SB & BE

[2005] FamCA 387

[2005] FamCA 387

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT MELBOURNE  Appeal No. SA2 of 2005

File No. (P)MLM10039 of 2003

BETWEEN:

SB

(Appellant Mother)

and

BE

(Respondent Father)

CORAM:  THE HONOURABLE JUSTICE KAY

DATE OF HEARING:          28 April 2005

DATE OF JUDGMENT:      20 May 2005

REASONS FOR JUDGMENT

APPEARANCES:

Mr Puckey of Counsel, instructed by Morrison and Sawers, Solicitors, DX 62001, Kyabram, appeared on behalf of the appellant mother.

Mr Middlemis, Solicitor, DX 55016, Bendigo, appeared on behalf of the respondent father.

SB and BE
Appeal No SA2 of 2005
Coram:         Kay J
Date of Hearing:     28 April 2005
Date of Judgment: 20 May 2005

Catchwords:           CHILDREN – residence and contact – appeal against an order that a four year old child reside with her father and have contact with the mother – failure by Federal Magistrate to adequately outline and evaluate competing proposals when the effect of the order was to move the child from the settled environment of the mother's household where she was progressing satisfactorily and had been able to develop a good relationship with both parents - unchallenged evidence of counsellor that the change of household might have serious effects on the child not dealt with - case remitted for retrial – costs certificates granted.

1. This is the mother’s appeal against orders made by Connolly FM on 22 December 2004 that provided that the child F born 2000 reside with her father from noon on 21 January 2005. 

1. By her Notice of Appeal the mother seeks an order that the father have contact with the child from 1 February 2005 on each alternate weekend from 5.00pm Friday until 5.00pm Sunday and for half the school holidays.  She also seeks an order that the contact changeover take place at a central Victorian rural town.

Background

1. The father is now in his late 30s and the mother is in her early 30s.  F is their only child.

1. The parties commenced to cohabit in 1994 and married in 1999.  They separated in 2001.  Their marriage was dissolved by decree which became absolute in 2003. 

1. Separation occurred when the mother was admitted to hospital after having taken an overdose of pills.  She remained in hospital for about three weeks and F was cared for by the father. 

1. Proceedings concerning the child were commenced in a country Magistrates’ Court and orders were made on 12 December 2001 providing for F to live with her mother from noon Friday to noon Monday each week and at all other times with her father.  The matter was transferred to a hearing in the Federal Magistrates Court.

1. On 8 May 2002 orders were made for F to reside with her mother and for her father to have contact from 10.00am Wednesday until 6.00pm Sunday in alternate weeks.  Other orders were made concerning special days such as Christmas, Father’s Day, Mother’s Day, the child’s birthday and the father’s birthday.

1. The parties had moved to a country town (‘the country town’) from a large city in 2001.  They remained living in the country town until the mother moved together with the child to a small rural township (‘the small rural township’), some 1½ hours travelling time away from the country town.  She continued to provide the child for contact after moving to the small rural township, doing all of the travelling required to give effect to the changeovers which were taking place in the country town.

1. In December 2003 the mother filed an application seeking to reduce the contact hours so that they became more compatible with the child’s educational needs.  She sought that the contact be reduced to alternate weeks from Thursday 3.00pm until Sunday 5.00pm plus half the school holidays.  She then sought that once the child commenced school in 2005 contact be from 5.00pm Friday to 5.00pm Sunday on alternate weekends, plus half the school holidays.  She sought orders that the contact changeover occur at a central Victorian rural town. 

1. In his response the father sought orders that the child reside with him and that the mother have contact with the child, until the child commenced school, alternate weekends from 9.00am Thursday until 5.00pm Sunday, and after the child commenced school from after school Friday until the commencement of school Monday, plus half the school holidays.

1. His alternate proposal as outlined to C, the counsellor who reported to the Court, was that the mother should return to live in the country town and there should be an equal sharing of the care of the child on a fortnightly basis.  He put forward to the Court no proposal as to what orders were appropriate in the event that the child remained living with her mother in the small rural township.

1. A series of events occurred in the second half of 2002 that loomed large in the proceedings and occupied many of the 54 paragraphs that constitute the judgment of the Federal Magistrate.

1. The mother fell pregnant to the father at the end of July 2002.  The pregnancy was terminated in September 2002.  Several days later, and contrary to the wishes of the mother, the father placed a notice in the country town’s newspaper that said:

“….[BE] and [SB] deeply regret the loss of our second child…Sibling to F.  Second grandchild to [I] and [J] and [DB] and [MB].  Loved and lost forever.  Rest in peace.  Thanks to the staff at [the] Termination Clinic.”

1. It was the mother’s evidence that she fell pregnant when the husband assaulted her at the end of a contact visit.  It was the father’s evidence that the parties were having a consensual sexual relationship that led to the pregnancy. 

1. It was common ground that the mother informed the father of the pregnancy some three or four days before it was terminated.  It was the mother’s evidence that she attended for the termination absent the father.  It was his evidence that he accompanied her to and from the clinic and paid half the costs of the termination. 

1. It was his evidence that he wanted to place the advertisement in the paper and the mother helped him draft it, but that she subsequently changed her mind and asked him not to do it.

1. The Federal Magistrate accepted the father’s versions of events relating to the conception and termination of the pregnancy, holding that the mother’s motive in persisting with her fabricated story appeared to be fear of disapproval by her parents. 

The judgment

1. After noting that the father was employed as a part-time labourer on alternate Sundays and occasionally on Saturdays at a city market, his Honour noted that the mother worked between 16 and 20 hours a week as a part-time shop assistant at a local supermarket in the small rural township.  She had assistance from her parents to care for F when the child was not in kindergarten and it clashed with the mother’s employment. 

1. He noted that F suffered from a condition in her left eye that required ongoing medical attention.  He noted that the mother had had a history of post-natal depression with an admission to a city medical centre and a further admission to a city hospital.  He noted but did not resolve differences in the evidence relating to the mother’s allegations as to the father becoming physically abusive to her in the course of the marriage.

1. He noted that the mother had obtained an ex parte intervention order in October 2001 and that after difficulties surrounding Christmas contact in December 2002 the father attended at her home in breach of the intervention order.  He was subsequently placed on a bond without conviction relating to that breach.

1. He further noted that in January 2003 the mother was admitted as a voluntary patient in the country town. 

1. He found that throughout 2003 both parties had complaints about contact and how it occurred:

“…however generally contact has taken place in accordance with the orders.”

1. He found:

“16.Neither party gave any meaningful evidence of their financial capacity to care for [F] but it would appear from the circumstantial evidence that they are similarly placed in modest financial circumstances.”

1. His Honour then set out the statutory considerations that guided his exercise of discretion and then turned to make some findings about the evidence. 

1. He turned first to uncontested evidence from a Dr G, a psychiatrist, who had prepared reports on both of the parties.  He said:

“23. Dr [G], the reporting psychiatrist whose report was accepted into evidence without any testing or cross-examination, says at page 9, section 4 of his report:

It is quite apparent that there are serious ongoing conflicts between [BE] and [SB].  They have both given their respective versions of events which on various factual matters are mutually incompatible.  It is of course impossible for me to know the veracity or otherwise of the particular allegations and counter-allegations.  Of particular concern is that [SB]’s allegation that [BE] raped her and also her claims that he has continued a campaign of hostility and verbal abuse towards her.  The placing of a death notice in the [the country town’s newspaper] and the more recent alleged offering of a ‘gift’ of a pocket knife as a…birthday present would, if true, certainly indicate a high level of hostility and possibly malice towards [SB].”

1. His Honour then discussed the circumstances surrounding the mother’s rape allegations and the reason for his coming to the conclusion he did that the husband’s evidence was to be preferred and the wife was likely to be at least partially motivated by a fear of disapproval by her parents.

1. He next dealt with some allegations by the mother that the father was adversely influencing the child against her and that on one occasion the child had said that her father had told her “Mummy killed the baby” and that if Mummy had not killed the baby then she would have a little brother or sister.

1. Her mother gave evidence that corroborated that allegation but also added in her affidavit:

“[SB] has told me that each time F comes home from contact she asks about her little brother and sister.”

1. Whilst the father denied telling the child that “Mummy had killed the baby” he acknowledged in cross-examination that such a statement would be consistent with his thoughts on the issue.  Neither the mother nor the maternal grandmother were cross-examined at all about their allegations or any inconsistency between them yet the Magistrate found that because of the inconsistency the mother’s evidence on the issue of whether the child ever said “Mummy killed the baby” was fabricated.

1. His Honour then turned to the circumstances surrounding the publication of the advertisement in the newspaper finding that the husband’s conduct showed a complete lack of respect for the wife’s feelings once he became aware of her attitude towards the publication of the notice.

1. In 2004 the father gave the mother a Swiss army pocket knife for her birthday.  She viewed the gesture as hostile and sinister.  He gave evidence that it was a genuine present.  The Federal Magistrate preferred the husband’s version of events. 

1. The mother also sought to rely on some writings and publications of the father as evidence of a continuing war of harassment.  The Magistrate found that some of the documents lacked sensitivity but did not draw any adverse inference against the father because of them.

1. He then cited a passage from the husband’s cross-examination as follows:

“46.The Husband was questioned about what he meant by the comments referred to on page 16 of [C’s] report, paragraph 3:

[BE] stated that he is ‘fighting for a relationship with [F].  He stated that he wants to be part of [F]’s early childhood development.  He believes that removing the court process and he and [SB] being able to deal with this matter 1:1 would assist.  He also suggested that “if it gets to a point that [F]’s welfare is impacted severely someone has to let go.  I don’t want to, but it may be best to step back.

His reply was:

I don’t wish for [F] to be caught in a tug of war and I think at some point relatively shortly somebody is going to have to make a decision to step away for [F]’s benefit.  I would find that difficult to do but, in her best interests, I think that might be necessary.

47.      When cross examined further he said:

[F] is becoming a lot more aware of what is going on and I don’t want her to be affected by what is happening between [SB] and myself.  I would try to protect her from that the best that I could and if it meant having to step away in order to do that – I can’t see exposing her to any more would be of benefit to her.  I think that may be an option that I would have to consider.

48.      When further questioned, the Husband stated:

It’s a lot better than nothing, isn’t it?  Yes, it’s a lot better than nothing but it’s not going to stop [F] being exposed to you know, your Dad says this, your Dad says that, this is the problem, and in order to prevent that one option would be to take that away completely.

49. I am satisfied that the Husband’s evidence was genuine.  He was very passionate in his demeanour and I have no doubt that he would be prepared to subjugate his own interests to those of the child if necessary.  In my view it was one of the most important pieces of evidence in deciding what is the best outcome for [F].”

1. The Magistrate then set out a passage from the counsellor’s report listing matters that the child had told the counsellor:

“51.     At page 26 of his report, [C] says:

During the time spent with [F] she advised that:

·           Mum doesn’t let me ring Dad any time.

·Mum says Dad is pretty nasty to me and it’s not true is it?

·Dad is pretty nasty to me and my Nan and Pa.  He can get really angry.

·My Nanny and Pa, when I was a baby.  My Nanny and Pa wanted my mum to ride the red car back to their house to keep it.  That’s why I had to walk.  It’s not true is it?

·Mum is nice to me only sometimes.  If I do some nasty thing my Mum smacks me.

·Dad is nice to me.

·Both Mum and Dad are grumpy sometimes.

·Mum works at [a supermarket].  She likes work and works for lots of money to buy me things.

·Dad always stays at home and works at his house.

She then elected to finish and drew the writer ‘something that swims in the water – a shark, a spider and another spider’.  She was noted to focus on these activities and gain enjoyment from each drawing.  At no time did the writer see [F] distressed.”

1. His Honour then went on to find:

“52. I accepted the Husband’s evidence that [F] has started to refer to Nanny and Pa and Mum as her parents, and I regard that as evidence of a serious attempt to erode the child’s relationship with her father…” 

1. This finding seems to arise from cross-examination of the father that read as follows:

“You say you have an excellent relationship with your daughter?---Yes.

Do you give [SB] any credit for that?---Well, I would have to for the period of time that [F] has been there in the situation.  [F] is an absolutely beautiful girl and she wouldn’t have done that by herself, so I would give some credit.  However, her conversations are based around nanny, and nanny and pa, and her neighbours, and you know she’ll refer to ‘mummy’ but, more often than not, it’s ‘Nanny and pa’ and, ‘Nanny and pa’.

I don’t understand what you are trying to say - that nanny and pa are encouraging the contact?---No.  I believe that she spends far too much time with the maternal grandparents at the expense of myself and her nanna, my mother, and her extended family in [the country town].  I believe that a lot of her conversation is coloured by what she is told an[d] does with, as she states ‘Nanny and pa’.”

1. The Magistrate then turned to his assessment of the s 68F(2) factors saying:

   “53.     …

   a)        The child is not yet five years of age; and

   b)[F] has a close and loving relationship with each of her parents.

   c) If an order were made that the child live with her mother and have contact with her father each alternate weekend I would have grave concerns for the relationship that [F] has with the Husband.  The Wife has already removed the child from the immediate location of the Husband’s home and the Wife’s parents have indicated a strong dislike for the Husband.  [F] is clearly aware of the dislike and her awareness will only be exacerbated in an environment where she sees less of her father and more of her mother’s parents. 

   If on the other hand she is to reside with her father and have contact with her mother there is no doubt she will miss seeing her mother when she has been her primary carer.  However I have every confidence that the father would encourage the child’s relationship with her mother.  Indeed given the father’s concession in cross examination that a shared regime would be in [F]’s best interest, I have given serous regard to that.  However in light of what both [C] and Dr [G] have to say about the negative effects of the ongoing fighting between the parents I have declined to adopt that course.  It may well be that an order that the child live substantially with her father will ultimately encourage the mother to leave [the small rural township] and return to the [country town].  I have no doubt if this occurs that Husband will facilitate more contact with the Wife. 

   While the effect of a change of residence to live primarily with the Husband will be a significant one for [F], I am satisfied it is one that she will be able to cope with given that she has spent substantial time in her father’s care during her four and a half years.  He has looked after her during her mother’s illnesses and currently [F] spends five days a fortnight with him.  I am also satisfied that in the long term, [F] will progress well in the Husband’s care.

   d)These parties live about one and a half hours’ drive apart and whilst that is a bar to a shared care regime, I do not see it as posing a problem with respect to alternate weekend contact.  It is a cost that both parents should share.

   e)Both parents have displayed a capacity to care for [F]’s physical needs.  I am satisfied that the Husband has exhibited the ability to care for her emotional and intellectual needs.  For the reasons I have already indicated I am convinced he would place the needs of the child before his own.  The contrary is the circumstance with the Wife who has acted in an appalling way in falsely accusing the child’s father of rape, and in moving her from [the country town] without even discussing the matter with the Husband.  In my view, in giving the false testimony that she has, she has indicated a preparedness to do anything to achieve her own ends, ultimately at the child’s expense.

   f)I am satisfied that by placing [F] in the care of her father she is more likely to be protected from psychological harm in that he has exhibited a preparedness to protect her from emotional conflict even to his own disadvantage.  As I have said, I am concerned that the Wife would put her own needs first and is not likely to protect [F] from the open dislike exhibited by her parents towards [F]’s father. 

   g)Whilst the Husband has acted somewhat inappropriately in the past in allowing [F]’s photograph to be displayed in a newspaper article concerning separated parents and contact disputes, and he treated the Wife in an abusive way in placing the death notice in the newspaper after she withdrew her agreement.  But I am satisfied that by and large, he has showed a responsible attitude to parenthood.  The Wife on the other hand has acted in a disgraceful manner in fabricating a serious criminal offence, which could have resulted in the child’s father being sentenced to a period of imprisonment.  She has admitted lying to the Magistrates’ Court on one occasion and I am satisfied she has continued to lie to this Court.” 

2. He then concluded:

“54.In all the circumstances of this case I am satisfied that it is in [F]’s best interests that she reside with her father and have alternate weekend and half school holiday contact with her mother.  If possible, contact should commence from after kindergarten or school on Fridays and conclude before kindergarten or school on Mondays.  I propose to order that the orders be explained to [F] by a counsellor as soon as possible and I note that [C] suggested that Mr [M] may be able to carry out this function.  I propose to stand the matter down to enable the parties to discuss the finer detail of the orders.”

The Notice of Appeal

1. The appeal was effectively argued on four grounds:

1. The reasons given were inadequate to enable a determination as to how the Federal Magistrate weighed the competing factors in s 68F(2) and arrived at his conclusion.

2.        Weight was placed upon findings of fact that were not relevant or necessary to the decision.  In particular the credit issues raised in connection with the rape allegations.

3.        Important matters were overlooked or given inadequate weight, namely

·    the child’s primary attachment to the wife,

·    the impact of a change of residence upon the child,

·    the father’s capacity to provide for the child’s practical day-to-day and financial needs,

·    the father’s capacity to foster a relationship between the child and the mother, and

·    the father’s violence and harassment of the mother.

4.        That there were findings of fact made that were not supported by the evidence being

·    the wife’s credit when denying an ongoing relationship with the father during 2002,

·    the wife’s credit in relation to her assertion that the child had told her Daddy said “Mummy killed the baby” and

·    the findings in paragraph 53 that the mother would undermine the relationship that the child has with the father.

Appellate principles

1. The principles which govern an appeal against a discretionary judgment are well known.  (See House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) FLC 90-716; (1979) 144 CLR 513).

1. In children’s cases the Full Court said in Smith and Smith (1994) FLC 92-488:

“…the preferable approach to be adopted is to consider each of the matters referred to in the section separately and having regard to the evidence touching upon each of those matters make findings in relation to them. In the course of this exercise, the trial judge should consider, weigh and assess the evidence touching upon each of the relevant matters adduced on behalf of the parties. After a consideration of all those matters, a trial judge should then indicate to which of those matters he or she attaches greater significance and how all of those matters balance out.”

1. That, however, needs to be tempered by Kirby J’s remarks in AMS v AIF (1999) FLC 92-852; (1999) 199 CLR 160 at paragraph 150 where his Honour said (footnotes omitted):

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

Discussion

1. The gravamen of this appeal is that his Honour seems to have been distracted from his obligations under s 68F(2) by matters which were said to have little bearing on the difficult issue that was presented to him. Each parent wanted the child to live with them. They lived in separate parts of Victoria and there was no reasonable expectation that either of them would be likely to move from where they were living. In those circumstances the task that faced the Magistrate was to evaluate the present circumstances of the parties and their competing proposals to determine which of them would best advance the welfare of the child or to craft a different proposal that would be realistic having regard to the circumstances of the parties. Serious and significant attention needed to be paid to the evidence of the counsellor, given that no reason was demonstrated as to why that evidence should be rejected.

1. The counsellor reported that the mother had actively encouraged the child in her relationship with her father and that the child had a good relationship with her father.  He was asked:

“As a result of the orders and the caring arrangements that have existed since May 2002 when these proceedings were resolved with final orders last time – as a result of the period of time that has past  [sic] since then is there a perception on the part of [F] that she has a home base or a primary parenting role in her life?---Yes.  I didn’t get a sense that she didn’t understand that.  She seemed quite comfortable with that – that she resided with her mother and that she spent time with her father, and that the exchange process – given the conflict between the parents – I thought was quite interesting in that she was very used to that arrangement and made no fuss about the exchange and yet in two rooms I had two parents who, if they came together, it would have been a very interesting exchange.”

1. The Magistrate then asked:

“…if I was satisfied…that the father’s version of events in relation to the…alleged rape - and what happened subsequently – if I accepted his version does that impact in any way on your view about the conflict that existed between them?---A little, your Honour.  I mean, it certainly is a stand-up-and-take-notice allegation standing on its own, but I think if you look at that within the context of the dynamic of these two:  they formed a relationship.  It was a volatile relationship from the very early stages.  They were involved in marijuana use, alcohol abuse, Centrelink fraud – I think they ran up – I can’t remember the figure, but it was something like – it might have been $6000 in tollway fees.  I mean, the way they were living I think was reflective of their relationship, but with little responsibility shown, and then a child arrived and I think that dynamic just continued through the child…It’s a very complicated and conflictual relationship and I saw the allegation of rape as just being another indicator of the level of conflict between the two and the fact that they had been to court and reconciled, as well, in the intervening period, according to [BE] – I saw that as an indicator of, why would that occur, and that says something about the dynamic of these two – that they can go through proceedings and then, if [BE] is correct, they then reconcile their relationship.  That concerns me – about the future for [F] and what she will be exposed to.”

1. Counsel for the mother returned to the issue of the relationship of the child with her parents and said:

“On page 26 of your report you’re talking about your observations of [F] and you asked her who she loved most in all of the world and she followed by listing her mum and her cat and her nanny and pa.  She went on to talk about attending kindergarten and spoke of some friends she has got.  Firstly, it’s not surprising, is it, that if she has lived most of the time with her mother then the first thing that springs to mind in terms of what she loves most in the world are what surrounds mum and mum herself?---Yes.

Indeed, because of the conflict and the nature of the interaction between the parents is it fair for me to suggest that the bit of distance between them at the present time – between [the small rural township] and [the country town] – is probably a healthy thing for [F]?---Yes, your Honour.

And a change of residence would certainly be a significant alteration to [F]’s perspective on her life at the present time?---Yes.  She certainly presented a package deal with her mother, including her grandparents and friends, and when she spoke of her relationship with her father - again in a sense, other than spending some time swimming, they had very much a one-on-one relationship, where most of her time was spent in his company and I didn’t get a sense of her extending beyond that.

…

Assuming there was perhaps an order for alternate weekend contact and there was an agreement about an exchange - whether it was Fairground or police stations [or] what have you – that a situation where [F] is in primary residence with one parent in a different town to the other parent who has regular contact then that is probably the most healthy outcome that we could achieve for her?---Yes, and again my rationale for that would be that for an order for [SB] to return to [the country town] with [F] would be very distressing for her.  My view is that she has put this behind her and she has moved on with her life and part of moving on is relocation and back to support networks and I think the impact of an order for her to return would be that her capacity to return for [F] may, because of her distress, be diminished.

HIS HONOUR:          If I made an order the child reside with the father and the mother had alternate weekend contact what disadvantages for the child would there be out of that regime?---

…I think [F] is going to wonder what on earth is going on.  At four years of age she has developed a pattern where she resides with her mother and has spent significant time with her father and I don’t know how she will understand a change like that.  That’s not to say she may not adjust in time, but I think if there was change like that how the change is effected – she would certainly be trying to read from her mother what’s going on and I think that would be very difficult for her to try and work out.

…

MR PUCKEY:           Is it fair for me to suggest that the disruption you describe of her wondering what on earth is going on in terms of that change of residence you would be pretty uncomfortable about recommending a change of residence save – sorry, if there was no substantive concern about my client’s parenting capacity or willingness to foster a relationship with dad?---Yes.”

1. The Magistrate then drew the witness’ attention to a passage in his written report where he said:

“Should the court determine the evidence of one parent is flawed and focused on damaging the other parent – or [F]’s relationship with the other parent – then arrangements should be altered to protect [F] from such experience.”

and asked:

“Again if I make findings against the mother aren’t you suggesting that there is no alternative but to change the residence to the father?---Yes, your Honour, and the issue then would be how [F] is assisted therapeutically with such a change because I think the distress for the family – she will be exposed to that, and that would be my concern.”

1. Mr Puckey picked up the challenge and said:

“Do I understand from that though, [C] – if I can break it down into some categories – if there is a finding that my client had a significant deficiency in her capacity to parent [F] then that would certainly be a finding which would suggest a change of residence?---Yes.

And you yourself record in your report that you don’t have any concerns of your own about her capacity to parent [F]?---No.

The second issue might be that if there was a finding she lacked bona fides or was actively discouraging of a relationship with dad that would be a reason that might motivate a change of residence?---Yes.

Indeed, your observations were clear that, quite the opposite:  you had observed my client as encouraging of contact?---Your Honour, she provided the child to my office, as requested, for exchange.  She facilitated that exchange.  She encouraged the child to go and she said ‘Have a lovely time’.  I can think of other cases where I have seen parents try and disrupt that exchange.  She certainly didn’t do that.  What I would say is that she has an intense dislike for [BE] and, for the child, she was masking that in that exchange.

[C], if it was masked for your benefit and the rest of the time she let loose, there was nothing to suggest that that was the case, was there?---No.  I felt that she was masking it for the child.  I mean, obviously she was masking---she’s behaving in front of me, but I felt that that was for the child’s benefit, not mine.”

1. At the end of his cross-examination by Mr Puckey C said:

“…if the parties continue with the regime as they have now, we will start to see the impact on that child increase.  My view was that it would depend on the information provided to the court to try and clarify some of the allegations that have been made, which might assist the court to determine which is going to be the parent who can most likely provide for this child’s needs emotionally.

What I am suggesting to you is that there is a significant impact upon [F] if there is a change of residence in her capacity to understand that?---Yes.

And we are all cautioned by you against making that change without significant findings about problems on my client’s parenting capacity or ability to encourage contact?---Yes.”

1. In light of that evidence it is asserted that the finding by the trial Magistrate that F has a close and loving relationship with each of her parents inadequately differentiates between the attachment the child has with her mother as her primary caregiver and the attachment she has with her father.  The finding of the Magistrate is that as the mother’s parents have indicated a strong dislike for the father, and an order which places the child living with the mother in an environment where she sees less of her father and more of her mother’s parents is likely to impact upon the relationship that the child has with her father.  At the same time the Magistrate said that if the child lived with the father, the father would encourage the child’s relationship with the mother.  Given the geographical distance between them and the necessity for one parent to take on the role of primary caregiver, and given the concerns expressed by the counsellor that the child was being adversely influenced against each parent in both houses, it is difficult to see how this issue ought to have loomed particularly large in the proceedings, especially when the mother had been living with her parents in the small rural township to the exclusion of the father for a period of 18 months prior to the trial and yet the relationship between the child and the father had been seen to be most satisfactory. 

1. The matter becomes further confused when the Magistrate expresses some optimism that if the child has to live with her father, the mother might be encouraged to return to the the country town.  Given the evidence of the counsellor that that would be quite an untenable position to put the mother in, it seems that the Magistrate may well have failed to pay attention to a significant aspect in the case, namely the wisdom of the mother having moved to the small rural township for her well-being and that of the child.  She is a person with a history of a psychiatric illness.  She was embroiled in a most unsatisfactory relationship.  She was receiving no economic support whatsoever from the father and her support base had moved to the small rural township.  In the circumstances to suggest that by giving the child to the father it might somehow encourage the mother to move back to the country town seemed to pay little heed at all to the reality of the situation and the circumstances in which the best interests of the child were likely to be well advanced if the parents stayed far away from each other.

1. This theme is repeated by the Federal Magistrate in paragraph 53(e) where he is critical of the mother for “moving [F] from [the country town] without even discussing the matter with the husband”.  Again, given the evidence of the counsellor that it was an understandable and appropriate act on behalf of the mother, and given that in doing that she continued to attend to contact at significant expense to herself with no assistance from the father, it is difficult to understand what the nature of the criticism of the Magistrate was.  The move did not impinge upon the contact order that was in place when it occurred.  In the long term new arrangements would have to be made because of the geographic impossibility of continuing some form of shared care arrangement, but there was nothing in the material that indicated that a shared care arrangement was likely to advance the welfare of this child given the continued degree of hostility that existed between the parents.  The criticism of the Magistrate that the mother would put her own needs first was not borne out by the evidence that related to the manner in which she had fostered a good relationship between the child and the father in difficult circumstances.  The finding that the mother was unlikely to protect the child from the open dislike exhibited by her parents towards the father was contradicted by the evidence of the counsellor that she had shielded the child from such influences.  The finding that the father had shown a responsible attitude to parenthood was hard to understand in light of the failure of the father to provide any economic assistance whatsoever for the child in her mother’s care and by his involvement of the child in his political campaign as President of a father’s association in the country town.

1. Whilst there were ample aspects of the mother’s case that were appropriately deserving of criticism, it does not appear to me to be clear that the Magistrate has appropriately undertaken the task required of him to evaluate the competing households and to measure the advantages to be demonstrated in each household for the benefit of the child.  There are no findings relating to the proposals of each of the parents for the support, housing and education of the child.  There was no challenge at all to any of the mother’s evidence about any aspect of her case beyond cross-examination relating to the events surrounding the conception and termination of the second pregnancy.  Nothing at all was put to her that would indicate any flaw in her parenting or the care that she had provided for the child, both in the past or the future, and nothing was seriously demonstrated that would indicate that she was being anything other than as cooperative as she could possibly be in the circumstances in providing a regime of contact where there were large difficulties put before her, both in relation to the father’s conduct towards her and in relation to the economic circumstances that she found herself in.  No attention at all was paid to the manner in which she had taken on the burden of providing for medical care for the child, with little if any assistance from the father. 

1. All of these were matters that ought have properly been identified before determining whether the case called for a result that saw the child moved from the settled environment of the mother’s household to the unknown environment of the father’s household.

1. It follows from the above matters that I am persuaded that the orders made by the Federal Magistrate cannot stand.  Unfortunately the matter will need to be remitted for retrial.

Orders

1.        The appeal be allowed.

2.        The orders made by Connolly FM on 24 December 2004 be set aside.

3.        The competing applications for parenting orders be remitted to the Federal Magistrates Court for rehearing. 

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

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

6.        The Court grants to each party a further certificate pursuant to the provisions of s 8 of the said Act being a certificate stating that in the opinion of the Court it would be appropriate for the Attorney General to authorise a payment under that Act in respect of such part as the Attorney General considers appropriate of any costs incurred by the parties in relation to the new trial granted by these orders.

I certify that the preceding 55 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Kay
The 20th day of May 2005

Associate: Elizabeth Hore