LENARD & ROGERS - [2012] FamCAFC 217

FAMILY COURT OF AUSTRALIA

LENARD & ROGERS

[2012] FamCAFC 217

FAMILY LAW ─ APPEAL ─ CHILDREN ─ Whether the trial Judge ought to have ordered the update of the expert’s report to cure a deficiency in the report touching on a fact in issue in the trial before her Honour which was necessary for her to resolve ─ No argument advanced to show what evidence relevant to the issue in fact at trial could have been added by the expert to that which he had already said in his report and evidence ─ Not established that the trial Judge erred in not ordering an updated expert report ─ Challenges to the trial Judge’s exercise of discretion not made out ─ Not established that the trial judge did not afford the mother procedural fairness ─ No appealable error established ─ Appeal dismissed

Family Law Act 1975 (Cth)

Gronow v Gronow (1979) 144 CLR 513
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

APPELLANT:

Ms Lenard

RESPONDENT:

Mr Rogers

FILE NUMBER:

SYC

1585

2010

APPEAL NUMBERS:	EA	94	of	2012
EA	99	of	2012
EA	129	of	2012
EA	138	of	2012

DATE DELIVERED:

21 December 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Ainslie-Wallace & Ryan JJ

HEARING DATE:

23 November 2012

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

13 July 2012

20 July 2012

7 September 2012
18 September 2012

LOWER COURT MNC:

[2012] FamCA 551
[2012] FamCA 600
[2012] FamCA 791
[2012] FamCA 799

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr C M Simpson SC

SOLICITOR FOR THE APPELLANT:

Alamein & Co Lawyers

COUNSEL FOR THE RESPONDENT:

Mr R G Lethbridge SC

SOLICITOR FOR THE RESPONDENT:

Sweeney Tiggemann Solicitors

Orders (as amended pursuant to rule 17.02):

That the Appeal EA 94 of 2012 against the orders of Rees J of 16 July 2012 be dismissed.
That, to the extent that they have not been discontinued, Appeal EA 99 of 2012, Appeal EA 129 of 2012 and Appeal EA 138 of 2012 be dismissed.
That the appellant mother pay the respondent father’s costs of and incidental to the appeal as agreed or failing agreement as assessed on a party/party basis.

NOTATION: It is noted that the Full Court issued orders on 14 December 2012 which have now been amended pursuant to rule 17.02 (the “Slip Rule”) and re-issued with the reasons for judgment delivered 21 December 2012.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Numbers: EA 94 of 2012, EA 99 of 2012, EA 129 of 2012 and EA 138 of 2012

File Number: SYC 1585 of 2010

Ms Lenard

Appellant

And

Mr Rogers

Respondent

REASONS FOR JUDGMENT

Introduction

On 14 December 2012, the Full Court dismissed the appeal of Ms Lenard (the mother) against a series of orders made by Rees J in parenting proceedings between the mother and Mr Rogers (“the father”). Our reasons for dismissing the mother’s appeal follow.
By Appeal EA 94 of 2012 filed on 17 October, the mother appealed against parenting orders made by her Honour on 13 July 2012 in relation to two children, Y (born in 2005) and X (born in 2003). The father opposed the appeal and sought to maintain her Honour’s orders.
After the delivery of reasons and the making of orders in the parenting matter, the mother made two unsuccessful applications that her Honour stay the operation of her orders in relation to which her Honour made two costs orders against the mother. The mother appealed against each of those orders. The appeals were heard at the same time as that against the parenting orders and are considered within these reasons.

Background

The issue before her Honour concerned where the two children were to live. The mother sought an order that the children live with her in Melbourne. The father opposed that move and sought that the children live with him in Sydney.
The parties married in December 1993 and separated in February 2009. After separation, the children lived with the mother and the parties were able to negotiate time spent by them with the father albeit not overnight. It seems that the father was unable to have the children overnight with him because his then accommodation was unsuitable.
It appears that after December 2009 when the mother took the children to Melbourne to spend time with her mother there, without informing the father, arrangements between the parties about the time to be spent between the father and the children became difficult.
In May 2011, the mother told the father that she and the children would be moving to live in Melbourne at the beginning of July. She took the children to Melbourne in June and enrolled them in school there, withdrawing them from the school they had attended in Sydney.
On 9 July 2010 a federal magistrate, at the father’s application, ordered the mother to return with children to Sydney and re-enrol them in the school previously attended. Further orders were made in the Federal Magistrates Court for the father to spend a week with the children at his parents’ home.
Further orders were made in August 2010 with the consent of the parties providing for the father to spend time with the children during the week and on weekends.
It seems that the arrangements for the father to spend time with the children were, again, beset with difficulty.
Her Honour was assisted by a report prepared by an expert, Dr B who saw the family in May 2011 and whose report, dated July 2011, was made available to them.
The father re-married. He and his wife, Mrs Rogers have a child M who was born six weeks before the final hearing. Mrs Rogers was not interviewed by Dr B nor was he made aware that at the time he was conducting interviews that she was expecting a child with the father.
The issue at trial before her Honour was, as we have said, where the children would live and with whom.
As at the date of trial, both parties sought an order for equal shared parental responsibility for the children.
Her Honour ordered that the children live with the father in Sydney and spend substantial and significant time with the mother.

The trial Judge’s reasons

The trial Judge commenced her reasons by noting that although the issue for determination was the primary place of residence of the children, the mother had, for the first time intimated during her cross-examination that she proposed to move to Melbourne whether or not the court permitted the children’s residence to be changed. Her Honour observed that the mother had not raised this with the expert nor had she given any evidence of it in her evidence in chief at [6].
Her Honour recorded the difficulties and conflicts surrounding the father’s attempts to see the children on their return from Melbourne in January 2010. She observed that the mother’s case was that the father did not see the children because he was not sufficiently interested and rejected that evidence at [18]. She further found that there was no explanation given by the mother for her “consistent refusal to accede to the husband’s request for time with the children on a Saturday or Sunday when he was not working” at [28].
The trial Judge observed that on 11 May 2010 the mother informed the father by letter sent express post that she and the children would move to live in Melbourne at the beginning of July 2010. On 11 June, the father, being informed by the children’s school that they had not been attending and had not attended for a week, went to the mother’s house where he was met by police who told him that the children were in Melbourne with their maternal grandmother at [35] and [37].
Her Honour accepted the father’s evidence that he had not been informed by the mother that the children had been taken to Melbourne at [38].
Equally her Honour found that the mother had withdrawn the children from their school in Sydney and re-enrolled them in school in Melbourne without the knowledge or consent of the father at [43].
On the mother’s return to Sydney with the children and after the orders were made for time to be spent between the father and the children, her Honour observed that difficulties in making those arrangements persisted and chronicled those matters in some detail. She said:
76.On behalf of the wife it was argued that she had at all times complied with the orders of the court in relation to the times the children should spend with their father. It was her position that the orders required him personally to collect the children and that she was therefore entitled to refuse to hand the children over to any one other than the husband.
….
78.While I do not accept the wife’s narrow interpretation of the orders, it is not her strict compliance with orders, but her willingness to encourage and facilitate the children’s relationship with their father, that I must consider.
79.The wife’s refusal to allow the children to be collected by anyone other than the husband had the effect that on many occasions as set out earlier, the children were deprived of the opportunity to enjoy his love and company. She gave no convincing explanation of her considered decision to deprive the children of the time with their father.
Her Honour then turned to consider the best interests of the children. She noted the observations of the expert that when interviewed, the children appeared to have been “rehearsed and expressing adult concerns” at [83]. She noted that Dr B observed the children to appear very happy and relaxed in their father’s company at [85].
As to their wishes, her Honour recorded the expert’s view that they had been influenced by the mother who, he observed to have prompted them in what to say. Her Honour concluded that there was no reliable evidence of the children’s wishes at [87].
Her Honour recorded at [88] Dr B’s opinion that the children had a close, loving relationship with both parents “… or despite the stated preference for the mother, the interaction with both parents was equal and I formed the view that the closeness with both parents was equal.”
The trial Judge further noted that although the expert had not seen the children with Mrs Rogers, she had given evidence about her relationship with the children and what she said was a “growing and strengthening relationship” with them. Her Honour noted that Mrs Rogers gave evidence about the children’s relationship with her baby son, M. Her Honour concluded that Mrs Rogers demonstrated sensitivity to the children’s reactions if they were to live with the father at [91].
Her Honour continued:
92.... There is no independent evidence of the relationship as it exists now between the children and their stepmother but neither is there any suggestion from the wife’s case that they have other than a good and appropriate relationship.
Turning to the mother, her Honour said:
93.... There was nothing in the wife’s affidavit evidence, or in her oral evidence, which gave any comfort that the wife’s attitude in relation to the children’s spending time with their father will be different, if she is permitted to live with the children in Melbourne, and the Court can have no confidence that, in the event the wife is permitted to relocate with the children to Melbourne, the children’s relationship with their father will be sustained.

Her Honour noted:
95.In his oral evidence, Dr [B] said that, of the factors which must be taken in account when determining what arrangements were in the best interests of the children, the greatest weight should be given to the parent who is most likely to give the children the opportunity to have a relationship with the other parent.
As to the proposed move to Melbourne, her Honour said:
99.I do not accept that the wife will move to Melbourne if the consequence is that the children will live in their father’s care. Although she said in her oral evidence that this was a position that she had come to in the last few months it is not a position that she appears to have given a great deal of thought. Throughout the hearing, she had no proposal about the time she would spend with the children if she moved to Melbourne and they remained in Sydney. She gave no evidence-in-chief about her intentions or her proposals. She appeared to have given no consideration at all to the effect on the children if she moved to Melbourne and they remained in Sydney although she was adamant in cross-examination that the children were her priority rather than moving to Melbourne.
Her Honour did not accept the mother would move to Melbourne if the consequence was that the children would live with the father in Sydney at [99]. She referred to four different scenaria put to the court on behalf of the mother at [100], being that the children live with the mother in Melbourne, they live with the father in Sydney and the mother lives in Melbourne, the children live in Sydney with the mother and the children live in Sydney with the father and the mother lives in Sydney. The trial Judge noted that the mother gave no evidence about her proposals in relation to each of these scenaria other than it was contemplated that she might live in Sydney whether the children were living with her or not. Her Honour concluded at [102] that if the mother remained living in Sydney there are no practical difficulties with the children spending time with both parents. If the mother moved to Melbourne with or without the children, the trial Judge found at [103] there would be considerable difficulty in arranging for the children to spend time in Sydney or in Melbourne with the non-resident parent.
Her Honour said:
107.In his report, Dr [B] says “I recommend that, should there be a strengthening of alienation, between the children and the father or should the mother not be facilitating the contact and arrangements become unpredictable or irregular then a change of residence to the father may be the only way of ensuring that the children have a good relationship with both parents.” (Her Honour’s emphasis)
Her Honour referred at [108] to the timing of the delivery of this report to the parties and observed that it was in July 2011 that the mother decided that the children would not be handed over to third parties. She said that from July 2011 the “contact arrangements were increasingly unpredictable and irregular.” She continued:
108.... I can make no finding that there has been a strengthening of alienation of the children from their father and I do not do so. However I am satisfied that since July 2011 the wife has not been facilitating contact and arrangements have become unpredictable and irregular. (Her Honour’s emphasis)
Her Honour considered at [110] the parties’ evidence about arrangements for the children’s education finding that as both of them were teachers, the children’s educational needs would be met by them. She referred to the father’s evidence of the children’s absences from school, some of which her Honour said were unexplained and concluded that the father’s concerns about the mother’s commitment to having the children at school were legitimate at [117].
The father had alleged that the mother had been violent to him during the relationship, allegations that the mother denied. Her Honour observed that in January 2010 the mother stabbed the father with a key with the result that he was taken to hospital for treatment and the mother charged with assault. She pleaded guilty to the charge and was placed on a bond to be of good behaviour for six months. Her Honour found this incident to “cause some concern about the wife’s propensity to react violently” at [121]. Her Honour concluded that the father was justified in expressing concerns that the mother’s behaviour may cause him difficulties in the future at [123].
Her Honour observed that she had asked counsel then appearing to consider the possibility of her making an interim order “that the children live with the wife in Sydney as a way of ensuring that orders in relation to the children’s time with the husband would be given effect” at [124]. Her Honour however concluded against such a course saying:
124.... While it may have the effect that the wife will comply with orders in their spirit, and not just their letter, for the period of the adjournment, there is no evidence that such a regime would have a positive effect on the wife’s willingness and commitment to foster the children’s relationship with their father.”
Her Honour then concluded:
125.In weighing the factors which I am required to consider, I have placed the greatest weight, in accordance with the expert evidence, on the willingness and demonstrated commitment of each parent to foster the relationship of the children with the other parent. Despite the orders made in the Federal Magistrates Court on 6 August 2010, the wife has repeatedly failed to facilitate the husband’s time with the children. During cross examination, the wife refused to accept any responsibility for the disruption of the husband’s time with the children and emphasised that it was because the husband had not complied with the orders by not collecting the children in person that he had not had time with the children. The wife provided no assurances that she would facilitate the father’s time with the children in the future. In light of these matters and those discussed above, I cannot be confident that if the children live with the wife, she will facilitate their time with the husband.
Her Honour placed weight on the opinion of the expert that while the children might be anxious about their mother if they did not live with her, he believed that they were robust and the move would not pose “too great an adaptation” for them at [126].
Her Honour, consistently with the parties’ applications that there be an order for equal shared parental responsibility, made orders that gave effect to substantial and significant time with the mother as proposed in the parties’ applications. Her Honour noted that neither parent sought equal shared time with the children.
As we have noted, her Honour ordered that the children live with the father and she made orders for the children to spend time with the mother.

The appeal

Some 16 grounds of appeal were raised in challenge to her Honour’s decision and orders. At the beginning of oral argument, grounds 10 to 13 were not pressed.
Leave was sought and granted to the appellant to add an additional ground of appeal.
In written submissions, senior counsel for the mother helpfully addressed the grounds in groups, as shall we.

Grounds 2, 5 and 6

Grounds 2, 5 and 6 provided:
2.The trial Judge made clear that Pt 12A of Pt VII of the Family Law Act 1975 (Cth) (“The Act”) applied to the hearing [...]. Her Honour failed to:
2.1Identify the issues in dispute in the proceedings and make the parties aware of what her Honour regarded as relevant issues in the case.
2.2Consider what evidence she required to enable her to adjudicate the issues.
2.3Consider the appropriateness of expert evidence. A court expert, who is Psychiatrist, gave written and oral evidence and he was not appointed by her Honour and she had no participation in the expert’s appointment or in settling what the expert was being to express an opinion about.
5.The trial Judge had expert evidence from two sources. First, a report dated 6 July 2010 of a Family Consultant, [Ms S]. The Family Consultant had interviewed the parties on 5 July 2010. Second, a report date 4 July 2011 from a Psychiatrist, Dr [B] [...]. The Psychiatrist had interviewed the parties on 24 May 2011. Her Honour failed:
5.1To consider the written report dated 6 July 2010 by the Family Consultant. Ms [S] also gave oral evidence on 20 December 2011 being the first day of the trial which her Honour failed to consider.
5.2To obtain an up to date report from the Family Consultant. On the first day of the trial her Honour simply accepted that the report did not need to be updated [...].
5.3To obtain an up to date report from the Psychiatrist. On 27 June 2012 the Psychiatrist was cross-examined in relation to his report of 4 July 2011 [...]. The Psychiatrist had not conducted any interviews in the period 24 May 2011 to 25 June 2012 or made any independent consideration of what had happened in this period.
5.4To consider all of relevant opinions of the Psychiatrist expressed in his written report of 4 July 2011.
5.5To consider at all the recommendations of the Psychiatrist in his written report of 4 July 2011.
5.6To order that the psychiatrist’s report be updated in circumstances where subsequent to the interviews the father had married; his wife had become an integral member of the household in which on his proposal (and ultimately her Honour’s orders) the children would reside and the father and his wife had a baby aged 6 weeks old at the time of hearing.
6.Having reached the conclusion that the mother would remain in Sydney if the children were not to be permitted to relocate to Melbourne her Honour erred in failing:
6.1To seek opinion of either the psychiatrist or the Family Consultant predicated upon an assumption of that fact;
6.2To identify when considering the evidence of the psychiatrist that much of the evidence she was considering was implicitly relevant to a proposal where the mother and the children were residing in Melbourne rather than Sydney and clearly called into play different considerations if it was assumed that both parents and the children were to continue to reside in Sydney. (Errors as in original)

Senior Counsel’s oral submissions gave great illumination to the gravamen of these grounds. We will deal with the challenges as articulated by him. Senior Counsel for the husband too addressed the grounds in a similar way.

Contextual background

Some background is useful to give a context to the grounds.
The first day of the trial took place on 20 December 2011. At that time both parties were present and each was represented. Her Honour gave both parents an opportunity to outline their cases to her and heard from counsel, both of whom had prepared case outlines. Counsel indicated to her Honour that the issues to be determined concerned relocation and parenting matters and teased what they said were the significant issues in the case.
Evidence was given by Ms M, the Family Consultant (formerly known as Ms S). Ms M told her Honour that she had not seen the family nor been made aware of what had happened in the life of the family for 18 months. She further indicated that she had not seen the report of Dr B. She had not met the children at any time.
Her Honour suggested to counsel then appearing for the parties that Ms M be given a copy of Dr B’s report and then she would seek additional evidence from her about the nature of the expert evidence required for the hearing. Having read the report, Ms M was asked whether in her opinion the court needed another report. She replied that she did not think so because Dr B’s report “appears to be very clear”.
We observe that no questions asked of her by counsel then appearing for the parties as to whether she wished to up date her own report or by way of challenge to her opinion that Dr B’s did not need to be updated. In so far as counsel then appearing for the mother is concerned, this may well have been a strategic forensic decision. This is apparent from an exchange between her Honour and the mother’s counsel about whether the doctor was required for cross-examination. Counsel reserved his position and said “…it favours the mother”. Equally, no submissions were made to her Honour on that day that Ms M ought to be asked to update her report.
True it is her Honour did not appoint the single expert albeit it is clear her Honour was familiar with his report and it was clearly available to all parties on the 20 December 2011. The Family Consultant gave no indication of any matters that might have not been addressed in it.
During this hearing, counsel for the father indicated that he had remarried in the context of informing the trial Judge that his new wife would be a witness in the proceedings. The following exchange then took place:
HER HONOUR: But she wasn’t involved, was she, with Dr [B’s] assessment?
MR SWEENEY: No
HER HONOUR: No
MR BATTLEY: On the last occasions she was….
MR SWEENEY: She saw Dr [B]
HER HONOUR: did she?
MR SWEENEY: but she was not a witness in the case otherwise.
HER HONOUR: No. No. But she saw Dr [B]?
MR SWEENEY: Yes.
HER HONOUR: Okay
The discussion then moved to a consideration of how long the hearing would take.
Mr Sweeney was mistaken. Mrs Rogers was not “seen” by Dr B in the sense that he interviewed her for the purposes of the report.
Dr B reported on the children’s references to Mrs Rogers.
It is against this background that the arguments on these grounds fall to be considered.
Senior Counsel for the mother asserted that the trial Judge was under the misapprehension that Mrs Rogers had been interviewed by Dr B. It was submitted that upon learning that she had not, it was incumbent on her Honour to call the hearing to a halt and order an updating report. It was argued that this somewhat “inquisitorial” role was entirely consistent with the obligations imposed on a trial Judge by Division 12A of the Act, particularly ss 69ZN and 69 ZQ. These sections contain the principles for conducting child related proceedings and set out the general duties imposed upon the Court to give effect to those principles. The gravamen of the submission was that contrary to Principle 2: the Court is to actively direct, control and manage the proceedings, her Honour ought to have ordered the update to cure a deficiency in the report touching on a fact in issue in the trial before her and which was necessary for her to resolve.
Quite when this deficiency came to her Honour’s attention is not altogether clear. Certainly on her enquiries on the first day what she was told was not correct. However, at that time Dr B’s report was available to the parties and it clearly refers to the father’s new wife.
At the first day hearing and to the extent that the grounds complain that her Honour “simply accepted” that the Family Consultant’s report did not need to be updated must be seen in the context that the very Family Consultant was asked by her Honour whether her report needed updating (clearly with a view to it being part of the evidence in the case) and she said it did not, deferring to the report of the expert. In circumstances where no submission was put to her Honour or suggestion made to the Family Consultant that she might reconsider, we find no force at all in this assertion. Equally, there was no application to her Honour that the expert’s report be updated in light of the father’s remarriage.
That the father and Mrs Rogers had a baby was mentioned in the mother’s trial affidavit and in that of the father.
When the matter came before her Honour for the continuation of the hearing, no application was made by counsel then appearing for the mother that any report be updated.
At trial, Dr B was called to give oral evidence. While being cross-examined by counsel then appearing for the mother, the issue of whether he interviewed Mrs Rogers was raised. Dr B said that, normally he would interview “key relatives” with the children. He agreed with the proposition of counsel that:
MR BATTLEY: And in this case, if her Honour were to determine that the children live with the father, she does not have the benefit of any observation that you would have made of the children’s interaction with [Mrs Rogers], the new [Mrs Rogers]?---Yes…
…
And if for the first six months or so the adult who was mainly in their lives by virtue of work commitments, as I understand it, [Mrs Rogers] is not working at the moment, although she has got the care of a young child who is six weeks. Would that be a factor that you would urge her Honour to consider in the context of making that decision?---Yes, very important.
Her Honour then pointed out to counsel that the children will be attending school each day, the father is a teacher and she did not see it as necessarily accurate to suggest that it was Mrs Rogers who will be “their primary carer”. Counsel agreed with her Honour and said “…I withdraw that, and I, obviously, will not be taking your Honour’s attention to that evidence the doctor just gave.” One might have thought that if was necessary to have Dr B update his report to reflect upon the father’s new wife and the new baby, if not before, the cross examination by counsel for the mother may have been the moment juste but no application was made and there, the issue rested.
While we do not cavil with Senior Counsel’s argument that Division 12A permits a trial Judge to make enquiries of her or his own motion, where in a trial no application is made, no reservations expressed, no issue raised and no cross examination made of the expert that his report is in some way deficient because of the failure to see Mrs Rogers with the children, it is difficult to make good a ground of appeal that challenges the trial Judge’s failure to do that to which no one in the case ever referred.
Senior Counsel for the father submitted that Mrs Rogers filed an affidavit in the proceedings in which she set out her observations of the children’s relationship with her and how they appeared to get on with the new baby. He correctly observed that no issue was raised in the hearing about that evidence. Further in the cross-examination of Mrs Rogers, it was not suggested to her that her relationship with the children and theirs with the baby was not as she asserted.
Thus while we are satisfied it was open to her Honour to order a further report from Dr B it was not incumbent on her to do so. We find no substance in this challenge to her Honour’s decision.
Ground 6 challenges her Honour’s failure to obtain an updated report from the expert when her Honour had formed the opinion that the mother would most likely remain in Sydney if the children were not permitted to relocate their residence to Melbourne. We repeat, had an application for this to happen been made, this argument may have had some force. When the trial commenced, her Honour heard for the first time that the mother’s view was that she would move to Melbourne whether the children accompanied her or not. At that time, as her Honour observed, there were before her four competing proposals by the mother, one of which was that she remained in Sydney if the children were to live in Sydney. The expert’s report was of assistance to her Honour in determining the issues falling properly within his expertise. No argument was advanced to show what evidence relevant to this issue could have been added by the expert above that which he had already said in his report and evidence.
The transcript reveals that the mother’s proposal she would live in Melbourne come what may was clearly explored in cross-examination of the expert. His answer to her Honour’s question in the exchange set out below probably explains why counsel for the mother declined her Honour’s invitation to ask questions arising therefrom:
What significance do you say I should place on the mother’s recent decision that she will go to Melbourne with or without the children?‑‑‑Well, I think that that’s quite extraordinary in many ways, your Honour. Most parents would, I would have thought, make it quite clear that, you know, what’s best for their children comes first and what’s best for the parent should come second. That – I’m not sure whether she’s playing brinkmanship, whether it’s a game that she’s playing, which is a potential high risk game, or whether she just feels so desperately in need to be with her own mother and sister that she’s prepared to leave the children, potentially, in Sydney and have a contact relationship with them, knowing that the children will be well enough cared for by the father and that she would then have a relationship on a, potentially, regular basis with them. So – but it does indicate that there is an intense need for her that is possibly making it difficult for her to put the needs of the children above her own needs.
We find no substance in this argument.

Grounds 1 and 14

Grounds 1 and 14 provided:
1.The trial Judge failed to identify the parties’ competing proposals. Her Honour identified the proposals of the mother but said nothing about the proposals of the father. The father only had one proposal namely that during the school term the children live with him and during each 14 day period spend each Wednesday evening and each alternate weekend from after school on Friday until the commencement of school the following Monday morning the mother and one half of the school holiday periods with each parent [...].
14.The trial Judge failed to consider the appropriate approach to be adopted when considering an application pursuant to Pt VII of the Act where one proposal envisages that one parent is seeking to relocate whether it be within a metropolitan area, intra-state or inter-state.
The thrust of this argument is that the trial Judge failed to evaluate the parties’ competing proposals and, while her Honour identified the mother’s proposals, she failed to pay close consideration to the father’s proposals in determining the matter before her. It was submitted that while her Honour referred to the father’s proposal that he will continue to live close to the children’s school, which her Honour found to be of benefit to the children, she did not test that assertion against the father’s disclosed income to determine whether it was a viable proposition. We were not taken to any part of the transcript in which counsel for the mother raised any issue about the father’s ability to achieve his stated intention to live near the children’s schools nor can we find any. In this regard, it appears that the complaint is that her Honour, absent any challenge by competent counsel then appearing for the mother, was obliged to raise an issue when none otherwise existed. We find this ground to be misguided.
Considering the reasons as a whole, it is clear that her Honour adequately evaluated the critical aspects of the parties’ competing proposals as part of her determination of the issue before her.

Grounds 3 and 4

In oral argument, Senior Counsel for the mother indicated that only part 3.3 of Ground 3 was pressed, that ground provided:
3.The “factual background” described by the trial Judge was largely, if not all, about the father’s alleged difficulties in spending time with the children from about April 2010 and incidents that commenced no earlier than December 2009 [...]. Her Honour failed to consider all of the relevant facts and in doing so the trial Judge failed to:
….
3.3Give due consideration to the mother’s conduct in complying with orders sought and obtained by the father, pending final hearing, with which he did not comply, but for which she was the subject of adverse comment.

Ground 4 was also relied upon in this context. It provided:
4.The trial Judge failed to properly consider, and then gave excessive weight to, the evidence of incidents in the period April 2010 to June 2012 that she identified as relevant [...].
It was submitted that her Honour failed to give sufficient attention to the evidence that, while there had been difficulties attending the father spending time with the mother, he did, in fact, spend considerable time with them.
This ground challenges the weight or importance that her Honour placed on the evidence before her. It is apposite here to recall the judgment of Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519-20; where his Honour 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.
We find no substance in this ground. Nothing put to us establishes that the trial Judge gave excessive or inadequate weight in any of the matters referred to in these complaints. Nor has it been demonstrated that her Honour failed to “consider” any of these matters.

Grounds 7, 8 and 9

Grounds 7, 8 and 9 provided:
7.The trial Judge failed to consider the relevant considerations in section 60CC of the Act and make findings about them.
8.There was only one substantive consideration that the trial Judge relied upon to make the orders namely the “willingness and demonstrated commitment of [the mother] to foster the relationship of the children with [the father]” [...]. Her Honour failed to identify which statutory consideration she was taking into account and failed otherwise to make findings about the consideration she was additionally required to consider by Part VII of the Act.
9.The trial Judge failed to consider, weigh and assess the evidence touching upon each of the relevant considerations and after a consideration of those matters, indicate to which of those considerations she attached greater significance and how all of those considerations balanced out.
This ground challenges her Honour’s consideration of the matters referred to in s 60CC of the Act. Essentially it is fuelled by her Honour’s failure to record by section number the statutory provisions she applied.
It was first argued that the trial Judge failed to take into account the relationship of the children and the maternal grandmother who lived in Melbourne. Although there was evidence before her Honour about this relationship, it was submitted that her Honour took no consideration of it when making her final orders. True it is that her Honour does not specifically refer to the children’s relationship with the maternal grandmother in the context of determining the issue of whether they should be permitted to locate their residence to Melbourne, however, it is to be observed that, having heard the mother’s evidence, or more particularly the lack of evidence about the range of her proposals to her Honour, the trial Judge determined that in fact, the most likely result would be that, if the children were not permitted to move to Melbourne, the mother would remain living in Sydney. In those circumstances, it seems that the children’s relationship with their grandmother, while undoubtedly a valuable one, was not particularly relevant to her Honour’s considerations. In circumstances where the children and maternal grandmother had always lived in different cities, it is difficult to understand how her Honour erred by adopting the approach she did.
This position is strengthened when regard is had to submissions made by counsel for the mother where nowhere was it suggested otherwise. As counsel for the mother explained, the significance of the maternal grandmother to her case was that she would be able to assist the mother who would be working.
As to the trial Judge’s consideration of the other factors to which the section relates, we accept the submission of Senior Counsel for the father, that her reasons demonstrate such a consideration. It is unnecessary for us to repeat those submissions. It is sufficient to record that during this hearing Senior Counsel for the father cross referenced her Honours reasons to the Act. In so doing he demonstrated what a reading of the reasons makes clear; namely that she did indeed take those statutory provisions into account to the extent that they were relevant to the issues for determination.
It follows that we do not accept the challenge contained in ground 8 that her Honour only considered one issue in determining the matter, that is, the mother’s willingness to facilitate the relationship between the children and the father.
As to the challenge contained in Ground 9 that her Honour was required to apportion weight to the various factors considered by her and indicated how all the factors “balance out”, we do not accept that contention to the extent that it implies some mathematical or formulaic approach. The determination of the issues before her Honour required the exercise of her discretion, taking into account the matters to which s 60CC refers. We accept that her Honour was required to explain how she weighed the factors and findings. Again it is apparent from her reasons for decision that she did. No error is here made out in relation to her Honour’s decision at [95] to accept the opinion of the expert that “of the factors which must be taken into account in determining the best interests of the children, the greatest weight should be given to the parent who is most likely to give the children the opportunity to have a relationship with the other parent.” It has not been demonstrated that her Honour failed to have regard to any relevant fact or circumstance, or that irrelevant facts or circumstances were relied upon by her.

We find no error as asserted by these grounds.

Ground 15

Ground 15 provided:
15.The trial Judge failed to give adequate reasons for judgment in the parenting proceedings.
It was argued that if her Honour did make findings in consideration of s 60CC factors, her reasons do not reveal what they were.
The decision of the Court of Appeal in the Supreme Court of New South Wales in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, and in particular the judgment of McHugh J, then a Judge of Appeal, is relevant at page 279:
… without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision. In my opinion the giving of reasons is correctly perceived as “a necessary incident of the judicial process” because it enables the basis of the decision to be seen and understood both for the instant case and for the future direction of the law.
In what respect the trial Judge’s judgment failed to reveal the process of reasoning which led to her Honour’s conclusion has not been identified. As other grounds of appeal agitated on behalf of the mother confirm, why the trial Judge decided the case in the way her Honour did is not in doubt.
This ground has not been made out.

Additional Ground:

The Trial Judge erred in discounting the possibility of an Interim Order on the ground it precludes a final property order and to the extend [sic] she did so because of a ‘lack of evidence such a regime would have positive effect on the wife’s willingness and commitment to foster the children’s relationship with the father’ she made a finding where she acknowledged there was no evidence and the mother was not afforded an opportunity to give evidence regarding the possibility. (Original emphasis)

Again, it is helpful to provide some context to this ground of appeal.
On the final day of the hearing, a document containing the mother’s proposals was tendered in the case. It became Exhibit 12. Her Honour then said:
HER HONOUR: Right. Mr Battley, Mr Siggins, there’s a matter that I’ve given some consideration to that I would like each of you to address. And if you need time to get some instructions, please let me know. If I were to come to the view that the children should live with the wife in Sydney primarily and that the father should have tie with them during the week and at weekends and school holidays, one way of ensuring that those orders are complied with would be to make them on an interim basis and stand the matter over for, say, 12 months, so that if there were a further deterioration in the mother’s compliance with the court orders in relation to the time the father spends---
MR BATTLEY: Well, with respect – with respect, your Honour, can I ask your Honour to qualify that by saying that’s a preliminary view.
HER HONOUR: It’s absolutely a preliminary view. It’s just –it’s one of the options that I have.
MR BATTLEY: No. No. I appreciate that that’s one of the options- with the mother’s compliance, we say the mother has complied.
HER HONOUR: well, I understand that you’re going to be saying that, Mr Battley. And I understand that your argument will be that strict compliance with the orders required the father to be present on each occasion.
MR BATTLEY: Yes, your Honour
HER HONOUR: My difficulty, however, is that I have to consider her willingness to facilitate the children’s relationship with their father.
MR BATTLEY: Yes, your Honour
HER HONOUR: And if I were to come to the view that she had not demonstrated that willingness, that what I’m putting to you is that I would like you to address me on whether or not a safeguard, if I came to that view---
MR BATTLEY: Yes, your Honour
HER HONOUR:---would be that I made the orders on an interim basis.
Her Honour then invited both counsel to obtain instructions on the matter and the matter was adjourned briefly.
When the hearing resumed, counsel for the mother said; “Might I indicate to your Honour, for our part, we would relish that opportunity.”
Her Honour called on counsel for the mother to address her on the suggested interim order, which he did. After submitting on the form of the interim order, counsel said that if such an interim order were made, her Honour would be required to make an interim property order. He then made submissions as to the sale of three properties, provision for capital gains tax to be paid out of the proceeds of such sales and what percentage of the proceeds of sale would be distributed to the parties. Counsel further submitted that the mother would have her Honour determine the percentage distribution of the assets as an interim order. Her Honour said: “I think you’re talking me out of it, Mr Battley.”
Mr Battley continued his submissions about the nature of the property order that would be required should she make an interim order.
Her Honour said:
I want to make it clear to you, Mr Battley, that I’m in no way wedded to this suggestion of an interim arrangement. I merely wanted to hear from each of you what might be the pros and cons. And---
MR BATTLEY: We see some real advantages in it.
HER HONOUR: And some real disadvantages.
In the result, her Honour did not make an interim order.
It was argued that by not taking evidence from the mother on the proposal, her Honour denied her procedural fairness. The mother was represented before her Honour by counsel who was astute to the issues to be resolved. Although he, at first, embraced her Honour’s suggested interim orders, he then made extensive submissions that property orders ought to be made, the percentage division of the resulting proceeds and the tax ramifications resulting from the sale of two of the parties’ properties. He went on to explain, in effect, that unless these matters were resolved favourably to the mother there was a real issue about where she (and the children) would live. As we see it, and paraphrasing her Honour, he talked her out of it.
A court is required to give a party a reasonable opportunity to answer a case, or to put a case. Her Honour raised this issue at a time before both counsel made their closing submissions and the mother’s counsel made submissions on the point. Why the mother should have been called to give evidence is unclear, and has not been suggested. Had her counsel thought it appropriate for her to give further evidence on this point, we would expect him to have made that application.
We see no basis for accepting that her Honour did not afford the mother procedural fairness in this regard, and find no substance in the asserted challenge.
Further, the trial Judge had to determine a number of issues and consider what orders to make that would give effect to her ultimate findings. Indeed, as we have earlier set out, her Honour reflected on the proposal in her reasons and, as part of her reasons for deciding not to make an interim order, referred to the very submissions made on behalf of the mother. Further, her Honour concluded at [124], as she was well able to on the evidence before her, that while such an order might cause the mother to comply with the orders during that period, her Honour had no confidence that it would reflect an ongoing willingness in the mother to foster the children’s relationship with their father.
We therefore propose to dismiss the appeal against her Honour’s orders of 13 July 2012.

Costs and Stay appeals

After her Honour made orders and delivered her reasons, the mother made an oral application on 16 July 2012 seeking a stay of her Honour’s orders. That application was heard and determined by her Honour, and on 20 July 2012 she refused the stay. On 27 July 2012, the mother filed an appeal EA 99 of 2012 challenging her Honour’s refusal to stay the orders. In written submissions, counsel for the mother indicated that this appeal was not pursued.
By application in a case filed 24 August 2012, the mother again sought an order that stayed the operation of her Honour’s orders. On 7 September 2012 her Honour refused to grant the stay and ordered the mother to pay the father’s costs of that unsuccessful stay application in the sum of $4,000. By notice of appeal EA 129 filed on 17 October 2012, the mother appealed those orders.
Consequent on the mother’s unsuccessful application for a stay of orders, the father sought an order that the mother pay his costs of the unsuccessful stay application. That was heard and determined on 18 September 2012 and her Honour ordered the mother to pay the father’s costs of that unsuccessful stay application, in the amount of $2,624. By notice of appeal EA 138 of 2012 filed on 17 October 2012, the mother appealed that costs order.
Sensibly in our view, Counsel for the mother submitted that if the mother’s primary appeal was dismissed, there was little utility in considering the appeals against her Honour’s refusal to stay her orders. They could not possibly succeed unless the primary appeal succeeded. We therefore need not consider them further.
We observe that these appeals also concern costs orders made by her Honour against the mother consequent upon the refusal of her stay applications. No submission was made in relation to the appeals as they related to costs. However, as we do not propose to interfere with her Honour’s orders in relation to the principal matter, or the stay orders, we will dismiss the appeals to the extent that they are pressed, in relation to the costs orders.

Costs of this hearing

The mother appropriately conceded we should order costs in the father’s favour if her appeals were to be dismissed. It was not suggested by the father that costs should be awarded on anything other than a party/party basis.
We will order accordingly.

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for judgment of the Full Court (Coleman, Ainslie-Wallace & Ryan JJ) delivered on 21 December 2012.

Associate:

Date: 21.12.2012