SCULLY & WAUGH - [2013] FamCAFC 209

FAMILY COURT OF AUSTRALIA

SCULLY & WAUGH

[2013] FamCAFC 209

FAMILY LAW – APPEAL – RELOCATION – ADJOURNMENT – Where the mother appeals against orders of the trial judge adjourning her application for interim orders permitting her to relocate with the child from 21 November 2013 to 6 February 2014 for “further consideration and possible further hearing” – Where the mother alleges the trial judge failed to give sufficient consideration to evidence of the mother’s general practitioner – Where the Full Court found there was no basis on which to interfere with the trial judge’s discretionary decision to adjourn the matter – Appeal dismissed – No order for costs.

FAMILY LAW – APPEAL – DISQUALIFICATION – Where the mother appeals against orders dismissing her application for the trial judge to disqualify herself – Where the mother complains that she was unable to make proper argument without transcript of a previous hearing and that the trial judge failed to give adequate reasons for her refusal to disqualify herself – Where the Full Court found no merit in these complaints – Appeal dismissed – No order for costs.

FAMILY LAW – APPEAL – RELOCATION – Where the mother appeals orders of the trial judge requiring that the child be returned to his usual town of residence after the mother unilaterally relocated the child to another town – Where the mother alleges that the trial judge failed to consider the mother’s medical evidence, failed to further consider the mother’s application to relocate, failed to give notice to the parties as to which material she would rely on and failed to consider the best interests of the child – Where the Full Court found no merit in these complaints – Appeal dismissed – No order for costs.

Family Law Act 1975 (Cth)

House v The King (1936) 55 CLR 499
Johnson v Johnson (2000) 201 CLR 488
Richmond v BMW Australia Finance Limited (No 2) (2009) 254 ALR 76

APPELLANT:

Ms Scully

RESPONDENT:

Mr Waugh

INDEPENDENT CHILDREN’S LAWYER:

Moin & Associates

FILE NUMBER:

NCC

2521

2012

FIRST APPEAL NUMBER:

175

2013

SECOND APPEAL NUMBER:

176

2013

THIRD APPEAL NUMBER:

177

2013

DATE DELIVERED::

20 December 2013

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Bryant CJ, Faulks DCJ and Finn J

HEARING DATE:

13 December 2013

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

21 November 2013, 4 December 2013 and 6 December 2013

LOWER COURT MNC:

[2013] FCCA 2098

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Kelly

SOLICITOR FOR THE APPELLANT:

Hunter Family Law Centre

COUNSEL FOR THE RESPONDENT:

Mr Boyd

SOLICITOR FOR THE RESPONDENT:

LBK Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Munday

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Moin & Associates

Orders

Appeal EA 175 of 2013 be dismissed.
Appeal EA 176 of 2013 be dismissed.
Appeal EA 177 of 2013 be dismissed.
There be no order as to costs in relation to the appeals.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Scully & Waugh 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 CANBERRA

Appeal Number: EA 175 of 2013; EA 176 of 2013; EA 177 of 2013
File Number: NCC 2521 of 2012

Ms Scully

Appellant

And

Mr Waugh

Respondent

Moin & Associates
Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

These reasons for judgment relate to three appeals by Ms Scully (“the mother”) which arise out of proceedings between the mother and Mr Waugh (“the father”) concerning the parenting arrangements for the child of the parties’ relationship, a son, B, born in March 2010.
The mother’s three appeals are against the following orders made by Judge Terry of the Federal Circuit Court:
·all orders made on 21 November 2013; those orders adjourned an application by the mother (filed on 31 October 2013) seeking interim orders permitting her to relocate with the child from X (a town in Northern New South Wales to Y (a town on the Central Coast of New South Wales), to 6 February 2013 “for further consideration and possible hearing if required …”; they also contained directions for the filing of a response by the father and for the issuing of subpoenas by both parties (appeal EA 175 of 2013, filed 2 December 2013);
·all orders made on 4 December 2013; those orders dismissed an application by the mother (filed on 3 December 2013) seeking that Judge Terry be disqualified from further hearing the proceedings between the parties (appeal EA 176 of 2013, filed 6 December 2013); and
·all orders made on 6 December 2013; those orders, which were made on the application of the father (filed 29 November 2013), required the mother to re-establish the child’s residence in X no later than 5:00pm on 9 December 2013; there were also consequential orders, including for the child to live with the father in X if the mother did not return there (appeal EA 177 of 2013, filed 9 December 2013).
The father is the respondent to all three appeals. He opposes all three appeals, as does the independent children’s lawyer.
An application for expedition of the hearing of the first of the above appeals (together with a supporting affidavit) was filed with that appeal. Given the course of events as reflected in the orders which are the subject of the second and third appeals, it became necessary for all three appeals to be heard together as a matter of urgency. They were therefore expedited administratively and thus it was unnecessary for the application for expedition to be heard.

Background to all three appeals

In reasons for judgment in relation to her orders of 6 December 2013 which required the mother to return the child to X, the trial judge provided a detailed history of the parties’ relationship and of the proceedings between them. Her Honour’s history appeared, at least ultimately, not to be the subject of any controversy. What follows is a summary of that history.
The mother and father commenced a relationship in 2009. The child, B, was born in March 2010. The parties separated in January 2011, but both continued living in X where they had both grown up. The child remained living with the mother after the parties’ separation, but spent time with the father.
On 2 November 2012 the trial judge conducted an interim hearing and made orders that the child live with the mother and spend time with the father each alternate weekend from Friday evening until Monday morning and overnight on each alternate Wednesday.
Following the preparation of a family report by a social worker, Mr N, the matter was listed for final hearing on 22, 23 and 24 July 2013. In an affidavit filed on 27 June 2013 in preparation for the final hearing, the mother stated that she had been diagnosed with anxiety and depression and was being treated with medications by Dr A (a general practitioner). She also gave reasons why she wished to move from X to Y.
On 19 July 2013, her Honour heard and dismissed an application by the mother for an adjournment of the final hearing. The basis of the mother’s application was that she did not have a grant of legal aid and would not be able to represent herself because of her anxiety and depression.
On 22 July 2013 the father attended court for the hearing, but the mother did not appear. An email was sent to the court by a relative of the mother attaching a medical certificate which stated that she was unfit to attend court and represent herself and that she was suffering from depression and required urgent psychiatric assessment and treatment. Her Honour adjourned the matter to 30 August 2013.
On 30 August 2013 her Honour made orders altering the times which the child spent with the father. She also ordered an updated family report, which was to take into account the issues of whether the mother should be permitted to move to Y with the child and whether she “is suffering from a mental health issue which impact [sic] on her capacity to care for the child.”
On 31 October 2013 the mother filed an application seeking interim orders that she be permitted to change the child’s residence to Y and that the orders made on 30 August 2013 which provided for the child to spend time with the father on a Wednesday afternoon be suspended. The mother’s application was supported by her own affidavit and an affidavit from Dr A.
That application came before the trial judge on 21 November 2013.

Her Honour adjourned the application to 6 February 2014 “for further consideration and possible interim hearing” and made other procedural orders. The orders made on 21 November are the subject of the first appeal now before us.
On or about 24 November 2013, the mother relocated with the child to Y and did not make him available to spend time with the father on the following Wednesday (27 November 2013).
On 29 November 2013 the father filed an application seeking that the child be returned to X and that in the event that the mother did not return the child to X, that the child live with the father.
On 3 December 2013 an application was filed on behalf of the mother seeking that the trial judge disqualify herself from further hearing the proceedings between the parties.
The father’s application (filed 29 November 2013) and the mother’s application (filed 3 December 2013) were heard by the trial judge on 4 December 2013. On that day her Honour dismissed the mother’s application for her disqualification, and this decision is the subject of the second appeal.
Two days later, on 6 December 2013, her Honour delivered considered reasons for judgment and made orders which required the mother to re-establish the child’s residence at X and also provided that if she did not do so, the child should live with the father. The orders also made provision for the child to spend time with whichever parent he was not living. The parenting orders made on 6 December 2013 are the subject of the third appeal now before us.
It was common ground at the hearing before us that on 9 December the mother had returned the child to live with the father in X and had herself remained living in Y.

The appeal against the orders of 21 November 2013 adjourning the mother’s application to relocate (EA 175 OF 2013)

We consider it necessary to address the three appeals in order of their dates of filing (and thus of the dates of the orders to which they are directed), notwithstanding the endeavours of counsel for the mother at the hearing before us to address the appeals in a reverse order to their date of filing (and of the orders appealed).
The grounds of the first appeal are as follows:
1.The trial judge failed to accord the Appellant procedural fairness by failing, on 21 November 2013, to either hear the Appellant’s Application in a Case filed [on] 31 October 2013 or list the Appellant’s Application in a Case filed on 31 October 2013 for hearing in a timely fashion.
2.The trial judge failed, on 21 November 2013, to hear the Appellant’s urgent Application in a Case filed on 31 October 2013.
3.The trial judge failed, on 21 November 2013 to make any arrangements for a timely hearing of the Application in a Case filed on 31 October 2013.
4.The trial judge failed to provide any or any adequate reasons as to why:
a.The Court would not deal with the Appellant’s urgent Application in a Case filed on 31 October 2013;
b.The Court did not make any arrangements for a timely hearing of the Application in a Case filed 31 October 2013;
It might be said that Grounds 2 and 3 are not true grounds of appeal in that they do no more than state an asserted failure on the part of the trial judge to hear, or arrange for the hearing of, the mother’s application to be permitted to relocate to Y; they provide no insight into any appellable error. But however that may be, we understood from the submissions of counsel for the mother that the essential complaint in this appeal is that neither the transcript of the hearing on 21 November 2013, nor her Honour’s reasons subsequently provided, reveal that the she had given sufficient consideration to the untested evidence of the mother’s general practitioner.
In order to give substance to this complaint, counsel for the mother had prepared an aide memoir of essential extracts from the medical reports which were attached to Dr A’s affidavit filed on 31 October 2013. It is useful to set out at this point counsel’s aide memoir:

Date	Annexure	Ref	Comments
27/06/2013	B	AB 129	[Dr A] Anxiety and depression - Start prozac 11/2/13 20mg and increase to 40mg. Referred to psychiatrist. 18/06/13 commences Lorazepam. PTSD. Nightmares & flashbacks. She needs to move from [X]. Psychologist agrees move from [X]. If we do not help her at thios stage she will end up to have more complicated and severe mental health disorders and it will get harder to treat her
19/07/2013	C	AB 130	[Dr K]. "she WILL BE UNFIT to attend court and to represent herself. She is suffering from major depression with additional features of anxiety and panic. She is unable to travel to … and requires urgent psychiatric assessment and treatment."
22/08/2013	D	AB 131	[Dr A] 60mg prozac per day. Neulactil 2.5mg. Anxiety and depression which is getting worse by time. Anxiety coming from family situation which causes her depression worse. PTSD. Prognosis is really uncertain and much depends on if she can have any improvement in her environment. ... I believe that living in [X] where she does not have enough support and has lots of bad memories is making her anxiety worse and aggravating her PTSD symptoms. I strongly believe that if she moves out of [X] her condition will get much better. Anyway we have been trying hard to manage her condition.
8/10/2013	E	AB 132	[Dr A] She has not been doing well recently. Her anxiety has been getting worse. So she can hardly get out of home. She has had low mood, poor sleep, nightmares, flashbackes [sic]. I believe that moving out of tehtown ASAP will help her a lot. The more she stays here the worse her mental health gets, so make it harder to treat.
17/10/2013	F	AB 133	[Dr A] "Adjustment disorder with mixed anxiety and depression, panic attacks with agoraphobia, more realted to stress coming from her current situation." "We need to continue her medications to control her symptoms but they do not solve the problem because her anxiety and depression is coming from her situation. As far as there is no change in her current situation I do not think that we will be able to treat her symptoms 100%. I believe that if she moves out of [X] her anxiety and depression gets better and even she might be able to go off her medication slowly." Medications are Prozac 60mg, Lorazepam 1mg, Pericyzanine 15mg whch started at (7.5 ). Recent star on Avanza 30mg.
10/10/2013	F	AB 135	psychiatrist [Dr J]. "Adjustment disorder wit mixed anxiety and dperession, panic attacks with agoraphobia, more related to ongoing stress with separation issues from her husband and ongoing legal custody issues for her son"
22/10/2013	G	AB 136	[Dr A] I saw [Ms Scully] this afternoon. She has not been doing well at all. She was very anxious and agitated when she was with me. Crying all the time. I had to talk to her for 35 min to make her a bit calm. She has been taking higher dose of her medications to make her clam. I believe than an action needs to be taken immediately to let her move out of [X]. The more she stays here, the worse her mental health condition gets and harder to treat

(Errors in original)

Given the nature of the complaint raised by the mother in this appeal, it is necessary that we examine the transcript of the hearing on 21 November 2013 in some depth.
Having taken appearances, her Honour commenced by saying:
… I’m really troubled about whether it’s appropriate to give this matter any priority and queue jump it over other matters, and have – try to have the interim application heard before Christmas. I’m very conscious of the fact that this matter was listed for hearing earlier this year, and the hearing didn't proceed, although the father was ready for that to occur…
I'm conscious of the fact that I’ve ordered an updated family report … and I'm told that Mr [N] is going to be doing the interviews in the week commencing the 20th of January. So at some point, we’re going to have a bit more information about what’s going on in this matter. I'm also conscious of the fact that I will be placed in an exceptionally difficult position trying to decide this on an interim basis. [B’s] time with the father can't continue as it is at present if the mother is permitted to relocate, and permitting people to relocate on an interim basis in those circumstances is sometimes almost tantamount to making a final decision. So in those circumstances, the court is often very reluctant to allow a change of circumstances in the interim.
Given what I’ve just been told about the family report, what I'm minded to do is perhaps put the matter over, and I can list it for a contested interim in case the parties decide to proceed with it, but put it over for a contested interim when I'm in ... We should have the report then…
(Transcript, 21 November 2013 p 2, line 35 to p 3, line 10)
Mr Kelly, the mother’s counsel, then expressed concern that the father had not filed a response and her Honour responded:
… Even if the father had filed his material, Mr Kelly, all of the things that I have said would still be operating in my mind. So if I adjourn it, it won't be because of the issue of the father filing his material.
(Transcript, 21 November 2013, p 3, line 21 to 25)
Importantly, for the purposes of this appeal, the following discussion then occurred:
MR KELLY:   Save for, your Honour, annexure G of the affidavit of
[Dr A] which was dated 22 October, shortly before filing this application stating that there some – needs to be action taken immediately. So we have an issue here that the mother has come to the court saying, “My parenting is being affected, I need something done immediately.” And February, your Honour, is just too far away in the report of [Dr A].
HER HONOUR:   Mr Kelly, if your client can't parent [B] adequately in [X], then she may need to seriously consider relocating herself to [Y], leaving [B] here, and I will determine in February whether I can do anything further on an interim basis, or whether I hear it on a final basis. I am not going to be made responsible for your client’s psychological well being. She has other options open to her, Mr Kelly.
MR KELLY:   I understand that, your Honour. [B] is a very young child. The mother is the primary carer. It would not be in the interests of [B] for him to be removed from his primary carer. It puts us squarely – it’s a difficult position for the mother and the court, and the mother’s evidence is that she is struggling parenting in [X]. That is the evidence that’s before the court now, and supported by her doctors and her treating psychologist.
HER HONOUR:   But this is something that Mr [N] is going to help me about, you see, Mr Kelly.
MR KELLY:   Your Honour, Mr [N] is a social worker who is going to view … the child interacting with the parents. It is nothing to do with the issue that the mother has now placed before the court.
HER HONOUR:   Well, I don't necessarily agree with you. Mr [N] is a regulation 7 family consultant who has qualifications in social work. He can read documents just as I can. I understand you tell me in another hearing he does some psychology units in his degree, Mr Kelly, but you can no doubt challenge him in cross-examination about those issues if it becomes appropriate. Is there anything else you want to say to me?
MR KELLY:   Yes, your Honour. Your Honour commented earlier that the matter was listed for hearing, I think it was in July of this year, and the matter now shouldn’t jump anything else in priority. There was evidence put back – put before the court back in July, and the evidence now is the mother was not well at that time. She shouldn’t be punished for that. Her – she provided medical evidence then, as she is doing now.
HER HONOUR:   I am not punishing her. I am trying to decide what I need to do in the best interests of the child, who, if he is removed from [X], is going to have his relationship with his father affected, Mr Kelly, because he won't be able to spend the same time with him… What you’re coming before the court to – and saying to me is, you have a client with mental health issues who needs to get out of [X]. Why should I not be concerned that her perception of the fact that [X] is causing her problems is wrong? That she – why should I not be concerned that perhaps her mental health issues are more concerning than that, and that she may take them with her to [Y], and that the child may be – still at – may be at risk in her care at [Y]? See, the problem is, Mr Kelly, those are all the difficulties I'm going to confront on an interim basis. How do I know that I'm not moving [B] … from the frying pan into the fire?
MR KELLY:   Your Honour, they’re uncontested – the mother has given evidence. The doctor has given evidence. The father has not given any evidence at all. So as it stands here today, the mother has come here today asking for the court to deal with the matter, and I understand the court may have other issues to deal with today. But there’s no material before the father placing any of those issues that the mother raises into question. So as we stand here now, they’re uncontested facts.
HER HONOUR:   Mr Kelly, it’s never that simple in a parenting case, because even when I hear an undefended parenting case, I have to make findings about the best interests of children. Anyway, is there anything else you want to say?
MR KELLY:   Yes, your Honour. The child – the mother is proposing that the child still spend alternate weekends with the father, with the changeovers halfway. It doesn’t affect that time. The child’s only – the only other time the child spends is Wednesday afternoon for a number of hours. They can also occur, if they were to occur midway between here and [Y], or the father could exercise that time in [Y]. It is not a major shift in what the current parenting arrangements.
HER HONOUR:   Mr Kelly, that’s an outrageous submission. What’s the driving distance?
MR KELLY:   Three hours.
HER HONOUR:   So I'm – you’re asking me to impose on the child a three hour return trip each alternate weekend, which he doesn’t have to do at the moment because both parties live in [X]. You’re asking me to reduce his time with his father unless an order is made that the father travel three hours to [Y] and three hours back, in circumstances where the evidence, as far as I'm aware is that the father is employed, he has another child with another partner, he has another family to be – to take into consideration. ...
MR KELLY: That’s what the mother’s application is.
HER HONOUR:   I understand that, but you see, what I'm going to have to consider at trial is whether [B’s] best interests are that he live with the mother in [Y] under those circumstances, or that he live with the mother in [X], or that he live with the father in [X]. Those are trial issues.
MR KELLY:   I accept that, and there is already a family report in this matter recommending that the child live with – continue to live with the mother.
HER HONOUR:   Well, we won't go into that, because that was made in circumstances where perhaps your client didn't disclose fully her mental health issues, and – I only say perhaps – and where the circumstances have changed anyway, because your client then was proposing at least, I understand you might challenge this, but Mr [N] understood she was proposing to parent the child in [Y] – in [X]. You’re now applying to parent the child in [Y].
MR KELLY:   That's so.
HER HONOUR:   It is so. All right. Nothing else you want to say to me?
MR KELLY:   No, your Honour. It’s just, I stress again that the matter – the mother has done all she can to bring an issue to the court, and told the court that she’s having some difficulties. And we can't do any more than that.
(Transcript, 21 November 2013, p 3, line 27 to p 6, line 3)

Her Honour then inquired of the independent children’s lawyer what his attitude was, and he responded:
I agree with your Honour. On 30 August, your Honour heard the application in a case and reserved some costs, and indicated then that you weren’t prepared to make any orders. And the updated family report was ordered, and your Honour is not in a better position today, and neither am I, to be able to assist the court in relation to this case. So the position should remain as it currently is, your Honour.
(Transcript, 21 November 2013, p 6, line 7 to 12)
Her Honour next discussed with counsel for the father a timetable for the filing of a response by the father, and then said:
So Mr Kelly, for reasons I think I’ve made sufficiently clear during the course of discussions with counsel:
1.I am going to adjourn the mother’s application in a case filed on
31 October 13 to 6 February 2014 at 10 am at … for interim hearing if required.
2.I’m going to order that the father file and serve a responsive affidavit in support by close of registry filing on - - - 29 November.
(Transcript, 21 November 2013, p 7, line 6 to 13)
The following further exchange then occurred between her Honour and counsel:
MR KELLY:   Your Honour, could that affidavit contain reasons as to why his response and affidavit weren’t filed within the regulation 14 days?
HER HONOUR:   I'm not going to direct what’s in that material. Mr Kelly, I’ve already indicated to you that I don't consider that the fact that the father hasn’t filed in the circumstances is significant. Even if he had filed, all the other matters that I’ve raised would still have predisposed me to adjourn the matter to … after I’ve got the family report. So I'm not going to dictate that that be done. If what you’re wanting to do is to make an application that costs be reserved, you can make that application.
MR KELLY:   Depending on what the father’s response or material was, the – the court may well have dealt with this matter very differently. Your Honour wasn't to know or is still not to know what the father’s position is. I don't know what it is.
HER HONOUR:   Well, Mr Boyd, am I right in assuming that the father wants his son to stay in [X] so that he can continue to have, in the interim, the same time that he is having with him at the moment without having an excessive amount of travel imposed on him?
MR BOYD:   Yes, your Honour. The applicant – his response would say that the application be dismissed.
HER HONOUR:   Yes.
MR BOYD:   The application in a case. And that’s – and that would be no secret, I would have thought, to anybody.
HER HONOUR:   Yes. Mr Kelly, that’s just common sense, about the father’s position at the moment, surely.
MR KELLY:   It may well be, your Honour, but he could have filed at document within time, and … And it may well have made today a lot easier and a lot different.
HER HONOUR:   Well, I'm not convinced that that’s the case, Mr Kelly. You and I see that differently. The mother has supports in [X]. She has got family in [X], treating – health practitioners in [X], Mr Kelly. So I wish both parties ..... between now and when I see them again. I will see them again in February, on the 6th, in … and we will see what, if anything, we can do with the matter then. At the very least, we will be fixing the matter for final hearing, I would imagine, unless people’s decisions change after the report is released.
(Transcript, 21 November 2013, p 7, line 19 to p 8, line 17)
There was then discussion concerning subpoenas and costs before the hearing concluded.
It appears from the passage of the transcript set out in [29] above that her Honour intended, at least at that stage, that her reasons for adjourning the mother’s application to relocate until 6 February2014 would emerge from the transcript (as is often the case when matters come before judges in busy lists in this jurisdiction). However, on 11 December 2013 reasons for judgment in relation to the orders which she had made were circulated on behalf of her Honour.
Her Honour commenced her published reasons by explaining that the mother’s application was to relocate the child’s residence from X to Y, and recording that after discussion with the mother’s counsel and hearing the attitude of the independent children’s lawyer, she had adjourned the application to 6 February 2013 for further consideration and possible interim hearing ([1] to [3]).
Her Honour then made clear that the transcript of the proceedings on

21 November 2013 was to form part of her reasons when she said:
4.The Transcript of the proceedings on 21 November 2013 speaks for itself…
However, she then endeavoured to summarise the issues discussed with counsel for the mother on 21 November 2013:
·the court may have some difficulty finding somewhere to hear the interim application before Christmas;
·the court faced considerable difficulty when asked to make an interim decision about relocation;
·the child’s time with the father could not continue in accordance with the existing interim orders if the child lived with the mother in [Y];
·an updated family report had been ordered, interviews were scheduled for late January 2013 and the report was likely to be released shortly thereafter;
·the release of the report would provide the court with further information about the matter which would assist in determining its future course;
·the court could not be certain at an interim stage that a move to [Y] would in fact improve the mother’s mental health and thus improve her capacity to parent [B];
·the relocation would mean that the child would be very likely not to be able to spend time with the father on Wednesday afternoons in accordance with the interim orders and would have to do 6 hours return travel in order to spend time with the father on alternate weekends;
·the issue of whether [B’s] interests would be met by living with the mother in [Y] or the mother in [X] or the father in [X] were trial issues;
·in February 2013 after the report was released further consideration could be given to whether an interim hearing was indicated or whether an effort should be made to find somewhere to list the matter for an expedited or priority hearing.
Her Honour then continued:
5.I also observed at the end of the matter that the mother had supports in [X], had family in [X] and had treating health professionals in [X].
Her Honour concluded her reasons by referring again to the fact that the matter had been adjourned to 6 February 2014.
In his submissions to us, counsel for the mother was critical of her Honour’s having subsequently published reasons for the adjournment order which she made. We reject any such criticism. A judge (including a judge of the Federal Circuit Court) is entitled to publish subsequently reasons for orders already made (Richmond v BMW Australia Finance Limited (No 2) (2009) 254 ALR 76). Perhaps the only unusual feature of this case is that her Honour did not foreshadow at the hearing on 21 November 2013 that she would later be publishing reasons. But nothing turns on that, particularly given that the published reasons are no more than a summary of the transcript.

Discussion

As earlier explained, the complaint in this first appeal is to the effect that her Honour cannot be seen, either in the transcript or her reasons, to have considered the untested evidence of the mother’s general practitioner,

Dr A, as to the mother’s condition and need to move from X to Y.
At an early stage in his oral submissions to us, counsel for the mother conceded, correctly, that the court did not have to accept the doctor’s opinion just because at that time it was unchallenged. Rather, the submission was that the opinion required serious consideration, and in this context counsel relied on the fact that there were a series of medical reports annexed to Dr A’s affidavit filed 31 October 2013 (and which were summarised in counsel’s aide memoir set out earlier in these reasons) which, it was submitted, showed a deteriorating position in the mother’s mental condition.
It will be seen from [28] above that at an early stage in the hearing on

21 November 2013, counsel for the mother drew her Honour’s attention specifically to the content of the doctor’s latest report (contained in annexure G to her affidavit). It will also be seen that it was against that background that the discussion with her Honour then proceeded, with her Honour focusing on the child’s interests and needs, including having time with the father and other issues which would need careful consideration (including through the preparation of an updated family report) because of the mother’s condition and her desire to move to Y.
Her Honour’s focus on the issues which arose for consideration because of the mother’s condition and wishes are then well summarised in her subsequent reasons for judgment. Of particular significance is the sixth dot point of her summary of the issues raised with the mother’s counsel:
· the court could not be certain at an interim stage that a move to [Y] would in fact improve the mother’s mental health and thus improve her capacity to parent [B];
Before us, counsel for the mother repeated the submission made to her Honour (in the transcript included in [27] above) that the mother should not be “punished” for not having been able to attend the final hearing that had been scheduled to commence on 22 August 2013. As will have been seen, her Honour firmly rejected that submission, and we need say no more about it, other than to observe that her Honour could not be criticised for the concern which she expressed at the commencement of the hearing regarding the commitment of court resources to this particular case. But as the transcript reveals, and as already discussed, her Honour moved on to other issues which more than adequately supported her discretionary decision to adjourn the mother’s application for a period of a little over two months.

C0nclusion in relation to appeal EA175 of 2013

Having regard to the principles contained in authorities such as House v The King (1936) 55 CLR 499 which limit appellate interference with discretionary decisions, there would be no basis on which we could interfere with her Honour’s decision to adjourn the hearing of the mother’s application to relocate herself and the child from X to Y. Accordingly, the appeal against the orders of 21 November 2013 will be dismissed.

The appeal against the trial judge’s refusal to disqualify herself (EA 176 of 2013)

As we earlier recorded, within a few days of the appearances before her Honour on 21 November 2013, the mother moved with the child from X to Y, and on 29 November 2013 the father filed an application seeking the return of the child to X. On 3 December 2013 the mother filed an application seeking that her Honour disqualify herself from further hearing the proceedings between the parties. Both applications came before her on 4 December 2013.
On that day, after counsel for the father, the mother and the independent children’s lawyer had announced their appearances, her Honour indicated that should would first deal with the disqualification application.
Having confirmed that he was pursuing that application, counsel for the mother then sought an adjournment in order to obtain the transcript of the hearing on 21 November 2013. Her Honour indicated that she was prepared to grant the adjournment for that purpose, but that if she did so, she would proceed to hear the father’s application for the return of the child. Counsel for mother then responded that he also sought that the hearing of the return application be adjourned. Her Honour then said that she would not grant an adjournment of the disqualification application and she requested counsel to make his submissions in support of that application.
The transcript of the hearing reveals that her Honour had some difficulty ascertaining the exact basis of the disqualification application, which is a difficulty which we can appreciate having regard to the content of the transcript. However, the following submission from counsel for the mother appears to encapsulate the basis for the application:
That your Honour has by what was said in [X] on 21 November and by refusing to even entertain the hearing of the mother's application on an urgent basis has denied the mother procedural fairness and pre-judged the mother's application without considering that urgent evidence that I just took your Honour to from her Dr [A].
(Transcript, 4 December 2013, p 5, line 13 to 17)
Before us, counsel for the mother confirmed that the basis for the disqualification application had been apprehended bias on the basis of prejudgment.
Following the submission set out in the paragraph before last, her Honour heard further submissions from the mother’s counsel, which were directed to certain observations which, it was submitted, had been made by her Honour in the proceedings on 21 November 2013 and to relevant authority, notably the High Court decision in Johnson v Johnson (2000) 201 CLR 488. Submissions were also made on behalf of the father and the independent children’s lawyer, both of whom opposed the disqualification appeal.
Her Honour then immediately commenced to hear the father’s application for the return of the child (Transcript, 4 December 2013, p 14, line 1), and thus it can be assumed that her Honour was not prepared to disqualify herself, although she does not appear to have said so expressly. The transcript of the hearing on 4 December 2013 does not record that her Honour gave reasons during that hearing for refusing to disqualify herself, although an order and reasons for judgment, stated to have been delivered on 4 December 2013, were subsequently circulated by her Honour’s associate on 9 December 2013.
In those reasons her Honour outlined both the course of the proceedings between the parties from their commencement in September 2012 up until the hearing on 21 November 2013, as well as the discussions which she had with counsel for the mother on that last-mentioned day. She concluded her reasons by saying:
14.I reject utterly that I said anything on 21 November 2013 which could have been conceived as prejudging either the mother’s interim application or her final application to relocate to [Y]. I utterly reject that, and I do not accept that any reasonable observer sitting in the back of the Court listening to me, a judge, having an exchange with the mother’s counsel could have formed the view that I was biased or had prejudged the issues. I do not accept that I have exhibited any actual bias against the mother at any time during these proceedings. I reject the submission that there is a reasonable apprehension of bias, and I am going to dismiss the mother’s application in a case filed on 3 December 2013.
The mother’s notice of appeal against her Honour’s refusal to disqualify herself contains the following grounds of appeal:
1.The trial Judge erred in dismissing the Application filed by the Appellant on 3 December 2013 for the trial judge to recuse herself in the absence of proper argument.
2.The trial Judge erred in not allowing the Appellant mother an adjournment in order to obtain the transcript of the proceedings held at [X] on 21 November 2013.
3.The trial Judge erred in failing to give adequate reasons for her decision as to not disqualify herself from hearing the Father’s Application filed on 29 November 2013.
Before us, counsel for the mother explained that the first and second grounds really constituted one ground, being that proper argument in support of the disqualification application was not possible because of the lack of a transcript of the hearing on 21 November 2013.
In our view, there is no merit in that complaint. It must be remembered that in addition to the disqualification application, her Honour also had before her on

4 December 2013 the father’s application for the return of the child to X. Such applications are, as a general rule in this jurisdiction, dealt with as a matter of urgency. There was certainly no reason why the determination of the return application would depend on the transcript of 21 November 2013 being available. However, it was clearly necessary for her Honour to deal with the disqualification application before dealing with the return application, and she can be seen to have done the best she could in recalling, in the absence of the transcript of 21 November 2013, the discussions on that day. As we have said, we consider that there is no merit in this first complaint.
As to the complaint in the third ground of appeal which is directed to the adequacy of her Honour’s reasons for refusing to disqualify herself, we also consider that there is no merit in this ground. In our view, in [14] of her reasons in relation to the disqualification application (see [52] above), her Honour said all that was necessary. We, of course, do have access to the transcript of

21 November 2013, and therefore have been able to satisfy ourselves that nothing said by her Honour that day could be construed as prejudgment, or indeed any other form of bias, having regard to the tests stated in authorities such as Johnson, which was relied on before her Honour.
Therefore, this appeal must also be dismissed.

The appeal against the orders of 6 December 2013 for the return of the child to X (EA 177 of 2013)

Having completed the hearing of the father’s application for the return of the child to X on 4 December 2013, her Honour reserved her decision on that application. On 6 December she delivered comprehensive reasons for judgment and made the following orders:
(1)By no later than 5.00pm on Monday 9 December 2013 the mother do all things required to re-establish the residence of the child [B] born … March 2010 in [X].
(2)The mother shall notify the father by text message by no later than 5.00pm on Sunday 8 December 2013 as to whether or not she intends to comply with Order (1) by returning to live in [X] herself.
(3)If the mother chooses to return to live in [X] then the interim orders made on 30 August 2013 shall continue in force.
(4)If the mother chooses not to return to live in [X] the following orders shall apply until further order:
(a)the mother shall deliver the child to the father 5.00pm on Monday 9 December 2013 at [Z];
(b)the child shall thereafter live with the father;
(c)the child shall spend time with the mother
(i)each alternate weekend commencing on the weekend of 19 December 2013 to start at 4.30pm on Friday and to end at 5.00pm on Sunday if the mother elects to do the changeover at [Z] and at 9.00am on Monday if the mother elects to do the changeover in [X];
(ii)in [X] from 4.30pm until 7.00pm each Wednesday if the mother elects to travel to [X];
(iii)at such additional or alternate times as may be agreed between the parents.
(5)Changeovers between the parties for the purposes of Order (4)(c)(i) shall take place at [Z] at the commencement of the time and at either [Z] or at [X] McDonald’s at the conclusion of the time. Changeovers shall take place at [Z] unless the mother notifies the father by text message no later than 5.00pm on the Saturday of the weekend she is spending time with the child that she intends to return the child to [X].
(6)While order (4) is in force the mother shall have telephone communication with the child on two occasions each week at times agreed between the parties and failing agreement each Sunday and Wednesday with the mother to place the call to the father’s mobile telephone number or some other number agreed between the parties between 5.00pm and 5.30pm and the father to make the child available to receive the call.
(7)If the mother chooses to return to live in [X] she shall by no later than 5.00pm on Tuesday 10 November 2013 advise the father by text message of the address at which she is living in [X] and shall advise the father within 24 hours of any change to that address.
(8)The father has liberty to apply to relist the matter on short notice should the mother not comply with Orders (1) or (4)(a) as the case may be and in that event the court will have no option but to give consideration to making a Recovery Order.
(9)The order listing the matter on 6 February 2014 at 9.30am for further consideration and possible interim hearing of the mother’s application in a case filed on 31 October 2013 remains in force.

We will make reference to her Honour’s reasons for those orders where necessary in our discussion of the grounds of appeal. So far as the fifteen grounds of appeal directed to those orders are concerned, counsel for the mother was, at our suggestion, able to group them according to asserted failures on the part of the trial judge in relation to the following four matters:
1.failure to consider the medical evidence concerning the mother (Grounds 1, 2, 3, 4, 5, 7 and 8);
2.failure to consider the mother’s application to be able to relocate (Ground 6);
3.failure to give notice to the parties of the material which she would read and take into account (Ground 10); and
4.failure to consider the best interests of the child (particularly in making the order that he should live with the father in [X] in the event that the mother chose not to return there) (Grounds 9, 11, 12, 13, 14 and 15).

The failure to consider the mother’s application to relocate (Ground 6)

We propose to address first the complaint in Ground 6 as this will assist in consideration of certain other grounds.
Ground 6 asserts that her Honour “placed a fetter on the Court’s discretion by adjudicating only upon the Application in a Case filed by the Respondent Father on 29 November 2013 without simultaneously adjudicating upon the Appellant’s Application in a Case filed on 31 October 2013 in the circumstances when such competing Applications essentially touched upon the same issues.”
Shortly after her Honour commenced to hear the father’s application for the return of the child to X on 4 December 2013, counsel for the mother observed to her Honour: “this is a quasi running of the mother’s application that she filed on 31 October”, and her Honour agreed (Transcript, 4 December 2013, p 17, line 33 to 36).
A little later after counsel for the mother had submitted that her Honour’s proceeding to hear the father’s application for the return of the child would render “part of” her appeal against the adjournment order “nugatory”, her Honour made it very clear that she was “not hearing the mother’s application” and that the father’s application was “a very different application” (Transcript 4 December 2013, p 19, line 36 to 29).
As will have been seen from the orders which her Honour made on 6 December 2013, she included as Order 9 an order which provided that the mother’s relocation application remained listed for further consideration on 6 February 2014.
In certain passages in her reasons for judgment in relation to her orders of
6 December 2013, her Honour referred to the mother’s application to be permitted to relocate with the child to Y. However, her Honour also made it clear in those passages that that was a matter which could not be determined easily or on an interim basis (see, for example, [59], [103] and [155] of her reasons).
We have earlier, in connection with the first appeal, examined her Honour’s reasons for adjourning the mother’s relocation application for further consideration and determined that we could not interfere with that decision. We are not persuaded that the mother’s subsequent relocation of the child in the absence of a court order and the father’s bringing of an application for the return of the child, made it necessary for her Honour to reconsider, in the context of the hearing of the father’s return application, her earlier decision to adjourn the hearing of the mother’s relocation application pending the preparation of an updated family report. Moreover, there was no new medical evidence concerning the mother before her Honour at the hearing on 4 December. Thus we conclude that Ground 6 is without merit.

Failure to consider the medical evidence (Grounds 1, 2, 3, 4, 5, 7 and 8)

In order that the mother’s complaint embodied in this group of grounds can be properly understood, we will set out those grounds in full:
1.The trial judge erred in finding that the evidence did not support the need for Appellant Mother [sic] to relocate urgently.
2.The trial judge failed to consider the nature and extent to which the Appellant Mother’s continued residence in [X] would impinge upon the Appellant Mother’s mental health as supported in the affidavit of Dr [A] filed on 31 October 2013.
3.The trial judge failed to consider the nature, extent, likely duration and serious impact upon the Appellant mother’s parenting capacity if the Appellant Mother was obliged to live in [X].
4.The Trial Judge failed to consider at all, or properly consider, the evidence of Dr [A] in that the Trial Judge had no regard for the updated report of Dr [A] addressed to Hunter Family Law Centre dated 22 October 2013 referred to at paragraph 9 and annexure “G” of the affidavit of Dr [A] filed on 31 October 2013.
5.The Trial Judge erred by relying only upon the medical reports dated 27 June 2013, 8 October 2013 and 17 October 2013 of
Dr [A] as contained within her affidavit filed on 31 October 2013 and without taking into cogniscence [sic] the updated report of
Dr [A] dated 22 October 2013.
…
7.The Trial Judge failed to consider the urgent nature of the deterioration in the Appellant Mother’s medical [sic] health.
8.The Trial Judge failed to properly consider all of the evidence in relation to the mother’s mental health.
All of these grounds might well be seen as being directed to her Honour’s earlier decision to adjourn the hearing of the mother’s relocation application. That decision is, of course, the subject of the first appeal which we have found cannot succeed.
However, to the extent that these grounds are directed to her Honour’s decision on 6 December 2013 to order the return of the child to X, they can have no substance given our conclusion in relation to Ground 6. In other words, once her Honour was not prepared on 4 December 2013 to re-open her decision to adjourn until February the mother’s relocation application, which is a decision with which we have said we would not interfere, it was unnecessary for her to re-examine the evidence regarding the mother’s mental health.
It is necessary that we make specific reference to Grounds 4 and 5. This is because in his oral submissions, counsel for the mother drew to our attention the fact that while her Honour had referred to earlier medical reports in [116] to [119] of her reasons, she had omitted in that context any reference to

Dr A’s report of 22 October 2013 which stated that the mother should be allowed to leave X immediately (see the aide memoir of counsel for the mother at [23] of these reasons).
It is important to understand that the paragraphs to which counsel drew our attention appear in her Honour’s reasons in the context of a consideration as to what was in the child’s best interests and specifically in relation to the capacity of each parent to provide for the needs of the child (s 60 CC(2)(f)) of the Family Law Act 1975 (Cth) (“the Act”). The relevant paragraphs of her Honour’s reasons in their full context are as follows:
111.I have concerns about the mother’s capacity to provide for [B’s] emotional needs which I am unable to resolve in these interim proceedings.
112.The mother has mental health issues. How serious these are and how they impact on her capacity to parent [B] (including her capacity to have empathy with him and put his needs ahead of her own) will remain an unknown until a final hearing is conducted and a proper investigation occurs.
113.The mother’s case for being allowed to remain with [B] in [Y] was that her mental health and thus her parenting capacity would improve if she lived there, indeed had started to improve in the two weeks she had been there since unilaterally relocating.
114.In her affidavit filed on 31 October 2013 the mother said that she had been diagnosed with anxiety and depression by Dr [A] and had been referred to a psychiatrist whom she had seen on 5 occasions between July and October 2013. She said that she had been diagnosed with an adjustment disorder and anxiety and depression and was undergoing counselling at ...
115.The mother said that she did not feel the same symptoms when she was in [Y].
116.The mother said that she had been told by Dr [A] that her depression and anxiety were situational and she claimed that on
22 October 2013 she could not stop crying and that her doctor told her that she should go to [Y] now. The assertion that there is an urgent need for her to go to [Y] is not completely supported by the Medical Certificates provided by Dr [A] however.
117.In the document attached to his affidavit affirmed on 25 October 2013 it headed Medical Certificate and dated 27 June 2013
Dr [A] expresses the view that the mother moving from [X] would be beneficial for her and that it was [her] belief that:
If we do not help her at this stage she will end up to have more complicated and severe mental health disorders and it will get harder to treat her
118.In a document headed Medical Certificate which is undated he says as follows:
I saw [Ms Scully] today on 8/10/2013.
She has not been doing well recently, Her anxiety seems to be getting worse, so she hardly can get out of home. She has had low mood, poor sleep, nightmares, flashbacks.
I believe that moving out of the town ASAP will help her a lot. The more she says here the worse her mental health gets, so makes it harder to treat.
119.In a letter to the mother’s solicitor dated 17 October 2013
Dr [A] states that:
We need to continue her medications to control her symptoms but they do not solve the problem because her anxiety and depression is coming from her situation. As far as there is no change in her current situation I do not think that we will be able to treat her symptoms 100%. I believe that if she moves out of [X] her anxiety and depression gets better and even she might be able to go off her medication slowly.
120.The problems with all of this are as follows:
·Dr [A] is to an extent relying on self report by the mother, for example about things such as her suffering nightmares and flashbacks;
·At this stage there is some reason on the material to be concerned about the mother’s credit;
·The mother is receiving appropriate treatment and counselling in [X] and the highest Dr [A] goes in [her] letter of 17 October 2013 is to suggest that [she] does not think the mother’s symptoms can be treated 100% if she remains in [X].
121.I cannot be satisfied on the state of the evidence that there is as the mother asserts a real risk that her parenting of [B] will be compromised if she is obliged to return to [X] and parent him until this matter can be properly determined by the conducting of a final hearing or even an interim hearing after the release of the Family Report.
It is perhaps unfortunate that her Honour did not include reference to the last report provided by Dr A on 22 October 2013, if only so that the mother could be assured that her position was fully understood by the court. However, it needs to be appreciated that in the part of her reasons in question, and this is why we have set out all the relevant paragraphs in that part, her Honour was considering the capacity of the mother to provide for the needs of the child. In that context, her Honour clearly had to have regard to, and make some assessment concerning, the evidence about the mother’s mental health. We are not persuaded that had her Honour made reference to the last report from Dr A, her conclusion regarding the mother’s capacity to provide for the needs of the child would have been different.
For these reasons we conclude that there is no substance in Grounds 1, 2, 3, 4, 5, 7 and 8.

The material taken into account by the trial judge (Ground 10)

Ground 10 asserts that her Honour:
… failed to accord procedural fairness to the Appellant mother by making an arbitrary decision to read earlier documents filed in the proceedings in determining the Respondent Father’s Application in a Case filed on
29 November 2013 in circumstances where the Trial Judge did not afford the Appellant of being heard [sic] or in circumstances where the Respondent Father did not specifically rely upon any earlier documents.
In her Honour’s reasons for judgment under the heading “The material relied on”, the following paragraphs appeared:
17.The father relied on his application in a case filed on 29 November 2013, his affidavit filed on 29 November 2013 and (without objection from the other parties) his affidavit filed on 3 December 2013.
18.The mother relied on her affidavit filed on 31 October 2013 in support of her application in a case filed on that day and also on the affidavit she filed on 2 December 2013 in appeal proceedings
EA 175 of 2013 in support of an application to have her appeal expedited. I have marked the latter affidavit as Exhibit “A” in the proceedings before me.
19.The mother also relied on the affidavit of Dr [A] filed on 31 October 2013.
20.During submissions the mother’s counsel and the solicitor for the Independent Children’s Lawyer made reference to the contents of the Family Report prepared in January 2013 by Mr [N], a Regulation 7 family consultant.
21.I have of necessity for the purpose of preparing this judgment had reference also to earlier documents on the court file.
We understand Ground 10 to be directed particularly to what her Honour said in [21]. When we pressed counsel for the mother as to what material in

her Honour’s reasons could not be sourced to the documents referred to in

[17] to [20] of her reasons, it emerged that it might be only some of the contents of her Honour’s extensive chronology, which appeared at [22] to [70] of her reasons. It is understandable that her Honour may have recourse to other material on the file (which it must be remembered was in her docket) to compile that chronology. But in any event, we were not taken to any matter in her Honour’s chronology which was said to be controversial and based on material which the parties were unaware would be relied upon by her Honour. Therefore, this ground has not been established.

The failure to consider the best interests of the child (Grounds 9, 11, 12, 13, 14 and 15)

The grounds directed to an asserted failure on the part of her Honour to consider the best interests of the child in ordering that he be returned to X and live with the father in the event that the mother chose not to return, are as follows:
9.The Trial Judge erred by making orders that the child should live with the father in the absence of any evidence that the Respondent father was able to provide proper full time care for the child.
…
11.The trial judge erred by failing to consider the impact on the child of being separated from his primary attachment figure being the Appellant Mother.
12.The Trial Judge, having found that it was common ground that the Appellant mother was the primary carer of the child, failed to give any or any adequate reasons for changing the primary living arrangements of the child and to take into account the impact upon the child of being separated from the Appellant Mother.
13.The Trial Judge failed to have regard for the recommendations of [Mr N] as set out in the Family Report dated 13 January 2013 to the effect that the child should live with the Appellant Mother.
14.The trial judge erred by making orders that the child must live with the Respondent father when there was insufficient evidence to assess the consequences upon the child of not living with the parent who has been his primary care giver.
Her Honour provided an extensive consideration (at [81] to [135] of her reasons) of the matters in s 60CC of the Act which she was required to take into account in determining which of the parents’ competing proposals would be in the child’s best interests. Her Honour expressed those competing proposals as being as follows:
141.The competing proposals in this matter are that [B] should be returned to [X] to live either with the mother if she also returns or with the father, or that [B] should remain with the mother in [Y] pending the final hearing of the matter.
Her Honour’s conclusion expressed at [148] of her reasons was that it was in the child’s best interests that he be returned to X. But she then acknowledged at [149] that the mother may choose not to return to X, and she determined that if the mother made that choice, the child would have to live with the father. However, her Honour can then, in the following paragraphs of her reasons, be read as appreciating that such a change for the child would not be the most desirable outcome:
150.One of the difficulties of course is that I cannot make findings about the capacity of the father to provide close to full time care for [B] but what I do know is that the father has been actively engaged with the child throughout the child’s life, that [B] has a good relationship with the father and that the mother’s proposal is that he spend time regularly with the father in the future.
151.An order which would see a change of residence for [B] is not the ideal order; the better outcome for [B] would be if the mother returned to [X] and the existing interim arrangements continued in the immediate future. However if the mother refuses to return, I have to be seriously concerned about her attitude to the child and the responsibilities of parenthood, her capacity to provide for [B’s] emotional needs and her willingness to comply with court orders, and if that combination of concerns has merit [B’s] relationship with the father may be under threat if the mother is allowed to get away with relocating unilaterally and making a unilateral decision not to comply with court orders about the father’s time with the child.
152.I have to be concerned about the effect on [B] of a change of residence but those concerns are ameliorated by what I know of [B]’s relationship with the father, and taking decisive action now in the face of the mother breaching court orders and unilaterally relocating is in my view essential to prevent the child’s long term opportunity of having a meaningful relationship with the father being placed at risk.
The complaint in Ground 9 is that her Honour erred in making an order that the child should live with the father in the absence of evidence that the father was able to provide proper full-time care for him. It will have been seen that

her Honour specifically recognised this issue in [150] of her reasons, but she was able to satisfy herself that other considerations would counter-balance this issue. There would be no justification for our interference with her decision in this regard. Thus, Ground 9 has not been established.
Ground 11 asserts error on her Honour’s part in not considering the impact on the child of being separated from “his primary attachment figure”, being the mother. Somewhat similarly, Ground 12 asserts that her Honour failed to give adequate reasons for changing the “primary living arrangements” for the child and failed to take into account the impact on him of separation from his mother, and Ground 14 is also directed to the consequences of the child not living with the parent who had been his primary care giver.
Her Honour can be seen as dealing with the matters which are the subject of these grounds in the following paragraphs of her reasons:
102.If it was found at a final hearing for example that [B] was more strongly attached to the mother than the father (and it does not automatically follow that this is the case just because she has been his primary carer) and that the mother could only effectively manage her mental health issues and properly parent [B] if she was allowed to live in [Y] and that she could be depended on to promote [B’s] relationship with the father if she lived in [Y] and to comply with court orders then it might be found that [B]’s best interests would be served by residing with the mother in [Y], despite the fact that it would limit the father’s capacity to be involved with [B] on a day to day basis.
…
104.I also cannot make findings at this stage about the likely effect on [B] of a complete change to his parenting arrangements in that he commences living primarily with the father.

It will thus be seen the her Honour was unable to make the findings or draw the conclusions in relation to the matters to which Grounds 11, 12 and 14 are directed, and it is completely understandable that she was unable to do so in the context of the limited hearing on 4 December 2013. These grounds therefore have no substance.
Ground 13 complains that her Honour failed to have regard to the recommendations contained in the first family report that the child should live with the mother. Given that some months previously her Honour had ordered an updated family report which would take into account the mother’s wish to move from X to Y and also her mental health issues (see [8] to [11] of these reasons), it would hardly be surprising that her Honour did not have regard to the recommendations of the earlier report. Thus, this ground also has no substance.
Ground 15 asserts error on the part of her Honour in failing to find that certain allegedly admitted actions on the part of the father’s partner constituted family violence. Early in her reasons for judgment of 6 December 2013, her Honour identified a range of issues which were in dispute and which she indicated could not be determined in an interim context. The tenth listed of these issues was whether the father’s partner was a threat to the mother. This issue therefore remained a matter for determination at the final hearing and her Honour cannot be criticised for not making a finding about it in the context of the return hearing. Ground 15 therefore also has no merit.

Conclusion in relation to appeal EA 177 of 2013

For the reasons given we have found no substance in any of the grounds of appeal directed to the orders made on 6 December 2013, at least as those grounds are drafted. There was, however, in the submissions of counsel for the mother in support of the appeal some criticism of her Honour on the basis that she had made adverse credit findings of the mother as well as adverse findings against her in relation to compliance with court orders.
The adverse findings in relation to credit were said to be in the following paragraphs of her Honour’s reasons:
75.No findings can be made about any of the matters in dispute at this stage but it is of concern that credit issues in relation to the mother arise in the material filed to date.
76.One arises out of the fact that in his affidavit filed in 2012 the father said that he had heard that the mother had commenced dating someone in [Y] in July 2012.
77.In paragraph 57 of her affidavit filed on 31 October 2012 the mother specifically denied that this was true, and in her trial affidavit filed on 27 June 2013 she made no mention of a boyfriend. However on 18 July 2013 an affidavit was filed in the mother’s case by one
[Mr M] who stated that he had started dating the mother in June 2012.
78.Another is that in her affidavit which is Exhibit “A” the mother alleged that [Ms C] and her sister threw a milkshake all over her in February 2013. However while she made extensive complaints about [Ms C] in her trial affidavit filed on 27 June 2013 the mother made no mention of this incident.
79.At a hearing it may turn out that these matters are explicable or that they do not have great significance but their existence highlights why the court needs to be cautious before placing too much weight on the evidence of one party at an interim stage.
While it might be said that her Honour has foreshadowed in these paragraphs adverse credit findings against the mother, no such findings were actually made. Indeed, what her Honour said in [75] and [79] indicates that she was well aware of the need not to make such findings in an interim context.
The adverse findings in relation to the mother’s capacity to comply with court orders were said to be made in the following paragraphs of her Honour’s reasons:
85.[B] can have a meaningful relationship with both his parents, in other words a relationship which is significant, important and valuable to him, even if he lives 3 ¼ hours driving distance from one of them provided that the parent living at a distance is willing to make the extra effort required to spend time with him and provided that the parent with whom he primarily lives values his relationship with the other parent and can be depended on to comply with court orders.
86.It is of concern in these interim proceedings that I cannot be satisfied at present that the mother values [B]’s relationship with the father or that she can be trusted to comply with court orders.
87.The mother well knew that if she relocated to [Y] she would not be able to comply with the existing interim orders. She did it anyway and announced it to the father as a fait accompli in a text message. Not only that, she relocated after sitting in court only two days earlier and hearing the court discuss the difficulties which it faced in dealing with an application for interim relocation and hearing the court make an order that her application be adjourned to 6 February 2014 after the release of the family report.
88.It could be argued that the mother’s conduct amounted to a flagrant challenge to the authority of the court. I make no finding to that effect because among other things, as I observed during submissions on 4 December 2013, it could turn out that the mother has received some very poor legal advice, but the mother’s conduct means that I cannot be satisfied at this time that she can be trusted to comply with court orders in the future and that she places real value on the father’s relationship with [B].
It is true that in these paragraphs her Honour concluded that she could not, on the evidence before her, be satisfied that she could trust the mother to comply with court orders. However, she also recognised the mother’s conduct might have an acceptable explanation. In our view there can be no criticism of

her Honour in relation to these conclusions.
Accordingly, we have found no substance in the appeal against the orders of

6 December 2013 and it will also be dismissed.

Costs of the appeals

Having regard to the submissions made at the conclusion of the hearing of the appeals and to the outcome of the appeals we consider that there should be no order for costs in relation to the appeals.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Faulks DCJ and Finn J) delivered on 20 December 2013.

Associate:

Date: 20 December 2013