MORDON & PAUL - [2014] FamCAFC 222

FAMILY COURT OF AUSTRALIA

MORDON & PAUL

[2014] FamCAFC 222

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – CHILDREN – RELOCATION – where the trial judge made an order restraining the mother from moving the child’s place of residence any further away from the father’s residence than it was at the time of making the orders – where the trial judge made mistakes of fact as to whether the mother’s treating psychologist had given evidence and whether she was still treating the mother – where the psychologist was a critical witness in the mother’s case – where it was unclear what weight the trial judge gave to the mistaken views, and to what extent they influenced the findings made – where merit was found in these grounds of appeal – where it was otherwise not open for the trial judge to make the findings on the state of the evidence – where the trial judge failed to consider the competing proposals and the circumstances of the parties in addressing whether the orders were reasonably practicable pursuant to s 65DAA(2) and (5) of the Family Law Act 1975 (Cth) – Appeal allowed – Remitted for rehearing.

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – COSTS – where the appeal was successful on questions of law and no order for costs was made – Costs certificates granted to the parties for the appeal and rehearing.

Family Law Act 1975 (Cth) – ss 65DAA(1), (2), (5) and 117
Federal Proceedings (Costs) Act 1981 (Cth) – ss 6, 8 and 9

De Winter & De Winter (1979) FLC 90-605
MRR v GR (2010) 240 CLR 461
Sayer v Radcliffe (2012) 48 Fam LR 298
Starr & Duggan [2009] FamCAFC 115

APPELLANT:

Ms Mordon

RESPONDENT:

Mr Paul

FILE NUMBER:

MLC

299

2012

APPEAL NUMBER:

SOA

2013

DATE DELIVERED:

20 November 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, May & Strickland JJ

HEARING DATE:

4 March 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

3 September 2013

LOWER COURT MNC:

[2013] FCCA 856

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Smith

SOLICITOR FOR THE APPELLANT:

Victoria Legal Aid

COUNSEL FOR THE RESPONDENT:

Mr Arnold

SOLICITOR FOR THE RESPONDENT:

Rochelle Belcher Lawyers

Orders

The appeal be allowed.
Paragraphs 4 to 7 of the Order made by Judge Small on 3 September 2013 be set aside.
The matter be remitted to the Federal Circuit Court of Australia for rehearing by a Judge other than Judge Small.
The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981, being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant mother in respect of the costs incurred by the appellant mother in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981, being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981, being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise payment under the Act to each of the parties in respect of the costs incurred by each of them in relation to the rehearing.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 59 of 2013
File Number: MLC 299 of 2012

Ms Mordon

Appellant

And

Mr Paul

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 22 January 2014 Ms Mordon (“the mother”) appeals certain of the parenting orders made by Judge Small on 3 September 2013 in relation to the parties’ only child, K (“the child”).
The appeal is opposed by Mr Paul (“the father”).
In summary, the orders made by her Honour provides for the parties to have equal shared parental responsibility for the child, for the child to live with the mother, for the child to spend specified times with the father, and that the mother be restrained from moving the child’s place of residence any further from the father’s residence than it was at the time of making the order. The paragraphs of the orders appealed against are the injunctive order, the spend time with orders, and an order providing for the places of handover.
The orders sought on appeal are that the appeal be allowed, paragraphs 4 to 7 of the order made by the trial judge be set aside, and the matter be remitted for rehearing.

Background

At the time of trial, the mother was 38 years old, and the father was 43 years old.
The mother cares for the child full time, although previously she worked full time up to the birth of the child and held some casual employment thereafter.
The father works in a family business as a supervisor.
The father has three other children aged 10, seven and six years respectively from a previous relationship. Those children live with the father and their mother on a shared care basis.
The parties met in early 2010, and the mother fell pregnant with the child shortly after.
The parties lived together in the mother’s home in Melbourne from February 2011 to 5 December 2011. The father left the home after an incident where the mother was injured when a cubby house fell on her, caused, the mother says, by the father. As a result, the mother applied for an intervention order on

16 December 2011, but this resolved on the basis of the father entering into an undertaking.
Upon becoming aware that the mother intended to relocate to Western Australia with the child, the father filed his initiating application seeking parenting orders and an injunction on 16 January 2012.
On 17 February 2012 the mother vacated her property in Melbourne (which was on the market for sale at the time) and relocated with the child to the Mornington Peninsula, over 100 kilometres from the father’s home.
In the proceedings the mother alleged a series of instances of family violence on the part of the father during cohabitation.
Since separation, communications between the parties have broken down.
At trial the mother sought to be able to relocate with the child to Town A, about 70 kilometres south of Perth. The mother said that she had a firm offer of employment there, and that both the child and herself would benefit from the support that her family and friends in Western Australia could offer.

The reasons for judgment delivered on 3 September 2013

The trial judge commenced the reasons for judgment by outlining the background, the procedural history, and the proposals of the parties.
The trial judge commented on the family report provided to the court by

Dr E on 25 July 2012. Her Honour expressed some reservations about this report as it was somewhat dated, the child being 10 months old at the time the report was prepared, but nearly two years of age at trial. Indeed, the family report writer herself expressed frustration that she had not been afforded the opportunity to provide an updated report (at [26]). Despite these concerns her Honour found Dr E’s report “extremely helpful to the court” (at [27]).
The trial judge then turned to the law as it applies to parenting cases, noting that where there is a case involving an application to relocate, that application is “not to be decided on any different principles than any other parenting case” (at [38]).
The trial judge then referred to the relevant sections of Part VII of the Family Law Act 1975 (Cth) (“the Act”). The trial judge identified ss 60B, 60CA, 60CC, 61DA and 65DAA as applicable in this case.
Given the respective applications of the parties, and on the basis of their evidence, the evidence of Dr E, and the evidence of other witnesses, her Honour was satisfied that the presumption in s 61DA was not rebutted, and she proposed to make an order for equal shared parental responsibility.
Both parties agreed that the child should live with the mother at this stage of her development, and the father sought a graduated regime of time with the child, ultimately resulting at some unspecified time in the future in an equal time arrangement. At trial though counsel for the father and counsel for the Independent Children’s Lawyer (“the ICL”) conceded that it would be inappropriate to make orders so far into the future, and the orders ultimately sought by the father only accounted for the “near and medium future – that is, perhaps until [the child] goes to school” (at [48]).
As an order for equal time was not sought at this time by either party, the trial judge recorded that she must consider whether an order for substantial and significant time was in the child’s best interests, and reasonably practicable under s 65DAA(2) of the Act. Her Honour then addressed each of these issues.
As to the child’s best interests, her Honour first considered the primary considerations under s 60CC(2), and then the additional considerations under

s 60CC(3).
As to the latter her Honour addressed them in turn as follows.
Section 60CC(3)(a) – the trial judge found that the child at only two years of age lives with the mother happily, but also expresses willingness to go with the father (at [58]).
Section 60CC(3)(b) – the trial judge found that the relationship between the child and the mother was close, and the child was happy, healthy and well cared for. This evidence, as the trial judge found, was supported by the father and the family report writer Dr E. Equally, the trial judge found that the child’s relationship with the father is positive (at [60]). The trial judge also found a positive relationship between the child and the maternal grandparents (at [61]). However, the trial judge noted that the mother’s antagonism towards the father was “likely to prevent the development of a secure attachment to the father” (at [63]).
Section 60CC(3)(c) – The trial judge found that both parties have taken every possible opportunity to be involved in the child’s life. In relation to the evidence regarding the father’s cancelled visits, her Honour found that this was “overstated” given that the father lives an hour and a half away. The trial judge averred to his “persistence” with the proceedings as indicative of the father’s commitment to his relationship with the child (at [64]).
Section 60CC(3)(ca) - The trial judge accepted the father’s compliance with child support obligations to date, albeit with some evidence of arrears. Otherwise the trial judge found that both parents support the child when she is with them (at [65-66]).
Section 60CC(3)(d) - The trial judge recognised two possibilities for change in the child’s circumstances as a result of orders sought in the proceedings. First, an order could be made that the child’s place of residence be located, “not more than … 20, 30 or 50 kilometres from the father’s home” (at [68]). Or secondly, an order could be made permitting the mother to relocate the child to Western Australia (at [74]). In relation to the first possibility, the trial judge noted that the child would not be separated from any significant person with whom she lives or spends time, but it would mean the mother would need to change her place of residence to a place she may not want to live (at [69]). The trial judge then considered the evidence by the father that there were many places the mother could move to in Melbourne’s western suburbs that were within her budget, and the trial judge said this at [70]:
That would actually enhance [the child’s] relationship with the father, his other children and the paternal grandmother, while not really affecting her relationship with her mother or her maternal family, who live in Western Australia.
However, the trial judge then opined that this option was not proposed by any party, and did not intend to make such an order.
In relation to the second possibility, the trial judge referred to the “profound” effect on the child’s relationship with the paternal family, including her father, siblings and grandparents should relocation to Western Australia be ordered (at [75]). The trial judge then considered the evidence of the father who claimed that he could not afford to travel to Western Australia to see the child (at [77]). However, the trial judge concluded that such an order would allow the child to have a closer relationship with her maternal family (at [78]).
Section 60CC(3)(e) - When considering the distance between the parties, the trial judge recorded that the parties currently live 104 kilometres apart, approximately 90 minutes by car. The father’s evidence was that his petrol bill was around $200 per week. The trial judge also recorded the evidence of the mother’s travel difficulties. Therefore the trial judge found that “the current arrangement does substantially affect [the child’s] ability to maintain personal relations and direct contact with both parents on a regular basis” (at [81]).
These difficulties were said to be amplified if an order was made permitting the mother to relocate the child’s residence to Western Australia. The father’s evidence was that he could not afford to travel to Western Australia, and he also had the care of his other children for five nights each fortnight. The mother too would incur “expense and practical difficulty” in bringing the child to Melbourne, although her evidence was that she could afford the cost because she intended to work in Western Australia (at [84]).
The mother proposed the use of Skype to supplement face-to-face visits saying that the child uses that medium now to communicate with her “maternal family”. However, her Honour said this at [87]:
Dr [E] was very sceptical about such means of communication being effective in a situation where, as at present between the mother and the father, there is no positive, and some significant negative messaging being given to [the child] about her father. …
As a result of this evidence her Honour found as follows at [89]:
I therefore find that an order allowing the mother to relocate to Western Australia with [the child] would substantially and negatively affect [the child’s] right to maintain personal relations and direct contact with the father and the paternal family, and I decline to make that order.
Section 60CC(3)(f) - The trial judge accepted that the child’s physical and material needs are met by both parties. However, the trial judge noted that it is “in the area of capacity to provide for her emotional needs that the parties’ behaviour comes under closer scrutiny” (at [92]).
Section 60CC(3)(i) - The trial judge found that both parents genuinely love the child and take their parental responsibilities very seriously. However, her Honour also found that the mother’s actions indicate that she may prefer being a single mother than having to deal with the father. The trial judge found that the mother’s willingness to move to Western Australia, and when restrained, moving over 100 kilometres away from the father “does not demonstrate a willingness to accept the role of the father in [the child’s] life …” (at [105]). The trial judge did find though that the mother has, over the course of the proceedings “accepted and tolerated [the father’s] place in [the child’s] life, albeit reluctantly” (at [106]).
Section 60CC(3)(j) - The allegations of family violence by the mother were recorded by the trial judge as a “major” part of the mother’s case. The trial judge noted that the allegations, if substantiated, might have a significant bearing on any orders the court may make. Her Honour then considered the allegations in turn and concluded as follows at [136]:
All the alleged incidents in this case occurred in the context of what appears to have been quite a volatile relationship. That does not excuse them at all, but the fact that there have been no suggestions of any post-separation incidents leads me to believe that the situations which led to them are probably no longer occurring.
Section 60CC(3)(k) - The trial judge recorded that the mother applied for an intervention order on 16 December 2011, but this application was eventually withdrawn upon an undertaking being entered into by the father (at [138]).
Section 60CC(3)(l) - The trial judge found that it would be impossible to make orders for the entirety of the child’s childhood and adolescence. Accordingly, the trial judge did not propose to do so, and instead determined to make orders that maintain and develop the child’s relationship with her father “until the question of her schooling arises” (at [141]).
Section 60CC(3)(m) - The mother deposed that if relocation was not permitted her mental health would suffer. She suffered from anxiety and depression, and the stress of the proceedings and having to deal with the father exacerbated her condition. However, in her oral evidence, Dr E disagreed with the assessment of the mother by her treating psychologist, Ms T, based on her scores from the Personality Assessment Inventory test also administered by Dr E.
The trial judge recorded that Ms T was no longer seeing the mother, and she was not called to give evidence at the trial. In those circumstances her Honour did not place a great amount of weight on Ms T’s report. We pause here to note that this was incorrect; Ms T did in fact give viva voce evidence at trial, and was still seeing the mother, and we will return to this later in our reasons.
Taking all of the above factors into account the trial judge was satisfied that it was in the child’s best interests to make an order for substantial and significant time with the father in a graduated regime over the next few years (at [155]). Thus, the trial judge found that there was no other alternative but to restrain the mother from moving the child’s place of residence any further from the father than it already was.
Turning to issue of practicability, the trial judge found that the orders proposed are practicable, noting that both parties sought orders for equal shared parental responsibility and for the child to live with the mother. Further, her Honour found that it was not impracticable for the mother to remain in Melbourne, and the order proposed for the child to spend time with the father was likewise not impracticable.

Grounds of Appeal

In her Amended Notice of Appeal filed 22 January 2014 the mother agitates the following grounds of appeal:
1.The Learned Trial Judge made an error of fact in that she stated that the Mother’s psychologist (Ms [T]) was not called to give evidence when in fact she did give viva voce evidence.
1A.The Learned Trial Judge made an error of fact in that she found that the Mother is no longer seeing Ms [T].
2.The Learned Trial Judge erred in that she failed to have regard to the viva voce evidence of the Mother’s psychologist.
3.That the Learned Trial Judge erred in that in considering the best interests of the child she failed to properly consider the impact on the mother’s mental health of an order restraining her from relocating the residence of the child.
3A.The learned Trial Judge’s finding that the Mother’s mental health would not be at risk if she was not permitted to move to Western Australia was against the evidence and the weight of the evidence.
4.The Learned Trial judge erred in giving more weight to the evidence of the family report writer, who had not seen the Motherfor [sic] 13 months as to the mother’s level of anxiety, than to the opinion of the Mother’s treating psychologist who had been treating the mother on an on-going basis.
5.The Learned Trial Judge erred in that she failed to provide the Mother with procedural fairness in making an order not proposed by any of the parties which restrained the Mother from relocating the residence of the child any further from the residence of the Father without affording the Mother the opportunity to make submissions with respect to the proposed order.
6.The Learned Trial Judge erred in that she failed to give proper consideration to the practicality of the orders for the father to spend substantial and significant time with the child given the financial and emotional difficulties faced by the Mother if she was refused permission to relocate.
7.The Learned Trial Judge erred in that she failed to provided [sic] the Mother(and the othetr [sic] party) with procedural fairness in making an order not proposed by any of the parties with respect to changeover, without affirding [sic] the Mother (or any other party) the opportunity to make submissions with respect to the proposed Orders.
8.The Learned Trial Judge failed to consider case law and precedents referred to by the Mother’s solicitor.

At the hearing of the appeal counsel for the mother abandoned Ground 8, and apart from Ground 6 grouped the balance of the grounds into three categories, namely Grounds 1, 1A and 2 – failing to take into account Ms T’s evidence, Grounds 3, 3A and 4 – the mother’s mental health issues and the weight attached to them, Grounds 5 and 7 – lack of procedural fairness. We are content to adopt these groupings for the purposes of addressing the grounds of appeal.

Discussion

Grounds 1, 1A and 2 – the failure to take into account Ms T’s evidence

It is beyond doubt that there were mistakes of fact in her Honour’s reasons for judgment. In relation to the mother’s treating psychologist, Ms T, her Honour said this at [151]:
I understand that the mother is no longer seeing Ms [T] and note that
Ms [T] was not called to give evidence at trial.
Her Honour had also said this earlier in her reasons at [17]:
The mother says that it has become intolerable for her to stay in Melbourne as she has no work, few friends and cannot afford to live anywhere closer to the city. She says that her relationship with the father is cold, that they do not speak to each other except through a communications book, and that the stress of having to deal with him on a regular and frequent basis is damaging to her mental health. She has provided a report from her treating psychologist to support that contention, although the psychologist was not called to give evidence at trial.
In fact, Ms T did give evidence at the trial, and the mother was still seeing her at that time.
Ms T was a critical witness for the mother. Her case was that if she was not permitted to relocate with the child to Western Australia her “mental health” would suffer. She claimed that she suffered from “anxiety and depression”, and that the “stress of having to deal with [the father] on a regular and frequent basis [was] damaging to her mental health” and exacerbated her condition (at [17] and [143]). In her report dated 18 June 2012, which was before her Honour, Ms T made the following recommendation:
I believe a ruling to have [the mother] and her daughter remain in Melbourne will be detrimental to [the mother’s] mental health and will consequently impact negatively on her daughter. I strongly believe the best outcome would be for [the mother] and her daughter to return to her family support in Western Australia where she will have the opportunity to regain her confidence and support herself and her daughter surrounded with the support of family and friends.
In her evidence-in-chief there is the following exchange between the mother’s counsel and Ms T:
MS SAMSON: You made a recommendation that you felt that if my client remained in Melbourne it would be a detriment to her mental health, and that it would impact negatively on her daughter?---Yes.
Do you still hold that view?---I certainly do most strongly.
And is the view the same as what you wrote, or is it different in any way?
---My view would be exactly the same, only stronger now because of the time that we’ve had together, how I’ve got to know her. So yes, it’s definitely as it stands.
(Transcript 21.5.13, page 173, lines 7-15)
Thus, as can be seen, Ms T’s evidence was material and was an important part of the mother’s case. It was also rendered important because Dr E, the court appointed expert witness, had only seen the mother approximately

13 months prior to the trial.
However, immediately following [151] of her reasons for judgment, her Honour said this at [152] and [153]:
152.In those circumstances, I do not place a great amount of weight on Ms [T]’s report.
153.While I have no doubt that these proceedings, and the position the mother finds herself in have been stressful for her and have caused her much distress, I do not find that her mental health will be at risk if she is not permitted to move to Western Australia.
A plain reading of [151], [152] and [153] is that as far as her Honour was concerned, because the mother was no longer seeing Ms T, and because Ms T was not called to give evidence in the trial, her Honour did not place “a great amount of weight” on her report, and was not able to find that the mother’s mental health would be at “risk” if she was not permitted to move to Western Australia.
It could be argued that the “circumstances” referred to at [152] were not just the circumstances referred to at [153], but were also the circumstances set out in the previous paragraphs. There, her Honour identified a difference between the assessment of the mother by Ms T as revealed in her report, and the assessment by Dr E. That difference related to the application and results of a Personality Assessment Inventory test, which both Ms T and Dr E employed in relation to the mother. In evidence Dr E said that she disagreed with Ms T’s assessment of the mother based on her scores from that test. Ms T found that the mother was anxious but that was not how Dr E interpreted the test results.
However, even if her Honour is also including this in “the circumstances” referred to at [152], that still leaves what her Honour said at [151], and which was plainly incorrect. The difficulty is that it is entirely unclear what weight her Honour gave to her mistaken views, and to what extent they influenced her finding at [153]. As such, it renders her Honour’s decision unsafe, and liable to be overturned on appeal, even if the finding might appear otherwise to be well within the range of discretion of the trial judge. The High Court in De Winter & De Winter (1979) FLC 90-605 said this (at 78,092):
There are many other authorities, … that recognize that a mistake of fact is a ground for overruling a decision involving discretionary judgment. It may in some cases appear that the mistake of fact has not affected the final result, or that its effect has been negligible, or that in any case the conclusion reached was correct, notwithstanding the error. But it is not right to say, as the majority of the Full Court appear to have said in the present case, that a discretionary judgment which has proceeded upon a mistake of fact should be upheld simply because the order was well within the range of the discretion of the primary judge.
As we will explain shortly though, it cannot be said that despite the mistakes of fact, her Honour’s decision was well within her “range of discretion”.
Accordingly, we find merit in these grounds of appeal.

Grounds 3, 3A and 4 – the mother’s mental health issues and the weight attached to them

Although we have found merit in Grounds 1, 1A and 2, the effect of that in terms of appellate interference can be offset if her Honour’s findings as to the mother’s mental health and whether that health will be at risk if she is restrained from relocating to Western Australia can be supported by the totality of the evidence before her Honour.
We have touched on this already, but this brings into play the evidence of

Dr E, and any challenge to the evidence of Ms T.
As we have said, Dr E disagreed with Ms T’s assessment of the mother on the basis of her scores from the Personality Assessment Inventory test. The point of difference is that Dr E considered that Ms T was too accepting of what the mother said to her whereas Dr E opined that to her the mother was “presenting herself in the best possible light” (at [149]), and thus the test results could not be totally relied upon in assessing the mother’s level of anxiety.
In cross-examination by counsel for the ICL as to whether, if it would be detrimental to the mother for her not to be permitted to relocate, that may affect her parenting ability, Dr E said this:
---I saw that [the mother] was a very conscientious parent who didn’t expect to be a parent and who delighted in [the child], and it was my assessment that she perhaps didn’t appreciate how her own behaviour might be a – might be a detrimental factor in her daughter’s development, and that wouldn’t be unusual for any parent, because most parents don’t understand all those developmental issues, so hopefully, when I wrote my report, I was pointing out to her that it might be, and she might learn something from that, I hoped. She’s a very – she seemed to be a very conscientious parent who, as I said, didn’t expect to be a parent, so that made her experience of motherhood very special. I think generally she – [the mother] might have some issues with anxiety and relationships with others, but I’m not sure that’s – that’s to do with location, and moving to [Western Australia] may or may not alleviate those issues.
(Transcript 21.5.13, page 157, line 45 - page 158, line 9)
However, none of this was put to Ms T in cross-examination. Indeed, neither her methodology, nor her opinion in her report, nor her confirmation of that opinion in her oral evidence was challenged. Her cross-examination needs to be put into context though. She was not required by either the father or the ICL for cross-examination, thus leaving her methodology and her opinion as expressed in her report unchallenged. However, after the mother’s case was closed, the mother’s counsel sought to have Ms T give evidence. This was objected to by the father’s counsel, but her Honour allowed Ms T to give evidence on the basis that it was limited to the treatment that had taken place since Ms T’s report, and whether her opinion had changed at all.

Ms T then gave evidence that she had continued to see the mother, and she explained the treatment that she had provided. There was then the exchange between counsel and Ms T as to her recommendation set out at [49] above.
The father’s counsel then cross-examined Ms T, and the extent of that was as follows:
MR ARNOLD: I have another question: Ms [T], you’re totally reliant upon what your clients, or a patient says, aren’t you?---Yes.
Yes. So you would have to say that your report and your evidence is entirely subject to that?---And my experience with human behaviour, of course.
Yes, yes. Yes, thank you.
(Transcript 21.5.13, page 173, lines 25-31)
For completeness, we record that there was virtually no cross-examination of Ms T by counsel for the ICL.
This being the state of the evidence before her Honour, and given that Dr E had not seen the mother for over a year, and then only on one occasion, whereas Ms T had seen the mother on many occasions over a long period of time, it cannot be said that putting aside her Honour’s mistakes of fact, it would have been open to her Honour on the evidence to have found as she did at [153].
Accordingly, there is also merit in these grounds of appeal.

Grounds 5 and 7

These grounds raise issues of procedural fairness.
As to the first complaint, it is said that the order sought by the father was that “the mother be restrained from moving the child from the State of Victoria to live on a permanent basis”. However, her Honour made the more restrictive injunction that she did without giving the mother the opportunity to make any submissions about the same.
It is beyond doubt that that was the case, but the fact is that the mother did not seek to be able to move anywhere else but to Western Australia. It was not her case that she was intending to move elsewhere in Victoria. And significantly, and perhaps decisively, the mother’s position before her Honour was that she did not provide any proposals if she was not permitted to relocate the child to Western Australia (at [37]). Thus, all her Honour was doing was maintaining the status quo, and we do not accept that there has been a lack of procedural fairness such that the decision of her Honour should be overturned.
We also observe that her Honour was mindful of not requiring the mother to move any closer to the father than she already was. Indeed, although

her Honour discussed whether such an order might be appropriate, her Honour determined not to make such an order given that neither party had made such a proposal and neither party had had the opportunity to consider that possibility (at [73]).
As to the second complaint, although again neither party nor the ICL specifically proposed an order in terms of the order her Honour made as to the places of handover, we consider it to be de minimus and not such as to warrant appellate interference. That is bolstered by the circumstance that her Honour’s order was not significantly different than the one proposed by the father. He proposed that “the changeovers for time spent be a McDonalds Restaurant situated closest to the half way point between the parties [sic] respective residences”.
In any event, to repeat, there was the conscious decision by the mother not to put any proposal to her Honour if the child was required to remain in Victoria.

Ground 6

Section 65DAA(2) of the Act provides as follows:
… if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
In MRR v GR [2010] 240 CLR 461, the High Court said this at [13]:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
(Footnotes omitted)
As can be seen that paragraph primarily addresses s 65DAA(1), but then appropriately applies the same principles to s 65DAA(2).
The complaint here is that her Honour failed to consider the circumstances of the parties, and particularly those of the mother in determining whether the order proposed by the father was reasonably practicable (in light of the factors set out in s 65DAA(5)), and that her Honour was thus not able to make the order that she did. In oral submissions it was claimed that her Honour also failed to consider the mother’s “circumstances” if she was permitted to relocate the child to Western Australia; in other words, her Honour failed to consider the mother’s proposal in the context of whether it was reasonably practicable.
Her Honour clearly recognised the need to address s 65DAA(2) of the Act (at [49]-[52]). However, her Honour then spent the majority of her reasons for judgment (at [53]-[156]) considering the best interests of the child. It is only from [157] onward that her Honour specifically turned her mind to “whether the orders [she proposes] to make are practicable”. Her Honour found that putting in place an order for equal shared parental responsibility for the child, which was what both parties sought at trial, would only be impracticable if the parties’ “attitude and potential behaviour” did not allow it to be (at [158]). Then her Honour found that an order that the child live with the mother, which was also an order sought by both parties, is practicable.
However, it is the next step where the mother’s challenge arises. Her Honour found that orders restraining the mother from relocating the child’s place of residence, and orders that gradually increase the child’s time with the father, are “not impracticable”, but in so finding her Honour failed to fully and adequately consider the mother’s proposal and/or her circumstances if she was prevented from relocating with the child. In fact, all that her Honour did was to briefly address (in [163]) the mother’s circumstances if her proposal to relocate was accepted.
The Full Court in Sayer v Radcliffe (2012) 48 Fam LR 298 said this at [48]:
A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals for both parents. … It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation.
At [74]-[78] her Honour does refer to the effect on the child and the difficulties the father says he will face if relocation is permitted, but there is no exploration of the mother’s circumstances, save and except to acknowledge that the child will have a closer relationship with the maternal family. Further, at [82]-[85] her Honour considers “the issues of practicality and expense” if the mother is permitted to relocate, but primarily it is the father’s circumstances that are highlighted. Conversely, her Honour does of course at [153] find that the mother’s “mental health” will not be at risk if she is not permitted to move to Western Australia, but as we have explained, that finding is unsafe.
It also needs to be understood that these were matters that her Honour considered in the context of assessing what was in the best interests of the child under s 65DAA(2)(c) by reference to the relevant factors in s 60CC; her Honour was not considering them in the context of s 65DAA(2)(d) (and s 65DAA(5)). As the High Court acknowledged in MRR v GR, these paragraphs require consideration of “different matters” (at [14]). Of course, in Starr & Duggan [2009] FamCAFC 115, at [38], the Full Court recognised that in considering s 65DAA(2)(d) (and s 65DAA(5)), there can be a reference back to what has been earlier considered under s 60CC, but that needs to be apparent; there needs to be a link, and that was not present in this case.
In our view, her Honour’s consideration of these matters is plainly inadequate, and this ground of appeal is made out.

Conclusion

We have found merit in Grounds 1 to 4, and 6, and thus the appeal must be allowed and the paragraphs of the order made by her Honour that are challenged, set aside. That necessarily includes the order providing for the places of handover, despite the ground challenging that order having no merit.
Unfortunately, given the nature of the errors made by her Honour, and in particular that her exercise of discretion was based on mistakes of fact, we have no alternative but to remit the matter to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Small. Both parties recognised this in their submissions to us at the hearing of the appeal.

Costs

At the conclusion of the hearing we received submissions from the parties as to the question of costs depending on the outcome of the appeal.
In the event the appeal was allowed, both parties sought costs certificates pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and for the rehearing. We consider that is the appropriate course to take. There is no basis for an order for costs to be made pursuant to s 117 of the Act given the nature of the errors made by the trial judge, and the appeal having been allowed on questions of law, costs certificates should issue.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, May and Strickland JJ) delivered on 20 November 2014.

Legal Associate:

Date: 20 November 2014