Dearman v Dearman

Family Court Act 1997 (WA)

Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513

Hepburn and Noble [2010] FamCAFC 111

House v The King [1936] HCA 40; (1936) 55 CLR 499

Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513

Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605

MRR v GR [2010] HCA 4; (2010) 240 CLR 461

Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311

Starr and Duggan [2009] FamCAFC 115

T v L [2006] WASCA 46(S)

Newnes JA's reasons ....................................................................................45

Jenkins J's reasons.......................................................................................45

1 BUSS JA: The appellant made application to the Magistrates Court of Western Australia for permission to relocate from the Perth metropolitan area to a small town in the south-west of Western Australia with J, a boy aged 6, who was the child of a short-lived relationship between the appellant and the respondent. Fleming M heard the application. On 6 August 2010, he dismissed it and published written reasons for decision. See P and R [2010] FCWAM 20.

2 The appellant appealed to this court against the magistrate's decision. The appeal was heard on 22 October 2010. On 4 November 2010, the court dismissed the appeal. We said that reasons for decision would be published later. These are my reasons.

3 The appellant and the respondent met in March 2003. They commenced a relationship which ended in 2004. Before they commenced living together, the appellant became pregnant, despite her use of the contraceptive pill. In December 2003, the appellant and the respondent purchased a home in the Perth metropolitan area. J was born in 2004.

4 The relationship between the appellant and the respondent deteriorated soon after they commenced living together. In August 2004, separation under one roof occurred. On 25 September 2004, they separated finally. The appellant left the home with J. The appellant and the respondent lived together, in total, for about seven months.

5 Since 2004, the appellant and the respondent have been engaged in a variety of proceedings in the Family Court of Western Australia and the Magistrates Court. The history of the litigation is set out in the magistrate's reasons at [3] - [24]. It is unnecessary to reproduce it.

6 Since the final separation, the time which J has spent with the respondent has increased from a relatively limited period, when J was young, to the current situation where J spends almost equal amounts of time with each parent. J spends slightly more time with the appellant.

7 The appellant is aged 33 years. She is an occupational therapist but is not employed permanently in the workforce. Her explanation is that, as a result of the ongoing litigation since 2004, she has been unable to be employed on a full-time basis.

8 The respondent is aged 32 years. He is employed by the State Government. Although he is employed on a full-time basis, he can structure his working arrangements so that he is able to care for J on a full-time basis. He has not re-partnered since his separation from the appellant. In May 2003, the respondent was diagnosed with multiple sclerosis.

9 Since about mid-2009, J has spent a substantial period with each parent. This has become more difficult, and relations between the appellant and the respondent appear to have deteriorated even further, because the appellant has formed a new relationship with B, who resides in the town to which the appellant wishes to relocate. The appellant and B want to live together in that town.

10 B carries on his own business in the town. He has been a long-term resident. The appellant is pregnant to B. She became pregnant early in their relationship. Once again, the pregnancy occurred despite the appellant's use of the contraceptive pill. The baby is due in mid-December 2010.

The magistrate's principal findings and conclusion

11 The principal findings made by the magistrate were these [109]:

• There is no doubt that [J] is thriving in his present circumstances. There could be little argument that his best interests would not be served in remaining in these surrounds in the event that the Court chose not to allow the relocation. The decision to be made is whether the relocation is in fact the better option to that [which] is currently in place. It cannot be said that the present arrangements are not in his best interests.
• The arrangements that are proposed by the [appellant] mother are untested as opposed to the Father's existing status quo. As highlighted in these Reasons her relationship with [B] and her early pregnancy bears a remarkable similarity to the relationship with the [respondent] and that relationship failed relatively early in the piece. She has never lived with [B], and in any sense of the word, the relationship is in its infancy. Whilst she argues that it is in [J's] best interests to relocate to [the town] one wonders whether this relationship with [B] would have blossomed as quickly as it has in the event that she had not become pregnant. The Court is of the view that, because of the matters raised, there can be no assurance of the stability of that relationship.
• There can be no doubt that if she had so chosen the [appellant] with her qualifications could have obtained employment in the metropolitan area. Her argument that she needs to travel to [the town] to obtain employment is not accepted by the Court. Given the amount [of time] that [J] spends with his father there is ample scope, in this Court's view, for her to attain similar employment in Perth.
• The Court finds that both the [respondent] Father and the [appellant] Mother are equally able to care for [J] and meet his physical and emotional needs.
• [J] is progressing well at school [in Perth]. He has friends that he has built up through pre-primary and primary school and he would need to re-establish this friend base if he were to travel to [the town] to live.
• [J] has an extended family for support in Perth, a family group that he has had considerably more contact with than that of the Mother's family. In addition there is the cultural aspect of the Latvian heritage which would be to an extent severed if he were to predominantly reside in [the town]. This would not be in his best interests.
• Given the [appellant] Mother's stance, in relation to relocation an order that prevented relocation would not prevent [J] having a meaningful relationship with his half-sibling. [J] could spend time during holiday periods with his half-sibling.
• The Court is required to consider, as stated in the decision of MRR & GR [[2010] HCA 4] to consider [sic] the practical aspects of the parties' proposals. If [J] were to remain in Perth then the current arrangements or something similar have been shown to work well and the child is prospering in all regards. There is no doubt that that is in his best interests. The practicalities of the [appellant] Mother's proposals are not as concrete and rest on the premise of a sound relationship with [B], which on the evidence can simply not be concluded at this point in time. There is also the additional aspect which involves the [respondent] Father's health. The only evidence before the Court suggests that he would have difficulty travelling to and from [the town] given his condition and this would cause further problems with the amount of time he spends with [J].

12 His Honour noted that he was faced with a 'very difficult decision' [106]. In the result, and after having made the findings I have set out, he concluded that it was not in J's best interests to relocate to the town. He decided that it was in J's best interests to remain in his current surroundings in Perth, and spend almost equal time with each of his parents.

The statutory framework: appeals from the Magistrates Court to this court

13 Section 210A of the Family Court Act 1997 (WA) provides for an appeal to this court from a decree or decision in respect of the non-federal jurisdictions of the Magistrates Court constituted by a family law magistrate.

14 By s 210A(7), on an appeal under s 210A, this court may affirm, reverse or vary the decree or decision the subject of the appeal, and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if it considers appropriate, order a re-hearing on such terms and conditions, if any, as it considers appropriate.

15 This court may exercise its appellate powers under s 210A only if the family law magistrate made a material error. The appeal is not an appeal de novo.

16 If the decree or decision of the family law magistrate involved the exercise of a judicial discretion then the principles of law which regulate the circumstances in which an appellate court may review the exercise of a judicial discretion apply. See House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ). For example, error in exercising a judicial discretion will be shown where the primary decision-maker has acted on a wrong principle, or has allowed extraneous or irrelevant factors to influence him or her, or has failed to take into account some material consideration, or has mistaken the facts.

17 If the decree or decision of the family law magistrate involved the exercise of a judicial discretion, and the complaint on appeal is that no weight, or insufficient weight, was given to relevant considerations, the appellate court should not interfere unless the failure to give adequate weight to relevant considerations 'really amounts to a failure to exercise the discretion actually entrusted to the court': Lovell v Lovell [1950] HCA 52; [1950] HCA 52; (1950) 81 CLR 513, 519 (Latham CJ). See also Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, 519 - 520 (Stephen J); Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614 (Gibbs CJ).

18 Although an appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance' (Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561), it must necessarily observe the 'natural limitations' that exist where the appellate court proceeds wholly or substantially on the record. See Dearman (561); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [23]. In Dearman, Isaacs J said:

The mere words used by the witnesses when they appear in cold type may have a very different meaning and effect from that which they have when spoken in the witness box. A look, a gesture, a tone or emphasis, a hesitation or an undue or unusual alacrity in giving evidence, will often lead a Judge to find a signification in words actually used by a witness that cannot be attributed to them as they appear in the mere reproduction in type. And therefore some of the material, and it may be, according to the nature of the particular case, some of the most important material, unrecorded material but yet most valuable in helping the Judge very materially in coming to his decision, is utterly beyond the reach of the Court of Appeal (561).

19 In Fox v Percy, Gleeson CJ, Gummow & Kirby JJ said in relation to the 'natural limitations' of an appellate court proceeding wholly or substantially on the record:

These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole [23]. (footnotes omitted)

20 Section 210A(8) provides that if, in dismissing an appeal under s 210A, this court is of the opinion that the appeal does not raise any question of general principle, it may give reasons for its decision in short form.

21 Although the present case does not, in my opinion, raise any question of general principle, I will deal with each ground of appeal, and not give reasons in short form.

22 Part 5 of the Family Court Act is headed 'Children'. The provisions of pt 5 which are relevant to the disposition of this appeal include:

1. Object of Part and principles underlying it - FLA s 60B

(1) The objects of this Part are to ensure that the best interests of children are met by -

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests) -

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children; and

(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

66A. Child's best interests paramount consideration in making a parenting order - FLA s 60CA

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

66B. Proceedings to which Subdivision applies - FLA s 60CB

(1) This Subdivision applies to any proceedings under this Part in which the best interests of a child are the paramount consideration.

(2) This Subdivision also applies to proceedings, in relation to a child, to which section 80(2) or (6) or 176 applies.

66C. How a court determines what is in a child's best interests - FLA s 60CC

(1) Subject to subsection (6), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

(2) The primary considerations are -

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

(a) any views 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 views; and

(b) the nature of the relationship of the child with -

(ii) other persons (including any grandparent or other relative of the child);

(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent; and

(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from -

(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e) the practical difficulty and expense of a child spending time with and communicating 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; and

(f) the capacity of -

(ii) any other person (including any grandparent or other relative of the child),

to provide for the needs of the child, including emotional and intellectual needs; and

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; and

(h) if the child is an Aboriginal child or a Torres Strait Islander child -

(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii) the likely impact any proposed parenting order under this Part will have on that right;

(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents; and

(j) any family violence involving the child or a member of the child's family; and

(k) any family violence order that applies to the child or a member of the child's family, if -

(ii) the making of the order was contested by a person;

(l) 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; and

(m) any other fact or circumstance that the court thinks is relevant.

(4) Without limiting subsection (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents -

(a) has taken, or failed to take, the opportunity -

(i) to participate in making decisions about major long-term issues in relation to the child; and

(b) has facilitated, or failed to facilitate, the other parent -

(i) participating in making decisions about major long-term issues in relation to the child; and

(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

(5) If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.

(6) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2) or (3).

...

66D. How the views of a child are expressed - FLA s 60CD

(1) A court required under section 66C(3)(a) to consider any views expressed by a child in deciding whether to make a particular parenting order in relation to the child is to inform itself of the views expressed by a child in accordance with this section.

(2) The court may inform itself of views expressed by a child -

(a) by having regard to anything contained in a report given to the court under section 73(2); or

(b) by making an order under section 164 for the child's interests in the proceedings to be independently represented by a lawyer; or

(c) subject to the rules, by such other means as the court thinks appropriate.

66E. Children not required to express views - FLA s 60CE

Nothing in this Part permits the court or any person to require the child to express his or her views in relation to any matter.

70A. Presumption of equal shared parental responsibility when making parenting orders - FLA s 61DA

(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in -

(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

(b) family violence.

(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

...

89AA. Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances - FLA s 65DAA

(1) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must -

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and

(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents,

(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if -

(a) the time the child spends with the parent includes both -

(ii) days that do not fall on weekends or holidays;

(b) the time the child spends with the parent allows the parent to be involved in -

(ii) occasions and events that are of particular significance to the child;

(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to -

(a) how far apart the parents live from each other; and

(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d) the impact that an arrangement of that kind would have on the child; and

(e) such other matters as the court considers relevant.

23 The proper approach to 'relocation' cases, in the context of those provisions of the Family Law Act 1975 (Cth) which are equivalent to the provisions of the Family Court Act set out at [22] above, was considered in Starr and Duggan [2009] FamCAFC 115. Part VII of the Family Law Act is comparable to pt 5 of the Family Court Act. The Full Court of the Family Court of Australia (Boland, Thackray & Watts JJ) said:

The core principle consistently referred to in all appellate decisions involving challenges to parenting orders (including where an order for relocation is sought) is the 'paramountcy principle' found in s 60CA. That is, a court must regard the best interests of the child as the paramount, but not sole, consideration.

The interplay between the paramountcy principle, the objects of the Act and the principles underpinning those objects is described in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.

In McCall & Clark [(2009) [2009] FamCAFC 92; 41 Fam LR 483] the Full Court referred (at paras 58 to 60) to explanations given in other relocation cases of the order in which relevant provisions in Part VII may be applied when determining a parenting application. Their Honours (Bryant CJ, Faulks DCJ and Boland J) went on to explain (at paras 61 and 62) that it will often not be an academic exercise to consider whether a child should spend equal time with both parents, as such an order is likely to be sought by a non-relocating parent.

The Full Court also pointed out that in seeking to address all of the relevant provisions of the legislation it is inevitable there will be 'dual consideration' of some matters. This is so because consideration of the s 60CC factors does not take place in a vacuum and those factors will need to be assessed in the context of the competing proposals. Some of the matters to be considered under s 60CC(3), for example the likely effect of any change in the child's circumstances and the practical difficulty and expense of a child spending time with a parent, must also be considered when applying s 65DAA, especially s 65DAA(5).

Thus the appellate decisions determined after the commencement of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) have set out a framework which a judicial officer may follow when determining applications for parenting orders, including an order that a child be permitted to relocate.

However, it is important to emphasise (as was made clear in Taylor & Barker and Sealey & Archer [2008] FamCAFC 142) that the legislation does not mandate consideration of the relevant sections in any particular order, although a logical approach is to:

- first make findings concerning the relevant s 60CC factors;

- then consider (based on the s 60CC findings) whether equal time or substantial and significant time is in the child's best interests; and

- then consider whether such arrangements are reasonably practicable by addressing the matters referred to in s 65DAA(5) - which may be done by referring back to the earlier s 60CC findings.

Section 65DAA will provide a useful framework to consider the advantages and disadvantages, not only of the equal time and substantial and significant time scenarios, but also other outcomes which may be in the child's best interests, including the proposal to relocate [33] - [39].

See also MRR v GR [2010] HCA 4; (2010) 240 CLR 461 [13] - [16]; Hepburn and Noble [2010] FamCAFC 111 [98] - [103].

The basis on which the present case was conducted before the magistrate

24 The present case was conducted before the magistrate on the basis that if the magistrate 'was not minded to allow [the appellant] to relocate with [J] then she would not go [to the town] without him' [35]. This was reiterated later in his Honour's reasons when he said:

If the [respondent's] proposal is accepted by the Court then, on the basis that the [appellant] has indicated that she would not go to [the town] without [J], then it is likely in this particular case that the parties would have equal time with [J] [102].

See also [107] where his Honour said that 'if [the appellant] cannot relocate with [J] then she will remain in Perth'.

25 Those observations by the magistrate reflect the following passage in the appellant's cross-examination:

Will you move to [the town], even if his Honour does not find in favour of relocating [J]?---I don't think that's possible. If the court order is that [J] may not live in [the town], then I wouldn't be able to live in [the town] (ts 29/6/10: 28).

26 The appellant relies on 18 grounds of appeal. I will examine each of them in turn.

27 Ground 1 alleges that the magistrate erred in that he did not address financial issues, as follows:

(a) his Honour accepted the respondent's claim to have made other financial contributions, despite no evidence;

(b) he failed to make findings despite there being evidence of the respondent remaining in arrears in relation to child support obligations when it was demonstrated that he had the ability to pay;

(c) he failed to address the financial implications of his decision, including the implication that the appellant would have 'double the expenses' of running a home both in Perth and the town, as well as the financial burden of excessive travel between the two homes; and

(d) he failed to consider the appellant's past work history and current inability to work due to pregnancy, impending child birth and resulting duties as a mother.

28 The magistrate recounted the appellant's criticism of the respondent's financial support for J. His Honour said:

She is critical of the [respondent's] financial support for the child. At paragraphs 127 to 132 of her affidavit she sets out the amount of child support that has actually been paid for [J]. It is quite clearly inadequate she would say for the support of the child. She also indicates that she has had to pay for all the extra curricular activities for [J]. Once again her evidence in most areas is diametrically opposed to that of the [respondent] [49].

29 His Honour also recounted the respondent's submissions in relation to his financial support for J, as follows:

The [respondent] counters any arguments that he is not financially contributing to [J]. Whilst on the evidence it would appear that over a period of time he paid minimal child support he says that during those periods of time he was studying at University and paid child support in accordance with any assessment from the Child Support Agency. In addition, he maintains that he made other financial contributions for the maintenance of [J] [40].

30 His Honour did not make any specific findings in relation to the level of the respondent's financial contributions, but he did make these general findings about the attitude of the appellant and the respondent to J and to the responsibilities of parenthood:

Both of these parties have fully recognised their responsibilities as a parent. I make no criticism of either party.

Both clearly love [J] and have his best interests at heart. I am unable to separate the parents in this regard [93] - [94].

31 It is not apparent from the magistrate's reasons as a whole that he accepted the respondent's claim to have made other financial contributions.

32 I am satisfied, however, that his Honour's failure to make specific findings as to the nature and extent of the respondent's financial contributions (including in relation to whether he was in arrears in his child support obligations despite having an ability to pay) was not a material error in that, even if findings adverse to the respondent had been made, they would not, and should not, have affected the ultimate decision.

33 It is true that the magistrate did not address the financial implications of, relevantly, the appellant having 'double the expenses' of running a home both in Perth and in the town in the event that the application for relocation was dismissed. However, as I have mentioned, the case was conducted on the basis that if the application for relocation was dismissed then the appellant would not re-settle in the town. In any event, the appellant's evidence at trial indicates that she was travelling, without apparent economic difficulty, from Perth to the town on a regular basis and, on those occasions, staying there for some time. See, in particular, the appellant's affidavit sworn 15 June 2010, where she deposes:

1. During this year I have been spending as much time as possible in [the town] with [B]. These times include 5-8 February, 19-22 March, 1-9 April, 30 April - 3 May and 11-14 June 2010.
2. [B] has also been in Perth to spend time with myself and [J]. He comes to Perth as often as he can, despite often having to work weekends in [the town].
3. [J] and I spent time in [the town] on 9-20 April and 6-10 May 2010. We also plan to spend the first half of the July school holidays from 2-11 July in [the town].
4. While in [the town] [J] participated in the Auskick 6 year old competition and made new friends at football and also at the local fishing club.

34 The magistrate was aware of the appellant's pregnancy. He referred to it on numerous occasions. See [33], [49], [51], [73], [79], [98], [99], [108], [109]. Also, his Honour was aware of the appellant's past work history and her claim that she was unable at various times to work. He found:

There can be no doubt that if she had so chosen the [appellant] with her qualifications could have obtained employment in the metropolitan area. Her argument that she needs to travel to [the town] to obtain employment is not accepted by the Court. Given the amount [of time] that [J] spends with his father there is ample scope, in this Court's view, for her to attain similar employment in Perth [109].

I am not persuaded that he failed to take these matters into account in arriving at the ultimate decision.

36 Ground 2 alleges that the magistrate erred in assuming that the relationship between the appellant and B was 'not sound'.

37 The magistrate said that the appellant and B had not yet cohabited and there was 'a real concern as to the future of the relationship which is relatively untested' [98].

38 His Honour also made these findings about the relationship between the appellant and B:

The arrangements that are proposed by the [appellant] are untested as opposed to the Father's existing status quo. As highlighted in these Reasons her relationship with [B] and her early pregnancy bears a remarkable similarity to the relationship with the [respondent] and that relationship failed relatively early in the piece. She has never lived with [B], and in any sense of the word, the relationship is in its infancy. Whilst she argues that it is in [J's] best interests to relocate to [the town] one wonders whether this relationship with [B] would have blossomed as quickly as it has in the event that she had not become pregnant. The Court is of the view that, because of the matters raised, there can be no assurance of the stability of that relationship [109].

39 A little later, his Honour said that the practicalities of the appellant's proposals 'are not as concrete [as the current arrangements or something similar] and rest on the premise of a sound relationship with [B], which on the evidence can simply not be concluded at this point in time' [109].

40 The magistrate did not 'assume' that the relationship was 'not sound'. Rather, he found, relevantly, that 'there can be no assurance of the stability of that relationship' and that it could not be concluded, on the evidence and as at the date of the trial, that the relationship was sound. These findings were reasonably open to him.

41 First, as at the date of the trial (28 - 29 June 2010) the relationship had been subsisting only since August 2009 (ts 28/6/10: 83). Secondly, the appellant's pregnancy to B was unplanned (ts 29/6/10: 58 - 59). It appears she conceived in about February or March 2010. Thirdly, as at the date of the trial the appellant and B were not living together as partners and, indeed, they had never lived together on that basis (ts 29/6/10: 60).

43 Ground 3 alleges that the magistrate made an error in failing to give 'sufficient weight' to the significance of the relationship between J and B.

44 His Honour noted the appellant's evidence that J enjoys a good relationship with her and the maternal grandmother, and is currently enjoying an ongoing relationship with B [73].

45 I have referred to the magistrate's findings about the relationship between the appellant and B in the course of considering ground 2. As I have mentioned, it was reasonably open to his Honour to find, amongst other things, that 'there can be no assurance of the stability of that relationship' [109].

46 In the circumstances I have mentioned in ground 2, and in the context of an appeal against the exercise of a judicial discretion, there is no merit in the appellant's complaint that his Honour erred by failing to give 'sufficient weight' to the significance of the relationship between J and B.

48 Ground 4 alleges that the magistrate erred in not considering all the alternative living arrangements with either parent. The ground alleges that his Honour only considered J moving to the town or remaining in Perth. He did not consider the option of the respondent relocating to the town and he did not consider the option of the appellant relocating without J and the effect this would have on him.

49 The proceedings were conducted before the magistrate on the basis that either the appellant and J would relocate to the town or the appellant and J would remain in Perth.

50 The appellant said in evidence and his Honour found that she would not relocate to the town without J.

51 The appellant was represented by counsel in the proceedings before the magistrate. Her counsel explored with the respondent in cross-examination whether it was feasible for him to relocate to the town:

Right. Well, see, it's a matter of really looking at the alternatives, isn't it, in terms of looking down the track. You know, he's going to have a sibling. Have you thought about your ability to in fact relocate?---Yes, I have.

Previously when I was appearing in these proceedings, you were indicating that you had a diploma of education. Now, is that right or not?---Correct. Yes.

Have you started a teaching career or not?---Yes, I have.

So you could resume teaching, couldn't you?---No.

Why not?---Well, because teaching has considerably - offers considerably less income than what I would be doing now.

Have you checked?---Yes, I have.

Okay. What would you get as a teacher?---I'd get at a second year teacher salary, approximately $51-and-a half thousand.

How quickly would you move up the scale of teaching pay?---Well, every year it goes up approximately - I'm not sure - I think in the order of about two-and-a-half to three thousand dollars.

So within three years you would be up to $60,000. Yes? Have you checked whether you get an allowance if you're in a regional centre such as [the town] or [another nearby town]?---No.

No. So you really haven't considered it, have you?---I have looked at jobs and the frequency of jobs is very minimal in teaching in [the town] area.

What about [another nearby town]?---In the [region], I looked at jobs in the last six to 12 months.

I take it then you would agree that it's certainly an option to resume your teaching career?---No, not - it would reduce my income. I have got mortgage repayments required and so it would make it very difficult under - - - (ts 28/6/10: 36 - 37).

52 However, counsel for the appellant did not suggest in his closing submissions that it was a practical option for the respondent to relocate to the town (ts 29/6/10: 65 - 70). Counsel appears to have accepted the respondent's evidence on the point.

53 In my opinion, the magistrate did not, in the circumstances I have recounted, make an error in not considering the option of the respondent relocating to the town or the option of the appellant relocating without J or the effect on J if the appellant were to relocate without him.

55 Ground 5 alleges that the magistrate erred in that he did not consider the implications and practical difficulties that would result from his decision, and the effect that it would have on J and the unborn child. The appellant referred to the following implications and practical difficulties: living in and running two separate households; the extensive travel that will be required; the financial implications; the lack of support in Perth and the abundance of support in the town for the appellant and J; and the stress that will be placed on the relationship between the appellant and B.

56 Some of the appellant's complaints about the 'implications and practical difficulties' resulting from the magistrate's decision are, to a material extent, attributable to the appellant's proposal, formulated after his Honour delivered his decision, to relocate, in any event, to the town. I refer, in particular, to the 'implications and practical difficulties' of living in and running two separate households, the extensive travel that will be required and the financial implications.

(a) His Honour noted the appellant's contention that J 'enjoys a good relationship with herself and the maternal grandmother and is now currently enjoying an ongoing relationship with her current partner [B]', and that J 'should and would have an ongoing relationship with his half-sibling once that child is born' [73]. His Honour then said that he considered this argument was 'viable' and that 'this aspect must be considered in line with other aspects' [74].

(b) His Honour noted that a factor which needed to be considered was the nature of the appellant's relationship with B [98]. He then proceeded to examine and make findings about that relationship, which findings were reasonably open to him [98], [107], [108], [109].

(c) His Honour recorded these contentions made on the appellant's behalf:

The [appellant's] case is that she has been the principal carer of [J], that she has financial constraints residing in Perth, predominantly as a result of these proceedings. She indicates having established a new relationship with [B] and having become pregnant to [B] she feels that this is an option of her getting on with her life. She says that [B] has strong family connections in [the town] area and conducts his own business in that area. He is currently building a house which would be suitable to herself and [J] and the new arrival. She has support in the area, given that her mother lives in [the town] area and she sets out what she perceives to be the benefits that [J] would have growing up in the country and growing up in the company of his half-sibling. She says that she believes that [J] wants to live in [the town] and is looking forward to that occurring [108].

It is apparent from his Honour's reasons as a whole that he took these contentions into account in arriving at his decision. As I have mentioned, his Honour said that he was faced with a 'very difficult decision' [106].

(d) His Honour referred to the appellant's family but found that J had considerably more contact with the respondent's family than the appellant's family [109].

(e) His Honour found that 'given [the appellant's] stance' in relation to relocation, 'an order that prevented relocation would not prevent [J] having a meaningful relationship with his half-sibling and that [J] could spend time during holiday periods with his half-sibling' [109].

(f) His Honour said that the 'practicalities' of the appellant's proposals were not as 'concrete' as the respondent's proposals, and rested on the premise of a sound relationship with B which, on the evidence, 'can simply not be concluded at this point in time' [109].

59 Ground 6 alleges that the magistrate erred in that he failed to consider the best interests of the unborn child.

60 Although the magistrate focussed attention, correctly, upon the best interests of J, his Honour did, indirectly, have regard to the situation of the unborn child.

61 His Honour noted the appellant's contention that J should and would have an ongoing relationship with his half-sibling once that child is born [73]. Also, his Honour said that, given the appellant's stance in relation to relocation, an order that prevented relocation would not preclude J from having a meaningful relationship with his half-sibling and that J could spend time during holiday periods with his half-sibling [109].

63 Ground 7 alleges that the magistrate erred in that he failed to consider 'all views' expressed by J.

64 His Honour made these observations in relation to any views expressed by J:

[J] is six years of age. To that extent his views would not be determinative of this case. The [respondent] says that [J] would probably state and has stated that he would like to remain living with him. Conversely the [appellant] has said that [J] has quite independently stated that he prefers to spend more time with her and is looking forward to going to live in [the town]. It is likely that the child may have expressed both views but a child of this age's views are not particularly material and any decisions in relation to a six year old should either be made by the parents collectively, or if that is not able to occur, then to be determined by a Court [71].

65 I am satisfied that his Honour gave proper consideration to any views expressed by J.

67 Ground 8 alleges that the magistrate erred in determining that 'family violence' was not a relevant consideration in this case.

68 The appellant gave this evidence in the course of cross-examination:

Have I made any verbal or physical attacks to yourself?---Yes.

Which is it, verbal or physical?---Both.

What physical attacks I have made?---Yes.

What were those physical attacks?---This is when we were living together and you would push through me and past me.

I put to you I don't recall any such incident and I put to you that the father has not made any threatening things to yourself at all. How many applications have you made to the Family Court?---I don't have those figures on me.

So you don't recall?---I don't know (ts 28/6/10: 81).

69 Counsel for the appellant, in his closing submissions, did not make any reference to alleged 'family violence' (ts 29/6/10: 65 - 70).

70 As to the respondent's parenting skills, counsel acknowledged, frankly, in closing:

I did not cross-examine in any way critical of [the respondent's] parenting of [J] because we make no criticism of that (ts 29/6/10: 69).

Whilst there is some evidence that the parties complain about inflexibility and intimidation between themselves there is nothing to suggest that [J] is in any need or any danger in respect of physical or psychological harm. Whilst the Court gets different views on his stomach upsets, for example, it is clear that they were being attended to by each parent but again because of the inability to communicate problems surfaced. This is not a factor in this case [70].

His Honour said at [95] that family violence involving J was 'not a factor in this case'. This finding was reasonably open to him.

73 Ground 9 alleges that the magistrate erred 'in his opinion of the [appellant] in part due to his acceptance of various claims by the [respondent]' including:

(b) there was some similarity between the appellant's/respondent's relationship and the appellant's/B's new relationship;

(e) the lesser involvement of the appellant, compared to the respondent, with J;

(f) the lack of a 'concrete situation' in the town.

74 The respondent alleged that the appellant had breached orders made by the Magistrates Court in that she had withheld contact (both physical and telephone) and 'had appeared late to many contact periods with [the respondent]'. It is apparent from his Honour's reasons considered as a whole that this allegation was not a relevant consideration in his Honour's decision in relation to relocation.

75 As to the alleged similarity between the appellant's/respondent's relationship and the appellant's/B's new relationship, his Honour found:

The arrangements that are proposed by [the appellant] mother are untested as opposed to [the respondent's] existing status quo. As highlighted in these Reasons her relationship with [B] and her early pregnancy bears a remarkable similarity to the relationship with [the respondent] and that relationship failed relatively early in the piece. She has never lived with [B], and in any sense of the word, the relationship is in its infancy. Whilst she argues that it is in [J's] best interests to relocate to [the town] one wonders whether this relationship with [B] would have blossomed as quickly as it has in the event that she had not become pregnant. The Court is of the view that, because of the matters raised, there can be no assurance of the stability of that relationship [109].

This finding was made in the context of considering whether it should be concluded that, at the time of the trial, there was a 'sound relationship' between the appellant and B. This was, without doubt, a relevant consideration in determining the relocation issue.

76 As to the appellant's use of contraceptives, his Honour did not find that the appellant had not, in fact, used contraceptives at or about the time of the occurrence of her unplanned pregnancies. The appellant's evidence was that she was taking the contraceptive pill and that on each occasion it had failed to prevent the pregnancy (ts 29/6/10: 20). His Honour's reference to the appellant's use of contraceptives was made merely in the context of assessing the stability, as at the date of the trial, of her relationship with B.

77 As to the appellant's lack of employment, the appellant gave this evidence in cross-examination:

Yes, you have already stated that you have not looked for work in Perth. Is that correct?---I think I stated that I did look for work in Perth, but was not able to work in Perth due to the care of my son and the continuous legal requirements. I could not find a job that would be suitable and flexible enough that it would allow for me to work to the standard that I require of myself, let alone an organisation.

Thank you. Do you believe that you have better employment opportunities in [the town] area than in Perth?---Yes.

How so?---There are a lot less occupational therapists in [the town]. There is always need for therapists and health professionals in country areas. There are also a lot of OTs down there who are working in fields slightly outside of occupational therapy, such as the local area coordinators for the Disability Service Commission and various other positions. Managerial positions I would say.

In gaining full-time employment, how much does the average occupational therapist earn?---I would say full-time employment, anywhere from 50,000 upwards.

So have you been successful in gaining a position in [the town]?---I'm unsure. I've put in an application. I have not heard back as yet.

So what's the term of this position?---Sorry?

What's the term of this position? What kind of a position is it?---It's occupational therapist at [the town] Hospital. It's a part-time position. It's 16 hours a week.

So is it a permanent position?---No, it's for six months, which would suit my pregnancy well (ts 29/6/10: 25 - 26).

78 His Honour made this finding based on his assessment of the whole of the relevant evidence:

There can be no doubt that if she had so chosen [the appellant] with her qualifications could have obtained employment in the metropolitan area. Her argument that she needs to travel to [the town] to obtain employment is not accepted by the Court. Given the amount [of time] that [J] spends with his father there is ample scope, in this Court's view, for her to attain similar employment in Perth [109].

79 As to the nature and extent of the involvement of each of the appellant and the respondent with J, his Honour did not make a finding to the effect that the appellant had a 'lesser involvement' with J compared to the respondent.

80 Rather, his Honour found, relevantly, that J enjoyed a 'meaningful relationship' with each parent [69], both parents can equally accommodate J in relation to his needs, both emotionally and intellectually [87], J spends almost equal amounts of time with each parent but spends marginally more time with his mother [29], both parties agree that equal shared parental responsibility should be the case [61], both the appellant and the respondent have fully recognised their responsibilities as a parent, his Honour had no criticism of either party and both of them 'clearly loved [J] and have his best interests at heart' [93] - [94].

81 As to the lack of a 'concrete situation' in the town, both the appellant and B gave evidence that they did not have a house in the town at the time of the trial, and they both admitted that they did not live together. His Honour found:

If [J] were to remain in Perth then the current arrangements or something similar have been shown to work well and the child is prospering in all regards. There is no doubt that that is in his best interests. The practicalities of the [appellant's] proposals are not as concrete and rest on the premise of a sound relationship with [B] which on the evidence can simply not be concluded at this point in time [109].

82 B's evidence in cross-examination was, relevantly:

Sir, since you swore your affidavit [the appellant] has become pregnant. Has that had any effect on - the looking into the future - on your plans?---No.

All right?---I think it's a positive.

But in terms of accommodation and arrangements to live with [the appellant] and things of that nature?---No. We've talked about all that.

I understand you're currently building a house?---Yes.

Can you say where that house is?---It's in [the town].

When do you anticipate that it will be ready for occupation?---My builder assures me by December this year.

Prior to that, prior to you being able to occupy that house, [the appellant's] evidence is that she proposes to live with her mother until such time as she feels that [J's] relationship with you is sound enough so that you and he and [the appellant] are all under the one roof. Have you thought about when and if that sort of change is likely to take place?---I'd say when [J] feels happy and assured and [the appellant] would - when we both feel happy that [J] is happy with that.

In terms of - [the appellant], as I understand it, is expecting to give birth around December also - in terms of what you would like, in terms of your living arrangements with her prior to the birth and at the birth - have you thought about what your preference would be for that?---I would see us liking to be living together well before then.

If you were to live together before then have you thought about the alternatives that would be available?---I guess the alternatives if I was to be at the farm - or we do rent a house before then, but it would only be short term - there are options. Possibly there's some options, yes.

So is it the case you'd be content to be living at the farm - at her mother's farm?---Yes.

All right, and alternatively it sounds like you would be quite content to rent for a while till you could move into your house?---Yes, but I mean it's not so far off anyway (ts 29/6/10: 57 - 58).

What are your current living arrangements with [the appellant]?---We're not living together as - at the moment.

Have you ever lived together?---No (ts 29/6/10: 60).

84 I am not persuaded that the magistrate made the error alleged in ground 9.

85 Ground 10 alleges that the magistrate erred in determining that the paternal extended family were more involved and meaningful to J than the maternal extended family, and that J would cease to benefit from the paternal extended family if he should move to the town, even though no determination was made that J had been prevented from being more involved with the maternal extended family.

86 His Honour found that J's involvement with the respondent's extended family 'has been considerably greater than' his involvement with the appellant's extended family [106]. Also, his Honour found:

[J] has an extended family for support in Perth, a family group that he has had considerably more contact with than that of the Mother's family. In addition there is the cultural aspect of the Latvian heritage which would be to an extent severed if he were to predominantly reside in [the town]. This would not be in his best interests [109].

87 The respondent's mother gave evidence that she has considerable involvement with J on a weekly basis [45]. The appellant's mother lives on a farm near the town [50]. She had previously lived in South Africa [72]. The appellant's father lives in Thailand [72]. The appellant and the appellant's mother gave evidence that J has a strong relationship with his maternal grandmother. Although J has had only a limited time with his maternal extended family, the appellant contended that J nevertheless has a very strong and meaningful relationship with them. I am satisfied that, on the whole of the evidence, his Honour's finding was reasonably open.

89 Ground 11 alleges that the magistrate failed to take into consideration evidence in affidavits filed on behalf of the appellant despite no request having been made by the respondent for 'reducing the weight of these documents'.

90 The appellant filed and served, and sought to rely on, affidavits of three witnesses who did not attend for cross-examination, despite the respondent having issued a notice of intention to cross-examine (ts 29/6/10: 64).

91 The following exchange occurred between counsel for the appellant, the respondent and his Honour:

MR HEDGES: Sir, can I just say the remaining witnesses haven't come up from [the town]. They are available by telephone. I appreciate that the situation is, if [the respondent] wants to cross-examine them by telephone, I'm content with that. If he can't, I simply can't produce them basically for cost reasons.

HIS HONOUR: Did you have any extensive cross-examination of the last three witnesses?

[THE RESPONDENT]: They weren't going to be extensive, but my wish was to do that.

HIS HONOUR: The difficulty we're going to have is to swear these witnesses in and to know in fact who we're talking to, because we could be talking to anybody. It would normally be done by way of video-link. I wouldn't be necessarily happy to conduct any type of extensive type of cross-examination by way of telephone. What I can say, [the respondent], is this: that because the witnesses have not been subject to cross-examination, you can address me in your closing address as to what weight I should attach to any areas of their evidence that you feel uncomfortable with.

[THE RESPONDENT]: Okay, thanks. Understood.

HIS HONOUR: I think that's probably the way to do it. So effectively, then, we're on to our summations.

MR HEDGES: Correct.

[THE RESPONDENT]: Alternatively have their affidavits struck out.

HIS HONOUR: I wouldn't strike them out entirely, but have you issued a notice of intention to cross-examine?

[THE RESPONDENT]: Yes.

MR HEDGES: The position is, they're people who are unknown to [the respondent]. They are what are colloquially described as compurgators and as I say, you know, despite being legally represented, there is a limit on the amount of money that is available for this case.

HIS HONOUR: I won't strike them out but, given that they've not been produced for cross-examination, you can simply invite me not to take into account their evidence.

[THE RESPONDENT]: Okay (ts 29/6/10: 64).

92 His Honour said in his reasons in relation to the evidence of these witnesses:

The Court has considered the evidence contained in the other affidavits filed in these proceedings and have considered their contents. I am also mindful of the fact that these witnesses were not presented for cross examination and, accordingly, weigh their evidence in that regard [46].

93 His Honour's approach to this issue was orthodox. It was open to his Honour to evaluate and weigh their evidence in the context of the absence of cross-examination without the respondent having made a submission to that effect.

(a) in determining the care given to J in his lifetime, in particular, stating that 'the [appellant] had marginally more time' with the appellant, despite her being the primary caregiver for the first four years of [J's] life; and

(b) by failing to take into consideration evidence that J 'struggles with the past and current contact regime, having too much time away from the [appellant]'.

96 His Honour set out relevant particulars of the various parenting orders that had been made in the Magistrates Court.

97 On 8 February 2006, Magistrate Andrews made, relevantly, these orders:

Until further order of the Court the said child reside with the [appellant].

The said child have contact with the [respondent] incremented and commence as follows:

(a) from 11 February 2006

(i) every Saturday from 1.00 pm until 7.00 pm;

(ii) every Sunday from 1.00 pm until 7.00 pm; and

(iii) every Tuesday from 8.00 am until 4.00 pm;

(b) from 22 April 2006 and until further order of the Court:-

(i) every week from 12.00 noon Saturday until 12.00 noon Sunday; and

(ii) every Tuesday from 8.00 am until 4.00 pm [7].

98 On 17 April 2007, Magistrate Andrews made, relevantly, the following orders:

From 17 April 2007, the child [J] born [omitted] spend time with [the respondent] each Tuesday from 8.00 am until 8.00 am, Wednesday, save as set out in the schedule marked 'AA' when Tuesday and Wednesday [time] will not occur and [the respondent] will spend time with the child on the Mondays and Tuesdays specified at the times specified therein, with the time to commence at 5.00 pm Monday and conclude at 4.00 pm Tuesday.

Paragraph 2(b) of the Minute of Proposed Orders attached to the orders of 30 January 2007 be varied to read, with effect that from the first contact date due in June 2007 that contact extend to 1.00 pm on the Sunday in each alternate weekend [9].

These orders extended the time J spent with the respondent and included overnight contact.

99 On 19 December 2007, the following orders were made by consent in the Magistrates Court:

The child [J] born [omitted] spend time with [the respondent]:

(a) from 8.00 am on each Tuesday to 8.00 am on each Wednesday;

(b) commencing 22 December 2007 and every second weekend thereafter from 12 noon Saturday to 6.00 pm Sunday;

(c) commencing 29 December 2007 and every second weekend thereafter from 9.00 am Saturday to 1.00 pm Sunday;

(d) commencing 22 February 2008 and every second weekend thereafter from 5.00 pm Friday to 8.00 am Sunday;

(e) commencing 1 March 2008 and every second weekend thereafter from 5.00 pm Saturday to 5.00 pm Sunday [11].

100 On 27 May 2009, Magistrate Andrews made these orders:

Until 1 September 2009 the child live with [the respondent] during the following times on a 2 weekly cycle and live with [the appellant], at all other times:-

(a) Week 1 - from Friday at 5.00 pm to Sunday at 5.00 pm;

(b) Week 1 - Tuesday at 8.45 am to Wednesday at 8.45 am;

(c) Week 2 - from Sunday at 9.00 am to Tuesday at 8.45 am.

From 1 September 2009 and until further order of the Court, the child live with [the respondent] during the following times on a 2 weekly cycle, and live with [the appellant] at all other times:-

(a) Week 1 - Friday at 5.00 pm to Monday at 8.45 am

(b) Week 1 - Wednesday at 8.45 am to Thursday at 8.45 am

(c) Week 2 - Sunday at 9.00 am to Tuesday at 8.45 am [20].

101 His Honour also set out particulars of various negotiations between the parties at conciliation conferences.

The time that [J] spent with his father since separation has already been documented in these reasons. In essence the time increased from a relatively limited period when [J] was young to a situation where [J] spent almost equal amounts of time with each parent. He spent marginally more time with his mother.

...

As stated herein, since about mid 2009 [J] has spent considerable time with each parent [29], [32].

103 I am satisfied that his Honour did not make any material error in his determination of the care that had been given to J in his lifetime. He did not in any material respect misapprehend the facts.

104 It is apparent from his Honour's findings considered as a whole that he did not accept that J had 'too much time away from the [appellant]'. His Honour said:

Having determined that the parent[s] should have equal responsibilities in respect of [J] the Court must now, under Section 89AA, consider the amount of time that the child should spend with each parent. If [the respondent's] proposal is accepted by the Court then, on the basis that [the appellant] has indicated that she would not go to [the town] without [J], then it is likely in this particular case that the parties would have equal time with [J]. It may even be preferred that the parties look to a week about arrangement if that were more suitable. This, of course, is premised on the fact that the Court will not allow the relocation.

If [the appellant's] proposal is to be accepted then obviously equal time and substantial and significant time would not be an option in this case. The contact with [J] would be limited to weekend and holiday contact which is a lesser amount of time than as defined under substantial and significant time.

Section 89AA(5) also deals with the issue of whether or not proposals are reasonably practical under the circumstances of a particular case. The Court need weigh up the practicalities of both parties' proposals to determine what is in [J's] best interests [102] - [104].

105 Counsel for the appellant's concluding submission in closing is of some significance:

So my submission about that is that the miracle is that this child has done so well to date. Both parents get credit for that. Yes, the arrangement could continue. We have our reservations about, in the longer term, how well that would work out but moreover my submission is we have a very strong set of reasons for wanting to relocate and have the child live with us primarily in [the town] (ts 29/6/10: 70).

106 I am not persuaded that his Honour failed to take into consideration any relevant factor or evidence that he was bound to consider, or that he otherwise erred, as alleged in ground 12.

108 Ground 13 alleges that the magistrate failed properly to consider the recommendations of the family consultant.

109 His Honour referred to a meeting on 20 March 2009 between the parties and Family Consultant Burke, as follows:

Mr Burke made the following observations, after hearing that according to [the appellant], [J] was returning home with stomach aches after spending time with his father.

• The Consultant spoke with both parents together regarding their apparent lack of trust in the parental relationship and also the probable causes of the physical symptoms that [J] had recently presented with. The Family Consultant suggested that [J] should be able to speak with the parent he is not currently with for a few minutes prior to going to bed each night.
• Unfortunately after spending two hours with the Consultant the time for the conference expired and Mr Burke suggested a further conference. [The appellant] expressed a willingness to attend another CDC whilst [the respondent] indicated a belief that he did not believe that anything could be achieved by this and wished to have the matter heard in Court.
• If the parents are not able to work together to improve the parental relationship and to assist and encourage [J] to have a meaningful relationship with each parent, then it may be appropriate to resist increasing the amount of time [J] spends with his father at this time [19].

110 The recommendation of the Family Consultant to the effect that it may be appropriate to resist increasing the amount of time J spends with the respondent was made in March 2009, before Magistrate Andrews made the orders which increased the amount of time J spent with his father. See [100] above.

111 The Family Consultant did not make any recommendation which related specifically to the application to relocate.

112 His Honour found that, although there was some evidence that the parties complain about inflexibility and intimidation between themselves, there was nothing to suggest that J was 'in any need or any danger in respect of physical or psychological harm' [70]. His Honour added:

Whilst the Court gets different views on his stomach upsets, for example, it is clear that they were being attended to by each parent but again because of the inability to communicate problems surfaced. This is not a factor in this case [70].

113 I am not persuaded that it should be inferred that his Honour failed properly to consider any recommendations of the Family Consultant that he was bound to consider.

115 Ground 14 alleges that the magistrate erred in accepting the existence of the respondent's 'health problems' in that they do not preclude him from 'his ability to care for [J]' even though they 'do present as a problem for travel'.

116 In a letter dated 27 May 2010, which his Honour received in evidence, Professor Allan Kermode, the respondent's managing neurologist, said:

[The respondent] has the condition multiple sclerosis which has been characterised by lower limb symptoms and signs. This includes distal lower limb dysaesthesia and Ekbom's syndrome. As a result of this neurological disturbance prolonged sitting can be painful and difficult as it provokes and produces significant pain and discomfort in both legs.

Multiple sclerosis is an illness characterised by relapses and remissions, and [the respondent] is currently receiving immunotherapy which can assist in holding exacerbations and deterioration (GAB 351).

If the Court allows [the appellant] to relocate to [the town] then obviously [J] is going to spend less time with his father. There is no doubt that this would cause him a considerable concern. Maintaining a regular contact with his father would require extensive periods of time driving in a motor vehicle on a regular basis. There is also the difficulty expressed by [the respondent] with his medical condition which does not allow him to sit for extended periods. If he were to travel to and from [the town] for contact periods then it is likely that the trip would extend beyond five hours because he indicated he would need to have regular stops [76].

118 A little later in his reasons, his Honour said that although there is 'some concern' as to the respondent's health there is, with multiple sclerosis, little certainty as to prognosis. He then said there was no evidence to suggest that, at this stage or even into the immediate future, the respondent will not be able to meet J's needs [97].

119 I am not persuaded that his Honour made the error alleged in ground 14.

121 Ground 15 alleges that the magistrate erred in deciding that it would not be in J's best interests to change schools as a result of several issues, including:

122 The respondent gave evidence that J had established friends in Perth through pre-primary and primary school. He regularly attends birthday parties and other activities in the area of Perth where he lives. He has a wide range of friends [40]. His Honour summarised other evidence which the respondent gave:

Insofar as education is concerned, [the respondent] argues that [the appellant's] proposal to enrol [J] at [the town] Primary School is not in his best interests. He argues that [J] is doing particularly well at [the Perth school] and that the parties selected that school because of its educational excellence. He suggests that [the town] Primary School is not as good a school and also the fact that [J] would be required to travel extensive distances from the maternal grandmother's home to and from school. He says that this is opposed to the very short trip from his home to [the Perth] Primary School [40].

123 His Honour referred to the appellant's evidence in relation to schooling, as follows:

For similar reasons [the appellant] believes that [J] should be enrolled at [the town] Primary School and do the extra travelling given that once they move into the new home he will be very close to that same school. She acknowledges that [the Perth] Primary School is a good school but she also takes the view that [the town] Primary School also would be most suitable to [J's] needs.

...

She mentions that initially [J] will catch a school bus to [the town] Primary School which is a usual procedure for country children [49].

In relation to the issue of schooling evidence was led as to the comparison between [the Perth] Primary School and the projected primary school that [J] would attend in [the town]. There can be no doubt that [J] is progressing very well at his present school but similarly there is no evidence to suggest that he would not continue to make that progress at [the town] Primary School [86].

125 His Honour also found that there was no doubt that J was 'thriving' in his present circumstances and was progressing well at his current school [109]. His Honour then said:

He has friends that he has built up through pre-primary and primary school and he would need to re-establish this friend base if he were to travel to [the town] to live [109].

126 I am not persuaded that his Honour made the error alleged in ground 15.

128 Ground 16 alleges that the magistrate erred in relation to 'his consideration of the [appellant's] future employment'.

129 His Honour found in relation to the appellant's employment:

There can be no doubt that if she had so chosen [the appellant] with her qualifications could have obtained employment in the metropolitan area. Her argument that she needs to travel to [the town] to obtain employment is not accepted by the Court. Given the amount [of time] that [J] spends with his father there is ample scope, in this Court's view, for her to attain similar employment in Perth [109].

130 As I have mentioned, the case was conducted before his Honour on the basis that the appellant would remain in Perth if she was not permitted to relocate.

131 His Honour's finding in relation to the appellant's ability to obtain employment in the Perth metropolitan area, in the context of the basis on which the case was conducted before him, was, in the circumstances, a sufficient finding of fact. His Honour's fact-finding was not vitiated by any material error.

133 Ground 17 alleges that the magistrate erred in determining that J could not continue his involvement with his Latvian heritage if he was living in the town.

134 His Honour found in relation to J's Latvian heritage:

In relation to cultural matters I believe that this is an important aspect in this case. [J] has a Latvian heritage and evidence was led in relation to his learning the Latvian language and being able to speak same on a regular basis at home. He was also involved with the Latvian community at festivals and the like. This is a matter that cannot be discounted and, in this particular case, if he were to live in [the town] his involvement with his culture and heritage would be much limited and because, for example, he would not be able to speak the Latvian language on a regular basis. I think it is important that he continue to be made aware of his cultural heritage. This would also include trips to Canada from where his Latvian heritage stems [91].

135 His Honour also found that 'the cultural aspect of the Latvian heritage ... would be to an extent severed' if J were predominantly to reside in the town [109].

136 His Honour did not find, as alleged in ground 17, that J 'could not continue his involvement with his Latvian heritage' if he was living in the town. The finding was, as I have mentioned, that there would be a severance 'to an extent'.

137 The relevant findings of his Honour were reasonably open on the evidence.

139 Ground 18 alleges that the magistrate erred in assuming that J would spend only some holiday periods with his half-sibling (that is, the unborn child) and this is a further indication of his Honour's 'lack of consideration for the implications his decision would bring' as asserted in ground 5.

140 I have already decided that ground 5 is without merit.

141 His Honour found that 'given [the appellant's] stance' in relation to relocation, 'an order that prevented relocation would not prevent [J] having a meaningful relationship with his half-sibling and that [J] could spend time during holiday periods with his half-sibling' [109].

142 His Honour did not make the error alleged in ground 18.

144 For these reasons, I joined in the order dismissing the appeal.

145 On 4 November 2010, when the court made the order dismissing the appeal, the respondent applied for an order that the appellant pay his costs of the appeal. The appellant opposed the application. The parties have filed written submissions.

146 Section 237 of the Family Court Act makes provision with respect to the costs of proceedings under the Act. It provides, relevantly:

1. Costs - FLA s 117

(1) Subject to subsection (2) and sections 205SB, 237A and 242, each party to proceedings under this Act is to bear the party's own costs.

(2) If, in proceedings under this Act, the court hearing the proceedings is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (3), (5) and (6) and in accordance with any relevant rules, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court thinks just.

(3) In considering what order (if any) should be made under subsection (2), a court must have regard to -

(a) the financial circumstances of each of the parties to the proceedings;

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of a court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether a party to the proceedings has made an offer in writing to another party to the proceedings to settle the proceedings and the terms of any such offer; and

(g) such other matters as the court considers relevant.

147 In T v L [2006] WASCA 46(S), this court (McLure JA, Malcolm CJ & Murray AJA agreeing) proceeded on the basis that s 237 applied to an appeal brought under s 211(3) of the Family Court Act. Section 210A(2), which confers a right of appeal to this court in respect of the non-federal jurisdictions of the Magistrates Court and s 211(3), which confers a right of appeal to this court in respect of the non-federal jurisdictions of the Family Court of Western Australia, are contained in pt 7 of the Act. Part 7 does not make any provision with respect to the costs of appeals, although s 210A(11) (but not s 211) does refer to applications of a procedural nature, including applications for security for costs in relation to an appeal, in enumerating those applications which may be heard and determined by a single judge or by this court.

148 Section 237 refers to 'proceedings under this Act'. The word 'proceedings' is defined in s 5(1) to mean, unless the contrary intention appears:

[A] proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connection with a proceeding.

149 There being no provision in pt 7 with respect to the awarding of costs, s 237 is applicable to an appeal under s 210A(2). An appeal under s 210A(2) is within the expression 'proceedings under this Act' appearing in s 237.

150 In Penfold v Penfold [1980] HCA 4; (1980) 144 CLR 311, the High Court considered s 117 of the Family Law Act, which is comparable to s 237 of the Family Court Act. Stephen, Mason, Aickin and Wilson JJ said, as to the relationship between s 117(1) and s 117(2):

It is an accurate description of s 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s 117 (2). As sub-s (1) is expressed to be subject to sub-s (2), the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.

Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s 117 (2) in 'a clear case' (315).

Their Honours then noted that s 117(2) does not, as a matter of law, require the judge to specify the circumstances which justify the making of an order (315).

151 Sections 205SB, 237A and 242, which are referred to in s 237(1), are not relevant to the respondent's application for costs. Also, s 237(5) and (6), which are referred to in s 237(2), are not relevant.

152 In the present case, the respondent has submitted that the appellant should be ordered to pay him the following amounts:

(a) legal fees of $1,331.76 which he incurred in obtaining advice from lawyers as to his prospects of success and 'advice on direction and argument';

(c) motor vehicle and parking expenses of $90.45; and

(d) compensation for lost salary as a result of his having taken 'the equivalent of nine working days off work for this matter'.

153 Neither the appellant nor the respondent was at any material time represented in the appeal by a lawyer. In these circumstances, it is not appropriate to recompense the respondent for legal fees as a disbursement.

154 It is not reasonable in the circumstance to award compensation to the respondent for lost salary as a result of time '[taken] off work to prepare submissions and attend upon the court'.

155 It is reasonable, however, to order that the appellant pay any disbursements incurred by the respondent in or incidental to the appeal, to the extent such disbursements were reasonably incurred and are reasonable in amount, to be taxed if not agreed. But, as I have indicated, these disbursements are not to include legal fees or compensation for lost salary or time '[taken] off work'.

156 As to the factors referred to in s 237(3):

(a) the amount of the disbursements recoverable by the respondent will be relatively modest and there is nothing in the material before this court which indicates that the order would place an undue burden on the appellant having regard to her financial circumstances;

(b) there is nothing in the material which indicates that either of the parties is in receipt of legal aid;

(c) neither of the parties has misconducted him or herself in the appeal;

(d) the appeal was not necessitated by the failure of either party to comply with previous orders of the court;

(e) significantly, for the purposes of the order I propose, the appellant has been wholly unsuccessful in the appeal;

(f) the material before this court does not indicate that either party made an offer in writing to the other party to settle the appeal; and

(g) there are no other matters which I consider are relevant to the making of the order I have proposed.

157 In my opinion, there are circumstances that justify this court making an order for the payment of disbursements in the terms I have mentioned, those circumstances being the absence of any success by the appellant in the appeal and the absence of any factors referred to in s 237(3) which militate against that conclusion.

158 NEWNES JA: The reasons published by Buss JA reflect the reasons I joined in dismissing the appeal.