MASTERS & NEWTON

[2013] FamCAFC 118

FAMILY COURT OF AUSTRALIA

MASTERS & NEWTON [2013] FamCAFC 118

FAMILY LAW ─ APPEAL ─ CHILDREN ─ RELOCATION ─ Parenting arrangements ─ Whether the Federal Magistrate erred in making an order that the mother be restrained from changing the residence of the two children of her relationship with the father from Sydney to Canberra ─ Whether the Federal Magistrate failed to have proper regard to the mother’s evidence about her financial circumstances and the adverse impact of those circumstances on the children ─ Where the Court found that the Federal Magistrate failed to pay adequate attention to the unchallenged evidence of the mother that her financial circumstances in Sydney were “dire” and the adverse impact those circumstances would have on the children ─ Challenge successful ─ Whether the Federal Magistrate erred in the exercise of her discretion in finding that if the mother was to remain in Sydney, substantial and significant time with the children and the father was reasonably practicable ─ Where the Court accepted that the challenged finding as to the reasonable practicability of time with the father, was flawed by reason of the Federal Magistrate’s failure to give proper weight to the entirety of the mother’s circumstances, including her financial situation in Sydney ─ Challenge successful ─ Appeal allowed.

FAMILY LAW ─ COSTS ─ Where the appeal succeeded due to an error of law ─ Where the Court was satisfied that it was appropriate to grant costs certificates to each party ─ Each party granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and the rehearing of the proceedings.

Family Law Act 1975 (Cth): ss 60CC, 60CA, 65D, 65DAE, 68L, 93A

Federal Proceedings (Costs) Act 1981 (Cth)

CDJ v VAJ (1998) 197 CLR 172
MRR v GR (2010) 240 CLR 461

APPELLANT: Ms Masters

RESPONDENT: Mr Newton

INDEPENDENT CHILDREN’S LAWYER: Robertson Solicitors

FILE NUMBER: SYC 4764 of 2009

APPEAL NUMBER: EA 13 of 2013

DATE DELIVERED: 14 August 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: May, Ainslie-Wallace & Aldridge JJ

HEARING DATE: 25 July 2013

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 20 December 2012

LOWER COURT MNC: [2012] FMCAfam 1412

REPRESENTATION

COUNSEL FOR THE APPELLANT: Dr Perry QC with
Ms Steggall

FOR THE RESPONDENT: Mr Newton in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Guterres

SOLICITOR FOR THE INDEPENDENT CHIDLREN’S LAWYER: Robertson Solicitors

Orders

1. The appeal is allowed.

2. The mother’s application in an appeal is dismissed.

3. The orders of Federal Magistrate Walker (as she then was) made 20 December 2012 be set aside.

4. Until further order, orders 1-15 inclusive made by Federal Magistrate Walker (as she then was) on 20 December 2012 continue as the operative orders.

5. The matter is remitted for hearing before a Federal Circuit Court judge other than Judge Walker.

6. The Court grants to the appellant mother a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“Costs Act”) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment under the Costs Act to the appellant mother in respect of the costs incurred by her in relation to the appeal.

7. The Court grants to each of the respondent father and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of section 6 of the Costs Act being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment under the Costs Act to the respondent father and the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal.

8. The Court grants to each party and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of section 8 of the Costs Act, being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise payment under that Act to each party and the Independent Children’s Lawyer in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these Orders.

NOTATION:

a.It is requested that the Federal Circuit Court give all possible expedition to the rehearing of the proceedings as that Court deems appropriate.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 13 of 2013
File Number: SYC 4764 of 2009

Ms Masters

Appellant

and

Mr Newton

Respondent

and

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. On 20 December 2012 Federal Magistrate Walker (as she then was) ordered that Ms Masters (“the mother”) be restrained from changing the residence of the two children of her relationship with Mr Newton (“the father”) from Sydney to Canberra.  The children, L (born in 2006) and G (born in 2008) live with the mother.

2. The mother appeals the Federal Magistrate’s order.  The Independent Children’s Lawyer supports the mother’s appeal.  The father seeks to maintain the Federal Magistrate’s orders.

3. The factual background to the matter is relatively uncontentious and we set out some of that background from the Federal Magistrate’s reasons to give context to the appeal.

4. The mother and father began to live together in 2006. The father has a daughter, S, born in 1996, who has cystic fibrosis. The parties separated in 2007, before the birth of G. S’s care had been significantly provided for by the father. In late 2011 it seems that the father became primarily responsible for her care [25].

5. Following their separation, the parties agreed that the father would spend time with the children each Tuesday from 3 pm until 6.30 pm, all day each Sunday and he and the mother would have dinner together with the children each Thursday.  This agreement maintained until the father commenced parenting proceedings in August 2009.  Interim orders were made on 16 September 2009 which provided for the father to spend time with L from 10am Sunday until Tuesday morning of each week and for G to spend time with the father from 10 am Sunday until Monday morning each week.

6. The father re-arranged his working week to enable him to be free to be with the children on the days they spent with him.  In August 2011, his work commitments required him to work full time and his father, who lives in O, NSW, travelled to Sydney to assist the father with the care of the children.

7. It is uncontroversial that in about early 2012 the father was diagnosed with depression and prescribed antidepressant medication.  He was also undergoing considerable financial stress.

8. Both the father and mother have significant professional qualifications.  Each works and has worked in demanding positions.

9. In early 2012 the parties exchanged email correspondence about the arrangements for the father to see the children. In an email from the father to the mother of 12 March 2012, he said to her that he was very ill and would shortly be “unemployed and unemployable” [29]. The father advised the mother that he was no longer able to care for the children from 31 March, other than for school holidays.

10. At the time of the hearing the father’s evidence was that he had substantially recovered and was back at work. At that time he had received a pre-tax bonus of $49,000 in July 2012 [131].

11. On 26 March 2012, the mother made an application to vary the existing orders to provide for her to have “full parental responsibility” for the children, that they live with her and spend time with the father during specified school holidays.  

12. The mother began looking for work outside of Sydney and in April 2012 told the father that she had been offered employment in a senior position in Canberra.

13. On 1 May 2012 the father brought an application to restrain the mother from relocating the residence of the children from Sydney.  At that time, further interim orders were made providing for the father to have time with the children from after school on Friday until before school on Monday each alternate week.  An interim order restraining the mother from relocating the children’s residence to Canberra was then made.

The Federal Magistrate’s reasons

1. The Federal Magistrate considered the parties’ proposals. She noted that the father proffered several different proposals in addition to that for which he contended in his amended response filed in the matter on 1 August 2012 [51]. At [136], the Federal Magistrate observed that the additional proposals “arose from what was put to him by the family consultant. The father is clear in his evidence about what he believes he can manage. It is reflected in what he sought in his amended response of 1 August 2012”.

2. The Federal Magistrate said:

   47. The father who, was self represented, in his amended response filed on 1 August 2010 (sic) sought orders which he wished to be implemented in stages. He proposed that the children spend time with him on alternate weekends from 6.30 pm Friday to before school on Monday on the first, second and third weekends of each month. He proposed that the children’s time with him be increased to include alternate Wednesday evenings from the start of the school in term in 2013. From July 2013, the father proposed that the children spend time with him from Friday to Monday in one week and from Wednesday afternoon to Friday morning in the alternate week. He proposed that from 2015, if he was living within 5 kilometres of [R] Public School, in school terms on a two week cycle the children, should live with him from Thursday to Monday in one week, and from Wednesday to Friday in the other week. The father referred to this as his “shared care proposal.” The father also proposed orders about school holidays and about the mother taking the children overseas for periods when she was working overseas.

3. The father’s parents said that they would be available to assist him in his care of the children.

4. The Federal Magistrate observed at [55] that the father’s evidence was that if the mother was permitted to move the children’s residence to Canberra, he would not move there. She further commented that the father’s position was that if the mother moved with the children to Canberra, he “would not seek orders” [117].

5. It was this proposal of the father that the Federal Magistrate considered in coming to her determination about the relocation.

6. The Federal Magistrate noted that during the hearing the mother provided a minute of orders that proposed the children spend alternate weekends with the father and the mother would deliver and collect the children from either Sydney or O depending on where the father was spending the weekend and on the second weekend for the father to travel to Canberra to spend time with the children there. She also proposed time in school holidays and long weekends.

7. The Federal Magistrate said:

   59. The mother, at hearing, when asked what she would do if she was not allowed to move the children to Canberra said that she had no idea and would have to work that out if it eventuated.

8. The Federal Magistrate found that each child has a meaningful relationship with each parent and that the father had been “highly involved in their lives” [64]. She identified as an “important issue” whether, if the children move to Canberra, that relationship with the father would continue. She further said that a “similar issue” would arise in relation to the mother in the father’s second and third proposal [65].

9. In considering the views of the children, the Federal Magistrate observed that L had said to the family consultant that he “does not want to spend any less time with his father than he does already” [68]. The Federal Magistrate accepted the opinion of the family consultant that L’s views should have weight “in the sense of indicating what his needs were and that he needed something more in terms of his relationship with his father” [69].

10. Her Honour found that both children have a good relationship with each of the parents. She noted that the mother had been the children’s primary carer and that the family consultant had said that L’s anxiety “was likely to be exacerbated if he was not living with her” [72].

11. At [74] the Federal Magistrate turned to a consideration of s 60CC(3)(c) of the Family Law Act 1975 (Cth) (“the Act”) and noted that the father asserted that “the mother had taken advantage of his illness and decided to move from Sydney with the result that his close relationship with the children would be undermined.”

12. The Federal Magistrate then referred to the father’s contention that the mother’s past actions had demonstrated that she had not fostered his relationship with the children.  After making extensive reference to emails that passed between the parties, the Federal Magistrate concluded:

    94. While flexibility may well suit the father in his circumstances, certainty or predictability may reasonably be something that is important to the mother and assist her in the way she makes arrangements for the children….

13. Her Honour found at [96] that the mother “may well have acted precipitously in widening the area of her job search following her receipt of the father’s email of 19 March 2012.” She further found that the father’s emails about reducing his time with the children were out of character.

14. After noting the family consultant’s opinion that, if the children did relocate, “the relocating parent would…need to be supportive of the time the children spent with their father including in practical ways, and would need to be proactive and aware of what needed to be done” [100], the Federal Magistrate said:

    103. The evidence shows that the parents’ communication is difficult, with mistrust and hostility remaining following the circumstances of their separation. The issue is whether with the challenges arising from logistics and distance, the mother would take the more proactive steps needed to facilitate the children’s relationship with their father if they moved to Canberra. The court finds that there is reason to have some doubt about this. This is not a factor which favours the mother’s proposal.

15. We regard of some significance the Federal Magistrate’s further observation that the father’s intention was not to be the primary carer for the children.

16. At [102] and [110] the Federal Magistrate refers to the circumstances relating to L.  He is described as having both physical and academic difficulties.  From 2010 he has been attending a Child and Family program which involves therapy and he has occupational therapy to improve his physical condition.

17. The Federal Magistrate accepted the opinion of the family consultant that any reduction in the time the children spent with the father which would result from acceptance of the mother’s proposal would “most likely place further stress on [L]” [114].

18. Her Honour found at [107] that the mother’s proposal would be a major change to the arrangements that had previously existed and, if accepted would involve a reduction of the time the children presently spend with their father because of the distance involved in the travel [108].

19. Her Honour concluded that if the children moved to Canberra, “the reality is likely to be that logistical difficulties would mean that alternate weekend time with their father would be difficult to sustain” [116]. She further concluded that there “must be some doubt about the mother’s intentions about the frequency of the time the children would spend with their father” [117].

20. Her Honour said:

    118. If the children moved to Canberra, with the strong likelihood that they would see less of their father, this would be likely to have an adverse impact on the children, especially [L] who would need to change schools, and whom the family consultant said could be unsettled by the many changes involved in the mother’s proposal. This is a consideration which does not favour the mother’s proposal.

21. Dealing with the parties’ circumstances, the Federal Magistrate found that the father’s circumstances, financial and emotional, had improved. She accepted that if he was able to spend more time with the children, he would seek larger accommodation [137].

22. Her Honour found:

    139. The court finds that the father with his health improving, his employment less insecure and the family support he has, would be likely to be able to care for the children for the periods he proposed in his amended response, at least to the point where they were again spending time with him on weekends, mid week Wednesday and Thursday in the alternate weeks and during school holidays….

23. Her Honour considered the mother’s evidence about the employment in Canberra at [155] which the mother said would give her permanent employment and remuneration of $130,000.  Her Honour referred to the work history of the mother and observed that after the birth of G, her employment at a large university was terminated. She continued, referring to the mother’s evidence about her employment:

    157.….From July 2009 she said she had applied for work in Sydney in her field and related areas. While she had secured contracts for particular projects, she said she had been unsuccessful in securing permanent work. She said that she received an income of $21,000.00 from consulting in 2011/2012, that she received $1,481.00 in child support monthly, and that these sums together with her Centrelink payment gave her a total yearly salary of $59,000.00. She said that her weekly expenses, including rent of $600.00 a week, child care of $268.54 a week and occupational therapy of $80.00, exceeded her weekly income by almost $500.00. The mother said that her rent was shortly to increase to $655.00 a week or more. She said that she had debts in the sum of $39,550.00 which included loans from friends. She said that she had been unable to pay her recent rent and had received two notices to quit.

    158. The mother said that the offer of a full time job would give her job security and a regular income. She said that in Canberra she would be able to rent larger premises for the same rent she paid in Sydney for her unit, and that she would be able to afford the cost of an au pair to assist with the children.

24. At the time of the hearing before the Federal Magistrate, the job offer in Canberra was still available to the mother [159].

25. Her Honour concluded that there was “little doubt” that if the mother took up the position in Canberra “it would be likely to improve her employment position, possibly her future career prospects and enable her to earn a greater income than she does at present” [164].

26. Her Honour considered the issue of parental responsibility and found that this was a matter in which the presumption of equal shared parental responsibility would apply [169]. She turned then to the provisions of s 65DAA(1) of the Act.

27. The Federal Magistrate correctly observed that none of the father’s proposals amounted to an application for equal time with the children and further noted that there was no evidence about how he would manage the children if he had equal time with them [176-7]. Her Honour considered that such an arrangement would not, in any event, be in the children’s best interests.

28. As to whether the children could spend substantial and significant time with the father she concluded that, before the father’s illness caused a reduction in the time he was spending with the children, he was spending substantial and significant time with them [179]. The Federal Magistrate considered that the father’s proposals would amount to substantial and significant time and found that he would be able to care for the children for the periods he proposed. The Federal Magistrate found it to be in the children’s interests to spend substantial and significant time with the father [180].

1. In contrast the Federal Magistrate found that it would not be reasonably practicable for the children to spend substantial and significant time with their father if the mother and children moved to Canberra. She referred to the mother’s proposal that the father spend each alternate weekend with the children and said that this would not permit the father to spend time with them that would enable him to be part of their daily routine [181].

2. Her Honour considered MRR & GR [2010] HCA 4 and said that the court was required to “consider the reality of a particular situation. The court is required to consider the circumstances of the parents to determine whether substantial and significant time is reasonably practicable and take into account the circumstances of both parents and their proposals in doing this….” [182].

3. Her Honour said:

   185. The court accepts that the mother’s present financial circumstances are difficult. The father pays child support in the sum of $1,481.00 a month. The father said at hearing that he could not provide further financial support to the children. While the father questioned the mother in a limited way about her financial circumstances, he did not establish that she was living other than modestly. Certainly, she has the primary responsibility for the children. The father expected that when things became difficult for him, the mother should be instantly able to take on virtually the full time care of the children without assistance from him. This, if anything, would make the financial pressure on her greater in terms of funding child care, and after school care. The mother has said that she wants to do more domestic rather than international work. She said that has applied for over 100 advertised positions, registered with a recruitment agency which specialises in her line of work, and taken steps to secure more employment than she had at present. The mother annexed some job applications to her affidavit, although there was little detail as to the specific nature of the positions in which she was interested. Some appeared to be consultant positions arising from tender processes.

4. The Federal Magistrate referred to the evidence of the family consultant as to the mother’s level of stress and observed that these feelings are important because she is the primary carer of the children [186].

5. The Federal Magistrate said:

   188. The mother’s financial position may be relieved a little when she no longer has to pay for child care for [G] when she starts school next year, although presumably after school care would still be needed. The mother has been able to find some employment in Sydney and while she has had difficulty finding permanent positions in Sydney which would give her more financial security, it is not impossible that she may be able in the future find a position which is Sydney based.

6. Her Honour concluded that while the matter was finely balanced, if the mother remained living in Sydney, substantial and significant time with the children would be reasonably practicable.  She continued:

   193....The court has found it would be likely that the children would spend less time than they do now with their father if they move to Canberra and certainly less time than the father seeks in his preferred proposal. As discussed, the court has found that the changes would be likely, in particular, to have adverse consequences for [L]....

7. The Federal Magistrate refused to allow the mother to relocate the children’s residence to Canberra.

The appeal

1. The amended notice of appeal raises seven grounds of appeal.  Senior counsel for the mother argued them in groups and we will consider them in the same way.  Ground 4 was not pressed.

Grounds 2, 3 and 5

1. Ground 2 of the amended notice of appeal provided:

   The Federal Magistrate erred in the exercise of her discretion under section 60CA of the Act in considering the factors set out in section 60CC(3)(d) of the Act on the grounds that the Magistrate failed to take into account:

   a.the Appellant’s uncontested evidence that she could not continue to afford providing the children’s occupational therapy and extra curricular activities if she was to remain living in the Sydney metropolitan area;

   b.that the Appellant could not afford to continue living in the [R] area;

   c.the effect of such changes in circumstances upon the children.

2. Ground 3 of the amended notice of appeal provided:

   The Federal Magistrate erred in the exercise of her discretion under section 60CA of the Act in considering the factors set out in section 60CC(3)(f) on the ground that the Magistrate failed to take into account the matters described at paragraphs 1(c)-(f) and 2(a) and (b) inclusive above.

3. Ground 5 of the amended notice of appeal provided:

   The Federal Magistrate erred in the exercise of her discretion in considering the factors set out in section 60CC(3)(m) of the Act on the ground that the Magistrate:

   a.failed to make findings on the totality of the Appellant’s evidence as to her financial circumstances including as to the matters described at paragraphs 1(f) and 2(a) and (b) above and their potential or likely impact upon the children; and, in any event,

   b.failed to take into account the totality of the Appellant’s uncontested evidence of her financial circumstances and their potential or likely impact upon the children, including as to the matters described at paragraphs 1(f) and 2(a) and (b) above;

   c.failed to have regard to the extent of the Appellant’s financial hardship and its potential or likely impact upon the children.

4. These grounds challenge her Honour’s analysis of the parties’ circumstances.  In particular it was argued that her Honour failed to have proper regard to the practical reality being the evidence of the mother’s financial circumstances and current vulnerability. When considering the likely effect of any change on the children’s circumstances (s 60CC(3)(d) (Ground 2)), the Federal Magistrate failed to properly  consider the mother’s financial capacity to provide for the children’s needs while living in Sydney (s 60CC(3)(f) (Ground 3)). In failing to have regard to the mother’s evidence about her financial circumstances and the adverse impact of those circumstances on the children (s 60CC(3)(m) (Ground 5)) the Federal Magistrate erred.

5. In considering these grounds, it is of assistance to consider the mother’s evidence about her financial situation.

6. It was argued that the mother’s unchallenged evidence was that her financial situation was “dire and stressful beyond measure”.  The mother said that she was behind in her rent payments and had been given two notices to quit.  She said that, if she had to remain living in Sydney she would need to find cheaper accommodation.  Ms Masters’ unchallenged evidence was that her weekly shortfall between income and outgoings was being met by her friends.

7. The mother had fallen behind in child care payments and had been given a notice from the child care centre that she must pay.   The mother’s evidence was that she feared she would not be able to provide for the children in the near future because of these financial circumstances.  The mother’s evidence, again unchallenged, was that her situation was causing her great stress.  The mother’s evidence was that she paid for the therapies for L without assistance from the father. 

8. It was argued that while the Federal Magistrate took into account the effect on L of changes in his circumstances having the potential to adversely affect him, she failed to take into account the adverse consequences on him if the mother was to remain in Sydney and be financially unable to maintain the therapies he requires, current schooling and after school places.

9. Equally it was argued that while the Federal Magistrate considered the mother’s financial circumstances, she failed to take it into account in considering the children’s best interests, in particular the mother’s position of reliance on the child support paid by the father and her financial vulnerability.

10. The father, who appeared for himself, did not squarely address the grounds of appeal in his written submissions.  In oral argument he said that the mother’s position was, in effect, to elevate her ambitions above the children’s contact with him and their family. He further argued that the mother provided limited evidence about her financial circumstances and her income and assets.  He contended that her expenses were “high”.  He further asserted that she had worked in Sydney in the past and it was unclear what her earning capacity was.  As to these matters, we observe that, despite the father’s cross examination of the mother on her expenses, her Honour did not find that they were “high” but, in fact found that she was living modestly. 

11. The Independent Children’s Lawyer, after referring to the mother’s unchallenged evidence, provided written submissions filed 20 June 2013, that:

    34. There was considerable evidence by both parties that financial and child support issues had been the source of significant conflict for some time.

    35. In those circumstances, it was incumbent upon her Honour to give proper consideration to the competing evidence as to the mother’s financial circumstances in Sydney and assess that evidence in the context of the competing proposals.

    36. Her Honour, it is submitted, did not do so. Rather, whilst acknowledging the mother’s “difficult” financial circumstances, her Honour’s assessment of the mother’s financial position if she were to remain in Sydney, and more importantly their impact on the children’s interests, was cursory.

12. In MRR v GR (2010) 240 CLR 461 at [15], the High Court said:

    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). Section 65DAA(1)(b) requires a practical assessment of whether equal time is feasible. ….Coker FM was obliged to consider the circumstances of the parties, more particularly those of the mother, in determining whether equal time parenting was reasonably practical.

13. Her Honour, in determining the best interests of the children was obliged to consider not only the circumstances that would obtain if the mother moved to live in Canberra, but also those that would prevail if she were to remain living in Sydney in the light of the uncontested evidence of her financial circumstances and the uncertainty of the father’s.   The Federal Magistrate did not do so and in that respect failed to give proper consideration to the unchallenged evidence of the mother that her financial circumstances in Sydney were “dire”.

14. In the result, the Federal Magistrate failed to pay adequate attention to this evidence and its impact on the children’s circumstances, both financial and through the stress it engendered in the mother.  In these two aspects, the

    
    

    Federal Magistrate has fallen into error.

15. We thus find these grounds made out.

Ground 1

1. Ground 1 of the amended notice of appeal provided:

   The Federal Magistrate erred in the exercise of her discretion under section 60CA of the Family Law Act 1975 (Cth) (the Act) in ordering that the Appellant be restrained from relocating the children’s residence outside the Sydney metropolitan area on the grounds that the Magistrate:

   a.failed to have regard to the impact of the Appellant’s financial circumstances upon the children in the event that such restraint was imposed; and/or

   b.assumed that the children’s circumstances and the Appellant’s ability to provide for the same level of services for them would be unaffected by the Appellant’s financial position;

   given among other things:

   c.that the Appellant would remain the primary carer for the children;

   d.the Appellant’s uncontested evidence of her situation of financial hardship and as to the extent of that hardship;

   e.the Magistrate’s findings at paragraphs [157], [185] and [188] of the Reasons;

   f.the Appellant’s uncontested evidence as to her inability to continue providing for the children to the same level and in the same home whilst living in the Sydney metropolitan area. (Original emphasis)

2. Much of the argument directed to this ground has been considered by us in determining grounds 2, 3 and 5.  The thrust of this ground of appeal is that the Federal Magistrate erred in the exercise of her discretion in finding that if the mother was to remain in Sydney, substantial and significant time with the children and the father was reasonably practicable.

3. It was submitted that this finding was not open to the Federal Magistrate because it fails to take account the mother’s evidence that she could not remain living in her present premises.  Further to that, the Federal Magistrate engaged in speculation in finding that if the mother remained living in Sydney, it was “not impossible” that she might be able to find a position of employment. There was no evidence before her capable of supporting that finding.

4. We accept that the Federal Magistrate in finding that the mother might gain employment in Sydney was not only speculative but did not take account of the unchallenged evidence of the mother that she had made many applications for positions in Sydney without success.  In this, the Federal Magistrate erred.  It follows from our determination in relation to grounds 2, 3 and 5 that we accept that the challenged finding as to the reasonable practicability of time with the father, is flawed by reason of the Federal Magistrate’s failure to give proper weight to the entirety of the mother’s circumstances, including her financial situation in Sydney.

5. This ground is made out.

Ground 6

1. Ground 6 of the amended notice of appeal provided:

   The Federal Magistrate erred in the exercise of her discretion under section 65D of the Act in ordering that neither parent is to change the current enrolment of the children in any extracurricular activity or enrol the children in any extracurricular activity other that that in which they are currently enrolled without the written consent of the other parent on the grounds that the Magistrate did not consider section 65DAE of the Act and failed to make findings of fact in support of the order imposing consultation between the parties on issues that are not major long-term issues.

2. This ground challenges the Federal Magistrate’s order that the parties consult and agree about the children’s extra curricular activities. Her Honour ordered:

   10. Neither parent is to change the current enrolment of the children in any extracurricular activity, or enrol the children in any extracurricular activity other than that in which they are currently enrolled, without the written consent of the other parent.

3. It was submitted that her Honour erred in making this order for two reasons. First, it was submitted, that although she found the presumption of equal shared parental responsibility not to be rebutted, in making this order, her Honour departed from the “statutory mandate” in s 65DAE(1) which is that parties with equal shared parental responsibility are not required to consult in relation to issues that are not major long-term issues. Secondly, it was argued that the effect of the order was to require the parties to consult and agree not only to the continuation of present extra curricular activities but any in the future, unlimited by time. Further, senior counsel for the mother argued that it was an order not sought by any party (in the terms in which it was made) and in the light of [203] where her Honour commented on “obvious disagreements between the parents about the children’s extra-curricular activities, particularly in relation to [L]….”, it was an order made against the weight of the evidence.

4. The father submitted that there had indeed been some disagreement about L’s soccer.  He said that he sought an order about extra curricular activities in the proceedings.  In a document entitled “Final Orders sought by the Respondent”, the father sought an order:

   11. The children shall not attend any ongoing extra-curricular activities without the continuing agreement of both parties. Should either party withdraw agreement for an activity, both parties shall immediately cease the child’s involvement in that activity during their care.

5. The order made by the Federal Magistrate does not accord with the order sought by the father, however we do not understand that the “statutory mandate” prohibits an order in the terms made by the Federal Magistrate.  It was an order open to her Honour on the evidence and we are not persuaded that she erred in making it.  We do not find this ground made out.

6. It will be seen that we intend to allow the appeal, set aside the orders and order a re-hearing. Depending on the outcome of the mother’s application for relocation, a different judge may consider that this order is no longer in the children’s best interests. We would not wish to limit the considerations and orders available to the judge when the matter is re-heard.

Ground 7

1. Ground 7 of the amended notice of appeal provided:

   The Federal Magistrate erred in the exercise of her discretion in section 65D in that the Magistrate failed to have regard to the impact of the orders in providing for increasing contact between the parties on the children notwithstanding the Magistrate’s findings:

   a.that the relationship between the parties is a high conflict relationship (Reasons at [123] and [124]; and

   b.as to the potential for that high conflict relationship to impact adversely on the emotional well being of the children (Reasons at [140]).

2. The gravamen of this challenge is the Federal Magistrate’s order which increased the contact between the father and the children despite making findings about the conflict between the father and mother.  It was submitted that this represented an error in the exercise of her discretion.

3. Given our decision as to the outcome of the appeal, it is unnecessary to consider this ground. 

Ground 1A

1. Ground 1A of the amended notice of appeal provided:

   The Federal Magistrate erred in the exercise of her discretion under section 60CA of the Act in failing to take into account the course of action submitted by the Independent Children’s Lawyer appointed pursuant to section 68L(2)(a) of the Act to permit the relocation of the Appellant with the children, in circumstances where the Independent Children’s Lawyer:

   a.had formed an independent view based upon the evidence of what is in the best interests of the children for the purposes of section 68L(2);

   b.was satisfied for the purposes of section 68LA(3) that the adoption of the said course of action was in the best interests of the children; and

   c.was thereby required by section 68LA(3) to make that submission.

2. In support of this ground, the appellant argued that the Federal Magistrate erred in failing to take into account the position for which the Independent Children’s Lawyer contended in his submissions at trial, which was to support the mother’s application.

3. It is unnecessary for us to deal with this ground other than to observe that

   
   

   unfortunately her Honour does not refer to the Independent Children’s Lawyer’s submissions in her discussion of the matter.  In our view, given our determination in respect of the other grounds of appeal, it is unnecessary to consider this ground and the matters raised in the appellant’s submissions about the role of the Independent Children’s Lawyer’s submissions.

4. Having found grounds 1, 2, 3 and 5 made out, we are of the view that the appeal must succeed.

Application for further evidence

1. The appellant, by application in an appeal, sought leave to rely on further evidence.  The proposed evidence is contained in an affidavit sworn by the mother on 22 July 2013.

1. The mother’s evidence is that on 5 February 2013, the father informed her that he had been made redundant and that he informed the Child Support Agency of that fact.  As a result the amount payable to her as Child Support was reduced to $211.50 per month.

2. The father in oral argument conceded the facts to which the mother deposed, but said that he was at the time of the appeal hearing, again in employment.

3. The father filed an affidavit in response in which he sought an adjournment of the appeal and the opportunity to file further evidence.  The application for adjournment of the appeal was refused.

4. The further evidence which he sought to adduce was not of a nature that would permit of leave pursuant to s 93A(2).

5. Counsel for the mother referred to CDJ v VAJ (1998) 197 CLR 172 at page 201 where the plurality said:

   109. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.

6. It was argued that the purpose for which the mother sought to adduce this evidence was in support of her contention that the Federal Magistrate failed to have proper regard to the mother’s financial circumstances, in particular, her financial vulnerability, and that her already dire circumstances were significantly worsened by a reduction in child support brought about by the father’s uncertain employment.

7. Given our determination on the asserted grounds that the appeal must be allowed, it is unnecessary to determine the question of whether or not we give leave to bring further evidence.

8. However, in the father’s affidavit supporting his response to the mother’s application in an appeal, he raised an issue concerning G’s health that had arisen after the conclusion of the hearing before the Federal Magistrate. While this, and the other matters to which the father adverts in his affidavit would not in this case, attract leave under s 93A(2), it is relevant when considering the disposition of the matter.

Disposition

1. Counsel for the mother argued that, given the circumstances of this matter, including the mother’s significant financial distress, this court should

   
   

   re-exercise the discretion and re-determine the matter rather than remit it for rehearing in the Federal Circuit Court.

2. Counsel for the Independent Children’s Lawyer submitted that the matter should be remitted for rehearing because of the time that has passed since the hearing and the changes in circumstances since the decision.  Principally, the Independent Children’s Lawyer argued that G’s medical condition is a matter that would require further evidence and consideration. 

3. While we recognise the parties’ concern to have this matter brought to a speedy conclusion, the Independent Children’s Lawyer’s submissions were potent and persuade us that it is not a matter in which we would re-exercise the discretion. 

4. We will recommend that on its remittal to the Federal Circuit Court, that consideration be given to affording it expedition.

Costs

1. As usual, we enquired of the parties as to their positions on costs.  senior counsel for the mother argued that in the event that the appeal was successful, she sought a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for both the appeal and any retrial. The father and the Independent Children’s Lawyer joined in this application.

2. This is a matter where, the appeal having been successful because of an error of law by the Federal Magistrate, and one in which we would not otherwise make an order for costs against a party, it is appropriate for us to make an order for a certificate.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May Ainslie-Wallace & Aldridge JJ) delivered on 14 August 2013.

Associate:

Date: 14 August 2013