Rochford & Fitzhugh - [2019] FamCAFC 218

FAMILY COURT OF AUSTRALIA

ROCHFORD & FITZHUGH

[2019] FamCAFC 218

FAMILY LAW – APPEAL – PARENTING – RELOCATION –Where the primary judge refused the mother’s application to relocate with the child – Whether the primary judge erred in determining that on the mother’s proposal for time there was a very high likelihood that the child’s meaningful relationship with the father would be diminished – Where the primary judge erred in proceeding on the basis that a relationship that is something less than optimal cannot be meaningful – Failure to consider mother’s proposal in light of practicalities – Where the primary judge failed to assess and evaluate the competing proposals of the parties – Where his Honour failed to consider evidence that was before his Honour – Discretion miscarried – Appeal allowed – Cost certificates ordered.

Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96
Godfrey & Sanders (2007) 208 FLR 287;[2007] FamCA 102
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
M & S (2007) FLC 93-313; [2006] FamCA 1408
Perdicari & Perdicari (2019) FLC 93-914; [2019] FamCAFC 147
Porter v Byrne (2009) 40 Fam LR 644; [2009] FamCAFC 8
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
U v U (2002) 211 CLR 238; [2002] HCA 36
Zahawi & Rayne [2016] FamCAFC 90

APPELLANT:

Ms Rochford

RESPONDENT:

Mr Fitzhugh

FILE NUMBER:

BRC

3717

2018

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

21 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ainslie-Wallace, Aldridge & Carew JJ

HEARING DATE:

30 July 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

1 February 2019

LOWER COURT MNC:

[2018] FCCA 3956

REPRESENTATION

THE APPELLANT:

In person

THE RESPONDENT:

In person

Orders

The appeal against the orders of Judge Howard made on 1 February 2019 is allowed and those orders are set aside.
The application be remitted for rehearing by a judge of the Federal Circuit Court of Australia other than Judge Howard.
There be no order as to costs.
The Court grants to the appellant costs certificates pursuant to ss 9 and 8 of the Federal Proceedings (Costs) Act1981 (Cth) being certificates 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 her in relation to the appeal and the new trial in the matter.
The Court grants to the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act1981 (Cth) 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 him in relation to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 16 of 2019
File Number: BRC 3717 of 2018

Ms Rochford

Appellant

and

Mr Fitzhugh

Respondent

REASONS FOR JUDGMENT

Ainslie-Wallace & Aldridge JJ

On 1 February 2019 Judge Howard in the Federal Circuit Court made orders determining competing parenting applications between Ms Rochford (“the mother”) and Mr Fitzhugh (“the father”) in relation to the parties’ only child, X (“the child”) who was born in 2016.
The mother sought orders, inter alia, that she be allowed to relocate with the child from South East Queensland to South Australia and for the child to spend every second weekend with the father. The father opposed these orders seeking instead that the mother and child remain living in Queensland.
In summary, the primary judge dismissed the mother’s application and ordered that the parties have equal shared parental responsibility for the child and that the child live with the mother. His Honour’s orders permitted the mother to live within an area 70 kilometres of Suburb A (“the South East Queensland area”). The orders provided for the father to spend time with the child.
The mother appeals those orders.
It is useful to give some factual background to lend context to the grounds of appeal.
The parties met and began to live together in South East Queensland in January 2015. They separated on 4 January 2018 but remained living in the one house until the father left on 1 March 2018.
While the mother’s application sought permission to relocate with the child to South Australia, an application opposed by the father, he did not seek an order that the child live with him in the event that the mother moved to South Australia but rather sought orders that would eventually provide for him to share the child’s care equally with the mother. At the time of the hearing before the primary judge, the father was spending two days in each week with the child who stayed overnight with him for one of those days and on one day of the weekend with the child staying overnight.
The mother is from South Australia where her family are primary producers. She has a child from an earlier relationship, Y who was born in 2006. The mother and the father of Y met and conducted their relationship in South Australia. In 2009, after the breakdown of the relationship with Y’s father, the mother sought an order permitting her to relocate the child’s residence to Queensland. Although this was initially opposed by the father of Y, it was eventually conceded and the mother and Y moved. At that time Y was about three years old. Up until the time that he and the mother moved to Queensland, Y had been spending each second weekend with his father. It was undisputed that despite the distance between Y and his father, the mother fostered and supported the relationship between them. Shortly before the instant application, Y moved to South Australia to live with his father at the mother’s instigation. Up until that time, Y had only lived with the mother.
In essence, the mother’s application to relocate the child’s residence to South Australia was because of her desire to be near her family and to receive their support, to take up her family’s offer for work and for her to be near Y. She said that she had no family and few friends in South East Queensland.
Although the mother was working at the commencement of the relationship with the father, after the birth of the child she stopped work and, at the date of the hearing before the primary judge, was not working. She was in receipt of Centrelink payments and payments of child support from the father.
The father has a child from a prior relationship who spent considerable time with the family during the relationship. That child was aged 13 years at the date of the hearing before the primary judge.
While the primary judge accepted the mother’s evidence of the emotional support from her family in South Australia and that it was her desire to relocate there, he nonetheless concluded that she had lived for many years in South East Queensland and had “good, stable, steady friends” there (at [37]). His Honour, notwithstanding the mother having said she had tried without success to find work in South East Queensland, inclined to the view that she had not tried very hard to gain employment. He dismissed her evidence that her family would provide her with work in South Australia through the primary producers community as “a nebulous concept”, coming to the conclusion that there was no particular evidence one way or the other (at [43]). His Honour found then that it was more likely than not that the mother could find “appropriate employment - in South East Queensland”, although his Honour did not indicate quite what that work would be (at [44]).
His Honour considered the practical difficulties and cost of the child spending time with the father if the child lived in South Australia and concluded that the estimated $800 per month cost of airfares could be used by the mother to support herself in Queensland (at [52]). His Honour had earlier noted that the father offered to pay the mother $250 per week to assist with costs associated with living in South East Queensland and ultimately ordered that he provide that support.
The mother complained that the father was controlling of her in a number of ways, a belief that the family report writer accepted as being genuinely held. (Transcript 6 December 2018, p. 114 lines 40-41).
His Honour did not consider the mother’s evidence of the conduct which she regarded as the father’s controlling behaviour as being sufficient to tip the balance against a refusal to permit the mother to relocate the child’s residence and said:
36.To the extent that it could be said that the father engaged in family violence as defined in the Act, I do not consider that it was a significant factor in this case. There is no evidence, there is certainly no medical evidence, and there is no psychological evidence that the mother in this case, for instance, needs to be granted permission to relocate [the child’s] residence to South Australia in order to escape the father’s conduct. I note, of course, the authorities are very clear a person does not need to show compelling reasons to relocate, and it is indeed the case that a person’s wish to relocate is an important factor for the Court to take into account.

The Appeal

The mother, who appeared for herself on the appeal drew the grounds of appeal, which while discursive identified the issues relevant to the appeal. In short, the mother contended that the primary judge erred in the exercise of his discretion by failing to adopt a principled approach to the determination of the issue in accordance with well accepted authority, in particular in failing to give proper consideration to the proposals of each party and to determine, in the light of those proposals what would be in the best interests of the child. As part of these grounds, the mother contends that his Honour failed to take into account relevant matters and further failed to give relevant matters sufficient weight.

The maintenance of a meaningful relationship

There was no dispute that at the time of the hearing, the child enjoyed a meaningful relationship with the father although she regarded the mother as her primary attachment (Transcript 6 December 2018, p. 106 lines 39-42). An issue of significance for his Honour was whether the mother’s proposal for the time to be spent by the child with the father in the event of a move to South Australia would enable the maintenance of that meaningful relationship.
It seems that the primary judge’s decision to refuse to permit the mother to relocate the child’s residence from South East Queensland to South Australia rested principally on his conclusion that if there was such a move there is a very high likelihood that the child’s meaningful relationship with the father would be either effectively destroyed or significantly diminished.
The primary judge identified the benefit to the child of having a meaningful relationship with both parents as being of “crucial significance in the current case” (at [10]). The conclusion reached was that if the child was to move to South Australia with the mother, “there will not be, or there is a very high likelihood that there will not be, a meaningful relationship between [the child] and her father” (at [10]).
The primary judge said that he was confirmed in this view by the evidence of the family report writer to which he then referred.
The primary judge recorded the following passage from the oral evidence of the family report writer at [12]:
… I mean, the difficulty that you have with that arrangement and, you know, maybe the practicalities will come down to it that that’s all – all that can happen and that that’s a decision for the judge to make. But if I could say that if – if that’s the best we can do, then, yes, it’s okay but it’s not – it’s certainly – it’s certainly not a good arrangement for the child because at the age that she is that that makes it a very fragmented relationship with her dad because she doesn’t – she’s not old enough to hold the continuity in her head that an older child can do.
(Emphasis removed) (Emphasis added)
His Honour did not refer or apparently give any weight to the words which we have emphasised but instead focussed on the words “not a good arrangement” and “fragmented”.
Two things may be said at this stage. The Court is tasked with considering the benefit to the child of a meaningful relationship. A relationship may be less than optimal but nonetheless meaningful (Godfrey & Sanders [2007] FamCA 102 (“Godfrey”) at [33]-[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182]). The primary judge, however proceeded on the erroneous basis that a relationship that is something less than optimal cannot be meaningful.
Secondly, the primary judge correctly recorded that the evidence of the family report writer was in response to questions based on a proposal that the child would spend time with the father once every four weeks (at [13]). The family report writer was then asked to give her opinion as to the child spending time with the father every fortnight which was the mother’s proposal at the hearing. The family report writer said:
[COUNSEL FOR THE MOTHER]: Right. Now, the other side of those proposals then was not just the time away from one parent but the time with – sorry, not just the time away from dad, but the time away from mum. At the moment, [the child] is spending time with her father for one overnight at a time, if I can put that to you?
[THE FAMILY REPORT WRITER]: Yes.
[COUNSEL FOR THE MOTHER]: Is that developmentally appropriate for a girl of two years and 10 months?
[THE FAMILY REPORT WRITER]: The younger the child, the – in – in general terms, what you look at is more frequent and less lengthy visits. Okay? So – but I – yes, look, it’s compromise because – I mean, I guess what you’re asking me is within the context of the mother’s proposal to live in South Australia. Is that what you’re saying?
[COUNSEL FOR THE MOTHER]: No, I’m actually asking more generally?
[THE FAMILY REPORT WRITER]: Okay.
HIS HONOUR: Well, can you clarify the question? I wasn’t sure what the question was.
[COUNSEL FOR THE MOTHER]: Yes, certainly.
[COUNSEL FOR THE MOTHER]: Given [the child’s] age – if I can break it down a little?
[THE FAMILY REPORT WRITER]: Yes.
[COUNSEL FOR THE MOTHER]: Given [the child’s] age, is one overnight at a time appropriate?
[THE FAMILY REPORT WRITER]: That’s my preference, yes.
[COUNSEL FOR THE MOTHER]: Okay. When might she be old enough for more than one overnight – for two overnights at a time?
[THE FAMILY REPORT WRITER]: I would have – I would have said that you would be looking at doing that at the age of three and a half to four.
(Transcript 6 December 2018, p. 108 lines 6-31) (Emphasis added)
Although the answer was not pursued, the clear thrust of the evidence was that the preferred time every fortnight was “a compromise”, presumably an acceptable one in the opinion of the author of the family report.
The primary judge did not apparently take that evidence into account when considering the family report writer’s evidence quoted at length by his Honour, that a growing child would have difficulty in maintaining her knowledge of the father if she did not see him frequently. His Honour said:
13.I do note that, particularly at that point in the evidence, [counsel for the mother] was asking [the family report writer] about an arrangement whereby the child would see the father once every four weeks and [counsel for the mother] asked [the family report writer]:
“…what age would [the child] be developmentally able to maintain that knowledge of her dad?”
[The family report writer] replied:
“…It varies, I guess, from child to child. But in terms of cognitive development in general terms you would probably be looking six or seven onwards…”
14.[Counsel for the mother], quite rightly, then put to [the family report writer] a different scenario, the one that that is currently now the mother’s proposal:
“…If the time with the father was more frequent, so it was alternate – instead of once every four weeks, it was once every two weeks, at what age might [the child] be able to retain that knowledge of her dad?...”
[The family report writer] replied:
“…Probably, if it’s augmented with FaceTime and the like, you’re probably looking four and a half…”
(Emphasis removed)
This led his Honour to conclude:
16.... I accept that the relationship is established. But, on the evidence of [the family report writer], the opinion of the expert is, at this age, this child is not old enough to retain that knowledge of her father and it is apparent from the evidence of [the family report writer] that, without retaining the knowledge of her father, it seems to the Court to inevitably mean that it will not be possible to maintain the meaningful relationship. That was certainly the thrust of [the family report writer’s] evidence. I acknowledge that [the family report writer] said in her evidence that in relation to a young child, such as one the age of [the child], the Court should be looking at more frequent and less lengthy visits with the father…
(Emphasis added)
The evidence from the family report writer was not that it would not be possible to maintain the relationship but rather that by the age of four and a half fortnightly visits augmented by FaceTime would be sufficient for the child to retain knowledge of her father, although it would vary from child to child.
At the time she gave this evidence the family report writer had not been made aware that the mother had already successfully managed the maintenance of a relationship between a young child and his father over a long distance by means of a similar demanding regime. As we have indicated, in early 2009 the mother moved from South Australia to South East Queensland with Y and as a result Y visited his father regularly, seeing him in South Australia in one month and South East Queensland in the alternate month.
Although the family report writer had interviewed Y in preparation of her report, she was not aware until giving evidence that Y had maintained a long distance relationship with his father and with whom he apparently had a meaningful relationship. The family report writer was asked whether she had discerned any “damage” to Y’s relationship with his father (Transcript 6 December 2018, p. 110 lines 20-23). She replied:
No, there was nothing that I saw. I mean, my observations, or my sense of that whole side of that family was that the mother and [Y]’s father had worked a quite cooperative arrangement. Given that they had such a distance between them they were able to sustain a relationship with – between the child and both parents.
(Transcript 6 December 2018, p. 110 lines 23-28)
In response to a further question “so [Y] had been able to maintain the meaningful relationship with his father despite the distance” the family report writer replied “[y]es, that’s right” (Transcript 6 December 2018, p. 110 lines 32-33).
The unchallenged evidence of the father of Y was that the mother had facilitated and managed a warm and meaningful relationship between the child and him and all of the paternal side of the family (Affidavit of Mr C filed 14 September 2018, p.2).

The family report writer accepted that the mother had been able to facilitate a relationship between Y and his father albeit in the context of a cooperative relationship. The relationship between the mother and the father could not be so described. The evidence continued and his Honour asked the family report writer:
[HIS HONOUR]: Yes. So when you say until they can work cooperatively, the fact that there has not been a lot of cooperation this year and there’s currently a lot of what I would say mistrust between them, is that another reason why it might not be a good idea for the court to grant the mother permission to go to South Australia?
[THE FAMILY REPORT WRITER]: Can you elaborate a bit more what you mean?
[HIS HONOUR]: Well, just in terms of if they currently don’t really trust each other, it seems to me that that’s more likely to be another reason why the court would not grant permission for one of them to move interstate with the child, given the child will then be with one parent primarily in another state, in a situation where these two, the parents, are not really cooperating all that well. Is that something that has influenced or would influence your opinion?
[THE FAMILY REPORT WRITER]: I understand where you’re coming from, your Honour. The – the advantage that the mother has, in terms of this issue about lack of cooperation and a power differential against her, is that she does have the history of having worked a sound relationship with the father of her older child.
[HIS HONOUR]: Yes?
[THE FAMILY REPORT WRITER]: And so I’m – I – I would be – if one could make a comparative comment, I would be less concerned about the mother moving away but still – and still able to support the relationship than I would, for instance, if it were the alternative of the father moving away and still supporting the relationship.
(Transcript 6 December 2019, p.113 lines 20–39) (Emphasis added)
The primary judge did not refer to this evidence and although the fact that the mother had successfully maintained a relationship between Y and his father was referred to in the introduction of his Honour’s reasons, it was not apparently taken into consideration on this issue at all.
It is important too to understand that in this regard, unlike many other similar cases, his Honour was not left to take a “leap of faith” about the relocating parent’s commitment to fostering a meaningful relationship with the other parent, because here, the mother had done that very thing with Y. It is important too to note that the evidence of the family report writer was that even though there were relationship difficulties between the parties, she had some confidence that the mother could maintain that relationship.
Finally, the primary judge did not refer to the family report writer’s evidence as to the limits of her opinions especially having regard to the mother’s assertions of family violence. The family report writer said:
[COUNSEL FOR THE FATHER]: So you’re discussing the relocation, that perhaps the mother’s reason for moving creates a situation where it’s actually not beneficial for [the child], is that right?
[THE FAMILY REPORT WRITER]: Well, it’s certainly not ideal, okay. The dilemma that I – that I had to, in some respects, ignore, even though it was the elephant in the room, and I’m conscious of – I was forwarded her most recent affidavit. The elephant in the room is whether or not she could – whether it’s practical for her to return to the [South East Queensland] and, of course, that’s out of my scope to be able to comment on that. So I had to talk in what might be termed – I don’t know what the right word is. But in terms – in terms purely of what are the developmental – what are the ideal developmental conditions for this child, and I had to leave aside these practical issues as to – as to how that might be – how that might be achieved.
(Transcript 6 December 2018, p.115 line 38 to p.116 line 2)
There, the family report writer was drawing a distinction, consistent with the authorities, in our opinion, between what is developmentally ideal for a child and that which might be less so, but adequate when the practicalities of life are addressed.
The mother argued that the evidence of the family report writer was not that there would not be a meaningful relationship but contended that the family report writer’s evidence about what might be “optimal” led his Honour wrongly to accepting that as the standard against which the move would be measured. She argued, correctly in our opinion (Champness & Hanson (2009) FLC 93-407 at 83,502), that the law does not mandate an “optimal” relationship but a “meaningful” one and further recognises that what is “meaningful” is reflective of the particular circumstances in each case (Godfrey at [36]; M & S (2007) FLC 93-313 at [45]). It cannot be the case as his Honour apparently accepted that the only way a “meaningful” relationship can be maintained is if parties live in geographical proximity.
The mother continued and argued that a long distance relationship with less frequent but longer time spent can nevertheless be a meaningful one.
The mother is undoubtedly correct.
It follows, that the primary judge failed to consider a principle of significance and important pieces of evidence. As a consequence, he failed to properly consider whether the mother’s proposal, whilst not optimal for the purpose of maintaining a meaningful relationship, might in light of the practicalities, nonetheless be adequate for that purpose. It follows that his Honour erred in considering the issue of meaningful relationship.

The parties’ competing proposals

The mother argued, again correctly, that where a party seeks to relocate a child’s residence, the judge must assess and evaluate the competing proposals of the parties. As we have said, she argued that his Honour failed to undertake that task and thus the exercise of his discretion miscarried.
It is to be recalled that at the time of the hearing before the primary judge, the mother was not working, was reliant on Centrelink benefits and had no house in which to live.
The mother submitted that the primary judge failed to take into account that the mother’s financial prospects in South East Queensland were not good. The primary judge said:
42.I note also that the mother did, in fact, withdraw her application for domestic violence. The issue of money and cost is a big issue in this case. The mother, of course, did have a very good job with [Company B] for six years, but she left there some time ago. The mother gave evidence that she has recently applied for quite a number of jobs – it might have been eight or ten or more – in the South East Queensland area but has not had any success yet. The mother did not provide any details of what the jobs were. The mother provided no details as to their salary.
43.The mother did not provide details of the nature of her actual applications for those particular jobs. Frankly, I have taken the view, having listened to the mother give that evidence and of the mother’s general evidence, that the mother, to date, has not tried particularly hard to obtain any employment in Queensland. The mother speaks in general terms about the possibility of working as a consultant, I apprehend, in South Australia and relying upon farming contacts of her parents and her family – frankly, a nebulous concept – and I note that there is no particular evidence one way or the other.
44.I have formed the view that the mother in this case is an experienced person, in terms of the work that she has done, and I have come to the conclusion that, with the outcome of these Court proceeding, that it is much more likely than not that the mother will be able to obtain employment – and I mean appropriate employment – in South East Queensland. The father has made an open offer that he will provide $250 a week for 12 months to assist the mother to defray costs so that she can live in the [South East Queensland] area and re-establish herself in the workplace.
Two points arise, while his Honour found that the mother would be more likely than not to obtain employment in South East Queensland, he did not say what that might be or even in what field. His Honour’s conclusion thus is at best unsupported by reasons and at worst, mere speculation. Secondly, his Honour later found that the mother was “at an employment disadvantage … because she did leave her job” and that “it will take her time to re-establish herself” (at [46]). This led the primary judge to require the father to pay to the mother $250 per week for two years support.
Such an order suggests that it will be neither easy nor quick for the mother to find a job in South East Queensland which was her point.
The mother’s evidence was that she could live in South Australia rent free for as long as she wishes. She had applied for jobs there. She also said:
21.I continue to be self employed in that business and have clients currently based in NSW and unlimited contacts in South Australia still [in primary industries].
(Mother’s affidavit filed 14 September 2018, p.5)
It is not immediately apparent why his Honour considered this evidence to be “nebulous” (at [43]). However, there was, contrary, to his Honour’s finding, evidence that clearly bore upon this point and which he failed to consider.
There are two further relevant matters on this issue.
His Honour found that the costs of the airfare would be $800 per month and said:
52.As to section 60CC(3)(d): the Court places, in the circumstances of this case, relatively significant weight on that subsection. I also note the practical difficulties and expenses of a child spending time with and communicating with a parent if the Court were to permit the relocation. The airfares alone, I apprehend from the evidence, were about $800 a month. That money, of course, can be put towards the mother maintaining herself in Queensland.
The question for his Honour’s determination was not whether the mother should maintain herself in Queensland but rather what order is in the interests of the child. If the father could afford to pay $250 per week to the mother, as the primary judge found he could, then he could afford the airfares. This appears not to have been considered by the primary judge because of the unexplained assumption that the money would be better spent in maintaining the mother in Queensland.
Finally, the mother’s evidence was powerfully to the effect that the father has engaged in controlling behaviour. Until the mother removed them, he used to watch her using the security cameras in the family home. He recorded every conversation with her. He removed her car, owned by his business, twice without telling her.
These matters cannot simply be brushed aside by saying, as the primary judge did, that the mother is a “strong and confident person” (at [34]).
The question this evidence raises is whether in those circumstances, it is desirable and in the best interests of the child for the mother to be required to live on or in the vicinity of South East Queensland on the basis of financial support provided by the father. That aspect of the matter was not explored by the primary judge.
The failure of the primary judge to consider the above issues leads to the conclusion that the exercise of his discretion has miscarried. Whilst each matter on its own might not have been material to the outcome, the combined effect is that substantial aspects of the evidence and the mother’s case have not been taken into account to the degree that the appeal must be allowed.

Costs

At the conclusion of the appeal hearing we sought submissions on the question of costs as is customary. The father maintained that if the appeal failed, he would seek an order for costs against the mother. It is to be observed that the father appeared for himself, and did not, in accordance with the appeal directions provide a schedule of the legal costs incurred by him in relation to the appeal. He indicated that he had been charged some $4,000 by his solicitor and barrister for their advices in relation to the appeal. The father could not say, and reasonably so, whether those charges were based on scale, and they clearly were not party/party costs. Those reasons of themselves would persuade against an order for costs, however, the mother said that her only source of income is Centrelink payments, child support paid by the father and the $250 per week that the father is presently paying her towards her rent on a property in South East Queensland.
We will make no order as to costs as between the parties.
As the appeal has succeeded on an error of law and the matter must be

re-determined, we propose to order costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) for each party in relation to the appeal and to the mother in respect of any rehearing. We do not propose to issue a certificate to the father for a rehearing based on his Honour’s conclusions that the father could afford to pay the mother $250 per week for her support and he owns a business which produces income for him.

Carew J

The mother and the father were unable to agree about parenting arrangements for their only child who was born on 19 February 2016. After a trial in the Federal Circuit Court of Australia, the primary judge made an order on 1 February 2019 which, most significantly for this appeal, precluded the mother relocating with the child from South East Queensland to South Australia.

Brief background

The mother and father lived together from 2015 to 2018. Each parent already had one child from previous relationships who were about the same age as each other. The mother’s child, Y was born in 2006 and lived with the parties during the relationship. The father’s child, Z was born in 2005 and spent every weekend and holidays with the parties during their relationship.
The mother relocated with Y from South Australia to South East Queensland in 2009 with the intention to marry a Mr D. Y’s father consented to the move and spent time with Y for up to three weekends per school term and half of the school holidays. After the mother’s relationship with Mr D came to an end, the mother remained living in South East Queensland for two years before meeting and commencing a relationship with the father in this case.
After relocating from South Australia in 2009, the mother worked full time in South East Queensland, initially as a manager for a large company and from 2010 until January 2016, as a manager at Company B earning $110,000 per annum. The mother returned to employment eight months after the child’s birth in a business the parties had established. The mother ceased her involvement in this business at the time of separation, although she continued to be self-employed in the consultancy business that she had set up in 2007 with existing clients in New South Wales and “unlimited contacts in South Australia” (Mother’s affidavit filed 14 September 2018, paragraph 21).
The mother’s family are primary producers who live about two hours from South Australia and after the breakdown of her relationship with the father, the mother craved support from her family. The mother proposed living in rent free accommodation about forty minutes outside South Australia. The flight time between South Australia and South East Queensland was said to be two hours and twenty minutes.
After separation in 2018, the mother sent Y to live with his father in South Australia for what she thought would be a temporary separation from her, given her intention to also relocate to South Australia.
At the time of trial the mother was living in temporary accommodation with friends and the child was spending time with the father overnight every Tuesday from 8.30am to 8.30am Wednesday, every Thursday from 8.30am to 5.30pm and one overnight each weekend alternating between from 8.30am Sunday to 8.30am Monday in one week and 8.30am Saturday to 8.30am Sunday in the other week.
It was common ground that the child had a close and loving relationship with the father.

The primary judge’s decision

The primary judge identified the ‘legislative pathway’ for parenting matters commencing with s 60CA of the Family Law Act 1975 (Cth) (“the Act”) which mandates that “in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration” (at [8]) (emphasis removed).
The primary judge then considered seriatim the relevant subsections of s 60CC of the Act which set out how the Court is to determine a child’s best interests (at [9], [15], [18], [49]–[50], [52], [53]–[56]).
The proposals of the parties were identified, namely, the mother proposed that she move to South Australia with the child where she would live rent free and where her family lived (at [37]). She proposed that the child spend time with the father on alternate weekends from Friday afternoon until Monday morning, with one weekend being in South East Queensland (she would bring the child to the father) and the other weekend the child would spend time with the father in South Australia. The father’s proposal was for the child to remain in South East Queensland and live with each of the parents for an equal amount of time with changeover occurring every two or three days (at [59]).
The primary judge considered the benefit of the child having a meaningful relationship with both parents to be of “crucial significance” (at [10]) and accepted the evidence of the family report writer, who said that if the child relocated the child would have a “very fragmented relationship with her dad” because the child is at an age where “she’s not old enough to hold the continuity in her head” (Transcript 6 December 2018, p.107 lines 30–32). The primary judge interpreted this evidence to mean that “this child is not likely to be able to retain the knowledge of her father in the event that she only sees him once every two weeks” (at [15]).
Allegations of family violence made by the mother against the father were considered and discussed at [18]–[36] with the primary judge noting that the mother’s primary complaint was that the father “was too controlling of her during the relationship” (at [18]) and in particular “not making sufficient finances available” (at [19]). The primary judge found that the “couple were living well beyond their means” (at [25]) and it “probably is the case, that the father had indicated to the mother that the expenses had to be reduced” (at [26]) but was not persuaded that the father’s conduct with respect to the family’s finances fell within the definition of family violence in s 4AB of the Act.
A further allegation of family violence involved the father allegedly monitoring the mother at home by the use of security cameras (at [28]). The primary judge found that:
31. …it is highly likely that the father obtained [the security cameras] in the first place for security reasons because of a previous burglary or burglaries… It also transpires that it would have been a nice way for the father to be able to see [the child] playing at home when the father was at work; however once the relationship between the parents became strained, the father should have removed those cameras as per the mother’s requests…
Ultimately, the mother removed the cameras herself with the primary judge finding that “the mother … was … not frightened of the father and was willing to take matters into her own hands” (at [29]). The primary judge found that as the mother perceived the cameras to be an invasion of her privacy and the father failed to remove them when requested, “[t]he father’s actions would, therefore … strictly speaking, probably come within the statutory definition of family violence” (at [32]).
In relation to an allegation that the father had pushed the mother on the day he left their shared home, the primary judge noted that there “was no real cross-examination of either party in relation to the events of that evening” (at [40]). The primary judge noted that the parties had been living separately under the one roof in what he accepted was “an extremely stressful situation” (at [40]). His Honour accepted “that the mother would dictate to [the father] when it was that he would be permitted to see [the child]” and the father “could hear [the child] running around upstairs but he was not permitted to see her” (at [40] & [41]).

The primary judge accepted that “the father may have pushed the mother” but concluded that “it will make no difference to the conclusion I have reached that [the child’s] best interests are served if the mother remains living in the [South East Queensland] area” (at [41]).
The father admitted to audio recording his conversations with the mother but said that it was to protect himself from allegations and that he had been advised to do so. The primary judge inferred that this behaviour commenced after separation and found that the father’s actions would have inflamed the situation (at [34]). Ultimately both parties were enjoined from recording each other.
The mother was found to have been understandably upset about the father removing her motor vehicle on two occasions. However, the primary judge considered the context of this family living beyond their means and found that it was more likely than not that the father had tried to get the mother to return the vehicle (at [64]).
The primary judge concluded – “[t]o the extent that it could be said that the father engaged in family violence as defined in the Act, I do not consider that it was a significant factor in this case” (at [36]).
The primary judge accepted the family report writer’s evidence that the child was primarily attached to the mother and that “[h]er sense of security is located in this relationship” (Family report dated 5 August 2018, paragraph 104). His Honour also accepted that the child had a meaningful relationship with the father, described by the family report writer as “a loving, secure relationship with her father” and that the child “appears to feel very safe in his care” (Family report dated 5 August 2018, paragraph 105) and concluded that relocation would be “emotionally costly” to the child (Family report dated 5 August 2018, paragraph 122) and not in her best interests. The final parenting order provided, among other things, for the parents to have equal shared parental responsibility and for the child to live with the mother and spend time with the father twice a week including one overnight day. The mother was restrained from relocating with the child outside the South East Queensland area.

Grounds of Appeal

Before commencing an analysis of the grounds of appeal, I observe that the primary judge’s reasons were delivered ex tempore shortly after the hearing. In such circumstances an appellate court will generally adopt a more lenient scrutiny than it would with a reserved judgment. As the Full Court in Porter v Byrne (2009) 40 Fam LR 644 per Warnick J at 653 noted:
44.Further, as recognised, the reasons were given ex tempore. In a paper entitled “Practical Impediments to the Fulfilment of Judicial Duties” published in The Judicial Review Vol 6 number 4, Heydon J said:
Thirdly, appellate courts will make assumptions in favour of an ex tempore judgment which they will not make for a judgment reserved for some time. A failure to refer to evidence in an ex tempore judgment, or to analyse it fully, is more likely to be excused on the ground that the recency of its tender makes it unlikely that it was overlooked …
In a more recent judgment of the Full Court (Ryan J sitting as a single judge) in Perdicari & Perdicari (2019) FLC 93-914 said:
25.Before the grounds of appeal are discussed it is important to remember that this is an appeal against a judgment given ex tempore, immediately following the hearing. Reference to the trial transcript demonstrates that the primary judge had a sound command of the facts in issue and the arguments advanced by each of the parties. Appellate courts make assumptions in favour of an ex tempore judgment, including that a failure to refer to evidence or analyse it fully may be excused on the basis that the currency of the judgment makes it unlikely that it was overlooked. Such an approach is appropriate in this appeal.
26.Furthermore, I agree with Boland J in Akston & Boyle[2010] FamCAFC 56 at 28 that:
Recognition that an appellate court should not over critically scrutinise an ex tempore judgment given shortly after a hearing in the same manner as a reserved judgment delivered after some period is based on commonsense and practicality. As Mason P observed in Maviglia v Maviglia[1999] NSWCA 188 “[a]n ex tempore judgment should not be picked over. And appropriate allowance should be given for the pressures under which judges of the District Court are placed by the volume of cases coming before them.” These comments are apposite to the caseload of Federal Magistrates in the Federal Magistrates Court (see also Porter v Byrne [2009] FamCAFC 8; (2009) 40 Fam LR 644).
In my view, the reasons for judgment and the transcript demonstrate that the primary judge was fully attune to the facts and arguments of each party at trial.
Turning then to consider the mother’s grounds of appeal, I note that, ultimately, the mother relied on the following six grounds of appeal:
1.The learned trial Judge erred on the facts and His Honour’s discretion failed overlooking matters which were vital to the decision regarding relocation.
2.The learned trial Judge failed to follow the prescribed legislative pathway for relocation
3.The learned trial Judge failed to take in to account material consideration, giving too little weight in deciding the inference to be drawn.
4.The learned trial Judge failed to give consideration to ‘Freedom of Movement’
5.The learned trial Judge failed to properly consider the proposals of the parties and their relevance in accordance with the prescribed legislative pathway for relocation.
…
7.The learned trial Judge failed to follow Authorities
(Amended Notice of Appeal filed 9 May 2019) (As per the original)
Ground six of the mother’s grounds of appeal was abandoned.
The mother’s submissions grouped Grounds 1, 2, 3 and 7 together and Grounds 4, 5 and 7 (again). For convenience I will address the grounds as argued at the appeal.

Grounds 1, 2, 3 and 7

The gravamen of these grounds is that the primary judge failed to apply correct principles when finding that relocation would preclude the child from having a meaningful relationship with the father. It was argued that the primary judge applied the wrong test i.e. that of an optimal relationship rather than a meaningful relationship.
To understand this argument, it is necessary to note that one of the primary considerations that s 60CC(2) of the Act requires a court to consider, when determining the best interests of the child, is “the benefit to the child of having a meaningful relationship with both of the child’s parents”. It is now well established that what is required to be considered is the benefit to the child of having a “meaningful relationship” not an “optimal relationship” (Godfrey at [36]).
In this case, the primary judge placed particular weight on the evidence of the family report writer who recommended against relocation given the tender age of the child who was not quite two years ten months old at the time of trial and, in particular, to what his Honour found to be the effect of the family report writer’s evidence, namely, “that this child is not likely to be able to retain the knowledge of her father in the event that she only sees him once every two weeks” (at [15]). In those circumstances, it seems to me that it was open for the primary judge to conclude that a meaningful relationship could not be maintained if the child relocated. The family report writer opined that by about the age of four and a half, the child would be developmentally able to retain knowledge of her father if augmented with FaceTime and the like, but, as noted by the primary judge, the child was “a long way from four and a half” (at [15]).
The benefit of maintaining a ‘meaningful’ relationship is, of course, only one consideration, albeit a primary consideration, required to be considered when determining what is in a child’s best interests (s 60CC of the Act). If the court found, given the “practicalities”, that relocation was nevertheless in the child’s best interests, despite a meaningful relationship being unable to be maintained, the family report writer opined that a regime of contact between the father and child which produced a “very fragmented relationship” and one in which the child was “not old enough to hold the continuity in her head” would be “okay” but “certainly not a good arrangement for the child” (Transcript 6 December 2018, p.107 lines 28–32).
In my view, the mother has conflated the concessions made by the family report writer about what might be “okay” given the “practicalities” (i.e. if other considerations in s 60CC nevertheless resulted in a relocation), with the family report writer’s opinion about the effect of relocation on the child’s ability to maintain a meaningful relationship with the father.
The mother also argued that the primary judge placed insufficient weight on her history of having facilitated the relationship between her older child and his father when she had relocated to South East Queensland from South Australia in 2009 in circumstances where that child was a similar age to the subject child. It is apparent from the reasons for judgment, that the primary judge was not only mindful of this fact but found that “[v]ery different considerations apply in relation to the current litigation” (at [7]). Those considerations were that, (unlike the earlier case involving the mother’s older child), the family report writer does not support relocation; the father does not consent to the relocation; and the father wants to spend time with the child more frequently than fortnightly (at [7]). The nature of the relationship between the parents in each of the two cases was also markedly different, with the family report writer describing the circumstances between the parties in the current case as “turbulent” (Family report dated 5 August 2018, paragraph 126). It is of course trite to observe that even if an appellate court takes a different view about the weight that should have been placed upon particular evidence that does not, of itself, justify overturning the original decision (Gronow v Gronow (1979) 144 CLR 513).
The mother identified only one specific factual finding which she challenged, namely, that she had good, stable and steady friendships in South East Queensland. When cross-examined, the mother conceded that she had been staying with a couple whom she had known for four years (Transcript 6 December 2018, p.21 line 16) and that she had previously stayed with another couple whom she had known for seven years (Transcript 6 December 2018, p.22 lines 30-32). In my view it was open to the primary judge to make the finding he did in relation to the mother’s friendships.

Grounds 4, 5 and 7

Doing the best I can to understand the mother’s submissions on these grounds, they seem to be as follows:
a)The primary judge failed to properly consider the competing proposals and had an obligation to formulate different arrangements for the child to spend time with the father to maintain a meaningful relationship if the proposals of the mother were found to be inadequate;
b)Insufficient weight was given to the mother’s right to freedom of movement in circumstances where the mother had established that she was in “financial crisis”; and
c)The primary judge did not deal “specifically” with the effects on the child if the mother is unable to relocate with her.
As to the duty of a trial judge in considering competing proposals, the Full Court said in Zahawi & Rayne [2016] FamCAFC 90 (Thackray, Murphy and Austin JJ):
19.In J & B, the Full Court referred with approval to what was said in F & B:
109.…Her Honour’s obligation was not to laboriously and exhaustively set out each and every advantage and disadvantage which she saw in each proposal put forward by the parties for the residence of/contact with their child. Her obligation was to deduce, from the evidence, and from her assessment of the parties and their witnesses, the essence of their competing proposals, and to decide, having considered the relevant matters referred to in s 68F(2) of the Act, which of those proposals would be more likely to advance the child’s best interests, which she was required to regard as the paramount consideration…
20.The passage refers to the statutory predecessor of what is now s 60CC but what was said there remains equally true of the current section, and to the current iteration of the Family Law Act 1975 (Cth) (“the Act”) more broadly. The statement is all the more true in the instant case because of the narrow parameters of this case….
(Footnotes omitted)
On my reading of the reasons for judgment, the primary judge appropriately considered the competing proposals as required.
While it is correct that a trial judge is not bound by the proposals of the parties (U v U (2002) 211 CLR 238 per Gummow and Callinan JJ with Gleeson CJ, McHugh and Hayne JJ agreeing at 260), the particular circumstances of each case will dictate what, if any, alternatives might meet the best interests of the child. The practical difficulties with devising a suitable regime in this case included the age of the child; the travel time for the parties and the child between South Australia and South East Queensland; the necessary commitments of the parties to their employment or proposed employment; the necessary commitments of the parties to their other children; the cost of travel and accommodation; etc. I do not regard the primary judge’s failure to explore further alternatives with the parties in the circumstances of this case as amounting to an error in the relevant sense.
The primary judge accepted that the mother would “much rather go back to South Australia” (at [60]). As at the date of trial, the mother’s only income was from Centrelink and child support of $179.44 per month. The mother had left her job with the family company after separation but was found to have had an impressive employment history in South East Queensland where she worked for six years at Company B earning $110,000 per annum. The primary judge accepted that the mother was “at an employment disadvantage at the moment” and would require time to re-establish herself (at [46]) and for that reason ordered the father to contribute $250 per week towards the mother’s expenses for two years. Although the mother contended that she had “recently applied for quite a number of jobs” (at [42]) and received only one response which was unsuccessful, the primary judge found that the mother “did not provide details of the nature of her actual applications for those particular jobs” and also that “the mother, to date, has not tried particularly hard to obtain any employment in Queensland” (at [43]). In my view this finding was open on the evidence and consistent with the mother’s actions in preparing for her anticipated relocation by sending her other child to live in South Australia. The mother conceded during her evidence that there were “many” jobs in Brisbane (Transcript 6 December 2018, p.41 line 18) and I note that the order ultimately made did not preclude the mother from living in Brisbane. In my view, given the mother’s history of employment; her concession that there were many jobs in Brisbane and the finding that she had not tried particularly hard to find employment in Queensland, it was open to the primary judge to find that the mother will be able to obtain “appropriate employment … in South East Queensland” (at [44]).
The mother made various assertions in her evidence at trial about there being better opportunities for her in South Australia and contended that she had “connections through family and friends” (Mother’s affidavit filed 14 September 2018, paragraph 88). The mother also proposed to obtain further educational qualifications by undertaking further study. Once completed, the mother contended that she would be able to consult in other industries. The mother’s evidence about her employment prospects in South Australia were found by the primary judge to be “nebulous” (at [43]) and in my view such a finding was open given the speculative and uncertain nature of the mother’s evidence.
The mother said in her evidence at trial that she felt “socially isolated” (Mother’s affidavit filed 14 September 2018, paragraph 97) in South East Queensland and had “few families to interact socially with on weekends with the children” (Mother’s affidavit filed 14 September 2018, paragraph 129). As already noted the primary judge found that the mother had “good, stable, steady friends [in South East Queensland]” (at [37]). The mother also submitted that her “happiness would be significantly affected” (Mother’s affidavit filed 14 September 2018, paragraph 125) if she remained in South East Queensland but there was no evidence that the mother’s parenting capacity would be undermined if she were unable to relocate with the child.
While a parent’s freedom of movement is a consideration, if there is a conflict between this and the child’s best interests, “priority must be accorded to the child’s welfare and rights” (AMS v AIF (1999) 199 CLR 160 at [144]).

Conclusion

In my view the appeal should be dismissed as the mother has failed to establish appealable error.

Costs

The father applied for costs in the event that the appeal failed. He represented himself at the appeal but indicated he had incurred costs of $4,000 in the preparation of the appeal. The father did not comply with the directions made in the appeal to file a schedule of the legal costs incurred by him in relation to the appeal. In addition, the mother’s financial circumstances remain modest and accordingly I would dismiss the father’s costs application.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Aldridge & Carew JJ) delivered on 21 November 2019.

Associate:

Date: 21 November 2019