Prewett & Mann - [2013] FamCAFC 130

FAMILY COURT OF AUSTRALIA

PREWETT & MANN

[2013] FamCAFC 130

FAMILY LAW – APPEAL – CHILDREN – PARENTING ORDERS – Where previous consent orders - Where parties agreed that the child would live and attend school in Sydney – Where mother applied to change orders – Consideration of Rice & Asplund (1979) FLC 90-723 – Where Court determined issue of changed circumstances as a discrete threshold hearing – Where mother’s application permitted to proceed - Whether changed circumstances arose by way of disobedience of the previous consent orders – HELD –Appeal dismissed.

Family Law Act 1975 (Cth): ss 60CC

DL & W (2012) FLC 93-496
Langmeil & Grange [2013] FamCAFC 31
Mann & Prewett [2009] FamCA 929
Marsden v Winch (2009) 42 Fam LR 1
Metwally (No 2) v University of Wollongong (1985) 60 ALR
Miller & Harrington (2008) 39 Fam LR 654
Rice & Asplund (1979) FLC 90-723
SPS & PLS (2008) FLC 93-363

APPELLANT:

Mr Prewett

RESPONDENT:

Ms Mann

FILE NUMBER:

SYC

645

2008

APPEAL NUMBER:

2013

DATE DELIVERED:

27 August 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Le Poer Trench JJ

HEARING DATE:

15 August 2013

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

5 April 2013

LOWER COURT MNC:

[2013] FMCAfam 314

REPRESENTATION

COUNSEL FOR THE APPELLANT:

TD North SC

SOLICITOR FOR THE APPELLANT:

Paul & Paul

COUNSEL FOR THE RESPONDENT:

P Cook

SOLICITOR FOR THE RESPONDENT:

Legal Solutions

Orders

The appeal against the orders of Federal Magistrate Foster (as his Honour then was) made on 5 April 2013 is dismissed.
Within one (1) month of agreement or assessment as to quantum, the appellant father shall pay the costs of the respondent mother in relation to this appeal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Prewett & Mann 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: EA 49 of 2013
File Number: SYC 645 of 2008

Mr Prewett

Appellant

And

Ms Mann

Respondent

REASONS FOR DECISION

Introduction

This is an appeal by Mr Prewett (“the father”) against an order made by Foster FM (as his Honour then was) on 5 April 2013 which rejected the father’s application for dismissal of Ms Mann’s (“the mother”) application for parenting orders.
The parties were previously married and are the parents of X (“the child”) who is aged nine. They separated shortly before the child had her first birthday, following which by agreement the child lived with the mother and spent time with the father.
Some two and a half years after separation, the mother moved with the child from Sydney’s Eastern Suburbs, where the father also lived, to M which is south of Sydney. This was the catalyst for an application by the father for parenting orders and injunctions, relevantly to restrain the mother from changing where the child lived to a place outside the Eastern Suburbs of Sydney.
Following determination of an application by the father for interim orders, the parties presented proposed consent orders to the Federal Magistrates Court (now Federal Circuit Court). The proposed orders were approved on

5 March 2008. These are the orders which the mother applied to vary by her application filed on 21 December 2012 in the Federal Circuit Court. In his response to that application, filed on 30 January 2013, the father sought that the mother’s application be dismissed. His application was presented upon the basis that the mother failed to establish a significant change in circumstances sufficient to warrant reconsideration of the 5 March 2008 orders. Thus, on the application of the principles referred to in Rice & Asplund (1979) FLC 90-723, it was submitted to his Honour that the mother’s application should be dismissed.
No challenge is made to his Honour’s statement of the applicable law concerning the “rule” in Rice & Asplund and the line of authority following thereafter. Rather, the grounds of appeal challenge the manner in which

his Honour applied those principles, the exercise of his Honour’s discretion and an asserted failure to adequately consider material facts. Central to the father’s argument is the contention that the mother has disobeyed the obligation imposed on her by the 5 March 2008 orders to live with the child in Sydney. As a consequence, it is submitted that she cannot now rely on the consequences of her disobedience to agitate an issue addressed by the orders under consideration.
The mother resists the appeal and seeks to uphold the decision of the

trial judge.

The rule in rice & asplund

The “rule” in Rice & Asplund refers to remarks made by Evatt CJ in that case at [78,905-06]:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …
Evatt CJ continued:
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
The rule is a manifestation of the best interests principle and founded on the notion that continuous litigation over a child or children is generally not in their interests (Langmeil & Grange [2013] FamCAFC 31). The application of the rule is connected to the nature and degree of change sought to the earlier order (SPS & PLS (2008) FLC 93-363).
As to the application of the rule, the Full Court in Marsden v Winch (2009) 42 Fam LR 1 said:
50. Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
Although the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”), which governs determination of the applications before his Honour, have, subsequent to Rice & Asplund, undergone significant amendment, there is no doubt that the principles established in that case and the subsequent line of authority applied to these proceedings.

Background facts

To give this appeal context, brief reference to the history of litigation and other key factors is appropriate. This background history is largely extracted from his Honour’s reasons for judgment and the judgment of Fowler J delivered on 24 September 2009. By reference to the “rule” in Rice & Asplund, Fowler J dismissed an earlier application filed by the mother to vary the March 2008 parenting orders.
The father was born in 1967 and is 46 years old.
The mother was born in 1970 and will shortly turn 43.
Having been in a relationship for some time, in March 2004 the parties married.
The child was born in 2004. She is the only child of this marriage.
Separation occurred on 14 February 2005. As they had during cohabitation, following separation, the parties continued to reside in the Eastern Suburbs of Sydney. The child resided primarily with the mother. By arrangement between the parties the child spent time with the father.
Shortly after the parties separated, the father began to live with his current partner, Ms L, who the child met for the first time in June/July 2005.
In mid 2007, the mother sold a business she owned “so she could focus her attention on being a mother” (p 2 of mother’s treating psychologist report, 25 January 2013)
It would appear to be uncontroversial that by 18 September 2007 the mother had decided to move to M (which is close to where her father lives and where her mother has a home), in furtherance of which she enrolled the child at a preschool in M to commence in 2008.
The mother and her now husband, Mr C, gave evidence that they met in October 2007.
In December 2007, the mother entered into a 12 month lease of a property at M which enabled her to move in on 2 January 2008.
In early January 2008, the mother and child moved into the M property. It would appear uncontroversial that this step was taken without notice to the father. In any event, until 6 February 2008, by informal arrangement between the parties, the father spent time with the child in M.
It is during that period that the mother and Mr C began dating and the child met him.
On 6 February 2008, the father commenced parenting and other proceedings in the Federal Magistrates Court in Sydney.
Following a contested hearing, on 25 February 2008, interim parenting orders were made which restrained the mother from relocating the child’s residence outside of the Eastern Suburbs of Sydney and, in effect, required that, if she wanted the child to continue to live with her, she return with the child to live in Sydney by no later than 3 March 2008. In the event the mother failed to do so, it was ordered that the child live with the father and spend time with the mother with the frequency set out in the orders.
As it transpired, the child remained in the mother’s care and, on 5 March 2008, the consent orders under consideration in this appeal were made.
When these orders were made, the child was a few months short of her fourth birthday.
Broadly speaking, the orders addressed the child’s living arrangements in three distinct periods. The first period covered from the date of the orders until the child turned five, which was in 15 months’ time; this segued into the second period which continued until January/February 2010. The significance of 2010 is that this is when the child was due to start school. The third period addressed the child’s living arrangements from when she started school. The orders permitted the child to reside with the mother in M until mid January 2010 following which she and the child were required to live in Sydney. As to the child’s schooling, it was agreed she would attend S School and that the father would pay her educational expenses.
As to the time the child would spend with each parent, the orders provided that she would continue to reside primarily with the mother and spend time with the father in the different configurations specified for each of the three periods. The effect of this was that in the first period the child would spend five nights in each 14 with the father, six nights in each 14 with him during the second period (plus block periods during preschool holidays) and, from when she commenced school, during school term for five nights in each 14 day period plus half of the school holidays. As to the third period, the five nights were broken up so that in one week the child lived with the father from after school Thursday until before school Friday, and in the following week from after school Thursday until before school Monday.
The orders also required the parties to enrol the child in a preschool in the Eastern Suburbs of Sydney on Wednesday and Friday of each week during term time. Thus, although the mother and child maintained a home in M, so as to give effect to the orders, the mother continued to rent premises in Sydney. Subsequent to the March 2008 orders, the mother rented four different properties in Sydney, the final one being at J for which she paid $700.00 per week.
In May 2008, the mother and Mr C commenced a de facto relationship.
In November 2008, the mother and Mr C purchased a property at M.
On 24 April 2009, the mother filed an application to vary the 5 March 2008 orders which, if granted, would have enabled the child to continue to live with the mother in M, seen her attend a local school and altered the arrangements for her to spend time with her father. As was mentioned earlier, on 24 September 2009, Fowler J summarily dismissed the mother’s application (Mann & Prewett [2009] FamCA 929). Central to Fowler J’s determination that it would be contrary to the child’s best interests to permit the mother to agitate her application that the child reside with her in M, Fowler J found:
·that the mother consented to the 5 March 2008 orders freely and with the benefit of legal advice ([34]);
·the parties and court accepted on 5 March 2008 that the orders were in the child’s best interests ([34]);
·in circumstances where the mother was unemployed at the time the 5 March 2008 orders were entered, the fact she had repartnered and was financially dependent on a partner who lived in M did not constitute changed circumstances ([40]);
·his Honour did not accept that the mother’s partner would continue to reside in M if the mother and child lived solely in Sydney ([53]);
·further litigation in relation to the child would be likely to be more harmful to the child than compliance with the 5 March 2008 orders ([54]); and
·his Honour rejected the argument that differences which had arisen as to the interpretation of the orders warranted that the orders be reconsidered. Fowler J reasoned “If that were the case, disobedience of an order could be engineered by a party for the purpose of artificially creating a circumstance which permits of a further attempt to achieve what was the subject of a claim in litigation which produced a settlement of that claim” ([69]) .
Implicit in the last finding referred to in the paragraph above, is acceptance that the mother had or would disobey the 5 March 2008 orders. Yet there is nothing in Fowler J’s reasons for judgment which identified the manner in which the mother had or would disobey the obligations which the orders imposed.
The child commenced school in Kindergarten at S School at the beginning of term in 2010.
The mother married Mr C in October 2011. Their son, W, was born in March 2012.
From this point, not only were the mother and child living between different homes, but so was W. The mother’s husband, who is a real estate agent in M, continued to live and work in M. As Judge Foster explained:
29.So as to comply with the current orders on Sunday, Monday, Tuesday and Wednesday nights the mother, her new child and [X] stayed at the rented [J] home and now at the maternal grandmother’s home. On Thursday nights the child stays with the father and the mother returns to [M] so that her new child can spend time with his father. The mother returns to [J] on Monday to collect [X] from school and on Thursday morning she returns to her home in [M] with the father collecting the child from school that day. The mother then collects the child from school on Friday afternoon and returns with the child to [M].
On 21 December 2012, the mother commenced these proceedings and applied to discharge the 5 March 2008 orders. In her application she sought that the parties have equal shared parental responsibility and that the child live primarily with her in M, where she would attend school, and spend time with the father on alternate weekends during school term, and for extended periods during school holidays.
His Honour found that “as a consequence of the financial impact of maintaining her home in [M] and rented premises in [J]” the mother relinquished her rented apartment in J and moved into a property owned by her mother in M [27].
When the proceedings came before his Honour it was ordered that the parties and child attend a child inclusive conference with a family consultant. This conference took place on 19 February 2013 with the memorandum issued by the family consultant forming part of the evidence considered by his Honour.
The parties were at issue about whether the child should continue counselling with her school counsellor. On 22 February 2013, his Honour ordered that the counselling resume, which it has.
The father and Ms L’s son, F, was born in March 2013.
The father’s application that the mother’s application be dismissed was heard on 13 March 2013. The hearing occurred without cross-examination.
Judgment was delivered and orders were made dismissing the father’s application on 5 April 2013.

The trial judge’s reasons

His Honour provided an overview of the proceedings and litigation history and summarised the parties’ and child’s circumstances, the salient details of which have already been mentioned.
In relation to the mother’s application dismissed by Fowler J, his Honour viewed as significant the fact that when that decision was made the child had not yet commenced school [22]. At [32], it was observed by his Honour that there is no doubt the parties’ relationship “is one of growing animosity and conflict”. In terms of matters viewed by his Honour as significant, it is appropriate to mention his Honour’s reference to evidence given by a psychologist seen by the mother about the mother’s “moderate to high levels of distress as a consequence of the current circumstances” [35].
His Honour paid particular attention to the memorandum issued by the family consultant. The child is recorded as being “a sensitive caring young girl who is aware of everyone’s feelings” and who “seemed careful to try and present both parents in an equally favourable light” [40].
There is no challenge to his Honour’s finding at [41] that the child appeared to find a number of difficulties with having a number of “homes” such as:
a)the child’s perception that there is a degree of conflict between the mother and father,
b)the child’s experiences in organising and transferring her belongings between various households in Sydney and between Sydney and [M],
c)the geographical distance between Sydney and [M],
d)adjusting to the different pattern of care each parent provides,
e)managing the emotional adjustment of moving between her parents and the respective households.
His Honour accepted the family consultant’s evidence that there is some suggestion that the child sometimes finds what she perceives to be the father’s very high expectations of her difficult to manage.
After his Honour set out the legal principles which must be considered on an application to dismiss a parenting application when a respondent invokes the rule in Rice & Asplund, his Honour discussed and explained his reasons why the father’s application would fail.
He placed real significance on the child’s need to have a primary residence so as to either continue her attendance at school in Sydney and, in that circumstance, perhaps live primarily with the father, or be permitted to live with the mother in M and attend school there. The child’s current circumstances were described as fractured. His Honour observed that the effect of the father’s proposal would be to expose the child to continuing conflict between her parents, conflict of which she was all too aware. The mother’s distress as to her current circumstances, accommodation and travel, as well as concern for her relationship with the child by reason of how the father involved her in these proceedings, was mentioned.

Central to his Honour’s decision were his clearly articulated views that the child’s relationships with her parents are “clouded” by underlying parental conflict [64], her current “most unsatisfactory arrangements” [67], that the child needs the current dispute about where and with whom she lives to be resolved one way or the other [59] and that it was probable that the 5 March 2008 orders, on hearing, would be varied in a significant way [52].
In a similar vein, his Honour viewed as significant that although the

5 March 2008 orders were entered into voluntarily, the orders were made well prior to the child commencing school “and probably with little foresight as to the issues that have subsequently arisen”, such as the physical and financial difficulty of compliance.
After his Honour reiterated concern about the impact of ongoing parental conflict upon the child, he observed that to allow the present position to remain unresolved would leave the child caught between her parents’ wishes and desires. His Honour explained and gave real weight to the fact that the orders entered into on 5 March 2008 which required the mother “to relocate her residence [to] Sydney was entered into well prior to the child commencing formal schooling, shortly after the mother met her current husband, well prior to the mother’s marriage to her present husband and well prior to the child of that relationship [W], [the child’s] half sibling, being born …” [75]. The changes in the parties’ households subsequent to the making of those orders were found to represent a significant change in relationships for the child.
Having considered the factors set out in s 60CC of the Act his Honour was satisfied that it was in the child’s best interests that the mother’s application proceed.

Discussion

By way of an overarching submission said to permeate each of the grounds of appeal, it was submitted by counsel for the father that a party cannot disobey parenting orders and, because of the consequences of his or her disobedience, have a court entertain an application to change those orders. We do not accept that there is a principle of general application in parenting cases to that effect. It is well settled that the court’s task in parenting cases is to take steps with the child’s best interests as the paramount consideration. It follows that when evidence is presented which demonstrates that, for whatever reason, a child is in a difficult situation which one or other of the child’s parents seeks to address, even if that parent, in disobedience of orders, created the circumstance under which the child suffers, the child needs the problem to be solved. Even where the significant change in circumstances has been created in breach of an order, the child’s best interests may require that the court entertain that parent’s application to change the orders.
By ground 1, it is asserted that his Honour failed to consider whether there was a substantial change in circumstances such as to justify the serious step of allowing the mother’s application to change the 5 March 2008 parenting orders to proceed to a hearing. It was submitted by counsel for the father that although his Honour correctly set out the relevant principles, he failed to answer the questions thereby posed. In particular:
(i)did the mother establish a prima facie case of changed circumstances; and
(ii)whether those changes are sufficiently significant to justify embarking on a hearing. DL & W (2012) FLC 93-496.
In relation to this ground, the focus was upon his Honour’s consideration of whether the mother had established a prima facie case of changed circumstances which, at [78], he found that she had.
Insufficient attention was said to have been given to the mother’s circumstances when the 5 March 2008 orders were made compared with those upon which she now relied. As to the latter point, counsel focused on the argument that the asserted difficulties upon which the mother relied arose as a consequence of her disobedience with her obligations pursuant to the

5 March 2008 orders. Before we commence discussion of this ground, it is appropriate to observe that it would have been wrong of his Honour to focus solely on whether the mother’s circumstances had changed. It was incumbent to also consider, as he did, whether there was a significant change to the child’s circumstances.
As our discussion of the background facts reveals, during the period that the mother and child were “permitted” to live in M, the nature of the mother’s and Mr C’s relationship changed following which they purchased a property at M. It will be recalled that from the commencement of the third period covered by the orders the mother and child were required to “return to live in Sydney”. It was submitted that, by continuing to own property in M and living there with the child (other than when the child was with the father or at school in Sydney), the mother disobeyed the orders. As that proposition was discussed, the disobedience was recast to the mother having failed to abide by the spirit of the orders by ensuring that the child had only two homes in Sydney. We do not accept that the orders required the mother to relinquish her and the child’s connections to M or her home in M. Where in accordance with the orders the child lives with the mother in Sydney so that she can attend school and spend time with the father (in Sydney), the argument that the mother has disobeyed the order about where she and the child would live is not accepted.
Nor is it correct to say that his Honour failed to consider the father’s argument that the change in circumstances which his Honour viewed as important were a consequence of the mother failing to give up her M property. As will be discussed further, his Honour gave greater weight to the situation in which the child found herself amid conflict between her parents and to a raft of circumstances that have arisen in the years which followed the consent orders. For example, the mother having married and having a child with her husband, who remained resident in M, was significant.
His Honour’s judgment clearly exposed the reasons why, in the quintessential exercise of his discretion, the mother’s case established the relevant magnitude of change. With respect to the argument advanced by counsel for the father that more could and should have been said by his Honour on that topic, we are satisfied that his reasons for decision are sufficient.
Ground 2 asserts that his Honour erred by failing to take into account the likely adverse impact on the child of the mother being permitted to continue with her application. In other words, that he failed to comply with the third limb of Marsden v Winch, namely, that having found the requisite changed circumstances and a likelihood that the orders would be varied, it was necessary to weigh the nature of those likely changes against the potential detriment to the child which would be caused by the litigation itself.
As has already been mentioned, his Honour was particularly concerned about the extent to which the child had become involved in the dispute between her parents and postulated that this was probably one of the main reasons why she commenced counselling with her school counsellor. It is evident that

his Honour was concerned by what he not unreasonably perceived to be the child’s difficult position being caught between her parents and the need to give further consideration to her living arrangements now that she was at school.
There was no expert evidence called in the father’s case which established how this child might be affected if the mother’s application to change the 5 March 2008 orders was permitted to proceed. We agree with the submission advanced by counsel for the father that expert evidence was not required and that the rule in Rice & Asplund is founded upon well settled principles that continuous litigation over a child is not generally in the child’s interest (Marsden v Winch). However, because of the absence of evidence that this child might be adversely affected in some particular manner, his Honour could do no more than undertake this component of the exercise by reference to the principle and, to the extent necessary, under Part VII of the Act.
There can be no doubt that reading his Honour’s reasons for decision in their entirety, he was acutely aware that the very reason for the hearing was to consider whether the consequences to the child of further litigation were outweighed by other factors concerned with her best interests. In those circumstances, given the passage of time since the orders were made,

his Honour’s repeated observations to the effect that the child was in a situation which was inimical to her welfare, that the orders were likely to change in a material way and the other matters upon which his Honour placed weight, his Honour did not err in the manner suggested.
Ground 3 and 4 overlap and were addressed concurrently. We will adopt the same approach.
By ground 3, the father acknowledges that although the mother established some changes, she failed to establish “new or significant issues in the relevant sense” which post dated the orders she sought to vary. In essence, it is submitted that the changes which his Honour said were significant could not be so characterised. Ground 4 asserts that his Honour erred in that he failed to consider that some of the changed circumstances which underpin his Honour’s decision occurred after the mother informed the father that she would seek a change in the parenting orders. The point being that the parental conflict and distress caused to the mother and child arose not by a change that had occurred independently of the mother’s attitude to the 5 March 2008 orders, but rather as a consequence of her determination to re-agitate matters resolved by those orders.
To the extent that the challenge relies upon the submission that the difficulties for the child and mother are no more serious than exist in any family with a shared care living arrangement and thus were entirely foreseeable, we are unpersuaded. As has already been mentioned, his Honour, at [75], placed real weight upon the orders having been entered well prior to the child having commenced school, well prior to the mother’s marriage and birth of the child’s half sibling and the unsatisfactory nature of her living arrangements.
It was submitted that examination of the chronology of problems for the child and mother relied upon by the mother to establish changed circumstances and the likelihood that the 5 March 2008 orders would be varied in a material way should be viewed as no more than the mother attempting to create a basis for this application, and it was argued that the matters relied upon by the mother from mid-2012 did no more than show her preparing to commence proceedings.
The submission challenged the reliability of the mother’s evidence in relation to:
·the child developing sleep problems;
·her complaint to the father in early September 2012 that the current arrangements were not working;
·her raising concerns about the child’s emotional health with school counsellors;
·the complaint that by November 2012 the child was “incredibly stressed”;
·the child commencing to see her school counsellor; and
·the mother commencing to see a psychologist.
It should be observed that this argument was not advanced to his Honour and thus cannot be advanced here (Metwally (No 2) v University of Wollongong (1985) 60 ALR). That said, we do not accept that at this preliminary stage it necessarily follows that the significance of this evidence is lessened merely because not long thereafter the mother commenced proceedings. Having agreed to determine the Rice & Asplund issue at a preliminary stage and conduct the hearing without cross-examination, it was open to his Honour to take this evidence at its highest ( Miller & Harrington (2008) 39 Fam LR 654).
It was also submitted that, to the extent that his Honour was concerned about conflict between the parties, he should have found that this was contrived by the mother to bolster her case and that closer scrutiny of the evidence revealed that (absent the issue about whether the child should live with her in M) the parental relationship was without conflict. Reference need only be made to the dispute about the child being able to continue to attend her school counsellor and the family consultant’s memorandum to establish that the point cannot be maintained.
We do not accept that his Honour’s findings were not available to him or that the matters which he identified as being significant were characterised in a manner which would vitiate the exercise of his discretion.
During the hearing, counsel for the father sought and was granted leave to amend the Notice of Appeal so as to add an additional ground. Permission was granted and by ground 5 it is asserted that the trial judge erred insofar as his determination relied on a finding that the consent order was entered into by the mother probably with little foresight as to the issues that have subsequently arisen.
This challenge impugns his Honour’s finding in relation to the application of s 60CC(3)(e) of the Act. That subsection is concerned with the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis. In this context his Honour found that “[t]he practical difficulty and expense in fact is a result of the present obligations cast upon the mother by reason of the present orders that were made well prior to the child commencing formal schooling, by consent without judicial determination and probably with little foresight as to the issues that have subsequently arisen” [59].
When invited to take us to the evidence on this topic, counsel for the father said that there was none. As counsel for the mother correctly pointed out, there was.
At paragraph 11 of the mother’s affidavit filed 21 December 2012 she deposed:
… I entered into these order (sic) with advice however at the time I could never have conceived my circumstances now and the pressure of our travel and living in 2 homes for me and [W] each week, 3 homes for [the child] each week, the separation from my husband and his separation from us each week. The increased travel time on the M5 in peak hours and the disruption of the orders to facilitate the father spending time with [the child] on a Thursday night.
No submissions were made to his Honour that the mother’s evidence on this matter was unreliable.
It does not follow that because the mother obtained legal advice before she entered into the 5 March 2008 orders and had a few weeks earlier commenced a relationship with Mr C, that the evidence referred to in paragraph 11 of her affidavit is inherently incredible or that the finding under challenge in ground 5 was not available.
In addition, the mother’s psychologist gave evidence as follows:
[The mother] reports she was very surprised when [the father] began court proceedings as historically he had not been particularly interested in [the child]. [The mother] reports she found the court proceedings extremely distressing. She states she felt completely misunderstood and misrepresented. She had no experience with court proceedings and felt devastated and helpless with the outcome. [The mother] states the orders required her to have [the child] at a day-care in [J] on Wednesday’s (sic) and Friday’s (sic) so [the child] could spend Thursday night’s (sic) with her father. [The mother] reports [the child] had only had a hand full of sleepovers with [the father] prior to these orders being made. She states that [the father] would constantly be on the phone asking for instructions during these sleepovers. [The mother] believes that [the father’s] motivation for ordering her and [the child] back to Sydney were his last successful attempt at controlling her.
[The mother] reports that the court orders she and [the child] have been required to live by over the past 4 years have been extremely challenging. [The mother] believes the current orders are placing stress on both herself, her 8-month-old boy … and [the child]. She reports that [the child] is currently spreading her time between 3 homes, her country [M] home with [the mother], [the mother’s husband] and [the child’s half-brother], her Sydney home with [the mother] and [the child’s half-brother] and her [V] home with her father and her fathers (sic) partner … (pp 5-6 of mother’s treating psychologist report, 25 January 2013)
In light of this evidence and the absence of challenge to it in the court below, this ground cannot succeed.

Conclusion

We are satisfied that his Honour’s decision to allow the mother’s application to proceed was properly made and does not warrant appellate interference.
The appeal will be dismissed.

Costs

In the event the father was unsuccessful, the mother sought an order for costs.
The father has been wholly unsuccessful and it is proper that an order for costs is made in favour of the mother.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 27 August 2013.

Associate:

Date: 27 August 2013