Nada & Nettle

[2014] FamCAFC 123

FAMILY COURT OF AUSTRALIA

NADA & NETTLE [2014] FamCAFC 123

FAMILY LAW – APPEAL – CHILDREN – Relocation – where a child lives – best interests of a child – reasonably practicable – where the mother unilaterally relocated – where the father was not told the mother relocated until just before a contravention hearing – where the court was not told the mother relocated until a directions hearing before a contravention hearing – where the trial came from a contravention application - whether the trial judge followed the “legislative pathway”.

FAMILY LAW – EVIDENCE – Admissibility – where the mother was self-represented at trial – where the mother gave evidence about legal advice – whether the trial judge should have given the mother a warning.

FAMILY LAW – EVIDENCE – whether the trial judge should have called a witness – whether the trial judge should have instructed the mother to call the maternal grandfather - whether the trial judge drew an adverse inference - Jones v Dunkel.

Family Law Act 1975 (Cth)
Federal Circuit Court Rules 2001 (Cth)
Evidence Act 1995 (Cth)

Kuhl v Zurich Financial Services (2011) 243 CLR 361
Cox & Pedrana (2013) FLC 93-537

Fox v Percy (2003) 214 CLR 118

Goode v Goode (2006) FLC 93-286

Gronow v Gronow (1979) 144 CLR 513
Ho v Powell (2001) 51 NSWLR 572

Jones v Dunkel (1959) 101 CLR 298
Mazorski v Albright(2007) 37 Fam LR 518
Mead v Mead (2007) 81 ALJR 1185
Morgan & Miles (2007) FLC 93-343
Re F: Litigants in Person Guidelines [2001] FamCA 348
Sampson v Hartnett (No 10) (2007) FLC 93-350

SCVG & KLD [2014] FamCAFC 42
Stead v State Government Insurance Commission (1986) 161 CLR 141

APPELLANT: Ms Nada

RESPONDENT: Mr Nettle

FILE NUMBER: CAC 66 of 2011

APPEAL NUMBER: EA 174 of 2013

DATE DELIVERED: 16 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: May, Ainslie-Wallace & Austin JJ

HEARING DATE: 20 March 2014

LOWER COURT JURISDICTION: Federal Circuit Court

LOWER COURT JUDGMENT DATE: 31 October 2013

LOWER COURT MNC: [2013] FCCA 1677

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Turnbull

SOLICITOR FOR THE APPELLANT: Ogilvie Jennings

COUNSEL FOR THE RESPONDENT: Mr Pesman SC with
Mr Levingston

SOLICITOR FOR THE RESPONDENT: Infinity Legal

Orders

1. The appeal against the orders of Judge Neville made on 1 November 2013 be dismissed.

2. In the event that either party seeks an order for costs, the appellant mother and the respondent father exchange submissions as to the costs of the appeal within 21 days of the date of delivery of the judgment, provide to each other any reply within seven days, and each file those submissions seven days thereafter.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA  AT SYDNEY

Appeal Number:  EA174 of 2013
File Number: CAC 66 of 2011

Ms Nada

Appellant

and

Mr Nettle

Respondent

REASONS FOR JUDGMENT

1. In an Amended Notice of Appeal filed 21 February 2014 the mother appeals against parenting orders made by Judge Neville on 1 November 2013 in relation to the child who was born in September 2010.

2. His Honour’s orders provide for the mother and father to have equal shared parental responsibility for the child; for the child to live with the mother; for the mother to return to living in the regional New South Wales area with the child and for the father to spend time with the child.

3. The mother represented herself before the judge in the hearing.

Background

1. To give context to the appeal we set out some background. The mother and father were quite young, being 18 and 22 respectively when they commenced to live together in the ACT in June 2009, moving in October 2009 to live with the mother’s parents in the NSW Southern Highlands. The parties separated in August 2010 and the child was born in September 2010.

2. As the judge observed, litigation between the parties over arrangements for the child commenced soon after her birth and have continued ever since.  In January 2011 orders were made for the father to spend time with the child, supervised by his parents, every Saturday for a couple of hours.  It is unnecessary to go into detail about the arrangements for the father to see the child other than to observe that it was beset with difficulties.

3. In July 2012 the mother and child moved to live in Tasmania.  She did not tell the father of her move; indeed, it was uncontroversial that the mother went to considerable lengths to maintain the illusion that she and the child continued to live in the same area of regional New South Wales area. 

4. The fact of the mother’s move to Tasmania was revealed in March 2013.

5. Such time as the father spent with the child in this period was accomplished by the child being flown from Tasmania to Sydney, collected from the airport and driven by the mother’s parents to spend time with the father. 

6. It seems that after the mother moved to Tasmania there were disruptions to the father’s time with the child.  The father filed a contravention application in relation to the failure of the mother to provide him time with the child.

7. In preparation for the hearing on 19 March 2013 the father’s lawyers sought information from the mother’s solicitors about the child’s day care arrangements.  In response, on 22 March 2013, the mother’s solicitor indicated that the mother had moved to Tasmania in December 2012.  However, in her evidence to the judge, the mother said she had moved to Tasmania in July 2012.

8. The hearing before the judge principally concerned where the mother and child would live.

9. The appeal grounds essentially contend that there was procedural unfairness, adverse inferences should not have been drawn against the mother and the judge did not follow the legislative pathway in considering the issues and thus fell into error.  We must therefore set out his Honour’s reasons in some detail.

The Judge’s Reasons

1. His Honour first observed from [2] that the present case was one, albeit rare, in which the mother and child “is required to return…to the area from which they clandestinely moved, without reference to the father or the Court, some nine months ago.”

2. He said:

   5. Although the Court should be and is properly concerned at the Mother’s deception of the Father (and the Court) over a very considerable period of time, and accordingly there must be, in my view, genuine concerns regarding the Mother’s bona fides, ultimately the child’s best interests must be and remain the paramount consideration in the determination of parenting orders.

3. The judge noted that the previous difficult relationship between the father and mother had improved to the extent that they could discuss matters relating to the child and further said that despite the earlier difficulties in the child spending time with the father, in the previous six months those difficulties had not appeared.  His Honour did note at [16] that this period coincided with the father becoming aware of the mother’s move to Tasmania. 

4. Reflecting on the orders sought by each party, his Honour noted that the mother sought orders that would permit her to remain living in Tasmania and that the child spend each second weekend with the father, although such would involve regular flights from Tasmania.  The father sought orders that would require the mother to return to “the mainland”, so that the child could be closer to him [in regional New South Wales or the Australian Capital Territory], enabling him to be involved in her school and other activities [18] - [19].

5. His Honour noted that the Independent Children's Lawyer sought orders that the mother be permitted to remain living in Tasmania.  He said:

   22.For the reasons that follow, and only with slight adjustment, in my view, (a) in the light of all the evidence, (b) having due regard to the legislative pathway and other relevant principle, and (c) in accordance with the ‘paramountcy principle’ set out in s. 60CA of the Act, the orders sought by the Father are in [the child’s] best interests.

6. Dealing with the father’s evidence, his Honour noted that the father said that his interaction with the child was positive and that he would like to know more about the child’s routines.

7. His Honour said:

   36. Given the Father’s genuine efforts over the years to engage the Mother to secure his time with his daughter – necessarily but unfortunately through litigation – and upon consideration of his evidence at trial, I have no doubt about the Father’s bona fides and earnest endeavours in relation to doing, as best he can, whatever is and will be in [the child’s] best interests….

8. His Honour also recorded the father’s evidence that the costs of travelling to Tasmania to see the child were significant.

9. At [44] his Honour found that the father’s evidence was credible and that where it conflicted with that of the mother, he preferred that of the father.  The judge also indicated that objective evidence supported the father’s account in relation to relevant incidents.

10. Turning then to the mother’s evidence, the judge noted that the mother said the relationship between the child and the father was “growing continuously and building” at [45].

11. Considering her evidence that the annual cost of airfares for herself and the child necessary to bring the child to Sydney was in the order of $12,000, his Honour said:

    49.It was then put to her that given her income and expenses, she could not maintain fortnightly air travel for [the child] and herself without the financial support of her parents. …

    50. [The mother] went on to say that she thought she could afford to pay approximately half the cost of flights between Hobart and Sydney, and implicitly the other half would be paid for by her parents.

    51. Significantly, she said that if parents did not pay for the other half of the flights, she and [the child] would return “within the region [of the Southern Highlands/Illawarra]…to make these visits possible.”

12. Although the mother said that the relationship between the father and the child could be maintained if she continued to live in Tasmania, the judge did not accept that evidence, observing that the statements “defy logic and common sense” at [54].

13. His Honour then considered the circumstances in which the mother had moved the residence of the child to Tasmania. The judge referred to the mother’s evidence that she had formed plans to leave New South Wales “some four or five weeks prior to 12^th July 2012…” at [57].

14. The judge referred at [61] to the mother’s evidence that she did not tell the father about her move because she was concerned for her safety  and rejected it saying that the objective evidence “points there to be little or no basis for such fears” at [62].

15. His Honour had the benefit of a report from a Family Consultant,

    
    

    Dr W.  His Honour referred to the consultant’s evidence on the effect of any change of location on the child and said:

    110. In relation to the effect on (sic) any relocation (i.e. remaining in Hobart or returning to the [regional New South Wales] area), [Dr W] confirmed that [the child’s] main attachment figure was her Mother, and that “wherever you [the Mother] are, [the child] will be ok”.

16. His Honour considered this evidence at length and said, apropos the consultant’s evidence (referred to at [114]) that the mother’s then proposal of an increase in the child’s time with the  father and that it be unsupervised “does show that the Mother understands the greater importance now for [the child] to develop a more normal relationship with her Father” and said:

    115. I simply observe here that, in my view, it was more of a late-breaking revelation of the mother about the importance of the Father in [the child’s] life. For my part, it was never adequately or properly explained why the Mother had no appropriate insight other than in the six months immediately prior to the trial. Perhaps it is all simply explicable on the basis that a pending trial may have the capacity to concentrate the minds of certain litigants. Perhaps somewhat less charitably, it might be said that [the mother] was seeking to repair a situation which, to a significant degree, she had manufactured.

17. The judge noted the evidence of the consultant that if the mother was to remain in Tasmania on a “day-to-day and week-to-week basis it would make the Father’s time and capacity to engage meaningfully in [the child]’s life significantly more difficult.” at [116].

18. After referring to the contents of the consultant’s report, his Honour said:

    132. I should be taken to accept [Dr W’s] evidence, but not formally her recommendations which do not include specifically a return to the [regional New South Wales], other than in the event that there are significant or too many difficulties in maintaining a fortnightly regime of travel by [the child] and her Mother from Hobart to Canberra for time with the Father. Based on her evidence, my own extensive observations of the parties throughout a number of Court events and the trial in particular, and in the light of all the evidence, having regard to the matters considered below in relation to Part VII of the Act, it is very clearly in [the child’s] best interests that she and her Mother return from Hobart. A suitable transition period should be provided for this to occur.

19. His Honour turned to what he described as “The Legislative Pathway”.  He cited at [133] and following from the well-known passage in Mazorski v Albright(2007) 37 Fam LR 518 about the importance of children having a meaningful relationship with both parents and further quoted from paragraphs [4] to [6] of that decision where it concerned the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility and, if the presumption applies (semble, is not rebutted) that the court must consider whether either the child spending equal time or substantial or significant time with each parent would be in the child’s best interests.  His Honour further set out and adopted the trial judge’s consideration of definition of “meaningful” in Mazorskiv Albright.

20. His Honour said:

    135. Both parties seek an order for equal shared parental responsibility. Particularly having regard to the cessation of hostilities between the parties, and the recent months of relatively civil discourse between them, I am content to accede to that order sought. I will return to the terms of s.65DAA in the light of the equal shared parental responsibility order under s.61DA.

21. His Honour then said:

    136. I note the following in relation to the consideration set out in s.60CC(3)(c) (unless otherwise stated, I should be taken to follow sequentially the matters set out in that sub-section of the Act). And unless otherwise stated, the comments or conclusions should be taken as formal findings.

22. As will shortly become apparent, the thrust of the appeal in relation to the applicable legislation was not to challenge his Honour’s findings on these and other sections of the Family Law Act1975 (Cth) (“the Act”) but whether his Honour followed the “legislative pathway” in reaching his ultimate conclusion. Thus we do not propose to set out every finding made by the judge in considering this section other than where directly relevant to a ground of appeal.

23. His Honour found that the child’s primary attachment was with her mother with whom “she enjoys a close, supportive and affectionate relationship”.  He further accepted from [138] that the child’s relationship with her father “is embryonic but genuinely positive, albeit that this has occurred only in the last six months or thereabouts.  It is in need of regular and consistent time between Father and daughter.”

24. Turning to section 60CC(3)(c), his Honour found that the father’s time with the child had been and remained to a degree severely restricted by the mother.  He said at [141] that the mother had sought to “quarantine” the child from spending time with the father and, as a result, had not, until very recently, promoted or facilitated the child’s time with her father.

25. In further considering this issue, the judge found that the mother’s more recent communication with the father and passing to him basic information about the child was not because of a “newly discovered illumination” but was her “likely dread-filled realisation that she would have to disclose her deception of her relocation to the Father and to the Court.” His Honour said:

    144. In relation to sub-paragraph (d), the return of [the child] and her Mother to a locality closer to the Father will assist immeasurably in enabling the Father-daughter relationship to grow. Because of the lack of evidence from the Mother’s fiancé and from her parents, the court is in no position to know what likely impact it might have on  [the child] not to spend as regular time with those persons as she currently does as a result of the Mother returning from Hobart…

26. His Honour noted that if the mother remained in Tasmania it raised the financial burden and logistical difficulties of the child spending time with her father.  He said:

    146.... In my view, it is not a realistic option and is not in [the child’s] best interests. The distance and cost of travel militates very strongly against the Mother remaining in Hobart. It will (and has) thwarted to a very significant degree the Father’s capacity to spend time with [the child]. To move (or to return) to an area that will allow the Father to spend more frequent time with [the child] is in the child’s best interests.

27. At [162] the judge turned to consider, pursuant to s 60CC(3)(m) the circumstances of the mother’s move and her concealing of it from the father.

28. His Honour considered the provisions of s 65DAA and said at [182] that as a result of the order for equal shared parental responsibility, it was necessary to consider this section.  He found that where-ever the mother ultimately lived – the Southern Highlands or Illawarra area – and on the assumption that the father continued to live in Canberra; “a shared care/equal time arrangement is utterly impractical”.  He then moved to consider “whether substantial and significant time is reasonably practicable in all the circumstances” and said:

    185. Whether the Mother ultimately lives in [regional New South Wales], and with the Father living and working full-time in Canberra, either locality will, in my view, make it unreasonably impractical for the Father to spend substantial and significant time with [the child], other than when particular events at school and the like are pre-arranged so that proper planning – by both parents – can be undertaken.

29. His Honour concluded that the orders proposed by the father, with some slight amendment, were in the best interests of the child.  He said:

    202. Here, there is a young child. The evidence of the parents and the family consultant all confirm that [the child] currently has [only] a developing relationship with her Father. For that to be consolidated, she needs to spend regular and consistent time with him. In my view, the evidence clearly shows that that cannot occur while-ever the Mother continues to reside in Hobart. Moreover, the evidence also makes clear that the Mother requires the financial assistance of her parents to ensure that the large costs of regular air travel can be met. Absent any evidence from them, the Court has very serious concerns about the financial (and other) viability of long distance air travel over a long period of time. Even in the short term, there are too many variables for there to be any confidence that the consistency and certainty of [the child’s] tie with her Father will occur if she and her Mother continue to reside in Hobart.

30. His Honour then considered at [203] the need to pay “proper regard to the practicalities of the area to which the parent would be ordered to return” and said:

    204. In this case, [regional New South Wales is an area] where the Mother has previously lived and her parents currently still live. There is certainly no evidence that they have moved from the area. And the Mother’s evidence and submissions is that (a) if she was permitted to remain in Hobart and the time between [the child] and her Father did not work satisfactorily, she would return to that area, and (b) if ordered to return to the mainland, she would first move to her parents’ residence before moving to resume her studies at the [local] University. Further, the Mother’s therapist/psychologist ([Ms B]) also lives/works in the same area, in which case the Mother will have further support available to her.

1. His Honour reiterated his findings in which he rejected the mother’s evidence and, describing them as observations, said as follows at [206]:

   (a)       First, while not formally a consideration as to the terms  and parameters of the parenting orders per se, the Mother’s lack of bona fides and disregard of the Court’s orders, if allowed to continue, would risk setting such a precedent that any parent could surreptitiously relocate and then argue, after a period of time, that the child is so well settled in the new area that they could not and should not be returned.  Such a precedent, in my view, is unacceptable and cannot be countenanced.

   …

   (c)      I mention each of these matters, albeit summarily,          specifically to highlight the particular and very specific       consideration I have given to the evidence of the Mother,           bearing in mind the central considerations mentioned by the      High Court in Fox v Percy regarding the advantages of a           trial judge in the evaluation of the credibility and           evidence of a particular witness.

2. The judge concluded by saying:

   206.(d)      Had the Mother followed proper process and either         sought the Father’s consent about a move to Hobart, or the approval of the Court in accordance with Boland J’s instruction in Morgan v Miles, there is some likelihood (but not certainty) that she would have been able to relocate.  It is inconceivable that two sets of lawyers (plus Counsel) did not advise her of this course and possible outcomes if it was not followed…

The appeal

1. As we indicated, the main thrust of the appeal is in his Honour’s approach to the so called “legislative pathway”.  The first two grounds, however, raise discrete legal issues and it is convenient to deal with them first.

Ground 1

His Honour erred in denying the Appellant procedural fairness in failing to inform the Appellant as to her rights pursuant to Sections 118, 119 and 120(1) of the Commonwealth Evidence Act 1995 and allowing her to give evidence regarding privileged communications.

1. The provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”) create a privilege for confidential communications for the dominant purpose of a lawyer providing legal advice to a client.

2. In Mead v Mead (2007) 81 ALJR 1185, an appeal from the Family Court of Australia, Gleeson CJ (with whom the other members of the Court agreed) discussed the common law principles relating to legal professional privilege and stated at [10 - 11]:

   …
   The rule relating to legal professional privilege does not prevent the drawing, from events and circumstances, of inferences about the knowledge of a party, even if the probable source of such knowledge is a privileged communication.  It is a rule that precludes the adducing of evidence in certain circumstances, but it is a rule that had no bearing on the present case. 

   If, as Cohen J and May J concluded, the facts and circumstances of the case supported, indeed compelled, an inference that the respondent knew of, and understood the meaning of, the order made by Rose J, then the consideration that neither she nor her solicitor could have been obliged to reveal communications that passed between the two of them did not stand in the way of acting on the basis of such an inference.

3. The mother claimed that her solicitors were aware that she had moved and did not insist that she divulge this to the court and the father. The mother claimed that she had been poorly advised by solicitors. The judge did not accept her evidence in this respect (at [13]):

   In a number of significant respects, [the mother] gave evidence that the faults or flaws in her case in relation to parenting (e.g. (a) the importance of disclosing relevant information to the Father and to the Court, and (b) the importance of [the child] having a meaningful relationship with her Father) were sheeted home to or blamed on her lawyers for not properly advising her. For reasons explored later, I do not accept her evidence in this regard.  Among other things, it is implausible to a very significant degree.

4. It is important to observe that the mother filed no affidavit in the parenting proceedings.  She filed two affidavits in the contravention applications brought by the father.

5. When the hearing before the judge commenced the mother swore to the truth of the contents of an unsigned affidavit prepared by her.  That affidavit, Exhibit 1, indicates that its purpose is to inform the Court “of my change of circumstances” and deposes that she moved to Tasmania on 5 July 2012.  The balance of the document relates to the mother’s living circumstances, where the child attends day care and so on. 

6. The mother was cross-examined before the judge.  She was taken to a family report prepared by Ms C in April 2012 and the mother conceded that she had attended interviews with Ms C for the preparation of the report on

   
   

   20 April 2012.  Counsel for the father said:

   MR HOWARD: At that time had you already decided to move to Tasmania?---No

   Okay. And so you certainly didn’t tell [Ms C] about any planned move because you would say that you didn’t have that plan at that stage?---I had no direct plans. I had not- I had not- like I was not planning to move at that point.

   …..

   HIS HONOUR: Sorry, but you said you had no direct plans. Did you have any indirect plans?---I had been advised by Constable [A], Constable [T] and Senior Constable [K] from the [local] Police Station, a domestic violence liaison officer [Ms E], a psychologist and my previous solicitor, the first one, Irene Pickle to move to alleviate my fears. I was unable to really settle and so I had – I had this – this was an option although I had no plans. I wasn’t planning at that moment to move.

   (Transcript of 22 July 2013 page 37 line 37)

7. The mother then said that she decided to move about four of five weeks before 12 July 2012.

8. The cross examination continued and the mother was asked:

   MR HOWARD: …And do you say that Ms Pickle gave you advice that you should relocate with [the child] away from the region?---When I questioned her as to what the domestic violence liaison officer had suggested she did agree that it would be beneficial.

   And did she – did she advise you and sorry, I should just point out that normally when you – what you say to – what a lawyer gives – tells you by way of advice is privileged---? Yes.

   ---and so normally you wouldn’t – I would not be able to ask you these questions so I am asking you these questions because you have told us that she advised you to move?---Yes, I understand.

   ….

   So you say that Ms Pickle advised you to relocate, move away with [the child]. Did she advise you to do that notwithstanding that there were current orders in place?---No, she – she just advised me.

   Did she advise you to do that before you approached the court to get an order to do that?---She was greatly concerned about my anxiety and my fears for my safety at that stage so---

   …..

   Did she advise you - did you – did she advise you to relocate with [the child] before coming to court and asking the court for an order to enable you to do that?---She did on the basis that I could maintain my responsibilities as defined in the orders.

   Did you tell her that you planned to move to Tasmania?---Yes

   And so it was on the basis of you moving to Tasmania that you say
   Ms Pickle gave you advice that you could move there without asking the court for permission. Is that right?---Well, she suggested I- that I should uphold my responsibilities as defined in the orders, yes.

   (Transcript of 22 July 2013 page 38 line 8)

9. Later, in the same cross-examination, the mother said that the solicitor was not aware that she had moved to Tasmania.

10. His Honour asked the mother:

    And if I recall your evidence correctly,…you said that you were advised by the police and others- - -? --- Yes, yes

    - - -in 2011, was it- - -? ---November 2010

    - - -November 2010 – about moving as a means of dealing with your levels of anxiety, correct?---Yes, and alleviating my fears.

    Well, levels of anxiety, alleviating your fears, I take to be effectively one and the same?---Okay

    And then, if I understand correctly, you say that with further advice from Ms Pickle- that in 2012, was it, or 2011?---Towards the end of 2011, I believe.

    Right, but you don’t move until July 2012?---No

    (Transcript of 22 July 2013 page 42 line 26)

11. His Honour continued, referring to Ms Pickle, the mother’s former and first solicitor:

    And you say that you can’t recall if you ever told her that you had moved to Tasmania?---I don’t believe I did tell her. She wasn’t aware of it, and we never discussed it after the - after the discussion in which she advised me to relocate.

    And you hold to that position?---I do.

    (Transcript of 22 July 2013 page 43 line 23)

12. The mother, again in answer to the judge’s questions said that she engaged different lawyers in January 2013 and that she told that solicitor that she had moved to Tasmania at that first meeting in January 2013.

13. The Independent Children’s Lawyer also asked the mother questions about the communications with previous solicitors. The trial judge set out the relevant parts of cross-examination at [92] of the reasons. No doubt this evidence led to the conclusions contained at [206(b)] of the reasons, to which we have previously referred.

14. In several parts of the reasons the judge referred to the evidence that the mother had received advice from a number of people, including her first solicitor that she should move to “alleviate her fears” of the father [57] and said:

    58. Next followed a discussion about advice that she had received from her first lawyer regarding relocation. [The mother] said that in this regard, her lawyer (a) was advised that she had planned to move to Tasmania; and (b) told the Mother that there was no difficulty in such a course provided the existing orders for [the child] to spend time with her Father were otherwise complied with.

    59. As a general proposition I have difficulty accepting that any lawyer who is reasonably well versed in family law matters (as her original lawyer is), could or would advise a party who is involved in ongoing parenting litigation to relocate without the approval of the other parent or authorisation by the Court. At the very least, I consider [the mother’s] evidence to be disingenuous.

    60. [The mother] backtracked somewhat in her earlier evidence regarding what had passed between her and her former [original] solicitor, saying that she did not believe that the solicitor was aware of her move, and that it was not discussed between them.  She alternated between saying that she did not recall discussing the relocation with her original lawyer, and then other times saying that she did not discuss it with her at all.

15. In relation to her second solicitor the mother said she had informed them on 17 January 2013 that she had moved to Tasmania (at [63]).

16. In the appeal argument, counsel for the mother relied on s 118 of the Evidence Act which is in these terms:

    118. Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

    a)A confidential communication made between the client and a lawyer; or

    ….

    for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client.

17. Section 119(a) of the Evidence Act provides the following:

    Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of:

    (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made; or

    …

    for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party.

18. Section 120 of the Evidence Act relevantly provides:

    (1) Evidence is not to be adduced if, on objection by a party who is not represented in the proceeding by a lawyer, the court finds that adducing the evidence would result in disclosure of:

    (a) a confidential communication between the party and another person; or

    …

    for the dominant purpose of preparing for or conducting the proceeding.

19. Section 132 of the Evidence Act states:

    132. If it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of this Part, the court must satisfy itself (if there is a jury, in the absence of the jury) that the witness or party is aware of the effect of that provision.

20. The extracts from the transcript of the proceedings in relation to the cross-examination of the mother by the father’s counsel make it clear that the mother’s reference to what she was advised by her lawyer was first given by her in a non-responsive answer to a question from the judge.  Clearly, no prior warning could have been given to the mother by the judge, he, probably like the rest of the court, having no idea what evidence she was to give.  Counsel for the mother did not suggest otherwise.

21. The thrust of this ground is that the questioning continued on this topic without any intervention by the judge as required by s 132.

22. Immediately after the evidence was given by the mother, counsel for the father raised privilege with her and told the mother that, normally, he would not be permitted to ask her those questions and added; “I am asking you these questions because you have told us that she [the mother’s solicitor] advised you to move?”. 

23. Counsel for the mother argued that this comment, if it could otherwise be construed as a warning, was inadequate because rather than give the mother the option as to whether she answered the questions, amounted to an assertion that the questions could be answered, and she was required to answer.

24. It was submitted that this evidence ought either to have been the subject of a warning by the judge or should not have been admitted by him. 

25. The written submissions filed on behalf of the father provide at [9 – 10]:

    More importantly, the effect of the Mother’s evidence was that she was seeking to explain her move to Hobart by, in effect, saying she did so on the basis of legal advice (in circumstances where some explanation was obviously necessary). It was well established that a party seeking to explain conduct on the basis of legal advice (or that might be affected by legal advice) waives privilege in that advice (Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297; Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 at 166).

    It follows, it is submitted, that

    (a)had a warning been given (in addition to that by the Father’s counsel) it could not possibly have affected the outcome;

    (b)for the reasons in 9 above, the evidence was admissible; and

    (c)that being so, there was no occasion to warn the Mother she could object to it.

26. The tenor of mother’s evidence as a whole supports this construction.  She appears to have been at pains to persuade the judge that the rationale for the move was her fears for her safety and that those fears were considered genuine by others who, in effect, sanctioned her move. 

27. His Honour said:

    13. In a number of significant respects, [the mother] gave evidence that the faults or flaws in her case in relation to parenting (e.g. (a) the importance of disclosing relevant information to the Father and to the Court, and (b) the importance of [the child] having a meaningful relationship with her Father) were sheeted home to or blamed on her lawyers for not properly advising her.  For reasons to be explored later, I do not accept her evidence in this regard. Among other things, it is implausible to a very significant degree.

28. As he foreshadowed, the judge made detailed findings about the mother’s credibility and in particular in relation to her assertions as to what her lawyers had told her.

29. At [59] the judge referred to the mother’s evidence that she was advised by her lawyer to move to be a proposition “…that I have difficulty accepting” especially as the lawyer she nominated was “well-versed” in family law matters.  His Honour concluded by finding that; “At the very least, I consider [the mother’s] evidence to be disingenuous”.

30. Further at [60] his Honour pointed to inconsistencies in her evidence about what her solicitor knew about her proposed move.

31. His Honour found at [62] that the mother had no objective basis for her claimed fear of the father.

32. The judge then recorded a number of findings adverse to the mother’s credit on various issues in dispute, including rejecting her evidence that a statement given by her to a police officer was wrongly recorded by the officer and that her general practitioner incorrectly recorded her comments.

33. His Honour concluded:

    100. Again I have the greatest difficulty accepting the Mother’s evidence in this regard, namely that all problems are able to be placed at the feet of either or both of her former lawyers (and/or counsel), rather than taking some basic responsibility for her own actions and whatever insight she has, or does not have, regarding the parenting of [the child] and the importance of [the child’s] relationship with her Father. The Mother’s evidence is implausible.  I do not accept it. Thus far, it would appear that her studies in psychology have not assisted in developing appropriate insight at least in relation to parent/child relationships.

34. It is abundantly clear that the trial judge did not accept her evidence generally, and particularly that about the advice from her lawyers.

35. However, we agree that his Honour ought to have given the mother a warning about the potentially privileged nature of her communication with her lawyer immediately after she gave that evidence. Section 132 imposes that obligation on a trial judge. It is not one that should be ignored nor should it be part of the cross-examiner’s task to “warn” the witness. We also accept that the comment by counsel to the mother was neither a warning nor adequate to the task of raising her privilege with her.

36. However, as we have said, the failure is not material.

37. This ground has not been made out and no appealable error demonstrated.

Ground 2

His Honour erred by misapplying the Rule in Jones v Dunkel (1959) 101 CLR 298 and drawing an adverse inference against the Appellant in circumstances where:

(a) The Appellant was not afforded procedural fairness in that she was not assisted by His Honour in relation to the calling of relevant witnesses;

(b) The Appellant’s father was available for cross-examination;

(c) No adverse inference was drawn against the father for not calling relevant witnesses;

(d) That the evidence that may have been led by such witnesses was not contradicted nor challenged.

1. His Honour said:

   10. Neither of [the mother’s] parents, not her fiancé (about whom “we” all learnt for the first time in the course of the trial), gave evidence in support of the Mother.  It must be assumed that their evidence would not have relevantly assisted her.  Given that [the mother] testified that her parents have funded a significant part of her travel from Tasmania with [the child] since the unsanctioned move in July 2012, and that they have transported Mother and child from Sydney airport to [the Southern Highlands] (and presumably then on to [the Illawarra area]) formally, I draw that adverse inference.

2. The footnote to this paragraph and at [138], his Honour refers to Jones v Dunkel.

1. In Kuhl v Zurich Financial Services (2011) 243 CLR 361 at 385 Heydon, Crennan and Bell JJ said at [63] and following:

   63. The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue…..

   64. The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party…..

   Citations omitted

1. It seems that the inference adverse to the mother drawn by his Honour was that evidence from her parents about their financial support of her would not have assisted her case. 

2. There was no suggestion that the circumstances by which the child was brought to NSW to spend time with the father and the involvement of the mother’s parents in the arrangement was contentious. Indeed, the father himself was unaware that the mother had moved to Tasmania until March 2013, so it would be difficult to imagine how he could have put the circumstances in issue.  However, he did not.  The mother said her parents assisted her.  That was undisputed.  Why then would she be required to call her parents?  The only possible matter of relevance was how the costs of the airfares were to be met.   

3. In these circumstances we fail to see what inference “adverse” to the mother could be drawn?  In our view, there was none.

4. We accept that his Honour erred in this conclusion.

5. However, despite the “adverse inference” to which his Honour referred, there seemed to be no doubt in his Honour’s mind that the mother’s parents gave her the assistance she said and it was a matter he took into account in determining, amongst other things, the viability of continuing the then existing arrangements of the child being flown to Sydney to visit the father. 

6. It was submitted that the judge used the adverse inference to “make up a deficiency in the evidence” in the mother’s case.  We cannot accept this submission.  His Honour’s lengthy reasons demonstrate numerous occasions on which he rejected the mother’s evidence of a particular issue because it was unsupported by objective evidence or directly contradicted by other, objective evidence.  His Honour’s credit findings, which were not the subject of challenge on the appeal, were well open to him without the need to draw any adverse inference.

7. Thus, while his Honour erred in drawing an adverse inference, the error was not material to the result.

8. The mother’s counsel further argued that his Honour failed to afford the mother procedural fairness by not reminding her of her ability to call a witness, namely her father who was present in court acting as the mother’s McKenzie Friend. It was emphasised that this was a particular failing because the mother was representing herself. He submitted that r 15.04 of the Federal Circuit Court Rules 2001 (Cth) entitles the court to call a witness of its own motion and submitted that if his Honour was of the view that the maternal grandfather’s evidence would have assisted the court then it was open for his Honour to call him as the court’s witness.

9. It was further submitted that considering Re F: Litigants in Person Guidelines (2001) FLC 93-072, his Honour was obliged to assist the mother in identifying that the grandfather’s evidence would be of assistance.

10. In that case, the Full Court said:

    237.We see the giving of this sort of assistance as fundamentally different from, for example, proffering advice as to a litigant in person’s chances of success in a particular case or advising as to the type of witness that would best advance a party’s case.  Matters such as these appear to us to be too dependent upon an intimate knowledge of the party’s case which goes beyond the material on the record and is thus a function of advocacy rather than assistance or information.   

11. Clearly then, the advice that counsel for the mother postulated ought to have been given by the judge to the mother, does not fall within the kind of assistance identified in that case.  Even if it did, the trial judge’s failure to proffer such advice to the mother was not a failure which should ordinarily constitute a ground of appeal (see Re F at [230]).

12. No reason was advanced as to why the judge would consider calling the  mother’s father as the court’s witness, and we do not regard him as being so required.  Nothing was advanced as to why the judge would have departed from the normal rule that it is for the parties to call witnesses and bring evidence to support their asserted cases.

13. In any event, as we have already stated, the assistance the mother had from the maternal grandparents with her travel between Tasmania and New South Wales was not disputed.  It was immaterial whether the maternal grandfather was available to give evidence. See Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. This ground is not made out.

Other grounds of appeal

1. The balance of the grounds of appeal, (Grounds 3 to 8), contends that the judge erred in his consideration and application of the Act.

2. It is useful to note in this context that the parties each sought an order for equal shared parental responsibility and that the child should continue to live with the mother.  The father did not seek an order that he spend equal time with the child or substantial and significant time with her.   Thus it is important to understand that his Honour’s determination of the issues is set against the background of the parties’ positions.

3. During submissions counsel for the father, after indicating that the father did not seek equal time with the child, said:

   In my submission, though, it is in [the child’s] best interest for there to be substantial and significant time….

   Substantial and significant time is practicable if the parties live in the same area and that would largely involve the mother moving to Canberra, so substantial and significant time would be practicable if your Honour ordered that she relocate and live in Canberra. Possibly, it isn’t if she lives in [the Illawarra area] but, nevertheless, more time is still going to be possible and plausible if she lives in [the Illawarra] than if she lives in Tasmania.

   (Transcript of 23 July 2013 page 154 line 22 to line 28)

4. Returning to the question of substantial and significant time, the judge said to counsel for the father:

   HIS HONOUR: Would you also go so far as to say that, leaving the issue of geography to one side, that, namely – that is the Hobart aspect – that the orders that [the mother] (sic) seeks over time with the increase would go close to substantial and significant.

   MR HOWARD: They do….go closer. I don’t think they quite get there because there’s no schooldays and - it’s because it’s not possible

   (Transcript of 23 July 2013 page 155 line 35)

5. Before considering the detail of the remaining grounds, it is of assistance to consider what is meant by the “legislative pathway”.

The legislative pathway

1. The so termed “legislative pathway” and the authorities which have considered it were discussed in SCVG & KLD [2014] FamCAFC 42. It is useful to the consideration of the grounds that follow to set out what was there said and in particular in relation to the nature and scope of the “pathway”.

2. In SCVG & KLD, after setting out the reference in Goode & Goode FLC 93-286 to the “legislative pathway”, the court continued:

   73. In our view [82] of Goode makes it clear that that case is not authority for the proposition that a judge must commence his or her deliberations about what interim or final parenting order is in a child’s best interests by reference to s 61DA and, if an order for equal shared parental responsibility is or will be made, to then sequentially address s 65DAA.

   74. Self-evidently, the items referred to at paragraphs 82(a) – 82(c) in Goode do not find their source in the Act. Although the orderly disposition of parenting cases would require that these matters are addressed, they cannot form part of a “legislative pathway” as that term is used in that case. However, putting those factors aside, to the extent that in Goode a starting point is identified, paragraph 82(d) points to s 60CC.  Although this discussion demonstrates that care is required in the application of the principles that emerge from Goode, what is significant is that in Goode the determination of what order would be in a child’s best interests commenced with the application of s 60CC.  It follows that to the extent that the counsel for the father submitted that the primary judge erred because he first addressed s 60CC, he must fail.

   75. Given that s 60CC(1) states that the purpose of s 60CC is to identify how a court determines “what is in a child’s best interests” and both s 65DAA(1)(a) and (2)(c) require that the court considers whether equal time or substantial and significant time would be in the child’s best interests, s 60CC drives the application of s 65DAA(1) and (2).  Thus, the application of s 65DAA(1)(a) and (2)(c) is reliant upon findings made pursuant to s 60CC in order to determine whether orders of that type would be in a child’s best interests.  It is only when the application of findings made pursuant to s 60CC result in an affirmative answer to the questions posed in ss 65DAA(1)(a) and (2)(c) that (subject to compliance with the balance of s 65DAA) the court may make an order for either equal time or substantial and significant time (MRR v GR (2010) 240 CLR 461).

   76. It follows that if the outcome of the application of s 60CC results in findings which mean that equal time or substantial and significant time would not be in the child’s best interests (as occurred here) even if there is or will be an order for equal shared parental responsibility, a question arises about how and the extent to which the court must address s 65DAA.

   77. Goode and the cases that followed, establish that because these parties have equal shared parental responsibility for the children, s 65DAA required consideration.  Goode and Marvelv Marvel (2010) 240 FLR 367 also establish that even where neither party applies for an equal time or substantial and significant time order, if there is or will be an order for equal shared parental responsibility in favour of a child’s parents, the court must consider whether or not such an order would be in the child’s best interests. However, neither Goode nor Marvel address the application of s 65DAA in a case where an earlier final order for equal shared parental responsibility is to continue, equal time had previously been refused and it is common ground that an equal time order would not be in a child’s best interests.  Nor do those cases address the effect on the ultimate determination of earlier concessions or agreements. 

   78. In this regard, it is useful to recall that the necessary content of reasons for judgment depends upon the context in which they are given.  Thus, factual and legal concessions, if accepted by the court, may conclusively deal with factors that legislation requires be considered and, as a consequence of which, the judgment needs to address only the contentious factual and legal matters which remain outstanding. 

   …..

   80. Thus where there is agreement that notwithstanding an order for equal shared parental responsibility has or will be made, an order for equal time would not be in the child’s best interests, in agreeing to allow the hearing to proceed in this manner the court has, in effect and substance, considered both s 61DA (which in any event the existence of the order for equal shared parental responsibility renders irrelevant) and s 65DAA(1).  With those matters resolved early in the proceedings, notwithstanding the “legislative pathway” described in Goode, ss 61DA and 65DAA(1) need not be addressed again.

   81. One question which must then be considered is whether it is necessary to couch any such concession or agreement in the language of the Act to amount to it being “consideration” of
   ss 65DAA(1) and/or (2) to the effect that orders of that type would not be in the child’s best interests.  Or, whether the identification of the terms of the agreement and of the issues to be determined can be sufficient to establish facts from which an inference may be drawn that the court has considered and decided against an order for either equal time or substantial and significant time.   Although it would be preferable and avoid doubt if s 65DAA was explicitly referred to, there are circumstances in which it can be safely inferred from the facts and circumstances of the case before the trial judge that the provision was considered. 

3. It is against this discussion that we turn to consider the balance of the grounds of appeal.

Ground 3

His Honour erred in not following the legislative pathway in that:

(a)His Honour failed to consider Section 65DAA(1)(a);

(b)His Honour failed to consider Section 65DAA(2)(c);

(c) His Honour failed to consider Section 65DAA(5);

(d) His Honour failed to consider Section 60CC(2)(a) or (b);

(e) His Honour reached his final decision prior to considering Section 60CC or Section 65DAA of the Family Law Act 1975.

Ground 3(a) and (b):  Failure to consider s 65DAA(1)(a) and Section 65DAA(2)(c)

1. Sections 65DAA(1)(a) and 65DAA(2)(c) provide:

   (1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)      consider whether the child spending equal time with                  each of the parents would be in the best interests of               the child.

   …

   (2)Subject to subsection (6) … the court must:

   (c)       consider whether the child spending substantial and                   significant time with each of the parents would be in             the best interests of the child.

2. As is apparent, the judge determined the child’s best interests and concluded at [132] that it was in her interests if she and the mother returned from Hobart.  Against that consideration, his Honour indicated at [135] that he proposed to make an order for equal shared parental responsibility then addressed his mind to the provisions of s 65DAA.

3. His Honour found that wherever the mother lived and assuming the father continued to live in Canberra, an equal time arrangement “is utterly impractical” (s 65DAA(1)(b) at [183]).  Then, considering s 65DAA(2)(d) at [185] whether substantial and significant time was reasonably practicable in the circumstances, the judge found that it was “unreasonably impractical” for the father to spend substantial and significant time with the child, again, while he is living and working full time in Canberra and with the mother living in [regional New South Wales]. 

4. His Honour concluded:

   187. The orders as sought by the Father, as slightly amended, are, in my view, in the best interests of [the child].  Those orders should be made.

5. It was argued that his Honour failed to consider s65DAA(1)(a) and

   
   

   s 65DAA(2)(c) both of which require an assessment of whether equal time and/or substantial and significant time is in the child’s best interests. It was asserted at paragraph 33 of the written submissions of the mother:

   At no stage does His Honour consider what was in the child’s best interests in the context of his consideration of Section 65DAA.

6. It was argued that the Act requires that in relation to both ss 65DAA(1)(a) and (c) the court is required to consider the best interests of the child in that context. Unlike the situation in SCVG & KLD, here the primary judge although not asked to make an order for equal time or indeed substantial and significant time, considered each, finding that neither was reasonably practicable. However, as was made clear in SCVG & KLD at [89], once one of the questions posed in s 65DAA is answered in the negative, there is little point in considering the second of those questions. Having found, as his Honour clearly did, that the child spending equal time with the parents was “utterly impractical” there was no need for him to then consider whether such an “utterly impractical” arrangement would be in the child’s best interests.

7. Equally, his Honour concluded that for the child to have substantial and significant time with the father was “unreasonably impractical”.  This conclusion having been reached, he was not then obliged to consider whether it would otherwise be in the child’s best interests.

Ground 3(c) Failure to consider s 65DAA(5)

1. Section  65DAA(5) provides a list of matters to which a court must have regard in determining the reasonable practicability of a child spending equal or substantial and significant time with a parent.  It provides:

   In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a) how far apart the parents live from each other; and

   (b) the parents’ current and future  capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d) the impact that an arrangement of that kind would have on the child; and

   (e) such other matters as the court considers relevant.

2. His Honour found that equal time or substantial and significant time between the child and her parents to be impracticable because of the distance between where they lived.  It was not submitted to him otherwise.  Having found that, he was not required to consider any of the other matters, because, no matter what conclusion he reached on them, he had found that distance prevented either order being reasonably practicable.

Ground 3(d) and Ground 6

3(d)     His Honour failed to consider Section 60CC(2)(a) or (b).

6.        His Honour erred by giving insufficient weight to the evidence that      the child does and can continue to experience a meaningful    relationship with the father even though the child and the mother      live in Hobart.

1. These grounds were argued together.

Ground 3(d)

1. Section 60CC contains the “primary considerations” which must be considered in determining a child’s best interests.

2. Sections 60CC(2)(a) and (b) provide:

   (2) The primary considerations are:

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

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

3. His Honour did not advert specifically to s 60CC(2)(b) in his reasons.  However, he did consider the mother’s assertions that she was afraid for her own safety because of the father’s violence towards her.

4. The judge referred to the issue of family violence which was raised by the mother as being, in part, the rationale for her decision to move away from her residence and not tell the father where she was.  His Honour said at [61]; “She said she did not want the Father to know because she was very concerned for her safety”. 

5. His Honour continued:

   62. In the light of independent evidence before the Court, and notwithstanding [the mother’s] further evidence that her profession of love to/for the Father and her desire to continue a relationship with him was nothing more than a façade, I do not believe there is any evidence to support the claims of concern for her safety.  She may well have, in her own mind, built up a level of anxiety or concern; however, the objective evidence points there to be little or no basis for such fears.

6. The judge then explored the mother’s evidence [69] to [82] in which she asserted the basis for her fears and made findings in relation to it. 

7. During submissions, counsel for the father addressed his Honour on the primary considerations of s 60CC(2) and submitted that there was “no suggestion of risk to the child so (2)(b) is not relevant.”  (Transcript of 23 July 2013 page 156 line 10).

8. It was not suggested in submissions on the appeal that this statement was erroneous as to the fact.

9. Given the evidence before his Honour and his findings about family violence, his Honour’s failure to advert to that section was entirely reasonable.  It was not an issue in the hearing before his Honour.

Section 60CC(2)(a)

1. Turning back to s 60CC(2)(a), the judge considered the evidence of the father that his interactions with the child were positive [29] and his Honour referred to the mother’s evidence in this regard at [45] noting that she said the relationship between the child and the father “appears to be growing continuously and building”.

2. Although the mother asserted that she if she continued to live in Hobart it would not pose a barrier to the father spending regular and consistent time with the child, the judge at [54] did not accept that evidence. Reference was made to the evidence of the expert, Dr W who said that if the mother was to remain in Hobart; “…on a day-to-day and week-to-week basis, it would make the Father’s time and capacity to engage meaningfully in [the child’s] life significantly more difficult” [116]. His Honour inferred from her evidence at [117] generally that: “…being geographically closer would make the building up of the Father-child relationship significantly easier.”

3. His Honour then considered the legislation and to how the term “meaningful” has been defined in the cases.  He concluded:

   202. Here, there is a young child. The evidence of the parents and the family consultant all confirm that [the child] currently has [only] a developing relationship with her Father. For that to be consolidated, she needs to spend regular and consistent time with him. In my view, the evidence clearly shows that that cannot occur while-ever the Mother continues to reside in Hobart. …

4. The uncontested evidence before the judge was that the child was building a relationship with her father and it was not contended that she would not enjoy the benefit of a meaningful relationship with the father.  His reasons and the transcript of the submissions make it clear that his Honour was astute to the issue of the benefit to the child of a meaningful relationship.  The definition of the issues; the conceded position about the nature of the relationship of the child with the father and mother was such that the issue was, as the section requires it to be, a primary consideration of his Honour.  True it is that his Honour did not expressly make the finding that the child would benefit from a meaningful relationship with her father but a considered reading of his reasons and indeed the evidence before him makes it clear that it was not an issue in dispute. 

Ground 6

1. Ground 6, on its face, is an argument about the weight attached to the evidence by the judge.  Questions as to the weight or importance placed by a judge on the evidence are a quintessential function of the exercise of discretion by the trial judge. The authorities on appellate intervention where error as to the apportionment of weight to evidence is asserted are well known and place the bar to success very high. It is not sufficient to demonstrate that a differently constituted court may have come to a different conclusion on that evidence but that “an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion”  (see Gronow v Gronow (1979) 144 CLR 513 at 519-20).

2. Not only has the mother failed to establish that his Honour’s finding was “plainly wrong” or not open to him on the evidence, in our view his Honour’s conclusion was driven by the evidence before him.

Ground 3(e)

His Honour reached his final decision prior to considering Section 60CC or Section 65DAA of the Family Law Act 1975.

1. It was submitted that at [22] the judge indicated his determination of the matter, and again at [134], and it was argued that, in then proceeding to consider section 60CC and section 65DAA, it left the impression that his Honour had crafted his consideration of section 60CC and section 65DAA to meet or justify the conclusion he had already reached.

2. The summary further contends that the judge did not consider each of the matters referred to in s 60CC and make findings on each of them in order to come to a decision. ([39] appellant mother’s summary of argument).

3. Further the submissions concede that while the judge concluded what was in the child’s best interests at [132] it was argued that it “does not satisfy the mandatory requirements of Section 60CA and Section 60CC(1).”

4. We are at a loss to understand how on a fair reading of this judgment it could be argued that the judge failed to satisfy s 60CA, that is “a court must regard the best interests of the child as the paramount consideration”. The reasons both explicitly and implicitly reflect the judge’s understanding of this concept which forms the cornerstone of Part VII.

5. His Honour said:

   136. I note the following in relation to the consideration set out in s.60CC(3)(c ) (unless otherwise, stated, I should be taken to follow sequentially the matters set out in that subsection of the Act). And unless otherwise stated, the comments or conclusions should be taken as formal findings.

6. A reading of the paragraphs that follow demonstrate that, true to his word, that is exactly what the judge did.

7. This court has repeatedly said that a failure of a judge to consider the provisions of Part VII in a particular order, does not, of itself, constitute appealable error, see Cox & Pedrana (2013) FLC 93-537.

8. Further, if the thrust of the appeal is that the judge “prejudged” the issues by first setting out the conclusions and then provided the analysis and reasons to support that conclusion, it fundamentally misapprehends the nature of the process of judgment writing and assumes that a judge starts with a metaphorical and perhaps an actual “blank slate” and writes as the muse dictates.  If this is the gravamen of the ground, then it must be rejected.  That a judge announces the outcome of the decision at the outset of a judgment and follows that with his reasons for coming to that conclusion, cannot rationally it seems to us lead to the conclusion for which the appellant contended.

9. This ground has not been made out.

Ground 4

His Honour erred in failing to undertake a comparison of the advantages and disadvantages of each of the parties proposals when considering the relevant matters set out in section 60CC and Section 65DAA of the Family Law Act.

1. It was submitted that although the judge referred to the parties’ competing applications, he failed to consider each party’s proposals “in the context of Section 60CC of Section 65DAA”. ([42] of the mother’s written submissions)

2. We cannot accept this proposition.  His Honour’s reasons are replete with references to the competing positions of the parties and how they impacted on the necessary considerations.  We do not propose to illustrate the flaw in the argument by, in effect, repeating his Honour’s findings but will give some examples of how his Honour did in fact consider the parties’ competing proposals.  First, by way of overview, his Honour set out the competing proposals at [18] to [22] of his reasons.  His Honour considered the cost of the mother’s proposal that the child continue to live in Hobart and fly to NSW to spend time with the father and the practical difficulties of that proposal [48] –[52] and [53], [103] - [104].

3. A consideration of those passages alone demonstrates that his Honour did consider the advantages and disadvantages of each party’s position in determining the issues before him.

4. This ground of appeal is not made out.

Ground 5

His Honour erred in failing to consider whether the “practicalities of life” equally or sufficiently existed in [regional New South Wales].

1. The thrust of this ground refers to the decision of Sampson v Hartnett(No 10) (2007) FLC 93-350 in which the Full Court considered what was termed a “coercive order” being one in which a parent is required to change the location of residence of a child to a nominated place. Of particular relevance to this ground is what was said by the court at [75] of that judgment where Bryant CJ and Warnick J said:

   75. To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move. One would therefore reasonably expect a close analysis of the moving party’s capacity and/or the other parties’ capacity to provide for such practicalities having regard to the orders proposed by the court. It is probably only in the circumstances of significant wealth of both parties that it might reasonably be inferred that the practicalities of life could be met without detailed inquiry.

2. It must first be observed that his Honour’s order required the mother to return to live in regional New South Wales, an area in which her parents live and from which she moved when she left NSW with the child to live in Hobart.

3. The mother’s evidence, as recounted by the judge was that if she was ordered to return to NSW, she would first move in with her parents before seeking accommodation in the area [85]. The mother had been seeing a psychologist for support for some time and the psychologist lives and works in regional New South Wales [101]. His Honour concluded, after referring to paragraph [75] of Sampson v Hartnett:

   204. In this case, the [regional New South Wales] area is one where the Mother has previously lived and her parents currently still live.  There is certainly no evidence that they have moved from the area.  And the mother’s evidence and submission is that (a) if she was permitted to remain in Hobart and the time between [the child] and her Father did not work satisfactorily, she would return voluntarily to that area, and (b) if ordered to return to the mainland, she would first move to her parents’ residence before moving to resume her studies at the [local] University. Further, the Mother’s therapist/psychologist ([Ms B]) also lives/works in the same area, in which case the Mother will have further support available to her.

4. It is thus apparent that his Honour did consider the “practicalities” of life for the mother in regional New South Wales.  It is important too to observe in this context that the mother’s case was not that she did not have support or want of “practicalities” in the area in which she had previously lived.  She did express the view that she would not move to Canberra (where the father lived) because she had no support there.

5. This ground of appeal is not made out.

Ground 7

His Honour erred when considering Section 60CC(3)(d), Section 60CC(3)(e), Section 65DAA(1)(b), Section 65DAA(2)(d) and Section 65DAA of the Family Law Act 1975 in that he did not give any, or in the alternative, sufficient weight to;

(a)      The mother’s settled living arrangements in Hobart for in excess of      twelve months,

(b)      The effect upon the mother if required to return to reside in New         South Wales

(c)      That the mother had been facilitating (including funding) time for         the child and the father notwithstanding that she resided in Hobart.

(d)      The Mother’s evidence that she suffered family violence.

(e)      The improved communication between the mother and the father

1. Ground 7(d) was not pressed on the appeal.

Ground 7(a) and (b)

1. Although couched in terms of the mother’s settled living arrangements, ground 7(a) contends that the judge failed, when considering s60CC(3)(e) to give sufficient weight to the fact that the mother and the child had lived in Hobart for twelve months.  Further ground 7(b) argues that the judge failed to properly consider the effect on the mother of a return to regional New South Wales.

2. It must be noted that his Honour’s paramount consideration was the best interests of the child.  Clearly in the case of a young child, those interests will be aligned with the mother’s circumstances, as his Honour recognised at [110] when he quoted and accepted the opinion of the expert on the effect on the child of any relocation as “wherever you are [the mother], [the child] will be ok”.

3. Although the mother filed no affidavit in the proceedings, as his Honour observed she swore to the truth of the contents of a document prepared by her when she was giving evidence.  That document details the then present living arrangements for the mother and the child.  As to her circumstances in Hobart, the judge noted her evidence of her living arrangements, cost of living and the fact that she was then in a relationship [46] to [49].

4. In respect to both of these issues, his Honour was clearly aware of the fact that the mother had been living in Hobart for a year at the date of the hearing.  His Honour observed at [3] that as a result of the mother’s conduct in concealing her true whereabouts from the father; “…over a considerable period of time, (the child) has been deprived of having the benefit of her Father meaningfully involved in her life, to the maximum extent possible.”

5. As to the effect on the mother in the event that she was required to return to NSW, his Honour noted the expert’s opinion that she was resilient and shows considerable initiative and “may well adapt to those circumstances” [14] and [113].

Ground 7(c)

1. Ground 7(c) concerns the mother having provided time between the child and the father while living in Hobart.

2. It must first be noted that the provision of time between the father and child had been problematic from the outset and, while the mother and child were living in Hobart continued to be so, although in the six months preceding the hearing the evidence was that arrangements were working more satisfactorily.

3. However, the judge rejected the mother’s assertion that the father and child could continue to spend time together with the child living in Hobart [53] and further found at [104] that the “logistical and financial reasons” made the proposal of travel from Hobart not sustainable.

   Ground 7 (e)

4. Finally, it was argued that the judge did not give sufficient weight to the improved communication between the parties and submitted that, had his Honour considered the evidence of improved communication in the context of s 60CC(3)(d) or (e) or s 65DAA(5)(c) “His Honour may have more easily reached a conclusion that it was practicable for the child’s meaningful relationship with the Father to develop even if the Mother had remained residing in Hobart”.

5. His Honour accepted that the father said that his communication with the mother was improved. The acceptance of that evidence has to be seen against his Honour’s expressed scepticism of the mother’s evidence of an appreciation of the importance of the father’s role in the life of the child at [115].

6. This argument is one of weight.  As we have said, it is for the judge to determine what weight to give evidence and how it is considered in the determination of the facts in issue. The mother has not made out any error in his Honour’s exercise of discretion.

7. Ground 7 is not made out.

Ground 8

His Honour erred in that he gave undue weight to the circumstances by which the mother had relocated the child to Hobart resulting in His Honour giving insufficient weight to the obligation set out in Section 60CA of the Family Law Act 1975.

1. Counsel for the mother argued that his Honour’s strong comments about the mother’s conduct in removing the child from New South Wales to Hobart at the commencement of the reasons and at the end reflect an erroneous preoccupation with the means by which she moved rather than a focus on the best interests of the child in determining the issue of where the mother and the child would live.

2. It cannot be gainsaid that his Honour took a firm view about the mother’s conduct, a view that it could be said, on the facts of this case was not unreasonable. 

3. However, his Honour said:

   5. Although the Court should be and is properly concerned at the Mother’s deception of the Father (and the Court) over a very considerable period of time, and accordingly there must be, in my view, genuine concerns regarding the Mother’s bona fides, ultimately the child’s best interests must be and remain the paramount consideration in the determination of parenting orders.

4. His Honour considered the circumstances of the mother’s move when dealing with s 60CC(3)(m).  It is not suggested that his Honour was not entitled to do so.

5. It should not be thought that the mother’s conduct in this respect was in some way isolated from the other issues necessary to be decided by the judge.  As his reasons indicate, her conduct had the effect of restricting the father’s time with the child; impacted on her credibility which, in turn was relevant to his determination of issues on which the parties were in dispute or in relation to which the mother relied as supporting her case. 

6. We do not accept that his Honour was distracted from proper considerations in the way asserted in the ground.

7. It was somewhat unfortunate that at [206 (d)] his Honour said that had the mother; “followed the proper process and either sought the Father’s consent about a move to Hobart, or the approval of the Court in accordance with Boland J’s instruction in Morgan & Miles (2007) FLC 93-343, there is some likelihood (but not certainty) that she would have been able to relocate”. We can understand that this may have led to concerns that the determination of the issue in the trial turned on the mode in which the mother took the child away from NSW when a reading of his Honour’s careful reasoning and application of the law reveals that his approach was measured and appropriate.

8. It follows that the appeal will fail.

Costs

1. As is usual, we sought submissions on the issue of the costs of the appeal to save the parties the time, trouble and expense of making submissions after the decision was delivered.

2. The respondent submitted that there were circumstances that warranted submissions being made after the determination of the appeal and that it would not be appropriate to submit on costs.  We thus made orders that the parties exchange submissions as to costs within 21 days of delivery of the reasons for decision, then provide to each other any rely within seven days, and finally each file those submissions seven days thereafter.

I certify that the preceding one hundred and seventy-two (172) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace, Austin JJ) delivered on 16 July 2014.

Associate: 

Date:  16 July 2014