Malcolm & Munro

[2011] FamCAFC 16

FAMILY COURT OF AUSTRALIA

MALCOLM & MONROE AND ANOR [2011] FamCAFC 16

FAMILY LAW – APPEAL – From a Federal Magistrate – CHILDREN – Best interests of the child – Where the mother sought to appeal orders restraining her from leaving a certain district in New South Wales which were effected to maintain proximity between the child and the respondent – Where the respondent has a close and loving relationship with the child but is not the biological father – Where the biological father was generally supportive of the mother’s case at trial to relocate to another district in New South Wales – Whether the Federal Magistrate failed to properly consider each of the competing proposals of the parties in relation to where the child should live – Whether the Federal Magistrate erred in making findings unsupported on the evidence, particularly in relation to the views of the child and the evidence of the Family Consultant – Whether the Federal Magistrate erred in making orders which were asserted to impact negatively on the mother’s relationship with her new partner in the place she sought to relocate with the child (and the child’s relationship with that person) – Where an order for joint parental responsibility had been made as between the mother and the father – Effect of the order for parental responsibility considered in light of the decision of the High Court of Australia in MRR v GR (2010) 84 ALR 220. APPEAL DISMISSED – All 19 Grounds of Appeal dismissed – Consideration of the principles in relation to relocation matters – Consideration of the application of factors outlined in s 60CC of the Family Law Act 1975 (Cth) in relocation matters as they relate to persons who are not biologically related to a child – Where a substantial number of matters addressed in the Grounds of Appeal related to the weight given by the Federal Magistrate to certain factual and other matters

FAMILY LAW - COSTS – Costs of and incidental to the appeal to be paid by the appellant in accordance with Chapter 19 of the Family Law Rules 2004

Family Law Act 1975 (Cth): s 60CA, s 60CC(2), s 60CC(3), s 65DAA

Aldridge & Keaton (2009) FLC 93-421
AMS v AIF (1999) 199 CLR 160
CDJ v VAJ (1998) 197 CLR 172
Collu & Rinaldo [2010] FamCAFC 53
House v The King (1936) 55 CLR 499
Gronow v Gronow (1979) 144 CLR 513
MRR v GR (2010) 84 ALR 220
Marvel & Marvel (No.2) (2010) 43 Fam LR 348
Morgan & Miles (2007) FLC 93-343
Mulvany & Lane (2009) FLC 93-404
Taylor & Barker (2007) FLC 93-345
U v U (2002) 211 CLR 238

APPELLANT: Ms Malcolm

FIRST RESPONDENT: Mr Monroe

SECOND RESPONDENT: Mr Smallson

FILE NUMBER: NCC 46 of 2008

APPEAL NUMBER: EA 70 of 2009

DATE DELIVERED: 3 February 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Faulks DCJ, May & Crisford JJ

HEARING DATE: 3 February 2010

LOWER COURT JURISDICTION: Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE: 12 May 2009

LOWER COURT MNC: [2009] FMCAfam 440

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms L. Judge

SOLICITOR FOR THE APPELLANT: Demaine & Associates

COUNSEL FOR THE FIRST 

RESPONDENT:

Mr G. Gould

SOLICITOR FOR THE FIRST 

RESPONDENT:

Eddelbuttel Law

SOLICITOR FOR THE SECOND RESPONDENT: No appearance by or on behalf of the second respondent

Orders

IT IS ORDERED THAT:

1. The appeal EA 70 of 2009 is dismissed. 

2. The appellant, Ms Malcolm, pay the costs of and incidental to the appeal in accordance with Chapter 19 of the Family Law Rules 2004.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 70 of 2009
File Number: NCC 46 of 2008

Ms Malcolm

Appellant

And

Mr Monroe

First Respondent

And

Mr Smallson

Second Respondent

REASONS FOR JUDGMENT

Faulks DCJ & Crisford J

1. This appeal is brought by Ms Malcolm (“the mother”) against orders of Federal Magistrate Dunkley made on 12 May 2009.  In essence, the mother seeks to remove a restraint on the child, “L”, born in 2001, from being removed from T, New South Wales (NSW).  The mother seeks orders permitting her and L to relocate to W, NSW. 

2. The first and second respondents reside in the district known as the Great Lakes district, where T and R are situated.  Mr Smallson is the second respondent and is the biological father of the child.  Where necessary, we shall refer to Mr Smallson as “the father”. 

3. Mr Monroe was under the misapprehension that he was the father of L.  Parentage testing conducted in February 2007 confirmed that he is not L’s father.  The Federal Magistrate found that Mr Monroe was a significant person in L’s life.  For convenience, we shall refer to Mr Monroe as “the respondent”. 

4. There was no appearance by or on behalf of the father before us on 3 February 2010.  The father wrote to the Eastern Region Appeals Registry indicating that he did not wish to be heard in relation to the mother’s appeal.  

5. It was conceded by both the mother and the respondent that the mother is the primary caregiver of the child and that the child should reside with the mother primarily.  It was also conceded by the respondent at trial that the mother is the primary attachment figure and caregiver and sole financial provider for L.  The respondent provides approximately $25 per week in child support.  The father provides nominal child support. 

6. The appeal was heard prior to the publication of the reasons of the High Court of Australia (“the High Court”) in MRR v GR (2010) 263 ALR 368. Subsequent to the hearing before us, we sought written submissions from each of the parties about the impact of that decision on the circumstances of this matter, as well as the decision of the Full Court of the Family Court of Australia in Collu & Rinaldo [2010] FamCAFC 53.

7. As a matter of practice and where necessary throughout our Judgment, we have replicated the pursued Grounds of Appeal, the relevant paragraphs of the Federal Magistrate’s Judgment, as well as the submissions and relevant evidence before the Federal Magistrate without correction. 

Background

1. The mother was born in March 1966.  The respondent was born in October 1953.  The father was born in October 1946. 

2. The mother and the respondent are both health practitioners in the NSW Health Service and both engage in shift work. 

3. The mother resides in T, NSW.  The respondent resides in R, NSW.  The father resides in T, NSW. 

4. The mother and the respondent were in a de facto relationship between November 1997 and April 2003.  During their relationship, they resided together at R, NSW.  At the time of separation, the mother and L moved to T, NSW.  It is common ground that between the time of separation and the commencement of 2007, the parties shared care of L in the approximate proportions of 60 per cent to the mother, and 40 per cent to the respondent, over the course of a fortnight.

5. In 2005, the mother commenced a relationship with Mr F. Mr F resides in W, NSW.  The mother seeks to maintain her relationship with Mr F.  It was submitted that Mr F was unable and unwilling to relocate from W to T. 

6. In February 2007, the mother had L’s parentage tested.  On 2 November 2007, the mother received results of parentage testing which indicated that the father was the biological father of the child, not the respondent.  The mother advised the respondent of this fact during a mediation session in December 2007. 

7. On 16 February 2008, the mother and L moved to W.  The reasons for doing so were varied.  The mother gave evidence at trial that it was necessary for her to care for her sick father who also resided in W.  The mother also sought to care for her disabled brother who lived in the W region.  The mother’s relocation to W was enabled by a grant of compassionate leave from her employer, whereby she could continue working on a temporary basis in W.       

8. On 1 September 2008, the mother’s grant of compassionate leave expired. 

9. On 4 September 2008, the mother advised the Principal of L’s primary school in T that L would be returning to that school in Term 4, 2008.  Exhibit ‘C’ from the trial was a letter from the same Principal to the respondent’s solicitors which indicated as at 30 October 2008 that L had not been enrolled at that school. 

10. On 16 September 2008, the mother applied for a permanent position with her employer based in W.  From this date through to the beginning of November 2008, the mother returned to work in T and took periods of personal leave while she awaited the outcome of her application.  The mother maintained that she was still based in W, despite the fact that she returned to work in T for discrete periods during September and November 2008.  The respondent submitted, both at trial and on appeal, that the mother returned to T from W on a permanent basis as and from September 2008. 

11. On 5 November 2008, the mother was advised by her employer that she was unsuccessful in her application for a permanent position in W. 

12. The mother withdrew L from her primary school in W on 7 November 2008.  On 10 November 2008, L commenced primary school in T. 

13. On 21 November 2008, an Apprehended Violence Order (AVO) was taken out against the mother by the respondent.  The Federal Magistrate recorded the following finding in paragraph 22 of his Judgment:

    21 November 2008 – Incident at changeover between [the respondent] and [the mother].  [The mother] alleges she is assaulted and consults [Local] Police before making [L] available.  Police take out an Apprehended Violence Order complaint and summons to protect [the respondent].

14. Proceedings were commenced in the Federal Magistrates Court of Australia by the respondent filing an Initiating Application on 8 January 2008.  The mother’s response was filed on 18 March 2008.  An amended application was filed by the respondent on 25 March 2008. 

15. The hearing before the Federal Magistrate was conducted over four days: 25 November 2008, 19 and 20 February 2009 and 2 March 2009.  Judgment and final parenting orders were delivered on 12 May 2009.

Orders of Dunkley FM of 12 May 2009

1. The Federal Magistrate ordered that the mother and the father share equally parental responsibility.  The child was to spend time with the respondent as agreed between the mother and the father, on the condition that this time does not occur simultaneously with the time the child spends time with the respondent.  The Federal Magistrate declared that the father was the biological father of the child. 

2. The Federal Magistrate’s orders provided that the child would spend time with the respondent from: after school Thursday to before school Tuesday each alternate weekend; half the school holiday period in the first three school term holidays; part of the longer fourth term school holiday period; for two hours on the child’s birthday; and at other times as agreed between the mother and the respondent.  The child was to be handed over to the each of the parties during the relevant period at the child’s school.

3. The Federal Magistrate also made orders providing for telephone contact between the child and the other person with whom she was not spending time with on Friday evenings and communication between the parties about relevant medical treatment or events concerning the child. 

4. Importantly, the Federal Magistrate restrained the mother from causing the child to be ordinarily resident outside the district known as the Great Lakes district. 

Dunkley FM’s Reasons for Judgment

1. In paragraphs 1 to 4 of his Judgment, the Federal Magistrate set out the details of the parties.  In paragraphs 5 to 22 of his Judgment, the Federal Magistrate set out the relevant background to the parties’ history.  In paragraph 19, the Federal Magistrate noted that the mother returned to T and resumed work.  Grounds of appeal 6, 7 and 8, as well as ground 2 appeared to be founded upon what is said to be a finding which was not open to the Federal Magistrate.

2. In paragraphs 23 to 27, the Federal Magistrate set out the procedural history of the matter before it came before him for a final hearing.

3. In paragraph 28, the Federal Magistrate made a finding that the mother had not advised the Court through her legal representatives that she was living in T as and from 3 November 2008.  The accuracy of this finding is relevant to the submissions made in support of grounds of appeal 6, 7 and 8, as well as ground 2. 

4. In paragraph 29, the Federal Magistrate summarised the mother’s position in relation to her relocation to [W].  He noted that:

   …. [The mother] was hoping to obtain a transfer … from [T] to [W].  It was her case that she was still in a relationship with [Mr F] who was living in [W] and would continue to live in [W] for the foreseeable future.

5. At paragraphs 30 to 32, the Federal Magistrate summarised the issues in dispute between the parties, as follows: with whom L should live, what time L should spend with the person she did not otherwise live with, whether the mother and L should be allowed to live in the W area and, if so, what time L should spend with the respondent; and the issue of whether the respondent should have parental responsibility for L. 

6. The Federal Magistrate considered the issue of equal shared parental responsibility in paragraphs 37 to 43.   Based partly on his impressions during the trial, the Federal Magistrate found that the mother and the respondent had great difficulty in dealing with each other.  This observation was in contradistinction to the relatively positive relationship between the mother and the father.  As a consequence, the Federal Magistrate ordered that the mother and the father equally share parental responsibility.  The Federal Magistrate stated in his reasons:

   40. It was apparent from the cross examination of [the respondent] and [the mother] that they both have a very jaundiced view of each other, that their interactions are marked by acrimony and stubbornness and unilateral decision making.  This criticism is applicable to both of them,  In those circumstances joint decision making is problematic, likely to be highly conflicted and as a consequence not in [L’s] best interest. Although an interim AVO existed at the time of the hearing protecting [the respondent] from [the mother] he was consenting to that AVO summons being dismissed.  There were no other incidents of family violence.

   41. Counterpoised to this is the apparently good relationship between [the mother] and [the father], their ability to cooperatively make arrangements in respect of [L] and their unanimity as to the outcome of these proceedings.  Their interactions are likely to be of benefit to [L] and to be focussed upon her. [The father] impressed as a person who will always prefer [L’s] best interests, will seek to minimise conflict and parent cooperatively.

   42. Having regard to the above there will be an order for [the mother] and [the father] to have joint parental responsibility.

   43. Additionally [L] is aware of the acrimony between [the mother] and [the respondent].  She is also aware that [the respondent] is not her biological father.  She is developing awareness of the consequences of this.  [The Family Consultant] believes the within a few years she will be making decisions of her own regarding her relationship with [the respondent].  If that relationship were to deteriorate, then an order for shared parental responsibility would be problematic and lead to further litigation.  This is another reason for not making an order in favour of [the respondent] for parental responsibility.  (emphasis added)

7. We note that, while the Federal Magistrate used the term “joint parental responsibility”, we do not consider that this term was used as contemplated in s 61C of the Act, whereby each parent, by virtue of being a parent, has parental responsibility for a child: see Marvel & Marvel (No.2) (2010) 43 Fam LR 348; 240 FLR 367; FamCAFC 101 at [94]. The Federal Magistrate in fact made an order for equal shared parental responsibility as between the mother and the father. We discuss this in more detail below in our Judgment.

8. In paragraph 44, the Federal Magistrate noted that the Family Consultant was “not cross‑examined” which meant that his evidence was “unchallenged”.  The Federal Magistrate then imported paragraphs 36, 37, 39, 46, 45, 55, 56 and 59 of the Family Consultant’s report (of 8 August 2008) into his Judgment. 

9. In paragraph 45, the Federal Magistrate made a finding that L’s primary attachment is to her mother, and that she has a “close, loving and dependent relationship” with the respondent and a “developing” relationship with the father.  In paragraph 46, the Federal Magistrate made a finding that there was no evidence which would enable him to find that it is in L’s best interests for her to live primarily with the respondent, finding specifically that it would be “disruptive to the close attached bond that she has with her mother and would therefore not be in her best interests”.

10. In paragraphs 47 to 58, the Federal Magistrate made findings under the heading “[L’s] time with [the respondent]”.  The Federal Magistrate specifically noted that there had been co-operative parenting between the mother and the respondent between April 2002 and early 2007.  Since early 2007, however, the time that L had spent with the respondent decreased.  The Federal Magistrate noted that the travel time between the parties had reduced to approximately 30 minutes as a result of the mother’s return to T.  The Federal Magistrate then noted that the mother and the respondent would engage in shift work and that the parties’ inability to cooperate meant that L would have to spend time with the respondent and live with the mother during times when they are rostered to work.  The Federal Magistrate noted that the parties each had support people to assist in this regard.  The Federal Magistrate made a finding that it would be best if the mother and the respondent did not come into contact with each other except by prior agreement and that all changeover times would occur at L’s school.     

11. At paragraph 54, the Federal Magistrate found that “[t]here is nothing to indicate that an equal time arrangement” would be in L’s best interests.  The Federal Magistrate found that such an arrangement would remove L from her primary attachment figure, her mother, which in the past, on the “uncontroverted evidence”, had been a difficulty for L.  The Federal Magistrate then made a finding that L had “spent some weeks absent from her Mother’s care in the care of [Mr F]” and noted that “it would seem that extended periods of time are no longer as difficult” for her.  The Federal Magistrate concluded that “given her primary attachment a week and week about arrangement would be too long and not in [L’s] best interest.” The accuracy of this finding is relevant to the submissions made to ground 15 of the appeal. 

12. At paragraph 55, the Federal Magistrate concluded that a “significant and substantial amount of time would be of benefit to her”.

13. At paragraph 56, the Federal Magistrate noted that the father’s evidence that he would spend time with L during the greater periods of time that the mother had L in her care, which, in his opinion, would be a benefit of that arrangement.  The Federal Magistrate then relevantly stated at paragraph 56 that:

    ....[i]t will be increasingly important for [L] to know and develop a relationship with her biological father.  For these reasons an order for significant and substantial time between [L] and [the respondent] will be made such time will include school days, weekends and holiday periods in accordance with the definition in s65DAA(3).

14. At paragraph 57, the Federal Magistrate noted the location of the mother and the respondent’s home “ensure the time [L] is to spend with [the respondent] is reasonably practicable”.  The Federal Magistrate noted that both the mother and the respondent have access to a motor vehicle, an income and had made arrangements for a support person to look after L while they were at work.  At paragraph 58, the Federal Magistrate found that the respondent’s employment “means he is unable to relocate to [W]”. 

1. At paragraphs 59 to 61, the Federal Magistrate decided that the appropriate form of orders to allow communication between L and the mother and the respondent when L is in the other party’s care. 

2. At paragraphs 62 to 67, the Federal Magistrate gave reasons for the necessity of a restraint on L’s moving from the Great Lakes district.   As they are central to a number of the grounds of appeal and to give proper context to the submissions, paragraphs 62 to 67 of the Federal Magistrate’s reasons are reproduced hereunder:

   62. [The respondent] has sought an order that in the event that [L] is not living with him that [the mother] be restrained from making [L’s] residence other than in the [T] area or within a 30 km radius of that area.

   63. [The mother] seeks an order that she be enabled to make [L’s] residence in the [W] area. She wishes to return to [W] to be able to care for her Father and continue her relationship with [Mr F]. [The mother] was at the beginning of the case saying that it would also facilitate the settled nature of [L] friendships and schooling.

   64. There is no doubt that given the events of November 2008 that those reasons were not truthfully held and were in reality insignificant. This is the only conclusion that can be drawn form the fact that once [the mother’s] temporary employment placement in the [W] area ended she moved back to [T]. She could if she strongly held the views that she purported at the beginning of the hearing have resigned from her employment and sought alternative employment in the [W] area thereby demonstrating the sincerity of her proposals. That she did not indicates the lack of sincerity with respect to those proposals. It demonstrates that they were a fiction designed and advanced to enhance her case.

   65. She owns a home in [T]. It is a home with which [L] is well familiar as she has lived there for a significant period of time. [L] is attending the school that she previously attended before moving to [W]. There is no evidence put that [L] has had difficulty resettling in [T] or at her former school. Indeed all of the evidence is to the contrary, that is, that [L] has easily readjusted to life in [T] at the previous school with her friends.

   66. It is important for [L’s] stability, for her need to maintain a relationship with [the respondent] and so as to make for easy contact with [the father] that she continue to reside in the [T] area close to [the respondent] and close to [the father]. [The mother] has secure employment there. [The mother] has longstanding arrangements for people to assist her with [L’s] care, people with whom [L] is familiar.

   67. For all of these reasons it is in L’s best interest that she not again be removed from the [T] area and the interim restraining order made on 2 March 2009 will be continued as a final order, but expressed to be within the relevant local government area which is Great Lakes Shire.

3. At paragraphs 68 to 82, the Federal Magistrate made findings with respect of each of the matters contained in s 60CC(2) and s 60CC(3) of the Act.

4. The Federal Magistrate noted that he should have regard to the Objects and Principles of the Act (specifically s 60B(1)(a), s 60B(1)(c) and s 60B(1)(d) of the Act) and that the best interests of the child must be the paramount consideration in the making of any parenting order (s 60CA of the Act refers). 

5. At paragraph 70, the Federal Magistrate noted that his orders would enable L to have meaningful relationships with the mother, the father and the respondent.  The Federal Magistrate specifically stated “[a]lthough [the respondent] is not a biological parent of [L] he is for all intents and purposes and in reality, a parent to her”.

6. At paragraph 71, the Federal Magistrate made a finding pursuant to s 60CC(2)(b) that it would be appropriate to ensure that changeovers involving L occurred at her school because of the history of arguments between the mother and the respondent.

7. At paragraphs 72 and 73, the Federal Magistrate made findings about L’s views in relation to each relationship, citing paragraphs 54, 59 and 52 of the Family Consultant’s report.  Effectively, the Federal Magistrate noted that L was not yet mature enough to provide a view about the time she would like to spend with the respondent, but that her views may change over time and she may seek to spend more time with her father in the future. 

8. At paragraph 74, the Federal Magistrate suggested that his proposed order to restrain L from living in any area other than the Great Lakes district would allow L “the best opportunity of maintaining her important relationship with [the respondent] and developing her growing relationship with [her father].”  The Federal Magistrate acknowledged that his proposed order would “restrict” L’s relationship with Mr F.  The Federal Magistrate noted paragraph 53 of the Family Consultant’s report which stated that it if the mother maintained this relationship that “[Mr F] is likely to play an increasingly important role in [L’s] life”. 

9. At paragraph 75, the Federal Magistrate assessed each of the relationships that L has with the respondent, the father and Mr F, concluding that her relationship with Mr F was “the least important”. 

10. At paragraph 76, the Federal Magistrate assessed the likelihood of the mother and the respondent encouraging the relationship between L and each other.  The Federal Magistrate suggested that this was likely to be problematic despite the parties’ declared intentions to do so.  To illustrate this point, the Federal Magistrate cited the mother’s unilateral move to the W region and the impact this had on the respondent’s relationship with L.  The Federal Magistrate also stated that he considered the mother’s move to W to be “more about meeting her needs and not [L’s]”.

11. At paragraph 77, the Federal Magistrate stated that L’s relationships with the respondent and the father were likely to improve with the stability arising from her being required to live in the Great Lakes district.  The Federal Magistrate noted that his orders would “merely put in place” the arrangement that had existed between the mother and the respondent between 2002 and 2007.  The Federal Magistrate also noted L would not in such circumstances be separated from any adult significant to her other than Mr F. 

12. At paragraphs 78 and 79, the Federal Magistrate assessed that there would be minimal practical difficulty and expense in L spending time with and communicating with the respondent and her father, and that each of the parties in the proceedings has the capacity to provide for L’s needs, including her emotional and intellectual needs.  The Federal Magistrate also suggested that his proposed orders should result in there being no need for further litigation. 

13. At paragraph 80, the Federal Magistrate considered that there were no relevant matters to be taken into account pursuant to s 60CC(3)(g) or s 60CC(3)(h).

14. At paragraph 81, the Federal Magistrate made findings about the history of family violence, specifically the incident of 21 November 2008.  The Federal Magistrate stated that the mother’s actions in taking L to the police station “[reflected] poorly upon her”.  The Federal Magistrate was also critical of the respondent’s actions.  The Federal Magistrate stated that a “continued repletion[1] of this course of action would not be in [L’s] best interests”.  These findings are said to be relevant to grounds 18, 19 and 20 of the appeal. 

    [1] We are unclear as to whether the Federal Magistrate actually intended the word “replication” or “repetition”. 

15. At paragraph 82, the Federal Magistrate stated that his proposed orders would impact upon the mother’s ability to care for her ill father. The Federal Magistrate specifically noted that the mother “preferred” to return to work in T in November 2008 rather than care for her father, and this was relevant pursuant to s 60CC(3)(m) of the Act. The Federal Magistrate also stated that the mother’s desire to care for her father must “give way” to L’s right to maintain a “significant and meaningful” relationship with the respondent and the father.

Relevant Law

1. The law in relation to an appeal against the exercise of a discretionary judgment can be identified as follows. 

2. In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said (at 504-505):

   The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred. (emphasis added)

3. In Gronow v Gronow (1979) 144 CLR 513 Stephen J stated (at 519):

   The constant emphasis of the cases is that before a 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.

4. The statement of principle from House v The King was supported Kirby J in AMS v AIF (1999) 199 CLR 160 (at 211):

   [A]n 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.  Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial. (Footnotes omitted)

5. In CDJ v VAJ (1998) 197 CLR 172, Kirby J said (at 230 – 232):

   A number of general propositions may be stated:

   1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.

   2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.

   3.An additional peculiarity of appeals within, and from, the Family Court is that, in respect of what in Australia are now called “parenting orders”, very vulnerable and significant interests are at stake. It is commonplace to say that, in all appeals, public and private costs and the stresses, delays and other burdens of litigation, are reasons for adding an element of self-restraint to those ordinarily proper to the discharge of appellate judicial functions. Retrials in civil cases following an appeal have been described as “an enormous evil”, to be avoided as far as possible. Whilst this rather emotional phrase may overstate the dangers, the public costs of litigation have lately come to be given more weight in such decisions. In family disputes, and particularly those relating to the welfare of children, there are special stresses. They tend to pull in opposite directions. On the one hand, it is highly undesirable that arrangements for the residence, education, health and familial relationships of a child should be needlessly disturbed by successive court orders. Such changes may add intolerably to the tensions which a child, fought over by members of the family, already feels. On the other hand, so important are such decisions for the life of the child and its relationships with the parents, siblings and other family members, that it is proper that the courts should take special pains, so far as they can, to avoid decisions impermissibly distorted by factual or legal error, by error of principle, by prejudice or by giving weight to irrelevant considerations. (footnotes omitted)

Grounds of appeal

1. It was conceded by the mother and the respondent that the Federal Magistrate had not made an order that the child should live with the mother.  This was corrected by us by an order to that effect on 3 February 2010.  This left 19 grounds to be determined by us.  The grounds of appeal have been set out in full below.  It is, however, convenient for us to discuss these grounds in the manner which counsel for the mother grouped them in her written submissions, particularly as counsel for the respondent addressed the mother’s submissions in a similar manner. 

2. Counsel for the mother did not make written submissions about Grounds 16 and 17.  These grounds were pursued before us on 3 February 2010.  Counsel for the mother addressed these grounds and sought to rely on her submissions about the Federal Magistrate’s treatment of the Family Consultant’s written and oral evidence.

3. The pursued grounds of appeal are as follows:

Ground 2

His Honour erred in fact and in law in finding at paragraph 64 of the judgement that:

(a)“Given the events of November 2003”… “the mother’s stated reasons for wanting to move were not truthfully held and were in reality insignificant,” and

(b)“She could if she strongly held the views that she purported at the beginning of the hearing have resigned form [sic] her employment in the [W] area thereby demonstrating the sincerity of her proposals.” and

(c)“That she did not indicates the lack of sincerity with respect to these proposals…”

in so far as the findings:

(a)were not open to His Honour on the evidence and were against the weight of the evidence,

(b)sought to impose upon the mother an onus which is not supported by legal authority,

(c)were inconsistent with and against the weight of the uncontested evidence that the mother was essentially the only person who was supporting the child financially and meeting her needs on a day to day basis,

(f)sought to impose an obligation upon the mother to choose between her ability to earn an income on one hand and to artificially enhance her case on the other, which is wrong in law and which was not justified by the evidence,

(g)were made in disregard of the undisputed evidence that each of the parties had been [employed in the NSW Health Service] since prior to the child’s birth and had worked in no other occupation,

(h)were inconsistent with and against the weight of the undisputed evidence that the mother’s working situation was dictated by the directions and protocols of the New South Wales [Health] Service,

(i)were inconsistent with the clear evidence that the mother wished to remain in the [W] area and only returned to the [T] area for the time being when she was given no choice but to do so by her employer,

(j)were made without regard to the evidence that the mother was continuing to make applications for employment in the [W] area.,

(k)wrongly prioritised the job and career of the Respondent over that of the Appellant,

(l)were made in the absence of any evidence that the mother might be able to obtain any alternative employment in the [W] area or as to the financial impact upon the mother of resigning her employment,

(m)were out of keeping with community standards and contrary to public policy.

Ground 3

His Honour failed to give sufficient weight to the evidence of the natural father as to his support for the mother’s application and the benefits to the child in residing with the mother in the [W] area.

Ground 4

His Honour failed to give appropriate weight to the fact that the Respondent was not the child’s natural father and to the expert evidence relating to this matter.

Ground 5

His Honour erred in law in failing to weigh up in a detailed fashion or at all, either expressly or impliedly, the alternative arrangements of the parties in relation to the relocation issue. 

Ground 6

His Honour erred in finding (at paragraph 19 of the judgment) that the Mother returned to [T] in late September 2008 and resumed work.

Ground 7

His Honour erred in finding that on 3 November 2008 the mother was then living and working in [T].

Ground 8

In any event even if the finding that the mother was living and working in [T] on 3 November 2008 was correct His Honour gave this matter excessive weight in determining the issues between the parties and in assessing the mother’s credit.

Ground 9

In determining the relocation issue His Honour erred in failing to take into account or alternatively gave insufficient weight to the evidence of the Family Consultant given orally under cross examination by Counsel for the respondent and in the Family Report.

Ground 10

His Honour erred in finding at paragraph 44 of the judgment that the Family Consultant was not cross examined.

Ground 11

His Honour erred in failing to give any or sufficient weight to the statement by the child that she liked living in a household with her mother and her mother’s partner [Mr F] in the context of the mother’s proposal for the establishment of a household in [W] and to the child’s wishes overall.

Ground 12

His Honour erred in failing to consider the impact upon the child [L] of her mother being unable to further her relationship with [Mr F] in [W].

Ground 13

His Honour erred in failing to consider the impact upon the mother of her being unable to further her relationship with [Mr F] in the [W] area and its likely impact upon the child.

Ground 14

His Honour erred in failing to take into account at all or alternatively give sufficient weight to the evidence of the strong relationship between the child and [Mr F].

Ground 15

His Honour erred in finding at paragraph 54 of the judgment that the child had recently spent “some weeks absent from her mother’s care in the care of [Mr F]”.

Ground 16

Failed to consider and in the alternative to give sufficient weight to the evidence of the child being well adjusted and her capacity to cope with a further move back to [W].

Ground 17

His Honour failed to consider or in the alternative to give sufficient weight to the evidence of the Family Consultant as to the relevance of the natural relationship with the child’s mother as opposed to her relationship with the respondent who is not the natural father.

Ground 18

His Honour erred in failing to find that the Respondent to the Appeal had maliciously accused and pursued an application for an Apprehended Violence Order against the mother in circumstances where in the course of the submissions His Honour stated that this was an “abuse of process” and in failing to give that matter any weight.

Ground 19

His Honour erred in failing to consider and give any or sufficient weight to the impact upon the child of the extremely poor and hostile relationship between the Appellant and the Respondent should they remain living in close proximity.

Ground 20

His Honour erred in failing to consider the impact upon the child of the mother being obliged to continue to live and work in close proximity to the Respondent in circumstances where his attitude to the mother was sufficiently hostile a so as to cause him ensure that AVO proceedings were pursued and which were referred to by His Honour as an “abuse of process”.

Grounds relating to alleged factual mistakes made by the Federal Magistrate (Grounds 6, 7 and 8)

1. Counsel for the mother pursued these grounds first on the basis that it was necessary to give context to ground 2.   

2. The thrust of the mother’s submissions in relation to these grounds was that the Federal Magistrate had made erroneous findings of fact about the mother’s whereabouts between September 2008 and November 2008.  It was submitted that the Federal Magistrate had incorrectly found that the mother had returned from W to T at the end of her grant of compassionate leave.  Paragraph 64 of the Federal Magistrate’s judgment was relied upon as demonstrating this error.    

3. In the mother’s submission, the effect of this mistake was to “colour” the Federal Magistrate’s approach to his Reasons for Judgment and the ultimate result.  Counsel for the mother submitted that this mistake had affected the Federal Magistrate’s view about the mother and the “sincerity” of her proposal to remain in [W].  Counsel for the mother submitted that the Federal Magistrate gave excessive weight to this finding in determining the issues between the parties and in assessing the mother’s credit.   

4. Counsel for the mother provided extensive submissions in relation to ground 2 about the approach taken by the Federal Magistrate in paragraph 64 of his judgment. 

5. Counsel for the mother submitted that the correct sequence of events was that upon the expiry of her grant of compassionate leave, the mother was forced to return to work in T in order to retain her employment.  The mother submitted that shortly thereafter she applied for work permanently in W and took leave and travelled between T and W, taking periods of leave between September and November 2008. 

6. Counsel for the mother drew our attention to various parts of the transcript of the proceedings which related to the final submissions of the parties and the evidence of the Family Consultant.  In our view, the various references to the transcript of the proceedings do not aid the mother’s submissions in relation to these grounds.  Those references may demonstrate that the Federal Magistrate was unimpressed with the mother’s approach to the way she structured her case and gave her evidence about the relevant history of the proceedings.  Those references also demonstrate that the Federal Magistrate was partly mistaken as to the correct sequence of events.  This is particularly so in relation to the references in the transcript on 19 February 2009 where the mother had mistakenly sworn in her affidavit that she was not advised as to the outcome of her application for a permanent position in W until 25 November 2008; the correct date being 5 November 2008.  

7. In our opinion, even allowing that these findings were incorrect, they did not lead to appealable error.  We accept the submissions of counsel for the respondent that these possible factual mistakes are immaterial to the appeal.  The mother has not demonstrated, in our view, that these factual mistakes affected in any significant way the Federal Magistrate’s approach to the mother’s proposal to remain in W. 

8. Whether the Federal Magistrate considered the mother’s proposal to remain in W to be disingenuous or conniving, however, or whether he sought to impose an onus to provide “compelling reasons” for the mother to be permitted to remain in W are different matters which we shall consider in relation to some of the other grounds of appeal.  

9. Counsel for the mother conceded that at no time during the trial before the Federal Magistrate was the issue of bias against the mother raised, nor was it listed as a ground of appeal.  It is now not open to the mother to argue that the view taken by the Federal Magistrate as to the mother’s case constituted bias. 

10. Accordingly, we consider there is no merit to grounds 6, 7 and 8 of the appeal. 

Ground relating to the weight given by the Federal Magistrate to the mother’s proposal to remain in W (Ground 2)

1. Counsel for the mother submitted that the Federal Magistrate had unreasonably taken the position in his Reasons for Judgment, specifically his findings in paragraph 64, that the mother could have, but did not, resign from her employment and sought alternative employment in W in order to demonstrate the “sincerity” of her proposal.  Counsel for the mother submitted that the position taken by the Federal Magistrate in this regard was in spite of the mother’s evidence that she was the sole financial provider for the child.

2. Counsel for the mother Ms Judge drew our attention to the transcript of 19 February 2009 which showed an exchange between herself and the Federal Magistrate.  During the course of final submissions, Ms Judge put to the Federal Magistrate the following proposition:

   MS JUDGE: ….the reality is that the mother in these proceedings is the only person who financially supports this child to any meaningful extent.  So she has to tragically make the decisions, as most people in the community who take responsibility for their own support and the support of those dependent on them do, she has to make the decisions that ensure that the financial security of her child is met.  It would have been highly irresponsible parental act to sit in [W] unemployed and give up her career. 

   FEDERAL MAGISTRATE: Absolutely.

   MS JUDGE: She’s a [description of her employment omitted] and it’s never been part of her case that she’d give up her career with [her employer]. 

   FEDERAL MAGISTRATE: Doesn’t make any sense that she would do that.

3. Counsel for the mother submitted that there was no evidence before the Federal Magistrate that the mother would have been able to obtain alternative employment outside of her employer in W.  Further, counsel for the mother submitted that it was “contrary to public policy and out of keeping with the expectations of modern society and community standards” for the Federal Magistrate to require the mother to give up certain employment with her employer to find new employment.

4. Counsel for the respondent addressed these submissions by stating that the Court was entitled to assess the mother’s stated reasons for wanting to relocate, and that the Federal Magistrate’s criticisms were made in the context of the mother unilaterally moving from T to W shortly after she advised the respondent about the results of the parentage testing. 

5. We pause to refer to the Full Court of the Family Court of Australia judgment of Morgan & Miles (2007) FLC 93-343, where her Honour, Boland J, heard an appeal as a single Judge pursuant to s 94AAA(3) of the Act. At paragraphs 79 to 81, Boland J identified the relevant principles to be taken into account by a judicial officer when assessing competing proposals about where a child is to primarily reside. Her Honour stated:

   79. In considering whether the child should live with the parent who proposes to relocate a court:

   ·Must be satisfied the parties have, unless an exclusionary circumstance applies, genuinely attempted to resolve the dispute.

   ·Make orders having regard to the child’s best interest as the paramount, but not the sole consideration.

   ·Be guided in its determination by the objects and principles underpinning the legislation.  This requires a judicial officer when considering the primary and additional considerations to inform that consideration against a background of the objects including having regard to both parents having a meaningful involvement to the maximum extent consistent with the best interests of the child.

   ·If making a parenting order, or proposing to make an order, apply the presumption, unless excluded by reason of abuse or family violence or rebutted as not in the best interests of the child, that the parties have equal shared parental responsibility for a child.

   ·In making an order for equal shared parental responsibility, have regard to the fact there is no distinction drawn under the Act between interim and final hearing, although such an order may not, in specific cases, be made on an interim hearing.

   ·When dealing with an application involving an intrastate, interstate or international relocation of a child may, in some circumstances, have to craft orders for the allocation of aspects parental responsibility if it is impractical for the parties to equally share parental responsibility, and particular aspects of parental responsibility may, in some cases, need to be exercised solely by the relocating parent if the orders sought are made.

   ·Will careful weigh and balance the primary considerations and the additional considerations in respect of the competing proposals.   Depending on factors such as  the age of the child, the wishes of the child, the relationship between the child and a parent,  the proposals of the parties, or the proposal found by the judicial officer to be in the child’s best interests, make such order which may provide:

   -    that the child lives with the parent who wishes to relocate and spends time with, and communicates with, the other parent;

   -    that the child lives with the non-relocating parent and spend time with, and communicates with, the other parent;

   -    that the child lives equally with the parents in the existing locale, or lives with one parent and spends substantial and significant time with the other parent in the existing locale;

   -    the non relocating parent moves to the venue chosen by the relocating parent, and the child lives equally with the parents or lives with one parent, spends time with the other parent.

   ·Because each case presents different facts and issues for determination no precise indicia can be categorically laid down as mandatory requirements requiring more or less weight in a relocation case, but developing law should provide general guidance. 

   79.It follows from my exposition of the legislation, that earlier core principles:

   -    that the child’s best interests remain the paramount but not sole consideration;

   -    that a parent wishing to move does not need to demonstrate “compelling” reasons;

   -    that a judicial officer must consider all proposals, and may himself or herself  be required to formulate proposals in the child’s best interests; and

   -    the child’s best interests must be weighed and balanced with the “right” of the proposed relocating parent’s freedom of movement,

   remain valid.

   80.What the legislation now requires is:

   - consideration of the competing proposals against the criteria now in s 60CC informed by s 60B;

   -     if a parenting order is made (or proposed to be made) and the presumption of equal shared parental responsibility  applies the consequences of an order for equal shared parental responsibility

   but there is no specific legislative requirement which proscribes a requirement that matters under s 60CC or s 65DAA be determined in any priority. It appears to me, however, as a matter of practical utility, that the structured exercise can be effectively carried out by examining the issues in dispute against the relevant s 60CC factors, and then applying those findings to a consideration of the criteria of s 65DAA to craft appropriate orders.

6. We generally and respectfully agree with Boland J’s reasons aforementioned.  What reasons a parent may declare for relocation may inform the inquiry about whether the proposed relocation is a proper exercise of parental responsibility.  It may be that a parent, while ostensibly holding fast to a commitment for a child to have a meaningful relationship with the other parent, decides that the child’s overall best interests will be best met if he or she is permitted to relocate.  There may be significant disagreement about whether the parent proposing to relocate is correct or incorrect in determining that balance.  And a Court may have to make the decision if the parents cannot agree in the circumstances.  But in order to examine the basis of the exercise of parental responsibility, a judicial officer should take notice of the reasons proffered by a parent for the relocation.  A frivolous or whimsical reason may indicate a possibly unstated and underlying desire to move the child as far as possible from the other parent. 

7. It may be that the parent proposing to relocate has not considered the consequences of the relocation.  Again, this may demonstrate a failure properly to acknowledge the benefit of a relationship between a child and the other parent.  Of course, there will be cases where the benefit of a relationship is outweighed by the specific needs of a child. 

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

9. The Federal Magistrate did not require the mother to demonstrate “compelling reasons” for the proposed relocation. He correctly, in our opinion, examined the mother’s reasons for relocation in the context of the relevant considerations pursuant to s 60CC of the Act and the best interests of L. The weight that a judicial officer hearing a matter at first instance may give to such matters in the course of a discretionary judgment should only be overturned by an appellate Court in the circumstances set out by the long-standing authorities which we have already identified.

10. We accept, therefore, the submissions of counsel for the respondent at [2.3] of his written submissions.

Ground relating to the Federal Magistrate’s treatment of the biological father’s evidence (Ground 3)

1. Counsel for the mother submitted that the Federal Magistrate had failed to properly take into account the views of the father on the mother’s proposal to remain in W.  Ms Judge submitted the father had been supportive of the mother’s proposal to remain in W and that the Federal Magistrate had placed undue weight on the significance of the father residing in T when the father, as a retired individual frequently travelled away from T on holiday.      

2. Counsel for the respondent submitted that the findings made by the Federal Magistrate with respect to the position of the father and the benefits of L living in T were open on the evidence. 

3. The Federal Magistrate made a number of findings with respect to the father’s case which are relevant to this ground of appeal.  At the commencement of his Reasons, the Federal Magistrate stated:

   ….      [The father] has ongoing involvement in [L’s] life and wishes to retain that involvement.  He does not seek any Orders of his own.  He is supportive of the mother’s request for Orders.  He has no doubt that he will be able to continue to have involvement with [L’s] life no matter what orders are made of a parenting nature relating to [L].

4. In light of each of the paragraphs of the Federal Magistrate Judgment (paragraphs 41, 56 and 66 referred to above), we agree with counsel for the respondent’s submissions that these findings were entirely reasonable and open upon the evidence.  We thus find that this ground of appeal is without merit. 

5. With respect to counsel for the mother, while it may be the case that the father can and may travel to see L, it is an exercise of common sense (if not otherwise) that the relationship between L and the father would be easier to facilitate if both the parents lived in close proximity to each other. 

Ground relating to the status of the mother as a parent and the Federal Magistrate’s treatment of the expert evidence (Ground 4)

1. Counsel for the mother submitted that the mother’s role as a biological parent of L had not been given by the Federal Magistrate the important and significant consideration which was a necessary component of determining what is in the best interests of L.  In essence, the mother complained that the Federal Magistrate had not given proper weight to the fact that L’s primary attachment figure is the mother and that this factor was not taken properly into account in evaluating the mother’s proposal to remain in W.

2. It was further submitted by counsel for the mother that the respondent had been treated as a biological parent of L for the purposes of the Federal Magistrate assessment of the primary and additional considerations as listed in s 60CC(2) and s 60CC(3) of the Act which relate to parents. It was submitted that this approach was an error of law. Reliance was placed on the principles enunciated by Finn J in Mulvany & Lane (2009) FLC 93-404. In her separate reasons for Judgment, her Honour stated:

   5. I am prepared to accept (at least as presently advised) that his Honour was correct in concluding that the father was not a “parent” as that term is used in Part VII of the Act.

   6. Having reached that conclusion, his Honour was not prepared to consider or treat the father as “a parent” for the purposes of s 60CC(2) (primary considerations in determining the child’s best interests) or of s 61DA (presumption of equal shared parental responsibility). Yet he was prepared to consider or treat the father as a parent for the purposes of s 60CC(3) (additional considerations in determining the child’s best interests), saying in this regard:

   Because of the nature of the relationship between the [father] and the child I consider it appropriate in the special circumstances of this case to consider the relevant subsections within s.60CC(3).

   7. Nowhere does his Honour explain why he adopted this apparently inconsistent approach to the father’s position under the various provisions of the legislation which he applied in determining this case.  In my view this is a significant flaw in his Honour’s reasoning.

   8. His Honour’s approach is particularly difficult to understand given that various paragraphs of s 60CC(3) do in fact refer to other persons (that is, persons other than a parent). Thus the father’s position as a person other than a parent could have been considered under s 60CC(3)(b) (“nature of relationship”), s 60CC(3)(d) (“likely effect… of any separation from…”), and s 60CC(3)(f) (“capacity…to provide for the needs” of the child) as well as under s 60CC(3)(m) (“any other fact or circumstance”).

   9. Indeed it must be acknowledged that his Honour considered the father’s position under each of those paragraphs, and moreover made favourable findings in the father’s favour. Nevertheless, his Honour ultimately determined that the child should be permitted to live with the mother in Hong Kong. It might thus be argued that had his Honour adopted an approach to his application of s 60CC(3) consistent with his approach under other provisions (that is, by treating the father as a person other than a parent), his ultimate decision would have been no different.

   10. However, this argument overlooks what in my view is another significant flaw in his Honour’s reasoning, and that is, his approach to, and application of, s 60CC(2)(a). That paragraph provides that a primary consideration in determining what is in a child’s best interests is “the benefit to the child of having a meaningful relationship with both parents”.

   11. His Honour determined (in paragraphs 20 and 21 of his reasons) that as the mother was the only parent “who is a party to the proceedings”, it would follow that the only primary consideration relevant in this case is the benefit of the child having a meaningful relationship with the mother.  His Honour then went on to determine (in paragraphs 31-33 of his reasons) that the mother could only properly discharge her obligations as a parent if she was living in a country where she was happy and well settled, and that this could only be in Hong Kong.  Therefore for the child to have a meaningful relationship with the mother, he would have to live with her in Hong Kong.

   12. In my opinion, it was not open to his Honour to interpret s 60CC(2)(a) in the way in which he did, that is, in effect to hold that where a child only has one parent participating in the parenting proceedings, it will be a primary consideration in determining the child’s best interests, that the child have a meaningful relationship with that parent. The legislation does not say this. Indeed it could well be asked why, if his Honour was prepared to place an interpretation on s 60CC(2)(a) other than an interpretation clear on its plain words, did he not interpret the expression “parents” to include the father in this case?

   …

   15. It is indeed unfortunate that given the now very detailed provisions of Part VII and the acknowledgement in that Part of the important roles that persons who are not natural parents of a child can have in a child’s life (see, for example, s 60B(2)(b)), that the legislation does not give some clearer indication of the weight to be attached to the child’s relationship with a person other than his or her parent, compared with the child’s relationship with the natural parent in the determination of proceedings between a parent and a person other than a parent. 

   16. As the legislation currently stands, and assuming that it is correct that “parent” means only a natural or adoptive parent, it would seem that in a case such as this, the court can only reach its determination in parenting proceedings on an application of s 60CC(2)(b) (protection from harm) and of the additional matters in s 60CC(3) so far as they expressly or impliedly refer to a person other than a parent.

1. May and Thackray JJ in their Judgment relevantly stated: 

   76. It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered.  Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant).  However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.   

   77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”. By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.

   78. In our view, his Honour was quite right to consider and make findings in relation to all of the relevant “additional considerations” in s 60CC(3), even though he acknowledged some had no application to the father because they relate only to a “parent”. However, for the sake of consistency it seems to us his Honour should have adopted the same approach when discussing s 60CC(2)(a). What occurred instead is that the father was treated as a “parent” for some purposes but not others.

   79. If the father had adopted S, his Honour would have been obliged to consider the benefit to S of having a meaningful relationship with him.  If the father had been the biological father, but never lived with S, his Honour would still have been obliged to consider the benefit to S of having a meaningful relationship with him.  Why should a different approach be taken because it was discovered that the boy was the product of an extramarital liaison? 

   …

   81. Whilst we accept, as a matter of statutory interpretation, that s 60CC(2)(a) had no application to the father, we are not convinced Parliament ever turned its mind to whether husbands in his position should have any different “status” for the purposes of Part VII of the Act. It should be remembered that the law has always been quite content to presume, absent proof to the contrary, that every child born to a married woman is the child of the man to whom she is married - even if the couple are not living together. (See now ss 69P(1) and 69U(1).)

   82. Such discussion, however, is ultimately unhelpful. It diverts attention away from the central enquiry, which is to determine the outcome that will be best for the child. Instead, it focuses attention on semantic issues about whether relevant matters should be discussed by reference to one s 60CC factor instead of another. In our view, provided his Honour gave due weight to all relevant factors, it would matter not whether he considered the child’s very important relationship with the father by reference to s 60CC(2)(a) or by reference to one of the additional considerations.

   83. For reasons we will explain, it appears his Honour treated the one relevant “primary consideration” to be the decisive factor.  He did not expressly indicate whether that factor was determinative because it was a “primary consideration” or because it was the factor of most significance.  If it was the latter, we consider his Honour erred in failing to provide adequate reasons, as his judgment does not explain how he weighed that one relevant primary consideration against the additional considerations. 

   84. If it was the former, then his Honour erred in law.  In this regard we concur with the observations of Warnick and Thackray JJ in Marsden and Winch (No. 3) [2007] FamCA 1364 concerning the relationship between the primary and additional considerations in s 60CC:

   77.The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations.  It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case.  Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions.  That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.

   78.It follows that we reject the premise inherent in the husband’s submission that his Honour was obliged to indicate “what factor or factors combined to displace the primary consideration contained in section 60CC(2)(a)”. Firstly, that submission ignores the fact that there is a second primary consideration which his Honour was also obliged to take into account. Furthermore, it is not a question of other factors being needed to “displace” one of the primary considerations. Rather, his Honour was obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as he thought appropriate in arriving at the result most likely to promote [the child’s] best interests. In doing so, he was of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests. (original emphasis)

2. In Aldridge & Keaton (2009) FLC 93-421, the Full Court of the Family Court (Bryant CJ, Boland and Crisford JJ) cited paragraphs 15 and 16 of Finn J’s Reasons for Judgment in Mulvany & Lane.  Their Honours concluded:

   74. Subject to the inclusion of a reference to “other intended parent” in s 60H, we agree with Finn J’s comments in Mulvany & Lane, and note that although the amending Act introduced detailed and complex provisions which a court must consider when determining whether to make a parenting order, or in refusing to make a parenting order, the amendments themselves do not:

   ·suggest any order in which the provisions must be considered; and

   ·direct any particular weighting or priority to any provision in the Part (although we note the division of the s 60CC factors into primary considerations and additional considerations. It is clear however from the [Explanatory Memorandum] that while the use of the word “primary” is intended to stress the importance of the considerations in s 60CC(2), in a particular case one or more of the considerations in s 60CC(3) may outweigh the primary considerations);

   75. While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant.  Our reasons for upholding this view include the following matters:

   ·the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;

   ·the recognition in s 65D(1) that ultimately a court should make such parenting order as it thinks proper; and

   ·that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.

   76. Experience and common sense demonstrates that the vast majority of applications for parenting orders will be brought by one of a child’s biological parents, with the other parent the respondent to the application.  But there are also situations where one or both parents are deceased or otherwise unavailable or unsuitable to fulfil the duties of parenthood.  Often in the latter circumstances a relative of the child will appropriately seek parenting orders. 

   77. Further, just as in 1976 Stephen J in Gronow v Gronow (1979) 144 CLR 513 recognised changing societal “norms” in rejecting the notion of a presumption in favour, or any preferred role, of a mother to have custody of a child, particularly of a female child, the Act in its present form enables a court dealing with a parenting application the flexibility to recognise and accommodate “new” forms of family, including families with same-sex parents, when making orders which are in the best interests of a child who is part of such a family.

   …

   79. In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child’s best interests.

3. Counsel for the respondent drew our attention to the correctness of the Federal Magistrate’s finding that there is a significant relationship between L and the respondent, despite their lack of biological relationship.   

4. In support of the first part of ground 4, counsel for the mother drew our attention to the transcript of 20 February 2009 where the respondent’s (then) counsel, Mr Hamilton, cross-examined the Family Consultant about the relevance to L of the respondent not being her biological father.  The Family Consultant gave the following evidence:

   [FAMILY CONSULTANT]:…she did understand that the applicant was not her real father or not her birth father, if you like.  Now, one would imagine that, if she were forced to live with a parent that she did not consider to be her real or birth parent, as the child grew older, she could, in fact, start to resent that feeling that she had been removed from her biological parents.  So, it is conjecture.  I have no direct proof in regards to what the child has said to me but that's opinion and it's based on what I read to be the current situation.

   MR HAMILTON: Right. So your concern would be that there may be some resentment in the future by the child because the child has been removed from the biological parent and put with a - - -?

   [FAMILY CONSULTANT]: Yes.  Well, it would be the child herself, as she got older, starting to ask questions as to why she was not living with her parents - - -

   MR HAMILTON: All right?

   [FAMILY CONSULTANT]: ‑‑‑While she was living almost in foster care with another person.

   …

   MR HAMILTON: So, I suppose what I'm saying to you is that - what I'm putting to you is this:  that on a short-term basis, at least, provided the child has regular time - sorry, has regular and extensive time with the mother, there would be no adverse affect to the child by being removed from the mother's care and put in the applicant's care?  From your observation of the child - - -?

   [FAMILY CONSULTANT]:‑‑‑Well, again, I mean I would doubt that.  I would think any child who knows that she is not living with a birth parent and living with another person regardless of, you know, the relationship between that person and the child, there must be issues and questions for the child as she grows older.

   MR HAMILTON: Yes.  I'm asking you on the short term?

   [FAMILY CONSULTANT:‑‑‑Well, in the short term, I suppose it depends on what we talk about the "short term" whether it's a couple of months or it's going to be a year.  You know?  And the other thing is that the child is apparently now been in a situation for some time where she has lived with her mother and has seen the applicant for regular periods of time.  So the proposal to actually turn that on its head and change that I think could significantly affect the child.

5. In summary, to the extent that it is asserted that some of the considerations listed in s 60CC of the Act precludes consideration of those factors in relation to persons other than a parent, for the reasons outlined above by the respective Full Courts in Mulvaney & Lane and Aldridge & Keaton, this assertion or submission is rejected. Even if the literal interpretation of the s 60CC factors which specifically refer to “parents” (s 60CC(2)(a), s 60CC(3)(c), s 60CC(3)(e), s 60CC(3)(g), s 60CC(3)(h), s 60CC(3)(i)) must only relate to parents (in the strict sense) a submission that we do not accept, s 60CC(3)(m) would permit and, indeed, almost require a consideration of the matters set out above in relation to persons who are other than parents.

6. The paramount consideration before the Federal Magistrate was determining what orders could be made in the best interests of the L. This in turn meant that he was to give consideration to the relevant s 60CC factors in relation to all of the relevant people in her life. We are satisfied that he did so.

7. The Federal Magistrate gave careful consideration to L’s relationship with all relevant people in her life and ranked (for what it is worth) L’s relationship with Mr F as the “least important of her relationships” (paragraph 75 of his reasons).

8. It cannot be validly asserted that the Federal Magistrate did not consider and evaluate the relationship he enjoyed with each of the relevant adults.  Accordingly, ground 4 has no substance. 

Ground relating to the failure of the Federal Magistrate to properly evaluate each of the parties’ proposals (Ground 5)

1. Counsel for the mother submitted that the Federal Magistrate had failed to properly evaluate the mother’s proposal in the terms as it stood at trial or generally for her and L to remain in W.  In the mother’s submission, this would have required consideration of whether the respondent could maintain a meaningful relationship with L and have spent what would effectively amount to “substantial and significant time” with her if the mother had been permitted to remain in W (and he in R). 

2. It was conceded by both parties that the term “substantial and significant time” has a defined meaning with significance to the operation of the provisions of s 65DAA of the Act.  That section was not directly applicable to the circumstances pertaining to the mother and the respondent as no order for equal shared parental responsibility had been made as between the mother and the respondent; rather such an order had been made between the mother and the father.  No complaint is made by the respondent as a cross-appeal against the order for equal shared parental responsibility as between the mother and the father. 

3. Counsel for the respondent submitted that the findings made by the Federal Magistrate about each of the proposals of the parties were open on the evidence. 

4. Counsel for the mother urged us to consider the mother’s right to freedom of movement. 

5. Counsel for the respondent submitted that the mother’s right to freedom of movement must be considered in the context of L’s relationship with each significant adult in her life. 

6. In Taylor & Barker (2007) FLC 93-345, Bryant CJ and Finn J stated (at 81,913) that when a judicial officer considers competing proposals involving a relocation of one parent with a child to a different geographic location, it is necessary to consider and evaluate, so far as it is possible, such a proposal in the context of the “making of the necessary findings in relation to relevant s 60CC matters”. That case was decided in the context of s 65DAA of the Act, which has no relevance in the circumstances of this case, as there was no order for equal shared parental responsibility as between the mother and the respondent.

7. We consider that the respective statements of law in both Taylor & Barker and Morgan & Miles are appropriate in evaluating competing proposals (which may involve a relocation proposal) between a parent and a person concerned with the care, welfare and development of a child.  This is because the Act mandates that a judicial officer must have regard to the paramount consideration of determining what is in the best interests of the child when making a parenting order (s 60CA of the Act refers).  In the same vein, we also endorse what their Honours said in Taylor & Barker at paragraph 75 (at 81,915) even if s 65DAA has no direct relevance to the circumstances of a particular matter:

   ….his Honour had before him her application to be permitted to relocate, and he was obliged to consider it.  Such consideration would clearly require a weighing up of the advantages and disadvantages of her proposal to relocate against the advantages and disadvantages of the maintenance of the status quo of substantial and significant time.  This is what his Honour then proceeded to do. (emphasis added)

8. The Federal Magistrate carefully considered what would occur in relation to each of the relationships that L would have with each of the persons relevant to her life, if she were to remain in the Great Lakes district or were to live with her mother (and Mr F) in W.  The Federal Magistrate did not consider in detail all of the possible physical circumstances related to L’s living with her mother in W.  This was in no small measure due to the fact that the mother was not able to set out with particularity in advance of her moving to W what those arrangements might be.  The Federal Magistrate did examine with some particularity the arrangements that would apply in the Great Lakes District, including the house in which L would live, the opportunity she would have to spend time with both the respondent and the father, and the fact that she had friends in the area.  He also noted what school L would attend. 

9. The Federal Magistrate did not draw an adverse inference against the W proposal on the basis of the lack of particularity.  His evaluation of the competing proposals was predicated on the fact that L living in the Great Lakes district would provide an opportunity for L to have a more meaningful relationship with the respondent and the other would not to the same extent.    

10. The comparison or evaluation of competing proposals does not involve some mechanical “checking of boxes” against physical criteria, but rather an overall and perceivable comparison of the appropriate arrangements.  In our opinion, the Federal Magistrate did this.  We consider ground 5 to be without merit. 

Grounds relating to the Federal Magistrate’s treatment of the Family Consultant’s written and oral evidence (Grounds 9 and 10)

1. Counsel for the mother complained that the Federal Magistrate’s finding that the Family Consultant was not cross-examined was inaccurate.  Ms Judge drew our attention to the cross-examination by the respondent’s then counsel, Mr Harrison, in the transcript of proceedings of 20 February 2009. 

2. Counsel for the mother submitted that the Federal Magistrate did not properly evaluate the oral evidence of the Family Consultant, either at all or sufficiently. Ms Judge specifically drew our attention to paragraphs 39, 53, 58 and 59 of the Family Consultant’s report.  Those paragraphs are reproduced hereunder:

   39. When asked more particularly about her living arrangements, [L] said she liked living with “mummy, popi and [Mr F]”.  She said she also liked seeing [the respondent] “sometimes” but was unable/unwilling to say if she would like it to be more or less often.  [L] said the eleven year- old girl (at [the respondent’s] house) was occasionally bossy and the older boy often went out.  She said she “sometimes” missed her mother, when she visited [the respondent].  There was no indication that the child regarded [the respondent’s] relatives as “family”.

   …

   53. There is also the situation of an apparently growing affection toward [Mr F].  In the event of the [mother/Mr F] relationship being maintained through [L’s] childhood, the step- father is likely to play an increasingly important role in her life.

   …

   58. All of the adults seem motivated to allow [L] the freedom of developing her individuality, and to date, don’t appear to have actively sought to influence the child’s perceptions.  This was evident during the assessment, and reflected in [L’s] statements and interactions.  Although shy and not wanting to displease any of the parents at the present time, [L] is emotionally well adjusted and bright.  Such children usually find the confidence to express their views by the middle primary years.

   59. With this in mind, it seems probable, that when she is a year or two older and able to express an opinion, and regardless of what formal arrangements are then in place, [L’s] own views, may significantly determine the amount of time spent with [the respondent] in the coming years.

1. Ms Judge emphasised that paragraphs 58 and 59 of the Family Consultant’s reported reflected positively on the mother and that L had been able to properly maintain her relationships with the respondent and her father despite her move to W.  

2. Counsel for the mother also drew our attention to the evidence of the Family Consultant given at the trial on 20 February 2009 where the Family Consultant stated that, in his observations, he considered that the mother “saw her future [in W] and not [in T]” (transcript of 20 February 2009); and that in his assessment “the child sees her mother as the closest person in her life” (transcript of 20 February 2009). 

3. Faulks DCJ drew counsel for the mother’s attention to part of the oral evidence of the Family Consultant where he stated (transcript of 20 February 2009):

   MR HAMILTON: And you wouldn't assess [the father] as being - notwithstanding he's the natural father, as being important to [L] as the applicant, at this stage, anyway?

   [FAMILY CONSULTANT]:‑‑‑Well, that's a - that's a very difficult question to really answer with any degree of certainty because it seems to me that [the father], as far as [L] is concerned, is a bit of an unknown quantity and his relationship with her, if in fact he does stay in contact with her on a regular basis, as is suggested in the mother's documents and his, if that were to be the case, I would predict that his relationship with his daughter would grow quite significantly as she gets older and I say that based on my experience in similar situations and with children who are not living with one or the other birth parents.  So, I think one would have to say that the chances of that happening are quite high.  Certainly, at the moment, she has - I assessed her as having a good relationship with [the respondent] but I have to point out I did not meet [the father], so I have no basis of comparison as far as [L’s] attachment between those two men in her life.

   MR HAMILTON: But you've - - -?

   [FAMILY CONSULTANT]:‑‑‑At this stage.  But I'm willing - I'm willing to concede that, given the amount of time that [L] has spent with [the respondent], one would imagine that in a day-to-day basis there would be greater attachment at the moment between she and [the respondent] than with the birth father.  I'm willing to concede that, only on the basis because of the amount of time spent in the past.

4. Faulks DCJ put to Ms Judge that the aforementioned evidence of the Family Consultant established the contrary to her submission that L would be able to prioritise her relationships and adjust properly if she were permitted to move with her mother to W.  Ms Judge conceded this point before us.   

5. Counsel for the respondent submitted that the findings made by the Federal Magistrate that L has a primary attachment with her mother, a “close loving and dependent” relationship with the respondent and a developing relationship with her father are consistent with the evidence of the Family Consultant. 

6. The submissions of the mother were, of course, correct in saying that the  Federal Magistrate erred in his statement (in paragraph 44 of his reasons) that the Family Consultant was not cross-examined.  However, it cannot be demonstrated and was not demonstrated by Ms Judge on behalf of the mother that cross-examination of the Family Consultant would have in any way affected the way in which the Federal Magistrate treated this evidence.  Alternatively, Ms Judge did not establish that there was such demonstrable lack of credibility in the Family Consultant’s evidence that it ought to have been rejected.  Indeed, the mother was content to rely upon the Family Consultant’s evidence in relation to matters which were positive to her case.  Counsel for the mother was also unable to establish that the evidence militated against her case in any way that might have been affected at by cross-examination. 

7. As was, in fact, pointed out to Ms Judge by us, the Family Consultant was cross-examined by Mr Hamilton for the respondent, but not by Ms Judge for the mother.  When counsel for the mother was asked by the Federal Magistrate whether she sought to cross-examine the Family Consultant, she replied “No, I’ve got nothing” (transcript of proceedings 20 February 2009, 185).

Grounds relating to the Federal Magistrate’s treatment of evidence about the child’s views and the nature of her relationship with the mother’s new partner (Grounds 11, 12, 13, 14 and 15)

1. Counsel for the mother submitted that the Federal Magistrate had failed to properly make a finding pursuant to s 60CC(3)(d) of the Act about the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from another person with whom he or she has been living; that is L’s separation from Mr F. At its highest, counsel for the mother submitted that the Federal Magistrate gave “scant” consideration to this issue, almost as an “after thought”.

2. It was also submitted that the mother’s relationship with Mr F had not been properly taken into account pursuant to s 60CC(3)(m) of the Act). This was particularly egregious in the mother’s submission because of L’s age and her ability to deal with the separation from Mr F and because of the extensive history of the relationship between the mother and Mr F. The impact of the mother’s separation from Mr F in terms of her happiness was also not taken into account (reliance being placed on the Full Court of the Family Court Judgment of Bryant CJ and Finn J (Faulks DCJ dissenting in part) in Taylor & Barker (2007) FLC 93,345).

3. In Taylor & Barker, Bryant CJ and Finn J concluded that there was no appealable error in the Federal Magistrate taking into account as decisive the fact that the mother’s happiness and contentment would be compromised if she was not permitted to relocate interstate. Their Honours said (at 81,922):

   It will be seen from the passages from his Honour’s judgment which we have set out throughout these reasons, that this was a difficult and finely balanced decision. In such a case one factor will usually become decisive. In this case his Honour determined that that factor was the mother’s happiness and contentment. In such a case where, as his Honour noted, the mother wanted to marry and be with the father of her second child, it could not, in our view, be said that his Honour was wrong in elevating this factor together with the impact on the mother and on the subject child of her not being permitted to relocate to join the man whom she wanted to marry, to be the decisive factor or factors in this case. Thus there is no substance in any aspect of Ground 3.

4. Faulks DCJ dissented in relation to this discrete aspect of their Honours’ Judgment.  His Honour stated (at 81,923):

   125. Unfortunately in my opinion the unhappiness, stress, depression and isolation upon which his Honour predicated his question were not otherwise proved.

   126. It is perhaps reasonable to infer as his Honour did that if a parent wishing to relocate has fallen in love with someone, and wants to share his or her life with that person and either shares having a child with that person or even wants to do so, that not being able to do so would make the person unhappy (indeed that is the conclusion their Honours the Chief Justice and Finn J reached).  If that were enough it seems to me that there would be very few applications for relocation which would not succeed.

   127. The Act does not prescribe parental “happiness” as such, as a factor in determining the best interests of a child.  It could be said that the point is so obvious that it does not need legislative prescription.  However, the happiness of one parent is not necessarily the happiness of the other and in relocation cases it would be rare for the two to coincide.  It is possibly reasonable to infer that the unhappiness of one parent may impact on a child who is with that parent and even more so if the child is more closely associated with that parent or perhaps more closely attached to him or her.  It may be that evidence in the form of an expert opinion based on observation and fact rather than conjecture may establish the veracity of such an inference in an appropriate case. 

   128. It is another thing in my opinion to elevate an inference, not directly supported by evidence, to the conclusive factor in preferring the new family of the parent proposing to relocate to the relationship between the child and his or her other parent.

5. Ms Judge again relied on the evidence of the Family Consultant given in paragraphs 39 and 53 of his report.

6. It was also submitted that the Federal Magistrate was mistaken in his finding in paragraph 54 of his Judgment that L had spent some weeks alone with Mr F in W.  Reliance was placed on the evidence of the mother in cross-examination in the proceedings of 19 February 2009.  The transcript relevantly provides:

   MR HAMILTON:  So just confirm this:  when did you return to work at [T]?

   [THE MOTHER]: I can't give you the exact date but it would have been October I'd say.

   MR HAMILTON:  The beginning of October?

   [THE MOTHER]:‑‑‑ It must have been, yes, if that is the case.

   MR HAMILTON:  So where was [L] then?

   [THE MOTHER]:‑‑‑On holidays with me.

   MR HAMILTON:  On holidays?

   [THE MOTHER]:‑‑‑Yes.

   MR HAMILTON:  Was she still enrolled at the [child’s school in [T]]?

   [THE MOTHER]‑‑‑That's right, yes.

   MR HAMILTON:  So when the school holidays finished?

   [THE MOTHER]:‑‑‑Yes.

   MR HAMILTON:  What happened then as far as [L] was concerned in her schooling?

   [THE MOTHER]:‑‑‑[Mr F] took her back to [W] and she went to school with him and I commuted.

   MR HAMILTON:  Sorry?

   [THE MOTHER]:‑‑‑I commuted to [W].

   FEDERAL MAGISTRATE:  So where do you tell me that in your affidavits?

   [THE MOTHER]:‑‑‑Well, it was in there that I was actually commuting.  I did tell my solicitor that I commuted from - - -

   FEDERAL MAGISTRATE: Can someone help me with the paragraph number where I'm told that she was commuting?

   MS JUDGE:  No, there's nothing in the affidavit.

   FEDERAL MAGISTRATE:  Thank you.

   MR HAMILTON:  So who was looking after her then?

   [THE MOTHER]:‑‑‑[Mr F] had her for four days and then I took two to three weeks off on leave, so I was back at work for that week while she was on holidays up there, while she was with [the respondent].

   MR HAMILTON: She went back to school [in [T]]?

   [THE MOTHER]‑‑‑Yes.

   MR HAMILTON: You're in [T] resuming duties with [her employer] there?

   [THE MOTHER]:‑‑‑Yes, I worked two to three days whilst I was up there and [L] was at school and then I commuted down to [W] and had two to three weeks off.

   MR HAMILTON: So was it only one week that [Mr F] was looking after her?

   [THE MOTHER]:‑‑‑Yes.

   MR HAMILTON: And then you took some time off?

   [THE MOTHER]:‑‑‑Yes.

   MR HAMILTON: Where were you living during the time that you were having the time off from [her employment]?

   [THE MOTHER]:‑‑‑At my dad's house.

   MR HAMILTON: At your dad's house?

   [THE MOTHER]:‑‑‑Yes.

7. Counsel for the mother conceded before us that the gravamen of these grounds were a sub-set of the Federal Magistrate’s failure to properly evaluate the competing proposals of the parties. 

8. Counsel for the respondent submitted that all of the findings made by the Federal Magistrate which the mother submits are relevant to these grounds were open upon the evidence and were not demonstrably excessive or inadequate in the terms contemplated by the majority in House v The King.   Counsel for the respondent Mr Gould also submitted that Mr F had spent only limited time with L and that the most important relationships L had were with her mother, the respondent and her father. 

9. As indicated above, this submission appears to be a sub-set of the matters dealt with in the previous ground of appeal.  For the reasons indicated above, we do not consider any new material has been raised under this ground apart from the possible reference to the failure on the part of the Federal Magistrate to give sufficient weight to the potential happiness (or possibly unhappiness) of the mother if she were permitted to relocate to W or to live in T respectively. 

10. Whether or not in the circumstances “happiness” is an appropriate criterion for determining matters of relocation, in this situation, it is clear that the Federal Magistrate considered the mother’s potential enjoyment of life in the both circumstances. But in the end, he weighed it differently from other competing factors under s 60CC of the Act. This is a matter he was entitled to do, and was within the range of his discretion, and it has not been demonstrated that he failed the test outlined in House v The King which may give rise to appellate intervention. 

Grounds relating to the Federal Magistrate’s treatment of the evidence about the Local Court proceedings (Grounds 18, 19 and 20)

1. Counsel for the mother submitted that an adverse credit finding had been made by the Federal Magistrate against the respondent for obtaining an Apprehended Violence Order against the mother.  It was then submitted that this adverse credit finding “did not translate” into the Federal Magistrate’s Reasons for Judgment and, in fact, affected the Federal Magistrate’s assessment of the mother’s credit. 

2. The mother sought to rely upon the evidence given by Ms M which she said demonstrated that there was inconsistent evidence to suggest the mother had been violent towards the respondent (transcript of 20 February 2009).

3. These grounds of appeal appear to suggest that as a consequence of the respondent bringing AVO proceedings that this should be, in some way, as a fact to be taken into account against the respondent, at least in circumstances where he had done so “maliciously”.

4. Section 60CC(3)(j) and s 60CC(3)(k) of the Act require the Court to consider whether there have been any instances of family violence involving the child or a member of the child’s family, as well as any family violence order that may have been made. The Federal Magistrate clearly took these matters into account in paragraph 81 of his Judgment, where he relevantly provided:

   There has been some limited family violence which does no credit to either [the respondent] or [the mother] arising from the incident on 12 November 2008 and the incident prior to that at a changeover period in [MA].  Both [the respondent] and [the mother] acted poorly in each circumstance. That [the mother] felt the need to take [L] to the police station prior to making her available to [the respondent] is a decision that reflects poorly upon her. I accept that she has thought more about this and is unlikely to repeat such actions. Thankfully [L] seems unaffected by it although the potential for damage was great. A continued repletion of this course of action would not be in [L’s] best interest. With the consent to the withdrawal of the AVO summons given by [the respondent], the Orders made will not be in conflict with any AVO.

5. To suggest as counsel for the mother does that this factor has not been taken into account, in the circumstances, is a matter of questioning the weight that the Federal Magistrate gave to the matters before him.  It is not an appealable error. 

6. It is true that in the course of an exchange between Mr Hamilton on behalf of the respondent and the Federal Magistrate (transcript of proceedings, 20 February 2009), the Federal Magistrate did refer to the respondent’s commencement of AVO proceedings “[T]hat’s an abuse of an AVO process…” he was well aware of the circumstances in which the proceedings had been taken out, he did take them into account and made the comments that he did in his Judgment.  There is no basis for interference with the Judgment on this ground.  This is purely a question of weight.

7. The Federal Magistrate referred to the poor and hostile relationship between the mother and the respondent, commented on that in connexion with the question of the allocation of parental responsibility, made orders which provided for changeovers which would minimise the contact between the parties, and noted at paragraph 40 of his Reasons the “acrimony and stubbornness and unilateral decision making” between the mother and the respondent.  Again, even the wording of ground 19, refers to the allocation of weight.  It cannot be said in this context that the relevant matters had not been taken into account properly.  It appears that these matters have not been taken into account in a way that is pleasing to the mother – that, however, is not the test.

8. In relation to ground 20, the Federal Magistrate commented in paragraph 43 “…[L] is aware of the acrimony between [the mother] and [the respondent]”.  Again, the Federal Magistrate took account of the impact on L of the acrimony between the mother and the respondent.  In those circumstances, this is again a question of weight.  It only remains to be said that in the course of the orders that the Federal Magistrate made, he made provision for communication and contact and L and the respondent in a way that would minimise the opportunity for the parties to be in conflict or to be able to taint any such communication with their acrimony towards each other. 

The application of s 65DAA of the Act

1. Submissions were sought after our Judgment was reserved in relation to the High Court decision of MRR v GR and the Full Court of the Family Court decision of Collu & Rinaldo.  These decisions refer to the operation of s 65DAA of the Act, which relates to the time arrangements that a Court must consider for a child spending time with a parent if an order for equal shared parental responsibility is made or proposed to be made between parties.  Whether an equal time or substantial and significant time arrangement is ordered by the Court depends on a judicial officer mandatorily considering whether this in the best interests of a child, and/or reasonably practicable. 

2. The High Court in MRR v GR relevantly stated (at 223):

   13. Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)).  It is only where both questions are answered in the affirmative that consideration may be given under para (c), to the making of an order.  The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made.  A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has the power to make a parenting order of that kind.  It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.  If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered.  That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.   

   …

   15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent.  The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). (footnotes omitted, emphasis added)

3. As no order was made for equal shared parental responsibility as between the mother and the respondent, s 65DAA of the Act had no application.  Thus, the Federal Magistrate was not mandatorily required to consider whether in the circumstances of this case an equal time or substantial and significant time arrangement would be either in the best interests of L, or reasonably practicable regarding the time that L spends respectively with the mother and the respondent.

1. Ms Judge submitted in her further written submissions, that because the Federal Magistrate did not properly consider the relevant matters in s 65DAA as between the mother and the father, he did not properly consider whether the mother’s proposal to relocate to W, or being required to remain in T, was either in L’s best interests or reasonably practicable. 

2. To the extent that the Federal Magistrate did make an order for equal shared parental responsibility as between the mother and the father, it was incumbent upon him to consider the relevant factors in that s 65DAA as they applied to the circumstances of the case: see Collu & Rinaldo [374] to [384]. He did not formally do so. In light of the aforementioned paragraphs of his Judgment (paragraphs 4, 41, 56 and 66), however, we are satisfied that he did consider “the reality of the situation between the parents and the child”, meaning that he accepted as being in the best interests of the child that the time that the father spends with L would be determined as between the mother and the father by agreement. We thus find that there was no appealable error arising from the issues raised in MRR v GR and Collu & Rinaldo.    

Costs

1. In the event of the appeal being upheld, counsel for the mother sought an order for costs in her favour as well as a certificate pursuant to s 9(1) of the Federal Proceedings (Costs) Act 1981 (Cth). It was submitted that the mother’s financial position was not strong and that an order for costs against her should the appeal be unsuccessful would be inappropriate. Counsel for the mother submitted that both parties were both in a similar financial position.

2. The respondent sought a certificate pursuant to s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth) in the event that the appeal was upheld on the basis of there being an error of law. Counsel for the respondent agreed that both parties were in a similar financial position.

3. In this matter, as appears from our considerations set out above, the mother has been wholly unsuccessful in the appeal. There is no basis upon which, in the circumstances, an order for costs should not be made against the mother. Accordingly, the mother will pay the costs of and incidental to the appeal, in accordance with Chapter 19 of the Family Law Rules 2004.

May J

1. I have had the benefit of reading the judgment of the Deputy Chief Justice and Justice Crisford and agree that the appeal should be dismissed.  I also agree that the appellant should pay the costs of and incidental to the appeal.

I certify that the preceding one hundred and forty‑six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Faulks DCJ, May & Crisford JJ) delivered on 3 February 2011.  

Senior Legal Associate:

Date: 3 February 2011