Winter & Winter - [2008] FamCAFC 159

FAMILY COURT OF AUSTRALIA

WINTER & WINTER

[2008] FamCAFC 159

FAMILY LAW - APPEAL - CHILDREN - Relocation - Where father appealed against orders allowing the mother to relocate children from Sydney to the Gold Coast - Where father argued that the trial Judge erred in failing to give adequate reasons as to why relocation was in the best interests of the children - Where father argued that the trial Judge erred in failing to give adequate reasons for departing from the family consultant’s unchallenged evidence - Appeal allowed - Matter remitted for re-hearing
FAMILY LAW – COSTS - Certificates ordered for appeal and re-hearing under Federal Proceedings (Costs) Act 1981 (Cth)

Family Law Act 1975 (Cth), s 62G
Federal Proceedings (Costs) Act 1981 (Cth), s 6, s 8, s 9

Bennett and Bennett (1991) FLC 92-191
D and P [2006] FamCA 170
Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1
Hall and Hall (1979) FLC 90-713
House v The King (1936) 55 CLR 499
Housing Commission of NSW v Tatmar PastoralCo Pty Ltd [1983] 3 NSWLR 378
Sampson and Hartnett (No 10) (2007) FLC 93-350
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Tyson and Tyson (No 2) (1993) FLC 92-401

APPELLANT:

MR WINTER

RESPONDENT:

MS WINTER

FILE NUMBER:

SYF

3583

2006

APPEAL NUMBER:

2008

DATE DELIVERED:

27 October 2008

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Thackray and Ryan JJ

HEARING DATE:

2 September 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

6 June 2008

LOWER COURT MNC:

[2008] FamCA 400

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr R Lethbridge SC

SOLICITOR FOR THE APPELLANT:

Dimocks Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms A Rees

SOLICITOR FOR THE RESPONDENT:

Abrams Turner Whelan

Orders

That the appeal is allowed.
That orders 2, 5, 7, 10, 11 and 12 made by the Honourable Justice O’Ryan on 6 June 2008 are set aside.
That the matter is remitted for rehearing before a judge other than the Honourable Justice O’Ryan.
That the Court grants to the appellant father a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by the appellant father in relation to the appeal.
That the Court grants to the respondent mother a costs certificate pursuant to the provision of section 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by the respondent mother in relation to the appeal.
That the Court grants to each party a costs certificate pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

IT IS NOTED that publication of this judgment under the pseudonym Winter and Winter is approved 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: EA 66 of 2008
File Number: SYF 3583 of 2006

MR WINTER

Appellant

And

MS WINTER

Respondent

REASONS FOR JUDGMENT

Introduction

The father has appealed against a suite of parenting orders the effect of which is that his former wife was permitted to relocate their two children from Sydney to the Gold Coast. The orders were made pursuant to the Family Law Act 1975 (Cth) on 6 June 2008. The mother resisted the appeal and sought to maintain the trial Judge’s orders.
By his Amended Notice of Appeal filed on 18 August 2008 the father challenged orders 2, 5, 7, 10, 11 and 12 of his Honour’s orders. By virtue of the orders under challenge, the children would live with the mother and she was permitted to relocate the children to the Gold Coast in Queensland. Thereafter the children would live with the father two weekends per calendar month, alternating between the Gold Coast and Sydney, at his election for one week during each school term on the Gold Coast and for one half of each school holiday period with an additional week during the Christmas school holidays. The remaining orders under challenge concern implementation arrangements and variations to the scheme just outlined for special events.
Although in his Amended Notice of Appeal the father sought a set of parenting orders which, by no later than the commencement of the 2009 school year, would see the children’s time equally divided between the parties, in closing addresses his senior counsel submitted, in the event his appeal succeeds, his Honour’s orders should be set aside and the parenting proceedings remitted for rehearing before another judge.
The mother resisted the father’s appeal and sought to maintain the orders. In the event the father’s appeal succeeded, the mother sought that the matter be remitted to the trial Judge for his further consideration.
In the event the appeal is allowed the parties agreed the existing interim parenting orders should continue until a new set of final parenting orders are made.

Background facts

The father was born in December 1961.
The mother was born in August 1964.
In 1986/1987 the mother moved from Queensland to Sydney where she has lived ever since.
By the time the mother moved to Sydney, the father was well established in Sydney. His family reside in a town in regional New South Wales. Having completed his secondary and tertiary education in Sydney, the father settled there. Apart from a two year period in the early 1990s when he worked overseas, the father has lived in Sydney ever since.
The parties commenced living together in April 1998.
In August 1998 the parties married. When the parties married the mother was employed as a manager in the hospitality industry. At all times since the father has worked full-time as a professional.
In mid 1999 the mother fell pregnant. In September that year she ceased paid employment. Until the parties stopped living in the same home, at all times since the mother has been fully occupied as a homemaker and parent. During this period she was primarily, however not exclusively, responsible for the children’s care.
The parties’ first child, O, was born in April 2000.
Shortly prior to O’s birth, the parties purchased their family home at S, a lower north shore suburb of Sydney.
Their second child, R, was born in January 2004.
In January/February 2005 O commenced kindergarten at S Preparatory School.
On 19 February 2006 the parties separated. Although separated they continued to live in the family home. The children’s living arrangements did not change.
The parties physically separated when, on about 19 May 2006, the mother vacated the family home taking the children with her. For a few weeks she and the children lived in a motel and stayed with friends. The father remained in residence at the family home, which is where he was living at the time this appeal was heard.
On 1 June 2006 the mother moved into a rented property at C Street in S.
Following separation, the parties reached an informal temporary agreement concerning the children’s care. Commencing 7 June 2006 the children began living with the father overnight on Wednesdays and each alternate weekend.
On 7 August 2006 the mother filed an Application for final and interim parenting orders in the Family Court at Sydney. Essentially the mother proposed the children live with her on the Gold Coast and spend significant time with the father, in Sydney and on the Gold Coast. At trial she relied upon her Amended Application filed on 17 May 2007. Her primary proposal accorded with the orders under challenge in this appeal.
On 11 September 2006, pending determination of adjourned interim proceedings, orders were made which, summarised, provided that the parties have equal shared parental responsibility for the children and that the children spend time with the father four nights per fortnight during school term and during specific periods in the September/October 2006 school holiday period. Additional orders required the father to pay ongoing specified expenses for the mother and children.
The father filed a Response to the mother’s application on 14 September 2006. At trial he relied upon his Amended Response filed on 17 January 2008. In summary the father opposed the mother’s relocation application. Until R starts full-time school the father proposed that the current orders continue and thereafter that the children’s time be divided equally between the parties. Like the mother he suggested adjustments for special occasions.
On 6 November 2006 further interim parenting orders were made. These orders are set out below and continued until the final parenting orders were made. As a consequence of the father’s successful stay application pending determination of this appeal, the children’s living arrangements have continued as provided for in the 6 November 2006 orders.
The 6 November 2006 orders, insofar as they are relevant, are set out below.
1.The children [O] born […] April 2000 and [R] born […] January 2004 are to live with the father:
(a)each alternate weekend from after school on Friday until the commencement of school on Monday; and
(b)every Wednesday from after school until the commencement of school or day care on Thursday,
(c)from 9:00 am on 10 December 2006 until 9:00 am on 15 December 2006;
(d)from 9:00 am on 20 December 2006 until 12:00 noon on 25 December 2006;
(e)from 9:00 am on 30 December 2006 until 9:00 am on 4 January 2007;
(f)from 9:00 am on 9 January 2007 until 9:00 am on 14 January 2007;
(g)from 9:00 am on 19 January 2007 until 9:00 am on 24 January 2007;
(h)for one half of each of the 2007 school holidays and unless the parties agree to the contrary that is to be the first half.
2.At all other times subject to the parties’ agreement the children are to reside with the mother.
3.For the purposes of these arrangements the father will collect the children at the commencement of each period the children live with him and he shall collect the child [R] from the mother immediately after the child [O] is collected from school, and the mother will collect the children at the conclusion of each occasion except that in relation to each Wednesday the father will collect the children from school and from the mother and return the children to school and day care the following date.
4.The husband is to pay to the wife $1,200.00 per week and the first payment is to be made this Wednesday, 8 November 2006 and payments every Wednesday thereafter.
5.By consent the husband pay the amounts referred to in Orders 9, 10 and 11 of the interim orders made on 11 September 2006 as set out hereunder:
“9.That the husband meet all tuition fees charged by any school or day-care attended by the children as and when they fall due.
10. That the husband shall continue to
a.maintain the children and the wife in their current level of coverage with Medicare Private
b.pay the accounts relating to the wife’s mobile phone service.
11.That the husband meet all outgoings in relation to the former matrimonial home as and when they fall due including mortgage and loan repayments to Westpac, rates, insurance and utilities.”
IT IS NOTED
6.The character of all payments is ultimately a matter for the Trial Judge in the final property proceedings:
Since November 2006 the father has paid the mother $1,200 per week.
On 18 November 2006 the mother moved from C Street to rented premises at S Road in S.
A final hearing pursuant to Div 12A of Pt VII of the Family Law Act 1975 commenced before the learned trial Judge on 21 February 2007. As well as the parenting proceedings, this hearing included competing applications for the adjustment of property, spousal maintenance and child support. Pursuant to s 62G of the Act, Ms B, a family consultant, was ordered to prepare a report concerning the children which focused on matters she identified during the first day of the hearing. The identified issues are found at par 6 of the learned trial Judge’s judgment (“the judgment”) and are as follows:
·Whether the children should be allowed to relocate to Queensland with their mother.
·Whether or not it is in the children’s interests to spend equal time with each parent.
·How O and R will spend time and communicate with the parent with whom they do not live.
·The viability of the children maintaining a close relationship with their father if they relocate with their mother to Queensland.
·The impact of the unresolved financial dispute on the parental conflict and the competing proposals of each parent.
On 17 May 2007 the family report was released to the parties. In summary, the family consultant recommended that the children remain living in Sydney. These recommendations are set out at par 7 of the judgment and are as follows:
47.It is recommended that the parents have equal shared parental responsibility for the children.
48. It is recommended that the children remain in Sydney.
49.It is recommended that the children live with the mother and spend significant and substantial time with the father as follows: each alternate weekend from after school Friday until the commencement of school on the Monday and each Wednesday from after school/day care until the commencement of school/day care Thursday morning.
50.It is recommended that, in 18 months time, taking into consideration the children’s increased age and developmental needs, a week about arrangement be considered.
51.It is recommended that, in the event that either parent’s current or future work commitments impact on their availability to care for the children, the children spend time with the other parent as first option.
52.It is recommended that the parents equally share school holidays and spend time with the children on special occasions such as birthdays, Mother’s/Father’s Day and Christmas.
53.It is recommended that the children be allowed unrestricted communication with each of their parents.
The hearing resumed on 21 May 2007 for two days. When the hearing did not finish it was adjourned to a date to be fixed.
On 15 November 2007 the mother leased a semi-detached house at C Road in S for $850 per week. This was $150 per week less than she had initially paid for S Road and $400 per week less following a June 2007 rent increase.
The hearing resumed and was completed on 8 February 2008.
Final orders as to parenting, property and spousal maintenance were entered on 6 June 2008 with the learned trial Judge’s reasons for judgment published the same day. These orders are set out below and include those orders under challenge in this appeal.

Orders 6 June 2008

1.The Husband and the Wife have equal shared parental responsibility, in consultation with each other, for the long term care, welfare and development of the children of the marriage [O] born on […] April 2000 and [R] born on […] January 2004.
2.The Wife be permitted forthwith to relocate the children to live on the Gold Coast in Queensland.
3.The Wife be responsible for the day to day care, welfare and development of each child when they live with her.
4.The Husband be responsible for the day to day care, welfare and development of each child when they live with him.

5. The children live with the Husband during each school term: -
5.1.one weekend per calendar month from after school on Thursday until before school on the following Monday in Queensland; and
5.2one weekend per calendar month from 7:00 pm on Friday until 4:00 pm Sunday in Sydney; and
5.3 at the Husband’s election, for one week in each school term from after school on Friday until before school the following Friday, such week to be as agreed between the parties at least four weeks prior to the commencement of each school term and failing agreement to be for the fourth week of each school term;

6.The children live with the Husband during each school holiday period:-
6.1for one half of each school holiday period, such half being as agreed between the parties at least four weeks prior to the commencement of each school holiday period, and, failing agreement, for the first half of each school holiday period in each even numbered year and the second half of each school holiday period in each odd numbered year; and
6.2for an additional week in the Christmas school holiday period, such week to be as agreed between the parties and failing agreement to be at the end of the first half of the holidays in each even numbered year and at the beginning of the second half of the holidays in each odd numbered year.

7.Subject to orders 5 and 6 hereof each child otherwise live with the Wife.
8.When the children are living with the Wife, the Husband have unrestricted communication with each child by letter, telephone, email or any other electronic means.
9.When the children are living with the Husband, the Wife have unrestricted communication with each child by letter, telephone, email or any other electronic means.

10. To assist in the implementation of the Orders:-
10.1The Husband will collect the children from school or on seven days notice, the Wife will take the children to Gold Coast airport to collect the Husband and take them to the Husband’s accommodation at the commencement of his time with them pursuant to Order 5.1 hereof and the Husband will return the children to school or on seven days notice the Wife will collect the children from the Husband’s accommodation at the conclusion of his time with them pursuant to Order 5.1 hereof;
10.2The Husband will collect the children from the Wife at Sydney airport and return the children to the Wife at Sydney airport at the commencement and conclusion of his time with the children pursuant to Order 5.2 hereof;
10.3School holiday periods will be taken to commence at 9:00 am on the day after the last day of school and will cease at 5:00 pm on the day immediately before school resumes;
10.4The Wife will deliver the children to the Husband’s residence at the commencement of their school holiday time with him and the Husband will return the children to the Wife’s residence at the conclusion of their school holiday time with him;
10.5Pupil-free days at the beginning or end of school holiday periods will be considered as part of school holiday periods;
10.6If the children are spending time with the Husband on a weekend which is immediately followed by a public holiday on the Monday, then the children will remain living with the Husband until before school the following morning;

11.In the event that the children are not living with the Wife on any of the days below, the Wife will spend time with the children as follows:-
11.1from 9:00 am on 19 December to 1:00 pm on 26 December in each odd numbered year;
11.2from 5:00 pm on the day prior to Mother’s Day or the Mother’s birthday until 5:00 pm that day;
11.3if Easter does not fall in the first term school holidays, the Wife will spend time with the children in each even numbered year from 5:00 pm on Easter Thursday to 9:00 am the following Tuesday;

11.4on either of the children’s birthdays from after school to 7:00 pm if a school day or if a non-school day, from 2:00 pm to 9:00 am the following day.

12In the event that the children are not living with the Husband on any of the days below, the Husband will spend time with the children as follows:-
12.1from 9:00 am on 19 December to 1:00 pm on 26 December in each even numbered year;
12.2from 5:00 pm on the day prior to Father’s Day or the Husband’s birthday until 5:00 pm that day;
12.3if Easter does not fall in the first term school holidays, the Husband will spend time with the children in each odd numbered year from 5:00 pm on Easter Thursday to 9:00 am the following Tuesday;
12.4on either of the children’s birthdays from after school to 7:00 pm if a school day or if a non-school day, from 2:00 pm to 9:00 am the following day.

13.Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Pursuant to s 79 of the Family Law Act:
14.Within seven days of the date of these Orders, the Husband and the Wife do all acts and things and execute all deeds, documents, instruments and writings necessary to sell the former matrimonial home at […] R Avenue [in S] in the State of New South Wales being more fully described in Folio Identifier […] by public auction at a price upon which the parties agree or failing such agreement at a price recommended by the auctioneer.
15.To facilitate the conduct of the sale of the former matrimonial home: -
15.1 The former matrimonial home will be placed in the hands of a reputable real estate agent practising as an auctioneer within the local area and if the parties cannot agree on the agent to be employed, the Wife will nominate three such agents and the Husband will select one and if any further dispute arises as to the appointment of an agent, then the agent will be appointed by the President for the time being of the Australian Property Institute (New South Wales Division).
15.2All costs incurred by the parties in appointing the agent will be shared equally between the parties and in the event that one of the parties advances all of the costs in that respect then he or she will be reimbursed from the proceeds of sale as a cost of sale before a distribution of the net proceeds between the Husband and the Wife takes place.
15.3The parties will appoint a solicitor to act in relation to the sale and if the parties cannot agree on the solicitor to be appointed, the Wife will nominate three such solicitors and the Husband will select one and if any further dispute arises as to the appointment of a solicitor, then a solicitor will be appointed by the President for the time being of the Law Society of New South Wales
15.4The parties will initiate such work as is recommended by the agent to prepare the house for sale and the Husband will pay the costs associated with that work provided that he will be reimbursed from the proceeds of sale as a cost of sale before a distribution of the net proceeds between the Husband and the Wife takes place.
15.5The Husband and the Wife will execute all such documents as may be necessary to authorise the auctioneer to conduct such auction and thereafter the Husband and the Wife will sign all documents and expeditiously carry out all necessary acts to sell the home at such auction and to complete the sale if sold at such auction.
15.6The reserve price of such auction will be such amount which is agreed upon by the Husband and the Wife and failing agreement in that regard the Husband and the Wife will accept the recommendation of the auctioneer.
15.7The Husband pay to the auctioneer any sum reasonably required for advertising expenses in relation to the auction provided that he will be reimbursed from the proceeds as a cost of sale before a distribution of the net proceeds between the Husband and the Wife takes place.
15.8The Husband and Wife will attend at the auction sale and in the event that the former matrimonial home is not sold at such auction then the Husband and the Wife will negotiate with the highest bidder and in the event that an offer is made below the agreed reserve price and the parties do not agree that it should be accepted, then the former matrimonial home will be listed for sale by auction every two months until sold, such subsequent auctions to be conducted by the same auctioneer but at each such subsequent auction the reserve price will be 10 per cent less than the reserve price at the previous auction.
15.9Both the Husband and the Wife will be entitled to bid at the auction.
15.10The Husband and the Wife will sign all necessary documents and will expeditiously carry out such necessary acts required to sell the former matrimonial home at either auction.

16. Upon completion of the sale of the former matrimonial home pursuant to Orders 14 and 15 hereof, the proceeds of sale will be paid in the following manner and priority: -
16.1 In payment of agents fees and commission due on the sale;
16.2 In payment of legal costs on the sale;
16.3In payment of any amounts paid by the Husband or the Wife pursuant to Orders 15.2, 15.4 and 15.7 hereof;
16.4In discharge of the first registered mortgage to the Westpac Bank secured over the home;
16.5In payment of 51.73 per cent of the balance then remaining to the Wife;
16.6In payment of 48.27 per cent of the balance then remaining to the Husband.

17.Pending the sale of the former matrimonial home pursuant to these Orders, the Husband will: -
17.1vacate and give up possession of the former matrimonial home not less than seven days prior to the date for completion of the sale of the former matrimonial home;
17.2pay the mortgage and loan repayments to the Westpac Bank as and when they fall due and should any arrears (plus interest) be outstanding as at the date of settlement of the sale the former matrimonial home then the arrears (plus interest) will be paid by the Husband simultaneously upon settlement of the sale of the former matrimonial home.
17.3be responsible for and liable to insure the former matrimonial home for full replacement value and pay all rates, taxes, insurances and other utilities in respect of the former matrimonial home including outgoings such as water, electricity, gas and telephone.

18.Pending completion of the sale of the former matrimonial home pursuant to these Orders the Husband will:
18.1be entitled to occupy former matrimonial home to the exclusion of the Wife;

18.2 provide a key to the selling agent;
18.3allow inspection of former matrimonial home at all reasonable times as requested by the selling agent;
18.4say or do nothing to hinder or prevent the sale of former matrimonial home being effected;
18.5ensure that the former matrimonial home is in a neat and clean condition and well presented for sale purposes at the time of inspection by the selling agent and prospective purchasers.

19.Pending completion of the sale of the former matrimonial home pursuant to these Orders:-
19.1each party is restrained by injunction from selling, transferring, encumbering, disposing of or otherwise dealing with his or her interest in the former matrimonial home without the written consent of the other party;
19.2each party is restrained by injunction from increasing the current balances outstanding under the Westpac Bank loans and in this respect the parties shall notify the Westpac Bank of the effect of this Order and provide the Westpac Bank with a copy of these Orders within seven days of the date of these Orders.

20.It be noted that the Husband and the Wife have reached agreement in relation to the distribution of items of personalty in his/her possession and control and the delivery of such items to the other party.
21.Subject to Order 20 of these Orders the Husband is entitled to retain sole legal and beneficial ownership of the undermentioned assets to the exclusion of the Wife:
21.1all of his interests in the [W] Partnership, [W] Trust, [W] Commercial Partnership and [W] Commercial Trust; and
21.2all other items of property and personalty including motor vehicles, bank accounts, money, shares, jewellery and personal effects presently in his possession, custody or control; and
21.3any entitlements under any superannuation fund of which he is or has been a member, including any interest he has in the [K] Superannuation Fund.

22.The Husband will do all acts and things, execute all deeds, documents, instruments and writings and pay all money necessary to indemnify and keep indemnified the Wife from and against all claims, actions, suits or demands that may be made against the Wife in relation to or arising out of: -
22.1any alleged debt to the Husband’s parents owing by the Husband and/or the Wife and any interest thereon;
22.2any tax liability of the Wife for current, past or future years arising out of any alleged distribution of income to her by the professional practice group of the Husband;
22.3any tax liability arising out of either party’s interests in the [K] Superannuation Fund.

23.The Husband and the Wife shall be and remain liable for any other debts in his or her own name at the date of these orders and in this respect shall do all acts and things, execute all deeds, documents, instruments and writings and pay all money necessary to indemnify and keep indemnified the other from and against all claims, actions, suits or demands that may be made against the other in relation to or arising out of any such liability.
24.Pursuant to s 90MT(1)(b) of the Family Law Act whenever the Trustee of the [K] Superannuation Fund makes a splittable payment out of the Wife's interest in the said Fund, the Trustee shall pay to the Husband or his administrators, executors, beneficiaries, heirs or assigns, 100 per cent of the splittable payment otherwise payable to the Wife and that there shall be a corresponding reduction in the entitlement of the Wife in the said Fund.

25. Order 24 shall have effect from the operative time.
26.The operative time for these Orders is the fourth business day after the day on which a sealed copy of these Orders is served on the Trustee of the [K] Superannuation Fund.
27.Having been accorded procedural fairness, as the Husband and the Wife are the Trustees of the [K] Superannuation Fund, in relation to the making of this Order, this Order binds the Trustee of the said Fund.
28.The Trustee of the [K] Superannuation Fund, the Husband and the Wife, in accordance with the obligations set out under the Family Law Act and the Family Law (Superannuation) Regulations 2001 shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payment to the Husband in accordance with this Order.
29.Any costs, fees or charges imposed by the Trustee of the [K] Superannuation Fund to give effect to this Order are to be paid by the Husband.
30.Upon compliance with Orders 24 to 29 inclusive of these Orders, the Wife do all acts and things and execute all deeds, documents, instruments and writings necessary to resign as a Trustee of the [K] Superannuation Fund.

Spouse Maintenance
31.The Husband pay to the Wife by way of spousal maintenance the sum of $1,200 per week until the expiration of twelve weeks from the date the Wife relocates to reside on the Gold Coast in Queensland the first amount to be paid within seven days of the date of this order.

Child Support
32.The application for a departure from the Child Support Agency’s Administrative Assessment of Child Support issued on 25 June 2006 in respect of the Child Support period 1 July 2006 to 8 September 2007 be adjourned for further hearing.

On 11 June 2008 the father filed a Notice of Appeal in which he challenged the orders identified earlier. No challenge was made to the property, spousal maintenance or child support orders.
On the father’s application, on 24 June 2008 and by consent, the orders under appeal were conditionally stayed. The 24 June 2008 stay orders are set out below.

Orders 24 June 2008

1.That pending further Order the operation of Orders 2, 5, 6, 7, 10, 11, 12 and 31 made by Justice O’Ryan on 6 June 2008 be stayed upon condition that the husband pay and continues to pay the following:-
(a)the sum of $1,731 per week by way of spousal maintenance, first payment on or before 25 June 2008 until the date upon which the Appeal Judgment is delivered.

(b) (i) all tuition fees charged by any school or day care
attended by the children as and when they fall due.
(ii)maintain the children and wife on their current level of coverage with Medicare Private; and
(iii)pay the accounts relating to the wife’s mobile telephone service

(c)within 21 days, the wife’s costs of these proceedings in the sum of $3,000.
(d)the sum of $32,500 within 4 weeks, such sum to be by way of interim distribution of the wife’s entitlements pursuant to Order 16.5 of the orders dated 6 June 2008 and on the basis the wife shall repay such sum to the husband out of her entitlements pursuant to that order.

2.AND IT IS NOTED that the husband has agreed he will prosecute the appeal diligently and expeditiously making the necessary application for expedition.
3.That in the event the husband shall neglect, fail or refuse to make any of the payments pursuant to Order 1 hereof the stay of the operation of the Orders referred to in Order 1 above and the provisions of Order 4 shall be discharged.
4. That the children live with the husband as follows:-
(a)During school term each alternate weekend from after school on Friday until the commencement of school on Monday
(b)During school term each Wednesday from after school until the commencement of school or day care on Thursday.
(c)(i) for one half of each school holiday period and unless the parties agree to the contrary, that is to be the first half except the Christmas holidays in 2008.
(ii)for the 2008 Christmas school holiday period in periods not exceeding 2-week blocks and the husband shall spend time with the children for Christmas Day.

(d)At all other times subject to the parties agreement the children are to reside with the wife.
(e)For the purposes of these arrangements the husband will collect the children at the commencement of each period the children live with him and he shall collect the child [R] from the mother immediately after the child [O] is collected from school, and the wife will collect the children at the conclusion of each occasion except that in relation to each Wednesday the husband will collect the children from school and day care the following day.

The effect of the stay orders was that the children’s time was divided between the parties in the manner provided in the 6 November 2006 orders.
On 7 August 2008 the Court ordered that the father’s appeal be expedited and listed for hearing on 2 September 2008.

The applicable law

The law governing an appeal from a discretionary judgment is well settled. It is as set out in the following passage from House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-505:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
To a considerable extent the focus of this appeal was upon the extent of a trial judge’s duty to give adequate reasons. Again the principles are well established. Concerning appeals of the type with which we are presently concerned, in Bennett and Bennett (1991) FLC 92-191 (at 78,266), the Full Court accepted the appellant’s submission that:
Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar PastoralCo Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge’s decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.
It is apparent from these authorities that the obligation to give reasons does not demand elaborate reasons. See also: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1. However “it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given.” Soulemezis v Dudley (Holdings) Pty Ltd (supra) McHugh JA (at 280). In Soulemezis v Dudley (Holdings) Pty Ltd (supra) McHugh JA (at 280) referred with approval to the statement made by Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (supra) (at 386) that the extent of the duty to give reasons is related “to the function to be served by the giving of those reasons”.
By way of example McHugh JA (at 280-281) went on to explain:
Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. In the first class of case, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal. In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done.

These statements of principle apply in this case.

The Trial Judge’s Reasons

As no error is alleged concerning his Honour’s analysis of the applicable law, we will refer only to his findings of fact and the reasons he gave for his decision.
His Honour identified that the mother’s primary proposal was that she and the children live on the Gold Coast and the children spend time with their father. His Honour’s orders reflect her primary proposal. The father was not prepared to reside in Queensland and proposed that he and the children would continue living in Sydney. Each of the parties claimed significant economic advantage to them if their preferred outcome was ordered.
Between pages 2 and 23 his Honour recited the orders sought by each party. These included the father’s proposal that he would continue to pay the mother $1,200 per week. From paragraph 14 to 123 his Honour sets out the background facts. No challenge is made to these findings. It is from this part of his Honour’s reasons that the background facts set out above are drawn. In these paragraphs his Honour traced the acquisition of matrimonial assets. His Honour found that the parties were probably experiencing financial difficulties before the end of 2000, a factor apparent from the extent of the parties’ borrowings from the father’s parents. These included significant amounts to pay tax assessments for 1999 and 2000. Further sums were borrowed from the father’s parents to enable him to take an equity partnership interest in an associated professional practice. This pattern of the father borrowing tens of thousands of dollars from his parents to meet the parties’ expenses permeated the parties’ marriage and in total they borrowed $465,866 towards their expenses.
His Honour found that during 2005 the mother discovered that income had been distributed to her through the professional practice’s services trust for previous years. The father eventually provided her with the services trust financial statements and she arranged to file her taxation returns. Not long after the parties separated, notices of assessment for the years ended 30 June 2000 to 30 June 2004 issued on 23 April 2006. As a consequence of these assessments the mother owed the Australian Taxation Office about $43,000. Upon receipt of the assessments the parties agreed the former matrimonial home would be sold. By two payments, one in July 2006 and the other in August 2006, the father paid the mother’s 23 April 2006 Notices of Assessment and her 2005 tax assessment.
Concerning the parties’ financial circumstances, his Honour found that from September 2006 to November 2007 the father paid the mother $1,200 per week. During this period she received approximately $12,846 as a taxation refund and a child care rebate of $11,794. The father paid the mother a further $5,000 on 31 August 2007. Moving from S Road to C Road cost the mother $4,475 plus an ongoing weekly amount of $18.24. In late November 2007 the mother received a letter from the Family Assistance Office requesting repayment of $4,362.76 that being family tax benefit overpaid for the taxation year ended 30 June 2006. The father repaid the family tax benefit claim on her behalf. In addition, the mother borrowed $99,682.48 from her parents. Of this, at least $24,885 comprised legal fees. On a continuing basis, the mother said her sole income comprised $1,200 per week from the father. Her total weekly expenses were $1,963 which left her with an ongoing shortfall of $663 per week.
For the six months to 31 December 2007, the father earned an estimated income of $168,379.
In relation to the property proceedings, the family home was valued by a single expert at $1,000,000. Both parties agreed it is worth more. The mother’s advice was that the property would sell for between $1.5 and $1.6 million, with the father believing it would sell for between $1.4 and $1.5 million.
Under the heading “Best Interests” his Honour first considered, with apparent approval, the family consultant’s description of the parties. These included the mother’s commitment to the children and her support of the children having an ongoing relationship with the father regardless of where they live. The father was described as being a concerned parent who, post separation, had adjusted his work arrangements to, where possible, times the children were with the mother. Concerning his future proposals, the father anticipated necessary adjustments to his working arrangements “were entirely realistic and sustainable”. Having referred to the family consultant’s conclusions at pars 39-46 of her report, his Honour considered the primary statutory considerations and found it is important the children have the benefit of a meaningful relationship with both parents. There were no risk issues which required consideration.
His Honour turned next to consider the additional statutory considerations. At par 161, his Honour adopted the family consultant’s discussion of the children’s views and relationships with their parents. His Honour found that the children have a very close relationship with both parents. Included in the passages cited with approval from the family report, was O’s comment and the family consultant’s opinion:
he had “not [felt] good” when his parents had first separated, he now feels ‘OK’, primarily, he said, because he is still spending time with his mother and his father. [O] spoke favourably about the current parenting arrangement and said that he enjoys still having the opportunity for both parents to attend his sports fixtures e.g. rugby and Little Nippers. … He anticipated that, if he were to see less of either parent or if the distance between his two homes significantly increased, he would “not [feel] good”.
His Honour concluded the parties have a willingness and ability to facilitate, and encourage, a close and continuing relationship between each child and the other parent. At par 166 he identified the effect of any changes to the children’s circumstances as an important matter and said:
167.In the event that the children reside with the Wife on the Gold Coast and the Husband resides in Sydney then it may be that the children are not able to spend as much time with the Husband as they could if both parents resided within a reasonable proximity of each other. This may have an effect on the children. The Family Consultant was of the opinion that the children should spend substantial and significant time with each parent.
Following the statutory pathway, his Honour considered next the practical difficulty and expense issue earlier referred to. Because these are pivotal matters, his Honours findings are set out below.
168.I am required to consider the practical difficulty and expense of each child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the right of each child to maintain personal relations and direct contact with both parents on a regular basis. This is an important matter.
His Honour recorded that the father argued that the mother’s proposal of fortnightly contact with the children in either Queensland or Sydney limited his involvement in the children’s every day activities. Also, that the father “anticipated that such an arrangement was unrealistic due to the expenses involved of regular travel, accommodation and transport. He did not anticipate being able to travel once a month to Queensland for financial and work related reasons.”
His Honour went on to record the mother did not anticipate any problems with the children coping with a move to Queensland or travel between Queensland and New South Wales. The children had travelled all of their lives and the mother commented that O loves flying. The children were familiar with the Gold Coast home her parents own and were well-known in the neighbourhood. For financial reasons, irrespective of where the parties live, the family consultant reported the mother was concerned O may need to change schools. Concerning these matters, his Honour found at paragraph 171:
In the event that the children reside with the Wife on the Gold Coast and the Husband resides in Sydney then there will be practical difficulty and expense of each child spending time with the Husband. There will be the costs of airfares and accommodation. On the other hand if both parents reside on the Gold Coast then I assume that there will be minimal practical difficulty and expense of each child spending time with each parent. If both parents reside in Sydney then there may be practical difficulty and expense of each child spending time with each parent depending on where the parents reside.
Having considered the family consultant’s evidence, his Honour was “satisfied that both parents have the capacity to provide for the needs of each child, including emotional and intellectual needs”. Because of the father’s work commitments and the role he had played in the children’s day to day care compared to the mother’s role, his Honour concluded that the mother is better able to provide for the children’s needs. The father was described as having been and still was a “busy [professional]”. His Honour accepted the mother’s concerns about the sustainability of the father’s present flexible working hours and the prospect that his work commitments would increase so that whilst the children were with him, they would be primarily cared for by someone else.
His Honour was satisfied both parties had an appropriate attitude to the children and responsibilities of parenthood, with the mother having a more balanced and child focused insight into the parties’ and children’s present circumstances.
Again, quoting with the apparent approval from the family report, his Honour highlighted the mother’s financial concerns and belief that if she was permitted to relocate, she would reside rent-free in her parents’ home on the Gold Coast. With family and other supports available to her in Queensland, the mother told the family consultant she believed she would be emotionally better off the benefits of which would flow to the children. The mother was recorded as having informed the family consultant she could not envisage a situation whereby the father would not or could not regularly visit the children if they lived in Queensland.
Concerning the father, the family consultant reported him as fighting for the ability to maintain a proper parent/child relationship.
Having found there were no violence issues, his Honour concluded that the parties’ communication difficulties indicated, irrespective of which outcome was ordered, there was a prospect of future proceedings.
Finally, before finishing his discussion of the additional considerations, his Honour found that the father did not propose to relocate to the Gold Coast. His prior residence history, employment and family connections meant his stance could not be described as unreasonable. In a similar vein, the availability of accommodation, proposed employment and her family support meant that the mother’s desire to move to the Gold Coast could not be described as unreasonable. Having correctly identified the four possible permutations, his Honour concluded only two options were available to him. Firstly both parents resided in Sydney and spent substantial and significant time with the children. Secondly the children resided with the mother on the Gold Coast and the father continued to reside in Sydney. His Honour found “there are advantages and disadvantages of each of the proposals. I am also of the opinion that there will be an impact on the children whatever I do.” His Honour did not say what the advantages and disadvantages were or identify the various impacts upon the children.
Under the heading “Presumption of Equal Shared Parental Responsibility” his Honour agreed with the family consultant that the parties’ position that equal shared parental responsibility should be ordered was completely appropriate.
Concerning the amount of time the children would spend with each parent, his Honour held:
193.If both parents reside in the [S] area of Sydney then it would be reasonably practicable for the children to spend equal time with each parent. If both parents reside in the Sydney metropolitan area then it may be reasonably practicable for each child to spend equal time with each parent depending on where the parents reside. If both parents reside on the Gold Coast then it would be reasonably practicable for each child to spend equal time with each parent. If the Husband resides in the Sydney metropolitan area and the Wife resides on the Gold Coast then it would not be reasonably practicable for each child to spend equal time with each parent. However, irrespective of where each parent lives, I am not satisfied that it would be in the best interests of each child to spend equal time with each parent given, among other things, the ages of the children, the need for stability and the professional commitments of the Husband.
194.If both parents reside in the [S] area of Sydney then it would be reasonably practicable for each child to spend substantial and significant time with each parent. If both parents reside in the Sydney metropolitan area then it may be reasonably practicable for each child to spend substantial and significant time with each parent depending on where the parents reside. If both parents reside on the Gold Coast then it would be reasonably practicable for each child to spend substantial and significant time with each parent. If the Husband resides in the Sydney metropolitan area and the Wife resides on the Gold Coast then it may be reasonably practicable for each child to spend substantial and significant time with each parent.
Under the heading “Conclusion – Parenting” his Honour commented upon the significant financial difficulties the parties experienced during cohabitation and subsequent to separation. Notwithstanding that the father had always worked as a professional, he borrowed $465,866 from his parents to assist in paying expenses. At the time of hearing the parties had significant tax liabilities and it was apparent the father had not been able to make provision from his income for this. After making provision for the payment of taxation and $1,200 per week to the mother, for the six months ended 31 December 2007 the father had a net income of approximately $68,600. His Honour was satisfied the family home at S must be sold and that it was unlikely both parents would thereafter be able to live in the S area. From an income of $1,200 per week the mother was paying $850 for what his Honour described as only reasonable accommodation.
His Honour moved on to analyse the outcome of the property proceedings as they affected the mother. Although the father’s proposal was that she receive $125,000, his Honour was satisfied the reality was she would receive significantly less. When notional assets and liabilities were taken into account the mother would have a negative balance of $2,377. On this basis his Honour understood why she was very concerned about where she would live and how she could provide for her and the children’s future. His Honour was particularly mindful that since the mother ceased living in the former matrimonial home she had experienced significant accommodation difficulties.
Both parties submitted that paragraphs 200 and 201 comprised the heart of his Honour’s reasons and it is appropriate to recite these fully.
200.The Wife has always been the primary carer of the children and although since separation the Husband has played a greater role with the care of the children than he did before, I am of the view that the probabilities are that the Wife will continue to play a greater role than the Husband. It is however important that the children maintain and develop their close relationship with the Husband. There are obvious benefits to each child of having a meaningful relationship with both of the parents. The Wife proposes that the Husband have a meaningful relationship with the children and I have confidence in her ability and willingness to ensure that this happens.
201.I have come to the conclusion that the proposal that is in the best interests of the children is that they reside with the Wife on the Gold Coast and spend significant and substantial time with the Husband. There will be practical issues to be dealt with but overall it is the proposal that in my view will provide the children with the opportunity to have a meaningful relationship with both parents. It will enable the Wife to settle her financial circumstances and not have to care for the children in an environment which she finds stressful. The Wife seeks to provide some financial security for herself and not to be dependent on the Husband. I accept this submission. I have no doubt that given the history the Wife’s concerns are justified. The Wife’s capacity to parent the children would be enhanced if she could achieve this outcome. I accept that the ability of the Wife to do so on the Gold Coast is better than her ability to do so if she remained living in Sydney. In the future the Wife may return to live in Sydney. So also it may be that the Husband is unable to resolve his financial difficulties and decides to move to the Gold Coast.

Grounds of Appeal

The father relied upon his Amended Notice of Appeal filed on 18 August 2008. The Amended Notice of Appeal contains 16 grounds which assert error. However, as a review of the transcript before us would reveal, the focus of the father’s challenge was whether his Honour failed to give adequate reasons for his decision so as to commit an error of law. The reasons challenges are articulated in grounds 5, 6, 7 and 8. Ground 5 argued his Honour erred in failing to give adequate reasons as to why the relocation is in the children’s best interests. Ground 6 argued his Honour erred in ignoring the recommendations of the family consultant in circumstances where the family consultant’s findings and recommendations were not challenged and she was not required for cross-examination, by the parties or the Court. In ground 7, he argued, in the alternative to ground 6, his Honour erred in failing to give adequate weight to the family consultant’s recommendations. Ground 8 asserted his Honour failed to give adequate consideration and weight to the mother’s failure to seek employment in Sydney.
In both written and oral submissions senior counsel for the father argued ground 6 before turning to consider grounds 5, 7 and 8. We adopt the same approach.
As earlier discussed, at par 7 of his Honour’s judgment, his Honour correctly found that the family consultant made the recommendations set out earlier in our reasons. Rather than repeat them, it is sufficient to note that the family consultant recommended that the children live in Sydney and spend significant and substantial time with the father which, during the school week, involved at least one overnight every week. The hearing before the learned trial Judge was adjourned part-heard on 22 May 2007 to allow the parties’ counsel to cross‑examine the family consultant, which opportunity at that stage both parties sought. Upon resumption of the hearing on 8 February 2008 counsel for each of the parties advised his Honour neither intended to cross-examine the family consultant.
The father contended the learned trial Judge accepted much of the evidence contained in the report, which proposition the mother properly did not challenge.
Under a heading “Best interests” the learned trial Judge recited with apparent approval the family consultant’s opinions concerning the parties. At par 157, his Honour recorded, again with apparent approval, the family consultant’s opinions as follows:
39.[The wife] and [the husband] both presented as caring and committed parents who love their children. There were clear indications that they each take their parental responsibilities seriously. They understandably would both like to have their children with them as much as possible and to continue to be involved in their upbringing. Unfortunately, both parents appear to be struggling with the reality of the breakdown of the family unit and the prospect of not being able to see the children every day. However, it is to their credit that, despite the hurt and the stress of the separation they have managed to effectively communicate with one another and to generally shield [the children] from the adult issues and the ongoing litigation.
40.It would appear that it is in the parents’ different perceptions of their financial standing that appear to be impeding their ability to reach a parenting agreement which adequately addresses the needs of their children.
41.As previously mentioned, both parents said that they consider equal shared parental responsibility entirely suitable. Taking this into consideration, along with clear indications that both parents accept the importance of each other in the children’s lives and have generally been able to effectively communicate, this would be an entirely appropriate option.
42.[O’s] clearly expressed desire to spend regular time with each parent is consistent with his developmental needs. Both he and his younger brother [R] have obviously benefited from having two parents involved in their daily lives and it would promote their ongoing health and development, particularly [R] due to his young age, if this were to continue.
43.Despite his emerging independence, [R] is still highly reliant on his parents to meet all his emotional, psychological and physical needs. Taking into consideration his presentation on the day of the interviews and his young age, prolonged separation from either parent needs to be carefully considered. It would appear that, despite his positive attachment to both parents, [R] may, at this point of time, feel somewhat closer to his mother than to his father.
44.Notwithstanding the mother’s concerns surrounding equal time, at this point in time, there would appear to be no strong argument as to why, in the future when both children are older, a week about arrangement could not be considered.
45.The strengths of the children’s existing arrangements with his father has been built on his consistent involvement in routine, everyday activities. If the children were to move to Queensland, these opportunities would be limited and the father may lose touch with the details of their daily development that help maintain the close parent-child relationship. In these circumstances, particularly due to [R’s] young age, it is assessed that the prospect of the children being able to maintain as close a relationship with their father as they currently have, is unlikely.
46.[The wife] believes that her emotional and economic interests would be best served by relocating to Queensland. However, taking into account that the children would experience a sense of loss and sadness in the absence of regular involvement of the father, any change that would entail the absence of a parent would not be in their best interests.

During submissions, senior counsel emphasised the family consultant’s opinions in the second sentence of par 43 and the last sentences of paras 45 and 46. The father contended that although his Honour was aware of the family consultant’s recommendations and opinions discussed above, his Honour failed to discuss the significance of this unchallenged evidence. In the absence of discussion it was submitted that his Honour cannot be said to have adequately considered this evidence. Put another way, although his Honour referred extensively to the family report the father submitted he did not engage in an appropriate analysis of why he rejected its key recommendation that the children continue to live in Sydney.
Underscoring this submission is the absence of a finding to the effect that it was impracticable for the mother to continue living in Sydney with the children. In these circumstances, where it would be reasonably practicable for the children to spend equal time or substantial and significant time with each parent, his Honour needed to engage the family consultant’s threshold recommendation and explain the basis upon which her unchallenged evidence apparently carried little weight.
The mother agreed his Honour relied upon the family consultant’s evidence and that his orders provided an outcome inconsistent with its key recommendation. The mother submitted, however, that the family consultant’s evidence was only part of the evidence which his Honour needed to consider. While the basis for the family report is clear, his Honour’s task involved consideration of matters beyond the scope of the family consultant’s expertise and he was not bound by it. In particular, the financial ramifications of granting or refusing the mother’s relocation application. It was pointed out that although the family consultant understood that the mother was concerned about her financial position and believed she and the children’s financial security would be enhanced if she was permitted to relocate to the Gold Coast, those matters were only briefly discussed in her report. In this regard, no criticism was, or could be made, of the family consultant, the point being these were factual matters for the trial Judge and not expert opinion. With this later point we agree. See Hall and Hall (1979) FLC 90-713; D and P [2006] FamCA 170.
In mounting her opposition to the ground 6 challenge, the mother did not argue the learned trial Judge analysed the family consultant’s unchallenged evidence. Rather it was submitted that his Honour’s discussion of the financial ramifications of the available options inferentially explained why his Honour departed from the gravamen of the family report. These matters are dealt with at paras 167 and 171 of his Honour’s judgment. At par 167 his Honour found:
In the event that the children reside with the Wife on the Gold Coast and the Husband resides in Sydney then it may be that the children are not able to spend as much time with the Husband as they could if both parents resided within a reasonable proximity of each other. This may have an effect on the children. The family consultant was of the opinion the children should spend substantial and significant time with each parent.
At par 168 the learned trial Judge found that the practical difficulty and expense of the children spending time and communicating with a parent and whether that difficulty and expense would substantially affect the children’s rights to maintain personal relations and direct contact with both parents on a regular basis was an important matter. In relation to this, at par 171 his Honour found:
In the event that the children reside with the Wife on the Gold Coast and the Husband resides in Sydney then there will be practical difficulty and expense of each child spending time with the Husband. There will be the costs of airfares and accommodation. On the other hand if both parents reside on the Gold Coast then I assume there will be minimal practical difficulty and expense of each child spending time with each parent. If both parents reside in Sydney then there may be practical difficulty and expense of each child spending time with each parent depending on where the parents reside.
Although his Honour found it was impractical for both parties to reside in S, he did not find it was impractical for both parents to reside in Sydney. In this setting he found it would be reasonably practical for the children to spend substantial and significant time with each parent.
The mother’s counsel agreed his Honour having found the children moving to the Gold Coast and a possible reduction in the amount of time they spent with their father “may” have an effect on the children, his Honour did not say what effect it may have or refer to the family consultant’s evidence.
Senior counsel for the father emphasised that at par 200 his Honour found: “The Wife proposes that the Husband has a meaningful relationship with the children and I have confidence in her ability and willingness to ensure that this happens.” The children’s ability to maintain and develop their close relationship with the father his Honour found to be an important matter. In the following discussion at par 201, his Honour was satisfied that the children, if living with the mother on the Gold Coast, can spend significant and substantial time with the father. This outcome his Honour was satisfied was in the children’s best interests. In finding in favour of the mother’s proposals, he again observed there would be practical issues to be dealt with. It is useful to here refer to the mother’s counsel’s helpful aide memoire provided to us during submissions. This document summarised the impact of his Honour’s orders compared with the 6 November 2006 orders. Counsel submitted that this aide memoire demonstrated his Honour’s orders equated to significant and substantial time for the children with their father. In these circumstances the children’s meaningful relationship with him would be assured and the point of departure from the family consultant’s key recommendation was thus not something which should trouble us. The parties agreed that the effect of his Honour’s orders was the children may spend 131 nights with the father. Also that the earlier orders provided the children would have 142 nights with him. Thus, the mother submitted, if the father presently had substantial and significant time with the children his position was not adversely affected by the mother moving with the children to the Gold Coast.
In response to this, senior counsel for the father submitted his Honour failed to consider the father’s evidence concerning his ability to spend time with the children on the Gold Coast. In particular, the evidence showed his ability to take time from work from Thursday evenings. His evidence was he could not work from the Gold Coast or take one week there during school term with the children. Hence, although his Honour’s orders provided that the father and children could spend time from Thursday afternoons monthly in Queensland and one week each school term in Queensland, the evidence was he could not do this. When this evidence is taken into account the gap between the two sets of orders widens, with the practical impact of his Honour’s orders facilitating a maximum of about 94 nights or about 48 fewer than was provided for in the 6 November 2006 orders. This was an issue beyond the mother’s control and was not a matter of “willingness” on her part. That is, if the father’s work commitments made it impossible for him to spend time with the children with the frequency his Honour’s orders facilitated, his Honour needed to explain the evidentiary basis for impliedly determining the children were able to spend more time with the father on the Gold Coast than he said he could take from work or afford. With this submission we agree.
The purpose of the above discussion is to demonstrate that the family consultant’s opinions and recommendations were highly relevant to the disposition of the matter. In addition to the key recommendation, her opinions stated in the second sentence of par 43 and the last sentences of pars 45 and 46 went to essential elements of the case. Neither party suggested these were peripheral issues. As earlier stated the mother agreed the learned trial Judge did not discuss his reasons for rejecting the family consultant’s key recommendations and opinions above referred to. This concession was appropriately made. These and the key findings were so central to the matter, his Honour needed to explain his reasoning for rejecting the unchallenged expert opinion. With respect to the mother’s argument it is insufficient that his Honour made findings on other points. In the circumstances of this case, we agree with the father that his Honour needed to explain his reasoning process as to why these important matters were rejected. We agree with the father’s contention that reading his Honour’s judgment as a whole one must conclude his Honour ultimately overlooked this unchallenged evidence or alternatively, unfortunately failed to disclose his reasoning on an essential issue.
It is not our intention to say that in all instances a trial judge is bound to adopt a family consultant’s unchallenged evidence. We intend no more than explain why in this case, where the family consultant’s evidence unambiguously supported orders that the children remain in Sydney, it needed to be apparent that his Honour considered her evidence before ordering a different outcome. By failing to do so, his Honour fell into error.
During submissions the parties agreed that in the event the father succeeded on ground 6 we need not consider the remaining grounds. However as argument was addressed to ground 5 at some length it is appropriate to at least touch upon it. Ground 5 asserted his Honour failed “to give adequate reasons as to why the relocation is in the children’s best interests”. The manner in which the learned trial Judge failed to deal with the family consultant’s recommendations formed part of this challenge. This issue has been addressed in our discussion of ground 6. To a considerable extent his Honour’s reasoning and the key findings are dealt with during our discussion of ground 5 and do not require restating.
The mother submitted one is able, through a combination of his Honour’s reasons and exchanges during the hearing, by implication to discern his Honour’s reasoning. However, during submissions, counsel agreed there were a number of important areas where it was not possible to discern his Honour’s reasons.
For example, both parents gave voluminous written and detailed oral evidence concerning their financial circumstances and the financial ramifications of the mother and children living on the Gold Coast, compared with remaining in S or nearby to it. Given its apparent centrality to each party’s position and the significance which financial matters appear to have in tipping the balance in favour of the mother’s application, senior counsel submitted it was necessary for his Honour to make findings concerning these issues. To do this his Honour needed to evaluate the parties’ evidence of the costs involved in order to determine how this issue influenced his decision for or against relocation. Also, if the children lived on the Gold Coast and the father stayed in Sydney, could they spend time with the father at the frequency the mother said was appropriate, and still achieve an overall improvement in her financial security?
The mother agreed his Honour did not discuss these important practical matters beyond noting they are important. Counsel was unable to assist us by detailing whose evidence concerning the costs of the competing proposals and costs of living, particularly housing and schooling his Honour preferred and why.
Similarly, counsel was unable to explain what were the advantages and disadvantages of the various proposals his Honour had in mind at par 188 of his reasons. Or the impacts upon the children mentioned in the same paragraph. Did the learned trial Judge prefer the father’s evidence concerning the impact of a reduction in his regular time with the children or the mother’s? Nor was counsel able to explain what effect on the children his Honour had in mind at par 76 and how this impacted upon his reasoning.
We make no criticism of counsel’s inability to guide us to answers to these questions. We include these matters to highlight exchanges which occurred during submissions and emphasise that on these important matters it is agreed one cannot discern his Honour’s thinking in relation to essential matters.
As to ground 5 we are satisfied that his Honour failed to adequately explain the basis of his reasoning as to why the relocation is in the children’s best interests.

Outcome

The appeal will be allowed. In these circumstances, the father contended the matter should be remitted for rehearing before another judge. The mother submitted we should adopt a similar approach to that adopted by the Full Court in Sampson and Hartnett (No 10) (2007) FLC 93-350. The subject matter of that case also involved the relocation of children. Having determined the appeal would be allowed, Bryant CJ, Kay and Warnick JJ remitted the matter for further hearing by the original trial Judge. Conscious this differed from the usual approach their Honours thought it was appropriate in circumstances where many of the trial Judge’s significant findings were unchallenged. Although the trial Judge’s orders were set aside, it appears their Honours hoped that on the rehearing, given the trial Judge’s familiarity with the matter, there was a better prospect of containing the issues to be determined.
The father submitted that adopting the Sampson and Hartnett (No 10) (supra) approach would be fraught with difficulty. If the appeal was allowed on reasons grounds, he submitted the approach the mother contended for potentially placed the trial Judge and parties in an impossible situation. Almost certainly one of the parties, in this case probably the father, would ask the trial Judge to disqualify himself. Indeed, the trial Judge, absent an application from a party, may determine this was the appropriate course. It is difficult to know how the original trial Judge would deal with findings already made and whether further evidence should be permitted on these matters. In this case, we agree with the father’s submission that the proper course is to remit the matter for rehearing before someone other than the original trial Judge. Whilst this may have cost consequences for the parties, the diligent application of Division 12A principles along the lines adopted by the learned trial Judge in this case should enable the case to be brought to conclusion promptly and without undue expense.

Costs

At the conclusion of the hearing we took submissions concerning costs of the appeal. In the event the father succeeded, he sought a cost certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) and in the alternative costs against the mother. If the appeal succeeded the mother sought a cost certificate pursuant to section 6 of the Federal Proceedings (Costs) Act 1981 (Cth). Both parties sought a section 8 costs certificate for any retrial. Each of these sections provides that a certificate may be granted where an appeal succeeds on a point of law, which has occurred here. Otherwise the legislation is silent on the criteria upon which we may grant or refuse a costs certificate. Ultimately the decision is discretionary. See Tyson and Tyson (No 2) (1993) FLC 92-401.
Having regard to the basis upon which the appeal will be allowed, we consider the granting of costs certificates to both parties for the appeal and rehearing is appropriate.
For these reasons we make the orders identified at the start of this judgment.

I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 27 October 2008