Babcock & Waddell [2019] FamCAFC 129 (31 July 2019)

Last Updated: 8 August 2019

FAMILY COURT OF AUSTRALIA

BABCOCK & WADDELL

[2019] FamCAFC 129

FAMILY LAW – APPEAL – PARENTING – Relocation – Where the primary judge permitted the mother to relocate the residence of the child from Sydney to Perth – Where the father asserts that the primary judge erred by referring to and relying only on the advantages of relocation without balancing those advantages with the disadvantages – Where the father asserts that the primary judge only addressed the disadvantages of relocation after deciding that relocation should be permitted, and in framing orders to address those disadvantages – Where the primary judge undertook the necessary balancing of the advantages and disadvantages of the parties’ competing proposals – Where it was appropriate for the primary judge to mould the orders to address the disadvantages of permitting relocation once it was determined that relocation was in the child’s best interests – Consideration of the application and relevance of Re: TC and JC (Children: Relocation) [2013] EWHC 292 in Australian law – Where there is no merit in any of the grounds of appeal – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the mother and the Independent Children’s Lawyer sought orders for costs in the event that the appeal was unsuccessful – Where the father failed to put any factor before the Court in opposition of the applications for costs – Costs ordered in favour of the mother and the Independent Children’s Lawyer.

Family Law Act 1975 (Cth) ss 60CC, 65DAA Family Law Rules 2004 (Cth) Family Court of Australia Practice Direction No. 1 of 2017

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Conway v The Queen (2002) 209 CLR 203; [2002] HCA 2 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Lane & Nichols (2016) FLC 93–750; [2016] FamCAFC 234 Re: TC and JC (Children: Relocation) [2013] EWHC 292 Sampson & Hartnett (No. 10) (2007) FLC 93-350; [2007] FamCA 1365 Sayer & Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209 Starr & Duggan [2009] FamCAFC 115 U v U (2002) 211 CLR 238; [2002] HCA 36

APPELLANT:

Mr Babcock

RESPONDENT:

Ms Waddell

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

FILE NUMBER:

SYC

6272

of

2010

APPEAL NUMBER:

EA

73

of

2018

DATE DELIVERED:

31 July 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Ryan & Aldridge JJ

HEARING DATE:

31 October 2018

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 April 2018

LOWER COURT MNC:

[2018] FamCA 276

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Cook

SOLICITOR FOR THE APPELLANT:

Solari Law

COUNSEL FOR THE RESPONDENT:

Mr Todd

SOLICITOR FOR THE RESPONDENT:

Gillard Consulting Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Guterres

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid New South Wales

ORDERS

(1) The appeal be dismissed.
(2) The appellant father pay the costs of the respondent mother fixed in the sum of SIXTEEN THOUSAND FIVE HUNDRED DOLLARS [$16,500], and the costs of the Independent Children’s Lawyer fixed in the sum of FIVE THOUSAND FIVE HUNDRED AND ELEVEN DOLLARS [$5,511].

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 73 of 2018
File Number: SYC 6272 of 2010

Mr Babcock

Appellant

And

Ms Waddell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

STRICKLAND J
INTRODUCTION

1. By way of Notice of Appeal filed on 28 May 2018, Mr Babcock (“the father”) appeals against certain of the final parenting orders made by McClelland J on 30 April 2018.
2. The orders appealed from provide that from 1 January 2019 Ms Waddell (“the mother”) be permitted to relocate the residence of X (“the child”) from Sydney to Perth, and that the child live with the mother and spend time with the father during holiday periods. There are also a number of ancillary orders with respect to the child’s communication with the paternal family and travel that are appealed from.
3. Both the mother and the Independent Children’s Lawyer (“ICL”) oppose the appeal.

BACKGROUND OF THE PARTIES

4. The mother was born in 1964 and is currently 54 years of age. The father was born in 1970 and is currently 49 years of age.
5. In May 1995 the parties commenced living together in Perth where they continued to live until early 1996, at which time the father’s employment in Perth ceased and he moved to pursue work in Sydney. The mother remained in Perth.
6. After a short period of separation in early 1997, the parties reconciled and moved to live with the paternal grandparents in Sydney.
7. The mother asserts that she was subject to family violence on the part of the father during the course of their relationship. The father denied that, but acknowledged that between 1995 and 1999 the parties’ engaged in both verbal and physical altercations.
8. In about 2000 the father commenced smoking crystal methamphetamine. On his own evidence, at the worst of his addiction, he used the substance daily, but has not used since April 2010.
9. The child was born in 2006.
10. The mother has been the primary carer of the child since birth, but the father was also actively involved in her care.
11. In July 2010 the father commenced employment in Perth and the mother and child moved to join him.
12. In early August 2010 the parties finally separated after they became engaged in an argument that became violent. The mother and child moved to live with the maternal step‑grandfather in Perth.
13. On 17 August 2010 an Interim Violence Restraining Order was granted in favour of the mother and against the father. That order remained in place until 25 October 2010, at which time it was resolved by the father providing an undertaking in respect of his future conduct.
14. On 21 August 2010 the father moved to Sydney. The mother and child remained in Perth.
15. On 5 October 2010 the father filed an Initiating Application in the then Federal Magistrates Court of Australia seeking final and interim parenting orders.
16. On 25 October 2010 Magistrate Scarlett, as his Honour then was, granted ex parte interim orders providing, inter alia, for the mother to forthwith return the child to Sydney and that she be restrained from relocating the residence of the child from same.
17. On 24 November 2010 the mother filed a Notice of Appeal against the interim orders made on 25 October 2010. After she unsuccessfully applied for a stay application on 28 October 2010, she discontinued the appeal on 26 November 2010.
18. On 10 December 2010 the mother filed an Amended Response seeking, amongst other orders, an order that she be permitted to relocate the child’s residence to Perth.
19. On 14 December 2010 the father travelled to Perth to collect the child but was unable to retrieve her. On 21 December 2010 he applied for a recovery order of the child.
20. On 18 January 2011 Federal Magistrate Scarlett granted a recovery order. His Honour also granted interim orders that, inter alia, the parties have equal shared responsibility for the child, the child live with the mother and spend five nights per fortnight with the father, and that the mother be restrained from relocating the child from Sydney.
21. From about April 2011 until July 2014 the parties departed from the interim orders such that the child spent six nights per fortnight with the father.
22. In September 2011 the father commenced residing with a new partner, Ms V. They have two children together.
23. On 2 August 2012 the family law proceedings were discontinued by consent.
24. On 22 April 2014 the father recommenced proceedings seeking final parenting orders, including an order restraining the mother from relocating the child’s residence from Sydney.
25. On 9 July 2014 the mother informed the father that she wanted to revert back to the interim orders of 18 January 2011. From then until the date of trial the child spent five nights per fortnight with the father.
26. In November 2014, without the consent of the father, the mother arranged for the child to see clinical child psychologist, Ms G, in relation to her behavioural issues.
27. On 24 November 2014 the mother filed an Amended Response seeking orders that she be permitted to relocate the residence of the child from Sydney to Perth.
28. On 26 November 2014 the father, through his solicitors, requested that the mother suspend taking the child for further psychology appointments until such time as he had a chance to meet with Ms G. On 15 December 2014 he advised the mother that he did not consent to the child seeing Ms G.
29. On 25 August 2015 the child disclosed to the father that she had attended a doctor. The mother initially withheld the nature of the appointment from the father. On 28 September 2015 the father’s legal representatives sent correspondence to the mother seeking details of the appointment. On 28 October 2015 the mother’s solicitors advised the father that the child had attended in order to undertake an eye test and an assessment for Attention Deficit Hyperactivity Disorder (ADHD).
30. On 29 October 2015 the family report was released to the parties.
31. On 11 November 2015 the matter was transferred to the Family Court of Australia.
32. The father and Ms V separated in July 2015 and by agreement reached in August 2016, the father spends about six nights per fortnight with his son C and five night per fortnight with his daughter D.
33. On 22 August 2016 the mother took the child for an appointment with Dr Z for an assessment for Obsessive Compulsive Disorder (OCD). On 9 September 2016 the mother served the father with the letter from Dr Z confirming a diagnosis of OCD.
34. On 13 September 2016 interim orders were made which included a requirement for the father to submit to urinalysis testing. Subsequent tests were negative.
35. In late 2016 the father was advised by Ms G that the parties’ parenting dispute was likely to be a significant contributor to the child’s OCD and that she may be at risk of self-harm.
36. On 1 December 2016, following a dispute between the parties, orders were made by consent permitting the child to travel to Perth with the mother for a holiday.
37. On 7 April 2017 the ICL notified the parties that the child wished to spend more time with the father.
38. On 4 June 2017 the mother advised the father that she had organised for the child to be assessed for ADHD. The father refused to provide his consent.
39. The trial was heard between 4 and 8 September 2017 and concluded on 27 October 2017.
40. On the final day of hearing, interim orders were made by consent which provided for the time that the child would spend with each parent over the Christmas holiday period, including that she be allowed to travel to Perth when she spends time with the mother.

THE APPEAL

41. There are three grounds of appeal, namely:

1. The primary judge erred by failing to determine the issues in the case.

2. The primary judge erred by relying upon or by giving inappropriate weight to evidence of advantages, if the mother moves to Perth with the child.
3. The primary judge erred by giving no weight, or insufficient weight, to factors and evidence of those factors.
42. Under each ground of appeal there are a number of particulars which need not be set out here, but which I will address as necessary in these reasons.
43. It seems that the complaint in Ground 1 raises an error of principle or approach, and Grounds 2 and 3 raise weight challenges.

Ground 1

44. With this ground, it is not readily apparent what “issues in the case” his Honour failed “to determine”. And, unfortunately, the written summary of argument filed on behalf of the father does not help in this regard. Indeed, that summary fails to specifically address not only Ground 1, but also Grounds 2 or 3, as required by the Family Law Rules 2004 (Cth) (“the Rules”), and by Practice Direction No. 1 of 2017 in relation to the conduct of appeals. PART I, headed “FINDINGS AND MATERIAL FACTS”, comprising 13 pages, does nothing more than take the reader through his Honour’s reasons for judgment, occasionally pointing out alleged errors, but with no reference to any of the grounds of appeal. Then, PART II comprises two to three pages headed “WRONG APPROACH” which, without specifically identifying any of the grounds of appeal, would seem to be an attempt to suggest where his Honour has gone wrong in his approach, and thus presumably, referencing Ground 1.
45. The oral submissions made at the hearing by counsel for the father were also of little assistance. At the commencement of the hearing, when the difficulties with the summary of argument were pointed out, counsel indicated that he would identify what part of the summary relates to which grounds of appeal, but that did not eventuate. Indeed, in those oral submissions, it was suggested that the primary complaint of the father was a lack of adequate reasons, when that was not a ground of appeal.
46. That said, and doing the best I can, it seems that the primary thrust of Ground 1 is the complaint that his Honour only referred to and relied on the advantages of relocation without balancing those advantages with the disadvantages. It is said that his Honour only considered the disadvantages after deciding that relocation should be permitted, and then in the context of framing orders to address those disadvantages.
47. One alleged error of principle that does emerge from the summary of argument is in relation to what his Honour said at [336], namely:

The central issue is therefore whether orders should be made for the child to relocate with the mother to Perth. Determination of that issue is ultimately determinative of whether it is reasonably practicable for the child to spend equal or substantial and significant time with the father.

48. There his Honour seems to be saying that a court first has to decide whether relocation should be permitted, and if so, that provides the answer to whether it is reasonably practicable for the child to spend equal or substantial and significant time with the left behind parent. Now, if that is the approach that his Honour took, then there would plainly be an error. For example, in Sayer & Radcliffe [2012] FamCAFC 209; (2012) 48 Fam LR 298 at [48], the Full Court of the Family Court of Australia said:

A requirement in relocation cases is that judges faced with a parent wanting to relocate must consider the competing proposals of both parents. It is not simply a matter of comparing the relocating party’s proposal against the status quo and allowing or denying relocation. Rather the court must consider each party’s proposal on its merits, in accordance with the prescribed legislative pathway.
(Citations omitted)

49. The reference to “the prescribed legislative pathway” includes a reference to the application of s 65DAA of the Family Law Act 1975 (Cth) (“the Act”) where there is to be an order for equal shared parental responsibility. In other words, as part of deciding with whom and where the child should live, it is necessary to address the elements of s 65DAA, namely whether equal or substantial and significant time is in the child’s best interests, and whether such arrangements are reasonably practicable.
50. However, it is incorrect to take what his Honour said at [336] as being a statement of his Honour’s approach. That statement was made in the context of his Honour’s consideration of the reasonable practicability of significant and substantial time if it was found to be in the best interests of the child to relocate to Perth to live with the mother there.
51. As submitted by the ICL, seen in that context, it was an obvious statement to make, as was his Honour’s conclusion in that regard at [466] where his Honour said this:

For these reasons I make orders which permit the mother to relocate to Perth with the child. In those circumstances it is not reasonably practicable for the child to spend substantial and significant time with the father as that concept is defined in the Act.

52. Rather than cherry picking one paragraph of his Honour’s extensive reasons, his Honour’s approach can be seen from his reasons as a whole, and in this instance particularly from his earlier reasons, namely at [109], [113], [116], [120], [121], [125], [126]–[129], [130] and [133]. Thus, for example, his Honour said this at [109]:

Parenting proceedings involving relocation are to be determined in the same manner in which all parenting proceedings are determined. That is, by following the legislative framework set out in [the Act] with a view to determining what orders, if any, are in the best interests of the children ...

53. His Honour then proceeded to apply that approach to the evidence before him, including making relevant findings in the context of:
    1. Initially identifying the respective proposals of the parties (and of the ICL) ([130]–[156]).
    2. Addressing the presumption of equal shared parental responsibility ([157]–[164], and particularly noting [163]).
    100. Considering the relevant s 60CC matters (i.e. the best interests of the child) ([165]–[315]).
    4. Addressing whether equal time or substantial and significant time is reasonably practicable ([316]–[336]).
54. Then, after extensive consideration of the legislative provisions and the evidence of the parties, his Honour relevantly came to the specific issue that the parties had put before him, namely, “Should the mother be permitted to relocate to Perth with the child?” (see p.55 of the reasons for judgment).
55. In determining that question, his Honour noted once again that the focus of the proceedings is on the best interests of the child in the circumstances of the case before him, and indicated that in addition to applying the legislative provisions, he considered certain questions arising from an English decision of Re: TC and JC (Children: Relocation) [2013] EWHC 292 (“Re: TC and JC (Children: Relocation)”) to be relevant, namely:

337. ...

1. Is the application genuine in the sense that it is not motivated by some selfish desire to exclude the father or other person from the child's life?
2. Is the application realistically founded on practical proposals both well researched and investigated?

100. What would be the impact on the applicant, either as a single parent or as a new spouse or partner, of a refusal of a realistic proposal?

4. Is the other parent or person's opposition motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive?
5. What would be the extent of the detriment to the father and his future relationship with the child if the application were to be granted?
6. To what extent would that detriment be offset by the extension of the child's relationships with the applicant’s family?

56. His Honour then proceeded to answer these questions, and importantly for this appeal, it can be seen that in doing so his Honour clearly addressed the disadvantages of the mother’s proposal (see, eg, [440]–[448]). I interpolate though, as can be seen from his Honour’s approach identified above, that that was an integral part of his Honour’s consideration of the legislative provisions and the assessment of the evidence before him throughout his reasons for judgment.
57. Following the consideration of these questions his Honour provided a summary of his findings, and arrived at his conclusions, commencing at [456].
58. It is here that his Honour undertook the necessary balancing of the competing proposals of the parties, and the ultimate assessment of the advantages and disadvantages of those proposals.
59. It is correct, as the father alleges, that his Honour moulded his orders to address the disadvantages of permitting relocation. However, it was appropriate for his Honour to do that once he had determined, including by balancing and weighing the competing proposals of the parties, and the advantages and disadvantages of each of them, that it was in the best interests of the child to relocate to Perth with the mother.
60. Thus, the principal thrust of Ground 1 identified above is not made out, and no error of principle has been demonstrated.
61. That said, I will now address the particulars of Ground 1 in order to ensure that I have considered all of the issues raised in that ground.
62. The first particular comprises the source from which I have discerned the principal thrust of this ground, and given what I have said above, there is no need to further address this issue.
63. As to the second particular, it is suggested that apart from failing to consider, weigh and assess all of the factors, his Honour failed to indicate to which of those factors he attached the greater significance.
64. This, of course, is a curious submission, given the principal complaint in the appeal is that his Honour failed to balance the advantages and disadvantages. However, putting that aside, this is an erroneous submission. In his Honour’s summary of findings, his Honour makes it clear which of those findings are the decisive factors in determining what outcome is in the best interests of the child. For example, his Honour said this:
    457. ...In the context of the mother’s vulnerability to depressive symptoms and in circumstances where she is likely to be engaged in difficult and stressful communication with the father in the future concerning parenting arrangements, it is entirely reasonable for the mother to wish to reside in a city where she can draw upon the emotional support of family and long-term friends. I am satisfied that support exists in Perth whereas the mother has been unable to establish comparable relationships in Sydney.
    458. I am further satisfied that the mother’s sense of well-being will be enhanced by moving to Perth where she does have that additional emotional support. In turn, that enhanced sense of well-being will reduce the prospect of the mother experiencing depressive symptoms and will enhance her ability to engage positively with the child.
    459. I am satisfied that minimising the prospect of the mother suffering depressive symptoms and enhancing her sense of well-being and ability to engage positively with the child is in the best child’s interests. This is more likely to be achieved if the mother relocates to Perth rather than if the mother continues to live in Sydney.
    460. The child has her strongest and most significant reliant, confiding and emotionally attuned relationship with the mother ...

...

462. ...the likelihood that the mother will continue to be engaged [sic] disputation with the father regarding parenting matters, and the fact that it is likely there will be difficulty in the mother communicating with the father in respect to those matters is relevant contextual background to my decision concluding that the mother will benefit from the additional emotional support she will obtain from friends and family in Perth.
463. I am satisfied that, in the short term the child will be distressed at moving away from her father, siblings and paternal grandmother, as well as her friendship group. However, for reasons that I have outlined I am satisfied that, in the medium to longer term, the child will benefit from her mother having an enhanced sense of well-being and being able to engage more positively with the child.
464. ...the findings that I have made are based on a comparison of the benefit to the mother’s mental health that I have found she is likely to experience in moving to Perth as against the distress and difficulties she is likely to experience if she remains living in Sydney. As indicated above, in the latter circumstance, I am satisfied that the mother would be more likely to experience periods where she suffers depressive symptoms and a reduced sense of well-being. While I am satisfied that would not impact upon the mother’s parenting capacity, to the extent that it would present a risk to the child, it would nonetheless have a detrimental impact in so far as it would not enable the mother to engage as positively with the child as she is likely to be able to in Perth.
465. ...had I declined to make orders permitting the child to relocate to Perth... the child would suffer the detriment of losing her connection with the mother who, as noted, I have found to be the parent with whom the child has the strongest and most reliant, confiding and emotionally attuned relationship.
65. The third particular is also ill-founded. It suggests that his Honour failed to consider “the interests of the child in spending equal time or substantial and significant time with the father”. However, his Honour specifically considered these matters, first at [162] and [163] when he referred to the legislative requirements and indicated that he would be applying the approach suggested by the Full Court in Starr & Duggan [2009] FamCAFC 115. Then, secondly, in considering all of the matters that bear upon the best interests of the child ([165]–[315]), thirdly in imposing and answering the question whether equal time or substantial and significant time was reasonably practicable ([316]–[336]), and finally, in summarising his findings and proposing his orders ([456]–[480]).
66. As to the fourth particular, we have considered the same already, and rejected it, namely, the submission that his Honour did not “evaluate and balance the advantages and disadvantages of all of the options”. Similarly, I have addressed the fifth particular, namely the alleged failure in approach by his Honour, and nothing more need be said about that.
67. The sixth particular complains that his Honour erred in determining the “central question” by assessing the factors indicated in Re: TC and JC (Children: Relocation). However, again, this submission is misconceived, and particularly if it is assumed that the “central question” was whether relocation should be permitted. Properly construed the complaint is that his Honour determined that question solely by reference to the factors identified in that decision.
68. It is readily apparent that his Honour applied those factors as a means of assisting in the task of determining what was in the best interests of the child (see, eg, [337]). They were not applied in substitution for the factors in s 60CC of the Act, although there is a significant overlap between the two. Thus, I can see no error here by the primary judge.
69. The seventh particular is a mere assertion without any detail as to how it is alleged that the primary judge “misdirected himself as to the test to be applied”.
70. In summary then, I find no merit in Ground 1, including in any of the particulars of that ground.

Ground 2

71. To repeat, this ground comprises a weight challenge, and to attempt to understand the same it is necessary to look to the particulars. However, many of the particulars comprise nothing more than the identification of the advantages to which it is said that his Honour attached inappropriate weight. It is not explained in this ground, in the particulars, or in the summary of argument, why his Honour was unable to attach the weight that he did to those advantages. Further, and importantly, nowhere is it suggested that his Honour’s findings as to the advantages were not reasonably open to his Honour.
72. The weight that a primary judge accords to the advantages of a particular proposal of one of the parties is a matter that falls peculiarly within the discretion of that primary judge.
73. Challenges to the exercise of that discretion face significant hurdles according to the authorities (see, eg, CDJ v VAJ (1998) 197 CLR 172 per Kirby J at [186] (“CDJ v VAJ”)). As Stephen J said in Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 519-520 (“Gronow”):

The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight...

74. Here, no error of principle, or of law, or mistake of fact is alleged, and I am not persuaded that his Honour was plainly wrong in the exercise of his discretion.
75. Subject to a further comment that I will make following consideration of Ground 3, there is no merit in Ground 2.

Ground 3

76. In the particulars of this ground the father provides a list of 23 factors to which is it said the primary judge gave “no, or inappropriate weight”.
77. The first point to make is that they are all factors which were in play before his Honour, and which his Honour addressed in his reasons for judgment. Thus, the complaint that his Honour gave “no weight” to these factors cannot be maintained.
78. The second point to make is that, as with Ground 2, nowhere is it explained how it is that the exercise of his Honour’s discretion, which led to the orders under appeal, miscarried. To simply repeat the propositions advanced at trial, and suggest that his Honour should have accepted them, without pointing to an error of principle, or of law, or of fact, does not sound in appealable error. To repeat, it is uniquely within the province of the primary judge to give such weight to the evidence as he or she deems appropriate, and it is only if in that process an error is committed of the nature identified above, and it can be said that his Honour was plainly wrong, that there is a basis to allow an appeal.
79. To take just two examples from the particulars.
80. In Particular (ii), it is suggested that his Honour failed to give sufficient weight to “the Family Consultant’s views”. In this regard, his Honour was faced with the competing opinions of two experts. The family consultant, Ms Y, in a report to the court dated 26 October 2015, was of the view that permitting the child to relocate with the mother to Perth was not in the best interests of the child. However, the single expert appointed by the court, Dr H, whose report was provided on 22 August 2017, favoured orders being made to facilitate that relocation.
81. His Honour was well aware of these competing opinions, and referred to them at various stages of his reasons for judgment. Ultimately though he preferred the opinion of Dr H over that of Ms Y, and he explained why at [467]–[474].
82. No error of principle, or of law, or of fact is suggested in those reasons, and again, it is not submitted that it was not reasonably open to his Honour to find as he did in this regard. Thus, it cannot be said that his Honour was plainly wrong in the exercise of his discretion.
83. The second example relates to the views of the child. In Particular (iv), it is said, “[t]hat the child has genuinely expressed the view that she has a desire to spend a greater amount of time with her father and that is a view she genuinely holds”. Further, in Particular (v) it is said, “[t]hat the child likes living in Sydney”.
84. However, again, his Honour was well aware of these views, and he addressed them comprehensively when considering the full range of the child’s expressed views at [189]–[198]. Specifically, his Honour said this:
    196. While the child has expressed a desire to spend more time with her father, and she likes living in Sydney, in her interview with [Dr H], which occurred on 16 April 2017, the child specifically refrained from expressing a view as to whether or not she wished to relocate to Perth with her mother. In that context at paragraph 393 – 395 of his report [Dr H] records;

Early in her individual interview, I asked the child whether she was in the grip [sic] of children who say “I’m glad to be here... Because I want to have my say... And someone might listen... And I want to get all this sorted out”, or in the group to say “[sigh] leave me out of this... I hate having to come here, and talk about these things”.
The child chose the latter group. She said, “I don’t want to give my opinion... like, ‘do you like Perth or Sydney more?’... and related to stuff like that”.
I note that [Ms G] confirmed to me that this decision “not to give [her] own opinion” about “Perth versus Sydney” had been the child’s consistent stance with [Ms G]. Whereas many children whom I interview may put forward such a stance early at some stage in the interview, but at another will step forward to express or elaborate an opinion, at interview with me I also found the child was consistent, in her stance of not expressing an opinion.

197. It is to be noted that the unwillingness of the child to express her wish to [Dr H] was a change in a position to that observed by [Ms Y], the Family Consultant who prepared a report dated 26 October 2015 after conducting interviews with the parties and the child on 24 September 2015. At paragraph 51 of that report, [Ms Y] notes that the child advised her that “she does not want to live in Perth.” At paragraph 53, [Ms Y] records that the child “is also concerned that, if she were to go to Perth, it would take a long time to organise all of the activities in which she participates in Sydney.”
198. It is to be noted that [Ms Y] has not interviewed the parties or the child since 24 September 2015. It is to be further noted that, in giving evidence, [Dr H] re-emphasised that “she [the child] didn’t want to have a view, and because of that, I’m cautious about any approach that tries to read between the lines what her view is.” In those circumstances I also respect the position communicated by the child to [Dr H] that she does not now wish to express her view as to whether she does or does not want to live in Perth.

(Footnotes omitted)

85. Again, no appealable error is identified in how his Honour took into account the views of the child, and it is not suggested that it was not open to his Honour to accept the evidence of Dr H.
86. Other factors listed in the particulars comprise nothing more than a restatement of some of the factors in s 60CC(2) and (3) of the Act that are to be taken into account by the court in determining where the best interests of the child lie. However, in his extensive reasons for judgment, his Honour carefully considered each and every relevant factor in s 60CC(2) and (3) (at [165]–[315]), and no appealable error is identified in that process by the father.
87. Finally, I need to comment on Particular (i), namely:

The presumption of equal shared parental responsibility.

88. I am perplexed by this particular given that his Honour, despite expressing reservations, found that the presumption was not displaced, and made an order that the parties have equal shared parental responsibility. How that can sound in error by the primary judge is entirely unclear.
89. In summary then, this ground of appeal, including the particulars set out in the ground, has no merit.
90. As can be seen I have addressed Grounds 2 and 3 discretely. I concede that it was perhaps not intended by the father that those grounds be considered in that way given that the two grounds are interrelated and a principal complaint apparent in the appeal is that his Honour erred by failing to balance or weigh the advantages and the disadvantages of each proposal.
91. However, that complaint does not withstand scrutiny as can be seen from my consideration of Ground 1, where that is the principal thrust of that ground. To repeat, I am not persuaded that his Honour failed to undertake that balancing or weighing process, and thus it does not alter the outcome of the appeal to consider Grounds 2 and 3 together.

CONCLUSION

92. Having found no merit in any of the grounds of appeal, the appeal must be dismissed.

COSTS

93. At the conclusion of the hearing of the appeal submissions were sought as to the question of costs, depending upon the outcome of the appeal.
94. In the event that the appeal was unsuccessful, the mother sought an order for costs against the father, and although the mother’s counsel was not able to inform the Court of the amount of costs sought, subsequently the Appeal Registrar was advised that on a party/party basis the costs sought were $16,500.
95. The ICL also sought costs in the event of the appeal being dismissed, and the sum sought was $5,511.
96. There was nothing put on behalf of the father in opposition to the costs orders sought, and in particular the issue of the respective financial circumstances of the parties was not raised as a relevant factor. Accordingly, I propose to make orders for costs in favour of the mother and the ICL as sought.

RYAN J

97. I agree with Strickland J and the orders which he proposes. I also agree with Aldridge J.

ALDRIDGE J

98. I have read the draft reasons of Strickland J and agree with the orders proposed by his Honour. However, my reasons differ slightly and are set out below.
99. As Strickland J has pointed out, there were marked difficulties in the father’s written and oral submissions in that they did not address the grounds of appeal. They took the form of a survey of the primary judge’s reasons with the assertion that, at times, such a finding or approach was an error. In addition, the grounds were often broadly stated but then amplified by a series of “Particulars” which tended to be discussions and not focussed on identifying error.
100. I shall deal with the appeal as framed by the grounds of appeal and shall do the best I can with the submissions. That will however, require on occasions, the grounds to be set out in full.

Did the primary judge err by failing to determine the issues in the case? (Ground 1)

101. This ground was accompanied by seven particulars, the first of which contained a further eight sub-particulars.
102. Particular (i) states:

The Primary Judge erred by approaching the question of what parenting orders to make by addressing, if the mother moves to Perth with the child, advantages that might arise (J[458]-[459],[463]):

(a) to the mother, with her belief that she might find it a little easier to meet expenses;
(b) to the mother, due to (unassessed) likelihood, of enhancing the mother’s sense of well-being;
(c) to the mother, due to (unassessed) likelihood of a reduced risk, of the mother re-commencing to suffer depressive symptoms;
(d) to the child, due to the increased ability of the mother to engage positively with the child, if the mother has an enhanced sense of well-being and if the mother’s depressive symptoms do not re-appear;
(e) to the child, as to anxiety, because it is likely to reduce in the medium to long-term (albeit that anxiety would increase in the short term);

and, having found the mother should be able to relocate the child, then moulding other orders to mitigate the disadvantages such relocation has on interests of the child, such as:

(f) not having the benefit of equal, substantial or significant time with the father;
(g) the impact on relationships with the child’s siblings; and
(h) the impact on her relationship with the paternal grandmother, and the value of this relationship.

103. I take this aspect of the ground to assert that whilst the primary judge took into account the advantages of the child moving to Perth with the mother, his Honour did not take into account the disadvantages set out in the particulars (f)–(h), but merely framed orders to minimise them.
104. The summary posed in the particulars does not do justice to his Honour’s findings which appear under the heading “Summary of Findings and Orders”. It is therefore appropriate to quote them in full:
     457. The mother has a history of reporting depressive symptoms of various degrees of intensity since 2009. The mother is currently consulting a clinical psychologist on a weekly basis and has been on antidepressants medication since mid-2014. It was agreed that the mother is vulnerable to experiencing depressive symptoms in the future. In the context of the mother’s vulnerability to depressive symptoms and in circumstances where she is likely to be engaged in difficult and stressful communication with the father in the future concerning parenting arrangements, it is entirely reasonable for the mother to wish to reside in a city where she can draw upon the emotional support of family and long-term friends. I am satisfied that support exists in Perth whereas the mother has been unable to establish comparable relationships in Sydney.
     458. I am further satisfied that the mother’s sense of well-being will be enhanced by moving to Perth where she does have that additional emotional support. In turn, that enhanced sense of well-being will reduce the prospect of the mother experiencing depressive symptoms and will enhance her ability to engage positively with the child.
     459. I am satisfied that minimising the prospect of the mother suffering depressive symptoms and enhancing her sense of well-being and ability to engage positively with the child is in the best child’s interests. This is more likely to be achieved if the mother relocates to Perth rather than if the mother continues to live in Sydney.
     460. The child has her strongest and most significant reliant, confiding and emotionally attuned relationship with the mother and I am satisfied that she should be permitted to relocate with the mother to Perth and spend substantial and significant time with the father.
     461. For completeness I record that, in the absence of the finding that I have made that the mother’s mental health and sense of well-being is likely to be enhanced by the additional emotional support that she will receive from family and friends in Perth, I would not have made an order permitting the child to relocate to Perth. Specifically, while I am satisfied that the mother genuinely believes she will benefit from a reduction in financial pressures if she moves to Perth, on the evidence available, I am not satisfied that such a benefit would justify the child relocating to Perth.
     462. Further, the desire on the part of the mother to move to Perth with a view to minimising her interactions with the father does not, in itself, justify an order permitting the child to relocate with the mother to Perth. However, the likelihood that the mother will continue to be engaged disputation with the father regarding parenting matters, and the fact that it is likely there will be difficulty in the mother communicating with the father in respect to those matters is relevant contextual background to my decision concluding that the mother will benefit from the additional emotional support she will obtain from friends and family in Perth.
     463. I am satisfied that, in the short term the child will be distressed at moving away from her father, siblings and paternal grandmother, as well as her friendship group. However, for reasons that I have outlined I am satisfied that, in the medium to longer term, the child will benefit from her mother having an enhanced sense of well-being and being able to engage more positively with the child.
     464. To further avoid doubt, I have made these findings on the basis of an assumption that the mother would not relocate to Perth without the child. In other words, the findings that I have made are based on a comparison of the benefit to the mother’s mental health that I have found she is likely to experience in moving to Perth as against the distress and difficulties she is likely to experience if she remains living in Sydney. As indicated above, in the latter circumstance, I am satisfied that the mother would be more likely to experience periods where she suffers depressive symptoms and a reduced sense of well-being. While I am satisfied that would not impact upon the mother’s parenting capacity, to the extent that it would present a risk to the child, it would nonetheless have a detrimental impact in so far as it would not enable the mother to engage as positively with the child as she is likely to be able to in Perth.
105. It can easily be seen that these were the matters that were given particular weight by the primary judge.
106. It is immediately apparent that one of those disadvantages was the impact of any move to Perth on the relationship between the child and her siblings and paternal grandmother (see [463]).
107. The primary judge noted the “close and loving relationship” between the child and the paternal grandmother at [204]–[209] and found that if the child moved to Perth “it will have an adverse impact on the amount of time that [the child] can spend with her paternal grandmother”. Nonetheless, his Honour accepted the opinion of the single expert psychiatrist, Dr H, that the grandmother would continue to be special to the child but there would be “a significant loss to [the child] in terms of the current intensity and organicity of that relationship” (at [209]).
108. Similarly, at [210]–[211] the relationship with the siblings was discussed and a finding was made; accepting Dr H’s opinion, that the relationship “would be of lesser depth and intensity and that would be one of the significant downsides of the Perth option”.
109. His Honour concluded:
     298. I am satisfied that, on balance, permitting the child to relocate with the mother to Perth would be in the interests of the child in the medium to long term even though it is likely that the child will initially suffer a period of distress at being separated from her father, paternal grandmother and siblings, as well as her Sydney based friendship group.
110. The primary judge expressly found that but for the move to Perth, it would have been appropriate for the child to spend substantial and significant time with the father (at [335]). It follows that the primary judge saw a benefit in such time. This followed a lengthy discussion of substantial and significant time (at [316]–[336]).
111. Clearly, the primary judge took the matters raised by the father, that is, the disadvantages of a move to Perth into account, as substantive considerations, in determining the appropriate parenting arrangements and not merely as part of framing orders. This aspect of the ground fails.
112. It also follows from the above discussion, that the primary judge did identify those matters to which he alluded greater weight (i.e. those set out in the section headed “Summary of Findings and Orders”) and considered equal time and substantial and significant time (at [316]–[366]) and evaluated and balanced the advantages and disadvantages.
113. There is, thus, no merit in particulars (ii), (iii) or (iv), which effectively raise the same point, albeit slightly differently expressed.
114. Particular (v) states:

The Primary Judge erred by treating as the central issue “whether orders should be made for the child to relocate with the mother to Perth” and erred by treating such question (in the manner the Primary Judge answered it) as “determinative of whether it is reasonably practicable for the child to spend equal or substantial and significant time with the father”, when it was reasonably practicable for the mother to remain in Sydney.

115. This is a challenge to the following paragraphs of his Honour’s reasons:
     335. Despite the concerns I have expressed in respect to the protracted period of litigation in this matter and the parties poor communication I am satisfied that, in the event that the child does not relocate to Perth with the mother, an order for the child to live with the mother and spend substantial and significant time with the father would have been appropriate.
     336. The central issue is therefore whether orders should be made for the child to relocate with the mother to Perth. Determination of that issue is ultimately determinative of whether it is reasonably practicable for the child to spend equal or substantial and significant time with the father.
116. Having regard to the conclusion reached at [335], that if parties lived in the same city it was in the best interests of the child to live with the mother and spend substantial and significant time with the father, the central issue in the proceedings became whether or not the arrangement should continue if the mother moved to Perth. As is made quite clear at [139] of the reasons, the mother was proposing to move to Perth in any event, so that the proposals before the Court were whether the child should live in Perth with the mother or with the father in Sydney. For obvious reasons, in either case, it would be difficult for orders to be made which would see the child spending substantial and significant time with the parent with whom she was not living.
117. There is no merit in this aspect of the ground.
118. Particular (vi) states:

The Primary Judge erred by assessing, as a means of addressing what was described as the “central question”, factors indicated in Re: TC and JC (Children: Relocation) [2013] EWHC 292; and, further or in the alternative, erred in that exercise as set out in the foregoing particulars.

119. Despite the terms of the particular, the only reference made to this decision in either the written or oral submissions was to note that that the primary judge addressed six questions in the course of his approach to the matter. This was in the context of a submission which asserted that his Honour failed to balance the benefits and detriments of each option.
120. Re: TC and JC (Children: Relocation) was a decision of Mostyn J sitting in the High Court of England, in which his Honour distilled a number of principles that he considered relevant to relocation cases.
121. The primary judge quoted from this decision under the heading “Should the mother be permitted to relocate to Perth with the child” as follows:
     337. As earlier noted the focus of these proceedings is on the best interests of the child in the circumstances of this particular case including the fact that the mother has indicated an intention to relocate to Perth. In determining whether the child should be permitted to relocate with the mother, in addition to those legislative provisions to which I have earlier referred, applying Re: TC and JC (Children: Relocation), I consider the following questions are relevant:
          1. Is the application genuine in the sense that it is not motivated by some selfish desire to exclude the father or other person from the child's life?
          2. Is the application realistically founded on practical proposals both well researched and investigated?
          100. What would be the impact on the applicant, either as a single parent or as a new spouse or partner, of a refusal of a realistic proposal?
          4. Is the other parent or person's opposition motivated by genuine concern for the future of the child's welfare or is it driven by some ulterior motive?
          5. What would be the extent of the detriment to the father and his future relationship with the child if the application were to be granted?
          6. To what extent would that detriment be offset by the extension of the child's relationships with the applicant’s family?

(Footnote omitted)

122. His Honour found that the answers to these questions favoured the relocation of the child to Perth. Importantly, however, this discussion did not supplant a thorough and detailed application of s 60CC considerations which his Honour conducted at [189]–[315].
123. The quoted passage of Mostyn J was but part of a wider statement of principle which commenced with Mostyn J noting that the “only authentic principle to be applied when determining an application to relocate a child permanently overseas is that the welfare of the child is paramount and overbears all other considerations” (at [11]).
124. Nonetheless, I consider that the specific questions posed by Mostyn J do not entirely accord with the principles to be applied in Australia.
125. In Australia, the Court must determine what is in the best interests of the child by considering the matters set out in s 60CC(2) and (3) of the Act. True it is, that this includes “any other fact or circumstance that the court thinks is relevant” (s 60CC(3)(m)) but this does not readily admit the introduction of a new set of principles to be applied.
126. In particular, proposition (b) and, to some extent, (a) and (d), as posed by Mostyn J, tend to suggest that a parent seeking to move with the child must establish that he or she has a sound, justifiable and reasonable reason for doing so. That is not the position in Australia.
127. In AMS v AIF (1999) 199 CLR 160 (“AMS v AIF”), Kirby J said:
     145. Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modem family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.

(Footnotes omitted)

128. His Honour also said:
     191. First, to impose upon a custodial (or residence) parent the obligation to demonstrate “compelling reasons” to justify relocation of that parent's residence, with consequent relocation of the residence of the child, is not warranted either by the statutory instructions to regard as paramount the welfare of the child or by the practicalities affecting parents. Parents enjoy as much freedom as is compatible with their obligations with regard to the child. The freedom continues, including with respect to their entitlement to live where they choose. At least in the case of a proposed relocation within Australia, the need to demonstrate “compelling reasons” imposes on a custodial parent an unreasonable inhibition. It effectively ties that parent to an obligation of physical proximity to a person with whom, by definition, the personal relationship which gave rise to the birth of the child has finished or at least significantly altered.

(Footnote omitted)

129. Gleeson CJ, McHugh and Gummow JJ expressly agreed with that statement (at [47]).
130. Kirby J made the same point again in U v U [2002] HCA 36; (2002) 211 CLR 238 saying:
     144. The implications of adopting the “alternative proposal”: Treating the wife's refusal to abandon her child and her expression of willingness (if necessary) to stay with the child in Australia as an “alternative proposal” requires, in effect, that parent to show “good” or “compelling” reasons to relocate, given that doing so will always make it more difficult (and in some cases virtually impossible) for physical contact between the other parent and the child to be maintained. Such an approach stacks the cards unfairly against the custodial/residence parent. It is precisely the approach held to have been erroneous in AMS.

(Original emphasis)

131. At [82], Gummow and Callinan JJ, with whom Gleeson CJ, McHugh and Hayne JJ agreed, said:

...The trial judge and the Full Court were sensitive, and rightly so, to the wish and right of the appellant to live and work wherever she desired.

132. It is to be recalled that orders which provide for a parent, as opposed to a child, to reside in a particular place are made only in exceptional circumstances (Sampson & Hartnett (No. 10) (2007) FLC 93-350).
133. The questions posed by Mostyn J tend to obscure that fundamental freedom and are more likely to divert a judge tasked with applying the Act from applying the relevant statutory considerations, rather than assist. It follows that the principles set out by Mostyn J must be approached cautiously in Australia, if at all.
134. This is not to say, of course, that a parent seeking to move the child for an ulterior motive (such as to deprive the other parent of a relationship with the child) or that the proposal for relocation is so poorly thought out that there was a risk that the child would not be properly cared for in the new location may not be relevant circumstances. Of course they are, but they fall readily within the considerations posed by s 60CC of the Act.
135. It was not suggested, however, that in his Honour’s discussion of these questions, the primary judge made any erroneous finding or took into account any matter that was not relevant to the issues to be decided.
136. Whilst it is true that in the course of his discussion of the principles set out in TC and JC (Children: Relocation) the primary judge did find that the mother’s decision to move to Perth was “not unreasonable” (at [404]), his Honour clearly accepted that the mother did not need to “establish compelling circumstances requiring her to move to Perth” (at [397]).
137. Whilst that too may overstate the test to be applied, that was a finding which, if anything, favours the father.
138. Nonetheless, that discussion was an addendum to the extensive application of the s 60CC considerations which, in his Honours view, of themselves favoured the orders sought by the mother. Thus, the application of TC & JC (Children: Relocation) was not a material error which would support allowing the appeal (Conway v The Queen (2002) 209 CLR 203 at [207]–[208], [217], [219]–[220], [232], [244]; Lane & Nichols (2016) FLC 93–750 at [72]–[81]).
139. To the extent that this aspect of the ground raises the lack of a balancing exercise conducted by his Honour, it is clear that almost the entirety of the judgment is precisely that. On a proper reading of the reasons there can be no doubt that his Honour traverses and takes into account the advantages and disadvantages of the child moving to live in Perth.
140. Before leaving this ground, I would observe that, although commonly still done, it is inapt to refer to a relocation case as one involving “permission” for a parent to move with the child.
141. In AMS v AIF, Kirby J said at [188]:

I do not consider that the references in the reasons of the primary judge and in those of the Full Court to the provision of “permission” to the mother to return to the Northern Territory with her son indicated an erroneous understanding of the decision which had actually to be made. As I have shown, this was the very way in which the parties framed their respective affidavits and presented their arguments. It was unsurprising, therefore, that the judges should also slip into the same language. Notwithstanding this, it would be preferable that such references to “permission” to relocate be avoided. The word has a tendency to distract attention from the jurisdiction actually being exercised. In this case, it concerned the custody and guardianship of the child, residence arrangements and access and contact orders, all of which fell to be decided having regard to the welfare of the child as the paramount consideration. To treat the determination of the residence of the child, and the connected issue of custody, as dependent upon the giving or withholding of “permission” to a parent to relocate his or her residence may divert attention from the child's welfare, to the competing needs and demands of the parents in conflict.

(Footnotes omitted)

142. To a similar effect, Hayne J said at [217]–[218]:

... But that does not mean that the question for the Court is whether the mother is to be permitted to move to Darwin. And it does not mean that the question is whether the mother has shown a “good” or a “compelling” reason for wanting to move.

To translate the question into this form – has the mother shown a good, or good enough, reason for wanting to move – focuses attention upon the reasons and motives of the mother. But that is not the proper focus of inquiry. The proper focus is which is better for the child – to be in the custody of the father (in Perth) or to be in the custody of the mother (in Darwin). That, of course, requires attention to what benefits will the child have, and what detriments will the child suffer, from being in the mother's custody in Darwin ...

(Original emphasis)

143. Particular (vii) states:

The Primary Judge misdirected himself as to the test to be applied.

144. To the extent that this aspect of the ground relies on the earlier particulars, it must fail for the same reasons as each of them did. If it was intended to raise some other point, it must also fail because the submissions do not identify the test said to be the subject of the misdirection.
145. This ground does not succeed.

Did the primary judge err by relying upon or by giving inappropriate weight to evidence of advantages, if the mother moves to Perth with the child? (Ground 2)

146. This ground is supplemented by a list of thirteen “Particulars” (including sub-particulars), some of which clearly identify “advantages” but some obviously do not. Those that appear as particulars (vi) (a)–(g) are either mooted disadvantages ((a) and (d)), some are criticisms of evidence which are difficult to understand ((e), (f), (g)) and one is a failure to take into account “factors connected with the litigation when the litigation would end by the making of orders ...” ((c)).
147. Those particulars relevant to the ground which identified advantages of any move to Perth may be summarised as:
     • the mother reasonably believed that she might find it easier to meet expenses;
     • the mother would have an enhanced feeling of well-being;
     • a reduction in the likelihood of the mother suffering depressive symptoms;
     • the child would benefit from points 2 and 3, and
     • the child’s anxiety might increase in the short term but reduce in the medium to long term.
148. These may all be taken to be advantages of a move to Perth, although there was no express finding to the effect of point 2.
149. The identified disadvantages were:
     • difficulties with past decision-making, especially where the difficulty lay in the mother being unresponsive, and
     • the preponderance of difficult communication.
150. As is apparent from their substance, these difficulties were general in nature and existed regardless of any move to Perth.
151. All these matters directly or indirectly affected the best interests of the child and the primary judge did not err by taking them into account.
152. The ground, thus, becomes an assertion that inappropriate weight was given to particular matters. Matters of weight are matters primarily for trial judges and appeals on such grounds face a high bar. It is relevant to recall that his Honour took into account many more matters than are the subject of this ground.
153. The weight to be given to particular factors is a matter particularly for the trial judge. In Gronow at 519–520, Stephen J said:

The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.

154. In CDJ v VAJ, McHugh, Gummow and Callinan JJ said:
     151. Wide as the discretion conferred by s 93A(2) undoubtedly is, apart from such truly exceptionable cases, more is required for its exercise and the ordering of a new hearing than a real chance that the order under appeal does not serve the best interests of the child. Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
     152. The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G [1985] FLR 894 at 897-898], Lord Fraser of Tullybelton pointed out:

“The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.”

(Footnotes omitted)

155. I am quite unable to see that the weight given to these matters was inappropriate. Obviously, the primary judge found that the overall weight of his considerations favoured the orders proposed by the mother. That, indeed, was the task – to find which orders were in the best interests of the child. The finding and orders that were made were well open on the evidence and no error has been demonstrated.

Did the primary judge err by giving no weight, or insufficient weight, to factors and evidence of those factors? (Ground 3)

156. The vague obscurity of this ground is said to be illuminated by the list of 23 “Particulars” that follow it. Those particulars do not attempt to identify those matters to which it was said no weight was given and those to which insufficient weight was given. This is important because they raise different issues on appeal. Failure to take into account a relevant matter is a clear error in the exercise of a discretion (House v The King (1936) 55 CLR 499). On the other hand, a question of weight faces the difficulties just discussed.
157. Further, some of the “Particulars” are perplexing.
158. The first factor to which no, or insufficient weight, was said to be given was “[t]he presumption of equal shared parental responsibility”.
159. The particular refers to the following paragraph of his Honour’s reasons:
     161. Nevertheless, each of the parties and the ICL contend that an order for equal shared parental responsibility should be made. Despite some reservation, in circumstances where it was not contended otherwise, I have found that the presumption set out in section 61DA(1) has not been displaced.
160. The submissions do not identify what error is said to flow from the primary judge recording the joint position of the parties on this issue.
161. Of the remaining particulars, 15 identified the passage in the primary judge’s reasons where the issue raised in the particular was discussed. I shall return to them shortly.
162. Particular (ix) asserted a matter given no or insufficient weight was “[t]hat the relationship between the mother and father has been predominantly professional and courteous”. That was not the finding of his Honour who said:
     159. Both parties acknowledge that, during the course of their relationship there were incidents of family violence. A significant incident of family violence occurred on 7 August 2010. Following that incident, which is described in greater detail below, the mother decided to separate from the father.
     160. It is also relevant that the parties have been engaged in legal proceedings that have spanned seven years. During that period there have been significant issues of dispute between the parties including in respect of the child’s education, health and travel. I will also refer to evidence indicating poor communication between the parties.

...

235. I have earlier noted that, on several occasions during the course of the proceedings, I observed the emotionality of both parents who, at several points in the proceedings became quite distressed to the point of tears. On several occasions it was necessary to adjourn the proceedings to enable one or other of the parties to compose themselves. I raised this observation with [Dr H] who replied “Yes, your Honour, I think I used in my report the word intensity. But – but it – it’s a similar thing. There’s emotionality. There’s an intensity.”

(Footnote omitted)

163. There is no ground of appeal that challenges these findings.
164. It is difficult to understand particular (xi) which is self-evidently correct. It states “[f]ollowing the making of orders, this litigation will have ended”. In any event, the primary judge discussed the desirability of avoiding further proceedings (s 60CC(3)(1) of the Act) at [305]–[310] and concluded that whilst there was some additional prospect of litigation “if orders are made preventing the child relocating to Perth with the mother”, it was not a major consideration (at [310]).
165. The object of ensuring that children have both their parents having a meaningful involvement in their lives (particular (xii)) was the subject of discussion at [165]–[171] and lead to the conclusion that the child can maintain a meaningful relationship with the father if the child moved to Perth (at [171]).
166. The likely effect of separation of the child from the father, the paternal grandmother and change in circumstances (the subject of particulars (xiv), (xvii), (xx) and (xxi)) was, as we have already observed, the subject of considerable discussion by his Honour and the subject of specific mention again at [290]–[298].
167. It follows that the particulars that can readily be understood and identify findings said to be given no weight, actually identified matters that were the subject of express consideration by the primary judge. There is nothing in the reasons which suggests weight was not given to them. Given the extensive reference to and discussion of these various matters I would be loath to conclude that that the primary judge gave no weight at all to them. Indeed, the opposite would appear to be the case.
168. The ground then again devolves to a question of weight. This is made clear by the conclusion to the father’s written submissions which states:
     61. Overall. The wrong approach was applied. There was a “failure to determine the issues in the case”. If the balancing exercise were done as required by law, the child-moving-to-Perth Distance Option was not in the best interests of the child: detriments, such as to the relationship with the father, siblings and paternal grandmother, outweighed the relatively small advantages as found.

(As per original) (Footnote omitted)

169. In reality, the father is contending that his contentions should have carried the day. That does not identify error. As CDJ v VAJ makes clear, there may be more than one correct outcome in parenting matters and that two different judges hearing the same evidence could reasonably arrive at quite different results.
170. The findings of His Honour and the orders that were made were open on the evidence and no error has been established.
171. The wrong approach was said to be the primary judge’s “failing to balance the benefits and detriments of each option” (Husband’s Summary of Argument filed 13 September 2018, paragraph 53). His Honour’s reasons are that balancing exercise and no error in his Honour’s approach is identified.

I certify that the preceding one hundred and seventy-one (171) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ryan and Aldridge JJ) delivered on 31 July 2019.

Legal Associate:

Date: 31 July 2019