Moon and Moon - [2011] FamCAFC 116

FAMILY COURT OF AUSTRALIA

MOON & MOON

[2011] FamCAFC 116

FAMILY LAW - APPEAL – Appeal from interim orders made by a Federal Magistrate in parenting proceedings – Not established the Federal Magistrate erred with respect to the weight she attributed to the findings of the family consultant, given a potential defect in the Family Report – Not established that the Federal Magistrate failed to consider any relevant factor or gave excessive, or inadequate, weight to any factor – Not established that the Federal Magistrate’s conclusion with respect to the absence of risk of violence or abuse was not reasonably open to her – Further evidence of events subsequent to the Federal Magistrate’s orders would not render erroneous her decision – Appeal dismissed and further evidence application refused.

Family Law Act 1975 (Cth) Part VII, s 93A

A v A: Relocation Approach (2000) FLC 93 -035
Abalos v Australian Postal Commission (1990) 171 CLR 167
CDJ v VAJ (1998) 197 CLR 172
Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472
Gronow v Gronow (1979) 144 CLR 513
Hepburn & Noble (2010) FLC 93-438
House v The King (1936) 55 CLR 499
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483
MRR v GR [2010] HCA 4
Starr & Duggan [2009] FamCAFC 115
Tryon & Anor v Clutterbuck & Ors [2011] HCATrans 133

APPELLANT:

Mr Moon

RESPONDENT:

Mrs Moon

INDEPENDENT CHILDREN’S LAWYER

Mark Whelan

FILE NUMBER:

PAC

1209

2007

APPEAL NUMBER:

162

2010

DATE DELIVERED:

27 May 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

12 May 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

12 November 2010

LOWER COURT MNC:

[2010] FMCAfam 827

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms McIntosh

SOLICITOR FOR THE APPELLANT:

Everett Evans Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Nash

SOLICITOR FOR THE RESPONDENT:

Legal Aid Office (Qld)

COUNSEL FOR THE INTERVENOR:

Ms Leis

SOLICITOR FOR THE INTERVENOR:

Mark Whelan Lawyers

Orders

That the appeal be dismissed.
That the application for leave to adduce further evidence be dismissed.
That there be no order for costs.

IT IS NOTED that publication of this judgment under the pseudonym Moon & Moon 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 PARRAMATTA

Appeal Number: EA 162 of 2010
File Number: PAC 1209 of 2007

Mr Moon

Appellant

And

Mrs Moon

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed 9 December 2010 Mr Moon (“the father”) appealed against orders made by Federal Magistrate Walker in proceedings between himself and Mrs Moon (“the mother”) on 12 November 2010. Although the orders of the learned Federal Magistrate were interim, as they were made in parenting proceedings the father did not require leave to appeal against such orders.
The orders of the learned Federal Magistrate relevantly provided that the parties’ child, J, who was born in 1999, live with the mother at Town C in far north Queensland and, in the absence of agreement, spend time with the father for one half of the December 2010 school holiday period and for all of the Easter and September/October holiday periods in 2011. Her Honour made orders ancillary to those parenting orders to facilitate the child J’s travel pursuant to the orders and to facilitate telephone contact between the child J and the father.
The learned Federal Magistrate adjourned the proceedings to 4 November 2011 before her for further hearing. As is not in doubt, the question of whether the child J should continue to reside with the mother at Town C or return to reside with the father in Sydney was the issue which her Honour’s orders and reasons for judgment contemplated would be agitated on 4 November 2011.
The father sought that, in lieu of the learned Federal Magistrate’s order, the child reside with him in western Sydney and spend time with the mother on essentially the same basis as the Federal Magistrate’s orders provided that the child spend with him, that is, for one half of all school holiday periods.
The mother resisted the father’s appeal and sought to maintain the orders of the Federal Magistrate. The ICL supported the mother’s resistance of the father’s appeal.
The father sought leave to adduce further evidence in the appeal pursuant to s 93A of the Family Law Act 1975 (Cth) (“the Act”). The further evidence which he sought leave to adduce in the appeal was contained in an affidavit sworn by the father on 27 April 2010. That affidavit was reproduced in the father’s Appeal Book. It was submitted by Counsel for the mother and the ICL that the father’s application to adduce the further evidence in the appeal should be refused.
Regrettably, for sound financial reasons, the father was unable to place a transcript of the trial before the learned Federal Magistrate before this Court. His learned Counsel accurately, and very properly, acknowledged the obstacle which the absence of the transcript created to successful agitation of a number of the father’s grounds of appeal.
Whilst, in the absence of the transcript there can be no certainty in this respect, the Court suspects that the absence of the transcript of the trial has not caused, or could not cause, an injustice to the father in the circumstances of this appeal. Properly understood, as the father’s learned Counsel correctly acknowledged, the fate of the major complaints agitated on behalf of the father turns primarily on the findings of fact made by the learned Federal Magistrate, and the conclusions which she reached in reliance upon them.
Thus, whilst the absence of transcript has effectively prevented Counsel for the father from successfully agitating grounds of appeal which involve challenges to findings of fact made by the learned Federal Magistrate, the absence of the transcript has not adversely impacted upon those challenges which assert that the learned Federal Magistrate gave excessive or inadequate weight to the facts as found by her, or that the conclusions reached by her Honour in reliance upon such findings of fact were not reasonably open to her.

Background

The following matters of background emerge from the judgment of the Federal Magistrate and, at least for present purposes, are uncontroversial.
The father is presently aged 44 years, and the mother 38 years.
The parties commenced cohabitation in 1989. They separated in early 2006.
The parties married in 1991.
There are three children of the relationship, the child B who is now 21 years old, the child D who is now 18 years old and the child J who is now 12 years old.
In March 2007 the parties entered into consent orders which provided that the children live with their father, that he have sole parental responsibility for them and that, in the absence of other agreement in that regard, the children live with their mother every second weekend from 11am Saturday to 3pm Sunday and for half of the school holidays and on “special days”.
In April 2007, the mother and her partner, Ms C, moved to Town C.
From some time in 2007 the father and Ms C’s sister, Ms K, have been in a relationship.
On 21 May 2009 the mother commenced proceedings seeking orders that the child J live with her. That application gave rise to the hearing before the learned Federal Magistrate which in turn gave rise to the judgment against which the husband has appealed.
At the date of the Federal Magistrate’s judgment, the child B and the child J were residing with the father whilst the child D was residing with the mother.

The Grounds of Appeal

The father’s Notice of Appeal articulated some thirteen grounds. Whilst none of those grounds was actually abandoned, sensibly in the Court’s view, Counsel for the father primarily focussed on two challenges to the learned Federal Magistrate’s exercise of discretion. They related to her Honour’s findings with respect to the child J being at risk of violence if he were to reside with the mother, and the disruption to the child J’s educational and social attachments in the event of his living with the mother.
Counsel for the father also agitated his s 93A application.

Ground 1

Ground 1 of the Notice of Appeal provided:
1. Her Honour placed insufficient weight on the failure of the Family Report writer, Dr [G] to observe the father with the child.
This ground challenges the “weight” which the learned Federal Magistrate gave to the fact that the family consultant did not see the father with the child J. In deciding the case before her, the learned Federal Magistrate was exercising judicial discretion. The importance of “weight” given to the expert opinion evidence of the family consultant was a matter which had the potential to significantly influence her Honour’s ultimate decision, and a number of matters referred to in Part VII of the Act which governed the proceedings. How much or how little “weight” was given to that evidence was a matter uniquely able to be determined by her Honour.
In support of this challenge, a number of submissions were advanced by Counsel for the father in her Summary of Argument. They were:
1. …
(a)Dr [G] reported in her report [page 220] ‘Observations 4^th May 2010. [The child J] with his father’.
(b)Dr [G] acknowledged under cross-examination she had not seen [the child J] with his father although she had reported she had.
(c)Her Honour says [page 31; par 45] ‘the Court can appreciate the concern of the father that he was not interviewed with [the child J]’.
(d)This does not cure the report particularly in that the Report of Dr [G] and her recommendations were relied upon by Her Honour in allowing [the child J] to live in [Town C].
(e)It is further submitted that the mere fact of acknowledging a ‘good relationship’ with his father does not substitute for an in person observation and it is submitted incurably denied the father the opportunity of a report which is as equivalent in substance to that which the mother obtained.
As Counsel for the father readily, and properly conceded, the obstacles to success of this challenge are substantial, particularly where Counsel for the father could not refer the Court to the transcript of the trial, either in an endeavour to demonstrate that the findings of fact upon which her Honour relied were not reasonably open to her, or that other evidence suggested that the weight apparently given to those factors was insufficient.
Whilst the law governing this challenge is not in doubt, it is hopefully worth briefly restating, if only so that the parties better understand how the Court approaches challenges of this kind.
The presumption that a trial Judge’s decision is correct is outlined by Kitto J in Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621 (at 627):
I shall not repeat the references I made in Lovell v Lovell (1950) 81 CLR 513, at pp 532–534 to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.
In House v The King (1936) 55 CLR 499 the High Court 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 the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In CDJ v VAJ (1998) 197 CLR 172, Kirby J said at 230 – 231:
Discretionary and evaluative decisions
186.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.
In Gronow v Gronow (1979) 144 CLR 513, Stephen J said at 519-20:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
As the Court observed during the course of oral submissions in this appeal, the fact that this Court may, had it been trying this case at first instance, have reached conclusions, or made findings of fact differing from those of the learned Federal Magistrate does not mean that the conclusions or findings of fact made by her Honour were erroneous. Not surprisingly in the circumstances outlined, the success with a challenge of this kind is seldom easily obtainable.
As the submissions of Counsel for the father fairly suggest, the learned Federal Magistrate was well aware that the family consultant, Dr G, had not seen the father and the child J together. That was, as the learned Federal Magistrate clearly and correctly recognised, a potential defect in Dr G’s report. Her Honour recorded the submission of Counsel for the father that the report was “flawed” as a consequence.
The learned Federal Magistrate then referred to Dr G’s evidence in some detail. In the absence of the transcript of the trial, or any other acceptable basis for not doing so, the Court proceeds on the footing that her Honour accurately recorded Dr G’s evidence in relation to this issue. Dr G’s evidence, as recorded by the learned Federal Magistrate was that seeing the child J with his father “was not so significant in this matter given that [the child J] was eleven and was an articulate child who had no difficulties communicating with her”.
Her Honour found that, as it emerged from her written and oral evidence, Dr G’s opinion with respect to the child J’s best interests was based on her meetings with the child J. Her Honour also recorded that Dr G did not “in her report describe interactions between [the child J] and his mother” who she undoubtedly had seen together.
The learned Federal Magistrate then said:
45.The Court can appreciate the concern of the father that he was not interviewed with [the child J]. There is no doubt, however, that [the child J] has a good relationship with his father. The mother acknowledges this in her affidavit and says that [the child J] has told her that he enjoys the time he spends with his father. The family consultant described him as a very involved father who had a very strong love for his boys. He has shared activities with [the child J] which are very important in his life, particularly sport. The mother acknowledges this.
With respect to the submissions of Counsel for the father, whilst the fact that Dr G saw the child J with one parent, but not with the other, was perhaps unusual, and a matter which required careful consideration by the learned Federal Magistrate, the Court cannot accept that Dr G’s expert opinion evidence was necessarily thereby “flawed”, or that in the circumstances nothing could “cure” the flaws in Dr G’s report.
As the transcript of the High Court’s refusal of special leave to appeal in Tryon & Anor v Clutterbuck & Ors [2011] HCATrans 133 confirms, asserted defects in the preparation of family reports are matters which can, and probably should, be agitated in cross-examination of the author of such reports. So doing may result in the report being excluded from evidence, or though allowed into evidence being afforded little or no weight. Even without the benefit of the transcript, it is probably that in cross examination of Dr G the father’s complaint was aired. The learned Federal Magistrate’s reasons for judgment are consistent with so concluding.
As a general proposition, the Court is not persuaded that any defect in Dr G’s report resulting from her having not seen the father and the child J together precluded her Honour from giving the report the weight which she did, although the Court can well understand that the father would feel unfairly disadvantaged as a result. Her Honour provided adequate reasons for accepting Dr G’s expert opinion evidence, notwithstanding that she had not seen the child J and his father together. The reasons for doing so given by her Honour have not been shown to lack an adequate foundation in fact or logic.

Nowhere in her report did Dr G suggest that the child J’s relationship with his father was other than close and entirely appropriate. Neither did her Honour find or suggest otherwise. Moreover, as is clear from a balanced reading of the learned Federal Magistrate’s reasons for judgment, her conclusion that the child J’s interests, at least for the following twelve months, would be best served by his residing with his mother was not in any way referrable to any perceived closer or “better” relationship between the child J and his mother than existed between the child J and his father, or any defect in the child J’s relationship with his mother. Had her Honour found the latter, different considerations would have applied.
As is also apparent, the learned Federal Magistrate’s decision was largely influenced by her acceptance of Dr G’s evidence as to the child J’s “nurturing” needs on the one hand, and Dr G’s and her Honour’s conclusions with respect to the father’s parenting style on the other. Thus, the case did not turn on the closeness of the child J’s relationship with either of his parents.
There may be cases where not having seen a child with both parents is a serious defect, or possibly even a fatal flaw in a family report, but the circumstances of this case do not reveal that to have been so. In circumstances where the relationship between the child and his father was as close and acceptable as Dr G and the learned Federal Magistrate concluded it to be, it cannot be successfully suggested that the father was disadvantaged by the absence of “an in person observation” of himself with the child J.
The Court cannot accordingly accept that this challenge is made out.

Ground 2

Ground 2 provided:
2. Her Honour attached inappropriate and excessive weight to the Family Report writer’s opinion that the child is missing and longing for the nurturing mother.
The submissions of Counsel for the father in support of this challenge asserted:
2. …
(a)Dr [G] coined a phrase ‘missing and longing for the nurturing mother’ in her report [page 240: para 71]. Her Honour accepted that [the child J] ‘may’ suffer adverse consequences if he doesn’t live with his mother [page 32: para 46]. This is submitted to be so abstract a finding that it cannot possibly be considered a ‘reason’.
(b)It was open on the evidence for Her Honour to conclude and in fact find that it was the mother’s own conduct in leaving [the child J] on his birthday, moving in the face of his despair and refusing to have the child spend time with her on occasion when she was in Sydney that set up the very situation of [the child J] missing his mother [page 29: para 38][page 30:para 39].
The learned Federal Magistrate was not in doubt that the child J had, pursuant to the March 2007 consent orders, primarily lived with his father from the time he was approximately seven years of age. Nor was she in doubt as to the facts referred to in this submission. Nor was her Honour unaware of the reality that the orders which she made would, at least for the following twelve months, change a status quo which had existed for more than three and a half years.
Her Honour’s reasons in relation to this issue commenced:
41.Dr [G] emphasised that [the child J] was only seven when his mother left the home. Her opinion was that “he is missing and longing for the nurturing mother.” She described [the child J] at age eleven as still presenting as a young boy, slightly built and not physically mature for his age. Her opinion was that he should be given the opportunity to live with his mother while he is still a child, so that he can “address his longing for the nurturing mother.” The opinion of Dr [G] was that if [the child J] did not have an opportunity to live with his mother he might carry the yearning to be with his mother into adulthood which could possibly lead him to make inappropriate choices in relationships.
Later in her reasons, her Honour said:
83.The present arrangements mean that [the child J] is separated from his mother for lengthy periods. The evidence of the family reporter which the court has accepted is that [the child J] yearns for the nurturing mother and that he could suffer adverse consequences in his future development if this yearning is not met while he is still a child.
The learned Federal Magistrate clearly recognised that the father disputed Dr G’s opinion as to the child J’s “need” to be with his mother. She recorded in that regard:
46.As explained by the Full Court in the matter of McCall & Clark [2009] FamCAFC 92 the benefit to a child of a meaningful relationship with a parent needs to be seen in a prospective context. It is likely that [the child J] benefited from a close relationship with his mother before she left the relationship. The evidence of the father and [Ms K] indicate that he missed his mother when she left. Although he has not spent a lot of time with her over the last four years, he has seen her regularly. The family consultant was cross-examined at hearing. The Court considered that she was able to explain the basis for her opinion, which the court accepts, that at this time [the child J] is missing and longing for the nurturing mother. And may suffer adverse consequences if he does not have an opportunity to live with her at this stage of his development. If [the child J] was able to live with his mother in an environment which involved the routine aspects of everyday life, he would potentially be able to benefit from a more meaningful relationship with her than a relationship based on periodic visits during school holidays with occasional visits from his mother in Sydney. It is likely that the fact that he is not able to spend significant time with his mother underpins the “longing” which the family consultant described.
Her Honour also clearly recognised that addressing the child J’s “need” to be with his mother was not a straightforward issue and said:
48.A disadvantage of the mother’s proposal is the possible detriment to the relationship which [the child J] presently has with his father given that he would only be able to spend time with his father during some of the school holiday periods. This needs to be balanced against [the child J]’s opportunity to experience and benefit from a more meaningful relationship with his mother.
As noted at the outset, through no fault of Counsel for the father, the absence of the transcript precludes the father from successfully establishing that any of the findings of fact in the foregoing paragraphs was not reasonably open to the learned Federal Magistrate. However, as Counsel for the father’s submissions make clear, a number of the findings of fact made by her Honour in this context are derived from Dr G’s report. It speaks for itself, although, without the transcript of cross-examination of Dr G, the Court has no ability to reject findings made by the learned Federal Magistrate in reliance upon such cross-examination which are inconsistent with the terms of the report.
To fully evaluate this challenge, it is necessary to have regard to what has been described and relied upon by Counsel for the father as “the mother’s own conduct”. Her Honour was clearly aware of the father’s contention in this regard and recorded:
38.[The child J] has also spent time with his mother when she has visited Sydney from time to time although the mother accepts the evidence of the father that although he has offered that [the child J] spend overnight time with her on the visits to Sydney, she has not taken this up. The mother says that this is because she and [Ms C] stay with [Ms C]’s parents and that it would not be easy to accommodate [the child J] at this home although she acknowledges that it would not be impossible.
The learned Federal Magistrate concluded in that regard:
39.The father asserts that a reason for the mother’s reluctance to have [the child J] overnight when she is Sydney is because she and [Ms C] enjoy going to karaoke at night with [Ms C]’s parents and other friends and that this entertainment is held at venues where children are not allowed. The evidence does suggest that karaoke is very important to the mother and [Ms C]. It appears that the mother has not found it convenient to spend overnight time with [the child J] for a combination of all the reasons set out above. It is evident in this matter that the parents are both of relatively modest means financially and that the mother would find it difficult to pay for accommodation while she was in Sydney. Nevertheless, she does spend time with [the child J] on those occasions when she is in Sydney.
Nothing to which this Court has been referred, or probably could have been referred in the absence of the transcript of the trial, establishes that the learned Federal Magistrate erred in making the findings of fact which she there did. The fact that her Honour could have been more critical of the mother in making her findings does not alter that situation.
It is perhaps relevant to also record what her Honour next said:
40.The father acknowledged that the boys enjoyed spending time with their mother and that she shows affection towards them when she comes down to Sydney. Overall the evidence indicates that [the child J] has continued to spend time with his mother although given the distance his time with her since she moved to [Town C] has been mainly restricted to periods during the school holidays.
The Court is not persuaded, particularly as the weight given to Dr G’s opinion was liable to vary considerably, that it has been demonstrated that her Honour gave excessive weight to this topic. This issue fell squarely within the “trial Judge’s advantage”, as it has come to be known (see eg Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries and Another v Australian National Railways Commission and Another (1993) 177 CLR 472).
There was no evidence before her Honour contrary to that of Dr G in relation to the child J’s “need” for “nurturing” to which this Court has been referred. In reality, the complaint must be that the learned Federal Magistrate gave excessive weight to that need having regard to the mother’s asserted indifference to the child J’s wellbeing, as that was evidenced by her failure to spend overnight time with the child J.
Whilst this Court may have taken a less benign view than did the learned Federal Magistrate [par 39] of the mother’s reasons for not being in a position to spend time with the child J overnight, the Court is ultimately not persuaded that the learned Federal Magistrate’s conclusions with respect to that topic were not reasonably open to her. This issue well illustrates the difficulties which confront “weight” challenges of this kind and the task of demonstrating that the Federal Magistrate “palpably misused” the advantage she enjoyed over this Court of having seen and heard the witnesses give evidence. Her Honour’s reasons for concluding as she did were detailed by her. They have not been shown to lack a factual underpinning. The conclusion reached was not patently unreasonable.
The Court accordingly finds this complaint has not been made out.

Ground 3

Ground 3 provided:
3.Her Honour failed to consider the likely effect on the child of the separation from his father and older sibling [the child B].
The substance of the submission in support of this ground was that the learned Federal Magistrate failed to have any regard to the unchallenged evidence before her, from the father and Ms K, that a close bond existed between the child B and the child J.
The learned Federal Magistrate referred to the relationship between the child B and the child J within the context of s 60CC(3)(b), which concerns the “nature of the relationship of the child with… other persons… including any… other relative of the child”.
Her Honour said in that regard:
72.[The child B] is now working and did not attend the interviews because of work commitments and also, his father said, because he did not wish to become involved in the dispute between his parents. The father said that if [the child J] decided to play rugby league [the child B] would be able to coach him. [The child J] would be separated from one of his brothers on the basis of the proposals of either of the parents. In the circumstances of this matter, that does not appear to favour one proposal over the other.
At the date of the trial judge’s judgment, the child B was 20 years old. The child J was then aged 9 years.
The learned Federal Magistrate found, uncontroversially for present purposes, that:
65.When [the child J] spoke with Dr [G], because the lease on the family home was not renewed by the landlord, [the child J] was living with his father and his brother [the child B] in Ms [K]’s home together with her three children. The accommodation was crowded and [the child J] told Dr [G] that he did not like Ms [K]’s boys. He said that sixteen year old [the child M] was “mean” and “hurt” him and that [the child R] is “annoying” and often refuses to join in games.
In the paragraphs of her report comprising her “evaluation” of the child J, Dr G did not record any expression by the child J of disruption to his continued residence in the same home as his brother, the child B, as a matter of significance. Under the heading “The child and his relationships”, she did not record continuing to reside with the child B as being a matter of great significance to him.
Dr G recorded:
66.Using projective techniques [the child J] nominated his mother as his favourite person and the one to whom he feels closest, followed by his father, [Ms C], [the child B], [the child D] and then [Ms K].
67.When I asked [the child J] who he would speak to if he had a problem he nominated his father’s partner [Ms K]. He said that [Ms K] is good to talk to because she has had a break up and knows what to say to you.
In the circumstances revealed by the learned Federal Magistrate’s reasons for judgment, the Court cannot accept that her Honour failed to consider the likely effect on the child J of separation from his brother, the child B. This Court has not been referred to any evidence to suggest that such a separation would be likely to have had an adverse effect upon the child J.
The terms of this challenge are of significance. Her Honour did consider the likely effect on the child J of separation and, for the reasons she gave, effectively considered it a neutral factor in this case.
This complaint is accordingly not made out.

Ground 4

Ground 4 provided:
4.Her Honour failed to consider or properly consider the likely impact on the child following a 12 month ‘trial’.
The learned Federal Magistrate was asserted to have failed to properly consider a number of matters within this context. One of those related to sport.
It was submitted in that regard:
Sport
b)     Prior to leaving Sydney, [the child J] was a very active participant in sport with the full support of his father and his older brother [the child B] [page 32:para 47][page 194:para 21-22][page 194:para 21-22][page 236:para56].
c)     The mother did not convince the court she was committed to continuing [the child J]’s participation in sports [page 47:para 103].
d)     The Court did not properly consider what effect an absence of 12 months from his life in Sydney and his father and brother’s commitment will have on the child’s sporting involvement [page 48:para107].
There is no doubt, and the learned Federal Magistrate so found, that the child J “enjoyed sport and was very keen about soccer and had also shown an interest in playing rugby and AFL”. Nor was there any doubt that the father was “very committed” to the child J’s participation in sport.
Her Honour said, in the paragraph relied upon by Counsel for the father:
107.While Dr [G] described the father’s approach as an authoritarian parenting style and the mother’s as “collaborative”, she did not dismiss concerns that the mother’s style could possibly be seen as “more permissive.” Certainly, the mother lives a very different lifestyle to that of the father and to date it is one which has not had to take into account the needs of a child of [the child J]’s age. The court formed the view too that some of the mother’s plans at this stage were still somewhat vague. This related to [the child J]’s school and sports and it appeared that the mother did not yet have a commitment to supporting [the child J] in playing a team sport such as soccer. She seemed more positive about encouraging swimming although the father’s evidence was that [the child J] now had a preference for Little Athletics. There was also a possibility that the mother would obtain other employment and possibly move as well. It is understandable that it is difficult for the mother to make plans until she feels some certainty that [the child J] will be able to live with her. She may not have expected that [the child D] would have started living with her earlier in the year and to the extent that his plans are not firm, the mother would have difficulties in planning.
There was, however, other evidence in relation to this topic, to which the learned Federal Magistrate referred in the following terms:
108.Dr [G] said that a purpose of the trial she recommended was to eliminate such concerns as referred to above and that prior to an update report, records of [the child J]’s sporting activities, school attendance records and school reports should be available to her. She considered that a strength of the father’s proposal would be keeping [the child J] involved in his sporting activities because as [the child J] was not particularly academically inclined he was likely to achieve his self esteem through achievement at sport. She said that she wanted to keep a little pressure on the mother to feel accountable so that she would keep up these activities for [the child J] during any time he was with her.
Her Honour also recorded:
109.The court finds that the mother loves [the child J] and is committed to him but at the same time some aspects of the mother’s proposals for meeting his needs remain to be tested. This is a consideration which favours the proposal of the family reporter that [the child J] have the benefit of a trial period living with his mother.
Whilst it is clear that the “aspects of the mother’s proposals for meeting [the child J’s] needs remain to be tested”, included things other than sport, read in context it is evident that sport was one of those “aspects”.
It cannot be suggested that her Honour failed to consider the impact upon the child J’s participation in sport of his residing with his mother. Nor is it in doubt that the learned Federal Magistrate had reservations about the mother’s motivation and/or ability to facilitate the child J’s continuing involvement with sport.
Whether or not the learned Federal Magistrate’s consideration of the impact on the child J of reduced involvement in sport was “proper” or not is determined by reference to the other factors to which her Honour had regard in reaching her ultimate conclusion. As her Honour’s reasons reveal, sport was but one aspect, albeit an important one, of the competing considerations which she balanced in the course of the reasoning process which led to her ultimate conclusion.
Nothing to which this Court has been referred establishes that her Honour was impermissibly dismissive of the importance of sport to the child J, or of the implications for his love of sport if he were to reside with his mother for the following twelve months.
As is not in doubt, the learned Federal Magistrate was required to determine a finely balanced case. The material before this Court suggests that her Honour could have “gone either way” in deciding its outcome. It could not be successfully suggested that the child J’s sporting involvement was necessarily entitled to greater weight than any of the other significant factors to which her Honour had regard.

Whilst other courts determining this case at first instance may have given more weight to sport than did her Honour, nothing to which this Court has been referred establishes that her Honour failed to properly consider the impact on the child J’s sporting activities of a move to live with his mother at Town C for the following twelve months.
The child J’s schooling was submitted to be another matter which the learned Federal Magistrate failed to “properly” consider within the context of s 60CC (3)(d).
Rather than paraphrase them, for they are cogently articulated, it is convenient to reproduce the submissions of Counsel for the father in support of this complaint. They asserted:
School
e)     [The child J] was finishing Year 6 in 2010 and was enrolled to attend at [S] High School, being the school that his peers from the primary school were mostly attending [page 46:para 101].
f)   The Queensland school system is different to that of the NSW system [page 46:para 101] and it was thought that [the child J] would repeat Year 6 in [Town C] which would mean he would miss out on Year 7 with his peers in Sydney on his return.
g)     There was no expert evidence at all before the Court in relation to the Queensland school system. It was the mother’s case for the child to live in [Town C]. It was the ICL’s case for the child to live in [Town C] for 12 months. Neither party tendered any evidence that could satisfy the Court that [the child J]’s schooling would not suffer on a return to Sydney.
h)     There was no expert evidence at all before the Court what would occur to [the child J]’s schooling or his well-being if he was removed from his schooling and his peers in NSW [page 46:para101-102]. This was not considered at all by the Court.
i)   Dr [G] gave no cogent or specific evidence as to what affect it will have on the child if returned to Sydney at the end of 12 months having missed a full 12 months of school with his peers and other than an unacceptable generalisation [page 47: para 102].
With respect to Counsel for the father, the paragraphs to which reference is made in support of this complaint demonstrate that the learned Federal Magistrate clearly and carefully considered the likely effect on the child J’s schooling of a move to the home of his mother at Town C, albeit that was constrained by the state of the evidence before her.
Her Honour’s consideration of this issue commenced by reference to the mother’s proposals with respect to which her Honour recorded:
100.The mother gave evidence that some months prior to the hearing she had spoken to staff at the school where she proposed to enrol [the child J] should he be able to live with her. She had however not made an appointment to see the principal or made inquiries about the enrolment situation.
The learned Federal Magistrate was clearly aware of the father’s contention as to the impact upon the child J’s schooling of a move to Town C. Her Honour recorded in that regard:
101.The father contends that [the child J]’s schooling will be more stable if [the child J] remains with him. [The child J] will complete year six this year. If he stays in Sydney he would progress to the first year of high school, year seven, with his school peers at the beginning of 2011. However, the Queensland education system differs from New South Wales in that a further year of primary school follows year six. The father said that [the child J]’s education would be disrupted if after a year in Queensland he returned to New South Wales and that if he returned after a year he may well need to do year seven again, albeit as the first year of high school. None of the parties placed any evidence before the court as to the policy of the New South Wales Education Department about class placement following an interstate move from Queensland.
It was common ground before this Court that there was no evidence before the learned Federal Magistrate as to the “policy” of the New South Wales Education Department with respect to class placement following an interstate move from Queensland. The absence of such evidence is regrettable, although the Court accepts that this issue probably assumed greater significance during the course of the trial than the parties had reason to think it might have prior to the trial.
Her Honour clearly considered this issue carefully, and said:
102.The Independent Children’s Lawyer made inquiries on the day of the hearing. It may be the case that the principal of a school would have a discretion as to whether a child would progress according to age or be required to [sic] year seven in New South Wales. It is not certain what the outcome for [the child J] would be. The opinion of the family consultant who had read [the child J]’s end of year five school report was that [the child J] was just an average student and that it would not necessarily be disadvantageous if as a consequence of moving between states he repeated a year of school. She thought it might even give him a competitive edge which would enhance his self esteem.
In the absence of the transcript, this Court is unable to accept that the learned Federal Magistrate’s acceptance of the expert opinion evidence of Dr G, to which she thus referred, was not reasonably open to her. In the absence of further evidence, presumably from the education authorities, and there was none, it is difficult to see how the learned Federal Magistrate could have given this topic further, or more extensive consideration.
Her Honour recorded:
69.Dr [G] said that [the child J] needs to experience time with his mother other than during holiday periods. She rejected the notion that the trial of one year with his mother could ‘fail’ for [the child J] and said that the trial would succeed if [the child J] was with his mother for a year and came back to his father or if [the child J] stayed with his mother at the conclusion of the year.
To the extent that Dr G gave no “cogent or specific evidence as to what effect it will have on the child if returned to Sydney at the end of twelve months having missed a full twelve months of school with his peers”, that does not advance the present complaint. It is apparent that, for the reasons she articulated, Dr G did not consider that a return to Sydney after twelve months should necessarily be to the child J’s detriment, or that any such detriment was not outweighed by the benefits for the child J of living with his mother for that time.
There being no basis for rejecting Dr G’s expert opinion evidence in the terms recorded by her Honour (at par 102), this complaint cannot succeed. It was common ground that there was no evidence before the learned Federal Magistrate in relation to the child J’s schooling, his ability to make friends or any other aspect of his socialisation to which the learned Federal Magistrate did not refer.

Ground 5

Ground 5 provided:
5.Her Honour erred in law in failing to properly consider and apply ss60CA and s60CC of the Family Law Act 1975, as amended (Cth).
The written submissions of counsel for the father cannot advance this challenge. To read the first submission is to understand why that is so. The second is the subject of an earlier complaint which the Court has addressed.
As Counsel for the father made clear in her oral submissions, the real thrust of this challenge is that the learned Federal Magistrate erroneously failed to make an affirmative finding of the need to protect the child J from abuse or violence in the household of his mother pursuant to s 60CC(2)(b).
In support of this challenge Counsel for the father relied upon the three admitted incidents of violence perpetrated by Ms C. The evidence in relation to those three incidents emerged during cross-examination of Ms C. In the absence of the transcript, or any other evidence impacting upon the probabilities, the Court cannot go behind the findings of fact made by the learned Federal Magistrate. The ground does not appear to be predicated upon a challenge to those findings in any event.
The crux of the submissions in support of this complaint was that:
d)Although the Court found correctly there was no evidence that the child had been exposed to violence or had any violence inflicted upon him, [page 35:para59] the Court did not properly consider that [the child J] until only this year had not spent any time of significance other than some school holidays with the mother and her partner. It is therefore submitted the order for the child to live with the mother and the mother’s partner continues to place the child at an unacceptable risk of being exposed to and perceiving violence.
To better evaluate this complaint, it is necessary to have regard to the learned Federal Magistrate’s reasons for judgment.
Her Honour’s conclusion, which gives rise to this challenge, was:
60.This is not a matter where the Court would make any findings that there is a need to protect [the child J] from physical or psychological harm or from being exposed to abuse, neglect or family violence.
That conclusion was reached having first recorded that the father complained of the conduct of the mother’s partner, Ms C.
The father’s complaint is in reliance upon Ms C’s evidence, and the conclusions her Honour reached in reliance upon it. It is thus necessary to refer only to the evidence relating to “violent incidents” involving Ms C. Her Honour found in that regard:
54.However, it was submitted on behalf of the father that [Ms C] had been involved in violent incidents and that there was a risk that if [the child J] lived with the mother and [Ms C] he could be exposed to violence. The father’s counsel in submissions went so far as to assert that [Ms C] lives “in a culture of violence.” [Ms C] was cross-examined about a recent incident where as she returned to the bike rack where she had left her electric bike, she saw a person crouching over her bike trying to pick the lock of the bike with a knife. She said that she “went up to him and pushed him that hard on the ground that he looked at me and legged it.” She said that she “smashed him” and in describing her actions said she grabbed the back of his neck and “pushed him down.” Her evidence was that the person was about the same size as her but that she did not see his face until he looked up at her as she pushed him to the ground. She then saw that it was a boy who was about seventeen. [Ms C] agreed that her actions were with “great force” and involved “a good whack on the side of the neck.”
As noted earlier, those findings were based upon admissions made by Ms C during the course of her cross-examination. The incident to which her Honour referred occurred after the relationship between the mother and Ms C had commenced. There is no suggestion that the child J was present during that incident.
So far as the other two occasions were concerned, her Honour found:
55.She said that there were other occasions when she had used physical force against another person. She described an incident at a club when she says was grabbed and pushed by a man who was drunk and had been abusive to women at the club. [Ms C] says that she punched the man on the nose. She said that she did not think that her response was appropriate but that she reacted because he had his hands on her. She acknowledged that several years ago when she was living with her parents and before she commenced her relationship with the mother, the girlfriend of a person who had been her partner came to her home and hit her with a belt. [Ms C] said that she hit the woman to take the belt from her and restrained her on the ground.
Those incidents preceded the relationship between the mother and Ms C.
Having referred to the evidence of Ms C in relation to violence in previous paragraphs of her reasons, her Honour recorded:
56.[Ms C] asserts that her actions have been in self defence and that she herself does not start arguments with other people. She says that when [the child J] and [the child D] have both been in the home she shares with the mother she does not allow fighting between them. She agreed that she has seen [the child J] and [the child D] have altercations. She says that she gets “very loud because they don’t listen” but never gets physical or aggressive although she acknowledged that “if [the child D] says something rude, or he’s being one of those disgusting people that he can be sometimes you give him a whack on the arm and say ‘cut it out.’” [Ms C] described that as “a muck around thing”. She says that she and [the child D] muck around together and wrestle.
The learned Federal Magistrate then referred (at par 57) in some detail to the evidence of Dr G, which did not, and with respect to Dr G, could not, provide a basis for making the finding urged upon her Honour, and this Court, by Counsel for the father.
Ultimately, her Honour recorded:
59.[Ms C] does not conform to a conventional image of a young woman. However, what is important is her relationship with [the child J] and how he perceives her. There is no evidence that [the child J] has been exposed to violence in the presence of [Ms C] or that there is an unacceptable risk that he would be subjected to physical harm. The evidence is that she has a good relationship with [the child J] at this time.
Significantly, those findings of fact, particularly with respect to the child J, have not been challenged in this appeal.
Nothing to which this Court has been referred demonstrates that the conclusion reached by the learned Federal Magistrate with respect to the absence of risk of violence and abuse was not reasonably open to her, or that the findings of fact upon which that conclusion was based were not reasonably open to her.
As Counsel for the mother reminded the Court, the learned Federal Magistrate, largely by reference to the expert opinion evidence of Dr G, referred on a number of occasions to the good relationship between the child J and Ms C, it being asserted that such circumstantial evidence provided further support for the finding which her Honour made. The learned Federal Magistrate was clearly, and permissibly, influenced by that evidence in reaching her conclusion with respect to the risk of violence or abuse represented by Ms C.
This complaint has not been made out. Nor has Ground 6, which was agitated in identical terms to this ground.

Ground 7

Ground 7 provided:
7.The Learned Federal Magistrate correctly summarised the guidelines set out by the Full Court of the Family Court in A v a Relocation Approach [2000] FamCA751 but failed to apply or properly apply those guidelines to the case before her.
On a number of occasions in recent times this Court has suggested that, in the light of changes to the provisions of Part VII of the Act in 2006, and the High Court’s judgment in MRR v GR [2010] HCA 4, reliance upon A v A: Relocation Approach (2000) FLC 93-035 is unhelpful and possibly erroneous (see eg Hepburn & Noble (2010) FLC 93-438; McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; and Starr & Duggan [2009] FamCAFC 115).
It was, sensibly, effectively conceded by Counsel for the father that no challenge to the learned Federal Magistrate’s approach to the provisions of Part VII could succeed. No erroneous departure from the legislative “pathway” of Part VII of the Act vitiated her Honour’s decision. The father’s challenges to the learned Federal Magistrate’s exercise of discretion entailed an attempt to demonstrate that her conclusion with respect to the child J’s “best interests” was erroneous. How that came about was asserted by a number of grounds of appeal which the Court has considered, and by the others which the Court will consider.
Ground 7, however, cannot succeed.

Ground 8

Ground 8 provided:
8.Her Honour erred in law in failing to properly weigh the strengths and advantages of the father’s proposal against those of the mother’s.
Although a number of particular matters were advanced in support of this challenge, it is apparent that the broad thrust of the challenge was that her Honour erroneously preferred a proposal which suffered from uncertainty in a number of material respects, to a proposal which was tried, tested and certain.
The starting point for this challenge is the reality that, as a result of consent orders made a little over three and a half years previously, the child J had lived with his father. For the bulk of that period the mother, by choice, as she was entitled to, had lived at Town C.
As the submissions on behalf of the father assert, the learned Federal Magistrate was, properly, uncritical of the relationship between the child J and his father and his relationship between the child J and his older brother, the child B. Her Honour did not make adverse findings as to the security and stability of the father’s arrangements for the child J’s care. The learned Federal Magistrate made positive findings as to the father’s commitment to the child J’s sport, the child J’s love of sport and its importance to the child J’s relationship with his father.
The learned Federal Magistrate was submitted to have correctly found “a great deal of uncertainty and vagueness about the mother’s proposal”. It was submitted that the mother had a lifestyle “that to date has not had to take into account the needs of a child of [the child J]’s age”.
It was further submitted that the certainty of the father’s proposals as opposed to the uncertainty of the mother’s proposals also encompassed the child J’s future schooling. In all the circumstances, it was submitted by Counsel for the father that her Honour could not reasonably have concluded that the child J’s best interests would be served by his moving to live with his mother at Town C.
The foregoing submissions of Counsel for the father accurately reflect the substance of the findings of the learned Federal Magistrate with respect to the certainty of the father’s household and the uncertainty of the mother’s household.
There are, however, a number of other paragraphs to which Counsel for the father did not refer which are relevant to a consideration of this challenge. Her Honour also recorded:
106.Dr [G] in her evidence expressed the opinion that the mother had shown a strong commitment to the boys. The evidence supports this. She has borne the cost of travel without assistance from the father. She has offered a home to [the child D]. Dr [G] in her report described the mother and her partner as “extremely child focused.” However, it is important to see how the mother manages over a period of time. Certainly, it is early days and the mother has not had the children consistently living with her for several years.
Paragraphs 107, 108 & 109 of her Honour’s reasons for judgment, which have earlier been set out, are also relevant in this context. Her Honour also, and relevantly for present purposes, later recorded:
130.The particular advantage of the mother’s proposal is that it addresses [the child J]’s need at this time for what the family consultant described as “the nurturing mother.” The father says that he would be happy for [the child J] to go and live with his mother when he finishes school. The opinion of Dr [G], which again was accepted by the court, was that it is important for [the child J] to have the opportunity to live with his mother while he is still a child and that if this emotional need is not met there could be adverse consequences for the child.
Clearly aware of the “untested” capacity of the mother in some significant respects, her Honour also recorded:
132.The mother has qualities which would enhance her parental capacity. At the same time, aspects of her parental capacity remain untested. This, together with the importance of [the child J] not making a decision based “on a deficit or some longing” are disadvantages of the mother’s proposal that final orders should be made allowing [the child J] to live with her in Queensland.

Whilst, as with other challenges agitated on behalf of the father, other courts may have reached different conclusions on the evidence which was before the learned Federal Magistrate, nothing to which this Court has been referred establishes that her Honour’s conclusion was not reasonably open to her.
As her Honour’s careful and thorough reasons for judgment reveal, the case was finely balanced. There is no doubt that the preponderance of certainty was clearly with the father and that considerable uncertainty, in the various ways identified by the learned Federal Magistrate, permeated the mother’s proposal. It is clear that her Honour ultimately concluded that the child J’s “need” for “nurturing” by his mother, if only for a period of twelve months, tipped the balance in favour of the mother’s proposal.
Significantly, the learned Federal Magistrate’s exercise of discretion has not been suggested to have miscarried by reliance upon extraneous or irrelevant facts or circumstances or by way of a failure to have regard to relevant facts and circumstances. No material finding of fact made by the learned Federal Magistrate has been, or probably could have been, shown in the circumstances of this appeal to have been other than reasonably open to her.
The judgments of the High Court to which reference was made earlier in these reasons have particular relevance to this challenge. Her Honour clearly and carefully weighed the “strengths and advantages of the father’s proposal against those of the mother’s”. That is fundamental to the exercise of judicial discretion. Neither parent’s case was clearly entitled to success, or clearly doomed to failure. It cannot be successfully asserted that her Honour’s decision was “plainly wrong”, notwithstanding that no appealable error has been demonstrated. The fact that there may well have been a different outcome does not demonstrate that the outcome reached by her Honour was erroneous.
This complaint is not made out.

Ground 9

Ground 9 provided:
9.Her Honour erred in law in making findings about the differences in the education system between Queensland and New South Wales and how the differences will affect the child in the absence of any or any sufficient expert evidence.
This challenge has largely been dealt with earlier. The short answer to the complaint in this formulation, however, is that the learned Federal Magistrate made no findings of the kind referred to, nor could she have, given the absence of evidence by reference to which she could have done so. Her Honour referred to the limitations of the evidence before her in relation to this issue.
This complaint is not made out.

Ground 10

Ground 10 provided:
10.Her Honour placed inappropriate weight on the opinion of the Family Report writer in relation to the child’s schooling which opinion amounted to speculation.
This complaint has largely been dealt with previously. To the extent that it requires addressing in its current formulation, it is sufficient to record that nothing to which this Court has been referred establishes either that the expert opinion evidence of Dr G was flawed, or that her Honour impermissibly relied upon, or gave excessive weight to that evidence.
There was, as her reasons for judgment confirm, and is not in doubt, no evidence before the learned Federal Magistrate which established that the orders made by her would have any particular positive or negative impact upon the child J’s schooling.
To the extent that, as the father urged, the change may have had an adverse impact upon the child J’s schooling, her Honour was entitled to have regard to the evidence of Dr G which gives rise to this challenge. Dr G did not “speculate” about this issue. She had no information upon which she could rely had she done so. Dr G’s opinion has not been shown to have exceeded her expertise, or to be contradicted by any evidence before the Court.
This complaint is not made out.

Ground 11

Ground 11 provides:
11.Her Honour’s error was compounded by placing insufficient and appropriate [sic] weight to her finding that an outcome for [the child J] would be uncertain.
This challenge has effectively been dealt with earlier in these Reasons. In short, nothing to which this Court has been referred establishes that the learned Federal Magistrate erred, or compounded any asserted error by “placing insufficient and appropriate [sic] weight to her finding that an outcome for [the child J] would be uncertain”.
Her Honour was plainly obliged to, and did, take into consideration as significant factors, the uncertainty which clearly attended the mother’s proposal that the child J reside with her. It is clear, having had regard to the evidence with respect to the certainty of the father’s proposals, and the uncertainty of the mother’s proposals and other relevant s 60CC factors, about which no complaint is made, that the learned Federal Magistrate concluded that, at least for the following twelve months, the child J’s “need” for “nurturing” by his mother “tipped the balance” in favour of the mother’s proposals.
This ground is not made out.
Ground 12 appears to have been abandoned. Grounds 13 and 14 were not sought to be supported by any submissions. These grounds are not made out.
No ground of appeal having been made out, it is necessary to consider the father’s further evidence application.

The further evidence application

In his affidavit of 27 April 2011 the father alleged that the child J was reluctant to return to his mother in Town C on 24 April 2011, after being with the father for the previous nine days.
The father alleged that the child J refused to board the Jetstar flight on which he was booked on 24 April 2011 and only returned to Town C the following day. The father alleged that the child J was still upset when he did return to Town C, and that he had expressed a wish to stay with his father and not return to Town C.
The other aspect of the father’s further evidence, as his Counsel explained, related to telephone contact, or its absence from January 2011 to 15 April 2011. It was submitted that the father’s evidence, if accepted, would demonstrate that the decision of the learned Federal Magistrate was erroneous.
The judgment of the majority in CDJ v VAJ (1998) 197 CLR 172 clarified how s 93A of the Act operates. In their joint judgment, McHugh, Gummow and Callinan JJ said (at par 109):
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.
As is apparent from the terms of the father’s affidavit, the further evidence sought to be adduced by him in the appeal falls within two categories. Those categories are the child J’s wishes, and the mother’s attitude to facilitating a meaningful relationship between the child J and his father by telephone.
So far as the child J’s wishes are concerned, accepting that the child J expressed a wish to reside with his father would not demonstrate that the learned Federal Magistrate’s decision was erroneous.
As the reasons for judgment in this Court in relation to the grounds of appeal agitated on behalf of the husband discussed, the learned Federal Magistrate’s decision was clearly predicated on the child J having a strong attachment to both his parents. To the extent that his wishes may have been favourable to the mother’s case, for reasons which the learned Federal Magistrate detailed, and which have been referred to earlier, only limited weight was given to those wishes.
A balanced reading of the learned Federal Magistrate’s reasons leaves little room for doubt that her decision was based on a balancing of the two major factors to which reference has earlier been made. Having regard to her reasons for judgment, it cannot be successfully asserted that the learned Federal Magistrate’s decision was materially impacted by the child J’s wishes. Thus, even if the child J had a wish to live with his father, that evidence would not render erroneous her Honour’s decision.
The submission of Counsel for the husband was that his evidence, if accepted, established that the mother had not facilitated telephone contact between the child J and his father over a period of three months.
There is no doubt that the orders of the Federal Magistrate obliged the mother to regularly facilitate telephone calls from the child J to his father whilst the child J was in Town C.
Counsel for the mother submitted, correctly in this Court’s view, that the evidence, if accepted, would not establish that the mother had failed to facilitate telephone calls by the child J to the father, and that the allegations made by the father left open numerous possible innocent explanations or versions of events.
Whilst the affidavit appears to be intended to assert that the mother had failed to facilitate the child J making telephone contact with his father for some months, to so conclude would, in the Court’s view, require impermissibly reading into the affidavit allegations which do not appear there. Without a good deal more than has been alleged by the father in relation to this topic, the Court could not be satisfied that accepting the father’s further evidence in relation to this topic would render erroneous the Federal Magistrate’s decision.

Conclusion

No ground of appeal having been made out, and an entitlement to adduce further evidence pursuant to s 93A having not been established, the father’s appeal must be dismissed.

Costs

Counsel for the mother and the ICL sought orders for costs against the father, as they were obliged to by the terms of the grants of legal aid made to each of their clients. Beyond formally seeking costs, quite properly in the Court’s view, no submissions were made in support of the costs applications.
Although the father’s appeal has been unsuccessful, having regard to the uncertainty which attended the mother’s proposals, and the certainty which attended the father’s proposals, and the length of the status quo which the orders of the Federal Magistrate altered, although unsuccessful, the father was justified in challenging her Honour’s decision. The father’s lack of success was in no way attributable to his Counsel, who raised everything that could reasonably have been raised on his behalf, and did so in an efficient and timely manner.
As noted earlier in these Reasons, the findings of fact made by the learned Federal Magistrate permitted a number of other conclusions which differed from those reached by her Honour.
In addition, the father was in a potentially invidious position in terms of the further and final determination of the proceedings later this year if he did not challenge the interim orders made by the learned Federal Magistrate. That is not said critically of her Honour, but is simply a recognition of the reality that, had he not appealed, the submission could have been made at the final hearing that the husband had not done so.
Essentially for the reasons which have been stated, the Court is not of the opinion that any order for costs should be made.

I certify that the preceding one hundred and sixty two (162) paragraphs are a true copy of the reasons for judgment of Justice Coleman delivered on 27 May 2011.

Associate:

Date: 27.05.11