Ulster & Viney

[2016] FamCAFC 133

FAMILY COURT OF AUSTRALIA

ULSTER & VINEY [2016] FamCAFC 133

FAMILY LAW – APPEAL – CHILDREN –Where the father appeals against final parenting orders which permit the mother to relocate the children from Melbourne to regional Victoria – Where the grounds of appeal challenge the exercise of discretion and weight given to various factors – Whether the primary judge erred in her consideration of s 65DAA and “substantial and significant time” – Meaning of “daily routine” discussed – Where the primary judge did not err in the exercise of her discretion – No error established – Appeal dismissed.

FAMILY LAW – COSTS – Where the mother sought costs in the event the appeal failed – Where the father was wholly unsuccessful on appeal – Where justifying circumstances exist for order for costs in favour of mother – Father to pay the mother’s costs of the appeal.

Family Law Act 1975 (Cth): ss 60CC, 61DA, 65DAA, 117
Federal Proceedings (Costs) Act 1981 (Cth)

Beckham & Desprez [2015] FamCAFC 247
De Winter and De Winter (1979) FLC 90-605

Eddington and Eddington (No 2) (2007) FLC 93-349
French & Fetala [2014] FamCAFC 57
Goode and Goode (2006) FLC 93-286
Gronow v Gronow (1979) 144 CLR 513
Heaton & Heaton [2012] FamCAFC 139
House v The King (1936) 55 CLR 499
MRR v GR (2010) 240 CLR 461
Starr & Duggan [2009] FamCAFC 115

APPELLANT: Mr Ulster

RESPONDENT: Ms Viney

FILE NUMBER: MLC 8852 of 2014

APPEAL NUMBER: SOA 74 of 2015

DATE DELIVERED: 28 July 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Melbourne

JUDGMENT OF: Strickland,
Ainslie-Wallace & Ryan JJ

HEARING DATE: 3 March 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 14 October 2015

LOWER COURT MNC: [2015] FCCA 2749

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr North SC

SOLICITOR FOR THE APPELLANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Ms Smallwood

SOLICITOR FOR THE RESPONDENT: Pearsons Lawyers

Orders

1. The appeal be dismissed.

2. That the father pay the mother’s costs of and incidental to the appeal within twenty-eight (28) days of agreement as to quantum or assessment.

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

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

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 74 of 2015
File Number: MLC 8852 of 2014

Mr Ulster

Appellant

And

Ms Viney

Respondent

REASONS FOR JUDGMENT

Strickland J

1. I have had the advantage of reading the draft judgment of Ainslie-Wallace and Ryan JJ.  Unfortunately, I cannot agree with the outcome proposed by their Honours, and I would allow the appeal, set aside the orders appealed against, remit the proceedings to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Bender, and issue costs certificates for the appeal and the rehearing.

2. The background facts, and a summary of the reasons for judgment of the primary judge, are amply set out in their Honours’ reasons for judgment, and I do not need to repeat the same.

3. In relation to the grounds of appeal, it is convenient to address the same in the order that they were dealt with by senior counsel for the father and by their Honours.

Ground 1

1.        Her Honour erred in determining (at [160] of the Reasons) that the orders proposed by the [mother] would provide for the [father] to spend “significant and substantial time” (sic) with the children in that the time proposed was not such as to enable the [father] to be involved in the daily routine of the children or either of them.

(Original emphasis)

1. I agree with their Honours’ finding, and their reasons therefor, in relation to the meaning of “daily routine” in s 65DAA(3)(b)(i) of the Family Law Act 1975 (Cth) (“the Act”), but not with their reasons for rejecting the complaint of the father that the order made by her Honour was not one “which can properly be said to provide for ‘substantial and significant time’ in any broader sense of that expression” (emphasis omitted), relying on what the Full Court said in Eddington and Eddington (No 2) (2007) FLC 93-349 at 82,000, namely:

   66.…Clearly, the amount of time which children spend with a parent potentially impacts upon the quality or significance of that time.  In our view, the time which the children would spend with the appellant pursuant to the trial Judge’s orders, the duration of such periods and the frequency at which they would occur are likely to impact adversely upon the significance of the time which the children would spend with the appellant.  There is thus a nexus between the substance and the significance of the time which the children would spend with the appellant.  Beyond noting that the legislative requirements are conjunctive, we need say no more, other than to stress that the case turns on its own particular facts and circumstances…

2. It is beyond doubt that the time the children are to spend with the father is “extremely limited” and pales in comparison with the amount of time they enjoyed with him prior to separation and under the interim orders. The magnitude of that change and its effect on the relationship between the children and the father is amply described by the family report writer in paragraph 68 of his report dated 12 June 2015, namely:

   … Such a proposal entails the children moving from seeing [the father] six nights per fortnight to only two.  This is a high magnitude change.  The children and [the father] enjoy a strong and sound relationship which would be eroded and compromised if their time with him is reduced to such an extent.  This would entail a significant loss for them which would not be in their interest.

3. On that basis the following submissions made by the father’s senior counsel in the written outline of argument are entirely apt, and I accept them as accurate:

   10.In the context of this case the time spent under the proposal is neither substantial nor significant.  The time is a small fraction of that enjoyed with the father before the implementation of such orders and its significance to the children is to be measured only by the degree of loss that will be occasioned to them and the erosion and compromise of their relationship with him occasioned by that reduction.  Substantial and significant time is that time sufficient to enable children to feel that their parents are involved in all aspects of their care flowing from them being exposed to their parents in a variety of settings.  Such settings may include activities on holiday and weekend as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, collection and delivery to school and sports training – essentially spending time with parents in more mundane situations.  The orders proposed by the [mother] fall short of orders that allow such a balanced and rich relationship with their Father.

   11.Under that proposal he ceases to be an active participant in their lives as ordinarily lived by them.  He becomes a person whom they visit when they take time out from their lives.

4. Their Honours look to justify her Honour’s finding and consequent order by looking at the respective proposals of the parties in the event that relocation was permitted, and by noting their similarity. However, with respect, that misapprehends the task of a primary judge in considering s 65DAA of the Act in a case where relocation is sought. As the primary judge correctly indicated in her reasons for judgment (at [97]), “a relocation matter is to be determined in the same way that all parenting matters are determined”. Thus, it is putting the cart before the horse to approach s 65DAA on the basis of what if the relocation was permitted.

5. In my view, this aspect of Ground 1 clearly has merit.

Grounds 6, 7 and 8

6. In considering s.60CC(2)(a) of the Act and the benefit of the children having a meaningful relationship with both of the children’s parents, her Honour erred at paragraph [109] of her Reasons in asserting that it was the report writer’s “clear evidence” that the children “would be able to maintain a meaningful relationship with the [father]” upon relocation.

7. In considering s.60CC(3)(d) of the Act and the likely effect of any changes in the children’s circumstances including separation from their Father, her Honour erred and misstated the evidence of the report writer when at paragraph [133] her Honour found that he “confirmed that if orders were made in the terms proposed by the [mother] in the event of relocation” the children “would be able to maintain a close and loving relationship with the [father]”.

8.        Her Honour at paragraph [185] of her Reasons for Judgment erroneously found that the report writer expressed the view that “ideally children should not be exposed to disruption”.

(Original emphasis)

1. It is incontrovertible that the report writer:

   a)did not give “clear evidence” that the children “would be able to maintain a meaningful relationship with the [father]” upon relocation;

   b)did not “[confirm] that if orders were made in the terms proposed by the [mother] in the event of relocation” the children “would be able to maintain a close and loving relationship with the [father]”; and

   c)did not express the view that “ideally children should not be exposed to disruption”.

2. Thus, for her Honour to make these observations and to then rely on them when considering s 60CC(2)(a) (at [109]) and s 60CC(3)(d) (at [133]), demonstrates clear error by her Honour.

3. These findings were not open on the evidence, and as pointed out by the father’s senior counsel, “[t]he nearest the report writer’s evidence came to supporting any such finding” arose during his cross-examination by the mother’s counsel as follows:

   MR WILLIAMS: …Would you also accept, Mr [U], that in cases of relocation that when it occurs there are solutions that her Honour has and the court has to maintain the relationship by increasing, for instance, holiday time, long weekend time, to make up for the differential in terms of time that has been otherwise changed?---I’m aware of that - - -

   Yes?--- - - - that solution open to the court at times.

   And that certainly is something that mitigates or reduces the impact of the relocation from the children’s perspective?---It compensates for it, I would say.

   Yes. Thank you?---To a certain extent.

   Yes. And there’s technology such as Skype, internet with young children. Now they’re on internet?---I’m aware of that. Can I just say one thing?

   Facebook - - -?---Can I just say one thing, your Honour? Skype is a wonderful tool, but I often say to this – it’s again stating the obvious – it’s hard to hug a computer. It’s not the same thing.

   No. I - - -?---I understand it helps. I understand it helps. I consider that.

   Mr [U], I’m not suggesting in any way that it’s the panacea - - -?---No, it’s not.

   - - - for the solution - - -?---But it’s a handy tool, I accept that.

   No. I’m not putting that to you. What I’m putting to you is that with modern technology at least there are other ways of parents staying directly in touch with children on a daily basis - - -?---I’m aware of that. Yes.

   - - - if they wish?---I accept that.

   Yes. Where they can see each other and inter-react on a free basis. And I’m not suggesting it’s the same as hugging a - - -?---No.

   - - - a child. But, extended holiday time, certainly you can hug children?---Yes.

   And engage with them. Weekends, long weekends, the same applies. Correct?---It’s a compensation. But as - - -

   Yes?---But if you’re looking at a significant reduction in the amount of time child or children spend with one parent, the concerns that I raise in the report is the impact this has on them and the loss that children can experience - - -

   Yes. And - - -?---Resulting from such a change, and that can’t be excluded. That can’t be set aside.

   Thank you. And if we were dealing with, such as a case in – I did last week, a relocation case – where you’re dealing with a 15 month old child who had not established a bond with the father, it’s a different case to this case. Isn’t it?---Of course it is. Of course it is.

   The bond, the primary bond, has been established?---Yes.

   The secondary bond has been established?---Yes.

   And the position is, given the age of these two children, that those bonds with regular, frequent time can be maintained?---I’m sure they can.

   And enhanced?---Yes.

   (Transcript 17 July 2015, page 180, line 25 – page 181, line 36)

4. As can be seen, although the report writer agreed that under the proposed arrangements the bond between the children and their father “can” be maintained and “can” be enhanced, he reiterated his concern about the impact upon the children of the loss associated with the significant reduction in the amount of time spent with the father. Indeed, there can be no suggestion that the report writer resiled from his opinion expressed at paragraphs 68 and 71 of his report dated 12 June 2015.

5. These mistakes by her Honour are material.  They plainly infect her Honour’s decision and render it unsafe. Thus, these grounds have merit.

Grounds 2, 3 and 4

2.        Her Honour erred in that her Honour failed to consider equal time orders or substantial and significant time orders before rejecting such orders in favour of the orders made, or if her Honour did consider such orders before rejecting them in favour of the orders made, her Honours [sic] Reasons are inadequate in that they fail to demonstrate that such consideration was given.

3. Her Honour erred in that her Honour’s Reasons failed to demonstrate that her Honour gave separate consideration to the matters referred to in s.65DAA(1)(a) and s.65DAA(1)(b) or to the matters in s.65DAA(2)(c) and s.65DAA(2)(d).

4. Her Honour erred in that while her Honour made observations and expressed some conclusions with respect to the best interests of the children by reference to the subsections of s.60CC ([103]-[158] of the Reasons) it is not possible to discern from the conclusions expressed by her Honour (at [161]-[188] of the Reasons) the extent to which those earlier observations and conclusions, if any, influenced the conclusions expressed or to discern the proportionate weight given by her Honour to the factors under s.60CC considered by her.

1. I agree with their Honours that there is no merit in these grounds of appeal, and generally for the reasons that they express, but I wish to make a comment on one aspect of what has fallen from their Honours.

2. Their Honours’ approach to the order in which the issues in s 65DAA are to be considered is entirely consistent with the decision of the Full Court in Beckham & Desprez [2015] FamCAFC 247. There the Full Court said this:

   21.The father submitted the trial judge was obliged to consider the evidence pertinent to both s 65DAA(1)(a) (which deals with whether “equal time” orders would be in the child’s best interests) and s 65DAA(1)(b) (which deals with the reasonable practicability of “equal time” orders) in the sequential order in which those provisions appear in the Act and to then, and only then, move on to s 65DAA(1)(c) to consider whether to make “equal time” orders.

   22.The father additionally submitted that the consideration stipulated by s 65DAA(1)(a) assumed primacy over that stipulated by s 65DAA(1)(b), because of the paramountcy principle embedded in the Act by ss 60CA and 65AA. The father conceded the logical extension of this argument meant that, in the event of tension between the determinations under each sub-section of s 65DAA(1), the first would trump the second. So, if orders for “equal time” were found to promote a child’s best interests, but not to be reasonably practicable to implement, the orders could be made nonetheless.

   23.Impelled to that concession, the error of the father’s submission was exposed. Although passing reference was made to MRR v GR in written submissions, the High Court’s interpretation of s 65DAA is definitive. In that case the trial judge determined to make equal time orders because, pursuant to s 65DAA(1)(a), his Honour was satisfied such orders were in the child’s best interests. The error identified by the High Court was the trial judge’s failure to additionally consider whether such orders were reasonably practicable, pursuant to s 65DAA(1)(b), because only when both questions were considered and answered affirmatively did the power exist for equal time orders to be made (at [13], [19]). The section is concerned with the reality, not merely the desirability, of a family’s residential affairs (at [15]). No matter how desirable an equal time arrangement may be, it will not be imposed if it is impracticable.

   24.In MRR v GR, equal time orders were made even though consideration of the reasonable practicability of such orders was overlooked. That was the error. Conversely, in this case, the trial judge expressly found equal time orders were not reasonably practicable and therefore abstained from considering whether they would be in the child’s best interests before rejecting them. That was not an error.

   25.The father’s mistaken assertion in this case, that both sub-sections had to be considered by the trial judge despite one not being satisfied, sprang from a misapprehension it was obligatory to determine whether the inquiry posited by either sub-section warranted equal time orders being made, rather than because it was necessary to ensure that the inquiries under both sub-sections affirmatively required consideration of equal time orders. It was necessary in MRR v GR for the trial judge to consider both limbs because the first had been answered affirmatively. Had it been answered negatively there would have been no need to consider the second.

   26.The father sought to summon support for his submissions from various authorities. First, statements of the Full Court in McCall & Clark (2009) FLC 93-405 at [68]-[71] and Collu & Rinaldo [2010] FamCAFC 53 at [374]-[376] were cited, but they are not corroborative and do no more than confirm the need for a trial judge to find that orders in the nature of those contemplated by s 65DAA of the Act would be both in the child’s best interests and reasonably practicable before they are made.

   27.Secondly, statements from Heaton v Heaton (2012) 48 Fam LR 349 at [32]-[38] and Sayer v Radcliffe (2012) 48 Fam LR 298 at [77]-[79] were cited. Certainly, in Heaton (at [37]) the Full Court appeared to endorse an approach that required the trial judge to consider the issue of “best interests” first and, only if it was in the best interests of the child or children concerned, to then move to consider the issue of reasonable practicability. The Full Court in Sayer v Radcliffe (at [77]) appeared to adopt the approach in Heaton. However, we do not consider those statements can be treated as espousing any general principle. In Heaton, the parent who wished to relocate said she would not relocate if the children were not permitted to relocate as well, so it was clearly appropriate to look first at the issue of the children’s best interests. In Sayer v Radcliffe there is ambiguity about what the Full Court said, given the Full Court also cited with approval (at [53]) the approach outlined by another Full Court in Starr & Duggan [2009] FamCAFC 115 at [38], namely that it was logical, but not mandatory, to consider “best interests” first.

   28.In any event, nothing in Heaton or in Sayer v Radcliffe turned on the priority between, or the order of application of, the paragraphs of either ss 65DAA(1) or 65DAA(2). Significantly, in both of those cases, the Full Court recognised the binding authority of MRR v GR. 

Ground 5

5.        Her Honour erred in determining (at [183] of the Reasons for Judgment) that it was probable that the employment available to the [mother] would involve shift work, weekend work and a lack of predictability.

1. The primary issue here is whether the evidence before her Honour was sufficient to persuade her Honour that the mother had better employment prospects in Gippsland than in Melbourne to suit her requirements, and in particular consistent with her desire to be available to care for the children outside of school hours.

2. It is beyond doubt that that evidence was thin, but it is not possible to say that it was not open on that evidence for her Honour to find as she did.

3. Thus, I agree with their Honours that Ground 5 is not established.

Conclusion

1. Having found merit in Grounds 1, 6, 7 and 8, the appeal must be allowed.

2. In that event, no suggestion was made, or in my view could be made, that this court is in a position to re-exercise the discretion, and thus the orders appealed against, namely Orders (2) – (18) inclusive made by her Honour should be set aside, and save and except in relation to the issue of parental responsibility (the subject of Order (1)), the proceedings should be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Bender.

Costs

1. At the conclusion of the hearing we received submissions as to the question of costs depending on the result of the appeal.

2. In the event that the appeal was successful senior counsel for the father sought an order for costs against the mother, but if no costs order was made then he sought that costs certificates issue for the appeal and the rehearing pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

3. For the mother’s part, her counsel sought costs certificates in the event that the appeal was successful.

4. In my view it is inappropriate for an order for costs to be made. There was no suggestion that the mother did or said anything which led to the appealable errors made by the primary judge, and it was not unreasonable for the mother to oppose the appeal. However, because I have found that the appeal should be allowed on questions of law, it is appropriate that each party have costs certificates for both the appeal and the rehearing.

Ainslie-Wallace and Ryan JJ

1. By Amended Notice of Appeal filed on 11 February 2016, Mr Ulster (“the father”) appeals against various orders made by Judge Bender on 14 October 2015 in relation to the parties’ children.  The primary judge dismissed the father’s application for the children’s time to be shared equally and gave Ms Viney (“the mother”) permission to relocate the children to Town O.  Town O is in Gippsland in regional Victoria and about 85 kilometres from where the parties and children live in Melbourne.  The children will primarily live with the mother and after they relocate, the children are to spend time with the father essentially each alternate weekend, on various special occasions and for a sizeable portion of the school holidays.

2. The mother has family and a job in Gippsland where she will be able to afford to buy a home.  However, the orders will require the children to leave the only school they have attended and have the effect of significantly reducing their time with the father during school term and, according to him, will deprive them of the benefits of an ongoing meaningful relationship with him.

3. The mother resists the appeal and seeks to uphold the orders.

Background facts

1. To give context to this appeal it is necessary to provide some background facts.

2. The father was born in 1973 and at the time of trial was aged 42 years.  He was employed full-time as a professional manager and worked in Melbourne.

3. The mother was born in 1974 and at the time of trial was 41 years of age.  She is a medical professional and worked part-time as a medical professional in a school in the Gippsland Region.

4. In 1999, the parties moved in together in London in England where they both worked.  In the following years they moved between Australia and England until, in 2004, they returned to live in Australia.

5. In 2005, the parties married.

6. The parties’ daughter, X was born in 2006.  At the time of trial, she was nine years of age.

7. The mother ceased paid employment and thereafter was primarily responsible for the care of the children and running the family home.  But for a period of approximately 12 months, the father worked full-time.

8. In September 2007, the parties sold their home in Sydney and moved to Melbourne.

9. The parties’ son, Y was born in 2008.  Y was seven years of age at the time of trial.

10. At about the same time Y was born, the father was retrenched.  For the following 12 months he remained at home with the mother and children. He resumed full-time employment in April 2009.  The mother also resumed paid employment in 2009.  She worked on Sundays and during school hours providing individual medical care for a severely disabled person.

11. The parties purchased a property at Suburb F in Melbourne in 2010 which became the family home.

12. Following an ugly incident on 6 June 2014, the parties separated.  Thereafter the mother and children continued to reside in the family home and the father moved into rental accommodation nearby.

13. Although the parties gave different versions of the events of 6 June 2014 it was common ground there was an ugly and physical incident at the family home in their daughter’s presence. The incident culminated in the father physically throwing the mother out of the house (the mother’s version at [30]) or as the father described it, he “physically removed [the mother] from the house” (at [31]). The mother called the police and on their application, an interim intervention order was made against the father.

14. A couple of weeks later, the father sought an intervention order against the mother which was resolved on the basis of her written undertaking.

15. As a result of the altercation at separation, the father was charged with assault which was finalised upon his entering of a diversion program.

16. Between June and August 2014, the children spent time with the father from Saturday morning until Sunday evening each alternate weekend, overnight each alternate Thursday and for two hours each alternate Monday.  The Monday arrangement coincided with the children’s piano lessons, in which the father is keenly involved.

17. By agreement between the parties, these arrangements were then altered so that the weekend time commenced after school on Friday and the Thursday overnight time changed to Wednesday nights.

18. In about September 2014, the mother’s employer told her that her position was coming to an end and thus the mother started looking for another job.  She accepted a position as a medical professional at a school in Gippsland.

19. In the meantime, difficulties had arisen in relation to payment of the mortgage and, with a job available in Gippsland, the mother decided she could give the children greater stability if they moved.  Without forewarning the father, on 1 October 2014, the mother and children moved to Gippsland.

20. The following day the mother told the father she and the children had moved and assured him his time with the children “will not be diminished in any way” (at [44]).  The children were due to spend that weekend with the father and they did.  He refused to return them and withdrew them from school.

21. The father commenced proceedings in the Federal Circuit Court on 2 October 2014 for parenting and property orders.  When the father failed to return the children the mother, on 10 October 2014, filed an urgent application for the children to be returned to her.

22. The mother’s application was listed on 28 October 2014.  That day interim orders were made by consent concerning the children.  The orders provided for the parties to have equal shared parental responsibility, for the children to live with the father each alternate week during school term from after school Thursday until before school Wednesday and otherwise with the mother.  That is, for six nights each fortnight with the father and eight nights with the mother.  Provision was also made to share school holidays and in relation to special occasions.  It was further ordered that the parties ensure the children continue to attend Suburb F Primary School.

23. Settlement of the sale of the family home was completed in February 2015.

24. The mother was able to arrange her work commitments in Gippsland around the times the children lived with her.  She obtained rented accommodation in Suburb R in Melbourne which, when the children were in her care, they lived.  When the children were in the care of their father, the mother stayed with her mother and step-father in Town L in Gippsland (at [54]).

25. The primary judge published her reasons for judgment and made final parenting and property orders on 14 October 2015.

26. By Notice of Appeal filed on 11 November 2015, the father appealed most of the parenting and associated orders. 

27. The primary judge granted a partial stay and thus the children remain in Melbourne where they live with the mother during school term eight nights each fortnight and with the father on the remaining six nights.

Parenting orders dated 14 October 2015

1. The parenting and allied orders made by the primary judge are set out below:

   1.The parties have equal shared parental responsibility for [the children].

   2.The [mother] be permitted to relocate with [the children] to the [Town O] area at the end of the 2015 school year.

   3.Pending relocation [the children’s] living arrangements shall continue in accordance with the interim orders made 28 October 2014.

   4.Upon relocation [the children] shall live with the [mother] and spend time and communicate with the [father] as follows:

   (a)during school terms:

   (i)each alternate weekend from 5:00pm Friday to 5:00pm Sunday or 5:00pm Monday if Monday is a non-school day and to 5:00pm Melbourne Cup Day if the Monday before Melbourne Cup Day is a non-school day and [the children] are with the [father] on the Melbourne Cup weekend;

   (ii)in the alternate week from after school to 7:00pm Friday;

   (b)for 10 days in each of the term holidays as agreed between the parties and failing agreement from after school on the last day of term to 5:00pm on the second Wednesday of the holidays;

   (c)in the 2015/2016, 2016/2017 and 2017/2018 long summer vacation for two weeks commencing 27 December and for one week concluding at 5:00pm the day before school commences;

   (d)for one half of the long summer vacation commencing 2018/2019 as agreed between the parties and failing agreement the second half in odd numbered years and the first half in even numbered years;

   (e)for the Jewish holidays as follows:

   (i)from 9:00am on the first evening of Pesach until 9:00am on the fourth evening of Pesach;

   (ii)from 9:00am on the first evening of Rosh Hashana until 9:00am on the third evening of Rosh Hashana;

   (iii)from 3:30pm on the second evening of Yom Kippur until 9:00am the following morning; and

   (iv)from 3:30pm on the first evening of Hanukah until 9:00am the following morning;

   (f)on [the children’s] birthdays as agreed between the parties and failing agreement for two hours from 5:00pm to 7:00pm if the birthday is on a school day and for six hours if the birthday is on a non-school day from 10:00am to 4:00pm;

   (g)on the [father’s] birthday from 5:00pm to 7:00pm if the birthday is on a school day and from 10:00am to 4:00pm if the birthday is on a non-school day;

   (h)on Father’s Day from 5:00pm the day preceding Father’s Day to 5:00pm on Father’s Day; and

   (i)as otherwise agreed between the parties.

   5.[The children’s] time with the [father] pursuant to these orders shall be suspended as follows:

   (a)from 12:00 noon Christmas Eve to 6:00pm Boxing Day each year;

   (b)on the [mother’s] birthday from 10:00am to 4:00pm if a

   
   

   non-school day; and

   (c)on Mother’s Day from 5:00pm the day preceding Mother’s Day.

   6.If one of the Easter days being Good Friday to Easter Monday (“the Easter long weekend”) falls on one of the first four nights of Pesach [the children] shall spend the Easter long weekend with the [father] and otherwise [the children] shall spend the Easter long weekend with the [mother] save and except if [the children] have spent two consecutive Easter long weekends with the [father] they shall spend the following Easter long weekend with the [mother] even if one of the four nights of Pesach falls during that Easter weekend.

   7.The [mother] is at liberty to telephone [the children] twice each week when [the children] are with the [father] during school holidays.

   8.Each party shall facilitate [the children] telephoning/Skyping/Facetiming the other when [the children] are not in their care upon their reasonable request to do so.

   9.Changeover for the time [the children] spend with the [father] shall be as follows unless otherwise agreed between the parties in writing:

   (a)for the time pursuant to orders (4)(a)(i) and (4)(h) herein the [mother] shall deliver [the children] to and collect [the children]  from the [Suburb F] McDonalds;

   (b)for the time pursuant to orders (4)(a)(ii), (4)(f) and (4)(g) herein the [father] shall collect and return [the children] to the Woolworths car park at [Town O];

   (c)for the time pursuant to orders (4)(b), (4)(c), (4)(d) and (4)(e) herein the [father] shall collect [the children] at the commencement of time from the Woolworths car park at [Town O] and the Mother shall collect [the children] from the [Suburb F] McDonalds at the conclusion of time; and

   (d)when the [father’s] time is suspended pursuant to order (5) herein the [mother] shall collect and return [the children] to the [Suburb F] McDonalds.

   10.The parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of [the children] and from permitting any other person so to do.

   11.The parties be permitted to attend all school events relating to [the children] normally attended by parents and receive at their expense all school reports, school photograph order forms and newsletters.

   12.Each party shall advise the other of any serious illness or injury suffered by [the children] as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.

   13.Each party keep the other informed at all times of their current residential address and contact telephone number.

   14.Each party be at liberty during his/her time with [the children] during school holidays (including long summer holidays) to travel with [the children] (or either of them) interstate and overseas, provided that the travelling party provide the other details of itineraries, accommodation and transport (including flights):

   (a)at least seven days prior to commencement of interstate travel or such shorter period as agreed between the parties; and

   (b)at least 28 days prior to commencement of overseas travel or such shorter period as agreed between the parties.

   15.No later than seven days prior to commencement of overseas travel with [the children] by a party pursuant to order (14) herein, the other party provide to the travelling party such of [the children’s] passports as are in the non-travelling party’s possession or control.

   16.Each party do all such acts and sign all such documents as are required to maintain and renew [the children’s] passports from time to time, the costs of same to be borne equally between the parties.

   17.The [European] passports of [the children] be provided to the [mother] from 1 January 2016.

   18.The Australian passports of [the children] be provided to the [father] from 1 January 2016.

   …

2. Order 1 is the only parenting order not challenged in the appeal.

Reasons for judgment

1. There is no challenge to her Honour’s statement of the applicable law, rather, the focus of the appeal is on the application of s 65DAA of the Act and specific findings. We will analyse her Honour’s reasons by reference to the matters under challenge.

2. The primary judge commenced her reasons for judgment by identifying the relief sought, namely, that the mother sought to live in Gippsland with the children (at [3] and [4]) whereas the father wanted the children to continue to live in Melbourne and their time divided equally (at [8] and [9]).

3. Commencing with the mother, the primary judge then recorded the evidence given by the parties.

4. As to the mother, the orders she sought were repeated.  The mother claimed to have been the children’s primary carer until the interim orders were made on 28 October 2014.  The rationale for these orders sought is apparent at [59] and [60] where the primary judge said:

   It is [the mother’s] evidence that she believes it is in the best interests of [the children] that they live with her and that they be able to relocate to the Gippsland area, and in all probability [Town O]. This will allow [the mother] to continue in employment that utilises her professional expertise in such a way that she will be available to care for [the children] outside of school hours.

   It is [the mother’s] further evidence that relocation will enable her to purchase a home for herself, [and the children], something she will not be able to do if she is required to continue to reside in the metropolitan area given the relatively small property pool and the measureable differences in housing prices between Gippsland and the metropolitan area.

5. The mother acknowledged that for the children moving schools and away from the community in which they had always lived would be challenging, but she believed they were well equipped to adjust.  She believed that the children enjoyed a close and loving relationship with the father and that even if their time during the school week was reduced from six nights to two, they still would. 

6. According to the mother, if she remained in Melbourne, she would have to do shift work which would adversely impact on her capacity to care for the children outside of school hours.  She had been able to undertake shift work prior to separation, but that was in circumstances where the father was able to care for the children while she worked.  Positions as a medical professional within a school were not readily available in Melbourne and, from the mother’s somewhat limited enquiries, presently there were none (at [64]).

7. The mother believed she would receive insufficient capital by way of property settlement to buy a home in Melbourne whereas in Gippsland she could (at [67]-[68]). In Gippsland, the mother would have easier access to her mother and step-father (who it was undisputed provided her with assistance in the care of the children). Based on enquiries made by the mother of various schools, she was satisfied schools in Gippsland would provide the children with a comparable education to that offered at their current schools.

8. The father’s evidence was discussed next and again her Honour referred to his application for equal time.  The father took issue with the mother’s claim as primary carer albeit, he conceded she took the children to and from school, was involved at the school, took the children to all medical and other appointments and was the parent who organised and facilitated the children’s social lives.

9. The father believed the children thrived under the interim parenting orders and was particularly concerned to continue his active involvement in their music.  He was concerned that relocation would necessitate a significant reduction in his time with the children which would be to their detriment and adversely impact on their relationships.

1. Between [87] and [95], the primary judge discussed the evidence given by the family reporter.  The family reporter described the children as delightful and a credit to their parents.  The parents presented as loving and committed and the mother had generally facilitated the father’s desire to be involved in the children’s lives (at [88]).  Based on remarks attributed to the children, the family reporter was satisfied the mother had been primarily responsible for meeting their day to day needs, albeit, as a consequence of the changes in their care following from the interim orders, the father/child dynamic had changed.  In this respect, the children’s relationship with him had developed and progressed.

2. As to the question of relocation, the primary judge made specific reference to paragraphs 70 and 71 of the family report.  Aspects of [71] bear repeating:

   …Implementing [the mother’s] proposal will entail disruption and loss for the children when they have already deal [sic] with significant change and loss in their lives. Imposing further change and further loss on them is not in their interest. They need to be able to access both parents relatively easily as this is what they have become used to. There is also a possibility that [the mother] could find employment in the Melbourne area. In view of these considerations, [the mother’s] application for orders to relocate to Gippsland cannot be supported. Instead, this Counsellor favours the continuation of the current regime. That is, for the children to be with [the father] six and with [the mother] eight nights. (The current arrangement is reiterated precisely because of [the mother’s] past extensive involvement in the lives of the children and the need to avoid reducing further her availability to them.) Orders will be required for this.

3. However, as the primary judge said, during oral evidence at trial the family reporter explained the essence of his report thus:

   I think the thrust of my report is that, unless it’s absolutely necessary, the disruption to children needs to be curtailed and kept to a minimum as much as possible. I mean, kids can cope, right, but whether it’s desirable for them to do so is a different issue. And if it can be avoided, I think it’s preferable.

   (Transcript of proceedings, 17 July 2015, page 183, lines 25 – 28)

4. Nor did the family reporter take issue with the mother’s desire to find secure employment and affordable housing.  However, he questioned whether the mother had exhausted all possibilities for suitable employment in Melbourne. 

5. It was obviously significant that:

   93.…It is [the family reporter’s] evidence that if the Court formed the view that it was genuinely not viable for [the mother] to remain in Melbourne having considered all the evidence, then orders as proposed by her would still enable [the children] to maintain a meaningful and strong relationship with [the father] albeit the reduction in the time that they could spend with [the father] would impact on the current relationship they have with him.

6. The family reporter was of the opinion that it was in the best interests of the children to remain in the mother’s primary care.  There is no challenge to this finding.

7. Her Honour next addressed s 60CC of the Act (how a court determines what is in a child’s best interests). The children were found to have a close and loving relationship with each of their parents and, with specific reference to the evidence of the family reporter, the primary judge was satisfied the mother had been the children’s primary carer and theirs was the strongest relationship. That said, since separation, the father had played a more significant role in the children’s lives and their relationship with him had developed and progressed.

8. If the children moved away, their relationship with the father would change albeit, based on evidence attributed to the family reporter, they would maintain a meaningful relationship with him.

9. It was common ground the children were settled and happy at school and, based on evidence given by the family reporter, the primary judge accepted that the children were reluctant to see further disruption in their lives.  However, it was agreed that the children’s views would not be determinative.

10. In her consideration of s 60CC(3)(d) (the likely effect of any changes in the child’s circumstances), the primary judge focused on the effect on the children of a “considerable” reduction in time with the father from six to two nights per fortnight. In this context, reference was made to evidence given by the family reporter at [68], which will be discussed later. It is sufficient to note at this stage that her Honour accurately recorded paragraph 68 of the family report and which was to the effect that a reduction in time of this magnitude would compromise the children’s relationship with the father and involve significant loss. The primary judge repeated her findings at [93] and reiterated the report writer’s evidence that increased time during the holidays would provide some compensation for that foregone during school term.

11. As to the practical difficulties involved, the mother proposed to relocate and the father did not.  Even so, the parties would live approximately 85 kilometres or about a one and a half hour drive apart which was not so prohibitive that it would not enable regular time nor prevent the father from attending important school events or extra-curricular activities. 

12. Having completed her discussion of s 60CC, the primary judge turned her attention to s 61DA of the Act. Her Honour agreed with the parties that it was in the children’s best interests for them to have equal shared parental responsibility. This required consideration of s 65DAA and hence whether equal time or substantial and significant time was in the best interests of the children. For reasons we will discuss more fully, her Honour was satisfied that it was in the best interests of the children to live with the mother and for them to relocate. As to the children’s time with the father, there was little difference between the orders each party proposed and which would provide for the father to have substantial and significant time. The orders closely coincide with those proposed by the father but with an adjustment in relation to the summer school holidays in accordance with the orders sought by the mother and as recommended by the family reporter.

The father’s grounds of appeal

1. The father prosecuted eight challenges to the orders:

   1.Her Honour erred in determining (at [160] of the Reasons) that the orders proposed by the [mother] would provide for the [father] to spend “significant and substantial time” (sic) with the children in that the time proposed was not such as to enable the [father] to be involved in the daily routine of the children or either of them.

   2.Her Honour erred in that her Honour failed to consider equal time orders or substantial and significant time orders before rejecting such orders in favour of the orders made, or if her Honour did consider such orders before rejecting them in favour of the orders made, her Honours [sic] Reasons are inadequate in that they fail to demonstrate that such consideration was given.

   3.Her Honour erred in that her Honour’s Reasons failed to demonstrate that her Honour gave separate consideration to the matters referred to in s.65DAA(1)(a) and s.65DAA(1)(b) or to the matters in s.65DAA(2)(c) and s.65DAA(2)(d).

   4.Her Honour erred in that while her Honour made observations and expressed some conclusions with respect to the best interests of the children by reference to the subsections of s.60CC ([103]-[158] of the Reasons) it is not possible to discern from the conclusions expressed by her Honour (at [161]-[188] of the Reasons) the extent to which those earlier observations and conclusions, if any, influenced the conclusions expressed or to discern the proportionate weight given by her Honour to the factors under s.60CC considered by her.

   5.Her Honour erred in determining (at [183] of the Reasons for Judgment) that it was probable that the employment available to the [mother] would involve shift work, weekend work and a lack of predictability.

   6.In considering s.60CC(2)(a) of the Act and the benefit of the children having a meaningful relationship with both of the children’s parents, her Honour erred at paragraph [109] of her Reasons in asserting that it was the report writer’s “clear evidence” that the children “would be able to maintain a meaningful relationship with the [father]” upon relocation.

   7.In considering s.60CC(3)(d) of the Act and the likely effect of any changes in the children’s circumstances including separation from their Father, her Honour erred and misstated the evidence of the report writer when at paragraph [133] her Honour found that he “confirmed that if orders were made in the terms proposed by the [mother] in the event of relocation” the children “would be able to maintain a close and loving relationship with the [father]”.

   8.Her Honour at paragraph [185] of her Reasons for Judgment erroneously found that the report writer expressed the view that “ideally children should not be exposed to disruption”.

   (Original emphasis)

2. In the written submissions in support of the appeal, senior counsel for the father contended that the grounds could conveniently be considered in four broad categories, namely, ground 1; grounds 6, 7 and 8; grounds 2, 3 and 4 and ground 5.  We will adopt the same approach.

3. No argument was advanced in support of the purported challenge to Orders 10 – 18.  There is no doubt the primary judge had power to makes these orders and there is thus no basis upon which they should be disturbed.

4. It needs to be remembered that this is an appeal against her Honour’s exercise of discretion which is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. Disagreement by an appellate court only on matters of weight by no means justifies a reversal of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).

Substantial and significant time (ground 1)

1. The gravamen of the challenge raised by ground 1 is that the primary judge misstated the practical effect of Orders 4 – 8 (inclusive) as providing for the children to spend “substantial and significant time” with the father. This challenge dovetails with those raised against her Honour’s approach to s 65DAA and what is said to be a failure to apply that provision in the manner directed by MRR v GR (2010) 240 CLR 461.

2. There is no doubt that because the parties were to have equal shared parental responsibility, s 65DAA was engaged and thus the primary judge was required to consider whether an order for equal time or substantial and significant time was in the best interests of the children and reasonably practicable, and only if those propositions were answered in the negative, could the question of what outcome promotes the child’s best interests be treated, in effect, as at large (Goode and Goode (2006) FLC 93-286 at [65(8)]). It follows that if the primary judge did not in fact make orders in favour of the father for substantial and significant time, the assertion that the primary judge impermissibly treated the time issue as being at large becomes arguable.

3. The phrase “substantial and significant time” is defined in s 65DAA(3) and qualified by s 65DAA(4).

4. Section 65DAA(3) provides:

   (3)  For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:

   (a)  the time the child spends with the parent includes both:

   (i)  days that fall on weekends and holidays; and

   (ii)  days that do not fall on weekends or holidays; and

   (b)  the time the child spends with the parent allows the parent to be involved in:

   (i)  the child’s daily routine; and

   (ii)  occasions and events that are of particular significance to the child; and

   (c)  the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (Original emphasis)

5. Section 65DAA(4) further provides:

   (4)  Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

6. In Eddington and Eddington (No 2) (2007) FLC 93-349, the Full Court determined the manner in which these provisions operate. The Full Court said (at 81,997):

   54. It is evident that, although orders for time to be spent with a parent fall literally within the provisions of section 65DAA(3)(a)(b) and (c), that does not mean that the orders thereby provide for substantial and significant time within the terms of the legislation. It is equally evident that orders made for time spent cannot satisfy the requirements of substantial and significant time unless they literally meet all of the requirements of those provisions. What constitutes substantial and significant time will vary from case to case. What is substantial and significant time in one factual context may well not be in another. Whatever their terms, orders for substantial and significant time will have in common that they literally comply with each of the requirements created by s 65DAA(3). There is no issue that the orders under consideration did so comply.

7. Thus the test as to whether orders make provision for substantial and significant time is in two parts. The first is mandatory and requires compliance with each element of s 65DAA(3). The second requires the exercise of discretion in accordance with s 65DAA(4). If the first question is answered in the negative, the orders cannot be for substantial and significant time. However, if that question is answered in the affirmative, it is necessary to consider whether in the factual context of the case the time is both substantial and significant. It follows that a finding pursuant to s 65DAA(4) in one case is likely to be irrelevant to the resolution of that issue in a different case (see Eddington (No 2) at [66]).

8. It is uncontentious that provision is made in the orders for the children to spend time with the father on all occasions listed in s 65DAA(3) barring s 65DAA(3)(b)(i). However, it is the father’s contention that the orders do not satisfy s 65DAA(3)(b)(i) and thus fail to satisfy the mandatory component of the test. The effect of this sub-section is that the order must permit the parent to be involved in the child’s daily routine. Senior counsel for the father contends that by giving the words “daily” and “routine” their ordinary meaning, the provision requires involvement in “routine occurring or done each day or weekday” (Summary of Argument at [5]). Having limited the words in this fashion, senior counsel went on to argue that unless the father was involved in the children’s attendance at school, preparation for school, supervision of homework and the like, the requirements of the provision could not be satisfied. The point being, “[f]or the proposal or any order to be compliant with subsection (3)(b)(i) it would necessarily be facilitative of the [father] being inextricably associated, closely connected or actively participating in with [sic] the customary or regular course of procedure occurring each day or each weekday.” (Summary of Argument at [7])

9. We do not agree. First, the provision does not limit the question of involvement in daily routine to school weeks. Nor does it require involvement in each and every aspect of a child’s daily life. This interpretation is consistent with the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 which introduced s 65DAA(3) into the Act and described the provision as follows:

   186.Subsection 65DAA(3) makes it clear that substantial and significant time requires that the child spend both some time on weekends and holidays and some time on other days.  It must also include time in daily routine and allow for participation in events that are significant to the child.  This might include sporting events, birthdays or concerts.  It would also include the child being able to be involved in events of significance to the parent such as family weddings or christenings, mother’s or father’s day, birthdays. 

10. We agree with counsel for the mother’s submission that the section is to be interpreted in the context of a divided family, where parents live separately and apart from one another, and that it does not require “daily physical association with each and every procedure or activity that occurs – each day or each weekday.” 

11. Here, the practical effect of the orders is that the children would have significant block periods of time with the father during school holidays and when alternate weekend and special overnight occasions are taken into account they would probably spend something like 95 – 100 nights annually (and associated days) in his care.  There can be no doubt that this provided the father with the opportunity for active participation (involvement) in the children’s daily routine (albeit only to a limited extent during the school week). 

12. It follows the orders satisfy each element of s 65DAA(3).

13. Consideration of the second limb of the test is thus required; namely whether, the primary judge erred in the exercise of her discretion by, in the circumstances of this case, finding that the amount of time ordered is “substantial and significant”.

14. The second question is to be considered in the context of her Honour’s determination that the children’s best interests were served by being in the mother’s primary care.  Another important contextual matter is that the primary judge was also satisfied it was in the best interests of the children to permit the mother’s application for their relocation.

15. Based on this scenario, the mother put forward two proposals as to the children’s time with the father.  The first was predicated upon the father being willing to move to an outer Melbourne suburb and thus closer to where she and the children lived.  If the father was willing to move the mother proposed that the shared care arrangement continue (at [63]).  However, the father was unwilling to move.  Her Honour said:

    86.It is the [father’s] evidence that he seriously considered [the mother’s] proposal made during the report preparation that he move closer to [the children] in Gippsland so that they could continue a shared care arrangement. It is [the father’s] evidence that he realised this proposal would not be practical as it would involve a commute of in excess of three hours each day for him to be able to travel to and from work.

16. It was thus uncontentious that orders along these lines (which would include those recommended by the family reporter) were not reasonably practicable. 

17. As to the second proposal advanced by the mother, the primary judge described it thus:

    4.If permitted to relocate, [the mother] seeks orders that [the children] spend time with [the father] on alternate weekends from after school Friday to 7:00pm Sunday (or Monday if non-school day), dinner each Wednesday from 5:00pm to 7:00pm, for ten days in each of the term holidays, for three weeks in the long summer vacation to be taken in separate two week and one week blocks and on special occasions and Jewish holidays.

18. Counsel for the father described the father’s proposal if the children relocated in the following terms:

    [Counsel for the father]:   Yes.  As I say, this is the part my client doesn’t like, your Honour.  I had to reassure him that when I tell your Honour this, this doesn’t mean we’re conceding anything; it’s just we’re covering all bases.  Your Honour, if he doesn’t get the parenting orders, what he would seek is some extra time during the term 1, 2 and 3 school holidays – not the summer.  The summer should be as per the orders that he put in his outline.  There are 16 days in each of the term 1, 2 and 3 school holidays; he would ask your Honour for the first 10 days and the [mother] would have the last six.  In terms of alternate weekends, your Honour, he would ask for from 5 pm Friday to 5 pm Sunday, and in terms of the midweek occasion he would ask for each other Friday from after school until 7 pm.  So that is two occasions per week:  a weekend and then an after school occasion. 

    Given that he will have to drive down to Gippsland on the after school occasion – the each other Friday – to pick them up from school, get them back by 7 pm – and we would suggest that as we don’t think there’s a McDonald’s in [Town O] that the return point should be the Woolworths car park or such other agreed place in [Town O].  As he will have to drive down to Gippsland to do that and back again he would ask that in respect of the weekends, your Honour, that the [mother] should bring the children up to Melbourne to [Suburb F] McDonald’s on the Friday and then pick them up from [Suburb F] McDonalds on the Sunday and that will achieve an equal sharing of the burden of travel.

    He would ask your Honour that the weekends – the alternate weekends – the orders should include any non-school days immediately before or after such weekends, including – teachers often take the Monday before Cup Day as a curriculum day or something else – including the Tuesday if Monday and Tuesday are non-school days.  He, of course, would ask for the Jewish holidays that he has set out in his outline, and I don’t believe that to be contentious.  I should mention to your Honour, in relation to the term 1, 2 and 3 school holidays – is that his parents will be part of that.  Either they will go to Sydney and spend time with his parents or his parents will come down from Sydney, as I’m instructed has happened in the past. 

    And the only other thing I need to tell your Honour is that in our outline, in the orders sought, which – the particular order I’m referring to is 19(a), which appears on page 16 of my client’s outline of case.  It refers to notice being given prior to the commencement of interstate travel.  He would like that amended to “away from home travel”, your Honour – a very minor point, I know.  A very minor ‑ ‑ ‑

    (Transcript of proceedings, 17 July 2015, page 198, lines 39 – 47, page 199, lines 1 – 28)

1. Comparison of these two proposals demonstrates significant agreement between the parties, if the parties lived 85 kilometres apart, about the type of arrangements which would be reasonably practicable. 

2. As has already been mentioned, the time orders largely coincide with those which the father advanced.  Although the father did not concede that orders along these lines amounted to “substantial and significant time”, we are satisfied they are.  The practical effect of the orders is that during school term, the children spend time with the father every week, for a full weekend every second weekend and at school events that parents normally attend.  Provision is made for telephone and facetime contact and also for block periods in school holidays and on the special occasions identified in the orders.  In relation to the effect these arrangements would have on the children’s relationships with the father the primary judge said at [187]:

   I am also satisfied that their current close and loving relationship with the [father] would continue in the event of relocation albeit not at the optimal level that the [father] would seek occur.

3. It can be seen, therefore, the primary judge considered not only the amount of time the children would spend with the father but also its significance in terms of the children’s relationship with him and the extent to which he would be involved in their lives.  Her Honour thus considered both the quantitative and qualitative elements of “substantial and significant time”. 

4. This ground is not made out.

The family report writer’s evidence (grounds 6, 7 and 8)

1. By these grounds it is asserted the primary judge made errors of fact in relation to evidence attributed to the family reporter.  The impugned findings relate to the effect on the children’s relationship with the father if the children were to relocate and whether or not the children’s lives should be disrupted by relocation.  It is argued that in the context of the parties’ competing proposals, the errors are material.

2. By ground 6, the father challenges her Honour’s findings at [109] and inferentially [93].  Her Honour said (at [109]):

   In these circumstances, if relocation were to occur the relationship between [the children] and [the father] would change. It is

   
   

   [the family reporter’s] clear evidence however that given the strength of the relationship between the children and [the father] and [the children’s] age and maturity, they would be able to maintain a meaningful relationship with [the father] if they were living in Gippsland and [the father] continued to live in [Suburb F].

3. Her Honour’s reference to “these circumstances” in the preamble to [109] is to the father’s evidence that if the mother and children moved to Gippsland, he would not move closer to them.  Paragraph [109] is thus addressed to the effect on the children’s relationship with the father if their time with him was reduced along the lines of what the parties agreed would be reasonably practicable. 

4. Ground 7 goes to the same point, albeit, her Honour’s findings at [133]:

   In his viva voce evidence, [the family reporter] confirmed that if orders were made in the terms proposed by [the mother] in the event of relocation, [the children] would be able to maintain a close and loving relationship with [the father] which would in part be compensated for by the additional time in the school holidays proposed by [the mother] as well as regular Skype and telephone communication, although as [the family reporter] observed, “it can be a bit hard to hug a computer”.

5. It is argued that her Honour’s findings are inconsistent with the evidence given by the family reporter in his report and overstate the effect of his oral testimony. 

6. The family reporter opined:

   68.Should [the father] decide to reject [the mother’s] compromise option that both live possibly in [Suburb P in outer Melbourne], [the mother] will then revert to her original proposal which is to be able to relocate with the children to [Gippsland].  Such a proposal entails the children moving from seeing [the father] six nights per fortnight to only two.  This is a high magnitude change.  The children and [the father] enjoy a strong and sound relationship which would be eroded and compromised if their time with him is reduced to such an extent.  This would entail a significant loss for them which would not be in their interest.

   (Family Report, 12 June 2015, pages 28-29)

7. He also said (at [71]):

   71.If [the father] had been only marginally involved in the lives of the children both prior to and following the separation and had his relationship with them been only a tenuous one, then one would have been prone to support [the mother’s] application to have the children in her primary care in Gippsland, particularly in light of the substantial role she has played in the past.  But this is not the case.  [The father] has been an active, interested and involved parent who has a strong relationship with the children. In addition, the arrangement in place since October 2014 has enabled him to play an even more significant role in their lives and as a result of this, the children’s relationship with him has developed and progressed further.  Implementing [the mother’s] proposal will entail disruption and loss for the children when they have had already deal [sic] with significant change and loss in their lives.  Imposing further change and further loss on them is not in their interest.  They need to be able to access both parents relatively easily as this is what they have become used to.  There is also a possibility that [the mother] could find employment in the Melbourne area.  In view of these considerations, [the mother’s] application for orders to relocate to Gippsland cannot be supported.  Instead, this Counsellor favours the continuation of the current regime.  That is, for the children to be with [the father] six and with [the mother] eight nights.  (The current arrangement is reiterated precisely because of [the mother’s] past extensive involvement in the lives of the children and the need to avoid reducing further her availability to them.)  Orders will be required for this.

   (Family Report, 12 June 2015, pages 30-31) 

8. It is, however, worth noting at this stage that of the available options, the family reporter said “There are no readily, ‘good’ outcomes available in this matter.” (Family Report, 12 June 2015, at [78]).  It also needs to be understood that the primary judge did not overlook this evidence and it was specifically mentioned at [90] and [132].  And, as the primary judge was only too aware, the Court needed to grapple with the fact that the father rejected the family reporter’s advice at [67]:

   67.Apart from the other elements referred to above, if shared care equal time regime is to work, the parents need to be close to each other for self-evident reasons.  Whilst [the father] is urged to re-consider his decision, perhaps based on sound legal input, his unwillingness to do so is understandable.  However, if doable, moving to Gippsland would enable a shared care regime, which is what he seeks to be implemented.

   (Family Report, 12 June 2015, page 28)

9. In any event, the family reporter was asked questions about the effect of a reduction in the children’s time with the father.  Counsel for the mother relies on the answers given by the family reporter and which we will shortly set out, as providing an appropriate evidentiary foundation for the impugned findings:

   [Counsel for the mother]: No.  I’m not putting that to you.  What I’m putting to you is that with modern technology at least there are other ways of parents staying directly in touch with children on a daily basis ‑ ‑ ‑?

   [Family reporter]:  I’m aware of that.  Yes.

   If they wish? I accept that.

   Yes.  Where they can see each other and inter-react on a free basis.  And I’m not suggesting it’s the same as hugging a ‑ ‑ ‑? No.

   ‑ ‑ ‑ a child.  But, extended holiday time, certainly you can hug children? Yes.

   And engage with them.  Weekends, long weekends, the same applies.  Correct? It’s a compensation.  But as ‑ ‑ ‑

   Yes?

   But if you’re looking at a significant reduction in the amount of time child or children spend with one parent, the concerns that I raise in the report is the impact this has on them and the loss that children can experience ‑ ‑ ‑

   Yes.  And ‑ ‑ ‑? Resulting from such a change, and that can’t be excluded.  That can’t be set aside.

   Thank you.  And if we were dealing with, such as a case in – I did last week, a relocation case – where you’re dealing with a 15 month old child who had not established a bond with the father, it’s a different case to this case.  Isn’t it? Of course it is.  Of course it is.

   The bond, the primary bond, has been established? Yes.

   The secondary bond has been established? Yes.

   And the position is, given the age of these two children, that those bonds with regular, frequent time can be maintained? I’m sure they can.

   And enhanced? Yes.

   (Transcript of proceedings, 17 July 2015, page 181, lines 3 – 36)

10. We agree with the submission made by counsel for the mother that the effect of this evidence is that the family reporter was certain (“I’m sure”) that the children’s relationships (“bond”) with the father could be maintained and enhanced.  The findings made by the primary judge at [93], [109] [133] and [187] were thus open to her.

11. Ground 8 challenges her Honour’s analysis of the family reporter’s evidence at [185]. Paragraph 185 of her Honour’s reasons is set out below:

    Whilst [the family reporter] expressed the view that ideally children should not be exposed to disruption, life is rarely ideal. Family life is often disrupted by the loss of a job, change of employment location, serious illness or parental separation. Children do manage these disruptions, especially if they are supported by two loving and caring parents.

12. Notwithstanding the strength of the family reporter’s opinion referred to at [68] of the report and set out above, counsel for the mother argued that the report writer’s oral evidence was entirely consistent with the findings made by the primary judge.  In particular:

    [Counsel for the father]:  Thank you.  Now, my learned friend also asked you about whether or not the children were appropriately equipped to be able to cope with changing schools?

    [Family reporter]: Yes.

    Yes.  What do you say about – irrespective of their ability to cope with changing schools, what do you say about the desirability of children being asked to cope with changing schools? I think the thrust of my report is that, unless it’s absolutely necessary, the disruption to children needs to be curtailed and kept to a minimum as much as possible.  I mean, kids can cope, right, but whether it’s desirable for them to do so is a different issue.  And if it can be avoided, I think it’s preferable. 

    (Transcript of proceedings, 17 July 2015, page 183, lines 19 – 28)

13. The following passages are also relevant:

    [Counsel for the mother]:  And as a single mother without the backup of the [father] at home, it’s, I suggest to you, a very significantly difficult situation?

    [Family reporter]:  I accept that.

    [Counsel for the mother]: Thank you.  The children are proceeding well, and you assessed the children as proceeding well.  And I suggest to you that if you have well-adjusted children – you accept these children are well-adjusted? Yes, I do.

    Yes.  That they would appropriately equipped – like many, many thousands of children do who change school each year, they would be equipped to be able to cope with such a change? Yes, they would be.

    Thank you.  And that would be enhanced by the fact that they have supporting, loving parents; correct? That’s correct.

    Yes? I think I say that in my report.

    (Transcript of proceedings, 17 July 2015, page 174, lines 14 – 28)

14. And also relevant is her Honour’s questions of the family report writer:

    HER HONOUR:   Suppose, what I understand you to be really saying, […], is that from the perspective of the children, the ideal out from this situation just goes on as it is.  It’s working well for them.  They’re happy where they are.  They’re – you know, that’s all the rest of it?

    [Family reporter]: That’s correct, if possible, I understand.  That’s the big question.

    If possible and that’s really – the decision from there is to – you know, is it viable for mum to be able to stay in Melbourne?  Exactly.

    If it’s not viable for mum to stay in Melbourne and that’s a big if, the father has through his evidence quite sensibly pointed out it’s not practicable for him to maintain his employment in Melbourne and live down there, etcetera, etcetera.  So it would be a situation where realistically the children would have to live primarily with one of their parents and spend ‑ ‑ ‑? That’s correct.  The situation will become untenable.  I say that in my report.

    On a practical level?  Yes.   Yes. 

    (Transcript of proceedings, 17 July 2015, page 187, lines 41 – 45, page 188, lines 1 – 11)

15. Based on this evidence, her Honour’s finding at [185] was available.  Error as alleged has not been established.

The treatment of s 65DAA and s 60CC (grounds 2, 3 and 4)

1. By these grounds, the father challenges her Honour’s application of s 65DAA and how the findings made under s 60CC influenced the application of s 65DAA. As to the first issue, the contention is that her Honour’s reasons do not demonstrate that she reached her conclusion by first rejecting equal time orders or the recommendation of the family reporter for substantial and significant time before favouring the proposal that she did. And that insofar as the primary judge gave consideration to the father’s proposal she impermissibly did so simultaneously with that of the mother.

2. The crux of the challenges raised by these three grounds is encapsulated by senior counsel for the father’s submission:

   16.The error in proceeding as her Honour did is that identified by this Court in French and Fetala [[2014] FamCAFC 57 at [45]-[46]]. The Full Court there said inter alia:

   “Thus, where s.65DAA applies, as it did here, the power to make parenting orders other that [sic] equal time orders or substantial and significant time orders is dependent upon a consideration of those types of orders before they are rejected in favour of an alternative order.”

   (Father’s Outline of Argument document filed 11 February 2016, page 6 at [16]) (Original emphasis, footnotes omitted)

3. The proposition is unremarkable but the point made in French & Fetala is, as the Full Court said at [47], that the magistrate:

   …did not, in terms, refer to s 65DAA although it is clear enough that [67] and [71] of the reasons make an indirect reference to it. Because, presumably, his Honour (wrongly) did not consider himself bound to apply the section, his Honour does not, as the section mandatorily requires, consider equal time and, substantial and significant time.

4. The error being that the magistrate failed to apply s 65DAA and failed to consider equal time or substantial and significant time at all before going on to make different parenting orders. The case before us is quite different and French & Fetala does not assist counsel for the father’s argument.

5. We have already dealt with her Honour’s categorisation of the orders in favour of the father as orders for “significant and substantial time”.  It follows that the focus of the challenge raised by ground 2 is the assertion that her Honour failed to consider equal time before she made orders for substantial and significant time.

6. There can be no doubt the primary judge was acutely aware that the father sought equal time.  The primary judge said so at [9], [77], [160] and [163]. 

7. It is at [159] and under the heading “Consideration of Equal Time or Substantial and Significant Time” that the primary judge commenced her discussion of whether equal time or substantial and significant time orders would be in the best interests of the children.  Having repeated the parties’ proposals, between [161] and [181] the primary judge analysed the competing proposals and relevantly the evidence which weighed in favour of equal time.  For example, the father’s active role as a parent (at [169]), his and the children’s shared interest in music (at [172]), the family reporter’s strong recommendation against relocation (at [175]) and that ideally the children should not be exposed to disruption (at [185]).   The primary judge then made findings which culminated in her conclusions that:

   ·the employment opportunities (as a medical professional in a school) available to the mother in Gippsland were not readily available in Melbourne (at [182]);

   ·the employment opportunities available to the mother in Melbourne (as a medical professional doing shift work) would not enable her to provide the level of care to the children that would be optimal (at [183]);

   ·the mother’s relatively modest property settlement (at [164]) would not enable her to afford to purchase a home for herself (and the children) in Melbourne (at [184]);

   ·although relocation would be disruptive and initially challenging for the children, they would adjust, particularly as they were supported by two loving and caring parents (at [185] and [186]); and

   ·the children’s close and loving relationship with the father would continue albeit not at the level he sought (at [187]).

8. Thus, at [188], her Honour resolved the question of whether equal time or substantial and significant time should be ordered in the following manner:

   In all these circumstances I am of the view that it is in the best interest of [the children] that they live with [the mother] and that she be permitted to relocate to [Town O]. In circumstances where [the mother] will remain [the children’s] primary carer, relocation will enable her to establish a secure home for [the children] with employment what [sic] will enable her to be available to care for them outside school hours.

9. In other words, it is at [188] that the primary judge resolved which of the ss 65DAA(1) or 65DAA(2) proposals was in the best interests of the children. Her Honour’s determination that it would be in the best interests of the children to live primarily with the mother implicitly involves rejection of the proposition that an order for equal time would be in the best interests of the children. It would be a triumph of form over substance if, merely because a judge indicated which suite of orders would be in the best interests of the children first, we were to conclude the section was misapplied. The focus of both ss 65DAA(1)(a) and (2)(a) is whether those styles of orders would be in the best interests of the children. Given this commonality of subject matter, where a judge in the position of the primary judge is astute to the obligation to consider s 65DAA and palpably does so, there will be no error merely because the answer to the question of what orders are in the best interests of the children is stated first. For, as the Full Court said in Starr & Duggan [2009] FamCAFC 115 at [38], it is logical (but not mandatory) to consider “best interests” first.

10. We emphasise that context is critical and, when the judgment under appeal here is read as a whole, it is abundantly clear that the primary judge “considered” and rejected the equal time proposal and separately “considered” the question of substantial and significant time.  This was not done in one sentence and plainly permeates the entire parenting reasons.   

11. Senior counsel for the father appeared to eschew the notion that if by reading the judgment as a whole it is established that the primary judge had considered the necessary provisions, a failure to apply the “legislative pathway” in the order set out in the Act need not be fatal. Counsel for the father relied on Heaton & Heaton [2012] FamCAFC 139 (“Heaton”) in which the Full Court said at [38]:

    It is not sufficient to argue that although his Honour’s findings do not follow that “pathway” when read as a whole, inferentially, it may be said that he made the determinations required of him in s 65DAA.

1. The particular error identified in Heaton was the manner in which the primary judge elevated a concession by the mother that, if in order to have the children’s primary care she had to reside in a particular place she would, to the status of it being a proposal to be considered as part of the equal time                  (s 65DAA(1)(a)) deliberations.  Equal time was thus ordered but without proper consideration given to the relocation proposal.  The point being that, even if the judgment was read as a whole, it was apparent that the judge failed to adequately evaluate the mother’s application to relocate and hence misapplied the section.  It follows that the comments in Heaton relate to a case in which examination of the judgment as a whole pointed to error, whereas in this case the reasons for judgment demonstrate that the necessary provisions were appropriately addressed. 

2. In essence, ground 3 raises the same issues raised by ground 2 and suffers the same fate as that ground. 

3. Nothing was said in support of ground 4 and we need say nothing more than we reject the proposition.   

4. Her Honour did not err in the manner alleged by these grounds.

Employment opportunities in Melbourne (ground 5)

1. This ground challenges her Honour’s finding that the employment opportunities available to the mother in Melbourne would probably “involve shift work, weekend work and a lack of predictability” (at [183]).  Senior counsel for the father argued that although it was open to her Honour to find the mother might more readily find employment in Melbourne that involved shift work, weekend work and with a lack of predictability than work that did not have these drawbacks, the evidence did not establish “that the employment available to her would involve such disadvantages” (Summary of Argument at [19]). 

2. Senior counsel for the father provided us with a schedule of affidavit and transcript references for the evidence concerning the mother’s applications for work in Melbourne and Gippsland.  Counsel for the mother provided additional references.  We have read the passages referred to.

3. From that evidence the following salient points emerge:

   ·prior to the mother commencing employment as a medical professional in a school in September 2014, she had a casual position as a medical professional which involved shift work;

   ·as a casual, there was no guarantee of ongoing work and on least four or five occasions the mother’s working hours were suspended when the patient was hospitalised;

   ·the mother sought job security and looked for a permanent part-time position;

   ·the mother agreed she could work full-time, but she sought part-time employment so that she could take the children to and from school, the children would not need to attend before and after school care and she would be available during school holidays;

   ·before the mother looked for a position in Gippsland, she looked for medical positions advertised in Melbourne all of which involved shift work; 

   ·funding for medical positions within schools is linked to socio-economic factors and the positions tend to be located in outer Melbourne and rural Victoria;

   ·of the 12 job advertisements put to the mother in cross-examination, all bar one required shift work or specialist qualifications the mother does not have; and

   ·the twelfth position required specialist knowledge (not necessarily qualifications) and for which the mother believed she would not be competitive.

4. Her Honour’s finding in relation to the type of work available to the mother in Melbourne is entirely consistent with the evidence about the work undertaken by her following the children’s births.  It is not to the point that the mother may well have been able to obtain full-time employment in Melbourne.  For, as the primary judge explained at [179], the mother sought employment which provided her and the children with financial security and which dovetailed with childcare responsibilities. 

5. That said, ground 5 fails to recognise that the availability of permanent part-time work in Gippsland was only one aspect of the mother’s rationale for relocation.  At [179] and [184], the primary judge accepted the mother’s evidence that she sought to live and work in an area where she could afford to buy a home for herself and the children and re-establish herself financially.  It was uncontroversial that the mother earnt $50,000 per annum (at [228]) and received approximately $293,000 from the proceeds of sale of the family home (at [235]).

6. It is the totality of the availability of permanent employment during school hours and in a location which would enable the mother to acquire a home which resulted in her Honour’s determination that the mother’s prospects in Gippsland were, in effect, superior to those available in Melbourne.  It follows, that even if her Honour’s findings as to probabilities contained in [183] are thinly based, or even not available, the error would be immaterial.  For an error to justify appellate intervention it must be material (De Winter and De Winter (1979) FLC 90-605).

7. Ground 5 is not established.

Conclusion and costs

1. The father has failed to establish a ground for appellate intervention and the appeal will be dismissed.

2. As is customary, we sought submissions on costs from the parties at the conclusion of the appeal hearing to avoid the cost and time taken providing submissions after determination of the appeal.  The mother argued that if the appeal failed the father should be ordered to pay her costs. 

3. The determination of costs on appeal is governed by the considerations contained within s 117 of the Act and, in particular, s 117(2A). Two matters are relevant and weigh in favour of the mother’s claim for costs. First, this is an appeal against a discretionary judgment and secondly the father has been wholly unsuccessful.

4. We are satisfied that an order that the father pay the mother’s costs is appropriate.

I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Ryan JJ) delivered on 28 July 2016.

Associate: 

Date:    28 July 2016