrate erred and his discretion miscarried in his finding that the child would live in a more stable environment with the Mother than with the Father.
This ground addresses the findings made by the Federal Magistrate at [93] of his reasons to which we have already observed.
Another aspect of the Federal Magistrate’s reasons for judgment to which we refer in considering this ground, is contained in [95] where his Honour found that the Mother’s partner operated his own business in Brisbane. There is no challenge to that finding. This led his Honour to be satisfied that the child, should he live with the Mother, would live in a household where he was not exposed to drug use and where the “father figure” earned an income. That circumstance contrasted critically with the environment being offered by the Father.
The Father submits that the evidence from Mr C, in relation to the child’s stability, leads to the conclusion that the child’s stability is connected with people who are familiar to his daily life. The Father submits “in effect his sense of stability depends on continuing his current lifestyle which brought him regular contact with people such as the paternal grandmother and the paternal great grandmother.”
The Mother addressed a number of different aspects of the environment created by the Father for the child in Victoria. This included continuing drug use by both the Father and Ms P. It is submitted, that aspect should be contrasted with the unchallenged finding of his Honour that the Mother does not use any illegal substance.
The Mother points to the following conclusions, which it is submitted, were available to the Federal Magistrate from the evidence:
a)      The Father is unable to care for the child on his own and/or has not demonstrated a capacity to care for the child on his own;
b)      Ms P is suffering from a disability in a number of areas including drug dependency, mental health and her ability to provide a clean and sanitary home for the child;
c)      The Father had failed to take up the offer of the Department of Human Services in relation to classes providing parenting skills. His evidence gave no confidence that he would do so in the future;
d)      For six months of the year, prior to the trial, the Father found it necessary to access the Youth Substance Abuse Unit to obtain material aid assistance including food coupons for basic necessities such as milk. Evidence from the Youth Substance Abuse Unit showed the Father had not “attended appointments on a regular ongoing basis or significantly addressed his issues with cannabis whilst the writer was involved with him”; and
e)      Mr C considered the Father’s evidence, given in the hearing with respect to his use of cannabis, to indicate the Father was drug dependant.
We accept that there was not just one fact which led the Federal Magistrate to conclude that the child would live in a more stable environment with the Mother than with the Father. There were a number of relevant matters, many of which we were referred to by the Mother, which provided, in our view, ample support for the conclusion reached by the Federal Magistrate.
We conclude the Father has failed to make out this ground.

Ground 6

It is submitted in Ground 6 that the Federal Magistrate erred and his discretion miscarried in finding that the Father could not properly care for the child on his own and by giving weight to that finding.
In oral submissions the Father conceded that this ground only attacked matters of weight and discretion.
In submissions the Father referred to the Federal Magistrate’s reasons for judgment at [12] where his Honour said:
(a) The father is heavily reliant on the support of his mother, grandmother and fiancé for the proper care of [the child] and could not properly care for him on his own.
The submission on behalf of the Father is that the Father did not at anytime run a case that he would be caring for the child on his own. It is submitted that evidence was not directed towards that enquiry.
It is further submitted that the Mother was not required to show she would be caring for the child on her own. It is submitted she had support from her partner, family and friends.
His Honour said at [15]: “The father did not mount a case that the mother was incapable of properly parenting [the child]. Indeed at paragraph 46 of [Mr C]’s report dated 21 February 2008 the father stated that he considered the mother to be a ‘fundamentally good mother’”.
The Mother in submissions referred to the evidence of Mr C, in particular to the evidence that he would have concerns as to the Father’s parenting ability if he was caring for the child alone and unassisted. Mr C said the Father was close to the paternal grandmother and the paternal great grandmother and he felt the Father was motivated not to disappoint them. Mr C considered that the paternal grandmother and paternal great grandmother would encourage the Father to use professional services. This evidence, in particular, related to drug use by the Father and Ms P. Mr C considered those kinds of supports would bolster his level of parenting for the child.
We consider it reasonable, for the Federal Magistrate to have hypothesised, that the Mother did perform parenting tasks in relation to her children, at least part of the time, on her own. It was reasonable for his Honour to assume that at times when the Mother’s partner was away from the home working, the Mother was caring for the children, primarily on her own. That is not to say that the Mother may not have had assistance from the maternal grandmother and friends from time to time.
We do not accept that the Father has established the error explained in this ground. We accept that it was a reasonable matter for the Federal Magistrate to consider whether the Father, on his own, either had cared for the child or could care for the child in the future. To investigate a possibility of whether the Father could care for the child on his own is not to reject or ignore the Father’s case that he would be caring for the child in the future with the assistance of the paternal grandmother, the paternal great grandmother, Ms P and government departments.

Ground 7

In Ground 7 it is contended that the Federal Magistrate erred and that his discretion miscarried in his finding that the Father’s current relationship was fraught with difficulty and was likely to expose the child to unacceptable behaviour.
No specific submissions were directed to this ground and in the circumstances we will treat it as abandoned.

Ground 8

It is asserted in Ground 8 that the Federal Magistrate erred and that his discretion miscarried in his finding that the Mother is more likely than the Father to facilitate an ongoing relationship with the other parent and by giving weight to that finding.
In oral submissions the Father said this ground attacks the Federal Magistrate’s provision of weight to evidence and also claims an error of law insofar as the Federal Magistrate refused to accept material into evidence from the Victorian Police.
The ground attacks a finding in [12] of the Federal Magistrate’s reasons which was expressed as follows:
(e) The mother is more likely than the father to facilitate an ongoing relationship with the other parent.
The Father submits that, in reaching this conclusion the Federal Magistrate failed to take into account the negative attitude of the Mother to the Father which led to her raising allegations to various professionals about physical and sexual abuse. It is submitted those allegations were not substantiated and his Honour did not accept the evidence of the Mother’s witness, Ms A.
In submissions, attention was drawn to [77] and [78] of his Honour’s reasons:
77. I accept the submissions by the Independent Children's Lawyer that for the father to present as going from a chronic drug user to a position of total abstinence is misguided. The Independent Children's Lawyer submitted that for the father to continue as primary carer of [the child] he would need outside therapy in order to overcome his addiction. The father has demonstrated an inability to comply with therapy or any serious attempt to withdraw from using cannabis.
78. All of these matters lead to a concern in the mother, which I accept is genuinely held and appropriate, that once proceedings are concluded the father will not promote a relationship between her and [the child].
It is submitted that [77] and [78] appear to be the basis for the Federal Magistrate’s conclusion in that the Mother is more likely than the Father to facilitate an ongoing relationship with the other parent.
The Father submitted that the evidence set out in the cross-examination of the Mother provides the basis for the complaint that his Honour erred in refusing to allow the Father to tender documents produced by the Victorian Police (Transcript, 15 December 2008, p 47).
It was put to the Mother in cross-examination that the Victorian Police, in relation to a complaint made to them in February 2007, considered the complaint was “a malicious notification by the mother.” Counsel for the Father then sought to tender documents produced by the Victorian Police on the basis that they were “business records”.
An exchange occurred between the Father’s counsel and the Federal Magistrate, in relation to the admission into evidence, of documents produced under subpoena by the Victoria Police (Transcript, 15 December 2008, p 48 to 49). A discussion took place as to the application of s 69(3) of the Evidence Act 1995 (Cth) (the “Evidence Act”). The Federal Magistrate questioned how a document, prepared as part of an ongoing police investigation by the Victorian Police Department, would not infringe upon s 69(3) of the Evidence Act.The Federal Magistrate also raised the question of the application of s 69(3) of the Evidence Act to material sought to be tendered from documents provided under subpoena by the Victorian Department of Human Services.
In discussion between the Federal Magistrate and counsel for the Father, the Federal Magistrate said to counsel for the Father “both of which seem to me, at least superficially, are charged under a statute with investigating criminal behaviour or behaviour that amounts to the breach of the statute” (Transcript, 15 December 2008, p 49) to which counsel for the Father responded:
Well, [we] have to accept that as far as the Victorian Police are concerned. As far as the Department of Human Services is concerned; [they] investigate all sorts of the allegations; some of which naturally fall under what might be termed as a criminal behaviour … [o]r breach of the statute. Accept it falls under that umbrella, yes.
The Federal Magistrate then said (Transcript, 15 December 2008, p 50):
Well I’m prepared to infer from the fact that presumably there’s a covering letter, that they’re actually documents that are business records. But I have some difficulty in seeing how any representations contained in the documents are admissible if they’re generated for the purpose of investigating either criminal or statutory offences.
Ultimately at the conclusion of submissions in relation to the attempted tender of records from the Victorian Police Department and the Victorian Department of Human Services, counsel for the Father did not press the tender of either group of documents.
We observe that the proceedings being heard by the Federal Magistrate were proceedings to which Division 12A of Part VII of the Act applied. They were proceedings therefore to which s 69ZT of the Act applied. That section is as follows:
Section 69ZT
Rules of evidence not to apply unless court decides
(1)These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3)Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a)the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i)the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4)If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5)Subsection (1) does not revive the operation of:
(a)a rule of common law; or
(b) a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection. (bold in original)
It is clear, from the transcript, that the Federal Magistrate did not comply with s 69ZT(3) of the Act, but rather, determined to rely on a particular Division or Part of the Evidence Act, which is specifically excluded as applying to “child related proceedings” as specified in subsection (1)(a) of the section.
Indeed the whole of the discussion between the Federal Magistrate and each of the two counsel who addressed him, appeared to be conducted in a vacuum of knowledge as to the existence and operation of s 69ZT of the Act. Counsel for the Independent Children’s Lawyer also offered no assistance to the court in relation to argument.
Section 69 of the Evidence Act falls within Part 3.2 of that Act. Its operation is specifically excluded by s 69ZT(1)(c) of the Act so far as the hearing of child related proceedings are concerned.
The Federal Magistrate was able to conduct the hearing by applying one or more of the provisions of a Division or Part specifically mentioned in subsection (1) of s 69ZT of the Act if he fulfilled the obligations imposed by subsection (3).
A determination pursuant to subsection (3) requires reasons which clearly illustrate the provisions of the subsection have been considered and applied. A conclusion that part of the Evidence Act, specifically designated as not applying to child related proceedings, was being applied by a Federal Magistrate, can not arise by the mere application of such a section of that Act, as was the case in the determination under appeal.
In our view, the discussion which took place between counsel for the Father and the Federal Magistrate on 15 December 2008 should have been about the weight which could be given by the court to the evidence sought to be tendered by the Father (i.e. the provisions of s 69ZT(2) of the Act). In the circumstances of this case, had such a discussion ensued, the probability was that the Father’s counsel would have conceded the weight which could properly have been given to the evidence sought to be relied upon was negligible.
In our view, the complaint fails for the following reasons:
a) Ultimately the tender was not pressed on behalf of the Father; and
b) As best can be discerned from the submissions made on behalf of the Father, the purpose of the tender was to establish that a police officer had considered those specific allegations, made to the Victorian Police, were malicious and had been made as a result of some deliberate action on the part of the Mother. Without the Federal Magistrate being able to see the factual basis upon which a police officer had so concluded, it would be inappropriate to give any such finding any meaningful weight.

In our view the Father has failed to make out this ground.

Ground 9

It is submitted in Ground 9 that the Federal Magistrate erred and that his discretion miscarried in his finding that the Father’s parenting of the child was such that he allowed the child to display aggressive and volatile behaviour, being against the evidence of Mr C, and that his Honour wrongly gave weight to that finding.
The genesis of this ground is found in the following extract from the Federal Magistrate’s reasons for judgment:
42. There is no evidence that there is any developmental reason for [the child]’s challenging behaviour. The mother was not challenged in her evidence, and nor was her partner, that [the child]’s behaviour settles when he is in her care. I therefore conclude that the father’s parenting of [the child] is such that he allows the child to display aggressive and volatile behaviour. That may be partly explained by the fact that the father himself concedes that he has an anger management problem and yells when he is in a bad mood. I do not accept that the father could contain himself such that he never yelled at [the child] or in his presence.
The Father submits that the Federal Magistrate’s finding ignores the evidence from the paternal family that the child’s behaviour also settles in the weeks after his return from visiting his Mother in Queensland and the evidence of Mr C that the concerning behaviour is most likely caused by the stress and anxiety associated with being moved between the Mother’s and Father’s households. It is submitted that such evidence by Mr C was not challenged.
It is also submitted in relation to this ground that it attacks not only a miscarriage of discretion but also alleges a mistake of fact.
The Federal Magistrate’s finding at [42] does not amount to a finding that the child’s behaviour has not or would not settle following the return of the child to the Father after the child had spent time with the Mother.
The Federal Magistrate observed the behavioural issues of the child from [35] to [43]. The particular behaviour which concerned his Honour was that the child was easily angered, frustrated and was physically aggressive. There was also a complaint that he used “bad and inappropriate language.”
The Federal Magistrate also considered the evidence of the child’s behaviour. In particular, he considered the objective evidence relating to same. His Honour had before him a letter dated 15 February 2008 from the Principal of W Childcare. The child attended that centre during the five weeks he lived with his Mother in early 2008. A vast improvement was noted in his behaviour over that time. His Honour was entitled to consider that evidence as reliable.
The Federal Magistrate considered reports from G Childcare dated 8 September 2008 when the child was in the care of his Father. Behavioural issues were described in relation to the child. These included the child putting himself through risky actions including biting himself and throwing himself on the floor in anger. The Federal Magistrate also referred to the paternal grandmother telling Mr C that the child’s behaviour was so challenging that he had been tested for autism.
By far the most condemning of all evidence came from Ms K’s note dated 15 October 2009. As explained earlier, Ms K is an officer in the Victorian Department of Human Services. She recorded that the Father and Ms P used foul language in the presence of the children. She also noted when visiting Ms P’s residence that the state of the house was “shocking and very untidy” and “one of the worst, if not the worst she had seen” (italics in original). She noted there were other undesirable people there. His Honour was entitled to treat that evidence as reliable.
The Federal Magistrate then considered the evidence of the Father where he had conceded he suffers bad moods and yells. The Father had admitted a problem with anger management. The Father conceded that the child had a difficulty with sharing and at a child care centre would become aggressive with other children. The Father agreed that staff had been unable to address that behaviour adequately. The Father did not draw any nexus in time between that behaviour and a visit to the Mother.
It was all of those matters which led his Honour to the conclusion complained of in this ground.
In relation to the evidence relied upon by the Father, our attention was drawn to paragraph 27 of the affidavit of the paternal grandmother sworn on 3 December 2008. She said: “I see [the child] throwing tantrums less and less. He now enjoys going to crèche and is much better at socialising with other children than in the past.”
In the updated family report Mr C said at paragraph 106:
I accept that [the child] has demonstrated some concerning behaviour at times. I consider it most likely that he has experienced stress and anxiety associated with somewhat unrealistic expectations that he spend extensive periods of time away from familiar carers. In my view it is predicable that emotional or psychological distress would manifest in the form of behavioural problems. With the exception of [Ms A]’s reported view there appears to be some agreement that [the child]’s behaviour has been improving. I consider it likely that his gradual maturation has had a role in this. It is also possible that [Mr Horan] has developed some more useful parenting techniques from his involvement with the Department of Human Services.
We note that the abovementioned passage from the updated family report is dated 21 November 2008. We note that the concerning behaviour reported by Ms K on 15 October 2009 where the Father and Ms P use “of a lot of foul language in the presence of the children” at that time would not indicate the development of any insight or use of parenting techniques by the Father and Ms P.
There is no issue that the substantial care for the child since he was six months of age has been overseen by the Father, with the assistance of his friends, family members and varied government departments.
In light of the matters referred to in considering this ground, we do not consider that the ground has been established.

Ground 10

In Ground 10 it is contended that the Federal Magistrate erred and that his discretion miscarried by placing any or too much weight on the evidence of Ms A.
In [44] of his reasons the Federal Magistrate set out details of Ms A and the circumstance of her being a witness in the proceedings. He noted that the evidence she sought to give related to a period prior to June 2007 when she was 15 years of age.
The Federal Magistrate said at [46]:
I accept that [Ms A] is closely aligned with the mother. Many of the criticisms of her evidence made by the Independent Children’s Lawyer and the father are valid. [Ms A] was vague both as to the dates on which events occurred, and as to the particulars of those events. [Ms A] herself accepted that she was smoking marijuana daily at the time the events occurred. For those reasons I would not be prepared to place any great weight on [Ms A]’s evidence taken in isolation. However a number of points made by [Ms A] appear elsewhere.
The Federal Magistrate then went on to refer to the evidence of Ms K which had been referred to by him earlier in his reasons at [40].
The Federal Magistrate at [47], [48] and [49] of his reasons referred to Ms A’s allegation that the Father’s house was very dirty, that the Father was a regular marijuana user and that the Father yelled at the child. There was other evidence upon which his Honour was prepared to rely which was specified by him in those paragraphs and which attested to those same matters. He therefore did not have to rely on the evidence of Ms A in relation to those issues of fact. His Honour at [50] stated that he did not accept Ms A’s evidence in relation to the extent of physical abuse allegedly perpetrated by the Father against the child. Further, his Honour said that he did not accept that a fight had occurred at the Father’s residence resulting in his opponent being pushed through a window in the child’s presence. He further rejected Ms A’s evidence that the Father had kicked the child three metres across a room like a football.
The Federal Magistrate stated at [51] that he was prepared to accept part of Ms A’s evidence that is consistent with other evidence before the court which included that “the father has a temper, regularly uses drugs, and has lived in conditions that are not as sanitary as most people would expect.”
At the conclusion of reviewing all the findings made by the Federal Magistrate, in relation to the evidence provided from Ms A, it is clear that his Honour could have made all of those findings without Ms A having ever given evidence. It is clear that he did not accept her evidence unless it was corroborated by reliable evidence.
We cannot see that the Federal Magistrate relied, in any meaningful way, on the evidence of Ms A and accordingly, we are satisfied that the ground is not made out.

Ground 11

In Ground 11 it is contended that the Federal Magistrate erred and that his discretion miscarried by placing insufficient weight pursuant to s 60CC(3)(d) of the Act on the effect on the child of separating him from his Father and other family members with whom he had been living.
This ground also addresses the findings made by the Federal Magistrate at [93] of his reasons to which we have already observed.
Section 60CC(3)(d) of the Act specifies that the court must consider:
d) The likely effect of any changes in the child’s circumstances, including the likely affect on the change of any separation from:
i) Either of his or her parents; or
ii) Any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
The Federal Magistrate set out in considerable detail, throughout his reasons, details of the Father’s care for the child and the care provided by his supporters. In particular, his Honour referred to the involvement of Ms P, the paternal grandmother and the paternal great grandmother. His Honour referred to the evidence of the paternal grandmother. There was no evidence from Ms P or the paternal great grandmother.
In [89] of his reasons, the Federal Magistrate referred to the evidence of Mr C. He said: “At that stage [Mr C] reported that there were potentially serious consequences in regard to interruptions to a child’s primary attachment relationship”.
His Honour noted that the paternal great grandmother, although being significantly involved in the care of the child, did not give oral evidence nor did she file an affidavit.
His Honour noted at [92]:
[Mr C] opined that a change of residence would be quite traumatic for [the child] in that he would have a sense of loss not only for his father but a number of people familiar to his daily life. He says that the theory would caution against that kind of dramatic move. However, at T52/5 [Mr C] said that the concerns that he expressed in his report about the adverse consequences of a change in residency was not as valid given [the child]’s current age as they were at the time he did the report.
We are satisfied that his Honour addressed s 60CC(3)(d) of the Act. His Honour expressly dealt with the impact upon the child of separation from the Father, the Father’s family and Ms P. The Federal Magistrate’s reasons, when considered as a whole, provide a clear understanding of why his Honour determined that separating the child from the principal care of the Father and paternal family was in the child’s best interests.
Other aspects of his Honour addressing obligations under s 60CC of the Act are set out in Ground 12. Where relevant, we incorporate our determination of that ground here.
We find this ground has not been made out.

Ground 12

In Ground 12 it is contended that the Federal Magistrate failed to give reasons or adequate reasons to support the findings in relation to the additional considerations in s 60CC(3) of the Act.
It was submitted on behalf of the Father that in addressing s 60CC of the Act, his Honour “picked and chose” and that he did not deal with each of the subsections within s 60CC.
Counsel for the Father was asked to specify which of the subsections were not addressed in the reasons. We were not directed in answer to that request to any particular subsection.
The complaint, in essence, is one as to form. It was submitted the Federal Magistrate should have proceeded to deal individually with each of the subsections of s 60CC of the Act and he should have tested each subsection against his findings.
The decision in Goode & Goode (2006) FLC 93-286 and Bennett & Bennett (1991) FLC 92-191 were referred to as authority for the submission put by the Father.
We have already observed what the Full Court said in Collu & Rinaldo at [361] and [362] in relation to an appeal against parenting orders. The Full Court also said:
355. However, as we have observed, in determining best interests the obligation is to “consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial Judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out”: Smith and Smith [(1994) FLC 92-488)].
As can be seen from earlier discussion where in these reasons we consider that this is a case where, as in A v J, it can safely be said that the Federal Magistrate considered and evaluated all the relevant evidence and took into account all relevant factors.
The reasons for judgment in this case was not structured in a manner which set out as a heading for each of the subsections of s 60CC of the Act, in particular, s 60CC(3). Such a structure assists this court and the parties to clearly see that the mandatory requirement under the s 60CC(1), that the court “must consider the matters set out in subsections (2) and (3)” has been achieved.
There is no requirement in the Act to format a parenting decision in a particular way. What is required, is for the judgment to clearly illustrate that each of the relevant subsections of s 60CC have been addressed and considered as required by subsection (1).
As stated earlier, the Father was unable to provide reference to a specific subsection of s 60CC(3) of the Act which, it is alleged, was not addressed by the Federal Magistrate.
Having considered the reasons for judgment as a whole, we are satisfied that his Honour did consider all of the matters referred to in s 60CC of the Act and although it has required a careful reading of the reasons for judgment and a somewhat laborious process in checking each subsection of s 60CC against all of the paragraphs of the judgment, we are satisfied that his reasons are sufficient to enable us to see that all of the “additional considerations” were dealt with and to see that his Honour regarded some of the considerations as of far greater significance and importance in this case than others.
We do not accept the errors contended for in this ground.

Conclusion

Although the grounds of appeal addressed individual aspects of the Federal Magistrate’s reasons there was a final submission of the Father which addressed the overall decision. The Father submitted as follows:
His Honour did not give sufficient consideration to the important bond attachment of the child to the father and his supporters who were significantly involved with his day to day care. Had that occurred then His Honour should have concluded it was in the best interests of the child to remain in the primary care of the father.
In our view, the reasons for judgment, read as a whole, demonstrates compelling reasons for the determination which the Federal Magistrate reached. There were key aspects of the Father’s care proposals for the child which were very worrying and compelled, in a balanced consideration of the evidence, when measured against the provisions of s 60CC of the Act, the conclusion reached by his Honour. There was, by comparison, far less concern with the care proposal of the Mother although, as his Honour pointed out, some aspects of her care proposal were not optimal.
The determination of this parenting case by the Federal Magistrate could not be described as simple and uncomplicated. It took four days of hearing to determine. Those days spanned a period of more than four months. The case took three and a half years to determine. There were two family reports prepared for the hearing. There were significant changes in the needs of the child over that period of time. The child was only 11 months of age when the Mother commenced the proceedings. He was four and a half years when judgment was given. After consideration of the evidence, which his Honour had before him and to which we were referred, we are comfortably satisfied that the discretion which reposed in his Honour’s reasons for judgment were properly exercised and the correct result was achieved.
We propose to dismiss the appeal.

Costs

At the conclusion of the hearing of the appeal we heard submissions as to costs.
The Father submitted that should the appeal be successful, then costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be provided to him. The Father was not legally aided and his funding was being supplied by his family. If the appeal was unsuccessful the Father submitted that a costs order should not be made against him. It was clear on the evidence before the Federal Magistrate that the Father’s capacity to meet any costs order would be extremely limited.
The Mother sought an order for costs in the event of the appeal being unsuccessful. The Mother was the recipient of Legal Aid for the appeal.
No application for costs was made by the Independent Children’s Lawyer.
We are not satisfied that the Father has any capacity to meet an order for costs. The Mother has been funded by Legal Aid Queensland and whereas we accept, it is probably a condition of a legal aid grant to the Mother that she seek an order for costs, we do not consider that the circumstances in this case would warrant the court departing from the provisions of s 117(1) of the Act. In so determining, we acknowledge that the Father was wholly unsuccessful in the appeal and the Mother was successful in opposing the appeal. We also accept that it was appropriate and important for the Mother to be represented at the hearing of the appeal.

I certify that the preceding one-hundred and ninety-six (196) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court May, O’Ryan & Le Poer Trench JJ delivered on 14 October 2010.

Associate:

Date: 14 October 2010