WILCOX & WILCOX - [2012] FamCAFC 21

FAMILY COURT OF AUSTRALIA

WILCOX & WILCOX

[2012] FamCAFC 21

FAMILY LAW ─ APPEAL ─ CHILDREN ─ Parenting arrangements ─ Best interests of the child ─ Not established that the learned Federal Magistrate failed to have any, or to have proper regard to the parties’ proposals ─ Where the Court was not persuaded that his Honour inadequately revealed the reasoning process which led him to his conclusion with respect to the child’s best interests ─ Where the Court was not persuaded that the learned Federal Magistrate erred in relation to the orders which facilitated the transportation to and from changeovers either as a matter of discretion or by providing inadequate reasons for his decision ─ Appeal dismissed

FAMILY LAW ─ APPEAL ─ Procedural fairness ─ Where it was asserted that although the learned Federal Magistrate was entitled to make orders which neither party sought, his Honour had erroneously failed to afford the parties the opportunity to be heard in relation to the possible making of such orders, thereby denying them natural justice ─ Where the course which the trial took would or should have left no one in the court in doubt that arrangements for the child’s care other than those sought by his parents were being considered, and that orders other than those which each party expressly sought may be made ─ Where it is not insignificant in the context of a natural justice complaint that it was the learned Federal Magistrate who repeatedly raised the question of what arrangements were likely to be in the child’s best interests ─ Appeal dismissed

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appeal was wholly unsuccessful ─ Where the father is to pay the mother’s costs of and incidental to the appeal as agreed or assessed on a party and party basis

Family Law Act 1975 (Cth) ss 60CC, 65DAA

Bennett & Bennett (1991) FLC 92-191
Pettitt v Dunkley [1971] 1 NSWLR 376
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Tatmar PastoralCo Pty Ltd v Housing Commission of New South Wales (1984) 54 ALR 155
U v U (2002) 211 CLR 238

APPELLANT:

Mr Wilcox

RESPONDENT:

Ms Wilcox

FILE NUMBER:

PAC

1483

2009

APPEAL NUMBER:

EAA

107

2010

DATE DELIVERED:

17 February 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Thackray & Murphy JJ

HEARING DATE:

31 January 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

20 August 2010

LOWER COURT MNC:

[2010] FMCAfam 966

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Dura

SOLICITOR FOR THE APPELLANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Ms Eldershaw

SOLICITOR FOR THE RESPONDENT:

Legal Aid NSW

Orders

That the appeal be dismissed.
That the father pay the mother’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 107 of 2010

File Number: PAC 1483 of 2009

Mr Wilcox

Appellant

And

Ms Wilcox

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed 12 October 2010 Mr Wilcox (“the father”) appealed against orders made by Federal Magistrate Harman on 20 August 2010 in parenting proceedings between the father and Ms Wilcox (“the mother”).
The orders of the learned Federal Magistrate provided that the parties have equal shared parental responsibility for their child X (“the child”), and that the child live with the father during school terms each alternative weekend from 3 pm or the conclusion of school on Friday until 9 am or the commencement of school the following Tuesday, extending to Wednesday in the event of Monday being a public holiday or a pupil free day. In each intervening week the child was to spend time with the father from the conclusion of school Monday or 3 pm, until the commencement of school Tuesday or 9 am. The orders uncontroversially provided that the child spend approximately one half of all school holidays with each parent.
The father’s Amended Notice of Appeal sought that this Court discharge the orders made by the learned Federal Magistrate and make parenting orders in the terms there set out, the effect of which would be that the child would primarily live with the father. Sensibly, Counsel for the father conceded that if the appeal was upheld, the proceedings would need to be remitted for rehearing in the Federal Magistrates Court.

BACKGROUND

The parties commenced cohabitation in 2001, and separated at the end of June 2007.
There was one child of their relationship, X, born in 2005.
Subsequent to the parties’ separation, the parties implemented relatively equal shared care arrangements for the child. Although those arrangements had operated largely uncontroversially for more than two years, the child’s commencement at school in February 2011, the distance which separated the parties’ residences and the difficulties of travel arising from such distance precluded relatively equal shared care of the child continuing. Each parent sought to be the child’s primary carer as and from the time he commenced school.
The learned Federal Magistrate concluded that the child’s interests would be better served by primarily residing with the mother than by primarily residing with the father.

THE GROUNDS OF APPEAL

The father’s Amended Notice of Appeal articulated a number of grounds. In his comprehensive written submissions, Counsel for the father grouped some of those grounds together.
At the commencement of the hearing of the appeal, Counsel for the father identified what he described as the two “major complaints” of the father as being the “lack of consideration of the parents’ proposals”, and the inadequate exposition of the reasoning process which led to the outcome arrived at by the learned Federal Magistrate.
A number of specific grounds of appeal traverse aspects of the father’s major complaints whilst other grounds were directed specifically to other complaints agitated on his behalf.

Grounds 7 and 8

The first “major complaint” of the father is most directly articulated in Grounds 7 and 8 of the Amended Notice of Appeal which provided:
7.That the Learned Federal Magistrate failed to give a proper consideration of the father’s proposal and/or otherwise make a finding that the proposal of the father is not in the best interests of the child.
8.That the Learned Federal Magistrate erred in failing to place any weight, or significant weight, or sufficient weight to the evidence of the child’s connection with the local area of the father.
In support of those grounds it was submitted that there was “nowhere contained within the Reasons an evaluation of the Father’s proposed parenting Orders” and that there was “no ‘weighing up’ of the benefits and/or disadvantages to the child by the learned Federal Magistrate with respect to the Father’s proposal”.
To the extent that these complaints were sought to be advanced by reference to matters arising from “geographical distance”, as Counsel for the father ultimately at least tacitly acknowledged, such factors cannot be shown to have assumed significance in the exercise of the learned Federal Magistrate’s discretion. That is so, as there was no finding by the learned Federal Magistrate that the father’s proposal was not reasonably practicable, and, at least inferentially, a finding that it was reasonably practicable.
Counsel for the father submitted that the learned Federal Magistrate “failed to place sufficient weight on the evidence adduced by the Father in support of his parenting proposal” and “failed to place any weight on the evidence adduced in the Father’s case as to the child’s connections with the area local [sic] of the Father’s residence”. Counsel for the father referred specifically to paragraphs 108 – 114 of the learned Federal Magistrate’s Reasons for Judgment in support of these complaints.
In the course of those paragraphs his Honour specifically recorded:
111.But it is important, also, in this regard. A limb of the father’s case – and I am, at this point in the judgment, referring to them as mother and father to avoid having to use everyone’s full name in light of the fact everyone in this case has the same surname – it is suggested in the father’s case that playing football for this team is a matter of some significance in determining the issue of where [the child] will primarily live, because [the child] has established friends and a routine in that area playing football for that team with his cousins.
It is clear that the football team to which his Honour there referred was a team in an inner Sydney suburb, where the father lived.
His Honour also recorded in that context:
113.It is also suggested that he plays with people, including his cousins, in that team. What is significant in that regard is that there would appear to be no dispute, or contest at least, as there is no evidence other than the mere assertion, that these cousins enjoy a good relationship with [the child]. I accept that they do primarily because it would seem logical that it be so. And it is, in any event, conceded by the mother.
Importantly, the learned Federal Magistrate proceeded to record that:
115.What is important with respect to that piece of evidence I feel flows on to, in fact, the germane issue in this case. The issues in this case are about relationships, about developing them so that they are meaningful, and about maintaining them.
116.There is inevitably, on each party’s proposal, going to be substantial change for [the child]. But what will change, in my mind, is his time arrangement and his care arrangements, not his relationships.
117.[The child] has developed a number of relationships, I accept, in both households on a part-time basis. He has not, for the last two years at least, had the experience of living substantially or primarily in one home. He has spent pretty much equal time in each home and has managed to develop and maintain meaningful relationships with a variety of people, significantly including his parents, whilst doing so.
118.There are also significant relationships on the mother’s side, including with her mother and people who are part of her church congregation, although she is less clear and specific about whom those people are.
119.He has also been attending two preschools and, no doubt, has formed friendships and associations through both. The preschool he attends while in his mother’s care is proximate to his home and in the same suburb. Whilst in his father’s care is proximate to the father’s place of work.
Nothing to which his Honour there referred has been shown to be factually inaccurate, or to contain inferences which were not reasonably open to him. We have not been referred to any other evidence “adduced in the father’s case” to which the learned Federal Magistrate failed to refer. The weight liable to be given to the matters to which he referred was a matter for the learned Federal Magistrate, although it is reasonably apparent that those factors were not regarded as favouring either party, for reasons which his Honour suggested, which are logically sound.
Moreover, as his Honour proceeded to record [par 120], there were other issues which were of greater significance than the factors to which he referred in the paragraphs recorded above. Nothing to which we have been referred establishes either that the learned Federal Magistrate failed to have any, or to have proper regard to the matters complained of in these grounds.
We have not been referred to any aspect of the mother’s proposals which the learned Federal Magistrate failed to consider which could have advanced the father’s case. Nor have we been referred to any asserted flaw or deficiency in the mother’s proposals to which his Honour failed to have regard. These complaints have not been made out.

Grounds 1 and 6

The second major complaint of the father, that the learned Federal Magistrate’s Reasons for Judgment failed to adequately reveal the reasoning process which led him to his conclusion, were articulated in Grounds 1 and, to a lesser extent 6, of the Amended Notice of Appeal and provided:
1.That the Learned Federal Magistrate erred in failing to provide reasons, or adequate reasons, to support an Order [that] the child live predominantly with the mother (Order 4).
…
6.That the Learned Federal Magistrate failed to make findings based on the evidence that the mother should be the primary ‘live with’ parent.
Although not expressly so formulated, the complaints in support of Ground 6 of the Amended Notice of Appeal were also relied upon in support of the adequacy of reasons challenge.
The father’s complaint was encapsulated in the following submission:
17.Having regard to the background of the parties and the child leading up the [sic] trial together with the proposals submitted to the Court by each of the parties, it is difficult to determine from a thorough reading of the Reasons the line of reasoning adopted by the learned Federal Magistrate in making the Orders he did in allocating the time that the child was to spend with each of his parents – Orders 3 and 4 of the Orders.
Not surprisingly, given the contention of Counsel for the father that the learned Federal Magistrate’s Reasons for Judgment were inadequate, his submissions were more directed to the asserted absence of matters which should have found expression in his Honour’s reasons than to unchallenged findings of fact and inferences drawn in reliance upon them which did.
On behalf of the father it was submitted, correctly in the Court’s view, that:
37.There was ample evidence before the Court, in the form of the Family Report […] that suggested that there was no overriding factor that would favour one parent over the other as the primary resident parent for the child.
In the context of the adequacy of reasons complaint, and in support of Ground 6, reliance was placed by Counsel for the father upon paragraphs 36 and 42 of the Family Report which were submitted to have recorded:
38.At paragraph 36 of the Family Report […] the Family Report writer noted “Nothing emerged, when the parties were observed with [the child], to suggest that he should live with one or other of his parents.”
Nothing to which we have been referred establishes or suggests that the learned Federal Magistrate considered that anything which the Family Consultant observed of the child with the parents favoured either over the other.
39.Similarly, at paragraph 42 of the Family Report […] the Family Report writer opined “A conclusive recommendation, however, does not emerge from this assessment. It is considered that [the child’s] needs would be met if the Court were to find in favour of either of his parents”.
The learned Federal Magistrate referred to paragraph 42 of the Family Report in the following terms:
49.Turning to the evidence, I will firstly deal with the evidence of Mr [L] who, as I have indicated, has both provided a report to the Court and attended for cross-examination. Mr [L’s] report is, in my mind, balanced and thorough. Mr [L] in the concluding paragraph, paragraph 42, somewhat apologetically opines:
“A conclusive recommendation, however, does not emerge from this assessment. It is considered that [the child’s] needs would be met if the Court were to find in favour of either of his parents. The child appeared attached to both parents and to have a close and positive relationship with [Mrs D], who impressed as a warm and responsive woman. Mr [Wilcox], however, appeared to have a significant investment in determining [the child’s] parenting program and may consequently seek to diminish or exclude [Ms Wilcox’s] influence on the child if [the child] were to live primarily with him.”
Later in his Reasons, the learned Federal Magistrate again referred to the Family Report, in the following terms:
145.[The child] has views, no doubt, about many things and is reported by Mr [L] as expressing a view to live with his dad. He phrases this in his report in paragraph 34:
‘‘I want to live with Daddy.” When asked if his father had said anything about living with him, [the child] said, “He said you can live with daddy all the time but you have to go see mummy sometimes. …”
In relation to “the nature of the child’s relationship with each parent and other people”, the learned Federal Magistrate said “I accept [it] is excellent as regards all”.
Nothing to which we have been referred establishes that any finding made by the learned Federal Magistrate in reliance upon the Family Report was other than reasonably open to him. Nor has it been established that the learned Federal Magistrate erroneously concluded that the evidence of the Family Consultant favoured either party over the other.
In our view, the learned Federal Magistrate recorded all that he usefully could, or needed to, in relation to the evidence of the Family Consultant with respect to the child’s attachments to his parents. That factor was, properly in our view, regarded by the learned Federal Magistrate as being neutral in the context of determining the child’s best interests.
It was further submitted in support of these complaints:
40.In proceedings such as these where the child had a history of equal time with each of his parents, there being no clear recommendations from the Family Report writer and a clear dispute between the parties as to who should be the child’s primary carer, it is submitted that it was encumbent [sic] of the learned Federal Magistrate, and in fact necessary, for a series of findings to be made so as to justify the Orders made as to the child’s parenting arrangements.
What additional “findings” the learned Federal Magistrate ought to have made has not been suggested by Counsel for the father. Read in the light of Counsel for the father’s oral submissions, the complaint is really about an absence of reasons, rather than a complaint that there was an absence or dearth of findings of fact.
Counsel for the mother submitted that the path of the learned Federal Magistrate’s reasoning was discernable from his judgment, and that his reasons were not “inadequate” in the sense that term is understood. In her cogently articulated submissions, and particularly those in support of “The second ‘notable element’: [the child’s] relationships with each parent and their continued involvement in his parenting”, Counsel for the mother referred to the matters which she asserted adequately revealed why the learned Federal Magistrate concluded as he did with respect to the child’s best interests. On behalf of the mother, it was submitted, correctly in our view, that no finding of fact therein recorded had been challenged before this Court.
The authorities governing challenges to the adequacy of judicial reasons were not controversial as between Counsel for the parties, and do not require restatement. [See Pettitt v Dunkley [1971] 1 NSWLR 376, Tatmar PastoralCo Pty Ltd v Housing Commission of New South Wales (1984) 54 ALR 155, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 and Bennett & Bennett (1991) FLC 92-191].
As the authorities make clear, the adequacy of reasons for judicial decisions is significantly influenced by the circumstances of the case, and the issues requiring determination. Correctly in our view, Counsel for both parties submitted that the parenting proceedings before the Federal Magistrate were “finely balanced”. Accordingly, it necessarily followed that a limited number of s 60CC factors could usefully inform the determination of the child’s best interests.

At the commencement of his judgment, the learned Federal Magistrate recorded, undoubtedly correctly, that the proceedings arose because the arrangements which the parties had successfully implemented for some years could not continue after the child commenced school in 2011 by reasons of the transport difficulties which flowed from the fact that the mother lived at a western Sydney suburb and the father lived at an inner Sydney suburb.
The reality that the parties had implemented “relatively equal shared care arrangements” for the care of the child for a significant time suggested that each party accepted, or did not seriously challenge, the capacity and commitment of the other party to facilitate the child’s best interests. Whatever deficiencies existed in the communications between the parents, they had communicated reasonably effectively in the child’s best interests over the time in which the equal shared care arrangements had operated. These realities significantly limited the number of factors which could usefully inform a determination of the child’s best interests.
Under the heading “The Issues”, the learned Federal Magistrate identified the issues of potential significance in the proceedings before him. The first of those was that:
46.The issues essentially in dispute between these parties in my mind are as follows:
a)A central issue of the extent and the ability of [the child’s] parents to communicate with each other, how that will occur, the frequency with which it will occur, the precision and detail involved in that communication and, most importantly, the people who will be involved in that decision-making and that communication.
It is Mr [Wilcox’s] proposal, and an important part of his case, that he and his wife, [Mrs D], are a team, as it were, and that they should both jointly and equally be involved in decision-making. That is heavily resisted by Ms [Wilcox], and that is remarked upon on a number of occasions in Mr [L’s] evidence, to which I will turn shortly.
The second factor to which his Honour referred was “family violence”. His Honour set out in that regard:
46. …
b)Has there been family violence perpetrated by Mr [Wilcox] upon Ms [Wilcox]?
There is no suggestion, I hasten to add, of any physical violence being perpetrated by either parent or any other member of their household upon [the child], but there are clear and serious allegations by Ms [Wilcox], and I will deal with those separately with respect to s.60CC considerations and the parties’ evidence generally.
The third factor identified by the learned Federal Magistrate was that:
46. …
c)Ms [Wilcox’s] attitude to involving Mr [Wilcox] and/or [Mrs D] in decision-making with respect to [the child] and arrangements generally.
In this regard, Mr [Wilcox’s] case is critical of Ms [Wilcox] on the following bases: firstly, that Ms [Wilcox] will not discuss matters at all on some occasions with either he or [Mrs D]; that Ms [Wilcox] does not tell him things relevant and important with respect to [the child’s] upbringing and welfare; that Ms [Wilcox] will not convey [the child] to football games in which he is enrolled to play in the vicinity of Mr [Wilcox’s] home, or at least not with absolute regularity or consistency; and that Ms [Wilcox] will not deal, and for a long time and until early this year would not deal at all, with [Mrs D] in decision-making.
His Honour encapsulated the positions of the parties in the following terms:
47.Those issues with respect to attitude are a significant aspect of Mr [Wilcox’s] case. That is not to suggest that they are in any way unimportant. They, in my mind, are somewhat fundamental, and, I have no doubt, to the fore of Mr [Wilcox’s] mind in the proceedings.
48.The response of Ms [Wilcox] is that she finds the level of communication that is expected of her, the manner in which communication is expected to occur, the parties to that communication and decision-making, to be onerous, unreasonable and unfair.
Nothing to which we have been referred establishes that his Honour misconceived the issues which he thus identified, or the parties’ proposals, or that he erroneously identified them in the paragraphs of his Reasons which we have recorded above.
Under the heading “The Evidence”, the learned Federal Magistrate considered the evidence and recorded a number of findings of fact made in reliance upon that evidence. Amongst those findings his Honour recorded:
63.Indeed, again I take some comfort from the description of Mr [L] in his report of this little boy, [the child]. He is described, notwithstanding that he has lived in an equal shared care arrangement since a very young age, which […] would suggest is contraindicative to his welfare, that he is indeed a child who is well-adjusted and not showing any signs of exposure to overt negative vibes between his parents.
The learned Federal Magistrate recorded in relation to the evidence of the mother:
69.Further, that her evidence was child-focused, as evidenced by her indication in the witness box that she was prepared to forego time, ie, she would prefer weeks to run from Friday to Sunday if she were not the primary parent and she saw that as being in [the child’s] best interests to avoid unnecessary and burdensome travel. Overall, I accept that submission. That is not to say that I do not accept credit with respect to other witnesses at different points.
Those findings have not been challenged before us.
His Honour recorded with respect to the evidence of the father and his present wife Mrs D:
70.In relation to the father and [Mrs D], I am urged by the mother’s counsel to find that [Mrs D’s] evidence, in particular, was flippant and offensive, and that the father’s evidence was less than frank and that together they represented a formidable and determined team. Certainly the latter part of that submission I accept.
Those findings have not been challenged before us.
Uncontroversially for present purposes, his Honour reiterated that:
73.…I do not accept that the mother was less than frank or forthright. The criticisms of her in this regard, that I am urged to use as the basis for finding her as being a less than frank and truthful witness, I do not find convincing.
In relation to the mother’s allegations of family violence, the learned Federal Magistrate recorded:
89.However, in this case, I accept the submission of counsel for the father that it is not necessary for me to make a finding positively or negatively. Although I find the version of events given by Ms [Wilcox] is cogent - and I hasten to add I do not fail to make a finding for failing to believe her evidence – I simply do not need to make the finding to deal with the judiciable issues before this Court.
The learned Federal Magistrate then considered, in considerable detail, the competing assertions to which he had earlier referred. His Honour recorded that:
92.It would also have some relevance with respect to the arguments advanced as a central tenant of Mr [Wilcox’s] case that the mother’s attitude towards communication and information provision and decision-making is unreasonably [sic]. To that extent, I am satisfied – and with respect to other issues that I will canvas shortly – that Ms [Wilcox] should not be criticised with respect to communication between these parents and, more pertinently, between herself, Mr [Wilcox], and [Mrs D].
In relation to the dispute with respect to communication, the learned Federal Magistrate recorded that:
101.…I find some difficulty in accepting [Mrs D’s] version of events or, if accepted, that she has demonstrated the level of care and insight into the importance of preserving that relationship as would be suggested in her evidence as a whole.
His Honour also recorded that:
104.As I have indicated, I do not need to make a finding in that regard because it is not germane to what I must determine, but it is, at the very least, unfortunate and regrettable. And it would appear, since that time, any goodwill that had begun to develop through the three coffee meetings, or otherwise, evaporated quickly.
As we have noted earlier in a different context [par 13], the learned Federal Magistrate recorded that the parties “can make anything work if they turn their mind to it”.
As Counsel for the father submitted, it can be inferred from the foregoing passages, which contain no findings of fact which have been challenged, that the learned Federal Magistrate found the proposals of both parties reasonably practicable, and that practicability was not a factor which influenced the exercise of his discretion.
His Honour then recorded that:
133.The parties’ current and future capacity to communicate I accept – with the reservations that I will make in a moment between the mother and father – is adequate, if not good.
That factor did not assume significance in the exercise of his Honour’s discretion. Nor could it have in the light of his Honour’s unchallenged finding that the parties “can make anything work if they turn their mind to it.”
The learned Federal Magistrate also recorded that:
134.The impact of the arrangement on the child: both parents concede, as does Mr [L] that this will be a big change for [the child]. But it is a change that both parents acknowledge must happen.
That factor too was neutral in his Honour’s determination of the child’s best interests.
Having referred to the child’s expression of a “wish to live with Daddy” and the child’s statement that his father told him “you have to go to see Mummy sometimes”, the learned Federal Magistrate recorded:
146.In my mind what is significant about that is not that a conversation would have occurred – it is not unexpected that a parent will discuss matters with their children, particularly if they are coming to see a family consultant and I would not expect that any parent would simply present their child here without any idea of what they are doing. What is significant in my mind is the latter part of that response though. Not significant that Mr [Wilcox] is reported as saying to [the child] that his Daddy says he can live with him all the time, but the negative connotation put in relation to his mother, who is often, it seems, referred to [by her first name] rather than Mummy.
147.The phrase “You have to go see mummy sometimes” does not, in my mind come close to meeting what Full Court authorities regarding the express and implied obligations of supporting a child’s relationships require. It puts it in a negative tone that it is something that this child must endure, whereas the evidence is quite clear and it does not seem to be an issue between the parents that [the child], in fact, enjoys an excellent relationship with both of his parents.
As noted earlier, the child’s relationship with each parent and “other people” was found to have been excellent, and was not a factor which assumed significance in the exercise of his Honour’s discretion.
The learned Federal Magistrate’s reasons with respect to “The willingness of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent”, was significantly relied upon by Counsel for the mother. That factor was submitted to have been, on a balanced reading of his Honour’s Reasons, a most significant factor in the exercise of his discretion.
His Honour recorded in that regard:
151.I am perfectly satisfied that Ms [Wilcox] has that ability and has demonstrated it. I am satisfied to a similar, but not quite equal, extent that Mr [Wilcox] has and will continue to do so. The matters that cause me concern in that regard include what I have raised above, as well as the matters that I previously quoted from Mr [L’s] report. Those matters do cause me some concern.
That “concern” was amplified in the paragraphs which followed:
152.There is a flavour, if nothing else, to Mr [Wilcox’s] evidence and Ms [Wilcox’s] regarding the importance to him of his wife, [Mrs D], being recognised and placed on equal footing with each of [the child’s] parents in decision-making, information sharing and that she be acknowledged as a parent, but regrettably and without intending any disrespect at all, she is not. [The child] has two parents. And the difficulties that have arisen from that very issue as to who is to be included in information exchange, because it is quite clear that in the communication book and emails that [Mrs D] is actively involved in forwarding material to Ms [Wilcox] much to her chagrin, is something that needs address as it has caused difficulties but for which these parties might not have been before this court.
Later, the learned Federal Magistrate recorded:
157.… But from the time that Mr [Wilcox] entered his relationship it appears that he has done nothing that would suggest hastening slowly as regards not only the introduction of [Mrs D] into [the child’s] life but an insistence that [Mrs D] become part of communication and effective parental responsibility for [the child] notwithstanding the obvious discomfort and disquiet this has caused - and as Mr [L] has noted - the fact it has caused division and difficulties that have not been in [the child’s] best interests.
His Honour reiterated that:
158.It is understandable that he would have that attitude, but it would not appear that Mr [Wilcox] has placed himself into either [the child’s] shoes or in this circumstance, more importantly, [Ms Wilcox’s] shoes to see it from her point of view other than to suggest that the difficulties arise out of jealousy. There is nothing to support that, however.
The “Effect of Change” was clearly seen by the learned Federal Magistrate as not favouring either party, for the reasons which he articulated:
159.In dealing with the balance of s.60CC considerations the likely effect of change I have already touched upon. There will be a substantial change to the extent that Mr [L] has suggested that it may, perhaps, require some counselling or other assistance beyond his parents’ goodwill. I am satisfied that his parents’ goodwill, if they both turned their mind to it as a united front between the two of them, would address the issue, but I am also satisfied that appropriate support will be sought out if needed.
160.The change otherwise is not something that, in my mind, should occur with the beginning of the 2011 school year as that will cause even more disruption for [the child].
Nor was the “Practical Difficulty and expense” of the child spending time with either parent seen by his Honour as favouring either party.
Matters of “Maturity, seeks lifestyle and background, including culture” [pars 162 – 165] were not considered to favour either party, notwithstanding that the child’s aboriginality derived from his Mother. “Family Violence” was not considered by the learned Federal Magistrate to be a factor which assumed significance in determining the child’s best interests.
Although, with respect to him, the learned Federal Magistrate may have more fully exposed the reasoning process which led him to conclude as he did, in our view a balanced reading of the entirety of his Honour’s Reasons adequately reveals the factors which persuaded him that the child’s best interests would be served by primarily living with the mother.
The case was undoubtedly finely balanced, as all parties acknowledged, and the learned Federal Magistrate’s findings with respect to the matters to which we have referred confirm. Where so many things were equal, there were only a limited number of factors which were ultimately likely to “tip the balance” as Counsel for the father aptly said in the course of his submissions. It is unsurprising given the parties’ ability to implement relatively equal shared care arrangements for the child for so long, that the merits of their respective cases were so finely balanced.
We are left in no doubt that the learned Federal Magistrate’s decision was ultimately primarily referrable to the findings of fact with respect to “The willingness, ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent”, none of which has been challenged before us. Albeit secondary to those factors, his Honour was, correctly in our view, satisfied that his finding, which has not been challenged, that the mother’s proposal involved travel which was “less onerous” than did that of the father, impacted upon the determination of the child’s best interests.
We are not persuaded that his Honour inadequately revealed the reasoning process which led him to his conclusion with respect to the child’s best interests, or otherwise erred in any of the ways asserted by these grounds.

Ground 3

Ground 3 of the father’s Amended Notice of Appeal was abandoned, and in our view sensibly so.

Grounds 4 and 5

Grounds 4 and 5 of the Amended Notice of Appeal were agitated conjointly and provided:
4.That the Learned Federal Magistrate erred in failing to provide procedural fairness to the parties, particularly the father, in relation to Orders 3(a), 3(b), 6 and 7.
5.That the Learned Federal Magistrate erred in failing to foreshadow the Orders that His Honour was contemplating without giving the parties an opportunity to address them.
The crux of these complaints was that, although the learned Federal Magistrate was entitled to make orders which neither party sought, his Honour had erroneously failed to afford the parties the opportunity to be heard in relation to the possible making of such orders, thereby denying them natural justice.
The gravamen of the complaint, was that, notwithstanding that the mother had at all material times sought orders that the child should spend two out of every three weekends with the father during school term, the learned Federal Magistrate ordered that the child spend only alternate weekends with him, without ever having raised the prospect of such an order being made.
As is not in doubt, whilst the father did not receive as many weekends in school term as the mother had offered him, his Honour ordered that the child also spend time overnight with the father during the week in school term. The mother had always opposed the child spending time overnight with the father except on weekends, albeit she ultimately sought that such periods of time could include Monday nights.
It is not in doubt that the orders made by the learned Federal Magistrate did not accord with the orders sought by either party. It was sensibly conceded that, provided that the learned Federal Magistrate afforded the parties natural justice, the father could not successfully complain about that.
In the course of his oral submissions, and with commendable frankness, Counsel for the father referred the Court to a number of passages in the transcript, the cumulative effect of which is, in our view, to impede rather than advance these complaints.
Before referring to those paragraphs, it is appropriate to refer to the proposals of the parties as they were variously advanced and/or understood by the learned Federal Magistrate.
The learned Federal Magistrate recorded:
22.The proposals that each party puts with respect to [the child’s] care in the future would best be typified as describing each seeing themselves as becoming [the child’s] primary parent, at least insofar as the allocation of time between them is involved. Because an important element of this case is in fact the clear, lineal distinction between time and relationships, that both parents agree at the outset and in the orders proposed by them in minutes of order that are now exhibits in the proceedings – exhibit F5 in the father’s case and exhibit M12, as well as contained within her case outline, in the mother’s case – that [the child’s] best interests once he starts school will be served by living primarily with one of his parents, at least during school weekdays, and attending school proximate to the home of the parent with that primary time.

His Honour further recorded that:
23.The mother’s proposals are in a number of alternatives, and that has largely arisen from matters that I had raised during the hearing and during Ms [Wilcox’s] cross-examination. The mother’s primary position is that she would say that [the child] should live primarily with her during school weeks and would spend two out of three weekends from Friday to Sunday with his father. There is an alternate proposal as contained in the mother’s minute of orders which would extend that to two weekends out of three from Friday to Monday, from and before school.
With respect to the father’s proposals, the learned Federal Magistrate recorded:
25.Mr [Wilcox’s] proposal is that [the child] would live primarily with him and would spend, at least during school terms, time with his mother on an alternate weekend basis from the conclusion of school Thursday till the commencement of school the following Monday, and in the other week, from the conclusion of school Thursday to Friday. That is put as being more consistent with the definition of substantial and significant time contained within s.65DAA.
As is not in doubt, the position of the mother, as his Honour recorded, changed to some extent during the course of the trial, essentially, and to her credit, by increasing the time which the child should spend with the father if he were to primarily reside with her.
The parties each filed case outlines in the proceedings before the Federal Magistrate. During the course of the hearing the mother filed an amended statement exhibit M5.
Early in the course of cross-examination, the father was asked to clarify his proposal for the child’s care. The father’s proposal was that the child spend alternate weekends with the mother, albeit with the child also spending Thursday night with the mother in each week.
During the course of cross-examination of the mother, the following exchange occurred:
HIS HONOUR: No, I’m not getting into that at the moment. I’m saying: well, if the issue is going to be put to this witness as to whether she seeks midweek time rather than just weekend time, so I certainly understand the orders Mrs [Wilcox] proposes for two weekends out of three don’t really see much midweek time other than delivering him to school for two Mondays out of three. How would your client see it work, though, if he were saying: well, it’s important that I have weekday time? What would that look like?

MS CONTE-MILLS: Well, that is the difficulty of which your Honour is charged, and that is ‑ ‑ ‑
HIS HONOUR: It is.

The following exchange ensued:
HIS HONOUR: I think really, the issue is the [child’s] schooling is going to happen where he primarily lives during the week, and that’s something his parents bring about because no one wants to move. So I’m just interested then if, in fairness to [Ms Wilcox], and it may flow in reverse as well, that if [Ms Wilcox] is successful in her desire to be the primary time parent – I put the word “time” in advisably, because they’re both going to be equally parents – then what do I do about midweek time? What is everyone proposing I should do about midweek time? I certainly know Mr [Wilcox] says if he’s successful in winning first prize that [the child] should spend time with his mum from after school Thursday to the start of school Friday each week. That’s the effect of it. Plus every second weekend. What does Mr [Wilcox] say it should be if it were reversed?
…
…I just want to canvass the possibilities. That’s what the Full Court says I’m meant to do.
MS CONTE-MILLS: Yes.
HIS HONOUR: Look for alternate ways of achieving a relationship, because I’m not here to divvy up time. I’m here to best foster and encourage and continue a meaningful relationship with both parents.
MS CONTE-MILLS: Yes. Your Honour, because those discussions were legally privileged, I would seek time to get some instructions as to how Mr [Wilcox] ---
HIS HONOUR: Certainly.
MS CONTE-MILLS: --- proposes – and I don’t want to put words in my friend’s mouth, but perhaps she would seek instructions in the reverse as to how her client proposes ---
HIS HONOUR: Well, I’ll need to hear it in submissions, if not otherwise, but I prefer it to be put to the parties, at least in terms of their views of it, its practicality, etcetera, because it’s important. It’s not a relocation case.
MS CONTE-MILLS: No, it’s not.
Later, the learned Federal Magistrate said:
HIS HONOUR: No, well I’d written myself a note to actually ask that, but then didn’t. But we may take that course. But certainly, do you want to take a moment certainly to take those instructions from your client, though, as to: if [the child] was living primarily with his mum out west, how he would see this idea of his midweek time, so I’m very conscious it’s a very clearly stated part of your client’s case he doesn’t want to be a weekend dad. To some extent, each parent is proposing the other is going to be a weekend parent, and the practicalities of Sydney traffic and congestion, without trying to make it sound like an election issue, is simply that it’s not a big distance.

Shortly thereafter Counsel for the father tendered Amended Minutes of Orders sought by the father. Those minutes were accurately reflected by his Honour in the paragraph of his Reasons [par 25] which we have earlier set out.

The comprehensive submissions of Counsel for the mother in opposition to these challenges were cogently encapsulated in the following terms:
70.By contrast, in this case, the subject matter of the orders made by the Court could come as no surprise to the parties. The father plainly knew the Court would make orders about where [the child] would live, what mid-week time he would spend with the non-resident parent, what transport arrangements would be put into place to implement the residency/time spent orders and so forth.
71.In any event, the Appellant was provided with ample opportunity to address the Court on the parenting arrangements that he thought should be made for [the child], although that opportunity was barely used.
It was further submitted on behalf of the mother that:
78.During submissions on Day 2 of the hearing, the learned Federal Magistrate raised a number of matters about the possible arrangements with the father’s counsel, including:
(a)What the actual difference was between the proposals in terms of how [the child] continues his relationships with each parent in a qualitative sense, “bearing in mind he’s got to live with one parent” […];
(b)Identifying that one parent would be the “weekend parent”, recognising that “it has to cut both ways” – being a reference, it seems, to the internal logic of the father’s proposal […];

(c)Identifying that the mid-week time that the non-resident parent would spend with [the child] would be a “token toe in the water” – with which the father’s counsel agreed […];

(d)Asking: “[…] if I decided – and I haven’t yet, but if I decided that seeing as both parents say substantially he should be with one parent during the school terms mid week, and I decided that should be Ms [Wilcox], why isn’t what he is offering Ms [Wilcox] appropriate? […]; and

(e)Identifying to the father’s counsel that her submissions were focussed on the father’s relationship with [the child] and remarking: “If I focus purely on how do I continue [the child’s] relationship with his father, I fall into error, because I have to focus on how [the child] continues his relationship with both” […] and posed a number of possibilities […].

79.The learned Federal Magistrate stated for a second time within short compass that he could not confine his focus to the impact of the change to the arrangements would have on [the child’s] relationship with the father, but needed to focus on [the child’s] relationship with both parents, the father’s counsel concluded by saying:
That’s correct, your Honour. And that’s why your Honour is on the bench, and I can’t assist you to determine that further. […] (footnotes omitted)

80.The exchange between the learned Federal Magistrate and the father’s counsel on this issue was briefly re-opened at […] but that was limited to a formulation concerning consecutive nights. His Honour immediately expressed a view about that proposal, essentially dismissing it, for the reasons stated at […] (“it’s not a game of maths”). The father’s counsel responded with “yes” and then moved on to another topic.

In U v U (2002) 211 CLR 238 Gummow and Callinan JJ with whom Gleeson CJ and McHugh J agreed, said at page 260:
80.We do not doubt that the Family Court is obliged to give careful consideration to the proposed arrangements of the parties. Whether the Court is obliged, or will be able in every case to treat each of the three steps as discrete and in the suggested order may be another question. But the Court is not, on any view, bound by the proposals of the parties. The Court has to look to the matters stated in s 68F and elsewhere in the Family Law Act in coming to a decision about the residence of a child, and the objective is always to achieve the child’s best interests.
81.It is to that overarching issue that the primary judge applied his mind. In doing so he did not overlook the appellant’s entirely reasonable desire, to return to Mumbai. Nor did the primary judge invent, as the appellant’s submissions imply, all of the arrangements for the child’s residence with the appellant in Australia, as opposed to India. That such an outcome was a real possibility could not have escaped the attention of the parties from the inception of the proceedings. How could it be otherwise when the respondent’s repeatedly expressed intention and desire were to remain in Australia, and those of the appellant to return to, and live in India with the child. These were at the heart of the litigation, as was the even more fundamental matter, that each of the parent’s preference with respect to the national residence of the child was sincerely based. If there were any doubts about these matters it must have been dispelled by the respondent’s stated position with respect to contact with N if she were to live with the appellant in India, and by the exchange in cross-examination of the appellant which we have quoted.
Largely for the reasons advanced by Counsel for the mother, we are not persuaded that these challenges have substance. In our view, the course which the trial took, as revealed by the transcript passages to which we have referred would or should have left no one in the court in doubt that arrangements for the child’s care other than those sought by his parents were being considered, and that orders other than those which each party expressly sought may have been made. It is not insignificant in the context of a natural justice complaint that it was the learned Federal Magistrate who repeatedly raised the question of what arrangements for his care were likely to be in the child’s best interests.

Ground 2

Ground 2 of the Amended Notice of Appeal provided:
2.That the Learned Federal Magistrate erred in failing to provide reasons, or adequate reasons, to support Orders that the father is to be personally responsible for the transportation, collection and delivery of the child at all relevant changeovers (Orders 6 and 7).
Order 6 made by the learned Federal Magistrate provided:
(6)For the purpose of [the child] passing in to the Father’s care for the above periods that [the child’s] Father shall collect [the child] from his school or the Mother’s home at the commencement of each period and shall return him to his school or the Mother’s home at the conclusion of each period that occurs during school terms.
As Counsel for the father made clear, the complaint made by him is not that the obligation to facilitate changeovers at the commencement and conclusion in the arrangements for the child’s care fell entirely upon the father, but rather that the learned Federal Magistrate’s order precluded the father’s wife, Mrs D, from undertaking the travel necessary for them to occur.
It was submitted by Counsel for the mother that the Court should construe the order literally, as imposing the obligation upon the father to undertake the transport therein referred to. Counsel for the father did not dispute, at least for the purpose of the present complaint that the order should be read literally. Counsel for the mother submitted that the learned Federal Magistrate provided ample reasons for excluding Mrs D from participation in the transportation of the child to and from changeovers.
The complaint on behalf of the father was that, he having expressly sought an order that would permit Mrs D to transport the child to and from changeovers, and the mother having neither formally opposed such an order, nor indicated a lack of opposition to it, the learned Federal Magistrate had denied the father natural justice by nevertheless making an order which precluded Mrs D from so doing.
In support of the specific challenge raised by Ground 2, Counsel for the father submitted:
25.Similarly, in circumstances where the learned Federal Magistrate had ample evidence before him as to the work commitments of the Appellant Father, the nature of the relationship between the child and the Father’s wife and the finding by His Honour as contained in paragraph 161, there again appears no rationale, or line of reasoning, to support the basis for the Order made by His Honour compelling the father to be the person responsible for all travel arrangements for the child and must attend to that travel personally. (Order 6 of the Orders).
The paragraphs of the learned Federal Magistrate’s Reasons [pars 142, 143, 146 & 147 and 152] upon which Counsel for the mother relied do not in our view reveal, nor could they have reasonably revealed, a basis for excluding Mrs D from contributing to the child’s transport to and from changeovers. We shall return to the significance of that conclusion.
It is not in doubt that the father expressly sought an order that his wife Mrs D be able to participate in changeovers. In his Amended Initiating Application filed 11 February 2010 the father sought an order in the following terms:
10.For the purpose of spending time with the child, the father or step mother will collect the child from the McDonald’s Restaurant at Parramatta at the commencement of his time and drop off the child at the same venue at the conclusion of her time, except on Thursdays, where the changeover venue shall be Ermington Shops, Corner of Victoria Road and Spurway Street (Betty Cuthbert Avenue).
In the outline of case filed on behalf of the father at trial before the learned Federal Magistrate the father reiterated that claim.
The Amended Minute of Orders ultimately sought by the father, which became Exhibit F5 before the learned Federal Magistrate, deleted paragraph 10 of the previous Minute, and sought in lieu thereof:
9.For the purpose of spending time with the child, the mother will collect the child from the McDonald’s Restaurant at Parramatta at the commencement of her time and drop off the child at the same venue at the conclusion of her time, except on Thursdays, where the changeover venue shall be Ermington Shops, Corner of Victoria Road and Spurway Street (Betty Cuthbert Avenue). Once the child commences school in 2011, the mother shall collect the child from and deliver him to school on the occasions where her time with the child occurs on a school day.
The mother’s outline of case document before the learned Federal Magistrate sought an order in the following terms:
6.For the purpose of spending time with the child the father will collect the child from the mother at McDonalds Restaurant at Parramatta at the commencement of his time and shall return the child to the mother at the same venue at the conclusion of his time.
The subsequent Minutes of Order sought by the mother [Exhibit M12] reiterated paragraph 6 of the outline of case document.
Unsurprisingly, given the terms of the learned Federal Magistrate’s orders, no orders for time to be spent by the child with each of the parents was made in the terms in which the parties appear to have both sought in relation to changeovers at McDonalds Parramatta.
Counsel for both parties were unable to refer us to any discussion of this topic, either during the course of evidence or in submissions before the learned Federal Magistrate. Unsurprisingly, in the circumstances, nothing emerging from his Honour’s Reasons for Judgment sheds useful light on the topic. That is not said critically of the learned Federal Magistrate, it being reasonably clear that the issue assumed little or no significance at trial.
The issue is not without difficulty. In the Minutes of Order ultimately advanced on his behalf, the father did not persist with the claim which he had previously made in relation to Mrs D and the child’s transportation to and from changeovers. Nor, either in evidence or submission, or by way of alternate relief, was any order to that effect pursued. In those circumstances, it is difficult to legitimately conclude that the learned Federal Magistrate erred either in making the order he did, or by inadequately revealing the reasons for doing so. Nor, in the circumstances can it necessarily be inferred that his Honour intended to exclude Mrs D from assisting with the child’s travel arrangements, if that is how Order 6 should be construed.
Although the subject was touched upon in an historical context, we have not been referred to any cross-examination of the mother in which the involvement of Mrs D in the child’s transportation in the future was canvassed. In the absence of anything subsequent to it, and particularly absent any submissions in that regard, we are unable to accept that his Honour erred in failing to either make an order of the kind previously sought by the father or to raise the prospect that he would not make such an order. That is particularly so given that it is less than entirely clear that the father continued to seek, even in the alternative, an order to that effect.
We are accordingly not persuaded that the learned Federal Magistrate erred in relation to this issue, either as a matter of discretion or by providing inadequate reasons for his decision.

CONCLUSION

No ground of appeal having been made out, the appeal should be dismissed.

COSTS

Counsel for the father sensibly acknowledged that, if the appeal were wholly unsuccessful, his client could not resist an order for costs.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Coleman, Thackray & Murphy JJ) delivered on 17 February 2012.

Associate:

Date: 17.02.2012