P & P

[2005] FamCA 1032

[2005] FamCA 1032

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal No. NA 82 of 2004
  File No. NCF 2328 of 2002

IN THE MATTER OF:

“P”

Appellant Mother

AND

“P”

Respondent Father

AND

CHILDREN’S REPRESENTATIVE

REASONS FOR JUDGMENT OF THE FULL COURT

Coram:  Finn, May & Boland JJ
Date of Hearing:                23 May 2005
Date of Judgment:            31 October 2005

Appearances:

Mr Waterman of Counsel, instructed by Stephen Tester & Associates Solicitors, appeared on behalf of the appellant mother

Mr Hamwood of Counsel, instructed by Parker & Kissane Solicitors, appeared on behalf of the respondent father

Mr Jordan, instructed by Legal Aid NSW, appeared for the Children’s Representative

APPEAL SUMMARY

MATTER:  P and P and Child Representative
APPEAL NUMBER:  NA 82 of 2004(NCF 2328 of 2002)
CORAM:  Finn, May & Boland JJ
DATE OF HEARING:  23 May 2005
DATE OF JUDGMENT:                31 October 2005

CATCHWORDS:                

FAMILY LAW – APPEALS – CHILDREN – RELOCATION – Orders restricting the uncontested residence parent from relocating interstate – Failure to consider alternative contact arrangements to those proposed by the parties or the child representative – Principles relating to relocation – Full Court held trial Judge failed to consider alternative contact arrangements which allowed the resident parent to relocate – Appeal allowed and matter remitted for rehearing.

CASELAW CITED:

AMS v AIF (1999) 199 CLR 160

Bennett and Bennett (1991) FLC 92-191

Bolitho v Cohen (2005) FLC 93-224

D and SV (2003) FLC 93-137

Gronow v Gronow (1979) 144 CLR 513

House v The King (1936) 55 CLR 499

U v U (2002) FLC 93-112

Appeal allowed
Costs certificates ordered for each party for the costs of the appeal and the new trial.

1. Introduction

1. This is an appeal by the mother against orders of Barry J originally made on 22 November 2004 (but issued in amended form on 18 March 2005).  His Honour ordered, inter alia, that the children of the marriage, “G” (born in 1996) and “J” (born in 1999) reside with the mother and that the father have contact from Friday to Sunday on alternate weekends and for half of each school holiday period, with changeovers to occur outside the local police station. In relation to all contact with the father until 1 December 2005, the orders provided that contact “be supervised by members of the FATHER’s family or family friends… or such other person as may be approved by the Children’s Representative”.

1. The primary issues before the trial Judge were whether the mother should be permitted to relocate from northern New South Wales to northern Queensland and contact arrangements with the father. The trial Judge ordered that, should the mother move more than 100 kilometres away from the northern New South Wales town, she would be responsible for the collection and return of the children for all contact periods. His Honour was mindful that the effect of this would be to prevent her from relocating with the children to northern Queensland, and indicated this was in fact his intention.

1. The orders of the trial Judge were premised on numerous undertakings by the father that prior to and during contact he would refrain from consuming alcohol or marijuana; supervise the children when in the pool; refrain from accessing computer pornography; ensure the residence is free of firearms; refrain from entering or being present in the bathroom or shower when his daughter, G, is occupying the room and not to shower with her; and to refrain from entering her bedroom when she has closed the bedroom door.

1. The basis of the mother’s appeal is that the trial Judge failed to give adequate reasons for his decision and the reasons that were provided “do not reveal a discernible path of reasoning” for effectively restraining her from choosing the children’s place of residence. Further, that having made findings in favour of the mother and her case, that to not allow her to reside in northern Queensland, especially as she was the unchallenged residential parent, demonstrated an error.

1. Additionally, the mother, by way of further amended grounds of appeal complains that the trial Judge failed to consider the principles to be applied in relocation cases including alternative contact arrangements to those put forth by the parties. The child representative supports the appeal and the relocation of the mother, although proposes alternative and more extensive contact arrangements to those of the mother. The mother initially asked that we re-exercise the discretion and make orders as proposed by the child representative, although subsequently asked that the matter be remitted for retrial.

1. The Trial Judge’s Reasons

1. It is evident from his Honour’s reasons for judgment that “Mr D”, a psychologist who provided family reports for the child representative, provided pivotal evidence upon which the trial Judge relied. The orders made accorded with the recommendations of the family report writer.

1. The history of the parties’ relationship was not a significant part of the argument on appeal and a summary of the trial Judge’s findings follows. During the marriage, the mother was both the income earner for the family and the primary carer of the children. The father did not engage in any notable employment. He allegedly suffers from a back injury although the mother provided evidence to indicate he is capable of work. His Honour found that while the father cared for the children during the day when his wife was at work, for the most part, the level of care was not of an acceptable standard. Although downplayed by the father, it was conceded that throughout the marriage he was a heavy drinker, a frequent user of marijuana and was physically violent and verbally abusive towards the children, the mother and members of the mother’s family.

1. While the trial Judge was complimentary about the mother’s personal qualities, saying she was an “energetic, courageous and optimistic individual” with realistic career aspirations, it was also noted that she was “deservedly bitter about her husband’s treatment of the children and herself during the course of the relationship”. The mother complains about the father’s parenting capabilities, his past sexually inappropriate behaviour, his use of drugs and alcohol whilst caring for the children and his physical violence. The trial Judge accepted her account.

1. It was apparent on the evidence, as documented by the trial Judge, that “for whatever reason certain aspects of her reporting appear to be somewhat distorted by her overanxious nature and her overprotective manner”. His Honour concluded that “[n]otwithstanding all her positive qualities, it is quite clear she places no value on any relationship between the children and their father.  Her proposals for contact in the future, whether she be in [northern Queensland] or not, are very limiting indeed”. The mother “refused to accept that the husband could possibly have changed since separation”.

1. As to the father, his Honour makes note of the evident indications of remorse for his past conduct. The trial Judge identified the father’s recent efforts to address unacceptable behaviours through participation in various programs including ‘Effective Parenting’ in 2003 and ‘Men Entering Non-violent Directions’ in 2003, the latter having ongoing monthly support group meetings. Despite this, the trial Judge “had the distinct impression of the husband as someone who knows how to work the system” and commented “[a]t times, the husband did not give the impression of someone who was genuinely remorseful for his conduct [and] … downplayed his offensive conduct to a considerable degree”. Indicative of the father’s current attitude is his Honour’s observation that he “was not interested in earning income as that would mean he would have to pay more by way of child support”. The evidence revealed that the father pays $5 per week child support but spends about $50 per week on tobacco.

1. Despite this, the trial Judge found that the children enjoy a close relationship with both their father and mother. They also have a close bond with members of the mother’s family, especially between J and the maternal grandfather. The family report writer had difficulty in determining the extent of the relationship between the children and the father because they failed to display affection towards him in the presence of others. The report writer attributed this behaviour to the mother’s reticence to hide her feelings of detestation of the father from the children and possibly having deliberately influenced them.

1. As well as an order for residence of the children, at trial the mother asked to relocate to northern Queensland, and for G and J to have contact with their father during the day on the mid weekend of each school holiday, the mid weekend in each school term and on Christmas and Boxing Day. In the event she was not permitted to relocate to northern Queensland, for contact to be from 9am to 5pm on each alternate Sunday, Christmas and Father’s Day, and for four hours on their birthdays. The mother also asked that all contact be supervised by a member of the father’s family. If the mother was to relocate, telephone contact was proposed on at least one night a week.

1. In his Honour’s words, under the mother’s proposal the father would see his children for 18 days a year if she moved away, or 30 days a year if she remained in northern New South Wales; and will never see them overnight. At the time of trial the father had contact with the children from 9am to 5pm each alternate Sunday.

1. The main reason for the mother’s limited contact proposals at trial, was the alleged inappropriate sexual interaction between the father and G in the shower when the child was aged 7 years, his neglect and abuse of the children and her, which resulted from his substance abuse and excessive access of internet pornography and the internet.

1. At trial the father sought orders that the mother not be permitted to relocate and that he have contact with the children from after school on Friday until the commencement of school on Monday each alternate weekend and for one half of each school holiday period, as well as various times on special days. In the event the mother was to relocate, then he sought contact from 10am Saturday to 3pm Sunday every third week, the whole of the Easter and September holidays, and half of the mid year and Christmas school holiday periods.

1. His Honour considered the advantages and disadvantages of the competing proposals in the context of the factors set out in s 68F(2) of the Family Law Act 1975 (“the Act”).

1. With regard to the nature of the relationship of the child with each of the child’s parents, his Honour acknowledged the good relationship the children have with both parents, and noted the adverse impact of limiting contact between the father and the children, as sought by the mother.

1. His Honour, in considering the likely effect of any changes in the child’s circumstances, noted that allowing the mother to move to northern Queensland with the children would result in considerable change for the children in living in a new town, attending a new school and having to make new friends. His Honour also noted the particular difficulties to be experienced by G due to the intensity of her shyness.

1. Further, his Honour found that should the children move to northern Queensland, they would not only miss regular contact with their father, but also with the paternal grandparents and other members of the father’s extended family.

1. His Honour noted that particular attention to factors including the practical difficulty and expense of contact, were necessary in this case. Not only would the considerable distance between northern New South Wales and northern Queensland make travelling to and from contact both time consuming and arduous for the children, but due to the extremely modest means of both parties, contact would have a significant impact on each of their finances.

1. His Honour then considered the capacity of each parent to provide for the needs of the children. His Honour found that, despite the many criticisms of the father by the mother relating to his consumption of alcohol and marijuana and his alleged internet pornography use, the father has “positive qualities to offer the children” and “would take the children on a variety of outings and engage in a relatively imaginative way with them”.

1. In respect of the need to protect the children from physical or psychological harm under s 68F(2)(g) of the Act, his Honour noted the history of violence between the parents, and the “fortunately few” incidents with the children. As there had been no evidence of violence initiated by the father towards the children in more than two years, his Honour found that there was an extremely remote risk of violence occurring towards the children again in the future.

1. In relation to psychological harm, the trial Judge found that any risk of such harm could ultimately be a result if the mother continues to denigrate the father.

1. With regards to the parties’ attitudes to the child and to the responsibilities of parenthood, his Honour noted that the mother has shown a responsible attitude towards parenting, save for the continued denigration of the father in the children’s presence.

1. After canvassing the competing proposals of the parties, referring to the relevant s 68F factors and considering the evidence of the family report writer and psychologist, the trial Judge concluded that the relocation issue ultimately rested on the likelihood and ability of the parties to coordinate and implement contact arrangements. His Honour said:

   73. I propose to, in effect, dismiss the mother's application to relocate, although I will not do it in those terms.  I will simply be putting orders in place that there be regular alternate weekend contact.  This would, for all practical purposes, preclude the mother relocating to [northern Queensland].

   74. The test I apply is to consider which of the competing proposals is in the children’s best interests. I find the children are not in risk in the father’s care. There is no need for supervised contact, but I propose to order it for 12 months for the two reasons that I have given. It will assuage the mother’s fears to some extent and it will protect the husband from future allegations. The supervisor can be the husband’s sister, the husband’s father or any other family friend or family member as approved by the child representative.  If the mother objects to the suitability of a person approved by the children's representative then that may be brought back before the Court under leave provisions.

   75. Even if I allowed the relocation, I would find that the contact arrangements would be limiting, they would be expensive and demanding on the children.  I have a concern that the mother would not seek to promote communication between the children and their father whether in [B] or in [L], but the impact on the children would be far greater if they were to be in [B].  The mother's attitude to the father having contact on Father's Day last year is but one minor example of a pervasive attitude on her part.  Her conduct in this regard, to my mind, would be reinforced by the hostile attitude of her parents and her sister in the [B] environment.

   76. I accept the submission made by counsel for the father that if the mother was in [B] and the father was in [L], contact arrangements would be difficult enough, even if there was good communication and cooperation.  That, sadly, is not the case.  Such problems would invariably arise from the considerable distance between [B] and [L]; the lack of adequate transport between the two destinations, other than by car; and the limited financial resources of the parties.

1. Grounds of Appeal

1. The mother’s amended notice of appeal lists six grounds which in summary allege inadequacy of reasons by the learned trial Judge; failure to consider the principles applicable to relocation cases, including failure to consider alternative arrangements to those which were proposed by the parties; and failure to make orders consistent with findings and the evidence.

1. Appellate Principles

27. This is an appeal from a discretionary decision, the principles relating to such appeals are well established. In House v The King (1936) 55 CLR 499, at 504-505 Dixon, Evatt and McTiernan JJ said:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.

28. The circumstances in which the Full Court should interfere with a discretionary judgment are well known,  In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519:

The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.

29. Kirby J said the following in AMS v AIF (1999) 199 CLR 160:

[150]          … an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge's reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.

30. In relation to the adequacy of reasons, the Full Court in Bennett and Bennett (1991) FLC 92-191 at 78,266-267 said the following:

Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.

In Public Service Board of NSW v Osmond (1985-1986) 159 CLR 656, Gibbs CJ gave qualified support to the principles established by Pettitt v Dunkley. In Palmer & Ors v Clarke & Ors (1989) 19 NSWLR 158, the New South Wales Court of Appeal, consisting of Kirby P, Samuels and Priestley JJA, again held that a failure to give adequate reasons was an appellable error of law which, of itself, was sufficient to require a judgment to be set aside.

In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:

The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if: 

(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or

(b)justice is not seen to have been done.

The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.

We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. In Maday and Maday (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.

Finally, in relation to discretionary judgments, reference may be made to the judgment of Griffiths LJ in Eagil Trust Co Ltd v Pigott-Brown & Anor (1985) 3 All ER 119, which affirmed the principle that a Judge delivering a discretionary judgment should set out his or her reasons.

In our opinion, if adequate reasons are not given in a custody proceeding, it becomes impossible for an appellate court to properly examine the decision appealed from.

31. The Full Court in Bennett and Bennett (supra) said further:

In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge's discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.

1. Submissions on appeal

32. The main thrust of counsel’s argument was that several key issues were not resolved by the trial Judge or even properly considered in the reasons especially as the mother was the unchallenged resident parent. In particular, counsel for the mother highlighted the principles relating to freedom of movement; consideration of contact arrangements that fell outside the ambit of those proposed by either of the parties; and the need for proper consideration of travel arrangements for contact should the mother change her residence with the children. Counsel for the child representative added a further issue to this list, being the suitability of accommodation with the father during unsupervised overnight contact periods.

33. Counsel for the mother, argued that the trial Judge failed to provide adequate reasons or a discernable path of reasoning in refusing to allow the mother to relocate to northern Queensland with the children.

34. Counsel for the mother asserted that the effect of the orders made by his Honour was to restrain the mother from choosing a place of residence for herself and the children, whereas, having accepted the mother as the unchallenged residential parent, the focus of his Honour’s enquiry should have been on “formulating different arrangements for access and contact which would meet the child’s welfare”.

35. Indeed, in D and SV (2003) 93-137 at p 78,290 the Full Court commented on the need to evaluate “all options to determine if the welfare of the children could fit in with the mother's right to live where she pleased”. We note counsel for the mother’s concession that the distance of the proposed move in this matter exceeds that in D and SV.

36. Correctly, counsel made reference to the majority decision of the High Court in U v U (2002) FLC 93-112 at paragraph 89 where it was said that:

… whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent.

37. Counsel submitted that the trial Judge wrongly limited himself to the competing proposals of the parties. He contended that it was incumbent upon the trial Judge to facilitate the mother’s relocation whilst also providing that adequate contact occur with the father. Counsel argued that the trial Judge erred in not considering the principles laid down by the High Court in U v U (supra) at 89,089:

80. We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests.

38. Counsel for the mother submitted that the competing contact proposals of both the mother and father at trial were clearly unacceptable as they sought to excessively restrict the movements or limit the contact time of the other person. He argued that the trial Judge was bound to consider alternative arrangements that avoided the restrictiveness of these proposals yet facilitated the best interests of the children.

39. In this case it is apt to repeat what was said in D and SV (supra):

63. In a case like the present one, where there is no or no credible alternative proposal with respect to residence advanced by the non-residential parent the correct approach to adopt is the one identified by Kirby J in AMS v AIF, (see [17] above) that the focus of

... the attention of the decision maker should ordinarily be at a possibility of formulating different arrangements for access and contact which would meet the child's welfare.

40. We also refer to the following paragraphs of Hayne J’s judgment in U v U (supra):

171. In these circumstances, it would be quite wrong to treat the decision that is to be made as confined to a choice between whatever may be the particular "proposals" that the parents may make for the residence of, and contact with, the child. So to confine the inquiry would, in this case, have required the Family Court to ignore admittedly relevant evidence that was led about what the mother would do if it were decided that the child should live in Australia rather than India. More fundamentally, it would confine the Court's inquiry to what the parents suggested would be in the best interests of the child, regardless of whether those suggestions were informed, even wholly dictated, by the selfish interests of one or other of the parents. To confine the inquiry in this way would, therefore, disobey the fundamental requirement of the Act that the Court regard the best interests of the child as paramount. Those interests may, or may not, coincide with what one or both of the parents put forward to the Family Court as appropriate arrangements for residence and contact.
172. That is not to say that the Family Court is to embark upon some roving inquiry about the matter, unfettered by any regard for the evidence led and the matters which the parties seek to contest. Due account must be taken of the fact that proceedings in the Family Court are conducted in a framework of adversarial procedure familiar to the common law. (I do not stay to consider how or to what extent that adversarial model has been modified by the Act or rules of court made under it.)

41. It should be recognised that there is some difficulty in accepting the argument by counsel as the mother was adamant in presenting a limited and uncompromising proposal for contact at trial. The trial Judge correctly identified this as well as the concerns surrounding the mother’s capacity to promote ongoing contact, as can be seen from the following extracts:

75. … I have a concern that the mother would not seek to promote communication between the children and their father whether in [B] or in [L], but the impact on the children would be far greater if they were to be in [B].  The mother's attitude to the father having contact on Father's Day last year is but one minor example of a pervasive attitude on her part.  Her conduct in this regard, to my mind, would be reinforced by the hostile attitude of her parents and her sister in the [B] environment.

76. I accept the submission made by counsel for the father that if the mother was in [B] and the father was in [L], contact arrangements would be difficult enough, even if there was good communication and cooperation.  That, sadly, is not the case.
…
69. … The mother has at all times demonstrated a responsible attitude in all aspects of parenting, save the one that I have mentioned, namely, she does not value the father-child relationship. She does not promote it. By word and conduct, she seeks to devalue it in many respects.

42. The orders ultimately formulated reflect these pertinent concerns. They also provide, in his Honour’s opinion, realistic means for more substantial and regular contact to occur.

62. I have to consider, as a fourth matter, the practical difficulty and expense of contact.  This is an important factor in this case.  It is important because the parties are not well off financially. Both have suffered periods of depression for extended periods of time. In my view, it is preferable that, for these parties in particular, life be simpler rather than more complicated. If the children relocate to [B], contact will be considerably more expensive, more time consuming and arduous on the children in terms of travel. Contact arrangements could be made in [B], but not without a considerable degree of difficulty. On balance, this factor clearly favours the father.

43. Given that the trial Judge apparently did not indicate that he was minded to grant unsupervised contact, it would therefore in our view, have been difficult for the parties to have considered and dealt with, at the time of the trial, alternative proposals which addressed such a scenario. Without such an opportunity, there remain outstanding issues of importance.

44. Counsel for the mother submitted that the trial Judge failed to give any or sufficient weight to his own findings and should not in effect have restrained the mother as the unchallenged primary carer of the children from choosing the children’s residence.

45. It was also submitted that the trial Judge failed to consider the impact upon the mother’s capacity to parent the children as a consequence of the orders made; and failed to reconcile such findings with any reasoned consideration of the competing proposals upon a consideration of the relevant evidence and the relevant s 68F(2) factors, or in the alternative failing to consider whether alternative arrangements could be made that would meet the interests of the children.

46. Counsel for the mother submitted that the trial Judge failed to make further findings of fact which, he says, the evidence compelled; including that the children would be approximately one year older at the time of any proposed move from the date of the psychological assessment and that property settlement orders would improve the financial position of both parties which in turn would mitigate the travel expenses incurred from northern Queensland to contact periods in northern New South Wales.

47. Counsel for the child representative had no criticism of the findings made by the trial Judge. However, he submitted that whilst his Honour mentioned the relevant law, he failed to apply it and that alternative contact arrangements were indeed possible but not canvassed. The child representative supported the mother’s relocation application and contended that despite the difficulties the children would encounter in relocating it would nonetheless be in their best interests and had greater advantages than remaining in northern New South Wales.

48. As to matters of principle it was submitted that the trial Judge failed to properly consider the relevant parts of AMS v AIF (supra), particularly paragraph 143:

[U]nless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides. It is necessary for a court, making decisions affecting the child's place of residence, to attempt a resolution of often irreconcilable considerations. Statute may, and commonly does, instruct that the “welfare” (or “best interests”) of the child should be the paramount consideration. It may provide a list of considerations or “principles” to be applied in the exercise of the court's powers. However, the “paramount” consideration is not the same as the “sole” or “only” consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.

49. Counsel for the respondent contended that the trial Judge certainly had a difficult decision to make, but that it was made with proper consideration of the facts, which remain uncontested, and was well within the generous ambit of his Honour’s discretion. Correctly, we think, counsel submitted that it would be a misunderstanding of D and SV that an uncontested resident parent can always move. He highlighted the expert evidence in this case and submitted that the children’s relationship with their father required frequent contact.

1. Conclusion

50. It is correct of course that every judge is bound by the evidence placed before them by the parties. Properly, the trial Judge in this case was influenced by the expert evidence. However, as was said in D and SV (supra) at paragraph 64:

…In dealing with expert evidence it is important to be aware that the expert may be applying his/her own views about what is properly a matter for the Court to decide.

51. The difficulty with which we are concerned is that the trial judge did not look past the mother’s proposal for contact which was correctly described as limited. In view of the history of the matter, in particular the domestic violence and the father’s substance abuse, the mother’s position on limited contact may have been understandable although not in the children’s best interests.

52. As residence of the children was not challenged the difficult task for the trial Judge was to consider what orders for contact might be made which would allow the mother’s move to northern Queensland and for the continuation of the children’s relationship with the father. We have concluded this was the proper approach and in failing to take this approach the trial Judge fell into error. The appeal therefore must be allowed.

53. Of particular relevance to our finding is that which was said by the Full Court in Bolitho v Cohen (2005) FLC 93-224. The following paragraph of that judgment states that where an alternative option is formulated by the trial Judge, procedural fairness requires that parties are informed and provided an opportunity to respond:

85. The requirement to look beyond the proposals of the parties highlights the fundamental difference in litigation involving the welfare of a child, and ordinary inter partes litigation.  This unique requirement may necessitate a trial Judge crafting orders which are outside the proposals presented by either party, subject to the caveats expressed by Hayne J set out above.  This task requires a trial Judge to afford the parties procedural fairness by indicating and inviting comment on changes to the parties’ own proposals, for example, by way of additional or different contact to that proposed by the relocating party, or a limitation to a period of restraint in removing a child from its present geographical location.

54. This case highlights the burden upon trial judges to determine options separate to those presented by parties. For reasons of practicality, this obligation can be difficult to meet.

55. We note for completeness that we do not think there is substance in the attack on his Honour’s reasons, rather his error is a failure to have regard to what arrangements might be made for contact if the mother moved to northern Queensland.

1. Remitting the matter or re-exercising discretion

56. We asked the parties how they proposed this matter should be dealt with in the event that we found substance in the appeal, for example that a retrial of only the contact issues be ordered. Counsel for the mother submitted that a retrial was necessary because there was no evidence about transport and the associated costs. The child representative correctly acknowledged the many issues not investigated at trial related to unsupervised and overnight contact with the father and the effect on the mother if not permitted to relocate. He asked that we remit the matter for all such issues to be properly examined.

57. Counsel for the father said that the effect of remitting only certain issues would be to “put the cart before the horse”. Counsel submitted that we remit the entirety of the matter for retrial.

58. Regrettably it seems that a new trial is the only order to be made. In the circumstances the trial should be listed with priority. In the interim, however, the contact orders presently in operation, being those made by Barry J, should continue pending the outcome from the new trial.

1. Costs

59. We asked that counsel provide us with submissions as to costs. In the event the appeal succeeds and a new trial is ordered each party requested they be provided with a costs certificate.

1. Orders

60. The formal orders therefore are:

1. That the appeal be allowed.

2. That the orders numbered 3, 4, 5, 6, 7, 8 and 17 made by Barry J on 22 November 2004 and amended on 18 March 2005, be set aside.

3. On an interim basis until further order, that:

3.1The father have contact with the children at all such times as may be agreed between the parties and failing agreement as follows:

3.1.1from 5.00pm Friday to 5.00pm Sunday each alternate weekend;

3.1.2for the second half of all school holiday periods in 2005 and each alternate year thereafter;

3.1.3for the first half of all school holiday periods in 2006 and each alternate year thereafter;

3.1.4should Mother’s Day fall on a contact weekend then contact shall not take place on that weekend but on the following weekend;

3.1.5should Father’s Day fall on a non-contact weekend then contact shall take place on that weekend in lieu of the following weekend.

3.2The arrangements for contact be implemented by the mother or some person acting on her behalf delivering the children for contact changeovers to outside the local Police Station (in the northern New South Wales town) at the commencement of each contact period and the father or some person acting on his behalf return the children to outside the local Police Station (in the northern New South Wales town) at the conclusion of each contact period.

3.3Should the children reside with the father for the first half of each school holiday period, then the alternate weekend contact arrangements provided for in these orders are to recommence on the first Friday after school recommences.

3.4Should the children reside with the father for the second half of each school holiday period, then the alternate weekend contact arrangements provided for in these orders are to recommence on the second Friday after school recommences.

3.5Should the children be unable to attend the alternate weekend contact arrangements provided for in these orders during school term because of illness or any other significant reason, then there shall be make-up contact on the following weekend at the same times specified in these orders.

3.6Should the children be unable to have contact with the father during any given school holiday period because of illness or any other significant reason, then there shall be make-up contact implemented so that the time the children should have spent with the father during that holiday period takes place during the next scheduled school holiday period.

3.7In the event the mother moves more than 100 kilometres from the town in northern New South Wales she shall be responsible for the collection and return of the children for all contact periods.

4. That the matter be remitted to the Family Court of Australia in the Lismore or Brisbane Registry for rehearing and be given priority. 

5. The appellant is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

6. The respondent is granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

7. The Children’s Representative is granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the children’s representative in respect of the costs incurred by the children’s representative in relation to the appeal.

8. The parties are each granted a certificate pursuant to s 8(1) of the Federal Proceedings (Costs) Act 1981 that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to them in respect of such part as the Attorney-General considers appropriate of any costs incurred by those parties in relation to the new trial ordered.