Morden & Coad - [2019] FamCAFC 233

FAMILY COURT OF AUSTRALIA

MORDEN & COAD

[2019] FamCAFC 233

FAMILY LAW – APPEAL – RELOCATION – Where the trial judge made orders permitting the mother to relocate with the parties’ two children – Where that relocation resulted in the mother living 120 kilometres away from the father – Where the father had an older child from a previous relationship who was involved in the children’s lives – Where the father was involved in the children’s extra-curricular and schooling activities – Where the mother’s main reason for seeking relocation was on the grounds that she could more easily obtain better housing for herself and the children – Where the father argued the children were well settled in their school and social networks – Where the trial judge found that, whilst the children’s relationship with the father may suffer, that was not sufficient to categorise the move as not in the children’s best interests – Where the father challenged the trial judge’s statement that there were “effectively two proposals” – Where the father asserted the trial judge applied an erroneously low benchmark when considering whether to permit the mother to relocate – Where the father asserted errors of weight – Where the father’s arguments rely upon a highly selective and simplistic view of the reasoning of the trial judge which cannot be supported when the reasons are considered holistically – Where none of these grounds have any merit – Where the appeal is dismissed – Where the father is to pay the mother’s costs in a fixed sum.

Family Law Act 1975 (Cth) ss 60CC, 65DAA, 117

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
Sayer v Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209
U v U (2002) 211 CLR 238; [2002] HCA 36
Wendland & Wendland (2017) FLC 93-808; [2017] FamCAFC 244
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

APPELLANT:

Mr Morden

RESPONDENT:

Ms Coad

FILE NUMBER:

MLC

9796

2018

APPEAL NUMBER:

SOA

2019

DATE DELIVERED:

28 November 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland, Kent & Austin JJ

HEARING DATE:

28 November 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

20 September 2019

LOWER COURT MNC:

[2019] FCCA 2682

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Dr Ingleby

SOLICITOR FOR THE APPELLANT:

Howard Bear – Legal Consulting Services

COUNSEL FOR THE RESPONDENT:

Mr O’Shannessy SC

SOLICITOR FOR THE RESPONDENT:

Geelong Family Lawyers Pty Ltd

Orders Made 28 November 2019

The appeal be dismissed.
The appellant pay the respondent’s costs of the appeal fixed in the sum of $24,000.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 58 of 2019
File Number: MLC 9796 of 2018

Mr Morden

Appellant

And

Ms Coad

Respondent

EX TEMPORE REASONS FOR JUDGMENT

KENT J

On 20 September 2019, a trial judge in the Federal Circuit Court of Australia made final parenting orders pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) in respect of the children, B, born in 2011 and aged eight years, and C born in 2013 aged six years.
The father’s appeal from those orders primarily focuses upon the trial judge’s determination to permit the children to be relocated with their mother to Suburb D, a suburb of Town E, approximately 120 kilometres from their residence in Suburb F, a suburb of Melbourne, as and from the conclusion of the 2019 school year, as the mother sought.

Background

The father was born in 1967 and is aged 52 years. The mother was born in 1977 and is 42 years old. The parties met in January 2010, purchased a house at H Street, Suburb F (“the former matrimonial home”) in October 2010 and began residing there together in February 2011. The parties’ first child, B, was born in 2011 and their second child, C, was born in 2013. The father has an older daughter from a previous relationship, J, born in 2008 (11 years old). The parties separated under one roof on 31 March 2018 and physically separated on 18 March 2019.
When the children were born, the mother commenced maternity leave and did not return to her work as a health professional; she was, and is, the children’s primary caregiver. The father has remained in full time employment as a legal professional throughout the parties’ relationship. The father’s older child, J, lived with the parties for six nights a fortnight and half school holidays.
Interim parenting orders made on 15 March 2019 provided for the children to live with the mother and spend time and communicate with the father for five (5) nights per fortnight during school terms, and for half school holidays. There were orders for electronic communication between the children and each parent. These were the prevailing care arrangements as at the trial of the proceedings in August 2019.

The trial and the central conclusions of the trial judge

The mother’s case at trial was, relevantly, that:
a)The parties should have equal shared parental responsibility;
b)The children should live with her and spend alternate weekends and half school holidays with the father; and
c)The mother and the children should be permitted to relocate to Suburb D (about 120 kilometres away from the children’s residence in Suburb F).
The mother’s main reason for seeking this relocation was on the grounds that she could more easily obtain housing for herself and the children in Suburb D and, secondly, that one of her sisters lives nearby to Suburb D (see reasons at [26]-[27]). The mother also asserted that she had a promise of casual work as a skilled worker (after having undertaken a skills course in the course of the parties’ relationship) but the trial judge found there to be little evidence to support a finding that such employment would provide much economic assistance to the mother (at [28]).
The father opposed the relocation, stating the children are well settled in their current school with a wide circle of friends and are engaged in extra-curricular activities. Further, the father contended that the children are close to J, his older daughter and that he would not be able to move to Suburb D if the mother was permitted to (accepted by the trial judge at [42]). The father argued that the children’s relationship with him and J would suffer from the mother’s move. The trial judge noted that those relationships would suffer but not so much as to warrant a finding that the move is not in the children’s best interests (see [86], [117] and [121]).
The trial judge recorded findings that the mother has been, and remains, the children’s primary carer (at [45] and [113]); that the children have thrived in that arrangement (at [113]); and that an order for equal time is not in the children’s best interests (at [115]). There is no challenge on appeal to these findings.
The trial judge noted that the parties appeared to have a cooperative co-parenting relationship but ultimately found that their relationship was far from cooperative, with the father, at times, acting in a way designed to force the mother to comply (see [33], [34] and [47]). The trial judge also identified that the family report writer was not supportive of the mother relocating but contrasted the family report writer having come to a different conclusion regarding the parties’ co-parenting relationship to that of the trial judge (see [49] and [57]).
The trial judge’s ultimate conclusions are found in [120]-[122]:
120.There are advantages to the Mother’s proposal. The children would continue to thrive with the Mother as their primary carer. The Mother would be living closer to family support. The housing options available are superior, in that the Mother and children may well have the option of living in a house with a garden. These children are young and active, and an area for outdoor play will likely be of benefit to them.
121.Whilst the children’s time with their Father and sister will be reduced, the relationships will be maintained. The move is not so far that alternate weekends cannot easily be managed. The Mother suggests that if the Father is able to travel to [Suburb D] on a Friday afternoon, he can attend the Friday assembly and take the children home with him, to enable him to participate in the children’s school life. She said she would then collect the children from him on the Sunday evening.
122.Balancing all the considerations, taking into account the advantages and disadvantages to the children of the parties’ competing proposals, and weighing all those matters including the Mother’s ‘right’ of freedom of movement, I am not satisfied that it is both in the children’s best interests or reasonably practicable that they remain living in the [Suburb F] area, with either equal or substantial and significant time with their Father. Conversely, I am satisfied the children’s best interests are met by continuing to live in the primary care of their Mother, permitting her to move with them to [Suburb D], and spending alternate weekends and half of school holidays with their Father as well as time on special occasions.

Grounds of appeal

The father’s Amended Notice of Appeal contains the following five grounds of appeal:
1.The learned trial judge erred in law finding (at para 116) that there were “effectively two proposals.”
2.The learned trial judge erred in law by giving undue weight to finding (at para 79) that a “meaningful or beneficial relationship” with the father would persisit [sic] after the mother’s proposed relocation.
3.The learned trial judge erred (at para 120) by giving undue weight and/or making errors of fact in relation to the alleged advantages of the mother’s proposal.
4.The learned trial judge erred (at para 57) as to the basis upon which she dismissed the recommendation of the report writer, [Mr K].
5.Amended Ground 5: The learned trial judge erred in law by finding (at para 79) that a “meaningful and beneficial relationship” (rather than the best interests of the children) was the relevant benchmark.
(As per the original)
Before dealing with each of these grounds, given their nature as will be discussed, it bears emphasis that a discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition. In U v U (2002) 211 CLR 238 Gummow and Callinan JJ (with whom Gleeson CJ, McHugh and Hayne JJ agreed) said (at [90]):
… The appellant’s submission is that the trial judge gave too much weight to the child’s short term welfare, and commensurately too little to her long term welfare, and that the Full Court erred in failing so to hold. That is, as the respondent submits, no more than a complaint about the weight which the trial judge attached to admittedly relevant considerations. Just how far ahead it is possible for a trial judge to look, and how reliable long term predictions about domestic, marital and social arrangements in modern times can be, are matters upon which minds will inevitably differ. The exercise, of looking to, and making orders for the future, is peculiarly a discretionary one…
(Emphasis added)
In CDJ v VAJ (1998) 197 CLR 172 the plurality of the High Court (McHugh, Gummow and Callinan JJ) observed of applications for parenting orders and of their determination as follows (at p.218-219):
151.… Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
152.The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions…

Ground 1 – The finding at [116] that there were “effectively two proposals”

Paragraph [116] of the trial judge’s reasons is as follows, under the heading “Consideration of the competing proposals”:
116.Consideration must be given to each of the proposed arrangements of the parties. I am, of course, not bound by those proposals. In this case there are effectively two proposals as I have set out.
By reference to [6] and [7], it can be seen that the respective proposals to which the trial judge refers were the orders sought by each respective party. That is, the mother’s proposal to relocate with the children, for the children to spend alternate weekends and half school holidays with the father and to facilitate additional time between the children and the father should the father be able to travel to Suburb D. The father’s proposal was that the mother not be permitted to relocate and that the children’s time with him increase to six nights per fortnight and then to week about in the latter half of 2020.
It is well settled that a trial judge must consider the competing proposals of the parties in accordance with the legislative pathway (Sayer v Radcliffe (2012) 48 Fam LR 298 at [48] (“Sayer”)). At [49] of Sayer, the Full Court summarises that legislative pathway which must, naturally, include a consideration of s 65DAA(5) of the Act.
The father argues the trial judge was bound by “the statutory pathway” to consider maintaining the existing parenting regime as at trial, that being one of “substantial and significant time”. However, as the father also notes in his Summary of Argument, the trial judge relevantly says this in the reasons:
67.Section 65DAA of the Act sets out, inter alia, that if an order provides for equal shared parental responsibility, the Court must consider firstly whether equal time is in the child’s best interests and whether an order to that effect is reasonably practicable. If the answer to either of those questions is negative, I must then consider both whether substantial and significant time is both in the child’s best interests and reasonably practicable. This is the approach set out by the High Court in MRR v GR [2010] HCA 4, in which the High Court emphasised the Court must be satisfied both that the order is in the child’s best interests and reasonably practicable before consideration can be given to the order being made (emphasis added).
…
122.Balancing all the considerations, taking into account the advantages and disadvantages to the children of the parties’ competing proposals, and weighing all those matters including the Mother’s ‘right’ of freedom of movement, I am not satisfied that it is both in the children’s best interests or reasonably practicable that they remain living in the [Suburb F] area, with either equal or substantial and significant time with their Father. Conversely, I am satisfied the children’s best interests are met by continuing to live in the primary care of their Mother, permitting her to move with them to [Suburb D], and spending alternate weekends and half of school holidays with their Father as well as time on special occasions.
(Emphasis added)
The essence of this challenge is that the trial judge was bound to consider the existing regime of the children’s time and communication with their father. Whilst the trial judge was bound to consider the proposal of each parent, her Honour was not bound, as a matter of law, by those proposals. So much is clear from U v U (supra) and the trial judge herself noted that at [116]. However, it does not follow that the trial judge was bound, as a matter of law, to consider any parenting regime not being advanced by either party by way of a proposal.
The trial judge’s advertence to the options of equal time and substantial and significant time was sufficient to deal with the requirements imposed by s 65DAA of the Act.
In any event, at [88] and [89] the trial judge said:
88.In the event the children remain living in the [Suburb F] area, their time with the Father could increase to spending equal time with each parent. It was [Mr K’s] view that the children would do well in such an arrangement.
89.That recommendation was based on [Mr K’s] understanding that the parties have worked cooperatively together since separation, in circumstances he described as reflecting “…an absence of significant or ongoing conflict or distress”. As I have made clear, I do not accept that the parents are as cooperative or free from conflict as [Mr K] believed.
(As per the original)
That apparent rejection of the foundation for an equal time order is confirmed by the trial judge’s findings at [115], [118] and [122] to the effect that an order for equal time would not be in the children’s best interests.
It must follow from the trial judge’s rejection of an equal time arrangement as being contrary to the children’s best interests that her Honour proceeded on the footing that if the children remained in the [Suburb F] area the existing regime would continue. By necessary inference, the trial judge contemplated that regime compared to the move. So much is clear from [122] of the reasons where her Honour recorded:
… I am not satisfied that it is both in the children’s best interests or reasonably practicable that they remain living in the [Suburb F] area, with either equal or substantial and significant time with their Father.
There is no merit in Ground 1.

Grounds 2 and 5 – Attributing undue weight to the finding in [79]

These two grounds are virtually identical and can conveniently be dealt with together. In his Summary of Argument, the father states that “Ground 5 represents an ‘even if’ argument to the extent that the contention is that even if the finding were made, it would not be enough to justify the decision”.
At [79], the trial judge recorded:
As set out, the legislation does not require the Court to ensure an optimal relationship between the children and their Father. My focus at this consideration is whether they will benefit from having a meaningful relationship with him. Whilst the Mother’s proposals do not provide an optimal relationship between the children and their Father, I could not be satisfied that the move as proposed by the Mother would result in the relationship between the children and the Father no longer being meaningful or significant to them. The evidence would not support a finding that they would not continue to benefit from their relationship with the Father in the event of a relocation. The relationship between the children and the Father will inevitably alter, but not to the extent that the relationship will no longer be meaningful or beneficial to the children.
(Emphasis added)

By Ground 5, the father argues the trial judge found that a “meaningful and beneficial relationship” was the benchmark rather than the best interests of the children. However, [79] must be read in its context. It appears under a heading “The considerations pursuant to section 60CC of the Act”. The first paragraph under that heading is [71], which states:
The children’s best interests are paramount in these proceedings. In determining their best interests, there are two primary matters or considerations, and several additional matters or considerations which I am required to take into account.
(Emphasis added)
The trial judge goes on to set out the primary considerations under s 60CC(2) and it is in the context of considering s 60CC(2)(a) that the trial judge makes the observations set out in [79].
The father also argues that the trial judge does not apply the “best interests” test until the “wrap up” of [122]. However, it is abundantly clear that the trial judge was aware of the relevant “benchmark” being the children’s best interests and applied that standard throughout the reasons. The trial judge refers to the best interests of the children being the paramount consideration, either directly or indirectly, at each of [57], [59], [60], [61], [64], [65], [67], [69], [71],

[100]-[102], [115] and [122].
As for Ground 2, the father’s argument is that the trial judge placed undue weight on the finding that the children would maintain a “meaningful and beneficial relationship” with the father even after relocating. Notably, the father does not cavil with the accuracy of the finding, just the weight attributed to it.
The father’s Summary of Argument appears to first state that the relevant finding was “hardly open” on the evidence before stating the trial judge failed to adequately consider matters set out at [86]. That paragraph states:
This is a significant consideration in this case. It will be a substantial change for the children if the Mother is permitted to move to [Suburb D]. They will move to a new area, change schools and not see their Father or sister as often as they currently do. The Father will not be able to be as involved with their extra-curricular activities … It is likely the children will experience a sense of loss that their Father and sister will not be as involved in their world as they currently are.
The father argues the following paragraph, [87], is inadequate to constitute consideration of those matters:
I am satisfied, however, that the Mother will work to ensure that the children are well supported in moving to [Suburb D]. The children will continue to see their Father and sister each alternate weekend and for half of the school holidays. I am confident the Mother will do all she can to preserve, facilitate and promote those important relationships.
This ground, though framed as a challenge to the weight applied by the trial judge to a specific finding by the trial judge, is more accurately characterised (based on the argument contained in the Summary of Argument) as a contention that her Honour gave too little weight to other factors which would support the children remaining in Suburb F.
The difficulty with making good a challenge as to weight applied by a trial judge is notorious (Mallet v Mallet (1984) 156 CLR 605, Gibbs CJ citing with approval the statement of Latham CJ in Lovell v Lovell (1950) 81 CLR 513; Gronow v Gronow (1979) 144 CLR 513 per Stephen J at 519).
Under this ground, the father contends the trial judge failed to attribute appropriate weight to:
a)The fact that there was no serious challenge to the propositions that the children are well settled and that the relocation would seriously impact those and other relationships;
b)The effect of the relocation on the children’s relationship with J, which the evidence showed was an important relationship for the children;
c)The practical effect of the proposal of the mother including whether J would be expected to partake in all the weekend driving required by the father; and
d)The detrimental effect of having the father much less involved in the children’s schooling and extra-curricular activities compared to if the children would reside in Suburb F.
Some relevant paragraphs from the judgment demonstrating that each of these matters were considered by the trial judge include:
15.The Father has an older daughter, [J]. She was born [in 2008] and is 11 years old. [J] has stayed with the parties for six nights per fortnight and half of the school holidays for the majority of the relationship. She has also stayed with the parties at times when her mother was travelling. The children regard her as their sister, and I shall refer to her as their sister in these reasons.
…
41.He strenuously opposes the relocation, asserting the children are well settled and established in [Suburb F] and are doing well at school. They have a wide circle of friends and are engaged with their school communities and extra-curricular activities. They currently enjoy spending significant time with their sister [J], who has been involved with them for their entire lives.
…
43.He says the detriments of the relocation to the children are many, including that:-
a)as a matter of practicality, their relationship with him will change, and he says, diminish. They will not have the benefit of him participating in their schooling lives, engaging with them mid-week or taking them to activities as he currently is able to do;
b)they will be unable to spend as much time with [J] as they currently do, which includes them participating in extra-curricular activities. He says this will cause the children significant distress and a sense of loss;
c)the children will need to leave their familiar friends and start at a new school;
d)the Mother will not have a circle of friends in [Suburb D] to assist and support her as she currently enjoys at [School L];
e)as the children grow up, play weekend sport and have social engagements, this will impact on the children’s desire to spend time with him, which may further marginalise him from their lives;
f)the children will not be able to visit the paternal grandfather except on alternate weekends; and
g)he says the journey between his home and [Suburb D] will be long, and can take up to an hour and a half during peak hour traffic, or when there is construction work or accidents. He says this adds to the impracticality of mid-week time, and could require him to travel with [J] for extended periods to see the children.
…
48.The Family Consultant, [Mr K], prepared a report in this matter dated 25 June 2019. It is abundantly clear from that report that the children have secure, strong and loving relationships with their parents and [J] …
…
78.It is plain that if the children relocate to [Suburb D], the quantity of time they will spend with the Father will be diminished as they will not be in as close physical proximity as they currently are. That, however, is not the end of the matter. The question is whether the children can maintain a meaningful relationship with their Father, and continue to benefit from that, in the event of a relocation.
79.… I could not be satisfied that the move as proposed by the Mother would result in the relationship between the children and the Father no longer being meaningful or significant to them. The evidence would not support a finding that they would not continue to benefit from their relationship with the Father in the event of a relocation. The relationship between the children and the Father will inevitably alter, but not to the extent that the relationship will no longer be meaningful or beneficial to the children.
…
91.If the Mother and children move to [Suburb D], this will present some difficulties in the children seeing their Father mid-week. However, the distance between [Suburb D] and the Father’s home is not so great that it will substantially affect the children’s rights to maintain their relationship with the Father on a regular basis. If the Father wishes to be involved with the children’s school life, he can travel to where they will be living. I accept that there may be logistical issues for the Father which may limit how frequently he can do that. I note, however, that he is self- employed and he deposes to flexible arrangements so that he can care for his children.
There is no substance to these grounds. The trial judge carefully considered and weighed up the competing considerations and factors and these challenges as to weight fail.

Ground 3 – Giving undue weight to and making errors of fact about advantages to relocation

The relevant paragraph of the reasons where the trial judge summarises the advantages to the relocation is [120]:
There are advantages to the Mother’s proposal. The children would continue to thrive with the Mother as their primary carer. The Mother would be living closer to family support. The housing options available are superior, in that the Mother and children may well have the option of living in a house with a garden. These children are young and active, and an area for outdoor play will likely be of benefit to them.
The father asserts that the mother’s evidence was that the main reason for her relocation was because of housing and the fact she could more easily purchase a suitable house in the Suburb D area. The mother stated that she could purchase a three bedroom house with a garden for around $530,000 in Suburb D (at [112]). The trial judge went on to state that:
112.… On the Father’s proposal, the Mother’s options will be limited to either renting in the area or purchasing a three bedroom unit for a similar price to a home in [Suburb D].
The father argues the trial judge erred by failing to consider whether the difference between a three bedroom home and a three bedroom unit (this being the comparison also made in the father’s closing argument on 15 August 2019 at p. 271 line 30) was more important to the best interests of the children than the difference in their relationship with their father and half-sister and the risks involved in removing them from their established school and social networks.
In my judgment, the father’s argument relies upon a highly selective and simplistic view of the reasoning of the trial judge which cannot be supported when the reasons are considered holistically. For example, at [104] and [105], following upon references to well-known High Court authority concerning freedom of movement and a parent’s legitimate interests and desires, the trial judge observed:
104.I accept the Mother wishes to move. I accept she is nervous and anxious about her future, worried about housing herself and the children, and that she envisages a more positive life for herself and the children in the event of a relocation. I accept she is likely to be unhappy, anxious and frustrated should she be required to remain in the [Suburb F] area.
105.It was pointed out by Senior Counsel for the Father that this is not a case in which the Mother is asserting her unhappiness at remaining will be so great that the impact upon her parenting capacity will be to the detriment of the children. Having said that, it was apparent from the Mother’s presentation during the hearing that she is a vulnerable and emotional woman, with limited resilience. Whilst there is no evidence that her unhappiness will impair her parenting capacity, there is no requirement that she must establish such a negative impact on her parenting capacity before a relocation can be ordered; see H & H [2005] FamCA 805 at paragraph 41.
Against that background is the trial judge’s “Consideration of the competing proposals” set out at [116] to [122] of the reasons. That reflects a careful balancing of the various competing considerations.
This ground does not have any merit.

Ground 4 – The trial judge erred in dismissing the family report writer’s opinion

The father appropriately concedes that the trial judge was under no obligation to accept the recommendations of the family consultant, Mr K. However, the father challenges whether it was open on the evidence for the trial judge to reject Mr K’s opinion as to the parties’ level of cooperation and capacity to co-parent effectively and challenges the trial judge’s determination not to adopt Mr K’s ultimate recommendation against the children and mother relocating.
At [57], the trial judge recorded:
57.As set out, [Mr K] formed the impression that the parenting alliance was sound and workable. He did not have the benefit of seeing the parties over the course of several days giving evidence nor the testing of evidence and lengthy submissions by Counsel and Senior Counsel. I have formed a different impression than [Mr K] as to the parties’ level of cooperation and capacity to co-parent effectively. Ultimately, I have formed a different view as to how these children’s best interests are to be met.
The trial judge set out at [31], [32] and [33] the mother’s case concerning the lack of parental cooperation and the father’s controlling behaviours. At [33] are set out some seven sub-paragraphs of examples of the mother’s case, within which the trial judge records findings accepting of the mother’s case. For example, in sub-paragraph (a) the trial judge records her acceptance that the events referred to constituted controlling behaviour by the father. In

sub-paragraph (b) is recorded a finding of what might be termed economic pressure upon the mother and likewise in sub-paragraph (c), with the trial judge there recording acceptance that in that event as described the mother “would have been intimidated” by the father’s attitude. Likewise in each of

sub-paragraphs (e) and (f) the trial judge records her acceptance of the mother’s evidence of lack of cooperative parenting in the examples referred to. At [34], the trial judge records her acceptance of the mother’s case of feeling “overborne” in dealing with the father.
Further, at [46] and [47] the trial judge records:
46.I accept the Mother’s evidence that the parties’ co-parenting arrangement and post-separation relationship is strained. I have already referred to a number of matters demonstrative of a less than cooperative arrangement. I accept that the Mother genuinely felt overwhelmed and overborne by the Father. He is a [legal professional], and I accept that the Mother has felt at a disadvantage following their separation given his legal background and knowledge. Additionally, he has managed the parties’ finances, and I accept this has further added to her feeling that she is at a disadvantage to him.
47.I also accept that whilst many of the written communications would suggest a substantially cooperative, and minimally conflictual parenting relationship, there is more subtlety and nuance to those communications. On their face, the communications, coupled with the Mother’s capitulations, have shielded the children from conflict and created a façade of cooperation. However, there are also matters that suggest there was far less cooperation and goodwill between them, with the Father at times acting in a way designed to force the Mother to comply. This includes:-
a)the Father’s refusal to sign the Mother’s Centrelink application unless it recorded a substantially shared care arrangement;
b)his refusal to move from the home save on parenting terms he wanted;
c)his response to the Mother seeking to sell $200 worth of firewood; and
d)his implication that the Mother was free to use the funds from the sale of the Town E unit as she pleased. The Father’s lawyers had written to the Mother’s lawyers insisting those monies be held on trust on 10 September 2018, notwithstanding she had previously provided him with a signed undertaking she would not deal with those monies save with his agreement or by Court order. Her use of those monies was subsequently limited to being drawn upon by her “for occasional living expenses” pursuant to the orders made by consent on 18 October 2018.
The trial judge records similar findings at [115] in expressing the conclusion that an order for equal time is not reasonably practicable nor in the children’s best interests.
The father seeks to emphasise what are described in paragraph 41 of his Summary of Argument as “important concessions in cross-examination” made by the mother.
The relevant extracts of transcript which evidences those concessions are as follows (Transcript 13 August 2019, p.73 line 45 to p.74 line 13):
[COUNSEL FOR THE FATHER]: Thank you. In any event, whatever you say your concerns and fears were before you got court orders and my client left the former family home, you say at paragraph 52:
From 18 March 2019, the children have lived with me and spent time with [Mr Morden] in accordance with interim orders. No longer being under the same roof has been a great relief for me and the children seem more settled and content.
Now, that’s true and correct?---Yes.
So whatever the relationship for all of you was before my client and [J] went to live in his father’s house, since then, the children are more settled and content?---Yes.
And, similarly, I suspect the relationship between the two of you is more settled and content because you’re no longer under each other’s feet?---Yes.
(Emphasis added)
I interpolate that it is notable that this questioning emanated from what the mother herself volunteered in her own affidavit. The mother there simply confirms that unsurprisingly the children were more settled and content since the parents ceased to live under the same roof upon the father vacating the former matrimonial home.
The second asserted concession appears as follows (Transcript 13 August 2019, p.80 lines 4-11):
[COUNSEL FOR THE FATHER]: You see, so going back to the start of the sequence of all these questions which was the fact that you don’t agree with the family report writer’s recommendations or his assessment about your co-operative parenting – remember [Mr K] says in his report, he felt that you had a sound and workable parental alliance. Remember that?---Yes.
Yes. Well, I suggest to you that despite your every attempt to create another picture, the reality is you do, indeed have a sound and workable parental alliance and the evidence points to it very clearly?---The evidence we have for those incidences. Yes.
(Emphasis added)
The “rolled up” question creates ambiguity about the answer. That is, precisely what constitutes the “concession” is less than clear.
The finding the trial judge made at [57] was open to her Honour on the evidence. Moreover, as her Honour there highlights, Mr K “did not have the benefit of seeing the parties over the course of several days giving evidence nor the testing of evidence and lengthy submissions by Counsel and Senior Counsel”.
That there existed examples of apparent cooperative parenting, as the father seeks to emphasise, does not demonstrate error on the part of the trial judge for reaching the overall conclusion her Honour did, open on the evidence referred to, and made with the advantages of a trial judge presiding over a trial. The trial judge was not bound to expressly refer to every piece of evidence about the issue (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; Wendland & Wendland (2017) FLC 93-808). Notably, these detailed reasons for judgment were delivered within about a month of the conclusion of the four day trial.
As to the trial judge’s determination not to adopt Mr K’s ultimate recommendation, it is misconceived to conclude that this determination rested solely upon her Honour reaching a view different to Mr K about the parties’ level of parental cooperation. The reasons for judgment read as a whole, including the detailed discussion of each relevant s 60CC consideration, make clear the trial judge’s bases for the overall determination her Honour made as to the children’s best interests, which was by no means confined to the question of parental cooperation.

Conclusion

There being no merit in any of the grounds of appeal the appeal ought be dismissed.

Costs

In advance of the hearing of the appeal each party filed a Schedule of Party and Party Costs in accordance with the procedural orders made by the Appeals Registrar on 25 October 2019 to the effect that any party intending to seek costs file such a schedule.
The mother seeks an order for costs in the sum of $28,648.62 in accordance with her filed schedule.
The parties’ respective financial circumstances are recorded in the reasons of the trial judge which also deal with financial issues. Notably, the father’s financial circumstances would not stand in the way of the making of a costs order and it was not submitted otherwise. It was submitted that the claim for costs includes an item for the solicitor having read the transcript of the trial adding some $4,500 to the claimed costs. It was contended that that was not reasonable but otherwise the father could not be heard in opposition to costs being fixed in the balance of the amount of about $24,000.
The father has been wholly unsuccessful in the appeal within the meaning of s 117(2A)(e) of the Act. The mother’s limited capital position and consequent capacity to re-house herself and the children, following determination of financial issues, was itself an issue in the proceedings. Her financial position is obviously further burdened by the costs she has incurred in successfully resisting this appeal.
I am satisfied that there exists justifying circumstances, within the meaning of s 117(2) of the Act, for an order as to costs in favour of the mother. Having regard to the relevant considerations in s 117(2A) I would fix those costs in the sum of $24,000. In my judgment the complaint about the item referred to is well made in the sense that it is a solicitor and client component rather than a party and party component, and on that basis I would reduce the claimed amount and fix the costs in the sum of $24,000.

AUSTIN J

I agree with the orders proposed and the reasons given by Kent J.

STRICKLAND J

I too agree with the orders proposed by Kent J and for the reasons given by his Honour.
The orders of the Court will be:
(1)The appeal be dismissed.
(2)The appellant pay the respondent’s costs of the appeal fixed in the sum of $24,000.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Strickland, Kent & Austin JJ) delivered on 28 November 2019, edited to correct grammatical errors and some infelicity of expression.

Associate:

Date: 2 December 2019