Wagstaff & Wagstaff
[2022] FedCFamC1A 119
•2 August 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Wagstaff & Wagstaff [2022] FedCFamC1A 119
Appeal from: Wagstaff & Wagstaff [2021] FedCFamC2F 507 Appeal number: NAA 4 of 2022 File number: MLC 8730 of 2016 Judgment of: ALDRIDGE, WILSON & JARRETT JJ Date of judgment: 2 August 2022 Catchwords: FAMILY LAW – APPEAL – RELOCATION – Appeal from orders requiring the mother to relocate to a location within 20 kilometres of the children’s school – Whether the primary judge erred at law – Whether the primary judge failed to consider the advantages and disadvantages of the parties’ proposals – Challenges to weight given to mother’s right to freedom of movement – Children’s views – Adequacy of reasons – No error established – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 114(3) Cases cited: Adamson & Adamson (2014) FLC 93-62, [2014] FamCAFC 232
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8
Cantoni & Cantoni [2022] FedCFamC1A 11
Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64
CMFEU v Australian Building and Construction Commissioner (2020) 282 FCR 1; [2020] FCAFC 192
Commonwealth v Baume (1905) 2 CLR 405; [1905] HCA 11
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (Cth) (1981) 147 CLR 297; [1981] HCA 26
Findlay & Boniface [2000] FamCA 676
Franklyn & Franklyn [2019] FamCAFC 256
French & Fetala [2014] FamCAFC 57
Godfrey & Saunders [2007] FamCA 102
Griffiths & Griffiths [2022] FedCFamC1F 219Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Heaton v Heaton (2012) 48 Fam LR 349; [2012] FamCAFC 139
Heinrich & Daniels [2009] FamCA 103Hill & Zuda Pty Ltd [2022] HCA 21
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hunter Transport Accident Commission [2005] VSCA 1
In the Marriage of K & Z (1997) 22 Fam LR 382 Jackson v Sterling Industries Ltd (1987) 162 CLR 612; [1987] HCA 23
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; [1985] HCA 48
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42
McCall v Clark (2009) 41 Fam LR 483; [2009] FamCAFC 92
Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Northern Territory v Collins (2008) 235 CLR 619; [2008] HCA 49
Oswald & Karrington (2016) 55 Fam LR 344; [2016] FamCAFC 152
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28Sampson v Hartnett (No 10) (2007) 38 Fam LR 315, (2007) FLC 93-350
SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42
Smethurst v Commissioner of Police (2020) 94 ALJR 502; [2020] HCA 14
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Taylor v Barker (2007) 37 Fam LR 461; [2007] FamCA 1236
Taylor v Public Service Board (NSW) (1976) 137 CLR 208; [1976] HCA 36
Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
U v U (2002) 211 CLR 238; [2002] HCA 36
Ulster & Viney [2016] FamCAFC 133
Zahawi & Rayne [2016] FamCAFC 90Number of paragraphs: 135 Date of hearing: 30 May 2022 Place: Melbourne Counsel for the Appellant: Mr R Smith Solicitor for the Appellant: Pearsons Lawyers Pty Ltd The Respondent: Litigant in person Solicitor for the Independent Children’s Lawyer: Did not participate ORDERS
NAA 4 of 2022
MLC 8730 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS WAGSTAFF
Appellant
AND: MR WAGSTAFF
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, WILSON & JARETT JJ
DATE OF ORDER:
2 AUGUST 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wagstaff & Wagstaff has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE & JARRETT JJ:
We have read the reasons of Wilson J and do not need to repeat the background of this appeal which his Honour has set out in detail.
Did the primary judge err in failing to consider s 65DAA(2) of the Family Law Act 1975 (Cth)? (Ground 1)
Section 65DAA(2) requires the Court to consider whether the child spending significant and substantial time with each parent would be in the best interests of the child and whether such time is reasonably practicable. If so, the Court is to “consider making” an order which provides for the child to spend such time with each parent.
In the present case, it is not in doubt that each parent proposed orders, albeit quite different, which would see the children spending substantial and significant time with each parent. Quite simply, that was not an issue which required resolution.
In SCVG & KLD (2014) FLC 93-582, in a passage which has been referred to frequently, the Full Court pointed out that the relevant consideration can be readily inferred “where the transcript and reasons disclose a common view about the legal and factual matters in issue” (at [81]). This is because:
78.… it is useful to recall that the necessary content of reasons for judgment depends upon the context in which they are given. Thus, factual and legal concessions, if accepted by the court, may conclusively deal with factors that legislation requires be considered and, as a consequence of which, the judgment needs to address only the contentious factual and legal matters which remain outstanding.
Here, as is obvious from [153]–[155] and the subsequent discussion at [162]–[167], [185] and [188]–[193], her Honour was well aware of the matters raised by s 65DAA(2). In the circumstances, no more was necessary. The requisite consideration was clearly undertaken.
Did the primary judge err by making an order requiring the mother to live within 20 kilometres of Town A Primary School? (Ground 2)
For reasons that are not readily apparent, this case was not run as a case as to the school the children should attend, but instead proceeded on whether, on the parties’ primary proposals, the child should live in Town D with the mother, or in Town A with the father. Thus, although those places are but one hour driving time apart, the matter proceeded as a relocation case.
Her Honour decided that living in the Town A area was in the children’s best interests but that an equal time arrangement was not.
The mother’s primary proposal was therefore rejected as was the father’s primary proposal. The mother’s alternative proposal, which was that she would return to within 10 to 15 kilometres of Town A, then came into play.
A matter of particular significance is that, at the hearing, both parents took the view that the travel between Town D and Town A was untenable for the children. That was so whether the children were living in Town D and attending school, activities and spending time with the father, or living in Town A and spending substantial and significant time with the mother in Town D.
These matters led to the primary judge making the following notations:
A.The parties agree that the children ought not be required to continue to travel between Town D and Town A to attend school.
B.The mother indicated that if the court did not permit her to enrol the children in a school in Town D that she would relocate to a location proximate to the children’s school. She indicated that in these circumstances it was her intention to move to within 10-15 km of the children’s primary school.
C. Neither party addressed the court on the timing of the mother’s move from Town D to a location proximate to the children’s school. In those circumstances, order 4 provides the mother with time to relocate to within 20 km of the children’s primary school by the commencement of term 2, 2022.
It is necessary to say something about the language used in the notations and in [4] which stated:
4.The issue before the court therefore is whether the mother ought to be permitted to remain living in the Town D area, with consequential changes required to the school the children attend and the time the children will get to spend with their father. Or, whether the mother is required to move back to the Town A area with the consequence that the children can remain at their current school and continue to spend time with the father under the current arrangements.
Such language has been the subject of criticism. In AMS v AIF (1999) 199 CLR 160 (“AMS v AIF ”), Kirby J said:
188.I do not consider that the references in the reasons of the primary judge and in those of the Full Court to the provision of “permission” to the mother to return to the Northern Territory with her son indicated an erroneous understanding of the decision which had actually to be made. As I have shown, this was the very way in which the parties framed their respective affidavits and presented their arguments. It was unsurprising, therefore, that the judges should also slip into the same language. Notwithstanding this, it would be preferable that such references to “permission” to relocate be avoided. The word has a tendency to distract attention from the jurisdiction actually being exercised. In this case, it concerned the custody and guardianship of the child, residence arrangements and access and contact orders, all of which fell to be decided having regard to the welfare of the child as the paramount consideration. To treat the determination of the residence of the child, and the connected issue of custody, as dependent upon the giving or withholding of “permission” to a parent to relocate his or her residence may divert attention from the child’s welfare, to the competing needs and demands of the parents in conflict.
(Footnotes omitted)
To a similar effect, Hayne J said:
217.Of course, the decision of a parent who is about to move and who seeks custody may well be affected (often it will be determined) by whether he or she will have custody of the child if that proposed move is carried out. And it is, then, not surprising that counsel for the mother told the primary judge (in effect) that if the mother’s having custody of the child depended upon her staying in Perth then she would not move to Darwin. But that does not mean that the question for the Court is whether the mother is to be permitted to move to Darwin. And it does not mean that the question is whether the mother has shown a “good” or a “compelling” reason for wanting to move.
218.To translate the question into this form - has the mother shown a good, or good enough, reason for wanting to move - focuses attention upon the reasons and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child - to be in the custody of the father (in Perth) or to be in the custody of the mother (in Darwin). That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother’s custody in Darwin. If the mother had wished to move to marry and establish a new family in Darwin, or to take up new and better employment or training in Darwin, it may well have been possible to conclude that in all the circumstances the child’s welfare would be advanced by his being committed to the mother’s custody. The circumstances to be considered would include not only the fact of relocation but also all of the consequences that would follow - separation from the non‑custodial parent, the creation of a new family in which the child would thereafter live (with all the concomitant advantages and disadvantages), the better economic position of the custodial parent, and so on. In that sense, inquiring about why the mother wished to move was relevant but it was only one inquiry among the many that go into deciding the ultimate question. The complexity (and difficulty) of the inquiries required by that question is well illustrated (in a different legislative context) by the decision of the Full Court of the Family Court of Australia in B and B: Family Law Reform Act 1995. But as that decision rightly shows, the inquiries are directed to ascertaining what is in the best interests of the child.
(Emphasis in original)
In Adamson & Adamson (2014) FLC 93–622, the Full Court said:
66.These rights, and the right of freedom of mobility of a parent, only defer to the paramount consideration of a child’s best interests where those interests would be so adversely affected as to justify such interference; and then the interference is legitimate only to the extent that it is necessary to avoid such adverse effects.
To this must be added the consideration that orders requiring a parent, as opposed to the children, to live in a particular place are rare. In a well-accepted passage, Bryant CJ and Warnick J said in Sampson and Hartnett (No 10) (2007) FLC 93-350 (“Sampson and Hartnett”):
58.However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i) the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.
No party to the appeal suggested that this statement of principle should be reconsidered. We are obliged to follow it unless we are persuaded that it is manifestly wrong (Nguyen v Nguyen (1990) 169 CLR 245 at 268–270). As presently advised, we see no reason to doubt the above statement of principle.
Courts have always propounded principles to aid in the application of statutory powers. That is so in the case of s 114 of the Act itself. The identification of such principles aids in the consistency of operation of the statute in question and to ensure that all relevant considerations are taken into account.
For example, that section empowers the making of freezing orders. In Jackson v Sterling Industries Ltd (1987) 162 CLR 612, Deane J at 625, with the agreement of Mason CJ, Wilson, Brennan and Dawson JJ set out principles which are to be applied to the making of such orders.
As another example, the principle of legality “requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law” (Momcilovic v The Queen (2011) 245 CLR 1 per French CJ at [43]).
The law is not limited to the express words of the statute.
In relation to the present issue Kirby J explained it in AMS v AIF:
193.Secondly, it is important to remember that in Australia, whilst the welfare (or best interests) of the child are, by statute, the “paramount” consideration in the exercise of jurisdiction such as was invoked here, they are not the sole consideration. In this respect, the position in this country is different from that in Canada. It more closely conforms to the language of the Convention on the Rights of the Child. Statutory instructions as to the paramountcy that is to be accorded to the child’s welfare or best interests are to be understood as they apply to a child living in Australian society, normally in relationship with both parents and other members of its family. Whilst the legislation considered in this case, and later statutory reforms, give the highest priority to the child’s welfare and best interests, that consideration does not expel every other relevant interest from receiving its due weight. In part, this is because (as the English courts recognised long ago) the enjoyment by parents of their freedoms necessarily impinges on the happiness of the child. But, in part, it is also because legislation such as FLA 1975 and FCA 1975 is enacted to take effect within a society of a particular character whose members enjoy a high measure of personal freedom, diminished only to the extent that the law obliges.
(Footnotes omitted)
We therefore respectfully disagree with Wilson J who does not accept that orders requiring a parent to live in a particular place should be made only in rare or exceptional cases, on the basis that those words are not used in s 114(3) of the Act.
The reasoning in Sampson and Hartnett was at the heart of the mother’s submissions under this ground. She submitted that “the findings made by the learned trial judge do not lead a conclusion of rare or exceptional circumstances that justify the order, or (put another way) that the findings made do not identify any need, in the child’s best interests, for the coercive order to be made” (Mother’s Summary of Argument filed on 31 March 2022, paragraph 31).
Her Honour was, despite the earlier framing of the issue, well aware of the principles to be applied, setting them out correctly, with respect, at [131]–[134], albeit under the heading “Mother’s submission”.
This led to the following conclusion:
211.The key issue in this case is whether the children be permitted to be enrolled by the mother in a school in the Town D area or remain enrolled in Town A Primary School. Given the concession made by both parties that the children should not be required to continue undertaking the arduous travel currently involved between the parent’s homes, the effect of this determination will be either that the mother will be able to remain living in Town D, or will need to relocate to a closer proximity to Town A Primary School.
212.As stated in coming to a conclusion on this issue, the court must balance a range of competing considerations, noting that the best interests of the children remains the paramount consideration.
213.On balance, and having regard to each of the factors set out above and the totality of the evidence, I find that orders which would see the mother returning to live with the children in closer proximity to the Town A area and the current time arrangements to remain in place are in the children’s best interests. The mother indicated that if she were not permitted to enrol the children in a school in Town D, she would move to a home with them within 10 to 15 km of Town A Primary School.
214.In the circumstances, I make orders which provide that the children are to remain at Town A Primary School for the duration of their primary school education and that the mother is to move to a home within a 20 km radius of that school, thereby giving the mother some additional flexibility in choice of location in which to reside. Neither party addressed the court on the timing of the mother’s move from Town D to a location proximate to the children’s school. Given that it is now December, I have provided the mother with a reasonable period of time within which to move homes, and in particular that she do so by the commencement of term 2 in 2022.
(Emphasis added)
Key to this decision was the agreement of both parties that the children should not travel between Town D and Town A. There is no challenge to her Honour’s finding that it is in the children’s best interests to live in the Town A area primarily with the mother. In the circumstances of this case, given that the primary judge was satisfied that the children’s best interests were met by not living with the father and where the mother herself said she would move, the only outcome was that the mother had to move. Whilst Order 4 might have been framed differently, on the way the case was run, that outcome became inevitable. Whilst this was the mother’s alternate position, it came into consideration because the mother and the father’s primary proposals had not been accepted. Thus the positions adopted by the parties, and especially the mother, means that the circumstances of this case distinguish it from Sampson and Hartnett.
Whilst the 20 kilometre limit, as her Honour herself noted, is somewhat arbitrary and may have little significant effect on travel time, it is in the mother’s favour.
We are not satisfied therefore that Order 4 was erroneously made. The parties are bound by the way in which they conducted their cases.
Did the primary judge fail to make a “proper assessment” of the mother’s capacity and give insufficient weight to the mother’s freedom of movement? (Ground 4)
This ground is, in reality, two separate grounds run together.
As to the first, her Honour said:
140.I accept that if the mother is required to move closer to the children’s school in Town A, she will be unhappy. Whilst there is no psychological evidence to show that she will suffer ‘a nervous breakdown if she has to move back into the area … her personal circumstances, … are relevant to the general picture of what (the court) should be deciding in the matter.’
…
209.As stated a relevant consideration in this matter is the mother’s desire to move on with her life with [her current partner] and commence a life together with him in an area of their choosing. This is a significant factor to which the court must have, and has had regard.
(Emphasis in original) (Footnote omitted)
It was not explained why this was not a “proper” assessment of the issue.
As to the second, challenges to discretionary decisions fall to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499 at 505. Thus, as has been noted in Gronow v Gronow (1979) 144 CLR 513 and Norbis v Norbis (1986) 161 CLR 513, challenges to the weight given to particular matters face a high bar and must lead to the conclusion that the outcome is unreasonable or plainly wrong.
Her Honour said:
210.I accept that it is not an insignificant thing to prevent a parent from moving to another part of the state or the country, or as in this case, to the other side of the Melbourne Metropolitan area. However, the court must balance a range of factors and ultimately must make orders having regard to the parties and the particular children before it. In this case, for the reasons set out above, and having regard to the particular children in this case, on balance, I find that the children’s best interests are met by orders which require the children to remain at their current school and in their current community in Town A and for their time with each parent to remain unchanged.
The mother’s right to freedom of movement was taken into account and given significant, but not determinative, weight. No error has been demonstrated.
Did the primary judge err by failing to consider the views of the children in the context of the children’s maturity or level of understanding? (Ground 5)
The children were 7 and 10 at the time the orders were made.
The mother’s Case Outline put forward the submissions that the views of the children should not be given “significant weight” (Mother’s Case Outline filed on 13 August 2021, p.4), but the point was not expanded upon in oral submissions.
In Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66, Gummow A-CJ, Kirby, Hayne and Heydon JJ said:
120.…when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge’s attention was drawn to those matters, at least unless they are fundamental and obvious.
The primary judge was well aware of the age of the children (see [1] for example) and considered their views were clearly expressed (at [174]). The suggestion that they had been unduly influenced by the father was rejected.
In the mother’s submissions, it was put that children “often don’t know what’s good for them, and they often, of course, only know a very limited aspect of the conundrum which everybody faces” (Transcript 23 August 2021, p.236 lines 29–30).
That is hardly a submission that the children have a lack of maturity or understanding for their age.
The mother submitted that the matter required further analysis. Of what, we would ask? The primary judge did not need to analyse matters that were not raised.
This ground has not been established.
We agree with Wilson J as to Grounds 3 and 6.
We agree that the appeal should be dismissed.
WILSON J:
INTRODUCTION
By Notice of Appeal filed on 4 January 2022 as amended on 31 March 2022 the mother advanced six grounds of appeal in her appeal against the orders made by the primary judge on 8 December 2021.
This litigation concerned parenting orders in relation to two boys, one born in 2011 (now 10) and one born in 2014 (now 7). The boys’ parents have been embroiled in litigation since 2016. The primary judge was of the view that each parent loved the boys very much and, in the particular style of each, wanted what each thought was best for the children in circumstances where each parent had very different parenting styles.
Before the primary judge were two main issues. The first was whether the mother should be permitted to remain living in the suburb of Town D, there being changes required to the children’s schooling if she did. The time the children spend with their father was also affected by the mother remaining in Town D. The second issue was whether the mother should be required to move back to the suburb of Town A where she, the children and the father lived for several years. The mother moved to Town D to reside with her partner. The travelling distance between Town D and Town A was at least one hour one way or longer if traffic was heavy.
After a three day trial, the primary judge made orders requiring the mother to take up residence at a place of her choosing within 20 kilometres of the school attended by the children. The primary judge made orders for both parents to have equal shared parental responsibility and the primary judge made orders for the children to live with the mother. A detailed regime was ordered for the children to spend time with the father.
On this appeal the mother complained, among others, that the primary judge –
(a)erred by failing to consider s 65DAA(2) of the Family Law Act;
(b)effectively made a mandatory injunction in requiring the mother to live within a prescribed distance from the children’s school;
(c)failed to adequately assess the mother’s right to freedom of movement; and
(d)provided inadequate reasons.
As these reasons explain, I do not consider that any of those matters were sustained with the consequence that this appeal must be dismissed.
RELEVANT FACTUAL SETTING
The matters set out immediately below have been distilled from the reasons of the primary judge. In no special order they were as follows –
(a)in late 2018 or early 2019, by reason of her strained financial circumstances at the time, the mother was forced to sell the home she owned in Town A;
(b)thereafter the mother and the children moved into the mother’s partner’s home in Town D;
(c)prior to moving the mother did not seek the father’s consent to moving to the place where she and the children now live;
(d)when the mother and the children first moved to the mother’s partner’s home, the youngest child was not old enough to attend school;
(e)the father did not consent to the mother enrolling the children (more likely, only the elder) in school near her residence so the mother applied to (what was then) the Federal Circuit Court of Australia for orders permitting her to relocate, although, when she filed her application, the place to which the mother said she wished to relocate was even further away from the father’s home;
(f)the mother later amended her application to seek orders permitting her relocation to the area where her partner lives and to enrol the children in a school in that area;
(g)the mother’s decision to sell her home where she previously lived was partly based on the fact that she could not afford the repairs that needed to be undertaken to it;
(h)the mother gave evidence about the adverse impact on her and the children that the continued travel imposed when driving from their residence in Town D to the children’s school and pre-school in Town A;
(i)the mother’s partner gave evidence that he and the mother intended to purchase a property in the area where he now lives if permitted to do so;
(j)the mother gave evidence that she wished to continue living with her partner but that may not be possible if she and the children were required to return to the place where they previously lived in Town A;
(k)the mother disagreed that she was prioritising the wishes of her partner over the best interests of the children by pursuing an order permitting the children to live with the mother in Town D;
(l)the mother agreed she could have moved to a place between 10 and 15 kilometres of the children’s school;
(m)it was common ground that the mother’s partner would need to undertake significant travel if he were to live with the mother in Town A as his business operations were mostly in Town D;
(n)the primary judge accepted that any such travel to be undertaken by the mother’s partner would be inconvenient to him but that the mother’s partner could nevertheless run his business;
(o)the primary judge acknowledged that the mother and her partner recognised the complexity of the decision for the mother and children to move from Town A to Town D;
(p)the mother’s partner demonstrated a significant level of insight into the children’s need for them to have a meaningful relationship with the father irrespective of the view the mother’s partner may have of the father; and
(q)the primary judge found that the mother did not discuss with the father her move from Town A until July 2019 when her solicitor confirmed her move so as to live with her current partner.
The mother and her partner had been together for almost six years when this proceeding was tried and the primary judge found that they wish to remain living together.
In this litigation the mother expressed her concerns about the children’s father’s parenting capacity. The primary judge considered that many of those concerns were similar to or reflective of concerns raised by the mother in litigation brought by her in 2018. In this proceeding the primary judge recorded the mother’s assertions that –
(a)the father continues to harass and intimidate the mother in the communications between the two;
(b)the father has involved the children in the litigation and has attempted to influence them in relation to their move to Town D; and
(c)the father lied to the Family Consultant in an attempt to influence the Family Consultant’s recommendations.
The primary judge recorded the mother’s allegations of risk when the children were in the father’s care. Those alleged risks included the following –
(a)the father had been and continues to be involved in drug cultivation;
(b)the father had a history of possessing firearms;
(c)the father illegally connected the former matrimonial home to the street electricity supply; and
(d)the father’s home was unsafe as evidenced by his suffering electrocution on the property, the continued presence of asbestos and the absence of a balustrade on the second floor balcony.
The primary judge mentioned that the father had failed to pay child support, to pay extracurricular costs for the children and that the father continued to oppose the mother’s request to move the children to a school closer to the mother’s home.
The primary judge made findings in relation to each. Specifically, the primary judge held that –
(a)despite making allegations about the father’s drug use and cultivating, the mother did not seek any restraint against the father, instead agreeing that the mother and father should have equal shared parental responsibility for the children and, if an order were made permitting the mother to remain in Town D, then the children should spend significant time with the father;
(b)the mother held a negative view of the father and each exhibited an ongoing lack of trust towards the other;
(c)the relevant shire council had inspected the father’s property in relation to the mother’s complaints and it had decided to take no action against the father;
(d)so far as the electrocution incident in November 2020 was concerned, the primary judge recorded that the father agreed he suffered electrocution while at his property on that date although the father denied that any such electrocution was due to illegal wiring and that the children were not at home when the incident occurred, and
(e)the primary judge also addressed concerns raised by the mother in relation to the father allegedly failing to provide appropriate medical attention to one of the children as well as the mother’s concern in relation to the father transporting one of the children to school by motorbike in respect of which the primary judge generally accepted the father’s version of events and at all events acknowledged the mother’s own proposal for equal shared parental responsibility for the children.
The primary judge recorded the mother’s evidence to the effect that the stress involved in the mother’s interactions with the father had caused the mother to suffer mental health issues. However, the primary judge reasoned (at paragraph [84] of the primary judge’s reasons) that the mother’s own proposal for equal shared parental responsibility required the parties to continue to interact and to communicate.
The primary judge recorded the views expressed by the children to the Family Consultant especially that the mother was of the view that the children had been unduly coached or influenced by the father with the consequence that limited weight should be given to those views. However, the primary judge recorded (at [88]) that the mother was aware that the children wish to remain at their primary school in Town A. The primary judge recorded that the children’s maternal aunt teaches in Town A near the children’s school and that the children’s maternal grandmother is a casual teacher at the school attended by the children. The primary judge recorded that the mother gave evidence of the children’s likely upset if their schooling was changed to a school in the proximity of Town D. The primary judge also recorded the evidence of the mother’s partner to the effect that the children wanted to remain at their present school. The primary judge recorded the evidence of the mother’s partner to the effect that he and the mother would have to explore living between 10 and 15 kilometres of the children’s school if the court ordered the children to remain at their current school in Town A.
So far as the evidence of the Family Consultant was concerned, the primary judge addressed the Family Consultant’s observations in respect of each parent. Relevantly distilled, the primary judge’s findings from the Family Consultant’s evidence was as follows –
(a)the parents possess a latent capacity to work together in the children’s best interests;
(b)the Family Consultant was unable to form a clear picture of either parent attempting to unduly influence the children;
(c)the children had a positive relationship with both parents;
(d)both children told the Family Consultant that each wanted the mother to move closer to his school;
(e)the Family Consultant did not agree that it was in the children’s best interests for them to move schools to one nearer the place where the mother lived; and
(f)the Family Consultant did not consider he could underplay how important it was for the children to maintain the continuity and practicability of where they have lived.
The primary judge paraphrased the parties’ submissions, including the submissions by the Independent Children’s Lawyer (“ICL”). In the submissions of the ICL, it was put that where each proposal of the parents was equally valid, the views of the children may be the tipping point, relying on In the Marriage of K & Z (1997) 22 Fam LR 382. The primary judge also recorded the father’s submissions to the effect that –
(a)his proposal allowed the children to attend their school;
(b)his proposal allowed the children to continue to have a meaningful relationship with both parents while also allowing the children to spend meaningful time in the community to which they are attached;
(c)the mother’s proposal would effectively reduce the father’s role to that of a weekend father which was significantly different to the role the father had played in the children’s lives to that date;
(d)any inconvenience to the mother and her partner by their moving to a point closer to the children’s school was significantly outweighed by the benefits to the children; and
(e)the court should have regard to the opinion of the Family Consultant when the Family Consultant opined that the children need stability, consistency and routine which the father’s proposal provided and which the mother’s proposal did not.
The primary judge addressed the mother’s submissions. Relevantly paraphrased they amounted to the following –
(a)while it may be optimal for the children’s relationship with their father if the mother and father could each live in the same area as the area where father presently lives, with the children remaining at the local school, the evidence revealed that the parties’ relationship was such that such a course was not appropriate in all the circumstances;
(b)the legislation promotes a meaningful relationship, not an optimal relationship;
(c)on a relocation application such as this case, the best interests of the children is the paramount consideration;
(d)it is relevant that the mother will not be happy if she returns to Town A and the Family Consultant conceded that the mother’s unhappiness can have an impact on the welfare of the children;
(e)the father objected to moving closer to the place where the mother lives with her partner despite the fact that the father was able to do so;
(f)as primary carer the mother was entitled to choose where she lives;
(g)the mother chose to move in with her partner by reason of her financial distress; and
(h)the real issue was whether adequate arrangements could be made to maintain a meaningful relationship with both parents and the mother’s primary proposal involved her living in Town D with the children attending school in the proximity of Town D.
In the course of the primary judge’s consideration of the applicable legal principles, the primary judge perfectly properly placed particular reliance upon the paramount consideration of the best interests of the children. The primary judge –
(a)accepted the mother’s submissions that the case was, essentially, a relocation application rather than an application about which school was preferable for the children to attend;
(b)relied on the objects of the underlying principles set out in s 60B of the Family Law Act;
(c)recorded the presumption set out in s 61DA(1) of the Family Law Act to the effect that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility;
(d)recorded that the presumption in s 61DA(1) may be rebutted in the circumstances set out in s 61DA(2);
(e)found that an order for equal shared parental responsibility was appropriate;
(f)considered the provisions of s 65DAA(1) which required the court when making an order for equal shared parental responsibility to consider whether an order for equal time with each parent was in the children’s best interests and whether such equal time was reasonably practicable;
(g)concluded that, based on the totality of the evidence, an order for the children to spend equal time with each parent was not in the best interests of the children as such an order was not reasonably practicable;
(h)considered whether an order under s 65DAA(2) was in the best interests of the children, namely, for the children to spend substantial and significant time with each of the parents;
(i)addressed the matters that constitute substantial and significant time under (what the primary judge intended to be a reference to) s 65DAA(3); and
(j)considered that the distance between the parties’ homes was a factor to which the court needed to have regard on the issue of reasonable practicability.
The primary judge separately addressed s 60CC(1), s 60CC(2) and the many elements of s 60CC(3).
As to s 60CC(2)(a), the primary judge weighed each parent’s proposal when addressing the statutory consideration of the benefits to the children in their having a meaning relationship with each parent. The primary judge was of the view that the proposal of each parent was finely balanced. The mother’s primary proposal was to remain with the children in Town D. The primary judge took the view that such a proposal would orchestrate a reduction in the father’s time with the children of 14 days over a 12-month period as well as a diminution in the quality of the time the children spend with their father, a matter of importance as the children get older, leading to the potential for a significant reduction in the quality of the relationship between the children and the father.
Considerations enlivened by s 60CC(2)(b) were addressed in the primary judge’s conclusion that the real risk to the children arose from ongoing conflict between the parents and not from risks identified by the mother about the father’s capacity to care for them.
The views expressed by the children, made relevant by s 60CC(3)(a), were not influenced by the father, as held by the primary judge. Moreover, the primary judge found that the mother conceded that the children would be unhappy if required to change schools. The primary judge found that the children’s school provided safety and stability for the children. The primary judge found that the children’s views were clearly expressed, revealing that they wish to remain living in Town A, to continue attending the same school and for both parents to live in close proximity to that school. The primary judge found that the mother’s proposal would rupture the children’s connection to the geographical area that they enjoy on a day-to-day basis.
So far as s 60CC(3)(b) was concerned, the primary judge found that the children have a loving relationship with each parent as well as a positive relationship with each of their parent’s partners.
As to s 60CC(3)(c), the primary judge acknowledged the father’s concession that the mother was a good mother and that the children were looked after well in her care. The primary judge stated that despite the mother’s litany of complaints about the father’s approach to his parental responsibilities, the primary judge was satisfied that both parents had taken every opportunity to exercise their parental responsibilities, including those of a financial nature.
So far as s 60CC(3)(d) was concerned, the primary judge considered the consequences of granting, or conversely refusing, the mother’s proposal, observing that the mother indicated that the mother would move to a place within 15 kilometres of the children’s school if the court did not grant her permission to enrol the children in a school in the proximity of Town D. In my view, that indication was significant. It seems that the mother subsequently recanted on that indication.
The primary judge correctly identified the practical difficulty posed by the children’s travelling between their parents for the purposes of s 60CC(3)(e). The primary judge observed that the same practical difficulties presented themselves whether the children lived in Town D or Town A. The primary judge recorded the mother’s statement to the effect that the mother will move closer to Town A if her proposal is refused.
As to s 60CC(3)(f), the primary judge observed that each parent had different parenting styles yet each had the capacity to provide for the needs of the children in the manner contemplated by the subsection. The primary judge stated that the key risk to the children was the parents’ inability to stop their conflict.
The primary judge’s considerations of s 60CC(3)(g) led the primary judge to observe that the children were connected to Town A where they live and that the children do not have the same connection to Town D.
Section 60CC(3)(h) was irrelevant.
The primary judge recorded that the elements of s 60CC(3)(i) had been earlier canvassed in the reasons.
As to family violence issues relevant to s 60CC(3)(j), the primary judge acknowledged that each parent engaged in offensive behaviour towards the other.
The primary judge found that s 60CC(3)(k) was not relevant.
As for s 60CC(3)(l), the primary judge was of the view that the arrangements that existed at the date of trial, this is to say a five and nine day fortnight, should continue. The primary judge observed that a high level of conflict existed between the parties.
So far as any other fact or circumstance the court considered relevant was concerned, the primary judge addressed one particular matter in the following terms –
209. As stated a relevant consideration in this matter is the mother’s desire to move on with her life with … [the mother’s partner] and commence a life together with him in an area of their choosing. This is a significant factor to which the court must have, and has had regard.
210. I accept that it is not an insignificant thing to prevent a parent from moving to another part of the state or the country, or as in this case, to the other side of the Melbourne Metropolitan area. However, the court must balance a range of factors and ultimately must make orders having regard to the parties and the particular children before it. In this case, for the reasons set out above, and having regard to the particular children in this case, on balance, I find that the children’s best interests are met by orders which require the children to remain at their current school and in their current community in Town A and for their time with each parent to remain unchanged.
Among the primary judge’s conclusionary observations was the statement that the mother indicated that if she were not permitted to enrol the children at a school in the proximity of Town D, she would move to a home within 10 or 15 kilometres of the children’s school in Town A. The primary judge then made orders which provided for the children to remain at the school in Town A and that the mother was to move to a home within a 20 kilometres radius of that school thereby giving the mother some additional flexibility in the choice of locations in which to reside. The primary judge gave the mother a reasonable time within which to effect that move yet the primary judge did not nominate any particular date by which the move had to be effected.
THE APPEAL
The Notice of Appeal filed 4 January 2022 was modestly amended on 31 March 2022. Six grounds were pressed in the Amended Notice of Appeal. They were in the following terms–
1.The learned trial judge erred in failing to consider s 65DAA(2), being whether the child spending substantial time with each of the parents would be in the best interests of the child and reasonably practicable.
2.In making in a coercive order compelling the mother to live within 20 kilometres of [Town A] Primary School to perform the primary parenting role in circumstances not of her choosing, the learned trial judge made an injunctive order pursuant to s 114(3) that was not proper.
3.The learned trial judge failed to consider the advantages and disadvantages of the parties’ proposals, nor alternate options to those proposals.
4.The learned trial judge failed to make a ‘proper assessment’ of the mother’s capacity to perform her role in [Town A], and gave insufficient weight to the mother’s right to freedom of movement.
5.In considering the children’s view pursuant to s 60CC(3)(a), the learned trial judge failed consider (sic) those views in the context of the children’s maturity or level of understanding.
6.The learned trial judge gave inadequate reasons.
Ground 1
According to paragraph 24 of the Summary of Argument on which counsel for the mother relied, the mother contended that the primary judge “made orders that were contrary to law” (his words). In essence, the appellant contended that the whole decision of the primary judge was erroneous by reason of there being no, or no adequate consideration of s 65DAA in that, so the appellant argued, the primary judge failed to consider whether the children spending substantial and significant time with each parent was in the children’s best interests and reasonably practicable. In support of that contention, it was submitted on behalf of the mother that –
(a)the decision of the High Court of Australia in MRR v GR (2010) 240 CLR 461 provides that only when the twin questions of whether proposed orders are in the child’s best interests and whether those orders are reasonably practicable can the court make a parenting order of the sort made by the primary judge;
(b)when making an order for equal shared parental responsibility, as did the primary judge, s 65DAA was engaged thereby requiring the primary judge to consider whether the child spending equal time with both parents was in the best interests of each child and if not, whether the child spending substantial and significant time with each parent was in each child’s best interests as well as being reasonably practicable;
(c)citing Tibb v Sheean (2018) 58 Fam LR 351 (at [83]) the word “consider” in s 65DAA requires a judge to, among other things, contemplate mentally, think over, reflect upon or take note of particular matters, all of which are assessed objectively;
(d)on the facts of this case the proposals of each parent called for an examination of s 65DAA;
(e)the mother’s statement that she would move to a place within 10 to 15 kilometres of the children’s school was not a concession relieving the primary judge of the obligation to consider the elements of s 65DAA;
(f)having concluded that equal time was not appropriate, the primary judge was then required to address the elements of s 65DAA(2) yet the primary judge did not separately examine whether substantial and significant time was in the children’s best interests or whether such time was reasonably practicable;
(g)the elements of substantial and significant time are in two parts, as was held in Ulster & Viney [2016] FamCAFC 133 (at [88]) yet on the facts of this case the primary judge’s reasons do not disclose any such two-staged consideration;
(h)while an overlap may exist between s 60CC(3)(e) and 65DAA(5), nevertheless it is erroneous to conflate the disparate issues of “best interests” with “reasonable practicability”, as was held in McCall v Clark (2009) 41 Fam LR 483 (at [62]), and Heaton v Heaton (2012) 48 Fam LR 349;
(i)it must be apparent from the reasons appealed against that those reasons, read as a whole, reveal that the issue of reasonable practicability has been considered with reference to the matters set out in s 65DAA(5) as a separate question to best interest considerations; and
(j)on the facts of this case no such separate consideration took place.
The father, as respondent to this appeal, was not represented when he prepared his Summary of Arguments filed 26 April 2022. In reference to Ground 1 the father submitted –
(a)the primary judge did in fact address s 65DAA(2) at paragraph 153 of the primary judge’s reasons;
(b)when the primary judge’s reasons were read as a whole, it was readily apparent that the primary judge considered equal shared time and as well as substantial and significant time; and
(c)when read as a whole it was evident from the primary judge’s reasons that the primary judge considered issues of reasonably practicability.
The father was correct in submitting that the primary judge considered s 65DAA, albeit in a manner that was less detailed than was the primary judge’s consideration of other statutory provisions, as for example, the several subparagraphs on s 60CC(3). The primary judge expressly mentioned s 65DAA at paragraphs 151, 153 ,154 and 155 of the primary judge’s reasons. In addition, the primary judge expressly referred to the regime for the children’s time with each parent. The primary judge separately engaged in that process in the context of the mother’s proposal and also in the context of the father’s proposal. The ICL supported the father’s proposal. The Family Consultant likewise addressed proposals for time arrangements.
The primary judge took the view that equal time with each parent was not in the best interests of the children. That enlivened the need for separate consideration to be given of substantial and significant time. Sections 65DAA(2)(c), (d) and (e) are in mandatory terms, each being prefaced with the word “must” and each connected by the word “and”. Where the court considers that the child spending substantial and significant time with each parent is in the best interests of the child and is reasonably practicable, the court must consider making an order for the child to spend substantial and significant time with each parent. That appears from the plain reading of s 65DAA(2) and such a construction gives effect to principles of statutory construction espoused by the High Court in cases such as Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, Taylor v Public Service Board (NSW) (1976) 137 CLR 208, Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1951) 147 CLR 297, K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309, Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, and Northern Territory v Collins (2008) 235 CLR 619 to name but a few.
Section 65DAA(3) provides that a child will be taken to spend substantial and significant time with a parent only if the elements in subparagraphs (a) to (c) are satisfied.
Section 65DAA(5) mandates the court to have regard to the matters in subparagraphs (a)-(e) in determining the issue of reasonable practicability. Subparagraph 65DAA(5)(a) provides that the court must have regard to how far apart the parents live from each other. Subparagraph 65DAA(5)(c) provides that the court must have regard to the parent’s current and future capacity to communicate with each other.
In this case, it is true that the primary judge did not separately devote a specific discrete narration to facts that were enlivened by a separate consideration of every subparagraph of s 65DAA(1) to (5). But it is a different thing for counsel for the mother to obliquely submit that the primary judge did little more than “salute in passing” the elements of s 65DAA (a reference to French & Fetala [2014] FamCAFC 57 (at [48])).
So far as his submissions about s 65DAA were concerned, counsel for the mother contended that a two-part test exists in any assessment of whether an order met the legislative stipulations of s 65DAA. He said the first part involved a literal construction of s 65DAA(3) and the second part required the court to consider the factual context of the case. Several things must be said of that submission. First, as with all legislation, the primacy of the words used in the legislation itself determines the proper construction of the legislation (Project Blue Sky and Alcan (NT) Alumina Pty Ltd). The context, the general purpose and the policy of the provisions of legislation are surer guides to meaning than is the topic with which a statutory provision is concerned (Project Blue Sky). Every word of a section of legislation must be construed so as to give meaning to the relevant provision (Commonwealth v Baume (1905) 2 CLR 405 and Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1). Accordingly, every word of every subparagraph of s 65DAA(3), (4) and (5) must be construed. Context is critical (Project Blue Sky and CMFEUvAustralian Building and Construction Commissioner (2020) 282 FCR 1).
Here, counsel for the mother argued that the primary judge did not undertake the analysis prescribed by s 65DAA so as to determine that the time ordered, it not being equal time, satisfied the definition of substantial and significant time as well as the definition of reasonable practicability. Equal time was expressly ruled out by the primary judge. The primary judge addressed the requirements of s 65DAA(2), correctly paraphrasing the essential components of the section. Similarly, the primary judge paraphrased the elements of s 65DAA(3), albeit in a more perfunctory manner. As to s 65DAA(5) the primary judge focused on the element of s 65DAA(5)(a), namely, the distance from the parents’ residences in Town A and Town D.
The gravamen of the mother’s complaints under the first ground was that the primary judge did not “consider” the elements prescribed by s 65DAA(3), (4) and (5). In his written submissions, counsel for the mother contended that the verb “consider” involves mental contemplation, to think over, to reflect on or to give heed to something. He also said that the proposal advanced by the mother and also by the father required “careful consideration” (not merely “consideration” as a noun) of the matters in s 65DAA. When regard is had to the legislation itself, as the High Court says is a court’s first task, the word used in s 65DAA is not “consideration”, nor “careful consideration” but rather “consider”. The legislation does not provide that the court’s reasons must record any particular intellectual engagement when performing the task set of it, namely to “consider” the matters in s 65DAA(3). Section 65DAA(4) does not use the word “consider”. Section 65DAA(5) uses the phrase “have regard to” and, unlike s 65DAA(3), does not use the word “consider” except in subsection (e) in the context of “such other matters as the court considers relevant”.
In my view, it would strain the language of s 65DAA(3) to breaking point to endorse the submissions of counsel for the mother about its operation. Here, the primary judge in fact considered both of the matters in subsection 3(a)(i) and (ii). The primary judge also considered the two matters in subsection 3(b)(i) and (ii). The primary judge considered the single matter canvassed in subsection 3(c). The primary judge was not required by the legislation to ascribe a paragraph to each of the five matters there canvassed. The legislation required the primary judge to “consider” each. The orders made revealed such consideration.
Counsel for the mother submitted that the primary judge referred to s 65DAA(5)(a) but thereafter did not address any other aspect of that section with the consequence that the orders made were “contrary to law” (his words).
I do not agree. The wording of s 65DAA(5) required the primary judge to have regard to the matters recorded in paragraphs (a) to (e) and, in relation to the last mentioned subsection, to such other matter (not being those in subparagraphs (a)-(d)) as the court was of the view considered relevant. The requirement in s 65DAA(5) that the court “must have regard to” the elements that follow was mandatory in nature. Whether the wording “must have regard to” and “must consider” imposes different obligations on the court was not the subject of submission and in the absence of submissions on point, it is not appropriate for any determination to be now made on point. The precise legislative intendment evident by the use of the phrase “must consider” in s 65DAA(1) and (2) and the different use of the phrase “must have regard to” s 65DAA(5) is none too easy to discern.
I do not accept the submissions by counsel for the mother that the primary judge failed to engage in the “required process of contemplating mentally” the matters set out in s 65DAA(5). The primary judge was required to “have regard to” those matters. The primary judge did.
In my view Ground 1 failed. It was without merit.
Ground 2
Under this ground the mother asserted that in making the order requiring her to live within 20 kilometres of the children’s primary school in Town A so as to perform the primary parenting role in circumstances not of her choosing, the primary judge made an injunctive order pursuant to s 114(3) that was not proper. Relevantly distilled, the mother’s main contentions were as follows –
(a)citing Sampson v Hartnett (No 10) (2007) 38 Fam LR 315 the power conferred by s 114(3) to order relocation is likely to be properly exercised in rare cases as the proper exercise of the power is at the extreme end of the discretionary range;
(b)when the primary judge ordered the mother to relocate, the mother lived approximately 30 kilometres from the children’s school and the mother resisted moving from her place of residence in Town D;
(c)the mother undertakes the role of primary carer and the consequence of the order requiring the mother to relocate is that the mother must move so as to undertake her primary caring role;
(d)the injunction ordered by the primary judge was broader than was necessary to secure the best interests of the child;
(e)after observing that the question of the children having a meaningful relationship with the father was finely balanced, the primary judge failed to address whether by the children remaining in Town D their relationship with their father would be otherwise than meaningful;
(f)the findings of the primary judge do not support a conclusion of rare and exceptional circumstances justifying the injunction ordered by the primary judge;
(g)the primary judge failed to identify why the requirement for the mother to move 12 kilometres so as to be within 20 kilometres of the children’s school promoted the best interests of the children; and
(h)it was erroneous for the primary judge to tie the finding of the risk of diminution in the children’s relationship with their father to some arbitrary geographical reference point, namely, the children’s school which in any event they will leave in due course.
The father contended that the injunction ordered by the primary judge was no broader than was necessary. He submitted that Sampson & Hartnett (No 10) stands for the proposition that it is the function of the court to ensure the best parenting arrangements are put in place, that parents fulfil their duties and meet their responsibilities. To that end, the father submitted that the injunction ordered by the primary judge was entirely appropriate.
In my view, the primary judge made no error in ordering the mother to relocate to a point of her choosing 20 kilometres from the children’s school. In debate with the mother’s counsel before this Court, debate unfolded how the geographical limitation of 20 kilometres from the children’s school arose. The transcript of the proceeding before the primary judge revealed the following exchanges –
HER HONOUR: All right. So the issues, it seems to me then, and correct me if I’m wrong, are primarily where the children should go to school, if we start off with that, and then once the schooling issue is determined, that then determines where the children live. It seems – and correct me if I’m wrong – that all parties agree that the children should live within a proximate distance of the school they attend.
[COUNSEL FOR THE ICL]: That’s correct, yes.
HER HONOUR: Yes. So if I were to find that it’s appropriate that they remain at [Town A] Primary School then that determines where they live, and then that gives rise to the issue of whether they stay with the father or live with the mother, and if I’m hearing [counsel for the mother]’s alternate position, it’s conceded that if the court were to determine that, then the mother would move to a proximate area, and I haven’t heard exactly whether that’s within 20 kilometres, 30 kilometres or whatever, but perhaps the parties might give some thought to what that looks like in terms of an actual order at some point over the course of the hearing and during a break. And then a separate but related issue which I imagine is going to be advanced by the mother on the basis of the opening is that it’s in the children’s best interests, in any event, to remain living primarily with the mother. [Counsel for the mother], is that a fair - - -
[COUNSEL FOR THE MOTHER]: Yes, it’s inherent in her application.
HER HONOUR: It’s inherent.
(Transcript 17 August 2021, p.12 lines 10–33)
While responding to questions put in her evidence-in-chief, the mother addressed her reasoning behind her suggestion about the number of kilometres between her current place of residence and the children’s school. It was as follows –
[COUNSEL FOR THE MOTHER]: Okay. [Applicant mother], you were remotely able to hear me speaking earlier making an opening on your behalf. Whilst we all appreciate that your principal application is that you be permitted to reside in [Town D] in the boys in the manner in which you describe, in the event her Honour was not of the view that the boys should live in [Town D] and that they should remain at the – in the area of the [Town A] schooling area and community, what would you do in terms of your living situation?
[THE MOTHER]: I would move back to closer proximity to the school, if – if the court decides that most appropriate.
[COUNSEL FOR THE MOTHER]: Okay. And have you given any thought to where? I’m not asking you to give us an address or anything of that kind, but can you give her Honour a general feel as to how you would accommodate the children, where and so forth, if you were required to move closer to that area?
[THE MOTHER]: Yes. I was thinking 10 to 15 kilometres. 30 kilometres, which was suggested yesterday, almost takes us right to [Town D’s] door, so it’s not going to reduce the travel component. So I would - - -
[COUNSEL FOR THE MOTHER]: If I could just interrupt you there, and possibly I can lead you on this if – why the ICL says 30 kilometres. If you do a 30-kilometre search, you’re only about 32 kilometres away now, aren’t you?
[THE MOTHER]: That’s right. That’s right .....
[COUNSEL FOR THE MOTHER]: Okay. Yes. Okay. Sorry, go on?
[THE MOTHER]: So 10 to 15 kilometres, which would be around the base of the – the [Town A area]. So that takes in, you know, sort of …, …, those - - -
[COUNSEL FOR THE MOTHER]: Okay. I understand. Okay?
[THE MOTHER]: Yes.
(Transcript 17 August 2021, p.15 lines 8–32)
The primary judge carefully explained that the order (colourfully, but erroneously, described by the mother’s counsel as a “coercive order”) requiring the mother to move was premised on the welfare of the children. The primary judge carefully weighed the evidence about the children’s connection with their school and their happiness when attending it. The primary judge also recognised the Family Consultant’s evidence to the effect that the mother will be unhappy if required to move and that any such unhappiness could very well lead to deleterious consequences on her parenting. The primary judge also carefully considered the mother’s contentions in relation to the lesser involvement the father had to that date in the children’s lives while the mother was (allegedly) being forced to move in a manner that was to her detriment. Having considered those issues, the primary judge nevertheless made the order requiring the mother to move to a place within 20 kilometres of the children’s school.
I do not accept that only in rare or exceptional circumstances may a relocation order be made. Even if an application for relocation order is cast under s 114(3), nothing in the wording of that section permissibly leads to the qualification that such an order must only be made in a rare or exceptional case. Principles of statutory construction adumbrated by the High Court (as set out above) require legislation to be construed according to the ordinary use of the language used in context. Nowhere in s 114(3) is there reference to the orders there mentioned being invoked only in rare exceptional cases. To the contrary – the section speaks of orders being made in the exercise of the power conferred by s 114 “in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.” The breadth of discretion thereby conferred is enormous. No warrant exists to fetter that discretion by the introduction of adjectival precursors such as “rare” or “exceptional” circumstances where no such wording appears in the legislation itself.
In passing it is utile to point out that the conventional dichotomy in the classification of injunctions in equity is the prohibitory injunction on the one hand and the mandatory injunction on the other hand (Smethurst v Commissioner of Police (2020) 94 ALJR 502). A mandatory injunction ordinarily operates by compelling a person to do a particular act. Yet it is not known as a “coercive injunction”.
I disagree with the submission advanced by counsel for the mother that it cannot be said that the injunction was no broader than was necessary to secure the best interests of the children. The primary judge found that the children were highly connected to their school. The mother pursued her romantic interest with her partner in a location 32 kilometres from the children’s school. She moved herself and the children, with neither forewarning to nor consent from the father then she resisted returning the children to the location with which they were most familiar and comfortable. Of course, the mother enjoys freedom of movement. But when her choice of residence for herself and her children is inconsistent with the best interests of her children in respect of whom she is the primary carer, her choice of residence must be subordinated to the best interests of the children. The primary judge examined all the evidence in formulating orders that best represented the best interests of the children. The primary judge determined that their best interests were served by their occupying a home within 20 kilometres of their school. Currently, they live 32 kilometres from the school. Pursuant to the primary judge’s orders, they will need to move 12 kilometres closer to their school. The mother said that the primary judge’s orders will cause her unhappiness. Whether that transpires remains to be seen. Any ongoing unhappiness on the mother’s part is likely to be exacerbated by ongoing and ceaseless disputation between her and the children’s father. That must stop forthwith.
Finally, in respect of this ground I find unattractive the submission by the mother’s counsel that the children will eventually graduate from primary school and therefore, the mother’s need to move to a location proximate to the children’s schooling will have a short temporal relevance. While that may or may not come to pass, the primary judge was confronted with the mother’s unwillingness to entertain the concept of proximity to the children’s school. In adopting that approach the mother relegated the significance of the children’s school to a matter of seemingly minor importance, preferring instead the promotion of her relationship with her partner whose residence was 32 kilometres from the children’s school. To my way of thinking, that was not acting in a manner consistent with the best interests of the children.
Since preparing my reasons in draft, I have considered the draft reasons of Aldridge and Jarrett JJ and wish to add one observation.
On 15 June 2022, while this case was reserved the High Court handed down its decision in Hill & Zuda Pty Ltd [2022] HCA 21. There the Court held (at [25]) that neither an intermediate appellate court nor a trial judge should depart from a decision of another intermediate court on the interpretation of Commonwealth legislation, uniform legislation or common law of Australia unless convinced that the interpretation is plainly wrong (Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151 [134]) or, to use a different expression, unless there is a compelling reason to do so (RJE v Secretary to the Department of Justice (2008) 21 VR 526 at [104]).
To the extent that the difference of opinion between Aldridge and Jarrett JJ and me related to the proper construction of s 114(3) and the correctness of previous Full Courts interpreting s 114(3) as incorporating the concept that an order requiring a parent to live in a particular place is confined to rare and exceptional cases, I adhere to my earlier observations that the express language used in s 114(3) says no such thing. On principles of statutory construction adumbrated by the High Court in cases such as Project Blue Sky, Cooper Brookes and others, an intermediate appellate court has no license to introduce words that do not appear in the statute. Any holding of an intermediate appellate court that purports to introduce words into a statutory provision that do not appear in the statutory provision itself must be of questionable authority, irrespective of how many times that authority may have been followed.
Ground 2 failed. I would dismiss it.
Ground 3
The mother asserted under this ground that the primary judge failed to consider the advantages and disadvantages of parties’ proposals and any alternative options to those proposals. The father submitted that when read as a whole, the reasons of the primary judge revealed a consideration of all proposals, variations and alternatives.
There can be no doubt that authority of undeniable veneration (Taylor v Barker (2007) 37 Fam LR 461) requires, in any relocation case, the trial judge to consider the advantages and disadvantages of the respective proposals advanced by the parties. That said, the trial judge need not laboriously and exhaustively set out, weigh up and pass judgment on each and every advantage and disadvantage in each proposal urged by the parties (Findlay & Boniface [2000] FamCA 676, Heinrich & Daniels [2009] FamCA 103, and Zahawi & Rayne [2016] FamCAFC 90).
Further, as the High Court held in U v U (2002) 211 CLR 238, it should not be assumed that the non-resident parent cannot or should not contemplate moving to be nearer the child.
Counsel for the mother argued that the primary judge failed to adequately assess –
(a)the parties’ respective proposals; and
(b)whether the father could move closer to Town D.
Expressed most basically, counsel for the mother argued that the primary judge gave no consideration to the advantages of the mother’s proposal nor any consideration to the disadvantages of the father’s proposal thereby failing, so the mother’s counsel asserted, to assess the essence of the parties’ competing proposals.
I reject the mother’s submissions in that regard.
Between paragraph 120 and paragraph 124 of the primary judge’s reasons, the primary judge recorded the ICL’s submissions in relation to the mother’s proposal. At paragraph 125 of the primary judge’s reasons, the primary judge recorded the ICL’s views about the father’s proposal.
Between paragraph 126 and 129 of the primary judge’s reasons the primary judge recorded the essential elements of the father’s proposal.
At paragraph 130 of the primary judge’s reasons the primary judge recorded that this was in reality a relocation case. The primary judge referred to the decision in Godfrey & Saunders [2007] FamCA 102 and in particular to the observations of Kirby J in AMS v AIF (1999) 199 CLR 160. At paragraph 136 of the primary judge’s reasons, the primary judge recorded that the court must weigh the advantages and disadvantages of the move on the children even though on the facts of this case the children had already moved homes but not schools. In paragraph 137 of the primary judge’s reasons the primary judge recorded the mother’s submission that she should be permitted to remain living in Town D and that no strong basis supported the father’s position that the children should remain in Town A attending their current school. In paragraph 138 the primary judge recorded that the father was questioned about his moving to the Town D area to be closer to the children if the mother were permitted to remain in Town D with the children being enrolled in a local school. The father gave evidence, synthesised in paragraph 138 of the primary judge’s reasons, to the effect that he had no intention of leaving Town A where he had lived for over a quarter of a century. The primary judge identified, correctly in my view, three issues that fell for determination, namely, that the Court should have regard to –
(a)within reason, that the primary carer is entitled to choose where he or she lives;
(b)whether the child’s relationship with the non-resident parent is able to be maintained in a meaningful way; and
(c)whether the non-resident parent might be able to move closer to the primary carer.
The primary judge said as follows –
142. Furthermore, it was submitted for the mother that:
a) although her reasons for moving do not have to be compelling or convincing, her reasons for moving were indeed compelling. She was in financial distress. Whilst the rent paid by [the mother’s current partner] and the mother’s mortgage are similar in quantum, that does not address the $200,000 the mother owed her parents, which she was only able to repay after selling the [Town A] property;
b) this is not a case of [the mother’s current partner] simply getting what he wants at the expense of the children’s needs. Rather, [the mother’s current partner], who came across as a genuine and generous man who has taken on the family’s financial security and who works to provide for the mother and the children; and
c) in any event, the mother’s proposal would not substantially limit the children’s time with the father, resulting in a reduction of 14 days each year.
143. The mother concedes that her proposal will limit the father’s mid-week time with the children and his involvement in their schooling, however, she says that this is not significant in circumstances where he currently does not actively involve himself in their schooling in any event.
144. Ultimately, it was submitted for the mother that the issue for the court was whether adequate, not optimal, arrangements could be made to maintain a meaningful relationship with both parents and her primary proposal which would see her remain living in Town D and the children attending school in Town D did this.
Taken in aggregate, I do not accept the submissions of counsel for the mother to the effect that the primary judge neither weighed the parties’ competing proposals or failed to assess the advantages and disadvantages of them or failed to consider whether the father could or should move. The primary judge did as the law required in assessing each of those matters.
Ground 3 was devoid of merit. I would dismiss it.
GROUND 4
Under this ground the mother asserted that the primary judge failed to make a proper assessment of the mother’s capacity to perform her role in Town A and that the primary judge gave insufficient weight to the mother’s right to freedom of movement.
In support of this ground, counsel for the mother made the ambitious submission that the primary judge failed to exercise her discretion according to law. In support, the mother’s counsel argued –
(a)according to Oswald v Karrington (2016) 55 Fam LR 344 the court must make a proper assessment of the capacity of the primary carer to perform that role in a place different to the place where the primary carer wishes to live;
(b)on the facts of this case, the primary judge failed to consider whether the mother could adequately perform her role in a place other than a place of her choosing;
(c)the primary judge failed to accord proper weight to the mother’s right to freedom of movement, in accordance with U v U (2002) 211 CLR 238; and
(d)the mother’s right to freedom of movement will be subordinated by the paramount consideration of the best interests of the child, as was canvassed in Franklyn & Franklyn [2019] FamCAFC 256.
In his written submissions the father contended that in the High Court, Kirby J (while in dissent in U v U) held that parents enjoy as much freedom as is compatible with their obligations. The father also relied on Franklyn & Franklyn to contend that any freedom of movement must yield to the paramount consideration of the best interests of the child.
Whatever might be the legal characterisation of the right the mother may possess to move freely, it must be subordinated by her parenting obligations under the Family Law Act. The best interests of the children are paramount. The legislation says as much in express terms. In any event, I do not agree that the primary judge gave insufficient weight to the concept of the mother’s right of freedom of movement. The primary judge acknowledged that the mother possessed that right. The primary judge also went to considerable lengths to address the best interests of the children in accordance with the provisions of the Family Law Act. The primary judge made no error in doing that.
In my view this ground of appeal failed. I would dismiss it.
Ground 5
This ground enlivened a consideration of s 60CC(3)(a) of the Family Law Act. In essence, the mother contended that the primary judge failed to consider the children’s views in the context of the children’s maturity or level of understanding.
In developing his submission in relation to this ground, counsel for the mother relied on the observations of the High Court in Bondelmonte v Bondelmonte (2017) 259 CLR 662, in contending that the primary judge did not analyse the evidence in respect of the children’s wishes about their appreciation of the issues involved in any relocation and its long-term implications. Recognising that these submissions, in reality, amounted to a criticism of the weight attributed by the primary judge to the matters enlivened under s 60CC(3)(a), counsel for the mother argued that the primary judge erred by stating on the one hand that the s 60CC issues were finely balanced yet on the other hand stating that the issue raised under s 60CC(3)(a) was a significant consideration in this case.
The father submitted that the primary judge made no error and expressly found that the children were of an age and maturity where their views ought to be taken into account.
It must not be overlooked that the consideration addressed in s 60CC(3)(a) is but one of the several additional considerations to be taken into account in assessing the best interests of the children. It is not a stand-alone matter nor is it in and of itself decisive of the parenting application before the court. The mother’s counsel endeavoured to elevate the primary judge’s findings about the children’s views to a status that it became an issue that was near dispositive of the application before the primary judge. It was not.
The primary judge’s treatment of the issue raised by s 60CC(3)(a) did not reveal appellable error. This ground failed. It should be dismissed.
Ground 6
This ground raised an omnibus complaint about the inadequacy of the primary judge’s reasons. In essence, the mother asserted, erroneously in my view, that the primary judge’s reasons were such that it is impossible to ascertain the reasoning on which the decision is based. The father asserted that the primary judge’s reasons were acceptable.
A ground of appeal focused on the so-called inadequacy of reasons is a regular feature in appeals in this jurisdiction. In Griffiths & Griffiths [2022] FedCFamC1F 219 the following was said about reasons –
56. As for the principles concerning the adequacy of reasons, some important observations must be made. They include the following –
a) as was recently held by the Full Court in Cantoni & Cantoni [2022] FedCFamC1A 11, the adequacy of the reasons vary with the circumstances of the case;
b) a failure to provide adequate reasons will itself constitute an error of law;[1]
[1] Fleming v R (1998) 197 CLR 250, Pettitt v Dunkley [1971] NSWLR 376.
c) not every point raised in argument needs to be the subject of the reasons; and
d) it is not necessary for a determination to be made on each and every item of disputed evidence so long as it is appropriately clear by inference, what facts are found.
57. In Hunter Transport Accident Commission [2005] VSCA 1, Nettle JA (as his Honour then was) provided a non-exhaustive list of indicators of valid reasons. They were –
a) the extent of the reasons will depend on the circumstances of the case;
b) the reasons should deal with the substantial points raised;
c) ordinarily that will include findings on material questions of fact and the evidence on which those findings are based;
d) reasons should provide an intelligent explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusions; and
e) if the judge has rejected evidence or material, the judge should refer to that evidence or material and explain why that evidence or material was rejected.
58. …
59. The decision of Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 is cited frequently in this Court for the statement of principle about the adequacy of reasons. There, Gray J held that reasons will be inadequate if an appeal court is unable to ascertain the reasoning on which the decision is based or if justice is not seen to be done. That said, the reasons as a whole must be examined in order to determine whether the minimum content of sufficiency for reasons has been met.
In this case I am of the view that the primary judge exposed the path of reasoning that led to the orders made. I do not accept that any error was thereby made. This ground failed. It must be dismissed.
CONCLUSION
All grounds of appeal have failed. I would dismiss the appeal.
COSTS
The respondent was not represented and so he did not incur costs on the appeal.
I certify that the preceding one hundred and thirty-five (135) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Wilson & Jarrett. Associate:
Dated: 2 August 2022
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