SANTARIGA & FARRIS - [2020] FamCAFC 241

FAMILY COURT OF AUSTRALIA

SANTARIGA & FARRIS

[2020] FamCAFC 241

FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the primary judge made orders for the child to remain living with the mother in rural Queensland – Where the primary judge made an erroneous finding that the father did not want the child to live with him – Where that erroneous finding affected the primary judge’s decision – Where the plurality found that the primary judge did not follow the legislative pathway under s 65DAA of the Family Law Act 1975 (Cth) – Where the primary judge failed to properly address the proposals of the parties and the advantages and disadvantages of those proposals – Where the primary judge failed to consider and make findings with respect to relevant s 60CC factors – Where the primary judge failed to make findings clearly open on the evidence – Where the primary judge’s reasons for judgment are plainly inadequate in revealing how he has arrived at his decision – Where his Honour took into account irrelevant considerations – Where the primary judge erred in making findings not available on the evidence – Where the erroneous findings infected his Honour’s decision – Where there is merit in almost all of the grounds of appeal – Certain orders set aside as on and from the rehearing before the court below – Rehearing in relation to where and with whom the child lives, spends time and communicates with.

FAMILY LAW – APPEAL – COSTS – Where the appeal is allowed on questions of law – Costs certificates granted to the father and ICL for the appeal – Costs certificates granted to all parties for the rehearing subject to the mother making an application.

Family Law Act 1975 (Cth) ss 60CC, 65DAA, 69ZT
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

De Winter and De Winter (1979) FLC 90-605
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Lovett & McGregor (2019) FLC 93-935; [2019] FamCAFC 253
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42

APPELLANT:

Mr Santariga

RESPONDENT:

Ms Farris

INDEPENDENT CHILDREN’S LAWYER:

Burchill & Horsey Lawyers

FILE NUMBER:

BRC

9873

2016

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

30 September 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Watts & Tree JJ

HEARING DATE:

20 March 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

14 May 2019

LOWER COURT ORDER DATE:

24 May 2019

LOWER COURT MNC:

[2019] FCCA 1203

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms McDiarmid

SOLICITOR FOR THE APPELLANT:

Universal Law

THE RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Waterman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Burchill & Horsey Lawyers

Orders

The appeal be allowed.
Paragraphs 4, 5, 6, 7, 8, 9, 11 and 12 of the Order made on 24 May 2019 be set aside as on and from the date when the matter is first heard by a judge of the Federal Circuit Court of Australia pursuant to paragraph (3) of these orders.
The matter be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the primary judge in respect of the issues of where and with whom the child is to live, what time the child is to spend with the other parent, what communication there will be, and what arrangements will be put in place around spending time with the parents and communicating with them.
The Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (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 appellant father in respect of the costs incurred by him in relation to the appeal.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (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 Independent Children’s Lawyer in respect of the costs incurred by them in relation to the appeal.
The Court grants to the appellant father and to the Independent Children’s Lawyer costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (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 father and to the Independent Children’s Lawyer in respect of the costs incurred by them in relation to the rehearing.
Subject to the respondent mother advising the appeal registrar in writing within 14 days of the date hereof that she seeks a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), the Court grants to the respondent mother a costs certificate pursuant to that provision 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 mother in respect of the costs incurred by her in relation to the rehearing.

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 Santariga & Farris 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 52 of 2019
File Number: BRC 9873 of 2016

Mr Santariga

Appellant

And

Ms Farris

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Strickland & Tree JJ

Introduction

By Amended Notice of Appeal filed on 27 September 2019, Mr Santariga (“the father”) appeals from certain of the final parenting orders made by a judge of the Federal Circuit Court of Australia on 24 May 2019.
In summary, the orders appealed against provide for the child to live with Ms Farris (“the mother”), for the child to spend time with the father, for the child to communicate with the parents, for the parents to share equally in the costs of the child’s travel to spend time with the father, for the father to bear his own costs to travel to the B Town area where handovers for the purposes of the child spending time with the father are to take place, and for the Independent Children’s Lawyer (“ICL”) to be discharged. It is unclear to this Court why the father challenges the latter order given that there is no ground of appeal directed to it, and no argument contained within the father’s Summary of Argument which explains the challenge. In the circumstances, we can see no basis for setting aside this order in the event that the appeal is allowed.
The mother opposes the appeal, but the ICL supports it, although not in relation to the order discharging the ICL.

Relevant Background

The father was born in 1977 and is 43 years of age. He is employed as a teacher at an organisation. The mother was born in 1973, she 46 years of age, and she runs a rural property near F Town in rural Queensland.
The parents commenced their relationship in early 2012 and physically separated in mid-2015. There is a dispute about the actual date of separation but nothing turns on that issue for the purposes of the appeal.
The parents’ only son, X (“the child”), was born in 2013. The father has an older child from a prior relationship, Y born in 2011, who is nine years of age. Y lives with his mother and spends each alternate weekend with the father. The mother of Y also has another child Z who was about 13 years of age at the time of trial.
The parents lived at C Town in South East Queensland at the commencement of their relationship. This is where the father resided at the time of the trial before the primary judge.
In early 2015, the mother purchased a rural property about 80 kilometres from F Town in rural Queensland. After the parents separated, the mother relocated with the child to the rural property. That is where the mother and child resided at the time of trial and where they remain living. The child undertakes distance education from the mother’s home in F Town.
The father re-partnered in April 2018 with Ms S and since the trial of these proceedings, has moved in with her at D Town, about a 30 minute drive from where the father was residing at the time of trial.
At the time of trial, the mother and father lived approximately 1,300 kilometres apart from each other. The arrangements for the child at that time were that the child lived with the mother in F Town and spent time with the father one weekend per month in B Town at a motel.
The parents have made mutual allegations of family violence against the other in these proceedings. There are also allegations that the father has perpetrated domestic violence against Y’s mother. However, the primary judge found that there was not sufficient evidence for a finding that domestic violence occurred between the father and Y’s mother (at [69]), or between the parents to the proceedings (at [74]).
The father suffers from a medical condition and needs to administer medication for his condition. A concern for the mother at trial was the risk the father could lose consciousness when the child is alone with him, and the effect this would have upon the child. The primary judge considered this to be a factor in determining whether the child could live with the father if the mother did not relocate. However, the father conceded at the trial that he could obtain a medical alert device to address the mother’s concerns for when the child was spending time with him. This was an order made by the primary judge on 24 May 2019, and which is not the subject of this appeal.
Two family reports were prepared during the proceedings; one by Mr G in July 2017 and the other by Ms H in November 2018. The first family report recommended that the child should remain living with the mother and the second report recommended a shared parenting arrangement, however, if the mother did not move closer to the father, then there be a change in the child’s residence from the mother to the father.
An ICL was appointed to represent the child and their final position at trial was for the mother to relocate closer to the father, for the child to live with her and spend significant and substantial time with the father, and in the event the mother did not move with the child to live closer to where the father lived, the child move to live primarily with the father.
The father’s initial and primary position at trial was for the child to live with him, but if the mother moved closer to the father’s residence, he preferred for the child to live with the mother and to spend each alternate weekend and half of the school holidays (as well as special days) with him. On the mother’s case, she proposed the child live with her in F Town and spend one weekend per month in B Town with the father and half of the school holidays with the father at his residence. Both the mother and father sought orders for equal shared parental responsibility, albeit the primary judge incorrectly stated the mother sought sole parental responsibility at [183]. Although the primary judge misstated the mother’s position in this regard, nothing turns on this error and it was not the subject of any of the grounds of appeal.
The primary judge ultimately found that the child’s best interests would be predominately served by the mother’s proposal, being that the child remain living with her in F Town, and spending time with the father during the school holidays and time during each school term in B Town. The primary judge did not accept the mother’s proposal that the child spending one weekend per month with the father was sustainable in a costs sense, and found that that time be reduced to once per term, but the school holiday time during terms 1, 2 and 3 be increased from the orders which were in place before the trial. Equal shared parental responsibility was also found to be in the child’s best interests.
Although it was not clear from the primary judge’s reasons for judgment, the parties confirmed that at the time of delivery of the judgment (14 May 2019), his Honour requested that the parties draft proposed orders in accordance with his judgment. Those orders were subsequently made on 24 May 2019.

The Appeal

By his Amended Notice of Appeal filed on 27 September 2019, the father agitated 12 grounds of appeal which will be discussed in turn. At the hearing of the appeal, counsel for the father grouped together Grounds 1, 2, 8, 10, 11 and 12 and submitted that they all went to the heart of the appeal, namely that the primary judge failed to have regard to the meaningful relationships between the child and the father, and the child and the child’s half-brother.
The remaining grounds of appeal are said to assert that his Honour’s exercise of discretion miscarried.
The grounds will be addressed as they were addressed at the hearing, with the exception of Ground 4 which will be addressed as a precursor to Ground 1.

Ground 4 – The [primary judge] erred in finding that the father did not want the child to live with him.

It was submitted by the father and the ICL that the primary judge mistook the facts in finding that the father did not want the child to live with him, and this in turn affected the primary judge’s consideration of the parties’ proposals, being the subject of Ground 1.
The primary judge’s relevant findings are as follows:
56.I accept that those are issues to be determined, but the main issue is where the child lives – either at [F Town] with his mother, or with the mother in south east Queensland, given that the mother said she would move if the child was ordered to live near the father and the father did not want the child living with him full-time.
…
189.[The father’s] lack of such consideration can be understood because he does not want the child living with him, he wants the child each alternate weekend and during holidays.
…
192.But the father’s position is interesting, he does not want the child to live with him, an aspect of his case picked up by the mother. He only wants the child every alternate weekend.
…
208. Consequently, taking the salient facts:
…
b) The father does not want the child living with him;
…
However, there is no doubt that it was the father’s proposal at trial for the child to live with him in the event the mother did not relocate closer to the father. This was propounded in the father’s Case Outline filed on 11 February 2019, and also referred to in the father’s counsel’s opening and closing submissions to his Honour. The opening submissions were as follows:
[COUNSEL FOR THE FATHER]: But I do want to bring to your Honour’s attention something that – because neither party has really put in many alternative proposals, my client’s proposal is that the child live with him but he’s conscious of the fact that the mother told the family report writer that, if she had to choose between the property and the child, she would choose the child and she would relocate back into the area and we’re conscious of the fact that your Honour is not bound by the proposals of the parties, so that - - -
…
[COUNSEL FOR THE FATHER]: … it’s not necessarily a stark contrast live in in [sic] F Town with the mother or live in [C Town] with the father because, indeed, the mother could relocate with the child back into the area and the mother could remain the primary carer, if that was an order that your Honour saw was…
(Transcript 17 April 2019, p.5 lines 23–36)
And the closing submission as follows:
[COUNSEL FOR THE FATHER]: …The father’s proposal is – and I talk about the preferred proposal – that the child live with the mother in the [C Town] area. His alternative proposal, if the mother is not prepared to move, is that the child live with him.
(Transcript 18 April 2019, p.319 lines 4–7)
We note that, curiously, given his Honour’s findings referred to above, his Honour in [6] recorded that if the mother would not move, the father sought a change of residence. Nowhere does his Honour then explain how he arrived at the findings referred to in [22] above.
It was only if the mother also chose to relocate, which she said she would do if the child was ordered to relocate, that the father preferred the child to remain living with the mother and spend significant and substantial time with him. Otherwise, it remained the father’s position for the child to live with him.
The mother submitted to this Court, that the father stated at the commencement of the trial that he did not want the child to live with him and only wanted the child to spend each alternate weekend and half of the school holidays with him, to align with his other son’s time. However, when the mother was asked at the hearing of the appeal to locate where in the transcript the father said this, she could not do so.
It is evident from a reading of the transcript that the father’s proposals were before his Honour, and thus it can be seen that his Honour’s findings in the above paragraphs are erroneous. That said, the erroneous findings must have affected his Honour’s ultimate decision, otherwise the mistake will be immaterial (De Winter and De Winter (1979) FLC 90-605). That brings us to Ground 1.

Ground 1 - The [primary judge] erred in failing to apply or properly apply s 65DAA of the Family Law Act 1975 by:

a. Failing to consider whether an “equal time” or “substantial and significant time” arrangement was in the best interests of the child;

b. Failing to identify and assess the advantages and disadvantages of all the proposals before him;

c. Failing to consider the mandatory requirement of s 65DAA(5) as to reasonable practicability and the evidence of both parties as to the financial difficulties inherent in maintaining the prevailing living arrangements of the child.

Section 65DAA of the Family Law Act 1975 (Cth) (“the Act”) is clear in what it provides, and it will assist in understanding this ground of appeal to set out the relevant parts of that section as follows:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
…
Substantial and significant time
(2)Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
…
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…

Here, his Honour ordered that the parents have equal shared parental responsibility for the child, and thus his Honour was required to address s 65DAA of the Act.
As can be seen, that entailed his Honour considering whether the child spending equal time with each of the parents is in the best interests of the child and is reasonably practicable, and if it is, to consider making an order providing for equal time.
Then, if there is to be no order for equal time, the same considerations need to be brought to bear as to whether an order is to be made providing for the child to spend substantial and significant time with each of the parents.
Subsections (3) and (4) set out what substantial and significant time should look like, and subsection (5) provides the matters that the court must have regard to in determining what is reasonably practicable.
The section provides a clear structure for how a trial judge should go about applying it. However, it is readily apparent that here, his Honour did not follow that structure. Indeed, there is no structure at all to his Honour’s reasons for judgment, and that renders it almost impossible to determine whether, and if so how, he applied s 65DAA of the Act.
The absence of any discernible structure to his Honour’s reasons for judgment has resulted in any relevant findings being scattered throughout those reasons, in no particular sequence. For example, his Honour briefly touches on s 65DAA in [17], then it is not until [161] where he again refers to it, and says:
The Act sets out interconnected considerations, which may be tied together by parents exercising equal shared parental responsibility, and the Act gives a direction that the court considers a range of options from equal shared care, through to significant and substantial time through to any other time order which is in the child’s best interests.
His Honour then follows with [162] where he identifies the importance of the section and says:
Why this aspect becomes important in this case is because the mother is running a rural property and her evidence is that she will go into receivership if she has to move.
However, how that references the importance of s 65DAA is not explained.
His Honour then continues with the discussion of the impact on the mother if she was forced to move from her property, and her assertion that she would go into receivership (which is the subject of Ground 10). Then at [177] his Honour refers to the seminal decision of the High Court of Australia in MRR v GR (2010) 240 CLR 461 which addressed s 65DAA of the Act, and his Honour quotes from [15] of the High Court’s reasons for judgment.
His Honour highlights the High Court’s interpretation of s 65DAA(1) as being concerned with the “reality of the situation of the parents and the child”, and opines in [179] that “[t]he reality of these parents is the location of each, and their plans, and this must be taken into account when considering the time.”
That then leads into what can barely be described as his Honour’s consideration of equal time, concluding at [193] as follows:
I would not make an order for equal shared care as such could not be in the child’s best interests on that evidence – there is simply not the absolute commitment by the father to shared care.
Pausing there, as can be seen, his Honour is not prepared to order equal time because of the father’s position in relation to shared care. In other words, applying his Honour’s erroneous finding that “the father did not want the child living with him full-time” (at [56] and [208(b)]).
Immediately then it is apparent that the erroneous finding has affected his Honour’s decision, rendering the mistake material and resulting in the appeal having to be allowed for that reason alone.
To continue though, the question can be asked as to where his Honour considered significant and substantial time? Unfortunately that is not an easy question to answer, because there are no discrete reasons directed to that topic, or indeed, whether such time is reasonably practicable.
His Honour does look to address what is in the best interests of the child, but again, there is no structure to that enquiry, and there is no telling whether his Honour is there considering whether “equal time” or “significant and substantial time” is in the child’s best interests. After first identifying at [12] that the best interests of the child is the paramount consideration, his Honour only turns to the issue of the child’s best interests at [150], and then refers to it thereafter in a sporadic way concluding as follows at [213] as to with whom the child should live:
Taking that into account, as well as the absolute primary care based on the above stated facts provided by the mother, and that she is not prepared to willingly move and if she does her financial future, and that of the child looks to be under grave threat, I am going to find that the child’s best interests lay with the child living with the mother, at [F Town].
As can be seen, and this is a theme which his Honour concentrates on, a prime reason for the finding of where the best interests of the child lie, is that if the mother is obliged to move, her financial future would be under “grave threat”. It is unclear to this Court how that can be such a determining factor in considering the best interests of the child, even if it was established on the evidence, which the respondent challenges in Ground 10.
Ground 1a is clearly made out.
As to Ground 1b, again any consideration by his Honour of the advantages and disadvantages of the proposals of the parties is infected by his Honour’s erroneous finding that the father did not want the child to live with him. In short, as a result, his Honour did not consider the advantages and disadvantages of that proposal. For example:
a)Ms H’s evidence in relation to the effect upon the child of moving to live with the father was not fully explored or recited in the primary judge’s reasons (see Transcript 18 April 2019, p.266–268 and p.271 lines 11–17);
b)the evidence of Mr G was not considered such that if the Court found that the mother did not comply with orders, serious consideration may need to be given to the child living with the father (Family Report of Mr G dated 14 July 2017, paragraph 121).
All his Honour did do was question whether the father was capable of providing for the child if the mother did not leave her property (at [187]).
His Honour’s assessment was that the father lacked a plan for how to get the child to and from before and after school care, but suggested that was understandable when he did not want the child living with him (at [186], [188]–[189]). To repeat though, that was erroneous and clearly affected his Honour’s consideration of this proposal.
There were of course other proposals that were open on the evidence for his Honour to consider, but it is apparent that there was no, or no detailed assessment, of the advantages and disadvantages of firstly, the prospect of the child living in an equal time arrangement if the mother relocated (supported by Ms H in cross-examination at Transcript 18 April 2019, p.269 lines 24–34), or secondly, of the child spending significant and substantial time with the father if the mother relocated (also supported by Ms H in cross-examination at Transcript 18 April 2019, p.269 lines 36–45)
As to Ground 1c, the father submitted that the primary judge fell into error by failing to consider s 65DAA(5) against all of the competing proposals, and only considering the reality of the present situation of the mother running a rural property, and her evidence that she will go into receivership if she has to move.
We agree with that submission.
In the circumstances we find that there is merit in Ground 1.

Ground 2 – The [primary judge] erred in failing to consider weigh and assess all of the evidence relevant to a consideration of the s 60CC factors.

His Honour usefully set out at the commencement of his reasons, a summary of the relevant sections of the Act (at [10]–[17]), including s 60CC.
However, there is then no actual consideration of the evidence relevant to the s 60CC factors that needed to be addressed. In particular, as identified by both the father and the ICL, his Honour failed to consider and make findings with respect to the evidence relating to the following factors:
a)Section 60CC(2)(a) – there was no analysis of the benefit to the child of having a meaningful relationship with the father and the likely long-term effect upon the child if he did not have one. Further, there was no consideration of how a reduction in time from seeing the father once per month to once per term would maintain a meaningful relationship. While his Honour referred to Ms H indicating that the child has a good relationship with both parents at [57], there was no consideration by his Honour of the full extent of her evidence in relation to this, and for example, the evidence as to the likely long-term effects upon the child if he did not have a relationship into the future with his father (Transcript 18 April 2019, p.272 line 37 to p.273 line 12).
b)Section 60CC(3)(c) – other than reference to the father’s involvement in the child’s schooling, there is no consideration of the evidence as to the extent to which the parents have taken or failed to take the opportunity to participate in making decisions about long-term issues, and to spend time and communicate with the child.
c)Section 60CC(3)(d) – at [190] his Honour recorded that Ms H’s evidence was that “the child would be traumatised if he was forced to live full time with the father”. However, that was not the evidence of Ms H. What she said was that there would be “transitional” and “adjustment” issues, and it may be “traumatic” if there was an “abrupt separation from the mother”. She further opined that “counselling” would assist the change-over process (Transcript 18 April 2019, p.266–269, p.271 lines 11–17). Plainly, his Honour failed to have regard to the actual evidence of Ms H.
In [190] his Honour also said that “…while a change to a shared care regime was not really addressed, I would envisage that [the child] would be traumatised, the mother being his primary carer”. However, that issue was addressed by Ms H, and at no stage did she opine that the child would be “traumatised” with such a change.
It is also relevant here to refer to the extensive evidence of the mother failing to comply with court orders, and whether that should have required a change of residence to be considered. We note that that evidence was also required to be considered in relation to s 60CC(3)(i), namely, the mother’s attitude to the responsibilities of parenthood.
At [85] his Honour commented on the number of orders the mother had breached in relation to the time spent by the child with the father, and which resulted in the child not seeing the father for a period of seven months, and found that the mother was clearly “controlling the situation”. However, his Honour was not prepared to find that the mother had acted to alienate the child, or that she had failed to facilitate the child’s relationship with the father (at [208(f)]). Not only though does his Honour fail to provide reasons for this in the face of the unchallenged evidence, and that is a problem in itself, but the failure to so find is entirely inconsistent with his Honour’s finding in [202] where he said, “[a]s to findings as sought, it is clear on the evidence that the mother has not taken every opportunity to facilitate a relationship, however, she has not failed to facilitate the relationship”. It also needs to be said that [202] itself is difficult to understand, and appears internally contradictory.
However, the issue which we want to highlight is his Honour’s failure to address the evidence of the two experts, Ms H and Mr G, that if the Court found that the mother had failed to facilitate the child’s relationship with the father by not complying with court orders, and that continued, serious consideration may need to be given to the child living with the father (for example, see paragraph 121 of the Family Report of Mr G dated 14 July 2017).
As opined by Ms H, a change of residence would be justified in such circumstances because there are “long-term detrimental effects to a child when a constructive, meaningful relationship that is safe is not facilitated” (Transcript 18 April 2019, p.270 line 25 to p.271 line 17).
However, to repeat, his Honour failed to address this evidence. His Honour also failed to address the preferred position of Ms H, namely, the best solution for the child would be if his mother would relocate back into the area within an hour of the father’s residence, so that the child could enjoy a meaningful relationship with both parents and his half-brother, and both families (Transcript, 18 April 2019, p.279 lines 12–17). Further, although initially Ms H was looking at a week about or similar arrangement, she then supported the father’s position that if the mother moved to live close by, the child would live with the mother and spend alternate weekends and holiday time with the father, as a much better living arrangement (Transcript 18 April 2019, p.269 lines 32–45).
d)Section 60CC(3)(e) – although his Honour referred to the driving time between where the parents currently reside (15 hours), to some of the costs involved, to the fact that the father cannot maintain that cost, and to his Honour’s acceptance of the fact that the motel where the father stays with the child in B Town is not suitable for encouraging the relationship (at [33]–[36]), as well as to the ICL’s concerns about these issues (at [54]), his Honour failed to actually take into account the same. Indeed, albeit acknowledging the lack of finances of the parents, and the mother’s position being her excuse for non-compliance with previous orders, his Honour made orders which make the mother responsible for half the cost of school holiday time with the father. Further, his Honour ordered that B Town still be the place where the child is to spend time with the father, at least once each school term.
Properly analysed, the evidence suggested that if the child remained living with the mother in F Town, it is unlikely that a meaningful relationship between the child and the father could be ensured.
In these circumstances this ground of appeal also has merit.

Ground 8 – The [primary judge] erred in finding that the mother had not failed to facilitate the relationship between the child and the father.

We have already touched on this complaint, but there is more to be said.
As referred to above, there are at least two inconsistent findings by his Honour, but the full extent of what his Honour said is as follows:
76.While I do not discount the ability of these parties to argue when face-to-face, and it is the mother’s case that she cannot speak to the father, I was not satisfied that the evidence positively suggested the mother will not facilitate a relationship.
…
85.However, contrary to submissions, I was satisfied that the mother had not acted to alienate the child and the child has a good relationship with the father. I have no doubt, given the number of orders the mother has breached for time, or the changing of orders, possibly all of them, that she is controlling the situation, and the father’s reaction is as I have stated.
…
202.As to findings as sought, it is clear on the evidence that the mother has not taken every opportunity to facilitate a relationship, however, she has not failed to facilitate the relationship.
…
208.    Consequently, taking the salient facts:
a)        The father does not want the child separated from the mother;
b)       The father does not want the child living with him;
c)        The child has a good relationship with the father;
d)       The child has a relationship with his half-brother [Y];
e)The father has given only cursory thought as to looking after the child full-time;
f)The mother has been lax in following orders and has not taken every opportunity of adhering to orders, but she has not failed to facilitate the relationship in the sense that the child is rejecting the father;
g)The father has been lax in accepting time with the child, a clear example being the Easter time offered, even though the start/end time differed from what he wanted, and
h)The mother keeps the child in touch with the father and the father’s relatives and was staying with his sister and family at the time of trial,
and such does not amount to a case that the mother will absolutely fail to facilitate the relationship in future.
As submitted by the father and the ICL, it seems that his Honour’s view was that for a finding that the mother has failed to facilitate a relationship, there needed to be evidence of a rejection of the father by the child. Plainly that is not the case, and again, the evidence pointed to the finding being made. In summary that evidence was as follows:
a)the father had only been able to spend eight hours of time with the child in 504 days, prior to the first family report interviews in 2017 (Family Report of Mr G dated 14 July 2017, paragraph 103);
b)there were eight occasions between August 2017 and February 2018 where the mother breached court orders in either not turning up to handovers, or failing to fully comply with the orders by reducing the father’s time with the child (Transcript 18 April 2019, p.212 line 44 to p.213 line 4);
c)the mother failed to facilitate Skype communication between the child and the father despite a webcam being provided by the father; and
d)the mother failed to discuss the child’s enrolment with the father in late 2018, and failed to include the father on the child’s enrolment form (at [116]–[120]).
Again, there is merit in this ground of appeal.

Ground 9 – The [primary judge] erred in having regard to the circumstances of a child (Z) who is no relation to either of the parties or the subject child.

Z is the half-sister of Y (the child’s half-brother). However, as submitted by the ICL, there is no familial relationship between Z and the child, and there was no evidence before the primary judge that any party was seeking that the child have a relationship with Z. Further, there was no evidence before the Court that the father was spending time with Z at that time.
Despite this, the primary judge made the following findings and/or comments:
26.No clear evidence was put in relation to the child [Z] staying with the father, but as a half-sister to [Y], she may be a child important to this child’s relationships.
…
95.The child [Z] did not come into that equation, which seems strange from the father’s position of wanting contact with family connections.
…
212.The father’s focus was on [Y], and not [Z], and I do not fully appreciate why that is the case, because she must be important within [Y’s] immediate family circle, which must mean that she is important to this child as well.
Significantly, in the paragraph immediately following [212] his Honour commences by saying, “[t]aking that into account” and then proceeds to provide his conclusion that the child’s best interests lie with the child living with the mother at F Town. Although his Honour mentions other matters in that paragraph, logically it would seem that his Honour has taken into account his findings and comments regarding Z and the father’s focus on the child’s half-brother as being one of the reasons why the child should live with the mother. Thus, given that these findings or comments were not relevant, and not based on the evidence before the Court, it is arguable that that undermines his Honour’s ultimate finding as to where the child should live.
This ground of appeal is also made out.

Ground 10 – The [primary judge] erred in finding that if the mother relocated from F Town, her financial future, and that of the child, “looks to be under grave threat” and in placing excessive weight on the unsupported assertions of the mother that she would go into receivership, liquidation or bankruptcy if she relocated.

The mother told the family report writer, Ms H, during her interview that she could not go back to South East Queensland and that she “would be in receivership” if she did (Family Report of Ms H dated 16 November 2018, paragraph 62). The primary judge stated at [176] that “[i]t would be a major interference in the life of a parent to force a parent to go into liquidation, and quite possibly such also means bankruptcy, because a child had to be moved…”.
The primary judge’s finding as to the mother’s financial future was at [213]:
Taking that into account, as well as the absolute primary care based on the above stated facts provided by the mother, and that she is not prepared to willingly move and if she does her financial future, and that of the child looks to be under grave threat, I am going to find that the child’s best interests lay with the child living with the mother, at [F Town].
(Emphasis added)
The father and ICL both submitted that there was insufficient evidence as to the mother’s financial circumstances in order to make this finding, and the primary judge had only relied upon the mother’s assertions as to her financial position of going into receivership in the future. There was no evidentiary basis to confirm the mother’s assertions, and his Honour even acknowledged there was not in the following passages:
162.Why this aspect becomes important in this case is because the mother is running a rural property and her evidence is that she will go into receivership if she has to move.
163.While that claim was questioned by the father and the Independent Children’s Lawyer, it is unrealistic to ignore the claim simply because she did not produce documentary evidence of her financial position with regard to the rural property.
164.She was self-represented and such proof would not necessarily occur to a person not used to thinking in black and white legal terms. That is despite being asked to produce documents. The mother runs the station and does not have a manager and is currently dealing with the devastation of the recent floods which swept parts of Western Queensland. It appears she has lost stock and infrastructure such as fencing and roads, but she is not sure of the extent of those losses.
(Emphasis added)
Whilst the rules of evidence do not usually apply in child-related proceedings (s 69ZT of the Act), the father and the ICL submitted that some independent evidence of the likelihood of the mother’s receivership or bankruptcy should have been provided for his Honour to place the weight on it that he did. We accept this submission and find that the importance of the issue goes to the extent of the evidence required. Indeed, the mother’s financial future if she had to leave F Town was one of his Honour’s primary considerations in deciding where the child should reside, but there was insufficient evidence to support this finding.
We find merit in this ground.

Ground 11 – The [primary judge] erred in:

a. failing to consider the importance to the child of a meaningful relationship with his only sibling; and

b. finding that the mother accepted that the child should have a meaningful relationship with his sibling; and

c. failing to consider the mother’s negative attitude towards the child’s sibling.

The primary judge found that the child has a relationship with his half-brother Y (at [208(d)]) and recognised that “he does need time with his brother, a situation the mother now accepts” (at [93]). His Honour acknowledged at [210] that “[a]s is often identified in parenting proceedings, sibling relationships are some of the most important relationships people have, and last well into adult life”. However, his Honour concluded that “in the circumstances the two children are not and never will be in a position to grow up together, as Y lives with his mother” (at [207]).
It was submitted by the father and the ICL that with his Honour’s finding at [207], and the orders which were subsequently made which reduced the time the siblings could be together, his Honour placed too little weight on the importance of the sibling relationship, and in effect discounted the relationship because Y lived with his mother. It was the father’s evidence that Y lived with the father on alternate weekends and his proposal was that the child would spend the same alternate weekends with the father as Y did. Whether the children lived together or not was not relevant.
Further, there was no mention of the evidence of the two single experts whom opined that the sibling relationship had a very slim chance of being sustained if relocation was not ordered (Transcript 18 April 2019, p.278 lines 28–29) and that “[a] sibling relationship is often the most enduring relationship someone will have with another person and where possible it should be fostered and maintained” (Family Report of Mr G dated 14 July 2017, paragraph 104).
Plainly, his Honour failed to address this important evidence and this adds to the appealable errors he has made.
As to the complaint in Ground 11b, we are not persuaded that that was a finding made by his Honour. The most that his Honour said was as referred to above in [70], and that the mother indicated that she understood that the father wanted the child to be with him the same time as his half-brother is with him (see [88] and [90]). We can find no error by his Honour here.
As to the complaint in Ground 11c, we also fail to see how his Honour erred in the manner suggested. What his Honour said was as follows:
90.The mother indicated that she also understood the situation, however, previously she had expressed a view that [Y] and this child had not seen each other for a long time and this child had no relationship with him, so she was not, at that time, facilitating the relationship by ignoring or changing the time orders in place.
91.She also expressed a view that as [Y] lived with his mother, she believed the father should be spending one-on-one time with this child, as well as both children spending time together, to build the relationship.
92.As long as this child has the chance to have a relationship with [Y], I cannot see that the mother’s view that he needs some one-on-one time with the father as being out of place, in the event that the child remains living with the mother at [F Town].
93.However, he does need time with his brother, a situation the mother now accepts.
The mother’s evidence there referred to, possibly reveals a negative attitude in the past towards the child’s half-sibling, but it does not demonstrate any error by the primary judge in his assessment of that evidence.
Thus, only Ground 11a has merit.

Ground 12 – The [primary judge] erred in failing to provide adequate reasons as to how he balanced the various factors he was required to take into account in reaching a decision.

This is a complaint which we have already addressed when considering Grounds 1 and 2 above, and we need to say very little more.
His Honour’s reasons for judgment are plainly inadequate in revealing how he has arrived at his decision.
His Honour has failed to demonstrate that he has applied s 65DAA(2) of the Act. He has failed to properly address the proposals of the parties; he has failed to assess the advantages and disadvantages of those proposals; and he has not taken into account the evidence relevant to an adequate consideration of what is in the best interests of the child, either at all, or particularly in the context of s 65DAA(2).
This ground of appeal is made out.

Ground 3 – The [primary judge] erred in finding that the father did not have the parenting capacity to provide care for the child in a substantial and significant time or equal time regime.

This is a weight challenge, and the limitations on the success of such a challenge are well-known, and for example, see the decision of the High Court of Australia in Gronow v Gronow (1979) 144 CLR 513 per Stephen J at 519–520. However, the point here is that the finding is challenged on the basis that it is not supported by the evidence, and if that is so, then the hurdles in the way of a successful weight challenge can be overcome.
The first point to make is that the finding is not precisely as alleged. Consistent with the errors identified in Grounds 1 and 2 (and 12), his Honour made no discrete finding as to the father’s parenting capacity in an equal or in a significant and substantial time regime.
The closest finding that speaks to the father’s capacity generally is in [186] where his Honour said this:
I have already outlined my assessment of the father’s lack of planning for school and care if the child was living with him, and I am satisfied that the evidence did not reveal that he could or would be committed or capable of having the child with him for more than weekend time and holiday times.
However, as alleged, the evidence did not support the finding of no capacity to care beyond during weekends and school holidays.
The evidence before his Honour was as follows:
a)The evidence of Ms H that in her expert opinion both parents were capable of caring for the child (Family Report of Ms H dated 16 November 2018, paragraph 81; Transcript 18 April 2019, p.265 lines 41–45). His Honour though failed to even refer to this evidence, let alone explain how it should not be accepted.
b)As to the father’s engagement with the child’s schooling, the evidence was that the mother excluded the father from having any interaction with the school. She did not inform the school of the father’s name, contact number or address when she enrolled him. As his Honour found, surprisingly given his Honour’s reliance on the father’s lack of engagement with the school to find lack of capacity to care for the child, there was “no excuse” for this attitude by the mother (at [118]).
c)As to the father’s medical issue, the mother’s concerns were disingenuous given that she had permitted unsupervised time overnight and during school holidays since separation without any qualm or concern.
There is merit in this ground of appeal.

Ground 5 – The [primary judge] erred in finding that the father had been lax in spending time with the child.

The finding of his Honour appears at [208(g)]. However, the only basis for this finding that is apparent in his Honour’s reasons, is the dispute which arose over what time during the Easter period immediately following the hearing before his Honour that the child would spend with the father.
The father sought that he have the child from Good Friday to Easter Sunday, with the mother offering Easter Saturday until Easter Monday.
His Honour said this in his reasons:
81. I was satisfied that the father, in umbrage, did not reply to her offer.
82.He was prepared, as far as I could tell, not to have time if it was not on his terms, or in fairness, because the mother was dictating terms.
83.I use the term negotiation euphemistically, because the dispute was probably not a negotiation held in a child-focused sense.
84.[Ms H] said that type of response was common when parents dug themselves into a position and it is a response within this family set up. Whatever a common response may be, the father was not focused on having the child, even under protest at the mother’s action, for the purposes of fostering the relationship to the benefit of the child.
However, it is not apparent on what basis his Honour made these findings. The father was not cross-examined about what his attitude to the mother’s offer was, and his affidavit did not reveal that.
The fact of the matter is that the parties could not agree initially, but they eventually did, with the father’s proposal being accepted. That allowed for the child to be with the father when the child’s half-brother was there as well.
There is no other evidence which even remotely supported his Honour’s finding as to the father being lax in accepting time with the child. Indeed, all of the evidence pointed to the opposite.
As submitted by the ICL, there was evidence before his Honour that the father had been unable to attend B Town on two occasions due to being unable to take time off work. However, these two occasions were not mentioned by his Honour in his reasons, and in any event, they could not support his Honour’s findings, given the evidence of the significant number of occasions the father travelled to B Town, and Brisbane in order to spend time with the child, in circumstances where the mother was only allowing him, on some occasions, to spend one day with the child despite orders providing for overnight time.
We consider that his Honour has erred in making the finding that he did, and this has infected his Honour’s decision because it seems to underpin his Honour’s view of the father and his commitment to something more than weekend or holiday time.
There is merit in this ground of appeal.

Ground 6 – The [primary judge] erred in forming an adverse view of the father simply because allegations of family violence had been made against him in circumstances where the learned trial judge had found the evidence so unsatisfactory that no determination could be made on issues of family violence.

The adverse view complained of is to be implied from [204]–[206], where his Honour said this:
204.I am also not going to make a finding that she has shown poor boundaries in what she told the child. The mother had concerns about the father and domestic violence between him and the mother of the child [Y], of which there was at least an incident, although police did not lay charges.
205.[Y’s] mother was not before the court, but it would not be an uncommon reaction for the mother here to wonder whether there had been the violence as alleged, whereby the father knocked [Y’s] mother to the ground. Differing versions of events do not put an onus on the mother here to satisfy herself that the events did not occur, nor could she embark on such an inquiry. She does make allegations herself about the father.
206.All I know is that the father has himself in the position where two women, the mother’s [sic] of his children, have made allegations about domestic violence.
It is abundantly clear that his Honour has there failed to record the entirety of the evidence relating to these topics, and has left the reader with the impression that his Honour has formed an adverse view of the father.
This is despite his Honour saying this earlier in his reasons for judgment:
62.Both parties make allegations that the other has been physically violent and in front of the child.
63.As well, there are allegations that the father violently assaulted the mother of [Y].
64.There is a domestic violence order against the father in relation to [Y’s] mother.
65.There was an allegation that the father knocked her to the ground.
66.The order was made against the father, naming [Y] and his mother as protected persons, but the father made no admissions as to facts.
67.Subpoenaed documents show police considered opposing accounts of what occurred and did not lay charges due to the conflicting stories.
68.In a sense, the mother raises the issue of risk – that such violence could occur again and in front of this child.
69.The evidence and information available to this court was entirely unsatisfactory and no determination can be made.
70.In relation to violence between these parties, a domestic violence application bought by the mother was dismissed, and whether there was a finding that it was vexatious was not clearly before this court.
71. She was criticised during the trial for that.
…
74.In parenting matters, the court can have regard to circumstances which may not otherwise be admissible as evidence, but there was nothing from which a finding could be made that family violence is likely, although argument and disagreement is.
Turning to the actual evidence before his Honour:
a)There was the father’s affidavit filed on 23 January 2019, wherein at paragraphs 176–178 the father provides an explanation of what occurred and denied any physical altercation;
b)There was the cross-examination of the father during which he denied the allegations and again provided an explanation as to what occurred. Significantly, it is also the father’s evidence that the child’s half-brother’s parenting arrangements had continued despite the alleged incident (Transcript 17 April 2019, p.49–50).
c)There were the documents produced by the Queensland Police Service pursuant to subpoena, which as his Honour found, indicated that the police considered opposing accounts of what occurred and did not lay charges due to the conflicting stories (at [67]).
d)There was the Protection Order which indicated it was made without admissions.
As the ICL submitted, the child’s half-brother’s mother was not called as a witness, and as such, in light of the content of the subpoenaed material, the father’s clear denials and there being no findings made by his Honour as to any lack of credibility on the part of the father, there was no evidentiary basis for there to be a finding made against the father that a domestic violence incident had occurred between he and the child’s half-brother’s mother.
There is also no evidence that the child was exposed to this event.
Finally, as submitted by both the father and the ICL, the mother made no allegations that the father had been physically violent towards her.
This ground of appeal also has merit.

Ground 7 – The [primary judge] erred in finding that it was not clearly before the court that the mother’s application for a protection order against the father had been found to be vexatious.

The challenged finding appears at [70] (see [99] above). However, the father annexed to his affidavit filed on 23 January 2019 at “E” the reasons for judgment delivered by the Magistrate in relation to the mother’s application for a protection order. The Magistrate found that the “…application for a protection order filed by the [mother] was malicious, frivolous and vexatious.”
Further, in cross-examination the mother confirmed that, “costs … were awarded on the basis of [her] malicious, frivolous and vexatious application…” (Transcript 17 April 2019, p.190 lines 31–33).
Thus, his Honour’s finding was clearly erroneous and this ground of appeal is made out.

Conclusion

Having found merit in almost all of the grounds of appeal the appeal will be allowed.
Although, in his Amended Notice of Appeal the father seeks that certain of the orders be set aside and this Court re-exercise the discretion and make orders in lieu of those orders, during the hearing the father conceded that given the nature of the errors made by his Honour, the passage of time since the orders were made, and the need for evidence that would be controversial to be addressed, this Court has no option but to remit the proceedings to the extent necessary for rehearing by a judge other than the primary judge.
Thus, we will set aside the following orders that were the subject of the appeal, namely orders 5, 6, 8, 9, 11 and 12. As identified above though, there is no basis to set aside order 17 discharging the ICL.
We consider though that it is also necessary for order 4 to be set aside, given that there will no longer be subsequent orders identified that could be put in place absent agreement between the parties. Of course, that does not prevent the parties reaching agreement about with whom the child will live, spend time and communicate in order to avoid the rehearing.
We also consider it necessary to set aside order 7, given that that order relies for its efficacy on when the child will be with each parent, and it may turn out to be no longer appropriate.
That will leave in place, in summary, the orders providing for the parents to have equal shared parental responsibility, for the father to obtain and wear a mobile medical alert device when he has the child with him, for the parents to keep each other informed of relevant matters, for the parents to be able to obtain relevant information about the child, and to regulate the parents’ conduct towards each other.

Thus, in effect, the remitter will only be for a rehearing as to where and with whom the child should live, spend time and communicate, as well as the necessary arrangements therefor.
Finally, given that there will be some time before the matter comes before the court below, the orders will be set aside only as on and from when that occurs.

Costs

Neither the father nor the ICL sought an order for costs in the event the appeal was successful, but they did seek costs certificates for the appeal and for the re-hearing. The mother does not seek a certificate for the appeal because she has not incurred any legal costs.
Given that the appeal is being allowed on questions of law, and there is to be no order for costs, we consider that it is appropriate to issue costs certificates to the father and the ICL as sought.
With the mother, although she did not seek a certificate for the rehearing, we consider that she should be granted one. However, pursuant to s 8(1) of the Federal Proceedings (Costs) Act1981 (Cth), a costs certificate can only be issued on the application of a party. Accordingly, we propose to make an order that subject to the mother informing the appeal registrar within 14 days that she seeks a certificate, we will grant her one.

Watts J

I have had the advantage of reading the proposed orders of Strickland and Tree JJ and their Honour’s reasons for judgment. I agree with the orders proposed and I generally agree with their Honour’s reasons. I specifically do not agree with part of what their Honours say in relation to Ground 1 which relates to the primary judge’s application of s 65DAA of the Family Law Act 1975 (Cth) (“the Act”).
As the plurality discuss, there is an absence in the primary judge’s reasons of any discernible structure of the consideration of s 65DAA.
However, it is important to note what were the proposals of the parents and the ICL before the primary judge:
a)The father’s primary proposal was for the mother to move closer to his residence and that the child live with the mother and spend time with him each alternate weekend and half the school holidays (as well as special days). The father’s alternate proposal was that the child live with him;
b)The mother’s primary proposal was for the child to continue to live with her at F Town and spend time with his father one weekend per month in B Town and half the school holidays. In the alternative, if the child was ordered to move closer to his father’s residence, she would also move with the child and accept the father’s alternate proposal in relation to the child spending time with him;
c)The ICL supported the father’s primary proposal and if the mother did not move, supported the father’s alternate proposal that the child live with the father.
None of the various proposals by the parents or the ICL advocated equal time and although the father’s primary proposal came close, it did not amount to substantial and significant time given that the proposal for alternate weekends, half school holidays and special days did not satisfy the requirements in s 65DAA(3)(a)(ii) to include days that do not fall on weekends or holidays and subsection (3)(b)(ii) allowing the father to be involved in the child’s daily routine.
In relation to the statement by the plurality at [49], “[t]here were of course other proposals that were open on the evidence for his Honour to consider”, the fact that a recommendation is made by an expert does not convert it into a proposal to be considered, without more. For a recommendation to become a proposal for consideration, it would need to have been adopted by one of the parties or the ICL or alternatively, had the primary judge seriously contemplated any significantly different proposal than that advocated by the parties or the ICL, it would have been necessary, as a matter of procedural fairness, to have alerted the parties and the ICL to the fact that the Court was considering that proposal (see Lovett & McGregor (2019) FLC 93-935 at [37]–[50]).
As to the suggestion at [49] that Ms H made a recommendation for equal time, that was not Ms H’s final position because when it was pointed out to her that was not what the father proposed, she supported the father’s position that if the mother moved to live close by, the child would live with the mother and spend alternate weekends and holiday time with the father, as “a much better living arrangement” (Transcript 18 April 2019, p.269 line 45) which, as I have observed, falls short of an order for substantial and significant time.
Whilst s 65DAA(1) and (2) require a court to consider equal time or in the alternative, substantial and significant time in circumstances where such an order is proposed, that consideration needs to be in the context of the contentions and proposals of the parties and the ICL (see SCVG & KLD (2014) FLC 93-582 at [77]–[78]) or in the alternative, a proposal by the court.
It follows that I am unable to agree with the plurality’s conclusion at [40] that the primary judge’s erroneous finding that “the father did not want the child living with him full-time” (at [56] and [208](b)) materially affected the way the primary judge dealt with s 65DAA(1) and the plurality’s conclusions at [46] and [47] which rely upon that proposition.
The error the primary judge made in dealing with s 65DAA, as asserted in Ground 1(b), was that his Honour failed to consider the operation of that section in the context of the proposals which were actually before him. Had he done so, he would have concluded that none of those proposals advocated either equal time or substantial and significant time as that expression is defined in s 65DAA(3).
That is not to say that the primary judge’s erroneous finding that the father did not want the child living with him full-time did not have a material effect, first on the primary judge’s understanding as to what the father’s alternate proposal actually was and more generally, on other best interest considerations, particularly upon the primary judge’s consideration of the father’s attitude to parenting. Consequently there is still merit in Ground 4.
Having discussed Ground 1, I agree that there is merit in almost all of the other grounds of appeal, as identified by the plurality. The appeal should be allowed; the orders referred to by the plurality set aside; the matter remitted for rehearing and cost certificates granted.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Watts & Tree JJ) delivered on 30 September 2020.

Associate:

Date: 30 September 2020