WHITCOMB & WHITCOMB (No.2)

[2019] FCCA 584

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITCOMB & WHITCOMB (No.2) [2019] FCCA 584

Catchwords:
FAMILY LAW – Parenting – application for orders to be stayed – stay not granted – application in a case dismissed.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Trahn & Long(No.2) [2008] FamCAFC 194

Applicant: MR WHITCOMB

Respondent: MS WHITCOMB

File Number: PAC 6361 of 2017

Judgment of: Judge Harman

Hearing date: 30 January 2019

Date of Last Submission: 30 January 2019

Delivered at: Parramatta

Delivered on: 30 January 2019

REPRESENTATION

Counsel for the Applicant: Ms Grew

Solicitors for the Applicant: Coleman Greig Lawyers

Solicitors for the Respondent: Smythe Wozniak Solicitors

ORDERS

1. Dismiss the Application in a Case filed 7 December 2018.

2. All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

IT IS NOTED that publication of this judgment under the pseudonym Whitcomb & Whitcomb (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 6361 of 2017

MR WHITCOMB

Applicant

And

WS WHITCOMB

Respondent

REASONS FOR JUDGMENT

1. These proceedings come before the court today in relation to an Application in a Case filed by Mr Whitcomb on 7 December 2018.  The application seeks orders in the following terms:

   (1)Pending further order, the orders made by this Court 7 November 2018 be stayed.

   (2)That orders made by Judge Dunkley of the Federal Circuit Court on 8 February 2018 be operative with some slight amendment thereto.  The amendments would include a significant extension to the time that was ordered by Judge Dunkley. 

2. That application is filed consequent upon the filing of a Notice of Appeal with respect of the substantive orders referred to above, that appeal having been filed on 4 December 2018. 

3. This application was initially listed before the Court 13 December 2018.  That date was adjourned with the consent of the parties and upon the basis of an undertaking provided by the respondent mother, being the respondent to both the substantive proceedings and the appeal, that the respondent would not seek to relocate herself or the child pending determination of the Application in a Case.

4. The Application in a Case is dealt with today in a busy duty list.  The list is over-listed by approximately 400 per cent.  Accordingly, significant and, one might well refer to and accept as arbitrary, constraints upon time for submissions has applied.  That is regrettable.  It is not intended to deny due process to either party and certainly not intended to be disrespectful to counsel for the parties.  It is simply an accommodation of time that is permissible with the bulk of work still remaining to be addressed.

Material Considered

1. In dealing with the proceedings today, I have read and considered the material filed on behalf of the applicant comprising his Application in a Case and affidavit filed 7 December 2018. 

2. In the case of the respondent, I have read and considered the documents filed by her comprising a Response to the Application in a Case; an affidavit by the mother; affidavit by Ms B, the employer of the mother; and an affidavit by Ms A, the paternal grandmother.

3. Objection is taken by the applicant to that material, it having only been filed and served yesterday.  An explanation was given for the lateness of the material flowing from delays in the determination of the grant of Legal Aid in favour of the mother.  I do not intend, by referring to the delay, to be critical of the Legal Aid Commission and the officers seized with the responsibility of the determination of the grant.  It is a simple reality that in light of the volume of applications they receive that there is and must be a significant delay in determination.  I accept the material as being prepared and filed as promptly as possible after notification was given of the grant.

4. A number of the matters raised within the material are suggested to be prejudicial to the applicant’s case, particularly those relating to the financial position of the mother.  However, I am conscious that the mother gave evidence, albeit in far broader terms, of those financial difficulties in the substantive proceeding.  The mother also gave evidence in the substantive proceedings of the basis upon which those difficulties arose being, essentially, that the debt arose from the conduct of a business by the parties during the relationship, of which business the respondent was the sole registered proprietor.

5. For reasons that were given in the substantive proceedings but are not relevant to this determination, upon the separation of the parties the applicant commenced and continues with the conduct of that business, albeit under a different name and style.  Thus, complaint is raised and was raised, albeit without the specific particularisation now advanced, that the debt relating to the former enterprise of the parties jointly has been retained by the respondent whereas the goodwill, if it might be so described, in the nature of business contacts and clientele and the income generated therefrom, is retained by the applicant.  It is not a significant issue as regards to the determination of this application.

6. Each of the parties have made brief oral submissions.  A written document is tendered in the respondent’s case. 

7. In addition to the material filed by the parties there are also two exhibits; Exhibit A, the Notice of Appeal filed by the applicant; and Exhibit B, the collective cost disclosure of the parties.  What is disclosed therein is that in the substantive proceedings and prior to receiving a grant of legal aid the respondent had incurred legal costs funded by herself or from her resources of approximately $24,000.  The costs of the applicant with respect of the substantive proceedings are approximately $70,000 including this application for stay. 

8. That has some relevance in light of that which is submitted, particularly in relation to one of the grounds of appeal, being that the Court miscarried in its discretion by failing to take into account a material consideration, namely, that neither party could afford to pay the costs of the child’s travel.  It is perhaps an issue of discretionary expenditure. 

9. The applicant has been able to fund the substantive proceedings, some $63,000 of legal costs together with, as a condition of the orders made by Judge Dunkley already referred to, a payment to the respondent or on her behalf of $385 per week in relation to her accommodation costs, having returned to Sydney.  That is in the context, as is submitted by the respondent, that the most recent financial information that was available in the substantive proceedings disclosed a taxable income of the applicant of $31,000 gross per annum, significantly less than that funded.

10. I do not raise those issues as a criticism of the applicant.  He is entitled to expend his income as he pleases.  It does suggest, however, that there might be some basis to suggest that the complaint that there was a failure to take into account the inability of parties to afford travel could be subject to criticism.

11. The parties are relatively agreed, by reference to identified authority, as to the principles that must be considered in a stay.  I am conscious that those principles are set out eruditely in a number of authorities including those referred to by the parties and particularly Trahn & Long (No 2) and Aldridge & Keaton (stay appeal). 

12. There are 11 principles which must be applied and addressed, not all of which are relevant to this determination.  They warrant some enumeration, however, and I will deal with each in order.

The onus to establish a proper basis for the stay is upon the applicant

1. The applicant asserts that the difficulty that arises is that the failure to grant a stay will disadvantage this child and be contrary to his best interests, causing what is described as yet another change in his accommodation arrangements occurring in a short space of time.  Some context must be given to that statement. 

2. At the time that these parties separated in late 2017, they were living together in rental accommodation, the accommodation they had lived in for some two years prior thereto having, prior to that, lived together in New Zealand and in Town L before deciding to settle themselves in Sydney, a factor addressed and enumerated in the substantive judgment. 

3. The parties had themselves, during their relationship with each other, not of any significant length of time it must be observed, been mobile, including internationally.  The three moves of the respondent which are criticised comprise in order:

   (a)The separation of the parties.  At that time the evidence that was given, and it was somewhat uncontroversial, if not, in fact, agreed, is that the maternal grandparents were visiting and also staying at the same premises as the parties.  A dispute arose between the father and the maternal grandfather, and the grandparents were asked to leave.  The mother left with them, taking the child with her, but only after having requested that the father might consider rendering up the accommodation.  He refused.  Nothing turns upon that issue.  It is not particularly germane other than to observe that the separation of the parties arose in that context. 

   (b)The mother then, for some few days, whether with or without her parents, “couch-surfed”, as it was described in the substantive reasons, before relocating herself to Southern Queensland.  She then rented accommodation and established a home there in Southern Queensland.  Then in a very short space of time these proceedings were commenced, orders were made by Judge Dunkley, of which I make no criticism at all, that the mother relocate herself and the child, more germanely the child, to Sydney.  The mother did so in compliance with the order, a condition thereof being the payment already referred to of $385 per week by applicant to the respondent, to assist in that cost.  Whether that has met all of the rental cost or not is unclear, but nor need it be.  This represented the second change. 

   (c)The third change that is then referred to is that if the stay is refused, the mother will relocate herself again to South Queensland, returning to the accommodation which she had initially rented and in which it is now suggested the maternal grandparents also reside, whether permanently or at least on a part-time basis. 

4. That is somewhat relevant to the determination of a proper basis for the stay.  I accept, as is submitted by each of the parties, that the child’s best interests are predominant and important, indeed, paramount in the determination as to whether a stay is granted.  It is submitted that I must accept that there is real prejudice to the child’s best interests if a stay is not granted and the mother acts upon her express and stated intent to relocate herself as the orders permit her to do.

5. The father’s complaint is not only that the child’s residence will again change, although perhaps restored to that which had been established by the mother prior to the intervention of this Court, but that the father’s time with the child will significantly reduce. 

6. It is to be observed that an increase in the father’s time has occurred since the hearing of the proceedings in early November 2018 and is consensual between the parties.  All that the orders made by the Court had required is that the parties continue to comply with the interim orders made by the Court until the relocation occurred.  The parties have, through their own endeavours, built upon that arrangement and now incorporate, for the first time since their separation, at least on any substantive basis, regular overnight time.  It is a credit to the parties jointly that it is so.

7. To the extent that it is submitted by the father there will be a significant reduction in his time, I accept that there will be some reduction, but it falls well short of substantial.  The real complaint is perhaps that there will be less frequent time. 

8. That father indicates, in his affidavit material, that he has been spending time with the child for six days per fortnight.  If one qualifies that statement as being portions of days for six days per fortnight, it can be readily accepted.  It is not, however, six days.  That might suggest, at the very least, a substantial and significant care arrangement in relation to this child verging upon, if not in fact being, shared care.  The time that, in fact, occurred throughout the currency of the proceedings and until the parties’, following judgment and conclusion of the substantive proceedings, negotiated a fresh arrangement, was a period of time for three hours on Tuesdays and Thursdays and for a period of five hours on the Saturday and Sunday of each alternate weekend.  I do not suggest that it is appropriate to mathematise the time.  I have dwelt upon the issue purely to draw the distinction between that broadly asserted in the father’s material, that he has had the child in his care six days per fortnight, and the reality of what that has comprised.  It has comprised four periods of three hours and two periods of five hours per fortnight. 

9. There will certainly be a reduction in frequency, as the father correctly observes.  On the basis of those interim orders, the father’s time with the child has never had a gap of more than four days.  The time periods that are ordered in the substantive reasons will permit time each alternate weekend, on an overnight basis, rather than the non-overnight periods that the interim orders provided for. 

10. It must also be observed that in the substantive proceedings, and by close of submissions, that the father’s position was that the child should live predominantly with the mother, the mother having conceded, during her cross-examination, that she had no intention of relocating herself to Queensland if that was at the expense of an order made by this Court that the child could not live with her.  Thus, the father’s position had changed such that he advanced that the child should live with the mother in Sydney and that the father would then spend time, essentially as is now sought in the Application in a Case. 

11. The Application in a Case seeks not only a stay but to re-agitate interim relief in that whilst the father suggests that a term and condition of the stay would be a continuation of orders made by Judge Dunkley.  The orders Judge Dunkley in fact made are as above.  The father now seeks as a “condition” of the stay, (and I do not suggest opportunistically, appropriately so perhaps in light of the arrangement that the parties have put into place themselves), a dramatic expansion of that time.  The father seeks alternate weekend overnight time, rather than two periods of five hours.  The father seeks alternate weekends approaching a 48-hour period, including Friday and Saturday night.

12. The proper basis for the stay is otherwise best addressed by reference to the further considerations which must be considered.  However, the child’s best interests, I accept, is an appropriate basis upon which to seek a stay, or at least to the extent the father suggests there would be disadvantage.  Set against that, of course, are the balance of considerations and the simple reality that the substantive judgment determined that the child’s best interests were served by relocation.

A person who has obtained a judgment is entitled to the benefit of the judgment

1. The respondent has already significantly delayed relocation in accordance with the orders that were made, appropriately so, having sought the adjournment and thus having offered her undertaking to not seek to relocate until such time as the stay application was addressed and whilst she was awaiting determination of her application for Legal Aid.  However, the mother has put in place arrangements.  She has, throughout the substantive proceedings, maintained the tenancy of the property to which she seeks to move.  She has had that expense, whether assisted by parents or otherwise, throughout the course of these proceedings.  She has removed her furniture, or the vast majority of it.  She has arranged employment.  She gave clear and specific evidence, in the substantive proceedings, of her intention to pursue that employment.  She has been able to commence that employment, albeit working remotely.  It is unclear from the evidence for how long that circumstance could continue.  The benefit of the judgment, clearly, in that regard, falls with the respondent who is entitled to its benefit.

A person who has obtained a judgment is entitled to presume that it is correct

1. It is, perhaps, one of the difficult issues with any application for stay determined, as such an application is, by the trial judge whose very judgment is challenged.  It is the mother’s entitlement to assume the judgment is correct, however, not the Court’s.  Other than noting the consideration it does not assist.

The mere filing of the appeal is insufficient to grant a stay

1. The parties each concede that.

The Bona Fides of the Applicant

1. There were a number of issues that the respondent points to in this regard.  One of the issues that arises is the difficulty that I have in accepting the father’s appeal ground, although it is not for me to accept.  That is a matter for the Full Court.  But perhaps, more germanely, in support of the application for a stay, it is the father’s submission that if the mother were to now relocate with the young child to south Queensland that he simply could not afford travel. 

2. One of the bases of objection to the mother’s material is that the mother leads evidence of the father having, very shortly after the trial, travelled to New Zealand, his country of birth, for a period of nine days or so, participating with a friend in a hunting trip, something in which both parties appear to participate.  The father suggests that if he was given the opportunity he would lead evidence that it had not been at expense to him.  Whether it was his expense or at the largesse of others need not concern me. 

3. What it speaks to in terms of the mother’s case is the father’s complaint that the mother’s relocation will mean that the father will, for the first time, go for more than four days without seeing the child.  Clearly, the father was content to do so for the purpose of that hunting trip and to the extent that the judgment is impugned, indeed, the mother was criticised for placing her needs above those of the child.  One might level the same criticism at the applicant in relation to that trip. 

4. The mother also asserts that the applicant has been able, as recently as the weekend of 18 and 20 January, to travel with others to Brisbane, affording both the cost of travel and the cost of accommodation whilst there.  All of that speaks poorly to acceptance of, not so much the bona fides of the applicant in his appeal, but that allegation as to unaffordability.  As was observed at the commencement of the substantive judgment and quoting Hayne and Kirby JJ, relocations involve difficult decisions.  These are difficult decisions.  I accept they are difficult for the parties and all the more difficult for the parties to accept if their position or proposal has not found favour. 

5. What this evidence speaks to, however, is the reality that the father makes choices for himself which, whilst they do not impact directly upon the mother, certainly impact upon the child.  If he can absent himself from the child for 10 days to pursue an activity, which he is more than entitled to participate in should he so desire, it begs the question why it is of such concern that the father suggests that his time with the child will be more limited if the mother moves.  Certainly, as regards cost disclosure and funding of the mother’s accommodation or contribution thereto for the last 12 months (a position which the father advocates he will continue as a condition of any stay granted), I have difficulty accepting the father’s position that he cannot afford the travel.   The father suggests in this application and as a basis of appeal that he cannot afford travel and that will lead to a breakdown in his relationship with the child. 

1. It was accepted at hearing that the father, in all probability, could afford that travel noting the conundrum created by his disclosed income being abundantly insufficient to meet the cost of his own rental plus his contribution to the mother’s.  As the mother submits, of course, the father will now have $385 per week available to meet travel, $770 a fortnight.  The father’s evidence, whether accepted or not at trial, was that it would cost him $1000 a fortnight to be able to travel to Queensland and spend time in accordance with the order.  There is not such a sufficient disparity between the two as to support his submission that it simply is impossible.  I simply do not accept that aspect of the applicant’s bona fides.  I accept that he genuinely advances his position on appeal and that he advances the appeal as he wishes to seek to impugn the judgment and to have it set aside.  Whether he is successful or not in that regard is not a concern for this Court.  This Court’s business is done. 

A stay may be granted on terms that are fair to all the parties

1. This, perhaps, is the crux of this decision.  The Court must weigh the balance of convenience and the competing rights of the parties and, importantly, the rights, if they might be so described, of the child.  As already observed by closure of evidence in the substantive case, there was no dispute that this young child would live with his mother.  The only issue was whether the mother would, through such orders as the court might make, be effectively restrained from relocating the child, the mother having indicated that she would not move without him.  The father conceded that, provided the mother stayed in Sydney, he would not challenge the child living with the mother.  That is not a criticism of the father, it was an entirely appropriate position for him to adopt. 

2. It is also submitted, in the mother’s case, and appropriately so, that the very time that the father would spend under the orders that were made at the conclusion of the substantive proceedings, is the time that the father proposed that the mother would spend with the child in the event that she had relocated to Queensland and the father had successfully pressed his application (which position did not require advancement in light of the mother’s concession) that the child pass to live with him.  There was no suggestion by the father that there was any difficulty in that travel being afforded.  Clearly, the evidence, both in the substantive proceedings and as is now sought to be advanced, by the mother, that evidence simply adding detail to that which she has already led, would suggest that the mother’s travel would have been a far more onerous burden upon all, particularly the mother, and far more likely to lead to a breakdown in the child’s relationship as the mother is more impecunious. 

3. As to what is fair for both parties and for the child, there is the mother’s evidence that she is in dire financial straits at present and particularly arising from the circumstances of the relationship, her retaining all of the debt of the business operated by the parties, the applicant retaining, effectively, the business or its substance and subject matter, and thus the income derived therefrom. 

4. There is no dispute that the mother has not, since the separation of the parties and whilst living in Sydney, had paid employment.  Her income has comprised of largesse from her family, Centrelink benefits and the $385 per week contribution from the father.  As was accepted in the substantive judgment, and I accept appropriately so, notwithstanding any challenge to it on appeal, the mother lived in parlous financial circumstances.  Her finances would be significantly improved by the relocation that she agitated and which she now seeks to attain from the benefit of those orders. 

5. To the extent, thus, that criticisms as raised in the appeal grounds and in relation to this application, that the mother’s welfare, interests and benefit was preferred over those of the child, I reject the submission.  Specific reference is suggested to have been made, at paragraph 118 of the judgment, as supporting that proposition.  However, no such statement was made nor finding arrived at.  What was expressed within that paragraph, quite clearly, was each of these parents could parent young [X] wherever they were. 

6. They accepted that there was no barrier to the mother remaining in Sydney, it being a significant element of the father’s case in the substantive proceedings and on appeal that the Court has erred in its discretion by permitting the mother’s relocation, notwithstanding that she could not identify any such barrier.  I accept the submissions put by counsel for the respondent that case law does not dictate that as a test or requirement.  The paragraph, however, concluded that the mother would not be rendered incapable of meeting her needs or [X]’s if required to stay.  However, I accepted that she would be better able to parent if she were able to live where she so desired.  She would have family support, employment, better financial prospects and ready assistance in the event that she required it in meeting [X]’s needs.  Thus, the focus was upon the impact upon [X]. 

7. The mother’s financial position in Sydney is and remains parlous.  The mother gives evidence that she is now required to quit her premises.  There may be substance to the applicant’s complaint that the mother, notwithstanding her full knowledge of the application for a stay lodged by the applicant, has given notice to quit her premises.  She gives evidence that she is required to quit in any event.  Nothing turns upon which is the case.  The mother is entitled to give notice to quit, noting, as the Full Court has opined, indeed, repeating that which has flowed from the High Court, that the mother is entitled to assume that the judgment is correct and entitled to its benefit. 

8. The mother’s financial position will be improved if she moves.  She is meeting the costs of rent, or some portion thereof, at premises that she has not occupied for 12 months.  She will live with one or both of her parents, at least for some of the time if not all of the time.  She will have their support and assistance, the pooling of income to some extent and, in all probability, readily available and free childcare from the child’s grandparents, something which is not available in Sydney. 

9. Certainly, it is admitted that the evidence of the maternal grandmother, indeed, also the maternal grandfather, is that they would always provide support to their daughter.  Indeed, that was evidenced in the substantive proceedings by the fact that they had, prior to this relationship between these parties commencing, lived with their daughter in Darwin.  She left Darwin to commence a relationship with the applicant and relocated herself to New Zealand for that purpose.  She is thus returning to the very support that she had prior to the relationship, although now with a much greater need for it, as was noted in the substantive judgment. 

10. In that regard, the fairness to the mother must be accommodated and balanced against fairness to the father, but I accept and am satisfied, as opined by Justice Kirby, subservient to the child’s best interests.  I am not satisfied that the child’s best interests are prejudiced by moving.  Indeed, as was found in the substantive judgment, the child’s best interests are served and improved by the mother moving.  She will have family support readily available within the same accommodation, at least for some of the time. 

11. To the extent that it is accepted that the support would be available irrespective of where they (the mother and her parents) lived, it is to be noted that the maternal grandparents, at the time of hearing, were living some 10 hours or so north of the mother’s intended accommodation at Area M in Queensland, thus 20 hours north of the mother’s accommodation in Sydney.  The practical ability of them to render that assistance, particularly as the health of the paternal grandfather was introduced by the applicant as an issue, (suggesting that it was impossible for certain things that he had given evidence of to have occurred in light of what was described, without intending disservice to the gentleman, of his obesity and frail health), is reduced by distance.  One would think it would be less likely that immediate support could or would be provided by them over distance.  They might be available at the end of a telephone, but that is not the same as being available in the same home, particularly with respect to childcare, child minding and day-to-day parenting assistance.  I am satisfied that the unfairness to the mother of granting a stay outweighs the fairness to the father.  I am satisfied refusal of the stay supports the child’s best interests. 

A Weighing of the Risk that the Appeal May be Rendered Nugatory

1. The appeal will not be rendered nugatory if the Full Court finds dissatisfaction with and impugns the judgment and remits the matter for rehearing or exercises their discretion to rehear, although remittal is sought and, in the circumstances of the case and the errors alleged that would appear the appropriate course.  Refusal of a stay does not preclude the child being ordered to return.  That would be dependent upon the mother returning with the child, or perhaps a resumption of the father’s primary position, noting that, for nearly the entirety of the conduct of the trial it was and, remained the father’s position that the child should pass to live in his care. 

2. Certainly it will involve another move for the child, but it is a move that is consistent with that which was ordered by Judge Dunkley, and appropriately so, in February 2018.  The appeal is not rendered nugatory.  It simply means that there will be another change in the child’s life.  That must be considered as a significant issue as the child’s best interests are a relevant if not paramount consideration in this application.  But, the child’s best interests were determined in the substantive reasons, which the respondent is entitled to assume are correct, as supporting the child’s relocation.  It is not that the child will not have time with the father or a relationship.  The mother has clearly demonstrated her support for the child’s relationship. 

3. The mother had raised allegations of family violence in the proceedings which, whilst I was satisfied that they need not be determined to the point of finding, must be weighed, at least as to the mother’s state of belief and the allegations raised by her.  In relation to her actions, she has always complied with orders.  She has ensured that the child is available on each and every occasion that the father has availed himself of time.  She has, in fact, voluntarily extended the time that is spent since the conclusion of the substantive hearing and judgment. 

4. The parties were addressed directly with the recommendation, although not the subject of the orders, that any relocation might be delayed until after Christmas so that the child could spend time with the father.  The mother readily agreed to that proposition, irrespective of the application for a stay and the undertaking given to her, and she has demonstrated that she can be relied upon to act out that which she commits to.  On that basis, I simply am not satisfied the appeal is rendered nugatory nor that the child best interests are compromised. 

5. The father clearly has the financial means, notwithstanding his complaint to the contrary, to fund expenses when he chooses to.  The source of funds are not known.  They are not led in the applicant’s evidence, nor need they be, nor need I inquire into them.  Simply to observe that, to date, expenditure in excess of $70,000 has occurred and it is suggested that additional expenditure of $20,000 or so will occur in relation to the conduct of the appeal.  Even accepting the father’s evidence as to that which it would cost him to travel, that would fund at least a year of travel.  He has simply made a discretionary choice as to where he invests his funds.  In those circumstances, I am not satisfied that this ground supports a stay.

Some preliminary assessment of the strength of the proposed appeal, and specifically whether the applicant has an arguable case

1. I make clear that it is not my role to determine the appeal nor to second guess that which the Full Court may consider and deliberate upon and ultimately conclude in determining the appeal. 

2. The grounds that are relied upon, five in total at this point, there being a sixth ground seeking leave to amend once the settled transcript of judgment is available, the reasons having been delivered on an ex tempore basis at the conclusion of the trial and on the day following, are all challenges to an exercise of discretion. 

3. It is submitted that discretion was miscarried in that:

   (a)It was unreasonable and plainly unjust to find that it was in the child’s best interests to allow the relocation;

   (b)There was a failure to take into account material considerations that neither party could afford travel.  That is already addressed above.  I would have some difficulty in accepting, on the evidence led in the substantive proceedings, let alone that which is before the Court today, that this ground could possibly be supported.  Indeed, the substantive reasons make clear that a specific finding was made that it could be afforded, and thus the allegation that it was not taken into account could not be validly advanced;

   (c)There was a misunderstanding of the evidence of the family consultant and/or that the family consultant’s views were elevated to a determinative status, thus causing discretion to miscarry.  With the greatest of respect, a consideration of the reasons for judgment must suggest, although, if the Full Court finds a contrary view, so be it, that the ground is misapplied;

   (d)It is suggested that in the event that the mother’s evidence was that she would remain in Sydney if relocation was not ordered and it was only a preference rather than an imperative, that error occurred by prioritising the mother’s interests above those of the child, particularly as the relocation would limit time that the child would spend with the father.  That is, to a large extent, already addressed above.  Certainly, there is no imperative upon the mother to demonstrate a reason or compelling reason, although reasons may be relevant to considering the child’s best interests in the context of relocation. 

   (e)It is alleged that “given the totality of the evidence” that it is not open to the primary judge to find that the mother would be financially disadvantaged and socially isolated.  The mother’s evidence, which was unchallenged, is that she has no friends or family in Sydney.  How that is not social isolation is difficult to understand.  She has relatives in Queensland, albeit portions of her evidence were somewhat vague and non-specific not having included in her material their names or their specific locations.  I do not raise that as a criticism of the mother or preparation of her material.  It is simply that which was put to the mother in challenging her evidence.  She did not back down, however, from her evidence as to those relatives nor was any serious challenge mounted to the evidence. 

4. The mother, of course, has her parents.  Their evidence was that they would spend at least some of the time living with their daughter at the accommodation that she proposes to occupy in or about Area M in Queensland.  Their evidence would now appear to be that they have moved there, at least substantially so.  Certainly, their evidence was clear that they were not people of great means or wealth, thus the question of support by family, already addressed above, must be seen in that context.  They are not people who can afford to fly down to Sydney to support their daughter if, for example, she becomes significantly ill and needs assistance.  They can do that, of course, if they were living in the same home or, at least, with a reasonable distance to traverse. 

5. That challenge, in light of the evidence, is difficult to accept as maintainable.  However, it is not my job to make that determination.  It is for the Full Court.  But, on a consideration of those grounds, whilst it is an arguable case, I am not satisfied it could be described as a strong case.  They are all challenges to an exercise of discretion.  One would think that relevant appellate principles might flavour the manner in which they are approached.  It is not a strong element, nor dispositive.

The Desirability of Limiting a Frequency of Change in the Child’s Living Arrangements.

1. This is already addressed above.

The Period of Time in Which the Appeal Can be Heard.

1. There is no evidence as to when the appeal will be heard.  I accept that the Full Court is efficient in its listing practices and processes and, certainly, the appeal will be heard this year. 

2. At this point, there is no application for expedition.  Upon a refusal of this stay there may be an additional appeal filed and joined, and at that point in time, an application for expedition.  That is a matter for the applicant.  However, at this point, the Court cannot take into account the time in which the appeal will be heard because there is no evidence. 

3. Lastly, the best interests of the child are a significant consideration, although perhaps not, as it is in any consideration of the substantive parenting orders, paramount.  As I have indicated above, I am prepared to even accept that the child’s best interests should be given paramountcy, certainly over and beyond the factors 1 to 10 above. 

4. As already described and for the reasons given, I am not satisfied that the child’s best interests would be impugned or other than advanced, as the substantive reasons found, by the mother’s relocation even if, ultimately, the appeal finds favour with the Full Court and is remitted for rehearing.  The remittal, of course, will see another delay.  It is unlikely if the matter were remitted that the matter would be heard before the end of this year.  In fact, that could not be facilitated unless a judge were found from another registry.  It may well be that further delay is necessary as a further family report might, for example, be required.  If that were to occur, and subject to the parties’ funding or the Court funding a report from its own resources, there would be some delay, substantial if the Court were to fund it. 

5. For all of the above reasons, I am not satisfied that it is necessary or appropriate for a stay to be granted.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date: 8 March 2019