Australian Coal and Shale Employees' Federation v The Commonwealth

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Traversi & Vinogradov has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 19 December 2024 a judge of the Federal Circuit and Family Court of Australia (Division 2) made orders permitting the mother to take the parties' child, born in 2019, to reside in City B, State D in the United States of America ("USA").
2. The father has appealed against that decision.
3. Both the mother and father are dual citizens of Australia and the USA, as is the child.
4. The parties commenced cohabitation in April 2015 and ceased living together on 1 April 2021. They may have separated some months earlier.
5. Since separation the child has lived with the mother and spent regular, but relatively limited time with the father.
6. Both the mother and the child face significant disabilities. The child has been diagnosed with a medical condition which is characterised by developmental delay and other difficulties. The child is under the care of many medical and allied health professionals and will require lifelong support.
7. The Independent Children's Lawyer did not play an active role in the appeal. The previous solicitors for the Independent Children's Lawyer filed a Submitting Notice on 29 April 2025. The current solicitors came onto the record the day before the hearing and appeared at the hearing, but indicated they had no submissions to make.

1. The appeal is from a discretionary decision so the following principles from House v The King (1936) 55 CLR 499 ("House v The King") (at 504-505) will apply:

...The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred...

1. A judgment is presumed correct unless material error is established (Australian Coal and Shale Employees' Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621 at 627).
2. Judges hearing parenting cases exercise a very wide discretion. Error is not shown by persuading the appeals court that they would have come to a different conclusion. In such cases, two different judges might reasonably come to opposite conclusions based on the same evidence (Pacotto & Galvin [2025] FedCFamC1A 27 at [30]).
3. The father relied on an Amended Notice of Appeal which abandoned Grounds 1, 2 and 6 and amended the others.

1. Ground 3 reads:
   1. The mother having conceded in cross-examination that the father was capable of caring for the child for up to five nights per fortnight and Her Honour making findings in relation to the adequacy of the father's care and the strength of their relationship ([60] and [61] of the [reasons]), Her Honour's exercise of discretion erred in making orders that do not progress beyond the child spending time with the father:

3.1. Two nights per fortnight until the child relocates to the United States of America; and

3.2. Two nights per week following the child's relocation to the United States of America.

1. I note Ground 3.1 was orally amended at the hearing of the appeal to read "One night per fortnight until the child relocates to the United States of America".
2. This ground does not go to the orders for relocation but to the time the child spends with the father, wherever the child may be.
3. The primary judge ordered that until the child went to State D, she would spend time with the father twice a week including one overnight per fortnight.
4. In State D, time with the father is frequent, but limited to the Summer holidays (or such other time the father travels to the USA and provides the requisite notice) and would commence with one overnight per week and increase to two overnights per week.
5. The father had sought five overnights per fortnight in each case.
6. It was not in dispute that the child has a close and loving relationship with both parties (at [60] and [62]). There was "no evidence to suggest that [the child] is uncomfortable in the care of the father or that his care for her is inadequate" (at [61]).
7. The first question is whether the mother conceded in cross-examination that she held no concerns about the child spending five nights with the father.
8. The father relied on the following:

[COUNSEL FOR THE FATHER]: I see. And you would agree that the decision for five nights a fortnight is now with her Honour?

[THE MOTHER]: That would have to be looked at and determined if I - he's reached the position to do it.

[COUNSEL FOR THE FATHER]: And in your mind he's very capable, isn't he, to do it?

[THE MOTHER]: I think he could do it if he chooses to.

[COUNSEL FOR THE FATHER]: I see?

[THE MOTHER]: And I - - -

[COUNSEL FOR THE FATHER]: Well, he's choosing to, isn't he? He is choosing to. You would agree with that? He's asking this court, give me five nights. He is choosing to. Correct?

[THE MOTHER]: That's ..... asking things but I want to see the action.

[COUNSEL FOR THE FATHER]: Well, what opportunity has he had for action? What opportunity have you said to [the father] - - -?

[THE MOTHER]: He's had multiple opportunities.

[COUNSEL FOR THE FATHER]: - - - here's five nights a fortnight? Prove to me you can do it. When have you offered that up?

[THE MOTHER]: Well, before I should have woke up and realised I'm - what type of father he is and at the time of the break up I just made assumptions that this would be a lot like my parents' divorce. I was doing pretty much - - -

[COUNSEL FOR THE FATHER]: If you want to answer my question. When have you offered him five nights a fortnight and said - - -?

[THE MOTHER]: When we broke up.

[COUNSEL FOR THE FATHER]: When you broke up?

[THE MOTHER]: He even said it himself.

[COUNSEL FOR THE FATHER]: Where's that in your affidavit?

[THE MOTHER]: I just didn't bring it up.

[COUNSEL FOR THE FATHER]: Another thing that you didn't think to be important in your affidavit. That you offered my client five nights a fortnight on separation and you just chose not to do it. You seriously tell her Honour - - -?

[THE MOTHER]: I don't think I specifically said five but certainly sleepovers when we talked about the bed.

[COUNSEL FOR THE FATHER]: I see. This is evidence you are just making up, isn't it?

[THE MOTHER]: No. And, in fact, it's interesting he brought it up himself.

[COUNSEL FOR THE FATHER]: Because you have sought to include the mundane of detail in your affidavit, including [the child] coming back with knots in her hair. And yet, critical issues like time you offered to my client which he did not take up on separation is absent in your affidavit.

[COUNSEL FOR THE MOTHER]: Well, I object to that, your Honour, because there are - I need to pull up the references but there .....

[COUNSEL FOR THE FATHER]: Okay. I withdraw the question.

HER HONOUR: All right.

[COUNSEL FOR THE FATHER]: Five nights that you offered to my client upon separation is just absent from your affidavit. Correct?

[THE MOTHER]: Yes.

(Transcript 8 May 2024, p.97 line 44 to p.98 line 46)

1. The closest to a concession is the phrase "I think he could do it if he chooses". It is at best a limited concession, namely the use of "could" not "would". He also relied upon:

[COUNSEL FOR THE ICL]: Can you see a benefit to [the child] of having ongoing overnight time in person with her father?

[THE MOTHER]: Yes, if he's able to provide the care for her.

[COUNSEL FOR THE ICL]: I'm sorry, could you repeat that? I thought you said - - - ?

[THE MOTHER]: If he's able to provide the care for her.

[COUNSEL FOR THE ICL]: Yes. All right. And your evidence earlier today was that he is absolutely capable of providing that care if he wants to. Is that correct?

[THE MOTHER]: I think he could be capable. He needs to have the - make the choice to do it.

[COUNSEL FOR THE ICL]: All right. And counsel for the father put to you that the fact that the father is applying for orders that he spend five nights a fortnight with [the child] is evidence that he does want to do that. Would you agree with that? Would you agree that that is evidence that he wants to do that?

[THE MOTHER]: Yes.

(Transcript 8 May 2024, p.117 line 45 to p.118 line 11)

1. The same comments apply.
2. The father submitted that in light of the findings as to the nature of the relationship, the father's ability to care for the child and the above concessions, the primary judge "ought to have exercised the discretion" to provide for five nights of overnight time per fortnight (father's Amended Summary of Argument filed 1 April 2025, paragraph 18).
3. It is not at all clear to me into which category of error identified in House v The King this is said to fall.
4. Her Honour's reasons are:

1. I appreciate the mother's reluctance to commit to more time in the context of [the child's] medical condition. From the evidence of both Dr K and Dr J I observe that:

(a) [The child] may continue to experience health issues at any time in her life. > > (b) Whilst she has not yet encountered significant health issues, there is a concern that she will. > > (c) [The child] may struggle with mood disorders, anxiety and other mental health afflictions that may require ongoing therapy. She will experience difficulties fitting into social constructs. I note that in 2023, Dr L reported that [the child] experienced separation anxiety from her mother and maternal grandmother.

(d) Her condition requires lifelong monitoring.

(e) [The child's] ability to communicate is made difficult because she has been assessed as having low cognitive functioning and she struggles with language comprehension. She is at risk of serious social difficulty.

1. I understand the father's desire to "lock in" a longer progression of time. This would, I assume allow him to travel with [the child] to stay with family in other parts of State D. The orders proposed by him would also overcome his concern about the mother "gatekeeping" his time with [the child]. But I am afraid that what he has proposed may not be suitable for [the child] in four years' time due to the complexities that might arise from her medical condition. I was left satisfied that the mother had not developed her Minute of Order with the intent of limiting the father's time with [the child], but rather she was focussed on [the child's] needs and medical condition. For these reasons, I will make the spend time with orders proposed by her.

1. Here, the primary judge focused on the best interests of the child and found they were served by the more limited time. In doing so there is no reason to think that her Honour overlooked the close relationship or the father's ability, but simply gave other matters greater weight. Indeed, the passages seem predicated on such a finding.
2. That was a course entirely open. The "concessions" are not mentioned but a trial judge is not obliged to mention every piece of evidence (Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [41]). Further, it has to be accepted that capability is not the same a desirability.
3. This ground does not succeed.

1. Ground 4 reads:
   1. Her Honour erred in finding that the child and mother had more opportunity to secure longer term support in the USA as compared to Australia in circumstances where:

4.1. The mother's case was premised upon her two minority nephews one day assuming a caring role for the child;

4.2. Her Honour was satisfied that the maternal grandmother was able to provide support at least in the short term and she would otherwise have the support of her brother who was not on affidavit and it was uncontroversial the maternal grandmother played a significant role in caring for that brother's children;

4.3. The mother failed to call any evidence as to support available to her other than the Maternal Grandmother who was a 75 year old lady at the time of the trial;

4.4. Her Honour erred in finding that there was no evidence of the father's intention:

4.4.1. to reduce his hours of employment, despite earlier findings of the father's intention to retire;

4.4.2. To take steps to be more available to assist when and if needed by the mother, despite the father's application for four nights a fortnight, the mother's concession he was capable of the same and Her Honour's findings in relation to the adequacy of his care giving responsibilities;

4.4.3. To move closer to the mother, despite the father's unchallenged evidence that following the final hearing he would seek new accommodation that would better suit the child's needs.

1. The ultimate conclusion reached by her Honour as to the future care of the child was:
   1. If I permit the mother to live with [the child] in the USA, she will receive greater day to day support personally and in her capacity as a parent by her immediate family. I am confident that she will be happier with the security that she can draw upon through the resources offered by the maternal grandmother. This is likely to result in the mother's enhanced wellbeing. Given that ability on the part of the mother to respond to and provide for [the child's] needs, the most crucial aspect of [the child's] best interests is to ensure that the mother herself is adequately supported and is able to continue carrying on that function throughout [the child's] life. I am not as confident about her ability to do so should she remain living in Australia.
2. That followed an extensive analysis of the proposed care in State D at [131] to [167].
3. There is no reference to the two nephews in those passages in terms of them caring for the child in the future.
4. It is true that in cross-examination the mother said that she hoped her two nephews, then aged 4 and 12 years old, might care for the child on a lifelong basis. She accepted that this was speculation and could not be ensured.
5. It follows that it grossly overstates the mother's position to say it was premised on such care.
6. Grounds 4.2 and 4.3 may be accepted as broad summaries of her Honour's findings which were not challenged.
7. It was submitted that the matters in Grounds 4.1 to 4.3 demonstrated error in the conclusions just noted and especially in the following intermediate finding:
   1. I did not find this argument persuasive. Both parties have extended family in the USA. In the event that [the child] is permitted to relocate, I am satisfied that [the child] would become more acquainted with family members from both sides of her family. In the event that both parents are unable to care for or support [the child] in the future, due to her familial connections, there appears to be more opportunity for her to secure longer term future support in the USA, as perhaps compared to institutional care in Australia.
8. All the primary judge is saying there is that there are more family members in the USA and thus there are more opportunities for it to occur. That seems an unremarkable conclusion.
9. The balance of paragraphs [131] to [167] are clearly capable of supporting the finding at [179].
10. Ground 4.4 challenges the following:
    1. ... While I do not discount the father's desire to play that role, there was no evidence before me that supported the proposition that either he would reduce his work hours, move to live in closer proximity to the mother, or take other steps that would allow him to be more available to assist when and if needed by the mother. Even if he did so, I am not satisfied that the mother will ever have the confidence and trust to ask him to do so.
11. This is not so much a finding as a statement.
12. The father's Amended Summary of Argument asserted that the so called findings "are absolutely belied by either earlier findings, unchallenged evidence or concessions proffered by the Mother adverted to in the ground" (father's Amended Summary of Argument filed 1 April 2025, paragraph 29). Neither the Summary of Argument nor the oral argument deigned to identify the particular findings or evidence relied upon. As already discussed, the mother's concessions were, at best, general in nature.
13. The statement made by her Honour, therefore, appears literally correct in that there was no such evidence. The statement goes no further. It must be said, however, that evidence of a general willingness and ability to care for the child would not enable an inference to be drawn as to the specific matters the subject of the primary judge's statement. Presumably, they were the "earlier findings" referred to in the Summary of Argument. They are too general to allow such specific inferences to be drawn.
14. This ground does not succeed.

1. Ground 5 reads:
   1. Her honour erred in finding that the mother would likely be a happier person with a better sense of wellbeing living in the USA or that should the mother remain in Australia there is a risk that she will continue to experience poor mental health in circumstances where the mother:

5.1. conceded in cross-examination that she was not sure if her mental health presentation would resolve if she were permitted to relocate to the United States of America; and

5.2. failed to call any evidence of her mental health diagnosis, prognosis and/or treatment.

1. I commence with the general observation that the establishment of a person's happiness is not something that requires expert medical or psychological evidence. It is not the same as mental health which might well require such evidence.
2. The primary judge said:

1. A mental health diagnosis or treatment plan would have better supported the mother's case. There was no evidence that would permit a finding to be made that the mother's parental capacity has been affected by her mental health diagnosis and/or that her prognosis for recovery is better if she were to live in the USA. But even without that evidence, I have concluded that the mother would likely be a happier person with a better sense of wellbeing living in the USA because:

(a) She would have the ability to leave [the child] alone in the care of family when she needs to attend to unexpected, unplanned or impromptu issues. > > (b) She would be confident that her housing is secure, and that she has a further safety net offered by her familial support.

1. Should the mother remain in Australia there is a risk that she will continue to experience poor mental health and wellbeing due to her isolation. Whilst I consider her parenting will still be adequate, [the child] will lose out on the opportunity to be parented by her best self.
2. The father did not challenge the factual accuracy of the three matters noted in [150]. Those three matters are capable of giving rise to the inference that was drawn by the primary judge.
3. The mother gave evidence that she had suicidal thoughts, which she hoped would diminish if allowed to move residence with the child. She agreed her mental issues would not be resolved by relocation, but she hoped they would diminish. She said she would feel a great sense of relief.
4. The father submitted that the finding in [151] was a finding as to risk. Such a finding was said to be an evaluative one from which an appeal lies to be determined on the correctness standard (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 414 ALR 635).
5. In [151] the primary judge is not speaking of a risk of harm to the child or that the mother poses such a risk. Rather the statement is of a risk of continuing to experience poor mental health and wellbeing. Risk is being used in the sense of chance or likelihood. The submission falls at the first hurdle.
6. There is no merit in Ground 5.

1. Ground 7 reads:
   1. Her Honour erred in finding and failed to give adequate reasons in so finding that the mother's proposal for the child's time with the father, being the Orders ultimately made by the Court, will ensure that the child continues to enjoy a relationship with the father in circumstances where:

7.1. Such finding was in part premised upon the child's close and affectionate relationship with the maternal grandmother, despite the Single Expert's evidence that owing to the child's disability it would be very difficult for the child to maintain a relationship with the father if the mother were permitted to relocate to the USA (which her Honour accepted at [38) of the [reasons]);

7.2. The child's displays of affection and familiarity is a symptom of her disability;

7.3. Her Honour's later findings at [195] of the [reasons], to justify the mother's proposed orders was in part premised upon, the child's ability to communicate is made difficult because she has been assessed as having low cognitive functioning and she struggles with language comprehension.

1. This ground challenges the finding made at [171]:
   1. The mother's proposal ensures that [the child] will continue to enjoy a relationship with her father. I remain confident that the mother would facilitate the time she proposes the father spending with [the child].
2. It is necessary to place that paragraph in its context:
   1. The father argued that the Court should not order the relocation in circumstances where the mother is likely to minimise the father's relationship with [the child]. He sees the real risk as what he describes as the mother's "gatekeeping" of [the child's] relationship with him. I have already made a finding that there was insufficient evidence to satisfy me that the mother has deliberately acted to minimise the father's involvement in [the child's] life.
   2. Beyond this, the father is concerned about the impact that a relocation would have on his relationship with [the child]. The Court heard evidence about [the child's] sensory needs for physical touch. This sensory experience would not be possible with communication through other electronic mediums. The maternal grandmother was asked about her experiences of communicating with [the child] via electronic mediums. She confirmed that [the child] was easily distracted and had a short attention span. However, despite these challenges they appear to communicate on a regular basis and maintain a close and affectionate relationship.
   3. Obviously if I order [the child] to remain in Australia, she will benefit from the current strength of her relationship with the father. He will be physically present in her life both for significant events and also the mundanity of daily life.
   4. The mother's proposal ensures that [the child] will continue to enjoy a relationship with her father. I remain confident that the mother would facilitate the time she proposes the father spending with [the child].
   5. Under both proposals before the Court, I am satisfied that [the child] will be able to benefit from relationships with both her parents. But obviously the amount of time which [the child] will be able to spend with the father will be substantially reduced if the mother is permitted to relocate. I accept that this will impact on [the child's] relationship with her father.
3. There is no doubt that the child has a close and loving relationship with the father.
4. The ground then refers to the evidence from the single expert that it would be difficult for the child to maintain a relationship with the father if she were in the USA. This overlooks the unchallenged finding at [39] that the primary judge was cautious about accepting the single expert's recommendations.
5. It must be remembered, as is implicit in her Honour's orders, that there may still be an adequate or sufficient relationship even though that may fall short of an optimal relationship (Rochford & Fitzhugh [2019] FamCAFC 218 at [23], [38] and [41]).
6. The adequacy of reasons will depend on the circumstances of the case (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [57]-[59]). Reasons will be inadequate where it is not apparent how the decision was reached, upon what evidence the decision was reached, or the pathway that led to a stated conclusion (Bennett and Bennett [1990] FamCA 148; (1991) FLC 92-191 at 78,266).
7. It is important to add that reasons must be read as a whole and to repeat that it is not essential that a judge deal with every piece of evidence.
8. Her Honour's reasoning in the above paragraphs is clear and easy to follow, especially in the context of the rest of the reasons. It follows that the reasons are adequate and the ground fails.

1. No ground has enjoyed any merit. The appeal will be dismissed.

1. The appeal has been wholly unsuccessful. Counsel for the father did not submit that there should be no costs order but pointed to difficulties in the Schedule of Costs sought by the mother.
2. There is some merit in the submission that the schedule, prepared in accordance with the scale in Schedule 3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), reads more like a solicitor-client bill.
3. Doing the best I can, the father will pay the mother's costs fixed in the sum of $14,000.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge.