Boerio & Nelson [2025] FedCFamC1A 99 (28 May 2025)

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

1. This appeal, brought by the mother from parenting orders made on 14 January 2025 by a judge of the Federal Circuit and Family Court of Australia (Division 2) in respect of the parties' child, must be dismissed for the following reasons.

1. The parties commenced their relationship in mid-2015 (at [40]) and separated in April 2017 (at [1] and [46]). Their child was born in mid-2016 and was only eight months old when they separated. The child is now eight years old.
2. For many years, the parties were able to co-operatively manage the child without litigating. They commendably mediated and executed a parenting plan under which the child lived with the mother and typically spent each alternate weekend and more than half of the school holidays with the father (at [1]).
3. In 2021, the father moved from suburban Melbourne to regional Victoria, about 175 kilometres and approximately 2 ½ hours driving time away from the mother (at [2]), though his change of residence did not disturb the existing parenting arrangements for the child.
4. In early 2023, the mother was unfortunately diagnosed with a serious medical condition which caused her to suffer painful symptoms for years (at [47]-[48]). She required surgery in Sydney in mid-2023 (at [79]) and, over the preceding weeks, disagreement erupted between the parties over the person who would care for the child while the mother was in hospital and then later convalescing. The mother proposed the child would stay with a friend, whereas the father wanted the child to stay with him (at [57]-[77]). At about the same time, two friends of the mother reported to the paternal family how her care of the child had become erratic and unreliable (at [49]-[56]).
5. When the mother took the child to Sydney with her in mid-2023 against the father's wishes, he commenced proceedings under Pt VII of the Family Law Act 1975 (Cth) ("the Act") and applied to change the child's residence (at [3] and [78]).
6. On 22 May 2023, interim parenting orders were made with the parties' consent, providing for the child to live with the mother, for her and the child to return and live in Melbourne within the next few days, and for the child to then revert to the former arrangement under which she spent time with the father (at [80]).
7. On 17 August 2023, more interim orders were made with the parties' consent, providing for the parties to equally share parental responsibility for the child. Otherwise, the orders made in May 2023 were perpetuated (at [90]).
8. The trial began in June 2024. The parties' dispute was confined to the child's residence. The Independent Children's Lawyer supported the father's case for the reversal of the child's residence (at [14]). The parties agreed they should jointly retain parental responsibility for the child and the child should spend time with the non-residential parent (at [9] and [12]).
9. The trial concluded in October 2024 and judgment was delivered in January 2025. The primary judge ordered that the parties retain joint parental responsibility for the child (Order 2), that the child live with the father (Order 4), and that the child spend time with the mother, the amount and frequency of which time depended upon how close to the father the mother elected to live (Orders 5-11).
10. The mother appealed from all orders, though only the orders governing the child's residence with the father and the time she spends with the mother were controversial in the appeal.

1. The grounds of appeal are pleaded in the Amended Notice of Appeal filed on 5 May 2025.
2. The grounds allege an assortment of legal and discretionary errors but, in truth, despite their characterisation by the mother, all complaints singularly concern the way in which discretion was exercised by the primary judge. None genuinely allege an error in the application of legal principle. Nor is any factual error alleged.
3. The mother formally abandoned Grounds 1, 2, 3, 5 and 9 as the hearing progressed, making it only necessary to deal with Grounds 4, 6, 7 and 8.

1. As a bare proposition, this ground asserts it was an "error of law" for the primary judge to make orders for the child to live with the father (Order 4) and attend a different school (Order 3) because such orders were "contrary to [the child's] best interests".
2. In support of the proposition, the mother submitted:
   1. ...The relocation and school change were significant disruptions that warranted close scrutiny, but were not justified on the evidence.

...

1. Furthermore, the Family Court in Re: K [1994] FamCA 21; (1994) FLC 92-461 recognised the importance of maintaining continuity in a child's environment unless compelling reasons justify disruption. The judge did not identify such compelling reasons, nor did the evidence support the conclusion that the change in primary care or schooling would promote the child's overall welfare. The decision therefore reflects a misapplication of the statutory framework and relevant case law, amounting to an error of law warranting appellate review.

1. Immediately it will be noticed that this complaint is no more than dissatisfaction with the result. The submissions made in support of it are not an explanation of any material legal, factual or discretionary error by the primary judge.
2. The ground and the submissions are rejected because the order governing the child's residence with the father had a firm evidentiary foundation and was well explained. Her Honour found the mother's parenting capacity was impaired by both her medical condition (at [140]-[225]) and her lack of insight (at [226]-[229] and [268]-[288]), whereas the father's parenting capacity was found to be superior (at [297]).
3. It was not in doubt, nor was it overlooked, that the mother had been the child's primary carer from the time of separation in April 2017 and the standard of her care had been adequate until the father felt the need to assume the role as primary carer when he commenced the proceedings in May 2023. However, his submissions about the mother's inferior parenting capacity were ultimately accepted by the primary judge.
4. Nor did the primary judge overlook the effect the change in residence would have upon the child's welfare. Whatever short-term anxiety the child might suffer from moving to live with the father was found to be outweighed by the expert opinion evidence verifying the child's best interests were liable to be compromised by continuing to live with the mother (at [85]-[89], [266]-[272], [276]-[278], [280]-[281] and [284]-[288]). As was open, the primary judge accepted such expert opinion evidence (at [25]-[29]). The primary judge was satisfied the father was sensitively attuned to manage the child's transition to his residential care (at [289]) and, furthermore, that the child could manage the change despite the challenges (at [290]-[291]).
5. Once the child lived with the father, her enrolment at another school was inevitable because of the distance between the parties' homes. The single expert psychologist ("the psychologist") did not foresee any undue difficulty for the child changing schools (at [291]-[292]).
6. This ground fails.

1. This ground alleges the primary judge "erred in law" by failing to give "proper consideration" to the staleness of the psychologist's opinion evidence expressed within the family reports.
2. By the time the trial started in June 2024, the initial family report was 11 months old and the addendum family report was 10 months old (at [25]). Significantly though, the mother did not apparently seek orders for the reports to be updated, either before the trial started or while the trial was part-heard between June 2024 and October 2024, so this challenge in the appeal is opportunistic at the very least.
3. In any event, the psychologist was cross-examined at trial and her oral evidence was entirely consistent with her written evidence. She was found to be a credible witness, despite the attack mounted by the mother's counsel (at [25]-[29]).
4. The ground incorrectly alleges the psychologist was "unaware what happened" between the time of the family reports and the time of trial. In fact, the psychologist was informed of intervening developments when cross-examined by counsel for the mother, father and the ICL, as is common.
5. This ground fails because the primary judge did give "proper consideration" to the age of the family reports by acknowledging the mother's submission on the issue. The complaint about the staleness of the expert evidence inevitably fell away once the psychologist's opinion evidence did not change when challenged in cross-examination during the trial.
6. The primary judge's rejection of the mother's submissions about the staleness of the psychologist's expert evidence was not the manifestation of a failure to properly consider her submissions, because such rejection followed upon consideration of the evidence.
7. This ground fails.

1. This ground alleges the primary judge "erred in law" by failing to give "proper consideration" to the mother's completion of two parenting programs in December 2023 and March 2024.
2. In support of the complaint, the mother submitted this:
   1. The primary judge has completely overlooked [the mother's] completion of the Caregivers Program [(December 2023)] and the Tuning into Kids Program (March 2024), both of which were completed prior to final orders being made in favour of the [father]. These programs are directly relevant to the [mother's] parenting capacity, insight, and commitment to the child's wellbeing, core considerations under section 60CC(3)(c) of [the Act], which requires the court to assess each parent's ability to provide for the child's emotional and developmental needs. By overlooking this updated and favourable evidence, the court failed to properly evaluate the [mother's] present parenting fitness and her proactive efforts to strengthen the parent-child relationship.

1. It is true the mother's completion of those courses is not mentioned in the reasons for judgment, but it is a mistake to then assume the evidence was overlooked or minimised, as the reasons for judgment cannot possibly mention every piece of evidence (DL v The Queen [2018] HCA 26; (2018) 266 CLR 1 at [33] and [131]; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 132; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at 463-464).
2. Judges can rightfully expect parties to emphasise the evidence upon which they materially rely in final submissions, unless it would be so obvious that such express emphasis is unnecessary (Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 at [120]-[121]). The mother's completion of those courses was not so obviously an important consideration that it could escape express emphasis, but it was not mentioned by the mother's counsel in final submissions.
3. The mother's submissions impermissibly assume her completion of the two parenting courses would have necessarily impelled a finding that her parenting capacity was consequently satisfactory, but that assumption cannot be made. Despite having completed those courses before the trial commenced, the primary judge found the child was still "parentified" and was still subject to undue influence by the mother against the father (at [273] and [312]), so the courses had not helped the mother correct that flaw in her parenting capacity. Other factors were overwhelming. Her parenting capacity was impaired (at [140]-[229] and [226]-[229] and [268]-[288]) and, comparatively, the father's parenting capacity was superior (at [297]).
4. This ground fails.

1. This ground alleges the primary judge fell into discretionary error by failing to give sufficient weight to the supportive evidence of the mother's treating medical practitioner.
2. The implicit assumption underpinning the ground is that her Honour wrongly concluded the mother's medical condition adversely impinged upon her parenting capacity, or alternatively, impinged upon her parenting capacity at least whilst ever not enhanced by "regular medical support". But there can be no question the primary judge correctly interpreted the available medical evidence and permissibly then found the mother's parenting capacity was impaired.
3. The mother did not rely upon any affidavit by her treating specialist (at [13] and [31]), but reports written by him were in evidence (at [31]-[32]). The mother first consulted her specialist in early 2023 (at [145]). She admitted her condition intermittently causes her "severe pain" (at [147]-[148]). Her severe headaches caused her to consult with the specialist while lying down with an ice-pack on her head (at [164]). The specialist opined she would need assistance caring for the child for six to 12 months after her surgery in mid-2023 (at [165]).
4. After the surgery, in late 2023, the mother's general practitioner reported she still had lasting adverse symptoms (at [178]), as did the specialist on two occasions in late 2023 (at [180]-[183]) and another specialist she consulted in early 2024 (at [185]). Two months later, the mother was still reporting "overwhelming" headaches to the specialist (at [189]). In mid-2024, the specialist reported the mother's adverse symptoms may "not ever fully resolve" (at [193]). One month later, the specialist reported the mother was "unlikely to make any clinically significant further gains in the level of her symptomology" (at [195] and [220]).
5. Against that background, the primary judge found:
   1. ...The mother's evidence in October 2024 is that there was a recurrence of symptoms...Axiomatically, if there has been a deterioration in her condition, then her functioning is impaired and [the child's] practical needs are not being met appropriately.
   2. I infer from [the specialist's] communications with [named consultant psychiatrist], and between the mother and [the specialist] referred to in paragraphs 193 to 196 of these reasons (under cover that I have no specialist medical training) that the mother's condition will continue to wax and wane, and her debilitating symptoms will recur. I couple this with the mother's evidence that she will probably require [medical treatment] on an ongoing basis, given their efficacy appears to be three to six months. Again axiomatically, if there is a deterioration in her condition in the future then her functioning in relation to caring for [the child] will be impaired. There is ample evidence that the level of the mother's functioning has an adverse impact on all aspects of [the child's] day to day life. [The child] will continue to be subject to having her needs met at a standard much less than the standard the father is able to offer.

...

1. Taking into account all of the above, I make the findings that I am urged to make by Counsel for the father. I am satisfied that:

(a) the mother has a serious, chronic and ongoing medical condition;

(b) the mother's medical condition has a significant impact on her functioning; and

(c) the mother's condition impacts her ability to meet the practical responsibilities of parenting [the child].

1. I make the further findings that the mother minimises the severity of her symptoms, and she has no insight in relation to the adverse effects those symptoms have on the quality of her parenting of [the child].

1. Both at trial and in the appeal, the mother relied upon the evidence of her general practitioner, but his expert evidence was rejected by the primary judge, saying:
   1. I place no weight on [the mother's general practitioner's] positive opinions in relation to the mother's care of [the child] in light of the totality of the evidence.
2. While the mother's general practitioner gave some opinion evidence which she thought reflected favourably upon her parenting capacity, it collided irreconcilably with the rest of the expert evidence. The evidence of the mother's general practitioner was not uniformly advantageous to her anyway, as he wrote to her treating specialist in mid- 2023 telling him he was "concerned about [the mother's] psychological state" (at [162]) and again in late 2023 itemising the mother's continuing debilitating physical symptoms (at [178]).
3. The mother's general practitioner would undoubtedly defer to the expert evidence of the specialist to whom he referred the mother for treatment (at [31]), whose evidence the primary judge did accept (at [220]-[222]). This ground must be rejected.

1. The appeal is dismissed.
2. The father sought his party/party costs of the appeal from the mother, which he should have because the appeal was wholly unsuccessful and should never have been brought.
3. The mother resisted the costs order on the premise of her much weaker financial position. She has no assets of any significance and receives a welfare benefit, but she was not the recipient of a grant of legal aid. Throughout both the original and appellate proceedings, the mother has been privately represented by lawyers, paid for by her family. Her legal fees in the appeal exceeded $20,000, so the father's costs were modest by comparison.
4. The father should not bear the financial burden of defending a foolish appeal. Unmeritorious litigation is no less unmeritorious because it is pursued by a person of poor financial circumstances (Northern Territory v Sangare [2019] HCA 25; (2019) 265 CLR 164 at [27]).
5. The father's party/party costs are fixed at $9,255.50 pursuant to r 12.17(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.