Mulvany v Lane

[2009] FamCAFC 76

FAMILY COURT OF AUSTRALIA

MULVANY & LANE [2009] FamCAFC  76

FAMILY LAW – APPEAL – RELOCATION – From decision of Federal Magistrate – Where the mother had been permitted to relocate with the child to Hong Kong

FAMILY LAW – APPEAL – CHILDREN – Where DNA tests conducted shortly before trial established “the father” was not the biological father of the child – Where the Federal Magistrate treated “the father” as a parent in his analysis of s 60CC(3) additional considerations but not s 60CC(2) primary considerations

FAMILY LAW – APPEAL – CHILDREN – s 60CC(2)(a) – “the benefit to the child of having a meaningful relationship with both parents” – Where only one party to the proceedings was a “parent” – Whether the trial Judge erred in the importance given to the child having a meaningful relationship with the mother

FAMILY LAW – APPEAL – ORDERS – Orders of the Federal Magistrate discharged – order for rehearing – Earlier interim orders revived

FAMILY LAW – COSTS – Appeal allowed on question of law – Costs certificates granted for the appeal and rehearing

Daniels & Jennings [2008] FamCAFC 94
G and C and Independent Children’s Lawyer [2006] FamCA 994
Harris & Smith [2008] FamCAFC 36
Marsden and Winch (No. 3) [2007] FamCA 1364
Mazorski v Albright (2007) 37 Fam LR 518
Moose & Moose (2008) FLC 93-375
R & R [2002] FamCA 323

Family Law Act 1975 (Cth) ss 60CC(2), 60CC(3), 61DA
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT: Mr Mulvany

RESPONDENT: Ms Lane

FILE NUMBER: BRC 805 of 2007

APPEAL NUMBER: NA 63 of 2008

DATE DELIVERED: 12 May 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Finn, May and Thackray JJ

HEARING DATE: 14 November 2008

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 22 May 2008

LOWER COURT MNC: [2008] FMCAfam 473

REPRESENTATION

COUNSEL FOR THE APPELLANT: Dr M W Sayers

SOLICITOR FOR THE APPELLANT: Wiltshire Lawyers

COUNSEL FOR THE RESPONDENT: Ms J D Hogan

SOLICITOR FOR THE RESPONDENT: Barry & Nilsson Lawyers

Orders

1. That the appeal against the orders made by Federal Magistrate Howard on 18 June 2008 be allowed. 

2. That the orders made by Federal Magistrate Howard on 18 June 2008 be set aside.

3. That the father’s Amended Application filed 17 March 2008 and the mother’s Further Amended Response filed 31 July 2007 be listed for rehearing before a Federal Magistrate other than Howard FM as soon as conveniently practicable.

4. That the Court grants to the father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the father in respect of the costs incurred by him in relation to the appeal against the orders made on 18 June 2008.

5. That the Court grants to the mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the mother in respect of the costs incurred by her in relation to the appeal against the orders made on 18 June 2008.

6. That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing referred to in paragraph 3 of these orders.

7. That there be no orders as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Mulvany & Lane 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 BRISBANE

Appeal Number: NA 63  of 2008
File Number: BRC 805  of 2007

MR MULVANY

Appellant

And

MS LANE

Respondent

REASONS FOR JUDGMENT

Finn J

1. The appellant in this case (who for convenience can be referred to as “the father”) appeals against parenting orders made by Howard FM on 18 June 2008 which permitted the respondent (“the mother”) to take a then five-year old child, who had been born during the course of the parties’ marriage, to live with her in Hong Kong.

2. It had emerged a few months prior to the proceedings before his Honour that the father was not the biological father of the child.  The biological father was apparently unaware of the existence of the child.

3. His Honour found that although the father was not “a parent” of the child as “that term is defined or used” in the Family Law Act 1975 (Cth) (“the Act”), he had standing under s 65C(c) of the Act as “any other person concerned with the care, welfare or development” of a child, to bring his application that the child remain living in Australia with him. That the father had standing on that basis would seem undoubtedly to be correct.

4. His Honour’s reasons for determining that the child should live with the mother in Hong Kong (but spend time with the father in Australia on an agreed or defined basis) are explained in detail in the joint judgment of May and Thackray JJ.  I agree with their Honour’s conclusion that the appeal must be allowed, the orders set aside, and the parties’ cross-applications for parenting orders remitted for re-hearing.  While I am in general agreement with their Honour’s reasoning, I wish to add the following observations of my own.

5. I am prepared to accept (at least as presently advised) that his Honour was correct in concluding that the father was not a “parent” as that term is used in Part VII of the Act.

6. Having reached that conclusion, his Honour was not prepared to consider or treat the father as “a parent” for the purposes of s 60CC(2) (primary considerations in determining the child’s best interests) or of s 61DA (presumption of equal shared parental responsibility). Yet he was prepared to consider or treat the father as a parent for the purposes of s 60CC(3) (additional considerations in determining the child’s best interests), saying in this regard:

   Because of the nature of the relationship between the [father] and the child I consider it appropriate in the special circumstances of this case to consider the relevant subsections within s.60CC(3).

7. Nowhere does his Honour explain why he adopted this apparently inconsistent approach to the father’s position under the various provisions of the legislation which he applied in determining this case.  In my view this is a significant flaw in his Honour’s reasoning.

8. His Honour’s approach is particularly difficult to understand given that various paragraphs of s 60CC(3) do in fact refer to other persons (that is, persons other than a parent). Thus the father’s position as a person other than a parent could have been considered under s 60CC(3)(b) (“nature of relationship”), s 60CC(3)(d) (“likely effect… of any separation from…”), and s 60CC(3)(f) (“capacity…to provide for the needs” of the child) as well as under s 60CC(3)(m) (“any other fact or circumstance”).

9. Indeed it must be acknowledged that his Honour considered the father’s position under each of those paragraphs, and moreover made favourable findings in the father’s favour. Nevertheless, his Honour ultimately determined that the child should be permitted to live with the mother in Hong Kong. It might thus be argued that had his Honour adopted an approach to his application of s 60CC(3) consistent with his approach under other provisions (that is, by treating the father as a person other than a parent), his ultimate decision would have been no different.

10. However, this argument overlooks what in my view is another significant flaw in his Honour’s reasoning, and that is, his approach to, and application of, s 60CC(2)(a). That paragraph provides that a primary consideration in determining what is in a child’s best interests is “the benefit to the child of having a meaningful relationship with both parents”.

11. His Honour determined (in paragraphs 20 and 21 of his reasons) that as the mother was the only parent “who is a party to the proceedings”, it would follow that the only primary consideration relevant in this case is the benefit of the child having a meaningful relationship with the mother.  His Honour then went on to determine (in paragraphs 31-33 of his reasons) that the mother could only properly discharge her obligations as a parent if she was living in a country where she was happy and well settled, and that this could only be in Hong Kong.  Therefore for the child to have a meaningful relationship with the mother, he would have to live with her in Hong Kong.

12. In my opinion, it was not open to his Honour to interpret s 60CC(2)(a) in the way in which he did, that is, in effect to hold that where a child only has one parent participating in the parenting proceedings, it will be a primary consideration in determining the child’s best interests, that the child have a meaningful relationship with that parent. The legislation does not say this. Indeed it could well be asked why, if his Honour was prepared to place an interpretation on s 60CC(2)(a) other than an interpretation clear on its plain words, did he not interpret the expression “parents” to include the father in this case?

13. Given the weight which, in determining this case, his Honour then attached to what I consider to have been an erroneous interpretation of s 60CC(2)(a), I have concluded that this Court should interfere with that determination.

14. With that having been said, I acknowledge the difficult task which faced his Honour and which will face the next Judge or Federal Magistrate who has to determine this case.

15. It is indeed unfortunate that given the now very detailed provisions of Part VII and the acknowledgement in that Part of the important roles that persons who are not natural parents of a child can have in a child’s life (see, for example, s 60B(2)(b)), that the legislation does not give some clearer indication of the weight to be attached to the child’s relationship with a person other than his or her parent, compared with the child’s relationship with the natural parent in the determination of proceedings between a parent and a person other than a parent. 

16. As the legislation currently stands, and assuming that it is correct that “parent” means only a natural or adoptive parent, it would seem that in a case such as this, the court can only reach its determination in parenting proceedings on an application of s 60CC(2)(b) (protection from harm) and of the additional matters in s 60CC(3) so far as they expressly or impliedly refer to a person other than a parent.

17. I also agree with May J and Thackray J that there should be no order for costs in relation to the appeal and that costs certificates should be granted in respect of the appeal and the re-hearing.

May and Thackray JJ

1. This is an appeal by Mr Mulvany (“the father”) against orders made by Federal Magistrate Howard in proceedings between the father and Ms Lane (“the mother”).

2. The proceedings concerned S Mulvany, who was five years old when the orders were made in June 2008.  The father understood he was S’s biological father when he commenced proceedings; however, DNA tests subsequently proved he was misinformed.   

3. The effect of his Honour’s orders was to allow the mother to take S to live in Hong Kong. The orders made provision for the father to spend time with S during school holidays and to visit him during school terms.  The existing equal shared care regime was to continue pending S’s departure. 

Background

1. The father was 53 years of age at the date of judgment.  He is a real estate agent, working and living on the Gold Coast, Queensland.

2. The mother was 46 years of age at the date of judgment.  She was born and grew up in Hong Kong but came to the Gold Coast to study in 1997. 

3. The mother and father commenced cohabitation in 1997 and were married in 1998.  S was born in November 2002.

4. The mother and father separated in November 2006, when the mother went to Hong Kong with S for what the father understood was a short holiday.  The mother did not return to Australia at the agreed time and, when she did return, did not inform the father.  She instead led him to believe she had taken S to North America. 

5. The father commenced proceedings in the Federal Magistrates Court in January 2007.  An interim order was made in February 2007 for S to spend equal time with the father and the mother. 

6. In April 2007, Ms B (“the Report Writer”) interviewed the family, prior to publishing a report in June 2007. 

7. In December 2007 the mother requested the father to undergo DNA testing to confirm her suspicion he was not S’s father.  The tests showed she was right.   

8. Following publication of the DNA results, the Report Writer interviewed the family again.  She published a supplementary report in March 2008.

9. The matter proceeded to trial on 17 and 18 March 2008.  Following the delivery of judgment the parties were directed to file a Minute reflecting the reasons.  Final orders were made on 18 June 2008.

The judgment of the Federal Magistrate

1. Having set out background information, the learned Federal Magistrate turned immediately to consider the father’s standing to bring his application. He noted that s 65C of the Family Law Act 1975 (Cth) (“the Act”) provides that any person “concerned with the care, welfare or development of the child” may apply for a parenting order.

2. In considering whether or not the father was such a person, the Federal Magistrate found that S did not know the father was not his biological father and considered him in all respects to be his father.  He further recorded that the father considered he was S’s father and “acted accordingly by loving, nurturing and caring for the child” and continued to do so following publication of the DNA results.  His Honour found the father had standing to apply for parenting orders. 

3. His Honour then cited a passage from Dr Anthony Dickey’s text, Family Law (5^th edition at page 55), to the effect that the term “parent” refers to a biological parent or an adoptive parent but “does not include a person who simply stands in loco parentis to a child, even if he or she has acquired parental responsibilities for the child under the Family Law Act”.

4. His Honour accordingly found the father was not a “parent” for the purposes of the Act. He went on to accept the submission of counsel for the mother that the presumption of equal shared parental responsibility in s 61DA did not apply, as that section relates only to “parents”.

5. His Honour then recorded that “this case is to be determined primarily by reference to the best interests principle” and went on to recite s 60CA, which makes the child’s best interests the “paramount consideration”.

6. His Honour next recited ss 60CC(1) and 60CC(2) which provide: 

   60CC(1)[Determining child’s best interests] Subject to subsection  (5), in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

   60CC(2) [Primary considerations]  The primary considerations are:

   (a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

7. His Honour then recorded his acceptance of a submission made on behalf of the mother which was in these terms:

   However, it is further submitted that, in determining such orders, the Court would not fail to recognise that parliament specifically has not included in s.60CC(2)(a) of the primary considerations to which the Court must have regard, the benefit to the child of having a meaningful relationship with persons other than the child’s parents – parliament’s intention, it is submitted, remains to distinguish between parents (in respect of whom a meaningful relationship is accorded a status of  a primary consideration) and persons other than parents (within which category the applicant in the present case falls).

8. His Honour went on to say:

   20.In this case the only “parent” who is a party to the proceedings is the mother … As noted earlier, the [father] is not a “parent” within the meaning of that term as used in the Act.

   21.It follows that the only “relevant” primary consideration is the benefit to the child of having a meaningful relationship with the mother.

9. His Honour then recorded the mother’s evidence that S’s biological father was unaware of S’s existence and was not “contactable”.

10. The next portion of his Honour’s judgment, commencing at paragraph 23, was preceded by a heading, posed as a question, in the following terms:

    WHAT OUTCOME WILL BEST ENSURE THAT [S] HAS A MEANINGFUL RELATIONSHIP WITH HIS MOTHER?

11. Having recorded the mother’s evidence that she would return to live in Hong Kong irrespective of the outcome, his Honour found the mother was “desperately unhappy living in Australia”.  He found the mother’s main reasons for wanting to return to Hong Kong were her social isolation in Australia and a strong desire to live with or near her family. 

12. His Honour nevertheless found the mother had not yet truly made up her mind whether she would leave Australia without S.  In this regard he referred to a statement the mother made to the Report Writer indicating she would remain if S were required to remain in Australia.

13. His Honour then recorded a summary of the reasons provided by the mother for wishing to return to Hong Kong.  He accepted most but not all of her evidence.  His Honour then made the following crucial findings:

    31.I find that in order for the mother to fully and properly discharge her obligations as a parent she will need to be living in a country where she is happy and well settled.

    32.I find that the mother is only going to be happy and well settled if she is living in Hong Kong.  The mother has no family in Australia, apart from [S].  The mother has not formed any close friendships in Australia.

    33.For the child to have a meaningful relationship with the mother I consider that the child will have to live with the mother in Hong Kong.

14. Under the next heading “SECTION 60CC(3) THE ADDITIONAL CONSIDERATIONS”, his Honour reviewed “relevant subsections from s.60CC(3)”. His Honour observed that many of those subsections refer only to “parents”, but said that “because of the nature of the relationship between the [father] and the child I consider it appropriate in the special circumstances of this case to consider the relevant subsections within s.60CC(3)”.

15. In dealing with s 60CC(3)(b) (the nature of the child’s relationship with parents and others) his Honour found that S “has a close and loving relationship” with both the mother and the father.

16. In dealing with s 60CC(3)(c) (the willingness and ability of each of the parents to facilitate the relationship between the child and the other parent) his Honour noted that whilst the father was not a “parent”, nevertheless “the mother recognises the reality of the situation”.  His Honour said “[S] considers that the [father] is his father and I am satisfied that the mother is willing to promote a close ongoing lifelong relationship between [S] and the [father]”.

17. Having noted financial arrangements proposed to facilitate contact visits, his Honour went on to consider s 60CC(3)(d) which deals with the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or other persons with whom the child has been living.  His Honour dealt with that subsection in these two paragraphs:

    39.If the child moves to live in Hong Kong with the mother, then clearly, there will be periods of separation from the [father].

    40.This will be alleviated by the fact that the child will come to Australia on three occasions each year (during school holidays).  Furthermore, the [father] will visit Hong Kong at least three times per year.  These six trips will be funded from the said trust fund.  If the [father] chooses to pay for further trips to Hong Kong each year then he will be able to see the child more often.

1. Having dealt briefly with ss 60CC(3)(e), (f) and (g), his Honour turned to s 60CC(3)(i), which relates to the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents.  In doing so, his Honour repeated that although the father was not a “parent” it was nevertheless appropriate for him to refer to this subparagraph.  He found the father had “conducted himself at all times as would a responsible and loving parent”. 

2. In dealing with s 60CC(3)(m) (such other facts or circumstances the Court thinks relevant), his Honour found the mother was:

   …to be commended for recognising the importance to the child of the child maintaining a close and loving relationship with the [father].  The mother has accepted this even though the paternity test showed that the [father] is not the child’s biological father.

3. His Honour made no reference to the mother’s conduct at the time of separation when she retained S in Hong Kong without the father’s consent and then misled him concerning S’s whereabouts.  His Honour did, however, make mention of the mother’s willingness to establish a trust fund, with her family’s assistance, to facilitate contact visits.  He also foreshadowed his intention to direct the mother to obtain “mirror orders” in Hong Kong.

4. His Honour then endorsed the following opinion of the Report Writer:

   Although on the face of it, [S]’s situation at the moment is untenable, it seems to me that if the dispute between the parents is handled creatively, he is poised to have a wonderful life with cross‑cultural experiences and should become a true ‘child of the world’ with a sense of belonging in two countries and at least two households.

5. His Honour next went on to cite the following passage from the Report Writer’s report: 

   …Should the parents both maintain their current official stances then there are many possibilities.  It is my view that whatever happens, [S] should continue to Prep at [T] College – at least until September 2008, which is reportedly the start of the Hong Kong school year.

   ·One option, considering the mother’s offer of three return trips to Australia from Hong Kong each year for [S] and three return trips each year to Hong Kong for the father as well as accommodation for the father in Hong Kong, is for [S] to go to live with his mother in Hong Kong and for the father to take the mother up on her offer for the visits to Australia for [S] – approximately 47‑49 days each year during Hong Kong school holidays – as well as the offer to see [S] in Hong Kong on a regular basis and use the accommodation pledged by her family.  If this option were chosen it would perhaps be possible for the father to spend up to three or four months living in Hong Kong in three segments, during which [S] could live with him, attend school and his other activities and spend time with his mother say, every second weekend for two days and two nights.  (This would perhaps depend on the father being creative with his business and running it from Hong Kong for part of the year with the assistance of a partner or employee.)

6. His Honour then went on to say:

   50.For the reasons that I have stated earlier herein I take the view that the option which is in [S]’s best interests is for [S] to return with his mother to live in Hong Kong.  Accordingly some appropriate variant of the first option noted by [the Report Writer] in the above quoted passage must be formulated.

7. His Honour accepted the recommendation of the Report Writer that [S] needed to be told “sooner rather than later” about his paternity.  He determined that [S] should be told about his parentage at least three months before the move to Hong Kong.  He also recorded his intention that [S] should remain in Australia in the week-about care arrangement until September 2008. 

8. His Honour then said [underlining in the original]:

   56.It is apparent from the report of the [Report Writer] that the relationship between the [father] and the child is a very close and loving one.  I have formed the view that the shared care arrangement should continue if the [father] decides to and is able to live permanently in Hong Kong. 

9. His Honour then alluded to the possibility of the father taking up residence in Hong Kong and noted the chances of this occurring might be increased after the “mirror orders” were made.

10. His Honour then turned to property settlement issues.  We need not record his findings since the father’s appeal against the property orders was resolved by consent.  

The Grounds of Appeal

1. The father ultimately relied upon the following grounds of Appeal:

   1.        The trial judge failed to give any or any adequate reasons for:

   a.        [Abandoned]

   b.        [Abandoned]

   c.        [Abandoned]

   d.Finding that in determining the child’s best interests the only parent child relationship that regard ought be had to was the relationship between the Respondent and the child;

   e.Not considering the competing proposals of the parties for the care and development of the child and which proposal best served the best interests of the child;

   f.         [Abandoned]

   g.Not considering the conduct of the Respondent, and in particular her abduction of the child and her motives for seeking parentage testing, in determining the best interests of the child.

   2.The trial judge was wrong in law in finding that the Appellant was not a “parent” as that term in defined and or used in the Family Law Act 1975.

   3.The trial judge was wrong in law in finding that in determining the child’s best interests the only parent/child relationship that regard ought be had to was the relationship between the Respondent and the child.

   4.        [Abandoned]

2. Although Ground 2 was never formally abandoned, counsel for the father conceded before us that the learned Federal Magistrate had not erred in finding the father was not a “parent” within the meaning of the Act.

Grounds 1(d), 1(e) and 3

1. These three grounds were properly treated by counsel for the father in his written submissions as being connected.  We propose to discuss them together.

Father’s submissions

1. The gravamen of the father’s case was contained in paragraph 5 of his counsel’s Amended Summary of Argument, which we propose to repeat:

   5.At paragraphs 19-21 and 31-33 of the reasons for judgment…, the learned Federal Magistrate identifies that the only relevant primary consideration is the benefit to the child of having a meaningful relationship with the Respondent Mother.  The Appellant does not cavil with that proposition.  However, it is submitted that where the learned Federal Magistrate then fell into error was the subsequent reasoning that this was, effectively, a consideration which trumped or prevailed over all other additional considerations including the child’s relationship with the Appellant Father (who both throughout the proceedings and in the reasons was referred to as the father of the child).  That the learned Federal Magistrate did indeed proceed on this basis is manifest on the face of the reasons generally and, in particular, by the inadequate treatment of the father/child relationship at paras. 11-12, 34, 36, 42, 44…

2. Counsel for the father went on to note portions of the evidence of the Report Writer.  The passages he highlighted referred to the close relationship between S and the father and the opinion of the Report Writer that “staying in Australia – at the Gold Coast – will afford [S] the best opportunity to maintain his relationships with both parents at a meaningful level – provided the mother chooses to also stay”.  Counsel nevertheless fairly conceded that the Report Writer had elected not to make any recommendation.

3. Counsel for the father submitted that in light of the expert evidence and the findings concerning the close relationship between S and the father:

   7.… it was incumbent on the learned Federal Magistrate to explain why the significance to be attached to the relevant statutory primary consideration pursuant to s.60CC(2) outweighed the relevant additional considerations pursuant to s.60CC(3). Nowhere in the reasons is such an explanation attempted by the learned Federal Magistrate.

   8.It is submitted that the likely explanation in the learned Federal Magistrate’s mind for why the additional considerations do not outweigh the primary consideration (and one which arises by necessary implication from the learned Federal Magistrate’s chain of reasoning) is that the primary consideration is exactly that: primary and hence trumps the additional considerations.  To the extent to which this honourable Court determines that this is the explanation that emerges from assaying the learned Federal Magistrate’s reasons, then it is submitted that such an approach is wrong at law.

   9.The relevant error of law is that s.60CC(1) imposes an obligation on the judicial officer to consider both the primary and additional considerations and imposes that obligation without differentiation.  Whilst the reasons for judgment do comply with s.60CC(1), the reasons do not identify why the primary consideration outweighed the additional considerations save that, at paras 23-33 …the question is posed: “What Outcome Will Best Ensure That [S] Has A Meaningful Relationship With His Mother?”.

   10.Hence the submission that if an explanation is to be extracted from the reasons for judgement it can only reasonably be that the learned Federal Magistrate, having correctly identified the relevant primary consideration, then incorrectly proceeded as if the case was to be determined simply by reference to that primary consideration.

   …

   11.In this regard, it is noted that the word “primary” is not the subject of definition in the Act and, in its ordinary use means holding or sharing the first place in time or importance, initial or original in the order of either precedence or phenomena. Thus the word “primary” is capable, in certain circumstances, of bearing the meaning of a trump although the appropriateness of that interpretation in the context of s.60CC is diminished by the Parliament having eschewed the word “secondary” in favour of “additional”.

   12.It is further noted that if the learned Federal Magistrate’s approach is correct then it creates a lacuna in the law whereby parties other than parents might ever hope to successfully apply for a child to live with them.  This is because, under the approach adopted here by the learned Federal Magistrate, it seems that the only question to ask when a parent and non-parent each apply for a child to live with them, is to identify which outcome will best ensure that the child has a meaningful relationship with the parent.

   13.To construct the question thus and to not balance it by showing why and how the judicial officer considered the primary consideration outweighed the additional considerations is to depart from the obligation to follow the legislative pathway in determining parenting applications. To both pose the question thus and not to address the question of why it outweighs other consideration is to risk positively forcing a result in favour of only those options that favour the parent over the non-parent. This would risk rendering nugatory the full range of intention expressed in s.60B(2)(b) as one of the objects to this part of the Act.

4. In his oral argument, counsel for the father submitted it was the question “What outcome will best ensure that [S] has a meaningful relationship with his mother?” which provided an insight into his Honour’s chain of reasoning and identified the shortcoming in his approach. Counsel conceded there was nothing wrong with the question itself, but that it was the only question that his Honour had asked himself. It was submitted that having looked at this primary consideration, his Honour proceeded as if that were the only consideration. By doing so, s 60CC(3) had been rendered “nugatory”.

5. Counsel for the father acknowledged the Federal Magistrate did not expressly say that “primary” means “most important” or “only” or “outweighs all others”, but submitted his Honour effectively did proceed on this basis by asking the question he did.  It was further submitted no attempt was made by his Honour to demonstrate how the one primary consideration taken into account had been weighed against the additional considerations. 

6. In support of this proposition, counsel for the father referred to Harris & Smith [2008] FamCAFC 36 at [39] where Finn J said:

   Moreover, even if his Honour was entitled to place some weight on some of the evidence which was before him which might establish risk to the child in living with the father, it was also necessary for his Honour to balance that evidence against the evidence, apparently uncontested, of the long‑standing arrangement whereby the father had been the child’s primary carer.

7. Counsel for the father also referred to Daniels & Jennings [2008] FamCAFC 94 at [19], where Warnick J found that a Federal Magistrate erred by posing a question which on its face “did not expressly follow the approach mandated by the Act …” Counsel submitted what had occurred in Daniels & Jennings was a cogent parallel to the present case.  He argued that the question posed by his Honour constituted “a seed from which grows a tree”, which explained why the additional considerations had not outweighed the primary consideration. 

8. Counsel for the father submitted that when his Honour said (in paragraph 50) that “for the reasons that I have stated earlier” it was best for S to live in Hong Kong, he was referring back to paragraph 33 where he had already found that for S to have a “meaningful relationship” with the mother he would have to live with her in Hong Kong.

Mother’s submissions

1. For reasons we will discuss later, counsel for the mother had responded in her written Outline of Submissions to the father’s initial written submissions, which bore little resemblance to those ultimately relied upon.  Her reply to the main thrust of the father’s case was therefore primarily delivered orally.

2. Counsel for the mother submitted that the Federal Magistrate had not determined the dispute by reference to the finding that the father was not a “parent” but rather had:

   correctly appreciated the distinction made by Parliament in restricting the primary consideration outlined in s 60CC(2)(a)(i) [sic] to persons falling within the definition of the term “parent”.

3. She further submitted that the Federal Magistrate had clearly and correctly identified that the case was to be “determined primarily by reference to the best interest principle” and had correctly evaluated the competing proposals and considered the relevant s 60CC factors. 

4. In dealing with the challenge to the adequacy of his Honour’s reasons, counsel for the mother submitted it was possible to discern the path of reasoning; that the Federal Magistrate had considered the relevant factors and that the appellate court should avoid an overly critical analysis of his reasons, given it was clear he had considered and evaluated all of the relevant evidence and considered the child’s welfare as the paramount consideration.

5. Counsel for the mother submitted that in asserting one consideration had “trumped” all of the others, counsel for the father had read into the judgment something which could not be found there.  When it was put to counsel from the Bench that paragraph 50 of his Honour’s reasons must be seen as related back to paragraphs 32 and 33, counsel submitted that his Honour’s decision rested on all his findings and that it was noteworthy that paragraph 50 came only after his Honour had set out his findings in relation to the “additional considerations”. 

6. In relation to the assertion that his Honour had regard only to the relationship between the mother and the child, counsel for the mother referred to paragraphs 12, 36, 37 and 51 of the reasons, where his Honour clearly made findings in relation to the nature of the relationship between the father and the child.  When it was put from the Bench that his Honour had nevertheless failed to make any findings concerning the effect on the child of separation from the father, counsel for the mother acknowledged she was unable to take us to any part of his Honour’s judgment where this had been dealt with, but submitted we could infer that his Honour had taken this issue into account.

7. In dealing with the complaint concerning the posing of the question “What outcome will best ensure that S has a meaningful relationship with his mother?”, counsel for the mother noted that the next heading in the judgment, namely “Section 60CC(3) the additional considerations”, was also included in bold type and submitted it would not be appropriate to read the headings into the body of the judgment.   

Discussion

1. We find ourselves in substantial agreement with the submissions made on behalf of the father. Whilst we accept the learned Federal Magistrate was right to conclude the father was not a “parent” within the meaning of the Act, we consider he erred in the way he allowed that conclusion to affect the process of reasoning by which he reached his decision.

2. It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered.  Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant).  However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.   

3. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case.  Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance. This is no doubt why Parliament has included the catchall consideration in s 60CC(3)(m), namely “any other fact or circumstance that the court thinks is relevant”.  By this device, judicial officers may consider any matter which (within the reasonable range of discretion) could touch on the child’s best interests.

4. In our view, his Honour was quite right to consider and make findings in relation to all of the relevant “additional considerations” in s 60CC(3), even though he acknowledged some had no application to the father because they relate only to a “parent”. However, for the sake of consistency it seems to us his Honour should have adopted the same approach when discussing s 60CC(2)(a). What occurred instead is that the father was treated as a “parent” for some purposes but not others.

5. If the father had adopted S, his Honour would have been obliged to consider the benefit to S of having a meaningful relationship with him.  If the father had been the biological father, but never lived with S, his Honour would still have been obliged to consider the benefit to S of having a meaningful relationship with him.  Why should a different approach be taken because it was discovered that the boy was the product of an extramarital liaison? 

6. His Honour found the answer to this question in his acceptance of the submission made by counsel for the mother, which we propose repeating:

   … the Court would not fail to recognise that parliament specifically has not included in s.60CC(2)(a) of the primary considerations to which the Court must have regard, the benefit to the child of having a meaningful relationship with persons other than the child’s parents – parliament’s intention, it is submitted, remains to distinguish between parents (in respect of whom a meaningful relationship is accorded a status of a primary consideration) and persons other than parents (within which category the applicant in the present case falls).

7. Whilst we accept, as a matter of statutory interpretation, that s 60CC(2)(a) had no application to the father, we are not convinced Parliament ever turned its mind to whether husbands in his position should have any different “status” for the purposes of Part VII of the Act. It should be remembered that the law has always been quite content to presume, absent proof to the contrary, that every child born to a married woman is the child of the man to whom she is married - even if the couple are not living together. (See now ss 69P(1) and 69U(1).)

1. Such discussion, however, is ultimately unhelpful. It diverts attention away from the central enquiry, which is to determine the outcome that will be best for the child. Instead, it focuses attention on semantic issues about whether relevant matters should be discussed by reference to one s 60CC factor instead of another. In our view, provided his Honour gave due weight to all relevant factors, it would matter not whether he considered the child’s very important relationship with the father by reference to s 60CC(2)(a) or by reference to one of the additional considerations.

2. For reasons we will explain, it appears his Honour treated the one relevant “primary consideration” to be the decisive factor.  He did not expressly indicate whether that factor was determinative because it was a “primary consideration” or because it was the factor of most significance.  If it was the latter, we consider his Honour erred in failing to provide adequate reasons, as his judgment does not explain how he weighed that one relevant primary consideration against the additional considerations. 

3. If it was the former, then his Honour erred in law.  In this regard we concur with the observations of Warnick and Thackray JJ in Marsden and Winch (No. 3) [2007] FamCA 1364 concerning the relationship between the primary and additional considerations in s 60CC:

   77.The present case is not an appropriate vehicle in which to undertake a detailed analysis of the implications of the legislation prescribing certain matters as “primary” considerations.  It is sufficient to say it is palpably clear that whilst the “primary” considerations should be accorded particular importance in determining what order will best promote the interests of the child, they cannot determine the outcome in every case.  Not only must the “additional” considerations be taken into account, but the two “primary” considerations themselves may tend in different directions.  That is to say, whilst there may be great benefit attached to a particular child having a meaningful relationship with both parents, that benefit may be outweighed by the need to protect that particular child from physical or psychological harm associated with maintaining such a relationship.

   78.It follows that we reject the premise inherent in the husband’s submission that his Honour was obliged to indicate “what factor or factors combined to displace the primary consideration contained in section 60CC(2)(a)”. Firstly, that submission ignores the fact that there is a second primary consideration which his Honour was also obliged to take into account. Furthermore, it is not a question of other factors being needed to “displace” one of the primary considerations. Rather, his Honour was obliged to take into account all of the relevant considerations identified in the legislation, giving each of them such weight as he thought appropriate in arriving at the result most likely to promote [the child’s] best interests. In doing so, he was of course obliged to place particular emphasis on the “primary considerations”. This is not only because the legislature has identified them as “primary” but also because they are manifestly of the utmost importance in determining what outcome will best advance a child’s best interests.

4. We turn now to consider his Honour’s reasons in order to explain why we have concluded that the maintenance of a meaningful relationship between the mother and S appears to have been the determinative factor, not because it was the most significant factor but because it was the primary consideration. 

5. The learned Federal Magistrate adopted a number of headings to separate the component parts of his reasons.  This is a central element of the “modern style” of judgment writing and, in our view, has much to commend it.  Headings assist the reader to understand the structure and flow of the judgment, and help in the logical arrangement of material.   It is not uncommon for such headings to be posed in the form of questions which the judicial officer has decided need to be answered as part of the fact finding or reasoning process. 

6. Ordinarily the headings/questions are mundane and can be treated as nothing more than signposts.  In this case, however, one heading has become controversial.  It was suggested it reveals a fatal flaw in the process of reasoning employed by the Federal Magistrate, especially as it was the only heading in the judgment posed in the form of a question. 

7. The contentious question, “What outcome will best ensure that S has a meaningful relationship with his mother?” was used as the heading to that portion of the reasons dealing with the s 60CC(2) “primary considerations”. Ordinarily, one would expect the heading simply to be something like “Section 60CC(2) the primary considerations”, just as his Honour used “Section 60CC(3) the additional considerations” as the heading for his discussion of the s 60CC(3) factors. However, his Honour obviously thought a more specific heading would capture the essence of the discussion, since he had decided there was only one relevant “primary consideration”. This was because subparagraph 60CC(2)(b) did not require discussion, as there were no findings of violence or child abuse, and subparagraph 60CC(2)(a) could only apply to the mother, because she was the only “parent” with whom S could have a “meaningful relationship”.

8. There can be no criticism of his Honour for attempting to be specific in formulating the question that became the heading of this part of his discussion. However, in our view, the manner in which he phrased the question reveals the error inherent in his approach. The question that truly arises from s 60CC(2)(a) is not “What outcome will best ensure that S has a meaningful relationship with his mother”, but rather, “What is the benefit to the child of having a meaningful relationship with his mother?”.  (See in this regard the most useful discussion by Bennett J in G and C and Independent Children’s Lawyer [2006] FamCA 994.)

9. His Honour did not attempt to define what was meant by the expression “meaningful relationship”.  For a comprehensive analysis of this expression see Mazorski v Albright (2007) 37 Fam LR 518 where Brown J concluded that “a meaningful relationship… is one which is important, significant and valuable to the child”. (See also Moose & Moose (2008) FLC 93-375 per May, Boland and O’Reilly JJ.)

10. In the present case, it was never disputed there was benefit to S associated with having a “meaningful relationship” with both the mother and the father.  The mother’s Amended Case Outline document said simply:

    It is submitted that the mother’s proposal maximises the time that [S] will spend with his father and ensures that [S] has a meaningful relationship with both parents. 

11. The father’s Case Outline document was equally brief, saying only:

    It is submitted by the father that his proposal maximises the time that [S] would spend with each of the parties and would enable him to maintain his close and loving relationship with each party.

12. In those circumstances, it might have been anticipated that his Honour would simply have recorded his acceptance of the opinion of both parents that it was of benefit to S to have a meaningful relationship with each of them.  However, his Honour went much further.  In paragraphs 31 to 33 of his reasons he recorded his findings that:

    ·    “in order for the mother to fully and properly discharge her obligations as a parent she will need to be living in a country where she is happy and well settled”;

    ·    “the mother is only going to be happy and well settled if she is living in Hong Kong”; and hence;

    ·    “for the child to have a meaningful relationship with the mother… I consider that the child will have to live with the mother in Hong Kong”.

13. Although it was not the subject of any complaint before us, we have some difficulty in understanding why his Honour considered it appropriate to discuss these matters in the context of s 60CC(2)(a). On their face, they do not seem to have any connection with the maintenance of a “meaningful relationship” between the mother and S, but rather relate to the mother’s capacity to provide for the child’s needs, which is an “additional consideration”.

14. However, these matters were clearly important factors to be taken into account and, given the views we have already expressed, it does not really matter at which point in his Honour’s judgment he discussed them.  What is important is whether his Honour, at some stage, paid proper attention to issues associated with the maintenance of the relationship between the father and S, which both parents identified as being important. 

15. Consideration of his Honour’s reasons indicates that he did consider the relationship between S and the father to be of considerable importance.  His Honour found that whilst both parents remained living on the Gold Coast, S should spend equal time with the father and the mother.  He also found that if the father could obtain residence in Hong Kong, there should be an equal shared care arrangement.  He said nothing to indicate that he regarded the nature of S’s relationship with the mother as being of any different quality to the nature of his relationship with the father. 

16. Having elected not to consider the maintenance of the relationship between S and the father when discussing the s 60CC(2) factors, it would have been expected that his Honour would at least have addressed that issue when he came to consider s 60CC(3)(d), which concerns the likely effect of any change in the child’s circumstances, including the likely effect of separation from any person with whom the child has been living. 

17. No findings were made in relation to the likely impact on S of being separated from the father in the event the father was unwilling or unable to relocate to Hong Kong.  Instead, his Honour’s discussion at this point was directed entirely to the way in which the impact of separation from the father could be “alleviated”.  This approach would lend support to the suggestion that by this stage his Honour had already concluded that S should live in Hong Kong (because this was the only place where he could enjoy a “meaningful relationship” with the mother). 

18. It will be recalled that (at paragraph 50), the Federal Magistrate recorded his intention to make orders for S to live in Hong Kong with the mother.  He said his reasons for so determining had been “stated earlier herein”.  It is important to attempt to ascertain whether in making this statement his Honour was referring to his findings at paragraphs 31 to 33, or whether, as counsel for the mother submitted, his Honour was also referring to the various matters to which he had referred when discussing the “additional considerations”. 

19. In our view, his Honour must be taken in paragraph 50 to have been referring to the findings he had made earlier when answering the question “What outcome will best ensure that [S] has a meaningful relationship with his mother?”.  We say this after careful consideration of his Honour’s findings concerning the “additional considerations”.  When his discussion is analysed, it will be seen that in each instance where it might have been relevant to consider whether or not S would live in Hong Kong or Australia, the reasoning proceeded on the premise that S must live in Hong Kong.

20. For example, in considering s 60CC(3)(c) the Federal Magistrate considered only a scenario in which S would be living in Hong Kong.  Although he had some doubt whether the mother would return to Hong Kong without S, he did not consider what would occur if she did what she threatened.   

21. Importantly, in considering s 60CC(3)(d), the only discussion was directed to the way in which the impact on S could be “alleviated” in the event the mother returned to live in Hong Kong.  There was no discussion of the way in which the impact of separation from the mother might be alleviated in the event S remained in Australia and the mother went home to Hong Kong.  

22. In considering s 60CC(3)(e), his Honour considered the difficulty and expense associated with the child spending time with the father if S was living in Hong Kong, but there was no discussion of similar issues in the event the mother was living in Hong Kong and S living in Australia. 

23. In discussing s 60CC(3)(g), consideration was given to the way in which S could enjoy and participate in Chinese cultural traditions in Hong Kong, but no consideration was given to how this might be achieved in Australia. 

24. We are left with the impression that his Honour’s discussion of the “additional considerations” was undertaken as a benchmark against which to assess the decision already made that S should live in Hong Kong.  We therefore accept that the maintenance of a meaningful relationship between mother and child did, in fact, “trump” all of the other considerations.  In some cases, this would be entirely appropriate.  However, in the present matter we consider it was necessary for his Honour to have explained why this factor was of greater importance than the other considerations he was required to take into account.

25. In placing what we regard as undue emphasis on the maintenance of the relationship between S and his mother, the learned Federal Magistrate appears to have overlooked the benefit to S of maintaining a “meaningful relationship” with the father.  Whilst it is clear his Honour found S to have a very good relationship with the father, his judgment seeks only to address ways in which the impact of the relocation on that relationship could be ameliorated, rather than focussing on the importance of the relationship in determining whether the relocation should be allowed at all.

26. We accept that had his Honour placed as much emphasis on the relationship between the father and S as on the relationship between the mother and S, he may nevertheless have still determined it was in S’s best interests for him to relocate to Hong Kong with the mother.  However, it is by no means clear this would inevitably have been the outcome.

27. For these reasons, we find merit in these grounds.  

Ground 1(g)

1. This ground related to his Honour’s alleged failure to consider the mother’s conduct and in particular her actions in having “abducted” S and her motives in seeking parentage testing.

2. Given the decision we have reached concerning other grounds of appeal we consider it is unnecessary for us to address this ground.

Re‑exercise of the discretion

1. The father’s Notice of Appeal proposed that in the event the appeal was allowed the Federal Magistrate’s orders should be set aside and orders made in lieu providing for S to live with the father.  This position was not strongly urged by counsel for the father at the hearing before us. 

2. We consider it inappropriate to re‑exercise the discretion. As we have already indicated, it is entirely possible it would be in S’s best interests to live in Hong Kong with his mother. In such circumstances the only appropriate course is to set aside the orders made by the Federal Magistrate and order a retrial. The effect of setting aside the orders will be to revive the interim orders that were in place prior to the trial (R & R [2002] FamCA 323 at [2]). If there is any controversy about this occurring, the parties will need to make an application at first instance.

3. Although not the subject of any submission before us, we observe that in the Minute provided to his Honour following delivery of his reasons, no provision was made for allocation of parental responsibility, notwithstanding the following order was made:

   12.That in the event that parties are unable to reach agreement in relation to major long term issues affecting the children, the parties shall attend upon an appropriately qualified family dispute resolution practitioner in an attempt to resolve those issues without recourse to further litigation.

4. Our consideration of the Case Outline provided by both parties and the submissions of counsel at trial leads us to conclude it may have been his Honour’s intention that the mother and father share parental responsibility.  This is no doubt a matter that can be revisited at the time of the retrial.   

Costs

1. Both counsel agreed that if the appeal was allowed on a question of law costs certificates should be provided to both parties in relation to the appeal and any retrial.  We agree certificates should be granted.

2. Counsel for the mother argued, however, that costs should be awarded against the father as a consequence of him having provided an Amended Summary of Argument close to the time of hearing of the appeal.

3. The original Outline of Submissions provided on behalf of the father was filed on 23 October 2008.  An Outline of Submissions on behalf of the mother was filed on 31 October 2008.  Shortly thereafter the father’s solicitors attempted to file an Amended Summary of Argument.  This was rejected for filing in light of objection taken by the mother’s solicitors. 

4. Counsel for the mother at the commencement of the hearing before us sensibly did not maintain opposition to leave being granted to the father to rely upon the Amended Summary of Argument, but complained that the mother had been put to additional expense as a result of having been required to respond to the original Outline and then required to address the amended submissions.  We note that the mother did not provide any written submissions in response to the Amended Summary of Argument and still relied upon her original Outline of Submissions when presenting her oral argument. 

5. The original submissions filed by the father were very brief, comprising only 12 paragraphs.  The first seven paragraphs dealt with formalities and references to evidence.  The only paragraphs which could be considered as containing some indication of the “argument” to be advanced on behalf of the father were paragraphs 9, 10 and 11.  The latter two were related (and misconceived) propositions that were dealt with in very short order by counsel for the mother in her written submissions.

6. The Amended Summary of Argument provided by counsel for the father set out far more comprehensively the real basis of the father’s complaint.  Whilst we do not condone what was a last minute change of approach on behalf of the father, we do not accept that the mother was put to any additional expense as a consequence.  Had the mother’s counsel been required to address in writing the detailed argument provided in the father’s Amended Summary of Argument, it seems likely that she would, in fact, have been put to greater expense than she had been in responding to the flimsy original submissions. 

7. Accordingly we do not propose to make any order for costs but we will grant costs certificates for the appeal and for the rehearing.

I certify that the preceding one hundred and twenty one [121] paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate: 

Date: 12 May 2009