W & W

[2005] FamCA 446

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT MELBOURNE Appeal No. SA14 of 2004

File No. MLF6160 of 2001

IN THE MATTER OF: AW

Appellant/Husband

AND: TPW

Respondent/Wife

CORAM: HOLDEN, WARNICK, O’RYAN JJ

DATE OF HEARING: 24 JUNE 2004

DATE OF JUDGMENT: 6 JUNE 2005

JUDGMENT OF THE COURT

Appearances: Ms B of Counsel instructed by R & Co Solicitors, appeared for the appellant husband
Mr R of Counsel instructed by G & O’B Solicitors, appeared for the respondent wife

Name of Appeal	W
Appeal Number	SA 14 OF 2004
Date of Appeal Hearing	24 JUNE 2004
Date of Judgment	6 JUNE 2005
Coram	HOLDEN, WARNICK, O’RYAN JJ

Catchwords: APPEALS – From decision of Family Court Judge – Exercise of discretion – Orders made 12 December 2003 granting the wife’s application to be allowed to remove the children interstate – Consideration of s 68F(2) – Best interests of the child.
CHILDREN – Residence – Application to remove children interstate.

Appeal dismissed. Husband to pay the wife’s costs as agreed or failing agreement, as taxed.

A and T W have 3 children; N 8 years of age, J 7 years and S 5 years. The parties married in 1994 and until their separation in October 2002, lived in M, regional Victoria. At about the time of separation the wife formed and subsequently maintained a wish to relocate with the children to Perth in Western Australia. The husband certainly opposed the wife taking the children to live in Perth but also, at least initially, put himself forward as the parent with whom the children should primarily reside.
Proceedings in the Family Court involving the competing proposals of the parents were determined by orders of the Honourable Justice Wilczek made 10 December 2003. The effect of those orders was that the children live with the wife and she be permitted to relocate permanently with the children to Perth. Against these orders the husband has appealed. In his notice of appeal he did not seek an order that the children live with him, but that the wife be restrained from living with the children outside a radius of 150 kilometres from M and he sought particularised contact orders. However, during submissions, counsel for the husband acknowledged that if the appeal succeeded, a rehearing would be necessary.
The appeal was argued before us on 24 June 2004 and these reasons relate to the disposition of that appeal.
Our consideration of the 10 grounds of appeal argued is set out following a summary of the judgment of the trial Judge and reference to the applicable principles of law.

The judgment of the trial Judge (including background facts set out in the reasons)

After recording the essential issue that the wife wished to relocate from M to Perth and the husband wished for that not to occur, his Honour discussed background facts, both in the lives of the parties and relating to previous litigation.
His Honour noted the content of a report from a Dr L, psychologist, that indicated that the relationship of the parties began 15 years beforehand when the wife was 14 years of age. The husband was then 17 years. At that time, as a result of intervention by the husband, sexual abuse of the wife by a brother, which abuse had taken place over many years, ceased. The wife had told Dr L “I only stayed with him because he stopped what was happening with my brother. I felt I owed it to [A] because he stopped that”.
As to matters arising during the cohabitation of the parties, his Honour noted that, for the two older children of the parties there had been some health problems, as well as difficulties with learning and development, and health difficulties for the third child as well.
In about 1993, the wife had suffered an injury to her knee, at work. She had since had chronic pain.
In December 2002, shortly after the separation and her move to Perth with the children, the wife commenced a relationship with a Mr R, whom she had met through the internet and had met in person, in Melbourne in April 2002.
As to the litigation background, his Honour recorded that the husband had filed an application in November 2002 seeking residence of the 3 children and a recovery order to the effect that the children be returned to their home from Western Australia. On 10 December 2002 the parties obtained orders, some by consent and some not, before a Federal Magistrate. Among other things, those orders provided that until further order the children reside with the wife, who by that time had returned to Victoria on the advice of her solicitor.
His Honour then turned to consider matters under a heading “Proposals (preliminary observations)”. In that discussion, his Honour referred to matters that he had raised at the outset of the proceedings before him, to the effect that while the wife’s proposals for future arrangements for the children were set out, no proposals on behalf of the husband were before the court.
His Honour, having earlier recognised that the affidavits of evidence in chief of the parties had been filed some months before the hearing, also referred to certain other matters that he brought to the attention of counsel and in respect of which there seemed to be an absence of evidence. His Honour also recorded that, at the end of the first day of hearing during most of which the husband was being cross-examined, counsel for the wife informed the court that the wife’s proposals had significantly changed; in particular she proposed that if permitted to relocate, she and the children would move into Mr R’s residence forthwith, rather than into independent accommodation. His Honour then discussed some of the concerns arising from the late change and the explanations for it given in evidence by the wife and Mr R. His Honour then adverted to a submission, which within the context of the wife’s proposed move to Western Australia, made mention of the phrase “bona-fide”, and his Honour embarked upon a consideration of statements in AMS & AIF (1999) 199 CLR 160, D & SV (2003) FLC 93-137 and other cases.
The trial Judge then turned to a discussion of the evidence of a Dr H, a psychiatrist who had been treating the wife for Complex Regional Pain Syndrome and associated depression. In a report dated 15 September 1998, Dr H recorded that the wife had suffered a moderately depressive illness as a result of the physical injuries sustained and the chronic pain and intercurrent psycho-social stresses.
His next report was 1 February 2000 and recorded that the wife was then in a worsened mental state, at times passively suicidal and at times actively suicidal.
In a report of November 2002, Dr H said that the wife’s depression and pain were then quite well controlled and there was no psychiatric impediment which should prevent her from having custody of her children.
In a further report some months later, in April 2003, Dr H referred to ongoing treatment for some chronic severe pain and depression and stated that though the wife had responded to treatment, she continued to suffer from chronic depression.
In his final report, some months later again, it was stated that the wife continued to suffer from a chronic, moderate to at times severe pain, which had proved resistant to all forms of treatment and that, over the preceding 6 months, the wife had developed worsened depression, mainly related to her inability to resolve Family Court matters. Her depression had however responded to treatment and was likely to improve substantially after resolution of matters before the court.
His Honour then further considered the affidavit of Dr L, and referred to this evidence as “…potentially of great assistance to the Court, he being the only independent and expert person to have seen the children and to have seen the parties interacting with the children.…”. In particular, his Honour noted Dr L’s observation of the children and of the children with each of their parents. He recorded that Dr L gave examples of negative statements made by the father in the presence of the children and the father’s comment that he knew the mother said negative things about him and he was not going to tell the children to lie. Dr L thought that the husband’s motives were primarily punitive in their genesis.
Dr L said there was no doubt there was a strong attachment between the children and each of their parents. The relationship between the mother and the children was consistent with her self-described role as the central care-giver.
The husband’s capacity to understand the children’s emotional needs was fundamental rather than sophisticated and undermined to a troubling degree by his obsession with the impact upon him of events. Dr L said that if the children were to reside with the husband, he would have doubts about his capacity to empathise with them and manage their emotional reactions to the loss of their mother.
Dr L recommended that the children live with the mother, wherever she chose.
The trial Judge then turned to a consideration of “THE PROPOSALS”. Noting that he had already said something about the issue of proposals, mainly about the absence of any on behalf of the husband at the commencement of the hearing, his Honour noted that toward the end of the first day of hearing, he was provided with some hand-written minutes on behalf of the husband. Therein, the husband proposed that if the wife remained living in the area surrounding M, the children reside with the wife with an appropriate contact regime, but if the wife wanted to relocate to Perth, she be free to do so, but the children then reside with the husband and the wife have contact at her expense, in accordance with some particular proposals.
His Honour then reiterated the wife’s proposals, and said:
“121. What would not have been clear from the material, but which [Mr D] went to great pains to make absolutely clear from the commencement of the hearing, was the fact that it was very much part of the wife’s case that in the event the court did not permit her to relocate to Western Australia with the children, then she proposed that she would sacrifice her own prospects and her chance of future happiness and stay in Victoria with the children and care for the children to the best of her ability in what she expected to be extremely trying circumstances.
122. Indeed, prior to [Dr H] being called (also prior to the oral evidence of [Dr L]) it was made clear (certainly, clearer than the documents might have suggested) that it was very much part of the wife’s case that her future mental health and happiness very much depended upon being permitted to relocate and to be given a chance of making a new life for herself.
123. This concept of the wife making it clear that she would refuse to abandon her children if prevented from relocating, is one which has had the scrutiny of the High Court.”
His Honour then turned to a further consideration of the law under the heading “REFUSAL TO ABANDON CHILDREN – MORE LAW”. After quoting further paragraphs from the judgment of Kirby J in AMS & AIF (supra), his Honour said:
“125. As is self-evident from the above quotations, Justice Kirby of the High Court strongly took the view that treating a wife’s refusal to abandon her children, and the expression of a willingness to stay near the husband and not relocate as an ‘alternative proposal’ would, in effect, require the parent to show good and compelling reasons to relocate, which is not a requirement.”
His Honour then turned to a consideration of the oral evidence. He referred to additional evidence in chief by the husband and his counsel’s attempt to elicit detail of the husband’s proposals if the children lived with him. Of that, his Honour said:
“132. The husband appeared to be less alive to the importance of telling the Court, in clear and concise terms, what plans he had for looking after the children, if he gained residence of them, and what plans he had in relation to employment in the future, and how he intended to manage both looking after the children and working if, indeed, that was part of his proposals.
133. It became very quickly obvious to me that these were also matters that had not been thought about by the husband.…”
His Honour goes on to record that ultimately the husband admitted that he had not done any planning, including that he had not approached schools or even had discussions of substance with his own mother to ascertain what role she might be prepared to play in the event that the husband gained residence. His Honour said:
“139. This line of cross-examination came to a crescendo with the husband admitting that if the wife was prepared to stay in Victoria he would not at all be interested in pursuing any residence application. [Mr D] asked the husband whether he understood that it was the wife’s case that if the children cannot go to W.A. that then she would not go either. The husband said that he understood that and added that “my residence case is to keep the children in Victoria”.”
Continuing his review of oral evidence, his Honour came to that of the paternal grandmother. He said that he had no doubt that the paternal grandmother had been an important figure in the household of the husband and wife including caring for the children to a degree much more than grandmother’s are generally called upon to do.
As to the oral evidence of Dr H, the trial Judge recorded that Dr H said that the wife’s current relationship was one very helpful and supportive for the wife. He also considered that the effect on the wife if she was not able to relocate to Western Australia would be “devastating”. Her depression would markedly worsen and her day to day functioning be significantly impaired. This was a more likely than not scenario and recovery would be prolonged.
Dr L said that he assessed the children’s attachment to their mother as being stronger than their attachment to the father. She had the most intuitive skills with regard to parenting. He considered that the contact possible if the children were in Western Australia constituted a more difficult situation and in general terms was undesirable but that a move to Western Australia also offered new opportunities for the husband to make his relationship with the children “blossom” into a different nature and quality.
Dr L did not consider the wife to be suffering from depression in the clinical sense. He had formed a very positive view of Mr R. He also said it would be devastating for the wife if she was not permitted to relocate to Western Australia and that that would cause great difficulties for her wellbeing.
On balance, Dr L agreed with the proposition that it would be better for the children to be with their mother, though with less contact with the father, than to be with a severely depressed mother in Victoria.
His Honour then moved to “SUMMARY, COMMENTS, FINDINGS AND ORDERS”. He revisited passages from cases to which he had already made some reference and quoted a further passage from D & SV (supra) as follows:
“There is no need for the mother to explain her reasons to move. She has the right to do so. It is not a question of asking whether the advantages of the move outweigh its disadvantages. The question rather is whether in all the circumstances it is appropriate to restrain the primary care giver from choosing the children’s place of residence.”
His Honour then went on to say:
“223.As will be seen shortly, if it is not reasonably self-evident from what I have already said, on balance I do not consider it to be appropriate, in all the circumstances, to restrain the primary caregiver, the wife, from choosing the children’s place of residence, having regard to the totality of the evidence and having regard to all the matters to which I am obliged to have regard.”
His Honour then repeated the guidelines offered by the Full Court in A & A Relocation Approach (2000) FLC 93-035 that the court should evaluate each of the proposals advanced by the parties, and noted that he had already made considerable reference to that topic. He considered the inferences that might be drawn from the last minute change in proposals by the wife but indicated that he felt “much more comfortable about the wife’s situation” having heard all the evidence. He referred again to the position of the husband in respect of his claim for residence categorising it as “a barely disguised tactical manoeuvre”.
His Honour then referred to specific paragraphs of section 68F(2) of the Family Law Act. He considered the wishes of the children, but thought that the children were “too young to understand the dynamics of a complicated situation nor would they have a comprehension of matters such as the vast distances between Victoria and Western Australia and other relevant practical considerations”.
As to paragraph (b) of section 68F(2), his Honour repeated evidence which he accepted, mainly from Dr L and said that those matters favoured the wife’s case substantially.
As to the likely effect of any changes in the children’s circumstances his Honour said:
“229. …The first [possibility] would be to refuse the wife’s relocation application in which case, I feel certain she would honour her pledge that she would not abandon the children and she would stay in Victoria. That would have all of the ramifications as anticipated by both [Dr H], (sic) whose evidence I also accept, as also supported by [Dr L], namely that the effect on the wife would be “devastating”. Self-evidently that would severely impact on her ability as the resident parent.…
230. I cannot contemplate, on the evidence as a whole, that, realistically, the husband should be the resident parent…and that leaves the third alternative of permitting the wife to relocate.…”
His Honour then referred to the major effect which would follow relocation as being the change in the contact arrangements but also he recognised that there would be the daily presence of Mr R in the lives of the children. He remarked upon the evidence of the contact that had already taken place between the children and Mr R and his “most favourable impressions” of Mr R. He said:
“231. …Furthermore, the children might find that they have a much happier and contended (sic) mother caring for them as compared to the situation in the past and recent times. There is also the question of the maternal (sic) grandmother which I will deal with separately shortly.”
In following paragraphs, his Honour referred to section 68F(2)(d), relating to practical difficulties and expenses of contact and to the capacity of each of the parents to provide for the needs of the children, including the emotional and intellectual needs, the parents’ capacities and attitude to the children and parental responsibilities and to other provisions of section 68F(2) which he considered he need not take into account.
Finally, his Honour referred again to the paternal grandmother and in particular the role she might play in looking after the children during prolonged contact periods if the father was unavailable. Having done that, his Honour stated that he proposed to make orders consistent with those sought by the wife.

Principles applicable to the appeal

This is an appeal from an exercise of discretion. The circumstances in which the Full Court can interfere with a discretionary judgment have been often discussed (see House v. The King (1936) 55 CLR 499 at 504-505; Gronow & Gronow (1979) 144 CLR 513 at 519-520 and Norbis v. Norbis (1986) 161 CLR 513 at 540. In House v. The King (supra) Dickson, Evatt and McTiernan JJ said:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some other material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his orders, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

Grounds of appeal

The appellant sought, (and there being no opposition, was given leave) to add 3 grounds of appeal to the 8 grounds set out in the Amended Notice of Appeal filed 11 March 2004. However, counsel for the appellant later abandoned ground 4.
The summary of argument grouped the grounds of appeal under headings, “Errors of Fact” and “Errors of Law”, but having regard to the content of the grounds and both written and oral submissions, we do not consider that a helpful arrangement.
We discuss the grounds in the order and the groupings which seems most logical.

Grounds 2 and 3

Ground 2

“The learned trial Judge failed to consider the likely effect of any changes in the children’s circumstance including inter alia the likely effect on the children of separation from the paternal grandmother and the availability of special services for two of the children in Perth”.

Ground 3

“The learned trial Judge failed to consider the practical difficulties and expense facing the husband in maintaining personal relations and contact on a regular basis.”

In oral submissions, counsel for the appellant described the principle ground of appeal as being the failure of the trial Judge to adequately address factors made relevant by section 68F(2) of the Family Law Act and she said her submissions in respect of these two grounds exemplified particular matters relevant under that sub-section, and in respect of which there had been a failure of adequate consideration.
Pressed to identify any issue at trial about the availability of special services for any of the children in the area in Victoria in which the husband sought that the wife and children live, as against Perth, counsel could only nominate the availability of “literacy programs” as the area of concern. However, in any event she conceded that there had been no issue about this agitated at the hearing.
Counsel also made some reference to the wife’s late change of plans as to where she would live, as bearing upon the availability of services, but was unable to point to any evidence that would establish this proposition.
The short but full answer to this part of ground 1 is that it was not an issue at the trial.
As to his Honour’s consideration of the effect on the children of separation from the paternal grandmother, as earlier indicated in the summary of his reasons, his Honour referred to the significance of the grandmother in the lives of the children at at least two points in the course of his reasons. In the last sentence of paragraph 231 (earlier quoted) the trial Judge said he would shortly consider the question of the maternal (clearly meaning paternal) grandmother. Then, in paragraph 237 of his reasons, his Honour said:
“237. …on the topic of the effect on the children of any new and changed arrangements (to which I have already earlier referred but without reference to the paternal grandmother), clearly as will be the case with the husband, who no doubt would have ensured that during his periods of alternate weekend contact, the children would also get to see their grandmother, will now also take steps that during the new contact arrangements, upon the wife relocating, the children will also get to see their grandmother during those school holiday periods.…”
His Honour then went on to discuss the possibility that the husband would not always be available to be in substantial attendance during holiday contact and said if that was the case, his Honour did not see why the children could not or should not be looked after by the grandmother.
Clearly, the trial Judge considered the relationship between the children and the paternal grandmother in addressing the effect of any change in arrangements.
As to the trial Judge’s consideration of the practical difficulties and expense facing the husband in maintaining contact, his Honour recognised that Mr R had offered to meet half of the airfare to fulfil proposals for contact between the children and the husband. Though counsel for the appellant endeavoured to raise questions about the reliability of that position, she conceded no issue had been made in that regard at trial.
Counsel then turned to address the position of the husband, about which counsel suggested the evidence at trial indicated he had or was about to lose his employment. The transcript discloses that during the address of counsel for the husband at trial his Honour said:
“Subject to what you might submit to me, a factor or something I might have missed, but at the moment I am minded that I would make a finding that it is highly likely this man has always worked and always worked hard, and is likely to continue doing so, and if he’s got a hiccup with his present job, well, that’s a hiccup. Now, are you suggesting that I would be incorrect in such a finding?
MS BRENTON: No, your Honour, you wouldn’t have an argument from me as far as that goes.”
Moreover, counsel on appeal conceded that there was otherwise no argument about the husband’s capacity to meet half of the airfares for contact.
There is therefore no merit in these grounds of appeal.

Ground 5

“The learned trial Judge erred in placing inappropriate weight on the wife’s freedom of movement and failed to consider circumstances in which it should defer to the best interests of the children and their need to have a continuing relationship with the non-resident parent.”

In her written submissions, counsel referred to passages in his Honour’s judgment in which, from a consideration of the authorities, he deduced that the wife had no reason to explain her reasons to move and “the question is rather whether in all the circumstances it is appropriate to restrain the primary care-giver from choosing the child’s place of residence”. Counsel argued that against that proposition, there had also to be considered what was said by his Honour Kirby J in AMS & AIF (supra) at paragraph 191, namely:
“Parents enjoy as much freedom as is compatible with the interests of the child.”
This, she said, the trial Judge had failed to do.
In her oral submissions in support of this proposition, counsel for the appellant focussed on the evidence about the relationship between the husband and the children in particular as assessed by Dr L. Counsel pointed out that when Dr L did his first report there had been no contact regime in place, since the wife had moved to Perth with the children. Nor, she argued, had there been much contact by the time of Dr L’s second report in February 2003. The thrust of the submission therefore, was that by the time of the hearing in November 2003 Dr L’s observations were outdated and he was not put in a position to make his opinions more current.
However, any strength that there might have been in this ground of appeal ebbs away when one appreciates that Dr L’s assessment was that the children had a strong attachment to each of the parents and more particularly, that when asked what he considered the effect on the children would be as compared to the regime that presently applied, he responded, as described by the trial Judge at paragraph 205:
“205. I recall [Dr L] taking a little while to absorb the question before giving his carefully considered answer. [Dr L] said that there is ‘no getting away from it’, that the wife moving to Western Australia, with the children still comparatively young, the ‘gaps between contact’ (ie the 8 or 9 weeks of school term between school holiday to school holiday) is a ‘more difficult’ situation and ‘in general terms undesirable’, and therefore, in that sense, ‘the husband’s reluctance (in permitting the relocation) is well founded’.”
True it is that (as previously referred to) other opinions of Dr L were supportive of the wife’s proposal, but considered overall, there is nothing in the evidence of Dr L, whether in the timing of his contact with the parties or otherwise, to indicate that the trial Judge was not entitled to place the reliance upon Dr L’s evidence that he did.
It follows that where there was acceptable (and accepted) evidence leading to the conclusion that the best interests of the children were that they live with the wife whether in Victoria (a position conceded by the husband) or in Western Australia, it has not been shown that the trial Judge placed inappropriate weight on the wife’s freedom of movement.
There is no merit in this ground.

Ground 7

“The learned trial Judge erred in placing too much reliance on the opinion of [Dr L].”

The argument in support of this ground was much an extension of the criticism of Dr L’s evidence discussed in respect of ground 5.
The submission that Dr L’s evidence was outdated was expanded upon. It was pointed out that though Dr L had seen all court documents filed prior to 17 February 2003, he had not seen the order 30 affidavit materials of the parties.
It is clear however that his Honour was conscious of the possibility of at least some limitations on Dr L’s investigations arising from the timing of his interviews. His Honour said:
“198. At the commencement of [Dr L’s] evidence I caused some questions to be addressed to him, on the theme of whether his reports might have been a little ‘harsh’ on the husband.…
199. I am satisfied that [Dr L] took into account, when assessing the parties, that at that time the husband would have been in a state of shock having regard to what [Dr L] described as the ‘unilateral separation’;”
The evidence also discloses that Dr L had been brought up to date in one sense in that he had spent a short time on the day preceding his oral evidence with Mr R.
The trial Judge had to work with the evidence that was placed before him. This ground goes solely to the weight which the trial Judge attached to the evidence of Dr L. It is clear from what has been already said that his Honour was conscious of some of the limitations that might apply to Dr L’s evidence. The question of Dr L not having seen the order 30 affidavits was squarely raised. Nothing put to us persuades us that in placing the reliance he did on Dr L’s evidence, the trial Judge was not appropriately exercising his discretion.
It was also asserted in written submissions relating to this ground, (and in respect of ground 9) that the trial Judge accepted without question and regarded as evidence from Dr L, matters said to have been reported to Dr L by the parties. We were not taken to any passages of such material and it was not demonstrated that his Honour relied upon any such material to make findings about contested issues.
We see no merit in this ground.

Ground 9

“The learned trial Judge erred in treating as evidence and making findings of fact upon matters said to have been related to [Dr L] and [Dr H] by the parties.”

True it is that the trial Judge set out passages of the reports of both doctors at length, including passages where each of the parties recounted various matters to the doctors. However, as stated above, counsel has not demonstrated that on any fact about which there was issue, his Honour relied upon a statement to either doctor to make a finding, in circumstances where that was the only evidence bearing upon the fact in issue.
We were not addressed on whether in any event, because of the terms of section 60 of the Evidence Act 1995 (Cth), the hearsay rule did not apply to the contents of the reports admitted into evidence.
Insofar as either doctor made a recommendation about the ultimate issues before the court, since the passage of the Evidence Act 1995 (Cth) there is no impediment to an expert witness “swearing the issue” (section 80).
We see no merit in this ground.

Ground 8

“The learned trial Judge erred in placing the onus on the husband to demonstrate why the wife should not have the right to choose the child’s place of residence.”

In her oral submissions, counsel for the husband did not suggest that the assertion contained in this ground was based on any express statement about an onus by the trial Judge, but rather, as put in her written submissions, the argument was that “…it might be thought that the onus was on the husband to demonstrate why the relocation should not proceed.”
As to this inferential placement of onus on the husband, the only passage particularly referred to by counsel was that (earlier quoted) at paragraph 223 of his Honour’s reasons, where he said:
“As will be seen shortly, if it is not reasonably self-evident from what I have already said, on balance I do not consider it to be appropriate, in all the circumstances, to restrain the primary care-giver, the wife, from choosing the children’s place of residence, having regard to the totality of the evidence and having regard to all the matters to which I am obliged to have regard.”
We do not see that that passage, referring as it does to “on balance” and “the totality of the evidence”, implies an onus on the husband.
Counsel submitted that that passage was the only one indicating what weight his Honour had given to relevant factors. That also is not a valid submission. The paragraph comes towards the end of a long judgment in which his Honour has considered and accepted expert evidence as to the nature of the relationship between each of the parties and the children, the parenting capacity of each of the parties, and the likely effect on the wife if she is required to reside in Victoria. Following the paragraph in question, as his Honour in that paragraph indicated he would, he also referred to various of the factors made relevant under section 68F(2) of the Act, including the wishes of the children and other matters already considered by him.
We see no merit in this ground.

Ground 11

“The learned trial Judge erred in law in accepting into evidence, the opinion of [Dr H] that the effect on the wife would be ‘devastating’ if she were not permitted to relocate permanently. In failing to grant the husband’s request for an adjournment he failed to apply the principles of natural justice.”

Though on the face of the first sentence of this ground, it is directed to asserted disadvantage to the husband’s case caused by the trial Judge’s acceptance into evidence of the opinion of Dr H about the effect on the wife if not permitted to relocate, the evidence in question was led without objection. In fact, submissions establish that the real complaint is in the second sentence, that an adjournment was refused.
There is no merit in the ground. Though in the summary of argument it is asserted that the trial Judge failed to grant an adjournment upon request by counsel for the husband, in fact, as the transcript clearly shows, the consideration of the application for adjournment made, was simply deferred until after the evidence had been received.
Despite opportunity then given, the application was not renewed on behalf of the husband.

Grounds 6 and 10

“6. The learned trial Judge erred in finding that the wife’s evidence was that in the event that she was not permitted to relocate she would sacrifice her own prospects and not abandon her children.”
“10. The learned trial Judge erred in finding that the wife’s evidence is that she would be ‘devastated’ if she were not permitted to relocate permanently to Perth.”

The narrow point upon which any merit in these grounds ultimately turns, is whether what his Honour found was not as to evidence of the wife herself, but rather what constituted “the wife’s case”. That the findings were as to “the wife’s case” is apparent from the following paragraphs of his Honour’s reasons:
“121.       What would not have been clear from the material, but which [Mr D] went to great pains to make absolutely clear from the commencement of the hearing, was the fact that it was very much part of the wife’s case that in the event the court did not permit her to relocate to Western Australia with the children, then she proposed that she would sacrifice her own prospects and her chance of future happiness and stay in Victoria with the children and care for the children to the best of her ability in what she expected to be extremely trying circumstances.
“122.       Indeed, prior to [Dr H] being called (also prior to the oral evidence of [Dr L]) it was made clear (certainly, clearer than the documents might have suggested) that it was very much part of the wife’s case that her future mental health and happiness very much depended upon being permitted to relocate and to be given a chance of making a new life for herself.”
123.     This concept of the wife making it clear that she would refuse to abandon her children if prevented from relocating, is one which has had the scrutiny of the High Court.
124.     …further quotations from Kirby J, and they are specifically on this concept of a wife’s refusal ‘to abandon’ her children and a wife’s expression of a willingness (if necessary) to stay.…”
That the “wife’s case” was to the effects stated in the passages quoted was not in contest before us. Thus the grounds are misconceived.

Ground 1

“The learned trial Judge erred in his approach by failing to evaluate the competing proposals of the appellant and respondent having regard to the welfare of the children and the principles in section 60B and 68 F(2) of the Family Law Act.”

In her written summary, counsel for the husband stated that this ground also encompassed grounds 2 and 3, which as already seen, alleged particular errors of law with regard to consideration of the factors in section 68F(2). To the extent that the ground does encompass those other grounds, they have already been considered and found to be without merit.
In oral submissions counsel for the wife did not add to the submissions concerning ground 1 in the summary of argument.
Though it is asserted in the written submissions that the trial Judge found great difficulty in identifying the proposals before the court and was unduly critical of the husband’s proposals, it is of course conceded that during the trial the husband altered his position to acknowledge that, if the wife were to remain in M, he would not pursue the question of residence of the children with him.
It was further stated in the submissions that the court is able to identify its own proposals and is not bound by the proposals of the parties, but in view of the above concession, we are not sure of the import of this statement.
We see no merit in ground 1.

Conclusion

It follows from what we have said of the applicable principles and the individual grounds that the appeal fails and must be dismissed.

Costs

The wife sought that the husband pay her costs in the event that the appeal failed. We are informed without objection that she is not in receipt of legal aid. It was submitted that the appeal was a costly one for the respondent, having regard to the size of the appeal book and the grounds of appeal. We are of the view that the unsuccessful appellant husband should pay the costs of the respondent wife.

ORDERS

That the appeal be dismissed.
That the husband pay the wife’s costs of and incidental to the appeal as agreed and in default of agreement, as taxed.

I certify that the 90 preceding
Paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd:

Associate

[2005] FamCA 446

6 JUNE 2005

Key Legal Topics

Areas of Law

Civil Procedure

Administrative Law

Legal Concepts

Appeal

Judicial Review

Jurisdiction

Procedural Fairness

Standing