Rush & O'Leary [2008]

FAMILY LAW - APPEAL – RELOCATION – Where the trial Judge ordered that the mother’s application to change the place of residence of the parties’ children from Sydney to rural Victoria be refused and that the mother be restrained from changing the children’s residence to any place more than 15km from the former family home in Sydney – The trial Judge also made orders for defined contact between the children and their father, including the introduction of Wednesday overnight contact – Whether the trial Judge had pre-judged the matter and raised a reasonable apprehension of bias – No merit found in these complaints – Restraint on the mother relocating to Victoria challenged on the basis that the trial Judge erred in asserting that the mother was required to provide adequate reasons for the proposed relocation and in failing to have regard to the economic impact on the mother if she was not permitted to move to Victoria – No merit found in these complaints – 15km restraint challenged on the basis that it had not been sought or explored at trial, that inadequate reasons had been given by his Honour for the restraint, that the restraint was contrary to other part of his Honour’s reasoning and that the restraint was not supported by the evidence – Order varied to restrain mother from changing the children’s place of residence to any area outside the Sydney metropolitan region – Wednesday overnight contact order challenged on the basis that the order was only sought by the father during final submissions and on the basis of inadequacy of reasons – Order varied to make it an interim order.

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) That the applications by both parties to adduce further evidence be dismissed.
(2) That the appeal be allowed in part.
(3) That Order 1 of the orders of 31 January 2006 be varied to provide:

1. The mother’s application to change the place of residence of the parties’ children ... to [Town A] Victoria is refused and the mother is restrained from changing the children’s place of residence to any area outside the Sydney metropolitan region except by written consent of the father or leave of the Court.

(4) That Order 3.2 of the orders of 31 January 2006 be varied to provide:

3.2. Pending further order in school terms from end of school Wednesday until start of school Thursday.

(5) That the appeal be otherwise dismissed.
(6) That the appellant mother and the respondent father are at liberty within 28 days of the date of these orders to file and serve submissions in relation to the costs of the appeal with each party having a further 14 days to file and serve any response to any such submissions.

IT IS NOTED that publication of this judgment under the pseudonym Rush & O’Leary is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Appeal Number: EA 19 of 2006
File Number: SYF 5633 of 2002

Appellant

And

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal by the mother of two children, K (who was born in August 1996) and E (who was born in November 1998), against the following orders made by Mullane J on 31 January 2006 in proceedings between the mother and the father of the children concerning their future living arrangements:
   1. The mother’s application to change the place of residence of the parties’ children ... to [Town A], Victoria is refused and the mother is restrained from changing the children’s residence to any place more than 15 kilometres from the former family home at [Suburb B] except by written consent of the father or leave of this Court.

...

3 The children are to have contact with the father as follows:

3.1 each second weekend in school terms from end of school Friday to start of school Monday (Tuesday if Monday is a school holiday);

3.2 in school terms from end of school Wednesday to start of school Thursday;

3.3 For one-half of each New South Wales publicly gazetted school holiday period, and in the absence of agreement between the parties being the first half in even numbered years and the second half in odd numbered years;

3.4 reasonable telephone contact on at least 3 occasions each week, each not less than 5 minutes;

3.5 such other contact as the parties agree;

3.6 the father must collect the boys from school at the start of contact under 3.1 and 3.2 and deliver them to school at the end of such contact;

3.7 for contact under 3.3 the father must collect the boys from outside the mother’s residence at the start of contact and the mother must collect them from outside the father’s residence at the end of contact; and

3.8 in the event Father's Day falls on a weekend when the boys would otherwise not be with the father, then the boys are to have contact on that weekend and the next weekend contact under 3.1.will not occur;.

...

1. Otherwise the mother’s application filed 31 August 2004 and the father’s response filed 14 September 2004 are dismissed.
2. The Notice of Appeal states that Order 16 is only appealed in so far as it relates to the mother’s application filed 31 August 2004.
3. Orders 14 and 15 of the orders made on 31 January 2006 are also appealed. However as they can be regarded as consequential to orders 1 and 3 (as well as to certain other orders), it is unnecessary to set out their terms.

BACKGROUND

1. It need only be said by way of background at this point that the mother and father commenced cohabitation towards the end of 1995. Their first son, K, was born in August 1996 and their second son, E, in March 1998.
2. The parties bought a home in Suburb B in Northern Sydney in January 2001. Prior to that they had lived at a number of different locations, but largely in the same area.
3. The parties separated under the one roof in May 2002. On 1 October 2002 the mother took the children to Town A in Victoria where her parents lived. The father then instituted proceedings to secure the return of the children.
4. Following interim proceedings in this court, in which she was granted residence of children and exclusive occupation of the Suburb B house conditional upon her returning the children to Sydney, the mother returned with the children to the Suburb B house on 2 November 2002.
5. On 14 March 2003 orders were made by consent which relevantly for present purposes provided:

...

1. That the children of the relationship ... live with the mother at all times other than when they are with the father.
2. That the children reside with and/or have contact with the father as follows:

(a) Each alternate weekend from after school at 3.15 pm on Friday until Monday morning, when the father is to take [K] to school and [E] to child-care;

(b) Tuesday from after school until 7.00 pm, having given the children their evening meal;

(c) For one week in each of the school term holidays;

(d) For one-half of the Christmas school holiday period in each year, as agreed between the parties, but failing such agreement, for the first half of the school holiday period in the year 2003 and each alternate year thereafter, and for the second half of each school holiday period in 2004 and each alternate year thereafter;

(e) From 2.00 pm on Christmas Day in those years when the father's residence or contact falls in the second half of the school holidays, provided that the father is staying within two (2) hours drive away from where the children are then staying or resident with the mother;

(f) Telephone contact between 5.30 pm and 6.30 pm for a minimum period of ten (10) minutes on Thursday each week and on each alternate Sunday when the children are not otherwise with the father, with the father to telephone the children at their then place of residence or on the mother's mobile telephone number;

(g) As otherwise may be agreed between the parties from time to time;

(h) And it be noted that when the children are with the father on alternate Sundays pursuant to these Orders, the mother may telephone the children at the father's place of residence or on the father's mobile telephone number between 5.30 pm and 6.30 pm for a minimum period of ten (10) minutes and the father shall facilitate such contact.

...

1. That the parties share the long-term care, welfare and development of the children and the resident parent at that time have the day-to-day care and responsibility for the children.
2. On 31 August 2004 the mother filed an application in which she sought the discharge of all previous orders relating to the children together with orders to the following effect:
   • that the children live with her;
   • that she be permitted to relocate the children to Town A, Victoria;
   • that there be defined contact with the father, including half the school holidays and one weekend each month.
3. On 14 September 2004 the father filed a response in which he sought orders that the children reside with him and have contact with the mother as agreed or in the absence of agreement as defined in the order. Importantly for present purposes, the father also sought the following order:
   1. That in the event this Honourable Court determines that the children are to reside with the mother, then the mother be restrained from changing the children’s place of residence to any area outside the Sydney metropolitan region.
4. A family report was prepared in late February 2005 by Mr RH, who is a psychotherapist and counsellor. His principal recommendation was that the children remain living in Sydney either with the mother, or if she should choose to relocate to Victoria, with their father.
5. The parties’ cross applications were then heard by Mullane J on 10, 11 and 12 May 2005, with final submissions being made on 18 July 2005.
6. On 31 January 2006, his Honour delivered judgment and made the orders, certain of which are the subject of the appeal, and which in summary, provided that the children should reside with the mother, but that she should be restrained from changing their residence to any place more than 15 kilometres from the former family home at Suburb B except with the consent of the father or leave of the court. His Honour’s orders also provided for alternate weekend and half school holiday contact with the father as well as overnight contact each Wednesday during school terms.

ISSUES RAISED ON THE APPEAL AND THE APPLICATIONS TO ADDUCE FURTHER EVIDENCE

1. At the hearing of the appeal counsel for the appellant mother was able to conveniently argue the matters raised by her twenty-one grounds of appeal under the following four headings and in the following order:

(i) a challenge to the restraint on the mother changing the children’s residence from within 15 kilometres from the family home at Suburb B (Grounds 1 to 5);

(ii) a challenge to the introduction of overnight contact on Wednesday evenings (Grounds 6 to 10);

(iii) a challenge to the restraint on the mother relocating to Victoria (Grounds 11 to 19); and

(iv) a claim of apprehended judicial bias and pre-judgment by the trial Judge (Grounds 20 and 21).

1. We propose to address these issues in the reverse order to the order in which they are listed above, although we will address issue (i) before issue (ii).
2. There was also before us at the hearing of the appeal an application by the mother to adduce further evidence which was opposed by the respondent father (although in the event that the mother’s further evidence was to be received, the father would seek to adduce his own further evidence).
3. The mother’s further evidence consisted of an affidavit from her which, as her counsel explained, concerned three broad areas.
4. First, there was an allegation of the father having hit the children, but counsel for the mother informed us that that matter would not be pursued.
5. Secondly, there was material relating to the children’s schooling during 2006, that is after the trial Judge made his orders on 31 January 2006. It was not clear to us precisely what relevance this material would have, and thus what assistance it would provide, either in the determination of whether there was substance in the appeal, or even if we found substance in the appeal (for other reasons) on a re-determination of the matter. We are thus not prepared to receive that evidence.
6. Thirdly, there was material concerning the mother’s housing and financial circumstances. As we understood the submissions of counsel for the appellant mother this material had relevance to, or was in support of, those grounds of appeal (being Grounds 15, 16 and 17) which asserted that his Honour had failed to properly consider, or give adequate weight to, the economic impact upon the children and the mother in the event that the mother was not permitted to relocate to Town A in Victoria.
7. As will later emerge, his Honour was not satisfied that there was satisfactory evidence before him of what would be the mother’s financial circumstances if she was permitted to move with the children to Victoria. In these circumstances the mother’s application might be seen as attempting to remedy shortcomings in her case at trial, were it not for the fact that the evidence sought to be adduced appears to relate to the situation since the trial, and therefore to be in the nature of updating evidence. Thus it could only have relevance were there to be a re-determination of the issue of whether the mother should be permitted to remove the children to Victoria. As there is to be no re-determination of that matter, the application to adduce this part of the further evidence, and indeed the entire application, will be dismissed.
8. In this context of further evidence, it is relevant to mention that we understood it to be common ground before us that following the trial before Mullane J (in May and July 2005), and before his Honour delivered his judgment on 31 January 2006, the former family home at Suburb B was sold, and the mother and children had since then been living in various forms of temporary accommodation.
9. We turn now to consider the four broad issues raised by the appeal.

THE APPREHENDED BIAS CLAIM

1. Grounds 20 and 21 of the grounds of appeal are in the following terms:
   1. That the Trial Judge, as a consequence of comments before the formal commencement of the hearing, had pre-judged the matter, without hearing the totality of the evidence and in particular any evidence whatsoever from the parties.
   2. The Trial Judge’s decision was unsafe and should be set aside as it raised a reasonable apprehension of bias.
2. The comments made by the trial Judge “before the formal commencement of the hearing” to which Ground 20 is directed are to be found at pages 1 to 9 of the transcript of the first day of the hearing before Mullane J (being 10 May 2005). Notwithstanding the length of the passage of transcript, it is necessary to set it out in full in order to permit a proper evaluation of the complaint of pre-judgment contained in Ground 20.
3. Immediately following counsels’ announcing their appearances, being Mr Jackson for the applicant mother and Ms Christie for the respondent father, the following exchange occurred between his Honour and Mr Jackson (Transcript 10/5/05, pp 1 – 9):

HIS HONOUR: Yes, Ms Christie. I haven’t finished reading the documents

but I thought I’d come on and let you know that I am reading them and I’m

just going to find out what the issues are.

MR JACKSON: Your Honour, there’s also the opportunity might be taken to

exercise some housekeeping matters as well.

HIS HONOUR: Yes.

MR JACKSON: Your Honour, the issues are primarily relocation. The wife’s application seeks a relocation to rural Victoria, specifically [Town A]. Her proposal is set out fairly succinctly in her affidavit material. Essentially it relates to - - -

HIS HONOUR: What does she say are the factors that - the benefits the children will derive by her moving to Victoria?

MR JACKSON: Well, the benefits to the children are set out in her affidavit essentially relate to her financial constraints in remaining in Sydney. Indeed, the property that she currently - - -

HIS HONOUR: What are they? What are the financial constraints?

MR JACKSON: Well, the property that she currently occupies in [Suburb B] in Northern Sydney is subject to a foreclosure notice which was only received by my client last week.

HIS HONOUR: But there are other houses in Sydney, aren’t there?

MR JACKSON: Yes, but she’s made enquiries, your Honour, and it’s her view that financially she is better off living in rural Victoria. There is also other factors.

HIS HONOUR: Why is she better off living in rural Victoria?

MR JACKSON: It’s the other factor is her family come from rural Victoria, her parents and her other family members - - -

HIS HONOUR: Presumably the children have managed by seeing those family members while they lived in Sydney.

MR JACKSON: I understand that, your Honour, but it’s a question - - -

HIS HONOUR: What’s the benefit to the children of living in [Town A] that makes it better in their interests that they reside there rather than Sydney?

MR JACKSON: I’ve already outlined two issues but the third issue - - -

HIS HONOUR: When you say the financial interests, the financial constraints, is the mother contemplates that she would own a home, is that what she - is it about that? Mr Jackson, you would know that if it’s part of her case.

MR JACKSON: Not in the short term, your Honour, no.

HIS HONOUR: Is it about her income or the lack of financial support from the father?

MR JACKSON: The lack of financial support is an issue.

HIS HONOUR: Why is that?

MR JACKSON: The mother’s position is the financial support that she’s receiving from the father simply doesn’t support her position in living in northern suburban Sydney.

HIS HONOUR: What financial support does she receive for the children?

MR JACKSON: She’s receiving the benefit of a child support assessment, your Honour, which I understand presently is a fairly modest sum of – just looking at the document here, your Honour, I think it’s a monthly amount of $10.83.

HIS HONOUR: How much, sorry?

MS CHRISTIE: $1,100 a month.

MR JACKSON: I’m looking at a document that indicates $10.83.

HIS HONOUR: So it’s less than $300 a week.

MR JACKSON: Yes.

HIS HONOUR: Does the mother have an earning capacity?

MR JACKSON: No. The mother has been a full-time carer of the children and not working except for very brief periods since the first child was born. The first child is now eight.

HIS HONOUR: The youngest child’s six.

MR JACKSON: Yes.

HIS HONOUR: So do I take it from what you’re saying is the wife says that the cost of living is cheaper in [Town A] than it would be in Sydney.

MR JACKSON: Yes, and that [Town A] - - -

HIS HONOUR: And that she has a restricted income.

MR JACKSON: Yes.

HIS HONOUR: Does she have any qualifications for paid work? I’m just concerned, Mr Jackson, if this is one of the grounds of her case that you don't seem to be very well informed about it. What other benefits does she say there are that the children’s interests are served by them moving to [Town A]?

MR JACKSON: Well, your Honour, I’ve already dealt with the issue of her family. It’s not - - -

HIS HONOUR: Just a problem about the family is that presumably if the children move to [Town A] they’re going to see their father less often and for shorter periods.

MR JACKSON: Your Honour, there is another issue that you’ll have to consider and that is this; the father’s case, I understand, is that he has significant contact with the children and has exercised that contact since orders were made in this Court in March 2003 and they were final orders. The mother’s case is that up until September of last year when the application was filed, or around that time, the father really did not exercise the contact that it says he did and the mother’s proposal in relation to the father’s contact, if she lives in [Town A], is not dissimilar to the contact that he was having with the children in March ’03.

HIS HONOUR: The problem with that argument is that punishes the children for the parent’s inadequacies. There are many fathers particularly who suddenly discover parenthood after their marriage breaks down and the children are living somewhere else. It’s not appropriate for the Court to punish the children for the father’s past inadequacies by reducing the contact they have with their parent to correspond with the previous inadequate arrangement that was satisfactory to that parent at the time. The children deserve the best the Court can give them so they - if the arrangement now available is more frequent contact with the parent then we should aim to maximise that arrangement.

MR JACKSON: Your Honour, the proposal by the mother certainly wouldn’t present a situation where the children’s contact - - -

HIS HONOUR: The point I’m putting to you is the children have lived in Sydney for most of their lives.

MR JACKSON: No. In fact there’s another issues, your Honour, and that is the children have, unfortunately, for no fault of anyone’s, been subject to a lot of changes around New South Wales. They’ve lived in [Town X], they’ve lived in [Town Y], they’ve lived in [Town Z].

HIS HONOUR: Is it right to assume that the children have not had frequent contact with the maternal extended family until such time as they went to live in [Town A]?

MR JACKSON: That's right, your Honour, but the - - -

HIS HONOUR: If you raise an argument that the benefit of going to [Town A] to the children is that they will now be able to spend more time with family members that they - than they were able to spend otherwise, the other side of that argument is they’re going to be spending less time with their father and - - -

MR JACKSON: Your Honour, with respect, it’s not a mathematical exercise. We’re not dealing with a situation - - -

HIS HONOUR: No, but there’s a corresponding - - -

MR JACKSON: Balancing the - - -

HIS HONOUR: Well, there is a balancing but one of the issues that arises there is - is going to arise there is that the children presumably have an established relationship with their father which is presumably a close attachment and if that’s the case then you’re dealing with extending a relationship with people who have not been so significant in the children’s lives at the cost of reducing their time with someone who has been. If this is a family like most families, the parents are the two most important people in these children’s lives and if that’s the case then extended family – the relationship of the extended family are not likely to have as much importance in the overall picture as the effect on the relationship with the parents.

MR JACKSON: I think it’s not as simple as that, your Honour. The argument really comes down to not just the fact that the family are there for the children’s benefit, and that certainly would help, but it’s there for the mother’s benefit in assisting her in her parenting.

HIS HONOUR: You say the mother’s in need of emotional support from her family.

MR JACKSON: Exactly.

HIS HONOUR: Is there any psychological or psychiatric evidence about that?

MR JACKSON: No. Your Honour, there is a family report but it doesn’t go strictly to those issues.

HIS HONOUR: Has the mother had any coping difficulties or mental health problems?

MR JACKSON: Being separated from her family?

HIS HONOUR: No, since the separation in terms of coping with the care of the children and other responsibilities.

MR JACKSON: Your Honour, the problems are identified as being relating to the relationship between the parents and the conflict in relation to the responsibilities the parents have and that conflict, in my submission, is amplified by them both living in fairly close proximity to each other.

HIS HONOUR: You say that the move to [Town A] will benefit the children because it will reduce the conflict - - -

MR JACKSON: Yes.

HIS HONOUR: - - - or it will stop the children having exposure to the conflict.

MR JACKSON: Yes. Well, both.

HIS HONOUR: What’s been done about the parties having professional help to reduce the conflict?

MR JACKSON: I understand that there has not been any counselling other than court-appointed counselling. Certainly there hasn’t been any since these proceedings were instituted at - - -

HIS HONOUR: If the conflict’s one of the issues about the - if that’s one of the arguments, the difficulty with that might be that the conflicts - first of all you say the conflict’s being conducted at the children’s expense so I presume that means that at times they’ve been the subject of arguments, they’re being exposed to it, they’ve also been exposed, probably, to negative statements or behaviour by one parent towards the other or by each parent towards the other.

MR JACKSON: Yes.

HIS HONOUR: That’s behaviour that’s irrational and that’s damaging to the children and it’s not done by the parents out of any insight or rational reasoning. No parent would do that to their child if they understood the process and if they were making decisions on a rational basis instead of reacting to their emotions. But that’s every day we see it in this Court, that’s what people do, when they’re driven by their emotions as to their good sense. If the reaction is seen as separating the parents by a long distance and therefore reducing the occasions when that can be done to the children, that in fact is at the children’s expense again because they have a relationship with two parents and when one moves, if your client moves to [Town A] or the husband moves somewhere else, that’s at the children’s cost again because that’s - - -

MR JACKSON: That’s assuming that the children’s relationship with their father will be diminished as a consequence of the relocation. It’s an assumption which the Court, in my submission, can’t make until they’ve heard all the evidence.

HIS HONOUR: Well, there is a difference in the quality of a relationship in terms of accessibility of parents to children. Some separated parents are able to maximise that because they live in the local area but primarily because they do not indulge in power play and conflict or if they do they do it in a way that the children aren’t exposed to it. Those parents seem to have the best results in terms of parenting because the children can freely move between households to visit each parent with regards to where they’re living and their parents are accessible to them. It’s a different sort of relationship when you see the person in school holidays or an occasional weekend. That’s what I’m saying is the Court’s not likely to see that as a major reason. It’s more of a cop out in my saying that these parents can’t be improved so we’ll give up on them. There are other ways that they can come to be more responsible about their relationship and understand that their lives are being marred and cursed by this sort of behaviour and unless they get it under control and approach it in an adult and responsible way, it will continue to ruin their lives and damage their children and they have the responsibility to fix it, and if they haven’t been able to do it in the time they’ve been separated without professional help, then they should be getting it and they should be learning better ways to cope with each other and to deal with each other. That’s a more logical and responsible approach to the situation than saying we’ll just shift one of them to another state.

MR JACKSON: Your Honour, it’s not the mother’s proposal that this is a quick fix solution to any - - -

HIS HONOUR: No, but in terms of this being a matter that might justify the move - - -

MR JACKSON: I understand what you’re saying.

HIS HONOUR: - - - and the children being moved.

MR JACKSON: It’s a factor that the Court has to consider amongst many factors that are associated with the mother’s occupation.

HIS HONOUR: Are there any other matters that the mother says are major?

MR JACKSON: That, essentially, is the mother’s position at this stage, your Honour. As I said, it relates to financial constraints and the familiarity of the [Town A] area primarily for her benefit that will assist her in relation to her parenting capacity that she would be surrounded by supporting family. As I said, your Honour, there is also a stability issue that I’ve already raised and your Honour hasn’t read the material but the children have actually been subject to a number of changes over a very short period of their lives. The

mother’s proposal is that [Town A] may represent a finality in respect of where they’ve going to live.

HIS HONOUR: Why did the parties move the children around? What was the problem or the issues?

MR JACKSON: My understanding, your Honour, and it’s reflected in both the parties’ affidavits, particularly the father’s, that it was work commitments that were associated with the move.

HIS HONOUR: Mr Jackson, can you tell me about the aspects of the conflict between the parents that have been a problem?

MR JACKSON: Your Honour, the primary aspect from my client’s point of view, and I really should speak on her behalf rather that the father’s here is that the father has a tendency, in the mother’s eyes, of unduly interfering with her parenting of the children and this stems from many occasions when the father has a tendency to ring up, find out what’s happening, make enquiries through the children, and they are reported in quite erudite format in his affidavit. We have daily occasions when he says in his affidavit he’s rung up and he’s heard some argument involving the children and that’s been subsequently reported. The mother feels that’s an intrusion that impacts upon her parenting capacity.

HIS HONOUR: Have the parents attended any course in parenting after the separation?

MR JACKSON: No.

HIS HONOUR: Mr [Rush] and Ms [O’Leary], I don’t imagine that either of you have been through the experience of separating from a long-term partner like this before, but - and so there’s no - there’s no embarrassment in the sense of the lack of knowledge or preparedness for the process. But the fact is that despite the fact that you want to be finally and fully separated from each other, that you won’t ever be separated in the sense of your parentage of these children. There are certain basic requirements that that will impose upon you and there are certain standards that your children are entitled to expect from you, and the first of those is that you treat each other with respect. It doesn’t permit behaviour such as power play or domination or telling each other what’s going to happen and things like that.

Parents, whether they’re together or apart, can’t function as parents unless they work cooperatively. They have to work as a team. If you give your children different standards, if you don’t work together and impose the same standards, the same consistency and the same expectations for your children, then you abdicate your parenting role to your children and they then can chose the standard or the rules that they want. They can move between your houses, they can do that when they’re small even, and it’s obvious they can do it when they’re older, when they’re 14 or 15, but they can certainly do it when they’re younger too. They can make life almost impossible for you until they actually are able to go or have the standard that they chose.

There are going to be lots of decisions for you to make in the future about your children, about the standards you expect from them, things about religion, things about whether they smoke, whether they use marijuana, the sort of children or teenagers they associate with, how old do you want them to be before they go on licensed premises, whether you want to permit them to have sexual relationships when they’re 17, all sorts of issues like that. You won’t be able to - they’re issues you cannot possibly cope with unless you do it together and you have a united stand and you make those rules known to your children. If you can’t do that, you won’t be able to set the rules. They’ll set the rules.

Apart from your parenting, the difficulties you have in your relationship are very costly. I imagine that you suffered enormous stress about the disputes you’ve had and about this litigation. It may be some of the most stressful times that you have in your life and you’ve also had, I’d imagine, a lot of expense arising from the litigation particularly but also just from your disputes and the issues that arise between you. Overall, one would think that you’ve probably had a lot of unhappiness because of what your relationship is and the way it affects you in your dealings with each other.

In most situations people who separate go through some very difficult times emotionally and among those emotions that they feel, there are many of them, but there are some that are very destructive. There’s the feelings of guilt, of anger, of blaming. It’s very hard to accept when the relationship, after you’ve invested so much in it, has failed. For many people that brings upon them feelings of guilt and other times it’s about blame and about anger. Those feelings can continue for the long-term. Most people overcome those and are able to focus on the future and get on with their lives, but if you continue in the vein of blaming the other party to the relationship and anger towards that person, it can continue indefinitely. It’s a sad fact that’s not irrational behaviour when you’re driven by emotions. No-one would impose the sort of unhappiness that it causes you and what it does above all is because you’re focussing on the other person, it deprives you of the opportunity to behave in a better way as yourself and to control the situation better and to improve the relationship. While you’re focussed on blaming someone else, you’re not thinking about how much better you can behave and how better you can cope with the other party.

Most people get over those sorts of feelings very quickly are focussed more on the future and on hope and on future happiness. But, as I say, there’s many situations where people don’t and they continue on that irrational path and you’re probably aware there’s probably not one registry of the Family Court in Australia where a parent hasn’t killed the parent or killed their children as some sort of solution to that conflict. You owe it to your children and you owe it to yourselves to stop the conflict. If you can’t do it yourselves then you should get professional help. It’s not just any psychologist who can help you, it’s got to be someone who deals specifically with broken relationships and getting round that stage.

If you learn anything from these proceedings, that’s the most important thing you can learn because that’s the thing your children need more than anything, for you to overcome the conflict, come to a stage where you deal with each other respectfully and not in a way that’s an embarrassment to your children.

If you can’t deal with each other well, then the likelihood is there’ll be times in your life, in your children’s lives that are very important to them, and they will be very apprehensive about having the two of you present. You can imagine how you’ll feel if you’re not invited to an engagement or a 21st or an 18th birthday because the children don’t want both of you there or decided to have only one of you there. Unless you fix the relationship, that’s the sort of thing that can happen and can linger on.

As I said, you shouldn’t assume that things will get better because in any situations they do get worse. That’s how people come to think that a solution is to kill someone. That’s how we have litigants here who litigate, sometimes for ten years. The other day I was doing a case where the parties have been fighting since 1987. They’ve actually conceived their youngest child during the warfare. So you shouldn’t assume that just time will cure the problem and nor should you think it’s worth the expense of waiting.

If you’re keen on being able to do it yourselves, get some help. There are courses available in parenting after separation. You wouldn’t attend the same course, you’d attend different courses. One of the great advantages of those is that you share the limited insights of the participants and often you can see your own situation in other people’s - what’s happened to them and you can understand your own position better by hearing someone else talk about their experience of it. But the courses are very valuable for the people in your situation.

It’s probably going to take me another hour or so to read the rest of the documents. Is there anything else you want me to deal with?

1. Before us it was submitted by counsel for the appellant mother that the test in Australia as explained by the High Court in Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11], for determining whether a Judge is disqualified by reason of the appearance of bias (which in that case, as in the present case, was said to take the form of prejudgment) was fulfilled. That test is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”.
2. Counsel for the appellant mother submitted that in the present case a fair-minded observer would not be persuaded given the opening comments by his Honour, that he was approaching the matter with a completely open mind. Rather those comments would suggest that even before the commencement of the actual trial, his Honour had formed adverse views about many aspects relating to the mother’s case. In particular counsel drew attention to a “style of cross examination questions” which were “visited upon the Mother’s Counsel” but not upon the father’s counsel.
3. In considering his Honour’s questions to counsel for the mother at the commencement of the trial, it must be remembered that what was before his Honour was “primarily” (to use her counsel’s expression at transcript p 1, line 18) an application to relocate the children from Sydney to rural Victoria. While it is well established that a parent who seeks to relocate the residence of children to a place where the other parent does not reside, does not have to demonstrate “compelling” reasons for the relocation (see, for example, A v A: Relocation Approach [2000] FamCA 751; (2000) FLC 93-035), nevertheless a judge who has to determine a so-called “relocation” application is entitled to enquire as to what the applicant’s case is, or in other words, what the issues in the case are.
4. We read his Honour in the transcript passage set out above, as doing no more than endeavouring to ascertain what were the issues in the mother’s case for relocation, and doing so against the background of so much of the parties’ material which he had by that time been able to read. Nothing, in our opinion, could be said to amount to pre-judgment on the part of his Honour.
5. As to the comments which his Honour addressed directly to the parties in the ten or so paragraphs which conclude the passage of transcript in question, such comments can be read as being an illustration of the practice, which many judges of this court employ, whereby at the commencement of a trial involving parenting issues, they endeavour to explain to the parties the need for a co-operative approach to parenting and the damage that litigation can do to them and their children.
6. Different judges will have different views as to what can be appropriately said in such a context. But again, in our opinion, nothing said by his Honour in his comments in question could be said to amount to pre-judgment on his part or to provide an appearance or apprehension of bias. It should be noted that no application was made to his Honour during the course of the trial that he should not continue to hear the case on the basis that he had pre-judged the matter.
7. A further matter relied on before us by counsel for the appellant mother in this context of an alleged apprehension of bias against the mother (particularly, it would seem, in support of Ground 21), was his Honour’s credit findings, with the complaint essentially being that the criticisms of the mother by his Honour were far longer and more specific that those of the father.
8. Notwithstanding the length of the relevant passages of his Honour’s reasons, particularly as they refer to the mother, we again consider it necessary to set out those passages, so that they can speak for themselves. Parts of these passages are also relevant to other matters which we will later discuss. Under the heading “Credit of the Applicant Mother” his Honour said:
   1. In the welfare report, the report writer Mr [RH], reported that in interview, the mother initially said that if the children were denied permission to relocate to Victoria, as she sought, she would remain in Sydney with them. He reported that she told him she anticipated that this would require her moving to another area and this might have implications for contact between the children and their father. He also reported: “[The mother] subsequently telephoned to state that, after some consideration, she did not believe it was practical for her to remain in Sydney and therefore she would still move to Victoria”.
   2. In oral evidence in chief, the wife alleged that this was untrue. She said that she told Mr [RH] that she was unaware of what she would do if her application to relocate was unsuccessful. She said that now her position was that she would remain with the children regardless. Mr [RH] gave other evidence in his report and in cross-examination supporting his evidence of the mother’s change of heart. Mr [RH] is an experienced professional. The evidence disclosed no reason for him to mistake the mother’s statement or misrepresent her. On the balance of probabilities, Mr [RH’s] evidence of her phone call is true.
   3. In exchanges before the evidence commenced, Counsel for the mother was asked to indicate the bases on which the mother relied to say that the issue of residence/contact should be reconsidered, given that there were final orders made in March 2003. His response was that the mother would say the issues should be reconsidered because there has been a change of circumstance in that the former home of the parties has become the subject of a notice by the mortgagee of proposed sale and the home will not be available for continued occupation by the mother and the children. The Court was told that this situation was not foreseeable when the orders were made in March 2003.
   4. But contrary to this, in cross-examination the mother conceded that in October 2002, well before the consent orders, she was proposing through her solicitors that the property be sold. She eventually conceded that she knew then that the property might not be available if she returned to Sydney.
   5. The mother said that at the time she entered into the consent orders she believed the father would continue to pay the mortgage. It was put to her, “But you understood it would apply only while he could afford to pay it?” She denied that proposition. Then it was put to her that she understood he would continue to pay the mortgage payments only until a property settlement was arrived at between the parties. She was particularly evasive when it was put to her that she wanted the house sold and that she requested the sale of the home.
   6. Her evidence was that she made a Child Support application in 2004 and the father was assessed to pay Child Support of $1,100 per month. He subsequently wrote to her and said he would no longer pay the whole of the mortgage payments and then continued to pay half. After she received that letter, she filed her application of 28 August 2004 initiating these proceedings and proposing that she and the children move to Victoria.
   7. The mother conceded in cross-examination that when she had testified that the father used a baby sitter each Sunday, that was untrue. She made the concession after avoiding the question initially and being directed to answer it by me. After initial avoidance, the mother conceded in cross-examination that before separation, she changed the registration of the motor vehicle into her sole name without notice or consultation with the father. The vehicle was in the sole name of the paternal grandfather and she pressured him to sign a transfer of the registration.
   8. It was put to the mother that when she took the children and went to [Town A] in October 2002, she had no plans to obtain employment. She answered, “Eventually it was”. She then conceded in cross-examination that an affidavit she swore in 2002 made no mention of any plans to obtain employment.
   9. In these proceedings, however, her affidavit of 15 October 2004 annexed a letter on which she relied from Mr [F] of ... Pty Ltd, a company of which Mr [F] and her brother are the only directors. That letter purported to offer her a position of employment as administrative assistant on a permanent part time basis working from 9.30am to 3pm Monday to Friday. Neither Mr [F] or her brother swore an affidavit in the proceedings and neither of them were available for cross-examination. When it was put to her that the proposed job is “an important part of your plan”, she avoided the question. The mother was often evasive in cross-examination. The mother’s evidence as to the work hours was different to those stated in the letter. When asked, the mother had not enquired about the effect of the alleged proposed earnings on her entitlements to child support, her sole parent pension or her rental allowance,
   10. In cross-examination she conceded that she went to Centrelink on about 24 August 2004 and asked them “to re-instate a violent threat exemption”. She alleged that the father was a violent threat to her. But she conceded that there is no evidence in her affidavit material of any violence to her in 2004 by the father and no evidence of any threat in 2003 by the father concerning Child Support. She conceded that he paid the mortgage every month in 2003 and continued the payments until August 2004. She conceded that her affidavit material did not refer to any indirect threat. But she said, “I felt threatened by [the father]”. There is no evidence that establishes that the father threatened to harm the mother or that he was a danger to anyone.
   11. In cross-examination, the mother was asked about her proposals for the children to be driven from [Town A] to an airport at Avalon to travel by plane to Sydney for contact. She said she would drive the children to the airport. She proposed to drive them from the airport on return and she said it would take about 1½ to 2 hours. But in another part of her cross-examination, when it was put to her that the distance from the airport to [Town A] is 317 kilometres, she said that she does not know the distance and then later said, “I’d have to return to a map, but it sounds right”. Clearly, her estimate of 1½ to 2 hours of driving was not reliable. If the distance were about 317 kilometres, then it was probably closer to 4 hours of driving. Her brother said the distance from [Town A] to Avalon Airport is “a lot less than” 317 kilometres and said that the driving time is “2 and a bit hours”. He said that 1½ hours is an understatement.
   12. When it came to the mother discussing the driving time between Sydney and [Town A], for travel either by the father to [Town A] or by the children to Sydney so that contact could occur, the mother was unclear about the driving time involved. She said she thought that Albury would be a good change-over point and said that she thought that would take 5½ to 6 hours of driving from [Town A]. It would take 5½ hours if there were no breaks. When she was asked whether it is a further 6 hours drive from Albury to Sydney, she said, “I don’t know”. In cross-examination her brother, [R], said that the drive from [Town A] to Sydney takes at least 13 or 14 hours and he has never done it in 1 day. He said he usually takes a break at a motel at Yarrawonga “or somewhere like that”. The father’s evidence was that it took about 7 hours to Albury and then about 8 hours from there to [Town A]. In re-examination the mother claimed that the driving time from [Town A] in Victoria to Sydney is a 12 hour journey. She said that she had done it several times.
   13. In cross-examination the mother was asked about her failure to have her boyfriend, [P], attend the interviews for the welfare report. She alleged that their relationship had “broken up” at the time. She said that some time between New Year and the interviews in February the relationship broke up and they had “about a 2 week break”. But when [P] was asked in cross-examination about this, he said he could not recall any separation between them between October 2004 and May 2005. He said that he went to [Town A] at Christmas to join the mother and the children there. They stayed 6 nights together and they returned to Sydney independently. He said their relationship was good in January, February and March, and they did not separate in any of those months.
   14. In an affidavit the mother swore in interim proceedings in this Court on 17 October 2002 (Exhibit H7) she swore that if she had remained in the [Suburb B] area the only affordable option for accommodation for her and the children would have been a women’s refuge. On the balance of probabilities that allegation was untrue at the time she swore to it and she knew she could not justify such an allegation.
   15. It was part of the wife’s case that her financial circumstances would be improved if she moved to [Town A] in Victoria rather than continue to reside in Sydney. As part of that case, she offered evidence that she has been offered employment by a company of which her brother was 1 of the 2 directors. She told Mr [RH], the person who wrote the welfare report, that it would be no longer financially viable for her and the children to remain residing in Sydney. She said that it was not practical for her to seek employment, particularly, she said, because there are few part time positions available in the area where she resides. It became clear from cross-examination that the mother had not applied for a single position and had not made a serious search for employment between July 2004 and May 2005. She had not registered with any employment agency. She had not approached any prospective employer about possible employment. The only evidence she gave of any endeavours to obtain employment was “I just looked in the paper every Saturday and Wednesday”. She claimed there was “Nothing suitable”. On the balance of probabilities the mother did not make any serious effort to obtain employment because it suited her not to do so. In addition, it was clear that the mother had not made any enquiries about availability of cheaper accommodation in the area where she resided or any other area within reasonably proximity of that area. Her claim in cross-examination that she had “attempted to compromise by staying in Sydney” by seeking employment was not supported by the evidence. It was untrue.
   16. In cross-examination the mother avoided the question when it was put to her that her allegation that the father used a baby sitter for the children each Sunday was incorrect. When I repeated the question to her, she conceded the proposition.
   17. In cross-examination it was put to the mother that the father’s son [M] came to stay with the parties when they were living at [Suburb C] “for an extended period”. She said she could not recall that ever happening. She subsequently conceded that in one period when [M] came to stay with them [Suburb C], he attended school there. She said, though, “But only for a week”.
9. Then under the heading “Credit of the Respondent Father” his Honour said:
   1. At times during his cross-examination the father was evasive. At times he persisted in volunteering unresponsive information in response to questions. Most of the material volunteered was criticisms of the mother.
   2. When it was put to him that he had not informed the mother of an occasion when she had omitted to provide [K’s] medication in his bag when he went on contact, the father avoided the question twice and only answered it when directed to do so by me. When he did answer, he conceded the proposition that had been put to him.
   3. Overall the father presented as a much more reliable witness than the mother.
10. We did not understand the mother to challenge the accuracy of anything said by his Honour in paragraphs 23 to 39 of his reasons. Nor was it apparently asserted that any conclusion reached by his Honour in those paragraphs was not open to him.
11. Rather the challenge was only that there were more criticisms by his Honour of the mother than there were by him of the father, and that to the extent that there were criticisms of the father, they lacked the specificity of the criticisms of the mother. It was also asserted on behalf of the mother that his Honour had failed to explain why he reached the conclusion which he did in paragraph 42 of his reasons, being, in his Honour’s exact words, that “the father presented as a much more reliable witness than the mother”.
12. It is true that his Honour only provided one specific example of what might be termed a shortcoming in the father’s evidence, notwithstanding that he had said in the preceding paragraph (paragraph 40) that at times during cross examination the father was evasive and also unresponsive. It can only be assumed that his Honour did not consider the shortcomings in the father’s evidence to be as significant, or indeed as grave, as the shortcomings in the mother’s evidence, and thus the father’s shortcomings did not warrant further elaboration.
13. As to his Honour’s statement in paragraph 42 of his reasons that the father “presented as a much more reliable witness than the mother”, we read his Honour as here providing his impressions of the father as a witness having seen and heard him give his evidence. While his Honour might have made his reasoning clearer had he commenced paragraph 42 of his reasons with words such as “Notwithstanding the shortcomings in the father’s evidence to which I have referred in the previous two paragraphs...”, we do not consider that the manner in which his Honour dealt with the evidence of the parties from the point of view of credit should render his decision unsafe or raise “a reasonable apprehension of bias”.
14. We therefore conclude that there is no substance in the grounds of appeal which claim that his Honour had pre-judged the case or that his decision raised a reasonable apprehension of bias.

THE TRIAL JUDGE’S REFUSAL TO PERMIT THE MOTHER TO RELOCATE THE CHILDREN FROM SYDNEY TO VICTORIA

1. It will be recalled from the passage of transcript set out earlier in our discussion of the grounds of appeal asserting apprehended bias, that when the trial opened before his Honour he was informed by counsel for the mother that “primarily” she sought to relocate the children from Sydney to Town A in country Victoria.
2. It is then clear from the opening paragraph of his Honour’s reasons for judgment delivered on 31 January 2006, that he understood that the mother’s application, which was before him for determination, was for a variation of the parenting orders made on 14 March 2003 to enable her to move with the children from Sydney to Town A in Victoria, and that he also had before him an application by the father for the residence of the children.
3. As we have already indicated, his Honour ultimately determined that the mother’s application to move the children to Victoria should be dismissed, and that the father’s application for residence of the children should be dismissed. The result of his Honour’s determination was therefore that the children were to remain living in the Sydney area with their mother, but spending regular time with the father.
4. His Honour’s reasons for this determination are essentially to be found in paragraphs 187 to 209 of his reasons for judgment of 31 January 2006 and which appear under the heading “Conclusions”. We will shortly set out those paragraphs. Before doing so, we would explain that prior to the “Conclusions” section of his reasons, his Honour had set out at considerable length the factual background to the case (paragraphs 3 to 22), before setting out his findings in relation to the credit of each party (paragraphs 23 to 42) which we have already set out, and then providing a lengthy analysis of each party’s proposal for the children (paragraphs 84 to 184). That analysis of the parties’ proposals included extensive reference to the evidence of the expert, Mr RH. In this earlier material which preceded his Honour’s conclusion, his Honour made a number of observations and findings which can be seen as affecting his final conclusions.
5. However for purposes of this aspect of this appeal, it is only necessary to set out his Honour’s conclusions, which were correctly, as the law then stood, directed to the matters contained in s 68F(2) of the Family Law Act 1975 (Cth) (“the Act”). Those conclusions so far as they have any present relevance were as follows:

Any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes - Section 68F(2)(a)

1. [K] and [E] have both expressed strong opposition to moving to [Town A] and to being separated from their father and their half brothers. The weight to be given to these wishes not to move to [Town A] is less than it might be if they were older. Because of their ages and immaturity, their wishes are unlikely to have resulted from a careful consideration of the short and long term consequences of the various options. Their opposition to separation from their father and brothers, however, is of considerable weight as it is clearly based on close and positive relationships with each of those people.

The nature of the relationship of the child with each of the child’s parents and with other persons - Section 68F(2)(b)

1. [K] and [E] have close and positive relationships with each of their parents and also with each other and with their half brothers. Their main attachment is with their mother, who has been their primary carer since birth. Their next most important attachment is with their father, who has been their next most important carer, and his role has become more significant since August 2004 with his increased enthusiasm for them and the increased frequency and duration of contact. The boys’ next most important relationship is with each other and then comes their relationship with [M] and [J]. The boys’ relationship with their paternal grandfather is also positive and important to them, but is not as close as the other relationships discussed above.
2. They also have at a less significant level, positive relationships with (in order of significance) their Uncle [R] and Aunt [J], their Aunt [A] and cousins [S], [I] and [P], the maternal grandparents, and the members of the maternal family in [Town A].

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (1) either of his or her parents; or (ii) any other child, or other person, with whom he or she has been living - Section 68F(2)(c)

1. If the boys reside in [Town A] that will involve a separation from their father and their half brothers with whom they have close and positive relationships. They will be unable to exercise sufficient contact to satisfy their need for time with these people. Those separations will involve emotional trauma to the boys in the long term and a real risk of long term adverse consequences. Such a change of residence will also involve the boys experiencing a loss in terms of separating from the paternal grandfather, their Uncle [R] and Aunt [J], their Aunt [A] and their cousin [S].
2. If the boys reside in Sydney but with the father, that will involve a traumatic separation from their mother, who is their main attachment. That would cause them considerable disruption and emotional trauma, perhaps with long term consequences. They would be very concerned about how the mother copes and may end up assuming responsibility for her (reverse parenting). The disruption would not overall have any significant benefit for the boys.
3. If the mother moves the boys to a residence more than about 15 kilometres from their [Suburb B] home that is likely to cause them considerable disruption and instability such as changes of school, of sporting teams, and of neighbourhood. It is also likely to separate them from friends and associates.

The practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis - Section 68F(2)(d)

1. If the boys move to [Town A] the distance between their residence and their father, half-brothers, paternal grandfather and other persons significant in their lives in Sydney will make it impossible for them to have contact with those people of sufficient frequency and duration to maintain their relationships with those people at the present level they enjoy.

The capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs - Section 68F(2)(e)

1. The capacity of each parent to protect the boys from exposure to conflict between the parents is less than adequate, but probably more so with the mother. Each of them, but particularly the mother, has a tendency to at times give priority over the children’s interests to the parents’ conflict. The mother appears to have a more negative attitude to the father than he has to her.
2. While the mother has established that she can generally adequately meet the children’s needs in the role of residence parent, the father has not. He is untested. Also, his past conduct in contact periods suggests that if he were the residence parent he would be working in full time employment and at such times unavailable to care for the boys, and also likely at times to give priority to his employment over the boys’ needs for care and supervision.

The child’s maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant - Section 68F(2)(f)

1. As male children the boys have a need for a close and positive relationship with a suitable adult male role model. In Sydney, whether they live with the father or the mother, the father would satisfy that need.
2. If the boys go to [Town A], it is unlikely that [P] will go too. There is some uncertainty as to whether the maternal grandfather or the boys’ uncle [R] would satisfy that need and for how long.
3. [K] has special needs because of his health problems. The mother is likely to better recognise and provide for those needs. It is likely that in Sydney she can more easily do so than in [Town A], because of the better access to specialist medical practitioners and other health professionals.

...

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents - Section 68F(2)(h)

1. Both the parents at times have given priority to their conflict over the children’s interests and needs. Their hostility to each other compromises their parenting capacities. Their parenting would be improved by learning through a parenting after separation course about the effect of their conflict on the boys and better was [sic] to parent them.
2. If the mother and the boys move to [Town A], one consequence will be to further aggravate the communication problems between the parents and this will further compromise their parenting capacities.

...

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child - Section 68F(2)(k)

1. If the mother and the boys move to [Town A] there will be a greater likelihood of further proceedings between the parents about the boys because implementation of contact travel and telephone contact will be much more significant, much more difficult, and much more likely to result in further parental conflict.

...

The Best Interests Of The Children - (Subsection 68F(1)

1. In terms of location their interests are best served by continuing to reside in Sydney as that will accord with their wishes and will enable them to maintain and enjoy the significant relationships they have with both parents, their brothers, and paternal grandfather. It will also ensure they have greater stability and less disruption in their lives by minimising changes of neighbourhood, school, sporting teams, and friends and associates.
2. In terms of residence, the boys’ interests are best served by remaining with the mother. The boys’ interests require that the mother be restrained from changing the boys’ residence to a place more than 15 kilometres from the [Suburb B] house except by written consent of the father or leave of the Court.
3. The father seeks overnight mid week contact in school terms in lieu of evening contact. The mother opposes that. Since the original orders were made the father has become more involved in the boys’ lives, the boys have become much more comfortable with overnight contact, their relationship with the father has become stronger and the boys have become more attached to him. It is in the boys’ best interests to have mid week overnight contact in school terms, rather than limited after school contact.
4. The nine grounds of appeal (Grounds 11 – 19) which are directed to his Honour’s refusal to permit the mother to relocate the children to Victoria raise a number of complaints. However, the submissions made in support of those grounds focussed principally on the assertion that his Honour can be read as strongly suggesting that the mother was required, or effectively compelled, to provide adequate reasons for the proposed relocation (which would, we accept, be contrary to authority: see for example, A v A: Relocation Approach [2000] FamCA 751; (2000) FLC 93-035), and also on his Honour’s alleged failure to have regard to the economic impact on the mother if she was not permitted to move to Victoria.
5. In an endeavour to establish substance in the assertion that his Honour had required the mother to provide adequate reasons for the relocation, counsel for the appellant mother drew particular attention to his Honour’s findings in relation to the mother’s credit, which we have earlier set out, particularly the findings in paragraphs 36 and 37 of his Honour’s reasons, and also to many of the paragraphs in his Honour’s analysis of the mother’s proposals.
6. We do not agree that these various passages in his Honour’s judgment should be read as requiring the mother to provide compelling reasons for her proposed move. Rather we read these passages as directed to establishing what evidence there was to support the substance of her proposal. His Honour was entitled to be satisfied that the proposed new arrangements for the children had some substance. This then brings us to the further assertion that his Honour did not give proper consideration, or adequate weight, to the economic impact of the mother if she was not able to move to Town A.
7. The economic difficulties for the mother of staying with the children within the Sydney metropolitan region (as sought by the father) were emphasised by her counsel in his final submissions to his Honour. However, the transcript also reveals that at that time his Honour endeavoured to point out that there was no evidence to support either her claim that staying in Sydney would be “an economically impossible situation for her” or her claim of an offer of employment in Town A. (See Transcript, 18 July 2005: Appeal Book pp 686 – 605.)
8. Then in his reasons for judgment, his Honour referred on a number of occasions to the unsatisfactory nature of the mother’s evidence concerning her financial circumstances in either Sydney or Town A as, for example, can be seen in paragraphs 31 and 37 of the passage from his Honour’s judgment which was directed to the mother’s credit and which we set out earlier.
9. Given his Honour’s conclusions as to the unsatisfactory state of the mother’s evidence in relation to her financial situation, he cannot, in our view, be criticised for not placing greater weight on any financial advantage for the mother and the children in a move from Sydney to Town A.
10. So far as the challenge to his Honour’s refusal to permit such a move is concerned, we are satisfied that his Honour’s reasons for concluding that the children’s best interests would be served by their remaining in Sydney are well explained in his analysis of the relevant s 68F(2) matters. It should be observed that in that analysis there was no reference to any failure on the part of the mother to provide reasons for her proposed move.
11. We mention here that the emphasis in counsel’s written submissions in support of the grounds directed to the refusal to permit the move to Victoria, was on the provisions of Part VII of the Act as they now stand rather than as they stood when his Honour determined this case. Counsel clarified before us that he only relied on that part of his submissions in the event that we were to re-determine the matter. There is, however, no justification for any interference by us with his Honour’s rejection of the mother’s application to be permitted to move the children to Victoria.

THE CHALLENGE TO THE RESTRAINT ON MOVING THE CHILDREN’S RESIDENCE MORE THAN 15 KM FROM THE FORMER MATRIMONIAL HOME

1. The effect of his Honour’s first order was not only to restrain the mother from changing the children’s residence to Victoria, but also to restrain her from moving their residence to any place more than 15 kilometres from the former matrimonial home at Suburb B (except with the consent of the father or leave of the court).
2. The mother’s first five grounds of appeal were directed to the 15 kilometre restraint. The first submissions made to us on her behalf were also directed to this restraint (rather than to the restraint of a move to Victoria).
3. The challenges to the 15 kilometre restraint embodied in the mother’s grounds of appeal are, in summary, that such a restraint had not been sought or explored at trial, and thus procedural fairness had been denied to the mother on this issue; that inadequate reasons had been given by his Honour for the restraint; that the restraint was contrary to other parts of his Honour’s reasoning; and that the restraint was not supported by the evidence.
4. In his response to the mother’s application seeking to be permitted to move the children to Victoria, the father had sought only that the mother be restrained from changing the children’s place of residence to any area outside the Sydney Metropolitan region (see paragraphs 9 and 10 above). We do not understand that at any time during the trial the father sought, at least expressly, to make this restraint more restrictive.
5. The idea of a restraint on the mother of “about 15 kilometres” appears to have first emerged in paragraph 193 of his Honour’s reasons, which we here repeat:
   1. If the mother moves the boys to a residence more than about 15 kilometres from their [Suburb B] home that is likely to cause them considerable disruption and instability such as changes of school, of sporting teams, and of neighbourhood. It is also likely to separate them from friends and associates.
6. As was submitted by counsel for the mother, this restraint is not consistent with other passages in his Honour’s reasons where he refers to the Sydney area generally as the place of the boys’ residence, for example:
   1. ... She offered no evidence of any availability or rentals of accommodation anywhere closer to the children’s school and their father, although obviously there is suitable rental accommodation available in New South Wales, and even in the Sydney basin, that is no more expensive than accommodation in [Town A].

...

1. As male children the boys have a need for a close and positive relationship with a suitable adult male role model. In Sydney, whether they live with the father or the mother, the father would satisfy that need.

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1. [K] has special needs because of his health problems. The mother is likely to better recognise and provide for those needs. It is likely that in Sydney she can more easily do so than in [Town A], because of the better access to specialist medical practitioners and other health professionals.
2. While a trial Judge in a parenting case is not bound by the proposals put by the parties, if there is to be a departure from those proposals, procedural fairness requires that the parties have the opportunity to be heard on the proposed arrangement which the trial Judge is considering imposing (Bolitho v Cohen [2005] FamCA 458; (2005) FLC 93-224; Powell v Ptolemy [2005] FamCA 1032; (2005) FLC 93-239). It seems clear that this did not happen in the present case.
3. Accordingly, the appeal must succeed, at least to the extent necessary to vary the first order made by his Honour to restrain the mother only “from changing the children’s place of residence to any area outside the Sydney metropolitan region except by written consent of the father or leave of the Court”.
4. This, as we have indicated, was the restraint sought by the father. We did not understand either party to oppose the remaking of Order 1 in these terms in the event that we were to determine that his Honour’s order could not stand for want of procedural fairness or any other reason. It would, however, be useful to retain in Order 1 the concluding words used by his Honour, being “except by written consent of the father or leave of [the] Court”.

THE CHALLENGE TO WEDNESDAY OVERNIGHT CONTACT

1. Order 3.2 of his Honour’s orders provided that the children are to have “contact” with the father “in school terms from end of school Wednesday to start of school Thursday”.
2. His Honour explained his reasons for this order in paragraph 210 of his judgment, which we also here repeat.
   1. The father seeks overnight mid week contact in school terms in lieu of evening contact. The mother opposes that. Since the original orders were made the father has become more involved in the boys’ lives, the boys have become much more comfortable with overnight contact, their relationship with the father has become stronger and the boys have become more attached to him. It is in the boys’ best interests to have mid week overnight contact in school terms, rather than limited after school contact.
3. Again this order is challenged by the mother on a procedural fairness basis because it was only sought by the father during the course of his counsel’s final submissions, and also on the basis of adequacy of reasons in circumstances where there had not previously been overnight contact during school weeks.
4. It is clear from the transcript of the trial (18 July 2005, Appeal Book p 579) that it was only during her final submissions that counsel for the father sought overnight contact each Wednesday night during school terms; this was conceded to be so before us by counsel then appearing for the father.
5. The transcript also shows that the proposal for overnight contact on Wednesdays was vigorously opposed by counsel for the mother, both on the basis of the lateness of the application and the lack of evidence to support what was said to have been a significant change in the contact arrangements up until that time (see Transcript at Appeal Book pp 587 to 591).
6. We do not consider that the very limited opportunity which the mother had to be heard on the father's late application for overnight contact, being only through her counsel, was sufficient in the circumstances of this case where the only previous overnight contact during school terms had been alternate weekends, where the elder child had some difficulties, where there was poor communication between the parents, and where the place of residence of the mother and children was uncertain. In these circumstances the proposal for overnight contact each week required much greater exploration by his Honour.
7. However, we were told that no stay of his Honour's orders had been granted and that therefore the Wednesday overnight contact had been happening for over a year when we heard the appeal. We are also conscious of the fact that within six months of his Honour's orders having been made, significant amendments to Part VII of the Act came into operation; those amendments may well have supported his Honour's reasoning as expressed in paragraph 210 of his reasons, provided of course that there was evidence that would support the conclusion that it would be in the children's best interests to have more time with their father.
8. In these circumstances we consider that in allowing the appeal against order 3.2, we should vary that order to make it an interim order. This will mean that either party could apply for a re-determination of the issue of the overnight weekly contact should they consider that existing circumstances require such a re-determination.

CONCLUSION

1. In summary, therefore, we will allow the appeal to the extent necessary to vary the restraint on the place of residence of the mother and children to any area outside the Sydney Metropolitan region and also to vary the order for overnight contact on Wednesday nights to be an interim order. The appeal will otherwise be dismissed together with the applications to adduce further evidence.

COSTS OF THE APPEAL

1. As both counsel sought the opportunity to file submissions in relation to the costs of the appeal after the outcome of the appeal was known, we will make the usual directions for such submissions.
   

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 8 May 2008