MULLER & SHAW - [2009] FamCAFC 180

FAMILY COURT OF AUSTRALIA

MULLER & SHAW

[2009] FamCAFC 180

FAMILY LAW – APPEAL – PARENTING ORDERS – Whether the Federal Magistrate erred in failing to consider the effect of the change in living arrangements on the child – Whether the Federal Magistrate erred in failing to adjourn the hearing to obtain a family report – Where the Federal Magistrate discharged his obligation to consider s 60CC(3)(d) of the Family Law Act 1975 (Cth) – Where neither party’s counsel sought an adjournment or the preparation of a family report – Where there was no challenge to the father’s relationship with the child or the father’s ability to provide for the child’s needs – Where the orders made were open to the Federal Magistrate – Appeal dismissed

FAMILY LAW – APPEAL – COSTS – Where the cost of the father’s application for security of costs of the appeal were reserved to this appeal – Where the father’s security application was unsuccessful – Where the mother wholly unsuccessful on appeal – Where appropriate in the circumstances to order each party to pay own costs of the security application and appeal

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) ss 60CC(3), 60CC(3)(d), 69ZT(1), 69ZT(3), 69ZT(3)(a), 69ZX(1), 69ZX(3)

CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716
McCall & Clark (2009) FLC 93-405

APPELLANT:

Ms Muller

RESPONDENT:

Mr Shaw

FILE NUMBER:

ADC

3461

2007

APPEAL NUMBER:

2008

DATE DELIVERED:

2 October 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Adelaide

JUDGMENT OF:

May, Boland & Strickland JJ

HEARING DATE:

22 July 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

14 October 2008

LOWER COURT MNC:

[2008] FMCAfam 1115

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr McQuade

SOLICITOR FOR THE APPELLANT:

Hume Taylor & Co

COUNSEL FOR THE RESPONDENT:

Mr Berman

SOLICITOR FOR THE RESPONDENT:

Mark Forth & Associates

Orders

That the appeal is dismissed.
That each party pay their own costs of and incidental to the security application and the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Muller & Shaw 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 ADELAIDE

Appeal Number: SA 91 of 2008
File Number: ADC 3461 of 2007

Ms Muller

Appellant

And

Mr Shaw

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal dated 10 November 2008 Ms Muller seeks to appeal parenting orders made by Lindsay FM on 14 October 2008.
The parenting orders provide that the child, D, who was aged four at the date of the hearing, live with the father, who is to have sole parental responsibility for him. The father is Mr Shaw.
The parenting orders had the effect that the child, who had lived with the mother since his birth, moved to the primary care of the father. The orders further provide that the child spend time with the mother each alternate weekend, for one half of school holidays, and on other special occasions.
The Federal Magistrate also granted an injunction restraining the mother from causing or permitting the child to be in the presence of a Mr T unless she, or another responsible adult, is present.
The mother’s relationship with Mr T was a significant feature of the hearing. We will expand on the significance of Mr T to the proceedings later in these reasons. Suffice it to say at this point that it was the father’s contention that the mother was living with Mr T, and that as a result of his criminal record, and past behaviour, he was an unsuitable person to be involved in the care and upbringing of the child.
The focus of the appeal was directed to a single issue – whether the Federal Magistrate had erred in failing to consider the effect of the change of living arrangements on the child. Ancillary to that complaint was the assertion that Lindsay FM could not have determined the effect on the child of the change of living arrangements without an expert report. It was not in contention that no Family Report had been prepared, and that no request was made by either party’s counsel at the hearing for the matter to be adjourned to enable such a report to be undertaken. What was asserted by the mother’s counsel was that his Honour should have adjourned the proceedings, and ordered the preparation of an expert report.
The mother’s counsel at the hearing of the appeal confirmed that no stay of the Federal Magistrate’s orders had been obtained, and that in the event the appeal was allowed, he conceded that the matter would require rehearing.

Background

The Federal Magistrate’s reasons include only brief historical matters. We have therefore extracted from the appeal books other relevant information and indicated the source.
The mother was born in March 1983 and was aged 25 years at the date of the hearing.
The father was aged 33 years at the date of the hearing.
The parties entered into a relationship in about 2001 and commenced cohabitation in October 2003. They separated on 9 August 2004.
The child of the parties’ relationship, D, was born in February 2004 (father’s affidavit filed 7 December 2007).
After the parties’ separation in August 2004 until February 2005 the mother resided with her parents (mother’s affidavit filed 16 May 2006, paragraph 12).
In January 2005 the mother commenced a relationship with Mr R. That relationship broke down in 2006. The mother lived with Mr R from February 2005 until January 2006 (mother’s affidavit filed 16 May 2006, paragraph 12(b)).
Following the parties’ separation the father spent time with the child each Monday, Wednesday, Friday and Saturday for up to two hours at the maternal grandmother’s home (father’s affidavit filed 5 April 2006, paragraph 7).
In September 2004 the mother obtained a restraining order against the father. Following the obtaining of the restraining order the father spent time with the child on Thursdays, Fridays and Saturdays for two to three hours. The time was extended, and ultimately the parties agreed, in February 2005, that the father spend time with the child for a period of six hours each Saturday (mother’s affidavit filed 16 May 2006, paragraph 16).
The father asserted that shortly after February 2006 the mother commenced a de facto relationship with Mr T (father’s affidavit filed 5 April 2006, paragraph 19). The mother denied that she lived in a de facto relationship with Mr T.
In January 2006 Mr T’s child, N, died whilst in his care.
On 2 August 2007 His Honour Judge Prescott in the Youth Court of South Australia made a care and protection order in respect of Mr T’s three children, P, K and C and made provision for Mr T to have supervised access to the children at the discretion of the South Australian Minister for Families and Communities (Annexure “C” to the father’s affidavit filed 7 December 2007).
In or about March 2006 the father asserted that the mother moved with the child from A [a regional centre in South Australia] to W [another regional centre in South Australia] (father’s affidavit filed 5 April 2006, paragraph 34).
On 5 April 2006 the father commenced proceedings in the Family Court of Australia.
On 19 April 2006 Senior Registrar Kelly (as she then was) made orders for the father to have contact with the child and restrained the mother from leaving the child alone in the care of Mr T. Senior Registrar Kelly restrained the mother from moving the child’s place of residence from the W/A region.
On 7 June 2006 Senior Registrar Kelly ordered “until further order that the child live with the mother and have contact with the father on alternate weekends for one night and on other special occasions”. The Federal Magistrate in paragraph 7 of his reasons noted:
The injunctions relating to [Mr T] were confirmed and extended so that, in addition to not being permitted to leave him alone in the care of [Mr T], the mother was restrained from allowing [Mr T ] to reside in her home overnight at any time when the child was in her care.
Senior Registrar Kelly ordered that the mother provide a report from her treating psychiatrist, such report to be available prior to 28 July 2006.
No other step was taken in the proceedings, and they were transferred from the Family Court of Australia to the Federal Magistrates Court in June 2007.
The Federal Magistrate, at paragraph 13 of his reasons, noted that on 20 August 2007 he had fixed a short hearing for the purpose of dealing with:
… the father’s allegation that the mother was not complying with the injunctions relating to the child not being allowed to be alone with [Mr T] or him not staying overnight during any periods she exercised the care of the child. …
The Federal Magistrate noted the hearing was vacated and the matter listed for trial on 25 March 2008.
On 18 December 2007 Federal Magistrate Mead made a number of procedural orders. Ultimately the matter was heard by Federal Magistrate Lindsay on 25 March 2008.
At the conclusion of the hearing the Federal Magistrate made orders for the filing of written submissions. Written submissions were filed by the mother on 15 April 2008 and by the father on 6 May 2008. Further submissions in reply were filed by the mother on 16 May 2008. His Honour delivered his reasons and pronounced orders on 14 October 2008.

Grounds of appeal

The Notice of Appeal contained five grounds of appeal. However, as we earlier indicated, the single challenge agitated on the appeal was the asserted error by the Federal Magistrate in failing to consider the likely effect of orders which changed the child’s living arrangements that had been in place effectively the whole of his life. It was also submitted that the Federal Magistrate had erred in failing to adjourn the proceedings on 25 March 2008 to obtain a Family Report.

Appellate principles

This is an appeal against a discretionary judgment. The limits on appellate interference with such a judgment are well known. In Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 Stephen J said at 519:
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.
In CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828, Kirby J said at 230 – 231:
A number of general propositions may be stated:
1.        Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2.        Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
3.        An additional peculiarity of appeals within, and from, the Family Court is that, in respect of what in Australia are now called “parenting orders”, very vulnerable and significant interests are at stake. It is commonplace to say that, in all appeals, public and private costs and the stresses, delays and other burdens of litigation, are reasons for adding an element of self-restraint to those ordinarily proper to the discharge of appellate judicial functions. Retrials in civil cases following an appeal have been described as “an enormous evil”, to be avoided as far as possible. Whilst this rather emotional phrase may overstate the dangers, the public costs of litigation have lately come to be given more weight in such decisions. In family disputes, and particularly those relating to the welfare of children, there are special stresses. They tend to pull in opposite directions. On the one hand, it is highly undesirable that arrangements for the residence, education, health and familial relationships of a child should be needlessly disturbed by successive court orders. Such changes may add intolerably to the tensions which a child, fought over by members of the family, already feels. On the other hand, so important are such decisions for the life of the child and its relationships with the parents, siblings and other family members, that it is proper that the courts should take special pains, so far as they can, to avoid decisions impermissibly distorted by factual or legal error, by error of principle, by prejudice or by giving weight to irrelevant considerations.

Federal Magistrate’s reasons

We have already recorded the background material, particularly the procedural background, which appears in the Federal Magistrate’s reasons.
At paragraph 17 of his reasons the Federal Magistrate recorded that he had indicated at the commencement of the trial that he intended to apply s 69ZT(3)(a) of the Family Law Act1975 (Cth) (“the Act”) and (although clearly not intended to limit it to paragraph (a)) thus had regard to all of the provisions of the Evidence Act 1995 (Cth) (“Evidence Act”) referred to in s 69ZT(1) of the Act. These references are to provisions in Div 12A of Pt VII of the Act. Section 69ZT(1) excludes Divisions 3, 4 and 5 of Part 2.1 (other than ss 26, 30, 36 and 41), as well as Parts 2.2, 2.3 and 3.2 to 3.8 of the Evidence Act in child-related proceedings. Section 69ZT(3) enables the Court to apply some or all of the excluded provisions of the Evidence Act if the Court is satisfied that the circumstances are exceptional and the Court has taken into account: the importance of the evidence in the proceedings; the nature of the subject matter of the proceedings; the probative value of the evidence; and the power of the Court, if any, to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
At paragraph 18 of his reasons the Federal Magistrate explained:
We heard from a [Ms E], who was the Officer of Families SA who could speak to the material in the documents subpoenaed from that organisation. We also heard from [Mr T]. He had attended on subpoena issued at the request of the father. In the circumstances it seemed appropriate to allow both counsel the opportunity of cross-examining him and it was for that reason that the Court called him. In fact, Mr Bowler, for the mother, first sought an opportunity to ask questions of [Mr T] in a non-leading way as to the state of his relationship with the mother. It was appropriate that that evidence be elicited in that way. Following the giving of that evidence both counsel then had the opportunity to cross-examine him.
At paragraph 20 of his reasons the Federal Magistrate referred to the affidavit material filed by the mother being “scant”, and that although the material relied on by the father was more detailed, he recorded “the trial focused overwhelmingly on the single issue of the mother’s relationship with [Mr T]”.
Having set out the relevant statutory provisions and principles to be applied in determining a case under Part VII of the Act, the Federal Magistrate turned to deal with the evidence before him.
He recorded the father’s oral evidence that the mother had refused to bring the child to his residence during the afternoon on the child’s birthday, and the mother had explained her refusal by saying she was not prepared to do all of the travelling on that day.
The Federal Magistrate then recorded “[t]he child did, however, spend time with [Mr T’s] son at a supervised contact session at [A] on his birthday” (paragraph 31).
At paragraph 32 of his reasons the Federal Magistrate recorded his impression of the father, who he regarded as a truthful witness, and found he “was vitally concerned with the health and safety of his son”.
The Federal Magistrate then noted that the father had conceded that, following separation and until he formed the view the mother had entered into a relationship with Mr T, he was content for her to “exercise principal responsibility in relation to the child”. The Federal Magistrate explained the father’s position, at paragraph 33, as follows:
… His apprehensions about the mother entering a relationship with [Mr T] were intensified when, in January 2006, one of [Mr T’s] children was found deceased whilst in his care.
The Federal Magistrate noted the father’s concerns including:
·the father’s assertions about the mother’s psychiatric health;
·the child having suffered regularly from gastroenteritis, including hospitalisation on one occasion in W;
·the child reporting to the father that he had been hit with a stick by Mr T; and
·that on a changeover occasion in 2007 the mother presented at handover with large visible bruises on her arms and that the child informed him that “[Mr T] hit his mother” (paragraph 35).
At paragraph 38 of his reasons, the Federal Magistrate examined critically the father’s proposal that the child should live with him and spend time with the mother on weekends and the logical consequences of that proposal. The Federal Magistrate summarised his understanding of the father’s position at the conclusion of paragraph 38, saying:
… I really took him to be saying that he did not accept what the mother said or what [Mr T] said about their relationship and that he had abiding concerns about the presence of [Mr T] in the child’s life and that he wanted [sic] eliminated but that he did not want to prevent there being an opportunity for a proper relationship between the mother and the child.

At paragraph 40 of his reasons, the Federal Magistrate noted the father’s circumstances relevant to his proposal. The Federal Magistrate recorded the father boarded in his parents’ home, where the father said the child would have his own room. He also recorded the father’s evidence that there was a kindergarten around the corner from his parents’ home. The Federal Magistrate then said “[h]e did not give any other evidence and he was not challenged as to any other circumstances pertaining to his proposals for the day-to-day care of the child”. The Federal Magistrate concluded “[n]either of his parents gave evidence or even filed an affidavit but no point was taken in relation to that. I am assuming that the presence of the grandparents in the child’s life is not controversial”.
At paragraphs 42 to 46 of his reasons, the Federal Magistrate discussed evidence given by a case manager for Families SA, Ms E, concerning her involvement with Mr T and his children since August 2007.
The Federal Magistrate explained that the case manager (who he unhesitatingly accepted as a witness of truth) reported that at a case conference in A on 24 January 2008 Mr T had become very angry, and had thrown the table they were sitting at up in the air. The case manager reported feeling threatened and at risk from Mr T. Lindsay FM also recorded that Mr T had brought the child D along to the most recent access visit organised by Families SA for him to see his children.
Having recorded the case manager’s awareness of the injunctions restraining the mother from leaving the child alone with Mr T, and from Mr T spending overnight periods with her whilst the child was in her care, the case manager was reported as saying that during significant periods of the time she was dealing with Mr T he was living with the mother.
The Federal Magistrate concluded, at paragraph 45, “[t]here was no doubt in the [case manager’s] mind that up until that point [a few weeks before the trial] [Mr T] and the mother had been living together at [W]”.
The Federal Magistrate also set out a summary of Mr T’s evidence which included his assertion that he had separated from the mother several weeks prior to the trial because “she was sleeping around”.
The Federal Magistrate extensively discussed matters put to Mr T in cross-examination and noted his concessions including:
·that his daughter N had died whilst in his care in 2006;
·that the state of hygiene in his home at the date of N’s death was atrocious;
·that Families SA contended that N died as a result of neglect;
·he had admitted during the Families SA investigation that he had an anger problem, had never backed down from a fight and had a bad reputation in A on that account;
·he had been convicted in May 2006 of criminal offences and the court file record of his address was identical to that of the mother.
Mr T was noted as denying he had ever lived in a relationship with the mother. The Federal Magistrate, at paragraph 56, said of Mr T’s evidence:
I do not believe him. I do not believe him because I believe [Ms E] when she gave her evidence to me as to what the father [sic] had said to her and what the mother had said to her and because I formed the view that [Mr T] was lying to the Court in respect of every significant topic about which he was asked.
Ultimately, at paragraph 63, the Federal Magistrate recorded his finding that he was satisfied “at the conclusion of the evidence that throughout 2006 and 2007 [Mr T] and the mother flouted the order which required him not to spend overnight periods at her home when she was caring for the child”. He also rejected the mother’s evidence on that topic.
In dealing with the mother’s evidence the Federal Magistrate noted the inconsistency between her affidavit filed in May 2006 (where she deposed she had been diagnosed with depression at age 17 years, prescribed Tofanil and attended a psychiatrist), her affidavit filed in 2008 and oral evidence on that topic. The Federal Magistrate found the mother’s evidence completely unsatisfactory.
In dealing with the mother’s evidence about her relationship with Mr T the Federal Magistrate concluded, at paragraph 76:
… I do not accept her evidence as I do not accept [Mr T’s] evidence in relation to this topic. They both lied to me about that because they were both living at the [M Street] address, contrary to their denials.
Later, at paragraph 77, the Federal Magistrate said:
She was quite explicit in her evidence that she and [Mr T] had never lived together at any stage. I do not believe her. Her evidence was wholly unconvincing. I accept the evidence of [Ms E] as to this topic.
Further the Federal Magistrate noted at paragraph 91
Whatever the state of her relationship with [Mr T] [the mother] contended that [Mr T] presented no risk to the child or to anybody.
Significantly for the purposes of this appeal, the Federal Magistrate recorded at paragraph 92:
[The mother’s counsel] in his closing written submission emphasised that the child had been living with the mother throughout his life and that notwithstanding her re-location to [W] the child had continued to spend time with the father on a regular basis.
We will later in these reasons set out a number of findings of the Federal Magistrate which were not contested by the mother’s counsel on the appeal, and were accurately summarised in the mother’s written submissions on the appeal.
In dealing with the primary considerations, the Federal Magistrate noted the submissions of counsel for the father urging him to make a finding that the mother and Mr T had repeatedly lied about the nature of their relationship and in those circumstances that the Court could have no confidence that the child would not continue to be brought into the presence of Mr T who would pose a risk to the welfare of the child. The Federal Magistrate, however, did not make a finding of unacceptable risk but rather said at paragraph 105:
… I have no evidence that [Mr T] has behaved in such a way in the past. He is certainly not an appropriate role model for the child and it remains possible that the child would be at risk on account of his anger and propensity for violence but to some degree that risk must remain a speculative one.
Thereafter the Federal Magistrate, although not specifically identifying the various sub-sections of s 60CC(3), dealt with factors relevant to the additional considerations listed in s 60CC(3). The Federal Magistrate discussed the mother’s actions in moving to W and concluded that the mother’s attitude led him to view that if she was principally charged with the care of the child her attitude towards co-operating with the father would, at the conclusion of the hearing, diminish significantly.
At paragraph 108 of his reasons, the Federal Magistrate recorded the father’s concession that the arrangements he was proposing constituted a significant change in the child’s circumstances.
At paragraph 110 of his reasons, having referred to the paucity of evidence before him on topics other than Mr T or the mother’s health, the Federal Magistrate said:
… It may be that there are no issues of significance relating to the child’s daily care in the presence of either party or in relation to the contribution made by the father’s parents that either party wanted to agitate and I do not think that I can do other than to proceed upon the basis of making that assumption. That is that both of the parties can provide for the child’s physical needs. I have some reservations about the attentiveness of the mother in terms of the child’s ill health but I am not able to make any findings that the child’s health would be placed at risk were he to continue in her care.
After again dealing with the evidence of the mother’s health, the Federal Magistrate concluded that if the child lived with the father it was more likely that both parties would have accurate knowledge about the state of the child’s health and all other aspects of his welfare.
The Federal Magistrate discussed the father’s proposal that he should have an order for sole parental responsibility, and concluded it was not appropriate, or in the best interests of the child, for the parties to have equal shared parental responsibility.
At paragraphs 121 and 122 the Federal Magistrate summed up his overall findings and said:
121.The Court’s decision as to where the child should live is a decision that is made in circumstances where the Court does not have as much practical information about each household as is usually the case in contested proceedings. I have remarked upon this earlier in these Reasons. It is a function of the concentration of the parties upon the [Mr T] issue to the exclusion of most other issues. I find that it is as likely as not that the mother is still in the relationship with [Mr T] or, if she was not in a relationship with him at the time of trial, that it has resumed since or may resume in the future. I have concerns about the extent to which the child will provided [sic] with an inappropriate role model by [Mr T] if he remains a salient feature of the mother’s life and hence of the child’s life and I have residual concerns about whether [Mr T’s] anger management issues and violence will spill over into real risks for the child. I have far less confidence in the mother’s commitment to the child having a meaningful relationship with the father than is the case when I evaluate the father’s intentions to her in this regard. I recognise that the child has heretofore been experiencing his father as a person with subsidiary rather than principal responsibility for him but the evidence indicates that the child has established a good relationship with him and that he and his parents will provide an appropriate and safe environment for the child to live.
122.I have recognised the force in the criticism of the father’s position with respect to [Mr T] not following through to a logical conclusion the position he adopts about the risks presented to the child should the child spend time with the mother as distinct from live with the mother. There is something to be said for a risk to a child of the kind we are discussing being minimised if it is limited to alternate weekends and half school holidays rather than living with the mother on a full-time basis.

Discussion

The mother’s counsel, in both his written and oral submissions, most appropriately recorded a number of findings made by the Federal Magistrate. Those findings were not challenged on the appeal. It is useful for us to set out paragraph 13 of those submissions where the findings are summarised:
13. The learned Federal Magistrate made the following findings of fact:
1.The father was a truthful witness.
2.[Ms E] was a witness of truth.
3.[Mr T] was not a truthful witness.
4.The mother was not a witness of truth.
5.That the mother and [Mr T] had lived together in 2006, 2007 and 2008.
6.That the mother and [Mr T] were as likely as not to have been living together at the time of trial.
7.That the mother had shown a willingness to flout the injunctions that existed in relation to [Mr T] and will flout any order continuing the injunction whatever its terms.
8.That [Mr T] was not an appropriate role model for the child and it was a possibility that the child would be at risk on account of his anger and propensity to violence.
9.That each party was prepared to fulfil their responsibilities as a parent.
10.It was not in the best interests of [the child] for the parties to have equal shared parental responsibility.
11.That it was in the best interests of [the child] to live with his father.
12.That he had little confidence in the mother’s commitment to the child having a meaningful relationship with the father. That he accepted that the father was committed to the child having a meaningful relationship with the mother.
13.That [the child] had a good relationship with his father.
14.That the father and his parents would provide an appropriate and safe environment in which the child could live. [footnotes omitted]
The mother’s counsel submitted that, although the Federal Magistrate had turned to the relevant factors under s 60CC(3), he had not had regard to s 60CC(3)(d). That sub-section provides as follows:
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
At paragraph 22 of his submissions, the mother’s counsel said:
In light of the affidavit material before him and of the evidence heard at trial, it is difficult to see how the learned federal magistrate could have possibly fulfilled his obligations pursuant to Section 60CC(3)(d) in the absence of any family assessment or family report.
Thus the mother’s counsel submitted for the Federal Magistrate to properly exercise his discretion he should have adjourned the trial to await the preparation of a Family Report, and his failure to do so constituted error in the exercise of his discretion.
Counsel for the father, in his oral submissions, directed us to paragraph 108 of the Federal Magistrate’s reasons. We have earlier set out that paragraph but, for convenience, we will repeat it now:
The father had to concede that the arrangements he was proposing constituted a significant change in the child’s circumstances.
Having referred to the Federal Magistrate’s findings, at paragraph 111, where he said “[p]lacement of the child in the long-term with the father is more likely to place both parties in the position where they will have accurate knowledge about the state of health of the child, as well as in relation to all other aspects of his welfare”, counsel for the father submitted that the Federal Magistrate gave “clear” consideration to the likely effect of any change in the child’s circumstances. Thus, he submitted that the orders sought by the father, and ultimately made by the Federal Magistrate, were orders in the best interests of the child (father’s submissions, p 3, paragraph 9).
At paragraph 14 of his written submissions, counsel for the father submitted:
The learned Federal Magistrate clearly felt his obligations pursuant to s.60CC but in particular s.60CC(3)(d) in finding that in all the circumstances the mother was not able to adequately or properly care for the child whilst remaining in a relationship with [Mr T] and that the mother was not able to tell the truth about the existence of that relationship. (father’s submissions, p 4)
In his oral submissions, counsel for the father noted the difficult task the Federal Magistrate faced in this case. We agree.
The father’s counsel submitted the difficulty was created by the mother not being truthful. He said in these circumstances the usefulness of a Family Report would be questionable. He submitted that no difficulties had been raised on behalf of the mother about the father’s parenting capacity. This was to be compared and contrasted with the great concern about the mother and [Mr T], which had cut across all other issues. He disputed that the Federal Magistrate had not given proper consideration to the effect of the change, albeit conceding that the Federal Magistrate had done so “perhaps with some economy”.
The father’s counsel particularly directed our attention to paragraph 102 of the Federal Magistrate’s reasons, as well as paragraph 106. We consider those paragraphs of considerable relevance in this appeal. At paragraph 102 the Federal Magistrate said:
[The mother’s counsel] pointed to the likely effect of changes in the child’s circumstances in that the mother had been the primary person responsible for the child’s care since his birth. He said that the mother had demonstrated a willingness and ability to facilitate a close and continuous relationship between the child and the father. [The mother’s counsel] said that there was no evidence that the mother could not cater in a satisfactory way for the emotional and intellectual needs of the child. He was not able to point to any matters, however, that suggested an incapacity of that sort on the part of the father. [The mother’s counsel] gestured towards the existence of domestic violence restraining order for a period after the separation of the parties but, as indicated above, I was not able to make a finding as to whether that order was made after contested proceedings and neither was I able to make any finding that the father had behaved in a violent or abusive manner towards the mother at that time or at any other time. I would certainly need more than the mother’s contentions in that regard to make such a finding in the light of the very poor view I formed as to her credit-worthiness.
At paragraph 106 the Federal Magistrate said:
[The father’s legal representative] pointed to the extensive involvement of the father with the child in the period whilst the parties were together and then following separation and suggested, with which I could not disagree, that there was every reason to suspect that the child and the father had formed a close bond. It was not denied that the child had formed a bond with the mother.
Counsel for the father submitted that the Federal Magistrate had discharged his obligation to consider factors under s 60CC(3)(d). In dealing with the assertion of the mother’s counsel that the Federal Magistrate should not have disturbed the long-standing status quo of the child being in the primary care of the mother, the father’s counsel referred to the evidence of the case manager from Families SA. He described her evidence as “chilling” and emphasised the Federal Magistrate’s finding that the mother, based on her past conduct, was not likely to obey the injunction in relation to Mr T.
We consider the submissions of the father’s counsel to have significant weight.
While we were referred by the mother’s counsel to paragraphs 124 and 125 of the Full Court decision in McCall & Clark (2009) FLC 93-405, we do not consider in the very unusual circumstances of this case that the Federal Magistrate proceeding to hear and determine the case without the benefit of expert evidence constituted appealable error. In McCall & Clark the Full Court, in the course of discussing the first primary consideration under the Act (the benefit to the child of having a meaningful relationship with both of the child’s parents) in the context of a very young child in international relocation proceedings, said at paragraphs 124 and 125:
124.We have already highlighted the difficulties faced by the Federal Magistrate in determining the competing applications. The only witnesses were the mother and the father. Significantly, the Federal Magistrate did not have any expert evidence to assist him to determine the frequency and regularity which would be necessary for a child of this age, who has been in the exclusive care of his mother by reason of her actions since he was six months old, to establish a significant bond with his father. In particular, the Federal Magistrate had no expert evidence about stages of child development and attachment theory and some of the advantages to a child’s development of a meaningful relationship with both parents, and the disadvantages of such a relationship not being possible.
125.Although the parties did not call or seek to tender any evidence from an expert, the Federal Magistrate could have done so of his own volition (see s 69ZX(1)(d)). But in addition, s 69ZX(3) which is found in Division 12A (which division is concerned with the principles for conducting child related proceedings) provides as follows:
(3) The court may, in child‑related proceedings:
(a) receive into evidence the transcript of evidence in any other proceedings before:
(i) the court; or
(ii) another court; or
(iii) a tribunal;
and draw any conclusions of fact from that transcript that it thinks proper; and
(b) adopt any recommendation, finding, decision or judgment of any court, person or body of a kind mentioned in any of subparagraphs (a)(i) to (iii).
Note: This subsection may be particularly relevant for Aboriginal or Torres Strait Islander children.

There is no suggestion in this case that the provisions of s 69ZX(3) had any relevance. Rather, it is asserted that the Federal Magistrate should have pursuant to s 69ZX(1)(b) and (d) adjourned the proceedings and ordered a Family Report.
Section 69ZX(1) provides as follows:
(1) In giving effect to the principles in section 69ZN, the court may:
(a) give directions or make orders about the matters in relation to which the parties are to present evidence; and
(b) give directions or make orders about who is to give evidence in relation to each remaining issue; and
(c) give directions or make orders about how particular evidence is to be given; and
(d) if the court considers that expert evidence is required — give directions or make orders about:
(i) the matters in relation to which an expert is to provide evidence; and
(ii) the number of experts who may provide evidence in relation to a matter; and
(iii) how an expert is to provide the expert's evidence; and
(e) ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
In some cases the powers afforded by this section may be of crucial importance to ensure parenting proceedings are properly determined.
In this case the proceedings had been commenced by the father almost two years before the matter reached a final hearing. At trial both parties were legally represented. Neither party’s counsel sought an adjournment of the matter or the preparation of a Family Report. The mother’s counsel did not raise any controversy about the child’s relationship with the father or the father’s capacity to provide for the child’s physical, intellectual and emotional needs. Rather, the mother sought to maintain the “status quo”.
While further investigation of the mother’s mental health issues may have assisted the Federal Magistrate, particularly in light of her directly contradictory evidence about her diagnosis and medical treatment, ultimately it was not the determinative issue.
As we indicated earlier, we find merit in the submission made by the father’s counsel that the benefit of a Family Report in circumstances where the mother was found to have lied about her relationship with Mr T and had deliberately flouted the injunctive orders made earlier in the proceedings may have been of little utility. Conversely, a Family Report may have provided the Federal Magistrate with additional insight into the child’s relationship with the parties. However, we are not satisfied that the failure to adjourn the proceedings and obtain such a report demonstrated appealable error. There was no challenge to the father’s relationship with the child or his ability to physically care for him. Crucial to the Federal Magistrate’s decision was his finding that the father was the parent most likely to maintain the child’s relationship with both parents. Overall, we are satisfied that the orders made by the Federal Magistrate, being orders he found to be in the best interests of the child, were open to him to make in the reasonable exercise of his discretion.
Thus the appeal must be dismissed.

Costs

At the conclusion of the appeal we sought submissions from the parties in respect of costs of the appeal. Our attention was drawn to an earlier Full Court decision of Finn, Coleman and Strickland JJ of 5 May 2009 in which the father unsuccessfully sought an order that the mother pay security for his costs of the appeal. In those proceedings, on 5 May 2009, the Full Court reserved the costs of the security application to the appeal.
We were advised by the mother’s counsel that she was employed and earned approximately $19,000.00 per year and was not in receipt of legal aid.
We were also advised by the husband’s counsel that he was employed at a modest salary and also not in receipt of legal aid.
In support of an application that the mother pay the father’s costs, the father’s counsel submitted that, having regard to the fact that the appeal was agitated on a narrow issue and that it was fundamentally flawed, the mother should pay the father’s costs. We accept the mother was wholly unsuccessful in her appeal. Similarly, the father was wholly unsuccessful in relation to the security application.
In these circumstances, it would be open to us to make an order that the father pay the mother’s costs of and incidental to the security application, and that the mother pay the father’s costs of and incidental to the appeal.
Having carefully considered the modest circumstances of each party we reach the conclusion that the appropriate course is to make orders that each party pay their own costs of and incidental to the security application and the appeal.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 2 October 2009