Sayer v Radcliffe

[2012] FamCAFC 209

FAMILY COURT OF AUSTRALIA

SAYER & RADCLIFFE AND ANOR [2012] FamCAFC 209

FAMILY LAW – APPEAL – CHILDREN – RELOCATION – Whether the Federal Magistrate erred in the treatment of evidence of the mother’s psychologist in relation to the mother’s mental health and emotional wellbeing – Where the Federal Magistrate did have regard to the impact the return would have on the mother and the children and was entitled to treat the psychologist’s evidence as she did in the context of other expert evidence before the Court, no error demonstrated.

FAMILY LAW – APPEAL – CHILDREN – RELOCATION – Whether the Federal Magistrate erred in the application of the legislative pathway for the making of parenting orders under the Act – Where consent orders assigning equal shared parental responsibility between the mother and each respective father were made prior to the delivery of reasons for judgment – Where having made such orders, the Federal Magistrate was obliged to follow the legislative pathway and consider orders for equal, or alternatively substantial and significant time and erred by failing to do so – Where the Federal Magistrate considered the mother’s proposed relocation alone on its merits, then having decided not to allow the application, considered what time the father should spend with the children – Where the Federal Magistrate erred by treating the mother’s application for relocation as the primary issue for determination and by failing to make parenting orders based on an evaluation of each party’s proposal and in accordance with the prescribed legislative pathway applicable to parenting cases, including relocation cases – appeal allowed and applications remitted for rehearing.

FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE – Where the appellant mother sought to adduce further evidence detailing her account of events since the decision of the Federal Magistrate denying her relocation application – Where counsel for the mother accepted that the majority of the evidence was contentious but contended it should be admitted to demonstrate the Federal Magistrate’s decision was wrong – Where the appeal is to be allowed, however the controversial nature of the further evidence makes it impossible for this Court to

re-exercise the discretion and the matter must be remitted, rendering the evidence unnecessary in the appeal – application dismissed.

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65C, 65DAA, 65DAB
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Adams & Randall (2011) FLC 93-482
Allesch v Maunz(2000) 203 CLR 172
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Goode and Goode (2006) FLC 93-286
Gronow v Gronow (1979) 144 CLR 513
Heaton & Heaton [2012] FamCAFC 139
House v The King (1936) 55 CLR 499
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Morgan and Miles (2007) FLC 93-343
MRR v GR (2010) 240 CLR 461
Palmer & Hammer (No 2) [2011] FamCAFC 196
Starr & Duggan [2009] FamCAFC 115
Taylor v Barker (2007) 37 Fam LR 461
U v U (2002) 211 CLR 238

APPELLANT: Ms Sayer

1ST RESPONDENT: Mr Radcliffe

2ND RESPONDENT: Mr Baggott

FILE NUMBER: DNC 280 of 2011

APPEAL NUMBER: NA 41 of 2012

DATE DELIVERED: 14 December 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Faulks DCJ, May & Ainslie-Wallace JJ

HEARING DATE: 4 September 2012

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 17 April 2012

LOWER COURT MNC: [2012] FMCAfam 342

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Galloway

SOLICITOR FOR THE APPELLANT: Cecil Black Family Lawyers

COUNSEL FOR THE 1ST RESPONDENT: Ms Farmer

SOLICITOR FOR THE 1ST RESPONDENT: Withnalls Lawyers

2ND RESPONDENT: No appearance

Orders

1. The appeal be allowed.

2. Orders 5, 6, 7, 9, 10, 12 and 13 of the orders made by Federal Magistrate Turner on 17 April 2012 be set aside.

3. The application of the appellant mother to adduce further evidence filed on 17 August 2012 be dismissed.

4. The parenting applications of the appellant mother and the first respondent father be remitted for re-hearing before a Federal Magistrate other than

   
   

   Federal Magistrate Turner.

5. Until the hearing and determination of the re-hearing, interim orders are made in terms of orders 5, 6, 7, 9, 10, 12 and 13 of the orders made by

   
   

   Federal Magistrate Turner on 17 April 2012.

6. There be no order as to costs.

7. The Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 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 appellant mother in respect of the costs incurred by her in relation to the appeal against the parenting orders.

8. The Court grants to the first respondent father a costs certificate pursuant to the provisions of 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 first respondent father in respect of the costs incurred by him in relation to the appeal against the parenting orders.

9. The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by them in relation to the re-hearing.

It is noted:

1. It is requested that the Federal Magistrates Court expedite the re-hearing of the proceedings as that Court deems appropriate.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 41 of 2012
File Number: DNC 280 of 2011

Ms Sayer

Appellant

And

Mr Radcliffe

First Respondent

And

Mr Baggott

Second Respondent

REASONS FOR JUDGMENT

1. This is an appeal from final parenting orders made by Federal Magistrate Turner on 17 April 2012. The orders concern parenting arrangements for two children, Y born May 2007 and X born September 2010. The appellant is the mother of both children. The first respondent (the applicant in the first instance proceedings) is the biological father of the younger child X. The second respondent (also the second respondent in the first instance proceedings) is the biological father of the older child Y.

2. The orders refer to Ms Radcliffe, the father of X as “the father”, and

   
   

   Mr Baggott, the father of Y as “Mr Baggott”. We will adopt the same names in these reasons. Mr Baggott was served with the father’s application on

   
   

   27 August 2011 and was a party to the first instance proceedings, though did not take part in the final hearing. He is named in the appeal as a party, however has taken no part in the proceedings.

3. It is as well to set out the entirety of the orders which the mother now seeks to appeal:

   (4)That the children Y born [May 2007] and X [born September 2010] be returned to Darwin on or before 4 May 2012, failing which a recovery order in the usual terms will be issued forthwith.

   (5)That the children live with the mother within in [sic] the Darwin area, which includes all locations within a 30 kilometre radius of the Darwin Post Office.

   (6)That the children not be permitted to relocate from the Darwin area without the prior written approval of both parties or court order.

   (7)That the father is to spend time and communicate with the children as follows:-

   (a)From Saturday 5 May 2012 and every fortnight thereafter until Saturday 8 September 2012 from 9.00am to 12 noon;

   (b)From Saturday 8 September 2012 and every fortnight thereafter until Saturday 1 December 2012 from 9.00am to 2.00pm;

   (c)From Saturday 1 December 2012 and every fortnight thereafter from 9.00am to 5.30pm;

   (d)Commencing Wednesday 9 May 2012 and every Wednesday thereafter from 2.30pm to 5.30pm;

   (e)      On [Y’s birthday] each year from 2.30pm to 5.30pm;

   (f)       On [X’s birthday] each year from 2.30pm to 5.30pm;

   (g)      From 9.00am to 1.00pm each Father’s Day;

   (h)For two (2) hours each Christmas Day at a time to be agreed upon between the parties;

   (i)For two (2) hours each New Years Day at a time to be agreed upon between the parties;

   (j)       At all other times as agreed upon between the parties;

   (k)Telephone communication at 6.00pm each Monday with the father to make the call to a number to be supplied by the mother, with the mother to ensure that [Y] is available to take the call.

   (8)That the father’s time with [Y] on a Saturday is to be suspended upon receipt of written details from Mr [Baggott] fourteen (14) days prior to the scheduled spend time with period of his intention to spend time with [Y].  

   (9)If for any reason the mother cannot care for the children or either child  during the children’s time with the mother, then the mother must give first option of caring for the child or children to the father, and if the father is not available, then second option to the paternal grandmother. This order does not refer to the mother’s use of day-care, after school care or vacation care facilities when the children are in her care.

   (10)That the mother is permitted to suspend the father’s time with the children for up to four (4) weeks a year, provided the mother gives fourteen (14) days written notice of when time will be suspended, together with details as to make up time for the father.

   (11)That the father be notified in writing within fourteen (14) days of any decisions made by the mother and Mr [Baggott] in relations [sic] to any major long term issues regarding the child [Y].

   (12)That in June 2013 the parties are to take whatever steps are required to review the spend time with arrangements for the children with a view to increasing time to overnight and entering into consent orders reflecting the arrangements.

   (13)In the event that the parties are unsuccessful in their negotiations, then an application can be made to the court, but only after the parties have attempted family dispute resolution.

4. The mother’s appeal asserts a range of errors of fact and of law in the

   
   

   Federal Magistrate’s exercise of discretion leading to the decision that she not be permitted to leave Darwin and relocate to South East Queensland. The mother complains of errors specifically in relation to the weight given to evidence, and in the application of the legislative pathway for the making of parenting orders under the Family Law Act 1975 (Cth) (“the Act”).

5. In her notice of appeal the mother seeks orders that the children live with her, she be permitted to relocate with the children to South East Queensland, and the father “shall be permitted to spend time with [X] and to communicate with her on such times and in such circumstances to be supplied by the appellant prior to the hearing of this appeal”. No proposed minute of order was subsequently provided, although it seems apparent to us that should the appeal be allowed a re-hearing is inevitable.

6. Also relevant to the mother’s appeal are consent orders made on 12 April 2012, which were expressly left intact by the final orders of the Federal Magistrate (orders 1 and 2). The consent orders provided for equal shared parental responsibility for each child as between the mother and the respective biological fathers. There is no challenge to these orders in the appeal, though it was acknowledged by counsel for the mother that such an order in parenting circumstances such as these was unusual. It seems these orders were agreed between the parties in response to a request by the Federal Magistrate. As will be discussed, under the provisions of the Act, if an order for equal shared parental responsibility is made, the judge is required to consider orders for equal and then substantial and significant time. The Federal Magistrate did not undertake this task.

7. It is important also to note that Mr Baggott was not a party to the consent orders, the draft orders being clearly between the “applicant and first respondent”, and it being recorded on the orders made by the Court that there was no appearance by or for him.

8. The consent orders also made some provision for alternative arrangements in the event that the children lived in South East Queensland, or in Darwin. If in South East Queensland, the father was to communicate with X by Skype for one hour each Sunday and on Christmas Day. If in Darwin, the children were to live with the mother, family therapy was to occur and all changeovers were to occur at “the child’s day care or school or otherwise at Catholic Care”. The consent orders were unclear and incomplete as to the communication and time spent arrangements the parties would agree to in each alternative situation. In any event, as mentioned the orders did not involve Mr Baggott’s express consent.

9. The father’s counsel, who appeared at the trial, explained the origin of these orders. Prior to the commencement of the trial, the Federal Magistrate required the parties to identify the areas which were agreed, in order to narrow the dispute for determination. They did so and on 20 March 2012 filed a document entitled “orders agreed between the applicant and first respondent”. For reasons which are unclear, some agreed provisions in that document were not included in the consent orders made by the Court on 12 April 2012. Most notably omitted was provision for time to be spent with the child X in Darwin and in South East Queensland in the event that the children lived in South East Queensland. 

10. A further difficulty lies in orders 1 and 2 of the final orders, which provided that “all previous children’s orders are hereby discharged save and except the consent orders dated 12 April 2012”, and that “these orders be read in conjunction with and in addition to the final consent orders dated

    
    

    12 April 2012”. Save for the orders as to equal shared parental responsibility (notwithstanding the difficulty of an apparent absence of Mr Baggott’s consent), it is not logically possible for the 12 April 2012 consent orders to be read or applied in conjunction with the Federal Magistrate’s final orders. In effect two sets of orders (to some extent in conflict) are in force.

11. The father Mr Radcliffe opposes the appeal. No material was filed by the second respondent father Mr Baggott in the appeal proceedings.

Application to Adduce Further Evidence

1. On 17 August 2012 the mother filed an application in an appeal to adduce further evidence. The evidence sought to be adduced includes a lengthy affidavit of the mother outlining in detail her account of events since the decision of the Federal Magistrate on 17 April 2012. Annexed to the mother’s affidavit, and affidavits of her solicitors, are affidavits from the maternal grandmother and various therapists.

2. The application was opposed by the father, and at the hearing his counsel submitted that should the evidence be allowed, cross-examination of each of the witnesses who had provided affidavits or reports annexed to affidavits would be requested. The evidence is clearly controversial.

3. Counsel for the mother accepted that the majority of the further evidence was contentious but contended it should be admitted in the appeal, in accordance with the principles in Allesch v Maunz(2000) 203 CLR 172 to demonstrate that the decision was wrong.

4. We will consider this application more fully later in these reasons. If it is decided that the appeal should be allowed for other reasons, then no doubt the mother would seek to rely on this evidence at a re-hearing.

Background

1. It is necessary to set out some relevant background of the parties’ relationship, the involvement of Mr Baggott, and the history of the litigation leading to the final orders now the subject of appeal. 

2. The parties commenced a relationship in July 2008 and began living together in late 2008 at the mother’s rented unit in Darwin. In mid 2009 the parties moved to live on a property owned by the father’s mother and step father in

   
   

   H, approximately thirty kilometres from central Darwin. The parties lived in one house and the father’s parents in another. The father remains living in the property.

3. At the time of the commencement of the relationship, the child Y was approximately 14 months old. The parties’ child X was born in September 2010. At the time of separation in March 2011, the children were therefore aged approximately three and a half years, and five months old. The mother left the family home with the children and found rental accommodation elsewhere in Darwin.

4. The father filed an initiating application for parenting orders on 5 August 2011. In the application he named himself as the father of both children, and sought orders for equal shared parental responsibility and equal time with both children.

5. As mentioned, Mr Baggott was served on 27 August 2011 and became a party to the proceedings. In his affidavit filed 12 October 2011 he says he commenced a relationship with the mother in August 2005 and separated in November 2007, when their child Y was approximately six months old. He relocated to Perth in 2008 and later returned to Darwin. Mr Baggott said that his attempts to see his child were denied by the mother until the applicant father instituted proceedings. The mother contacted Mr Baggott and contact with the child commenced on 28 August 2011. It seems that contact between Mr Baggott and his child occurs on a private basis agreed between him and the mother. 

6. On 18 November 2011, interim orders were made providing for the father to spend two hours per week, supervised, with X, and for four visits with Y to coincide between 18 November 2011 and 17 April 2012. The parties and the children were ordered to attend upon a Family Consultant, Mr V, for the purposes of a family report and the matter was adjourned to

   
   

   13 April 2012 for mention. The mother and father were represented,

   
   

   Mr Baggott appeared for himself by telephone.

7. The father had not seen the children between separation in March 2011 and the commencement of supervised time on 4 December 2011. That contact only occurred on four occasions before the mother moved with the children to South East Queensland on 17 January 2012 without notice to the father.

8. At the time of the mother’s departure from Darwin, the interim orders of 18 November 2011 provided for the father to spend two hours supervised time per week with X.

9. In her affidavit sworn 14 March 2012 the mother said she relocated on the basis of inability to cope and lack of support in caring for the children, which could be relieved by living with her mother in South East Queensland. The mother did not seek assistance from the applicant father, or consult with him about her intended relocation.

10. On 24 January 2012 after having left Darwin, the mother filed an application seeking orders that she be a liberty to relocate, that the father spend time with his child X in South East Queensland as agreed between the parties and once per year in Darwin but supervised by her, and that the Court determine the orders for time and communication with Y.

11. On 2 February 2012 orders were made providing for the preparation of a family report on an urgent basis, with the mother required to return to Darwin for that purpose and to facilitate contact between the children and their respective fathers. The matter was listed for final hearing on 15 and 16 March 2012.

    
    

    As mentioned, consent orders apparently intended to narrow the disputed issues were subsequently made on 12 April 2012. Final orders were made and reasons for judgment delivered on 17 April 2012. We have noted the difficulty presented by the consent orders of 12 April 2012.

1. The mother returned to Darwin as required by the final orders, and filed an appeal on 14 May 2012.

Reasons of the Federal Magistrate

1. It should be said that from the commencement of the reasons for judgment, the Federal Magistrate appears to treat the matter of the mother’s application for relocation as the primary issue for determination. In so doing, her Honour did not approach the determination of the parenting arrangements based on an evaluation of the proposal of each parent. Rather her Honour considered the mother’s proposed relocation alone on its own merits, then having decided not to allow the relocation, considered what time the father should spend with the children.

2. The Federal Magistrate commenced the reasons by identifying the issues she considered required determination, and what material and principles were to be considered in the resolution of those issues as follows:

   10.The issues then that I am required to determine are:-

   a)Should any orders include [Y]?

   b)Should the mother be permitted to relocate the children and remain in [South East Queensland]?

   c)If relocation is not in the children’s best interests, is it reasonably practical to expect the mother to return to Darwin?

   d)If relocation is permitted and the children remain in [South East Queensland], what time is the father to spend with the children?

   e)If the children are returned to Darwin, what time is the father to spend with the children and should that time include [Y]?

   f)Is the time the father is to spend with children substantial and significant?

   g)What last name should [X] have?

   h)Additional issues.

   11.In addressing each of the issues I have considered:-

   a)and read all the material as marked in the court file including the section 11F Advice to Court dated 20 October 2011 and the  family report prepared by Mr [V] in March 2012;

   b)and read the exhibits;

   c)the oral evidence of the parties, the family report writer and the witnesses;

   d)the relevant sections of Part VII Family Law Act 1975 and in particular section 60B, section 60CC, section 61DA and section 65DAA;

   e)the principles and pathway as discussed in Goode & Goode [2006] FamCA 1346;

   f)the principles relating to relocation and in particular the pathways and principals as discussed in Morgan & Miles (2007) FamCA 1230 and by the High Court in MRR & GR (2010) HCA 4; and

   g)the criteria set out in Chapman & Palmer (1978) FLC 90-510 in respect to change of name.

3. Whilst her Honour properly acknowledged the relevant legislative provisions and the sources of principles in relation to relocation cases, we consider it of importance in the appeal to examine how those principles were substantively described and applied by the Federal Magistrate.

4. As the mother’s appeal included the orders relating to the father’s time with Y, it is as well to identify the reasons leading to the Federal Magistrate’s finding that he was a person “concerned with the care, welfare or development” of the child in accordance with s 65C(c) of the Act. Her Honour referred to the following factors (though did not say which were determinative or given weight, and did not refer to any legislative or case law principles):

   
   
   

   ·Prior to cohabitation the child had no father figure in her life;

   ·From the age of 18 months until nearly 4 years old the child called the father “Dad”;

   ·The father had accepted the child as his own during the relationship with the mother;

   ·Only subsequent to the father’s filing of the application for parenting orders was the child re-introduced to Mr Baggott by the mother;

   ·Whilst the child needed to be permitted to concentrate on developing her emotional bond with her biological father in the opinion of the family report writer, time with Mr Radcliffe would not necessarily preclude her from spending time with her biological father in the future; and

   ·The father accepted and embraced the importance of the child having contact with Mr Baggott and did not want to interfere with or impose on that time.

5. The Federal Magistrate then turned to what appeared to her Honour to be the determinative issue in the proceedings – the application of the mother for permission to relocate. Her Honour framed her consideration as, “Should the mother be permitted to relocate the children and remain in [South East Queensland]?” After outlining the history of the mother’s intentions to relocate, her reasons for doing so, the contact the father had with the children and his concerns, her Honour appears to have concluded the issue in terms of it not being in the best interests of the children. Her Honour set out lengthy reasons for this determination, with reference to the objective contained in s 60B of a “meaningful relationship” and the “right to be known and be cared for”.

6. We have identified that part of the judgment which appears to be the essence of her Honour’s reasons in this regard:

   36.I find having considered all of the evidence that it is in the best interests of the children for the children to return to Darwin for the following reasons:-

   a)I accept that the father at this point in time is unable to relocate to [South East Queensland]. The father is presently undertaking Certificate IV training through his current employment which locks him in for the next two years, and a move will result in the loss of employment and qualification. I further accept that [the South East Queensland location] is a small town and the possibility of similar employment opportunity for the father is poor;

   b)If the children remain in [South East Queensland], [X] will not have the benefit of a “meaningful relationship” with the father, as required by section 60B (1) (a) and will be deprived of the “right to be know [sic] and be cared for” by the father as required by section 60B (2) (a);

   c)I find that the only opportunity for [X] to form that bond is for the child to be returned to Darwin. The reasons for my finding are as follows:-

   i)When separation occurred in March 2011 [X] was only 6 months old and did not see her father again until December 2011 when the child was 14 months old;

   ii)Since December 2011 the father has spent a total of 10 to 12 hours with [X], with all time being supervised either in the contact centre or by the mother;

   iii)Since the mother left Darwin in January 2012 the father has not seen or spoken to [X] except briefly at the family report interviews in February 2012;

   iv)The mother admits that [X] has no bond with the father stating in cross examination that “[X] doesn’t understand Mr [Radcliffe] is her father”;

   v)The report writer in cross-examination was of the view that although [X] “has not been able to form an attachment” to the father, it’s not too late for that bond to form;

   d)I have no confidence in the mother facilitating or promoting any relationship between the father and the children should the children be permitted to remain in [South East Queensland] and I base that finding on the following:-

   i)The mother in her evidence presented as a cocky conceited selfish self centred person who put her needs first before any one else including the needs of the children. The mother summed it up best in her own words of “Happy mum happy bub”;

   ii)The family report writer describes the mother at [38] of the family report as “extremely forthright and unbending in her views, as well as being totally convinced about the merits of her decision making”;

   iii)I find that the mother is not child focussed, and as such is unlikely to put the needs of the father first, little [sic] alone the needs of the children when it comes to spending time or communicating with the father;

   iv)The mother apart from a token gesture for supervised time for the father with [X] at the time of separation, an offer which I doubt would have materialised, has not actively promoted any time between the father and either child;

   v)The mother has complete disregard for the father as an important and necessary adult in these very young children’s lives, placing the importance on herself and the maternal grandmother;

   vi)The family report writer describes the mother at [53] of the family report as exhibiting “her own keenly self appreciated superiority over Mr [Radcliffe] in the parenting stake”;

   vii)The mother has contempt for the father as illustrated by the following:-

   •  The mother has failed to keep the father informed as to the children, deliberately changing her telephone number after separation, and not responding to any emails;

   •  Since moving to [South East Queensland] the mother has refused to provide the father with an address or landline number;

   •  The mother has not allowed the father to see [Y] since March 2011;

   •  The father has spent a total of some ten to twelve hours with [X] in the last twelve months;

   •  The mother has provided the father with very little by way of progress reports or photographs of either child;

   •  The mother admits that she holds the maternal grandmother as being more important to the children than the father;

   •  When the mother placed [Y] into foster care the mother chose not to contact the father or the paternal grandmother to provide her with assistance with the children, opting instead to contact Mr [Baggott] who has no relationship with [X] and whose relationship with [Y] in [sic] its infancy;

   •  The mother in cross-examination whilst promoting herself as  “loving nurturing” towards the children and “providing shelter from emotional” upheaval, when asked what positives she could say about the father promptly replied “I can’t give any comments as to the father being a good father as I don’t know him well enough”;

   e)The mother has complete disregard, and as her attitude would suggest, contempt for court orders demonstrating several breaches for which the mother has shown no remorse or concern;

   f)Her attitude is captured at [53] of the family report “It would appear that Ms [Sayer] has opted to put her parental judgment about the children’s best interest ahead of what she views to the court’s completely inadequate appraisal of those best interests. By leaving her fulltime job…and uprooting the children, particularly [X], from exploration of a new routine with her father, she has dismayed [sic] a remarkable coolness about the court processes…”;

   g)In cross-examination the mother was upfront in saying that there was “no guarantee” that she would abide by court orders and that it depended on what she was doing at the time.  Examples of non compliance are:-

   i)Failing to provide [X] for all of the supervised visits at CatholicCare NT;

   ii)Failing to arrange for [Y] to attend any of the supervised visits;

   iii)Relocating to [South East Queensland] despite orders in existence for supervised time by the father with both children. The mother admits relocating without speaking to her lawyer or informing the maternal grandmother of her intention to do so;

   iv)Not informing the father of the relocation with the father only being informed due to her non attendance at the contact centre and the subsequent court application. In cross-examination the mother’s comment was that she didn’t think it was important to contact the father as [Y] was not his child;

   v)Failing to provide the father with an address or telephone number for [South East Queensland];

   vi)       Failing to bring [Y] to the family report interviews;

   vii)Despite the father trying to facilitate time with the children, the mother failed to make [X] available to spend time with the father when in Darwin for the family report interviews, and thwarting his attempts to see [Y] by not bringing her to Darwin;

   h)The mother has no intention of [X] establishing a relationship with the father or building on the bond that already exists with [Y], as illustrated by the following:-

   i)Whilst giving lip service to the concept of creating the bond between [X] and the father as illustrated during the report process for the Advice to Court where the mother speaks of the father building a “rapport” with [X] and “she would facilitate it as best as she could” and speaking of “fast tracking” this bonding, the reality is that her actions of not abiding by court orders, of relocating and of excluding the father indicate a deeper more sinister intention of cutting the father out of these children’s lives;

   ii)Her failing to bring [Y] to the family report interviews speaks volumes as to the extent the mother is prepared to go in her manipulation of the situation to suit her purposes. The family report writer observes at [56] of the family report that “Withholding [Y], in defiance of court orders (maintaining it was for [Y]’s best emotional interests) would also fit into such “fast-tracking” scenario, since attempting to weaken their established bond quickly through lack of contact would underpin her (and Mr [Baggott]’s to a seemingly limited extent) desire to forestall [Y] having an ongoing relationship with Mr [Radcliffe].”;

   iii)History illustrates the mother’s complete disregard of a father’s role in the life of the children with her refusing Mr [Baggott] any time with [Y], inviting him back into the picture only when she saw it as beneficial to her in removing the father from [Y’s] life. Mr [Baggott] spoke as to the difficulties in dealing with the mother at [44] of the family report stating “…..he had spent a long time attempting to contact her in an effort to establish regular time with [Y], only to be rebuffed until the court matter arose.”;

   i)The mother is also dismissive of the importance of the father’s extended family to both [X] and [Y]. Having observed both the mother and the paternal grandmother in the witness box I accept that their relationship is toxic, fuelled by similar domineering personalities and unmovable indignation that they are right in the views that they hold;

   j)But putting aside their own adult issues, I find that there was insufficient evidence to support the mother’s submission that [Y] was not accepted in the family unit by the paternal grandmother;

   k)I further dismiss the mother’s concern as raised with the report writer for the Advice to Court that it would not be “emotionally appropriate from Mr [Radcliffe] to have unsupervised time with [X] initially, believing he would take [X] to his extended family and essentially “pass” her around without actually building his own bond with her appropriately.”;   

   l)I accept that the father’s intentions in these proceedings are to build and develop a relationship with [X] and to nurture the existing relationship with [Y], who he views as his step-daughter, and that the role of the extended family will be an appropriate one, relying on their support for the children, and having their own relationships as grandparents;

   m)I have no faith in the mother standing by her word that she will ensure time with the father occurs if the children are permitted to remain in [South East Queensland].

   n)I find the mother generally to be a dishonest and unreliable witness. Her demeanour in the witness box was aggressive, disrespectful and almost bullying in nature. I agree with the father’s counsels (sic) summation that the mother was “rude, contemptuous and sarcastic” throughout the proceedings;

   o)The mother feels no remorse for the choices she has made including the blatant lie to CatholicCare NT on 22 January 2012 that [X] would not be attending as she was ill when in fact the mother had left Darwin and was in [South East Queensland]. The mother showed no understanding as to why it is wrong to breach court orders such as not taking [Y] to the family report interviews;  

   p)It would be beneficial for the children to be in close proximity to the father, so if required, he can step in to care for the children, should the mother be unable to do so. The evidence points to three incidents where the mother’s capacity to care for the children has been compromised, where [Y] was left to wander alone, where the mother slapped [Y] and dragged her by the arm in front of the paternal grandmother, which was the subject of an unsubstantiated child welfare investigation and where late last year the mother voluntarily placed [Y] into care for three days as she was not coping with her.  Should similar situations occur in the future, then the father and his extended family can provide the support needed which will be in the children’s best interests;

   q)I have a grave concern that the mother will continue to defy court orders and be obstructive in allowing the father an opportunity to create and maintain close relationships with the children. If this continues, then it needs to continue close to the father, so that if necessary a change in live with arrangements can be considered by the court;

   r)Whilst the mother is not required to show compelling reasons for relocation, I agree with the family report writer’s observations at [57] of the family report that “on the face of it, her unilateral relocation does not seem to have serious merit.” The mother had accommodation, a job which she describes as a “job of a lifetime” both of which she threw in to live in a small town where employment will be difficult;

   s)The maternal grandmother in her evidence made it very clear that she will support the mother no matter where she is living, and in addition to that support the mother has a network of people she knows in Darwin including other family members and the fathers of her two children;

   t)A return to Darwin will enable Mr [Baggott’s] relationship with [Y] to nurture and grow.

   (Emphasis added in bold)

7. Having determined that it was in the best interests of the children to be returned to Darwin (paragraph 36) and therefore deny the mother’s relocation application, the Federal Magistrate considered whether it was reasonably practicable to expect the mother to return to Darwin. The mother had argued that three factors hindered her ability to return: financial inability to return to or live in Darwin, the impact on her mental health, and negative impacts on the children. It had been admitted by the father that he was unable to assist financially.

8. In respect of the mother’s financial circumstances, her Honour found the mother had the ability to return to Darwin and that it was reasonably practical in light of a number of stated factors including:

   ·Her previous ability to support the children in rental accommodation while working in Darwin and receiving government benefits and child support;

   ·Her ability to fund flights to Darwin with the youngest child for the family report interviews;

   ·Her apparent ability to fund legal representation for the existing court action;

   ·The maternal grandmother’s claim of not being able to financially assist with the return not being supported by her ability to fly back to Darwin within days of moving to South East Queensland, at the mother’s request;

   ·The maternal grandmother’s owning a house in Darwin currently rented to the mother’s sister, which could provide temporary accommodation for the mother while she re-housed herself and found employment; and

   ·The mother’s own evidence and confidence about her ability to obtain work in Darwin through her knowledge and contacts in the area.

9. In support of her claim that a return to Darwin would negatively impact upon her mental health, the mother filed an affidavit of an Adult and Child Psychologist, Ms L, who she had seen on four occasions in South East Queensland. The psychologist was cross-examined at the hearing, appearing by telephone. The evidence of the psychologist clearly was that the mother’s emotional and psychological wellbeing, and consequently her parenting ability, would deteriorate in the event that she had to return to Darwin.

1. Her Honour decided not to give significant weight to the psychologist’s report for a number of stated reasons including the following:

   ·The mother only saw the psychologist on four occasions, which according to the family report writer’s observations is at “the very shortest end of the time scale to explore mental health status”;

   ·The purpose of seeking help from a psychologist is not stated in the report and the mother’s claim that she did so to deal with her mood and ability to “cope” is not reflected as a significant problem in the report; and

   ·The issues which the mother emphasised at length to the family report writer, namely the alleged destructive influence of the paternal grandmother and the father’s family as a major push factor in her relocation, did not appear at all in the psychologist’s report (the reason reported to the psychologist was the mother’s need to be near her mother who provides support).

2. The Federal Magistrate concluded that the mother had obtained the report in an attempt to bolster her case for relocation and to attempt to justify why she had relocated in breach of court orders.

3. The Federal Magistrate concluded that on the evidence before her she was unable to make any finding about the impact on the mother’s mental health, “as mental health issues ha[d] not been established” (reasons paragraph 50). Her Honour observed that no other evidence was before the Court to support a conclusion that the mother had mental health issues other than stress and at times a “depressive state”, noting that such issues were not uncommon for people in a situation like the mother’s. Weight was given to the family report writer’s observations that the mother gave no indication of “frailty” in her mental health.

4. Turning to negative impacts on the children, the Federal Magistrate accepted that the return order would be distressing and “emotionally wrenching” for both the children and the mother. Her Honour recorded the family report writer’s observation that the negative impact on the mother would almost certainly be transferred directly onto the children, and that it would be extremely difficult for the mother to appropriately shield the children from her anger at the Court and at the father.

5. Her Honour adopted the opinions of the family report writer and the psychologist that the situation of a return to Darwin would not be “insurmountable”. Their recommendations for family therapy, which the mother had agreed to undertake in the consent orders, were taken up in the final orders.

6. Having determined that the children were to be ordered to be returned to Darwin, the Federal Magistrate then considered that the question,

   
   

   “If relocation is permitted and the children remain in [South East Queensland], what time is the father to spend with the children?” did not need to be answered. It is this failure to compare the parties’ respective proposals prior to making such a determination which is the real substance of the appeal.

7. Of some interest, especially in relation to the approach taken, the mother alleged that the father had been violent. The Federal Magistrate did not accept this allegation, referring to her findings against the mother on credit issues and that the domestic violence application was dismissed by the Magistrate in the local court. The mother said this was so because it was withdrawn by her, having been told she would not succeed.

8. The mother also alleged that the father had limitations in his parenting abilities.

9. The notice of appeal states that orders 4 to 13 are appealed, however neither the grounds of appeal nor the submissions make reference to complaints about the time ordered the father spend with the children. Accordingly, we do not consider it necessary to set out the part of the reasons leading to those orders.

Relevant Principles

1. While it is apparent that the mother’s primary complaint in the appeal is the Federal Magistrate’s denial of permission to relocate to South East Queensland, it is important to recall that the application before her Honour was that of the father for parenting orders. The consideration of relocation arose later, in the mother’s response to the father’s application, as an order sought by her, and then more urgently when the mother had in fact moved to South East Queensland with the children.

2. It is a now well established principle that, whilst some special requirements may apply, relocation cases are guided and judicial officers bound by the same legislative pathways as other parenting cases under the Act. In other words, relocation is not to be treated as a discrete issue in the making of parenting orders (see Morgan and Miles (2007) FLC 93-343 at paragraphs 72 to 73, Palmer & Hammer (No 2) [2011] FamCAFC 196 at paragraph 28).

3. A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents (see Palmer & Hammer (No 2) paragraph 76; Morgan and Miles paragraphs 80 to 81). It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the Court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.

4. The provisions of the Act which form that legislative pathway have been reproduced at length by this Court many times (Taylor v Barker (2007) 37 Fam LR 461, Morgan and Miles (supra), Adams & Randall (2011) FLC

   
   

   93-482). It is sufficient for current purposes to identify and summarise those sections contained in Part VII of the Act which govern decisions about children, and consider statements of the High Court and of this Court which guide their application in the context of relocation cases:

   ·Section 60B – Objects of Part and principles underlying it

   ·Section 60CA – Child’s best interests paramount consideration in making a parenting order

   ·Section 60CC – How a court determines what is in a child’s best interests

   ·Considerations relevant to relocation include:

   oPrimary considerations: meaningful relationship with both parents

   oAdditional considerations:

   -nature of child’s relationship with parents and other persons

   -extent to which parent has taken or failed to take opportunity to participate in decision-making, spend time and communicate

   -likely effect of changes in child’s circumstances including effect on child of any separation from either parent, other child or other person with whom they have been living

   -practical difficulty and expense of a child spending time and communication with a parent and whether that will substantially affect child’s right to maintain personal relations with both parents on a regular basis

   -capacity of each parent and any other person to provide for the needs of the child

   ·Section 61DA – Presumption of equal shared parental responsibility when making parenting orders

   ·Section 65DAA – Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances (where an order for equal shared parental responsibility has been made, and such time is in the best interests of the child and reasonably practicable)

   ·Subsection 65DAA (5) – Factors the Court must have regard to in determining reasonable practicability:

   (a)How far apart parents live

   (b)Parents’ current and future capacity to implement an arrangement for equal or substantial and significant time

   (c)Parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing arrangements

   (d)Impact arrangements would have on the child

   (e)Such other matters the Court considers relevant.

5. The legislation therefore requires multiple layers of consideration, but does not provide express guidance as to the order in which such matters are to be considered, or what weight is to be attached, other than to commence with the presumption of equal shared parental responsibility and what follows from that decision.

6. The operation of the legislation in relocation cases has been expressly considered by the High Court in MRR v GR (2010) 240 CLR 461, an appeal from an order of a Federal Magistrate refusing to allow relocation. In joint reasons for judgment, the Court (French CJ, Gummow, Hayne, Kiefel and

   
   

   Bell JJ) summarised the effect of the legislation and concluded that orders for equal or substantial and significant time are to be guided by the practical feasibility of such time, not merely its desirability. Their Honours said

   
   

   (pages 464-465, 467):

   6.Part VII of the Act (ss 60A-70Q) concerns children. It was substantially amended in 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Section 60B(1) of the Act provides that it is an object of the Part to ensure that the best interests of children are met, inter alia, by “ensuring that [they] have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”. Section 60CA requires that a court must regard the best interests of the child as the paramount consideration when deciding to make a particular parenting order in relation to a child. The considerations necessary to be taken into account in determining what is in a child’s best interests are listed in s 60CC.

   7.Section 65D(1) provides that the Court […] may make such a parenting order as it thinks proper, subject to the provisions of ss 61DA and 65DAB. Section 61DA(1) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child. […] Section 65DAB requires the Court to have regard to any parenting plans entered into between the parties and is not relevant in this case.

   8.Sub-section (1) of s 65DAA is headed “Equal time” and provides: “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.”

   (Emphasis added.)

   Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:

   “(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.”

   Sub-section (3) explains what is meant by the phrase “substantial and significant time”.

   9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n 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”.

   …

   15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

   (Footnotes omitted. Emphasis added in bold.)

7. In this case an order for equal shared parental responsibility was made. The orders for time the children have with the father were on an ever increasing basis beginning with 9.00am to 12.00 noon on Saturday, fortnightly to 9.00am to 5.30pm on a Saturday, fortnightly. After May 2012 the time was to include a Wednesday from 2.30pm to 5.30pm. Short periods of time were provided for on special days including Christmas. These orders were hardly substantial and significant time. No reasons were given connecting the orders about time with the father and the order for equal shared responsibility.

8. There can be no doubt that the decision the Federal Magistrate was required to make was very difficult. All relocation decisions are difficult, not the least because of the serious ramifications involved for the parents and the children. Clarification and guidance has been provided by decisions of this Court. We refer to the approach outlined in Starr & Duggan [2009] FamCAFC 115 (Boland, Thackray & Watts JJ) where their Honours said:

   APPROACH TO APPLICATIONS INVOLVING RELOCATION OF A CHILD

   33.The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the “paramountcy principle” found in

   
   

   s 60CA.  That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.

   34.The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode (2006) FLC 93-286.

   35.In McCall & Clark the Full Court referred (at paragraphs 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paragraphs 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent. 

   36.The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be “dual consideration” of some matters.  This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals.  Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child’s circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).   

   37.Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.

   38.However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:

   •         first make findings concerning the relevant s 60CC factors;

   •then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child’s best interests; and

   •then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) – which may be done by referring back to the earlier s 60CC findings.

   39.Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child’s best interests, including the proposal to relocate.

9. The requirement to clearly rather than inferentially follow the legislative pathway in relocation cases was confirmed recently by this Court in

   
   Heaton & Heaton

   [2012] FamCAFC 139 (Coleman, Ainslie-Wallace and Ryan JJ). Their Honours said:

   32.His Honour was first required to determine the children’s best interests by reference to the well known “primary” and “additional” factors referred to in  s 60CC in the light of the competing proposals of the parents, that is, the father remaining in Sydney and the mother wishing to move with the children to Port Macquarie.  Although the mother’s “fall back position” of remaining in Sydney to stay with the children required consideration, we consider that in elevating that concession to the status of a proposal resulted in his Honour’s  failure to adequately evaluate her application to relocate and misapplication of the section. 

   33.It is only in this way that his Honour could have properly considered all of the relevant factors to come to a determination of the children’s best interests.

   34.His Honour was then obliged to consider the provisions of
   s 65DAA(1). 

   35.As the plurality of the High Court said in MRR v GR (2010) 240 CLR 461 at page 466:

   Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of the order… A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist…

   36.      Their Honours continued:

   His Honour treated the answer to the first mentioned question, whether it was in the best interests of the child to have equal time with each parent, as determinative of whether an order should be made.  His Honour did not consider, as he was obliged to do, whether it was reasonably practicable in all the circumstances…

   37.We regretfully conclude that his Honour erred in his determination of the issue of equal shared time.  By conflating the disparate issues of “best interests” and “reasonable practicability” the Federal Magistrate’s reasons for judgment do not demonstrate substantive, if not formal, adherence to the legislative pathway.  As is apparent from a reading of them, with respect to his Honour, his consideration of each issue was vitiated by its dependence upon conclusions or assumptions with respect to the other issue.  His Honour was required to first consider whether equal time was in the children’s best interests pursuant to s 60CC.  If he concluded that it was, it was then necessary to consider the parties’ competing proposals and determine whether equal time was reasonably practicable.  He did not do this.

   38.These errors are such that the appeal must succeed.  As the High Court said in MRR v GR (supra), the determination of both of the questions in s 65DAA(1) provide the source of jurisdictional power to make the order to which the section refers.  It is not sufficient to argue that although his Honour’s findings do not follow that “pathway” when read as a whole, inferentially, it may be said that he made the determinations required of him in s 65DAA.

   39.It is unnecessary for us to consider whether, generally, a “slavish” pursuit of the “legislative pathway” is not essential. 

   (Emphasis added in bold)

1. As will be seen, the other primary complaint of the mother, to which we have already referred, concerns the weight afforded to evidence from a psychologist about the negative impact on the mother’s mental health and parenting capacity should she be required to return to Darwin.

2. The treatment of expert opinion evidence was considered at length in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (as approved by the High Court in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at page 604), where Heydon JA as he then was said at pages 743-745:

   [85] In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen (at 428 [41]), on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise".

   …

   [87] There is no doubt about Professor Morton's authority, experience, qualifications and skill. It is also the case that Professor Morton's report is quite lengthy and detailed. But, given that the court is not obliged to take the opinion of an expert as conclusive even though no other expert is called to contradict it, can it be said that Professor Morton's report goes beyond a series of oracular pronouncements? Does it usurp the function of the trier of fact? More vitally, did it furnish the trial judge with the necessary scientific criteria for testing the accuracy of its conclusions? Did it enable him to form his own independent judgment by applying the criteria furnished to the facts proved? Was it intelligible, convincing and tested? Did it go beyond a bare ipse dixit? Did it contain within itself materials which could have convinced the trial judge of its fundamental soundness?

   (Emphasis added in bold)

3. Although the Federal Magistrate could have afforded greater weight to the opinion of the psychologist, she gave considered and detailed reasons as to why she did not. On its own this aspect of the appeal would not allow it to succeed.

4. The remainder of the mother’s appeal is subject to the well settled general appellate principles applicable to discretionary judgments as enunciated in House v The King (1936) 55 CLR 499 where it was said (at 504-505):

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

5. In Gronow v Gronow (1979) 144 CLR 513 Stephen J stated (at 519):

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

6. We are mindful of those principles however as will be seen we are of the view that there is error in the approach of the Federal Magistrate.

The Appeal

1. The mother’s notice of appeal lists fifteen grounds. The written submissions filed on her behalf state that the most significant matter to which no proper weight or consideration was given by the Federal Magistrate was “the impact on the mother of what was essentially an order limiting her freedoms and in effect preferring the imperatives of the [father] to hers”.

2. It is submitted that the mother was constrained in a manner identified by Gaudron J (in dissent against the majority decision to uphold a decision to deny relocation) in U v U (2002) 211 CLR 238 at paragraph 37. That part of the quotation in bold below was omitted from the quote in the mother’s written submissions:

   It must be acknowledged that it is likely that, in very many relocation cases, a mother will concede that, if she has to choose between relocation and having her child live with her, she will choose to have her child live with her. That being so, she runs the risk that her interests will not be properly taken into account. To avoid that possibility, it is essential that, in relocation cases, each competing proposal be separately evaluated. That is so whether it is the mother or the father who wishes to relocate. So much was made clear in AMS v AIF […].

3. Mr Galloway submitted on the mother’s behalf that she is in Darwin unemployed, homeless and living in poverty.

4. At the hearing of the appeal it became apparent that the impact on the mother caused by the orders requiring her to return was the detrimental effect to her mental health and parenting capacity, as demonstrated by the evidence of the psychologist Ms L, and to her physical freedom measured by the

   
   

   30 kilometre radius living requirement. The second complaint emphasised at the hearing was the failure of the Federal Magistrate to apply or properly follow certain provisions of the Act, which we will refer to as the “legislative pathway”. As will be seen, it is this second complaint which establishes appealable error.

5. We will deal with the grounds in the order they were argued before us by counsel for the mother.

Failure to adequately consider the detrimental effects of return on the mother (grounds 11, 12, 14)

1. These grounds complain that the Federal Magistrate erred by failing to consider sufficiently the happiness and contentment of the mother, and in particular that she would enjoy a better life in South East Queensland than enjoyed by her and the children in Darwin. In addition it is said that her Honour erred by failing to give proper weight to the evidence of the psychologist Ms L as to the mother’s emotional/psychological wellbeing and her parenting capacity if required to return to Darwin.

2. The Federal Magistrate’s treatment of the psychologist’s evidence is the most significant of these grounds. The parts of the psychologist’s report emphasised by the mother are reproduced in the summary of argument filed on behalf of the mother as follows:

   5. Your opinion as to the impact on [the mother’s] emotional/psychological well being in the event that she had to return to Darwin with the children

   I am of the opinion [the mother’s] emotional and psychological wellbeing would significantly deteriorate in the event she had to return to Darwin. Given she is currently experiencing symptoms consistent with depression and anxiety, as her stressors increase it is likely her mental health would suffer and exacerbate her depressive symptoms. This would then have a negative impact upon her children’s emotional and psychological wellbeing as they depend on their mother to provide them with a safe and emotionally supportive environment to nurture their social emotional and psychological wellbeing.

   6. Your opinion as to the impact on [the mother’s] parenting capacity in the event that she had to return to Darwin with the children

   If [the mother] was to return to Darwin, I am of the opinion her mental health would deteriorate and this would have a significant impact upon her ability to parent the children. Prior to her move to Queensland, [the mother] was feeling isolated, extremely stressed and felt she was not able to cope with the parenting of her children and sought respite through child services. The need to access this type of support reinforced [the mother’s] depressive symptoms and highlighted to her the need to engage family support.

3. It was submitted that the Federal Magistrate had “rejected” the evidence of the psychologist. This was not so.

4. In addition it was submitted that the reasons her Honour provided for rejecting or not affording more weight to the psychologist’s evidence do not withstand scrutiny. Each of the factors listed by her Honour at paragraph 46 (a) to (h) was said to be irrelevant, neutral or not supported by the evidence. Counsel for the mother submitted that the psychologist had not been sufficiently cross-examined during her evidence for the Federal Magistrate to “discount” the evidence as she did.

5. Consequently her Honour was said to have proceeded on a wrong assumption that the mother did not have mental health issues, or would not be significantly negatively impacted emotionally and psychologically by a return to Darwin. Counsel submitted that her Honour ought to have accepted the psychologist’s report, and that had she done so, the ultimate decision may have been different.  

6. Concluding that the Federal Magistrate might have treated the psychologist’s evidence differently or might have come to a different conclusion does not lead to finding appealable error. It is quite clear that the Federal Magistrate did have regard to the impact the return would have on the mother, and the children. In that sense, the family report writer’s evidence was in essentially similar terms to that of the psychologist.

7. The Federal Magistrate recorded the evidence of the family report writer that the return would be “emotionally wrenching” and that the negative impact on the mother would “almost certainly” be transferred to the children. However the report writer did not consider the situation to be insurmountable, and recommended medical intervention and family therapy. While the mother now complains “there is no evidence, and given the antipathy between the parties, no prospect, of an engagement in family therapy that is likely to moderate the mother’s distress at all”, no credible challenge was made to that assessment at the time and her Honour was therefore reasonably entitled to rely on it. Relevantly the mother had in fact consented to family therapy in the consent orders made 12 April 2012.

8. No appealable error has been established by these grounds.

Failure to apply or properly follow the legislative pathway (grounds 8, 9, 10, 13)

1. Grounds 8, 9 and 10 assert the Federal Magistrate erred in the application of

   
   

   ss 60CC and 65DAA. In the written submissions it was said:

   37.It is true that in the instant case the Federal Magistrate, at paragraph 11 of the reasons, identified that she had considered the “legislative pathway”. However, it is respectfully contended that whilst it was undoubtedly the desired end and a matter pertinent to the children’s welfare, that they should have a relationship with the [father], that the Federal Magistrate in failing properly to take into account the imperatives of the Mother, or alternatively having adverted to them but having given them inappropriate weight, has not appropriately followed what is the mandatory pathway contained in s.60CC.

   (footnotes omitted)

2. The effect of this legislative pathway argument for the wife is that the

   
   

   Federal Magistrate erred in not taking into account or giving proper weight to the s 60CC factors which were in favour of the mother’s proposal. We were not referred to any particular factors contained in that section, however counsel pointed out that her Honour made no reference to the section in the reasons, other than that at paragraph 11.

3. Counsel for the father submitted in response that while not “by heading”, it was apparent from the reasons that her Honour had addressed the relevant s 60CC factors through the course of the reasons. We are not so confident that such an inference can be drawn.

4. Having made an order for equal shared parental responsibility, the

   
   

   Federal Magistrate was required under s 65DAA to consider orders for equal time first as the primary consideration, whether such time was in the best interests of the child, and additionally if such time was reasonably practicable (MRR v GR (supra), Heaton & Heaton (supra)). This requirement is not extinguished by the fact that neither parent sought an order for equal time.

5. The pathway mandated by s 65DAA is consideration first of equal time, and if no order for equal time is made, then consideration of significant and substantial time according to the same criteria. The Federal Magistrate neither expressly nor impliedly followed this legislative pathway.

6. Overarching this process, being a relocation case, the Federal Magistrate was obliged to consider the competing proposals of the parties in their entirety. Her Honour cannot be said to have properly followed this process, as she dealt first with the mother’s proposal and subsequently, having decided that proposal was not in the children’s best interests and the status quo would therefore continue, turned to consider what orders for time and communication should be made. It was rather back to front.

7. We note that the ultimate result may have been no different had the

   
   

   Federal Magistrate considered both proposals on their merits in parallel, however the legislative pathway is a process which must be followed, it is not a discretionary matter. The requirements of the legislation and the principles to be applied in relocation cases are clear. These grounds therefore establish appealable error and the appeal must be allowed.

8. Ground 13 asserts that her Honour erred by finding that it was reasonably practicable for the mother to return to Darwin with the children. The submissions under this ground focussed on the merits of that finding, however at the appeal hearing, counsel for the mother agreed that in fact the complaint should be that the consideration of reasonable practicability of the mother’s return was an inquiry beyond the scope of the legislative pathway. In light of what we have said about the failure to adhere to the legislative pathway, this ground need not be considered further.

9. Having found appealable error in grounds 8, 9 and 10 we will cautiously consider the remainder of the grounds as the matter must be remitted to the Federal Magistrates Court for re-hearing. We are mindful that a consideration of the evidence, together with possible further evidence, may lead to the same result and we do not wish to say anything to give the impression we have any view as to the possible outcome of a further hearing.

Other complaints about findings unfavourable to the mother

(grounds 3, 6)

1. These grounds clearly form a central complaint in the mother’s appeal, that the Federal Magistrate decided the relocation application on findings unfavourable to the mother which were not open on the evidence.

2. Ground 3 complains that the Federal Magistrate erred in finding that the mother would not facilitate a meaningful relationship between the father and X. No specific submissions were made in support of this ground, however in the submissions in response for the father it was said that the Federal Magistrate’s findings at paragraph 36(d) of the reasons and the bases for those in (i) to (vii) were well founded on the evidence.

3. Relatedly, ground 6 asserts that her Honour had no proper basis for lacking confidence in the mother in the circumstances of the case. It was submitted that the Federal Magistrate “misled herself by placing too much emphasis on demeanour”, meaning the “lack of confidence as expressed in the judgment is not soundly based”.

4. This was rejected in submissions for the father. It was submitted that the finding of lack of confidence in the mother was substantiated by transcript evidence, and that her Honour had a more than sufficient proper basis. Counsel referred to tone, responsiveness (or lack thereof), the manner in which answers were given, and the prioritising of the mother’s needs above the children’s needs or of the maternal grandmother’s role above that of the father. It was said that the demeanour was only one factor, giving rise only to the finding at paragraph 36(d)(i) that the mother was a “cocky and conceited selfish

   
   

   self-centred person”.

5. We would not find substance in any of these grounds.

Complaints about findings favourable to the father (grounds 2, 4, 5, 7)

1. In these grounds, the mother takes issue with the Federal Magistrate’s finding, described in the written submissions that “the [father] should not be expected to move to [South East Queensland] on the basis that it was a smaller centre than Darwin, employment could not be certain and he was undertaking a course of professional development”.

2. Counsel for the mother submitted that the Federal Magistrate “exonerated the [father] from responsibility for pursuing his relationship with the children and in effect provided through a quite oppressive order that the relationship with the children be brought to him and further brought by the mother at the expense of her ambitions”. It was submitted that the evidence was insufficient to lead to the making of such orders.

3. Ground 2 suggests that it was an error to make a finding that the relationship between the children and the father would be adversely affected by the mother’s proposal. It was submitted that had the father “actively pursued a relationship with his child and with [Y] by indicating a willingness to move to or near [South East Queensland], then any adverse impact upon his relationship by the move would be obviated”.

4. In response for the father it was submitted that the finding of adverse effects was open on the evidence. Further, in relation to Y it was open because the final orders sought by the mother were that the father spend no time with her regardless of whether resident in Darwin or South East Queensland, and the limited relationship would therefore be extinguished on either of the mother’s proposals. In relation to X it was said to be open because the mother’s proposal was for extremely limited time regardless of whether the father lived in South East Queensland or Darwin, and the findings of the Court at paragraph 36 (d) to (i) demonstrated that the mother had provided very limited facilitation or promotion of a relationship between the father and the child throughout 2011, and no facilitation from 17 January 2012. In further support of her Honour’s finding it was submitted that the mother’s proposals were subject to “on terms agreed”, and having regard to the background facts of the matter and the tense relationship between the mother and the father, such agreement was unlikely.

1. There is no substance in these grounds such that the appeal would be allowed.

2. Ground 4 suggests that the Federal Magistrate erred in failing to scrutinise alternatives to enable the development of the father/child relationships between him and the children. In explaining this ground, it was said that the

   
   

   Federal Magistrate had wrongly supposed that control over the establishment and maintenance of a relationship between the father and the children was solely the prerogative of the mother.

3. In response for the father, it was submitted that the finding was substantiated by the evidence before the Court, that the father was unable to relocate to South East Queensland and that the alternative proposal of the mother was that the time spent by the children with the father would be for no more than four hours each day, for no more than five days on four occasions each year. It was emphasised that the evidence before the Federal Magistrate was that X had not been able to form an attachment with the father, and that such an attachment could not form in a situation where the mother resided with the child in South East Queensland and the father resided in Darwin.

4. Ground 5 complains of error in the finding that the only opportunity for X to form a meaningful relationship with the father was if the child was returned to Darwin. It was submitted that this finding was true only on the basis of an allegedly false premise, that the father could not or should not have been expected to himself move to South East Queensland. The submissions of the father under ground 4 are relevant to this ground.

5. Ground 7 alleges that the Federal Magistrate erred in giving disproportionate weight to the father’s wish that the children be returned to Darwin. It was submitted that this ground encapsulated the mother’s dilemma: that nothing was required of the father in the building and maintenance of a relationship with the children and everything was required of the mother. It was said that while the father’s wish was understandable, disproportionate weight had been given to it. Reflecting the essence of the mother’s complaint under these grounds, it was submitted in the written submissions that “where the father has, historically, been relatively passive and where the mother’s ambitions to reside in [South East Queensland] are reasonable, facilitation of a meaningful relationship can be seen to lie in the hands of the father”.

6. The written submissions in response for the father correctly explain that his wish for the children to return was in the context of their having been unilaterally removed contrary to a court order. It was submitted that but for the mother’s conduct, the wish would not otherwise have been a consideration for the Court. The mother’s suggestion that the father had been historically relatively passive was rejected, as much had been required of and demonstrated by the father, to attempt to establish a bond with his daughter on a limited supervised time basis, due to the restrictions imposed on him. It was submitted that the mother had failed to ensure the children had the benefit of both parents being meaningfully involved in their lives in the March to December 2011 period, and from 17 January 2012 to trial. In our view the conclusions reached by her Honour were open to her on the evidence.

7. In our view, the mother failed to establish any of these grounds.

Finding of person “concerned with the care, welfare or development” of Y (ground 1)

1. No written or oral submissions were provided in support of this ground of appeal, other than to say that the father’s interest in Y was “real but incidental”. There being no real challenge to the validity of this finding, we consider there is no merit in this ground.

Failure to sufficiently consider impact of return order on the children (ground 15)

1. No written submissions were provided in support of this general ground of appeal. We consider the intended complaint to have been raised and addressed in the mother’s other grounds of appeal.

Conclusion

1. Appealable error has been established in relation to the Federal Magistrate’s failure to apply and follow the relevant legislative pathway for parenting cases where relocation is one of the issues. The appeal must be allowed.

2. In the event that the appeal was allowed the mother sought that this Court

   
   

   re-exercise the discretion to determine the relocation and parenting applications and make orders. For reasons which we have explained and were explained to counsel at the hearing, the controversial nature of the proposed evidence makes it impossible for us to re-exercise. Thus we would not give leave to adduce the further evidence on appeal.

3. The matter will be remitted for re-hearing by a Federal Magistrate other than Federal Magistrate Turner. It is to be hoped that the re-hearing can be expedited, but we leave that to the arrangements of the Federal Magistrates Court.

Costs

1. Both parties asked at the conclusion of the appeal hearing that in the event the appeal was successful, costs certificates be ordered.

2. It is appropriate in these circumstances where the appeal has succeeded on a matter of law, that there be no order as to costs and each party be awarded a costs certificate under the Federal Proceedings (Costs) Act1981 (Cth) for costs incurred by them in relation to both the appeal and the re-hearing.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on

14 December 2012.

Associate: 

Date:  14 December 2012