Dymas & Alton [2025] FedCFamC1A 194 (30 October 2025)

Durham v Durham (2011) 80 NSWLR 335; [2011] NSWCA 62

Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17; [2004] FCAFC 189

Folette & Langley (2016) FLC 93-738; [2016] FamCAFC 191

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

Gillespie & Gillespie (2024) FLC 94-191; (2024) FLC 94-191

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

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

Hahn & McGowen [2024] FedCFamC1A 215

Hand & Bodilly [2013] FamCAFC 98

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

Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

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

Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand (2008) 237 CLR 66; [2008] HCA 42

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

Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61

Milliford & Milliford [2019] FamCA 128

Moore (a pseudonym) v The King (2024) 419 ALR 169; [2024] HCA 30

Scrymegeour & Scrymegeour (2014) FLC 93-600; [2014] FamCAFC 130

Sofia & Treacy (No 2) (2025) FLC 94-236; [2025] FedCFamC1A 10

Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Aldisert, Ruggero, Opinion Writing, (West Publishing, 1990)

1. Appeal NAA18/2025 be dismissed.
2. The appellant pay the respondent's costs of the appeal, fixed in the sum of $11,052.25, within 90 days.

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

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

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

1. This is an appeal from final parenting orders made by the primary judge on 11 December 2024 ("Orders").
2. The appellant mother and the respondent father commenced cohabitation in 2015 and separated in 2020. There is one child of their relationship, born in 2019 ("child"). After separation, the child lived with the appellant and spent time with the respondent, albeit not without difficulties between the parties. Parenting proceedings were instituted by the respondent in mid-2021.
3. The mother has since re-partnered and there is one child of that new relationship.
4. The trial of the proceedings took place in November 2023, prior to the commencement of the Family Law Amendment Act 2023 (Cth) and, accordingly, they were determined in accordance with the provisions of the Family Law Act 1975 (Cth) ("Act") prior to the amendments thereto effected by the amending legislation.
5. Relevantly, the Orders provided, inter alia, for the parties to have equal shared parental responsibility for the child; for the appellant to be restrained from relocating the child's place of residence from New South Wales to Queensland; for the child to live with the appellant; and for the child to spend increasing time with the respondent, ultimately, by the time of the hearing of the appeal, from Wednesday afternoon until Monday morning in each alternate week, for one half of all school term and long summer holidays, and on special occasions.
6. A central issue in the case was the appellant's application to relocate the child with her to Queensland. Her new partner is a tradesman, employed by a company of which his father is the chief executive officer. He received and accepted a promotion which, it was contended, required him to transfer his employment to Queensland.
7. For the reasons herein, the appeal will be dismissed. Section 36(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) relevantly provides that if, in dismissing an appeal, the appellate Court is of the opinion that the appeal does not raise any question of general principle, it may give its decision in short form. This appeal does not raise any such question and, accordingly, these reasons for judgment are in short form (notwithstanding the length thereof), addressing only those issues which I consider require comment.

1. In Moore (a pseudonym) v The King [2024] HCA 30; (2024) 419 ALR 169 at [14]-[15], the plurality of the High Court said:

[14] Two standards of appellate review of first instance judicial determinations are of present relevance, namely what has come to be referred to as the correctness standard and a "House v R" standard involving judicial restraint affording latitude to a trial judge. Under the correctness standard, the appellate court determines for itself the correct outcome while making due allowance for such "advantages" as may have been enjoyed by the judge who conducted the trial or hearing. With House v R, appellate intervention is limited to circumstances where the trial judge: acted upon a wrong principle, or allowed extraneous or irrelevant matters to affect the decision; mistook the facts; failed to take into account some material consideration; or made a decision that was unreasonable or plainly unjust. These grounds for intervention contemplate the appellate court accepting that intervention is not warranted even though the members of the appellate court may have decided the matter differently to the judge at first instance, a circumstance that is reflected in the language adopted by the Court of Appeal in this case when it described the trial judge's conclusion as "open" to his Honour.

[15] The basis for intervention identified in House v R was expressed to be dependent upon the subject matter of the appeal, being the exercise of a judicial "discretion". House v R was an appeal against the imposition of a sentence of three months imprisonment for an offence under the Bankruptcy Act 1924 (Cth). While what constitutes a "discretionary decision" in this context can be ambiguous, in essence it refers to the circumstance where the decision maker is allowed "some latitude as to the choice of the decision to be made". A determination of which standard of review is applicable does not depend on whether the reasoning to be applied is evaluative or in respect of which reasonable minds may differ. Instead, the determination turns on whether the legal criterion to be applied "demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v R standard applies".

(Footnotes omitted) (As per the original)

1. This is an appeal from a discretionary decision. Accordingly, error of the type identified in House v The King (1936) 55 CLR 499 at 504-505 must be established. There, the majority of the High Court said:

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

1. The appellant's Notice of Appeal contains 14 grounds of appeal, some with numerous sub-grounds. In her Summary of Argument, the appellant abandoned one ground (Ground 11) and, in the course of the hearing of the appeal, another ground of appeal was abandoned (Ground 6). Further, in her Summary of Argument, in several instances, various related grounds of appeal were addressed together, possibly because of their repetitious nature, and the hearing of the appeal proceeded accordingly. Nevertheless, it is apposite to recall that in Scrymegeour & Scrymegeour [2014] FamCAFC 130; (2014) FLC 93-600 at [24], Ryan and Austin JJ referred to the decision of McHugh J in Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 (at [70]), where his Honour said (citing Ruggero Aldisert, Opinion Writing, (West Publishing, 1990) at p.89) that, where there is "an appellant's brief containing seven to ten points or more, a presumption arises that there is no merit to any of them" (emphasis in original). Those observations are salient in this appeal. In Scrymegeour at [25], their Honours also referred to the decision of Campbell JA in the NSW Court of Appeal in Durham v Durham [2011] NSWCA 62; (2011) 80 NSWLR 335 at 353, with whom Tobias and Young JJA both agreed at p.341 and p.353, to similar effect. See also Sofia & Treacy (No 2) (2025) FLC 94-236 at [11].
2. The remaining grounds of appeal (with manifest typographical and grammatical errors corrected) are as follows:

(1) The Court erred in making the following findings of fact and did not have sufficient evidence to do so:

(a) Paragraph [100] - that, should the child relocate to Queensland with the appellant, the most likely effect would be that there would be a restriction in her ability to develop and strengthen her relationship with the respondent;

(b) Paragraph [117] - that the appellant's assertions as to family violence did not occur;

(c) Paragraph [139] - that the appellant's proposed relocation to Queensland with the child was an attempt to minimise the influence of the respondent in the child's life;

(d) Paragraphs [104] and [106] - that travel by the child to New South Wales for time with the respondent would cause financial hardship;

(e) Paragraph [109] - that the child's relocation to Queensland would restrict her opportunity to develop a relationship with the respondent and her extended family below what it would have been had she remained living in New South Wales;

(f) Paragraph [113] - that the parties would not have the economic means to effect the appellant's proposal;

(g) Paragraph [115] - that the appellant considered the child's relationship with the paternal grandparents to be secondary to the relationship with her new partner's parents;

(h) Paragraph [117] - that the respondent did not perpetrate family violence as deposed to by the appellant;

(i) Paragraph [140] - that the appellant would not comply with orders for the child to spend time with the respondent should a relocation be ordered and that such non-compliance was mitigated by the child remaining in New South Wales;

(j) Paragraph [140] - that the appellant's new partner may find alternative employment in New South Wales.

(2) The Court failed to give sufficient reasons as to the evidentiary basis upon which the findings of fact outlined in Ground 1 were made.

(3) Having determined that it was not relevant to the exercise of the Court's discretion as to whether the appellant's application for relocation was motivated by an attempt to minimise the influence of the respondent in the child's life, the Court erred in proceeding to make such a finding.

(4) In making the finding of fact outlined in Grounds 1(c) and 3, the Court misdirected itself as to the relevant findings that were to be made when considering the appellant's proposal.

(5) As a consequence of a 13 month delay between the final hearing concluding and judgment being delivered, the appellant was denied procedural fairness because:

(a) at the time of the hearing, there was no suggestion there would be such a significant delay in the delivering of final orders and therefore each party's case was conducted on the basis of a more or less imminent relocation;

(b) the Court did not have evidence before it that might have informed it of the child's current circumstances as at the date of the final orders being made;

(c) the Court could not be satisfied that the final orders that were made, 13 months after the conclusion of the final hearing, could serve the child's best interests given that the Court could not have known of the child's circumstances at that time;

(d) the delay in delivering reasons meant that the Court did not have any evidence before it as to how the child's age, as at the date of the final orders, might impact the evidence before it, including the evidence of the Family Report writer;

(e) had the parties been apprised of the delay that would occur before judgment was handed down, it was open to them to enter into an arrangement where the child spent far more time with the respondent in preparation for a relocation as envisaged by the Family Report writer.

(6) ...

(7) The Court failed to exercise its discretion appropriately, by failing to consider other orders that might appropriately be made outside of the proposals put by the parties that would have ameliorated some of the concerns expressed by the Court.

(8) The Court failed to give sufficient weight to the impact on the appellant's household, and therefore the child, if she was prevented from relocating to Queensland, including how that impacted on the child's best interests.

(9) The Court erred in finding that if it did not make an order for substantial and significant time then it must consider the parties' competing proposals (paragraph [84]).

(10) The Court erred in finding that the only way in which the relationship between the child and the respondent could be developed and strengthened was if the child remained living in New South Wales (paragraph [99] and following)

(11) ...

(12) The Court erred in finding that substantial and significant time could not take place if the child lived in Queensland.

(13) The Court erred and misdirected itself by finding that, once it had made a finding that substantial and significant time was in the child's best interests, a relocation should not be ordered.

(14) The Court failed to give adequate consideration to the impact on the child of having her stepfather live in another state either directly, or through the impact on the appellant and the child's half sibling.

1. Whilst the appellant's Summary of Argument sensibly addressed various related and/or repetitive grounds of appeal together, that document, containing many broad and general submissions, was of little assistance in the determination of her appeal. In Adzic & Adzic [2024] FedCFamC1A 207 at [26], the Full Court said:
   1. It is for the appellant to identify error on the part of the primary judge and then to persuade the appeal court that error has been made. An appellate court cannot be expected to fossick through the broadly expressed contentions and assertions set out in an appellant's Summary of Argument, with a view to identifying a specific and concise ground or grounds of appeal: Newett & Newett (No 2) (2021) FLC 94-051 at [34], quoting Bahonko v Sterjov [2008] FCAFC 30; (2008) 166 FCR 415 ("Bahonko") at [3]. In Bahonko, the Full Court of the Federal Court of Australia said:
      1. Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd [2005] FCAFC 131; (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
2. The grounds of appeal are considered below in the order and combinations in which they are addressed in the appellant's Summary of Argument.

1. These inter-related grounds of appeal contend that the primary judge erred in making a number of findings of fact; did not have sufficient evidence to do so; and failed to give sufficient reasons as to the evidentiary basis upon which such findings of fact were made.
2. Insofar as the appellant asserts a failure by the primary judge to give sufficient reasons, that ground of appeal disregards well established principles in relation to the adequacy of reasons. It is not necessary that a trial judge "mention every fact or argument relied on by the losing party as relevant to an issue": Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62]. See also Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [41] and Hahn & McGowen [2024] FedCFamC1A 215 at [40]. Further, it is not "necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant ... Nor is a judge required to make an explicit finding on each disputed piece of evidence": Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA.
3. In Folette & Langley [2016] FamCAFC 191; (2016) FLC 93-738 at [33], the Full Court said that -

... a trial judge's reasons are not required to mention every fact or argument relied upon by the losing party as relevant to an issue. The duty to give reasons does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceedings. What is necessary is that the essential ground or grounds upon which the decision rests should be articulated.

1. In relation to the findings of which the appellant complains, perusal of the evidence before the primary judge, both in the filed affidavits and in the transcript of cross-examination, makes it apparent that such findings were well open to his Honour and are not errors of fact.
2. By sub-ground 1(a), the appellant seeks to impugn the primary judge's finding at [100] of his reasons for judgment ("reasons") that the likely effect of a change in the child's circumstances by relocating to Queensland "would be that the opportunities for her to spend time with [the respondent] and so being able to develop and strengthen her relationship with him would be necessarily restricted by the tyranny of distance and the practical realities of how often [she] and [the respondent] would be able to spend time together". Not only was that abundantly clear on the evidence, it was also a statement of the obvious. As is apparent from the chronology at [20] of the primary judge's reasons, which is not the subject of challenge, on 14 September 2021, interim orders were made for the child to spend time with the respondent, inter alia, each alternate weekend from 9am on Saturday until 5pm on Sunday and each Wednesday from 9am until 5pm. The appellant's proposal, if granted leave to relocate the child, was that she spend time with the respondent, inter alia, for one weekend per month, from 5pm on Friday until 4pm on Sunday. An interstate relocation would, of necessity, restrict the child's relationship with the respondent; the quantity of time to be spent and the quality of the relationship were inextricably related.
3. By sub-ground 1(b), the appellant seeks to impugn the rejection of the primary judge at [117] of the evidence of the appellant in relation to allegations of family violence said to have been perpetrated by the respondent. Again, that was not an error of fact; rather, it was his Honour preferring the evidence of one witness over the other, having had the quintessential benefit of a trial judge seeing and hearing the witnesses and the testing of their evidence in cross-examination.
4. Further, in circumstances where the appellant was not alleging risk or seeking orders for supervised time, the relevance of those allegations, in the factual matrix of this case, was limited, at best. It is difficult to reconcile the time proposed by the appellant to be spent between the respondent and the child with her allegations of family violence. In Abramsson & Abramsson (No [2025] FedCFamC1A 86; 2) (2025) FLC 94-253 at [34], the Full Court said:

34. We are cognisant of, and in no way minimise, the principles, set out in s 43(1)(ca), to which a court exercising jurisdiction under the Act must have regard; the objects of Part VII, set out in s 60B(a); the matters which the court must consider in s 60CC(2)(a) and (2A); and the directive to the court in s 60CG(1)(b). However, having had regard to, and considered, those prescribed matters, we are of the opinion that whether there is a need for a trial judge then to proceed to make findings about family violence will turn on the facts of each case. This, necessarily, must be informed by a consideration of the circumstances of the case, including the orders advanced by each of the parties. To that end, where parties are each promoting time-spending between a child and both of the parents, without any protective orders aimed at ameliorating risk, it may not be necessary for findings regarding family violence allegations to be made. Conversely, where one or both parties contend that the other parent poses an unacceptable risk of harm, then it is likely, by reason thereof, that findings (where possible) will be required to be made regarding allegations of family violence, because those findings (if capable of being made) will not only inform the assessment of risk (per Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092 at [50]-[51]), but they will also serve to assist in determining what orders would best keep the children safe from harm, including what, if any, protective orders could ameliorate risk. In this regard, we therefore concur with the comments of Austin and Williams JJ in Pickford (at [87]-[91]).

(Emphasis in original)

1. Insofar as the appellant contends, by sub-ground 1(c), that the primary judge erred in fact in finding at [139] that her proposed relocation to Queensland with the child was an attempt to minimise the influence of the respondent in the child's life, again, that finding was well open to his Honour on the evidence. In this regard, the respondent, in his Summary of Argument, correctly points to the evidence of the appellant's actions to restrict and hamper his relationship with the child and her breach of interim parenting orders, including her failure to comply with orders in relation to which preschool the child was to attend.
2. Insofar as the appellant contends, by sub-ground 1(d), that the primary judge erred in fact in finding at [104] and [106] that travel by the child between Queensland and New South Wales to spend time with the respondent would cause financial hardship, that finding was also open to his Honour on the evidence. At [104]-[106], his Honour said:
   1. On the evidence as to the income available in the mother's household from the combined earnings of herself and Mr [Dymas], it is hard to see how the financial impost on the mother of travel by [the child], and for some time by the mother herself, to [New South Wales], when combined with normal household living expenses of the family and any additional costs or loan repayments which may arise from the building of a home on the block of land in [Suburb B] (no evidence available) will not cause some financial hardship for the family
   2. Certainly, the cost of travel by the father to Queensland and accommodating himself and [the child] there for the remaining 8 weekends of the year and half of the school holidays (there may or may not be an overlap contemplated in the mother's orders) until [the child] is in year 5 will be a significant cost burden for the father's household.
   3. These burdens of cost are of minimal significance unless they go on to an effect on the best interests of [the child]. The relevance of the cost burden for the mother's household is the reduced money pool available to meet the family expenses for day-to-day living, with any consequent effect on adequate provision for [the child] - the evidence does not extend to enabling me to make specific findings in this regard. The relevance of the cost burden for the father's household is any effect on his actual ability, in a financial sense, to take advantage of the opportunities to be with [the child] and travel to Queensland and accommodate himself and [the child] there for a weekend, for a week during the Term 2 school holidays and for up to 3 weeks during the Term 4 school holidays.
3. Further, at [59], his Honour recorded that the appellant's new partner, in the course of cross-examination, "indicated that in consequence of his promotion he was receiving a pay rise of 'about 30 grand. I will be getting 80 grand a year'" (emphasis in original).
4. Insofar as, by sub-ground 1(e), the appellant seeks to impugn the primary judge's finding at [109], his Honour there said:
   1. The likely effect of a change in [the child]'s circumstances by having her place of residence relocated to Queensland is to restrict the opportunity to develop a relationship with the father below what it would be if she remained living in [New South Wales], and similarly restrict the opportunity to develop a relationship with her step-family, her paternal grandparents and paternal extended family, and on the evidence, restrict her opportunity to maintain and develop a relationship with her maternal grandparents and maternal extended family. Other than Mr [Dymas]'s family, there is no reliable evidence that would suggest that the mother's family would move or even intend to move to Queensland.
5. As the respondent submits, in his Summary of Argument, the corollary of the appellant's contention is that an interstate relocation would have no impact, or a positive impact, on the child's relationship with the respondent. Unsurprisingly, the appellant could point to no evidence to such effect. To the contrary, that was not the expert opinion of the Family Report writer, whose evidence in her report was summarised (at [79]) by the primary judge to include:
   • "[The child] appears quite comfortable in her father's care. The more time she spends with him the stronger her attachment to him will be. [The child] was observed to be quite comfortable and settled with [the father]."
   • "If [the child] were to move to Queensland now, she would not have the same opportunity to develop her relationship with [the father]. She's unable to maintain a relationship by herself (make phone calls / contact via social media) and would be wholly reliant on [the mother] to facilitate and support the relationship. This is of concern to the writer, as, in [the mother's] words 'we can't even agree on a pre-school'."
6. At [80], the primary judge also referred to similar concerns expressed by the Family Report writer in the course of cross-examination.
7. The primary judge's finding at [109] were amply open to his Honour on the evidence.
8. Insofar as the appellant asserts, by sub-ground 1(f), that (at [113]) the primary judge found that "the parties would [not] have the economic means to affect [sic] the mother's proposal", that is not an accurate or fair representation of his Honour's finding in that paragraph. His Honour, in fact, said:
   1. The practical difficulty and expense of [the child] spending time with and communicating with her father if relocation does occur has been discussed above. Patently such difficulty and expense will substantially affect [the child]'s rights to maintain personal relations and direct contact with both parents on a regular basis. On the economic reality of the circumstances of both households, so far as is revealed on the evidence, it cannot be otherwise. It is all very well for the parent who wishes to relocate to propose a schedule of frequent time between the child and the other parent, but whether or not that schedule can be maintained in practice can be a whole different thing and in this matter it is certainly not plain that the economic realities will allow the schedule as suggested by the mother to be maintained, even limited as it is compared to what is suggested by Ms [W] as a preferred regime of increasing time between [the child] and the father.
9. It is therefore apparent that the primary judge did not find at [113] that the parties would not have the economic means to facilitate time with the frequency which the appellant proposed if permitted to relocate the child to Queensland; rather, his Honour gave cogent, practical reasons for being cautious about the capacity of each parent to meet the cost of extensive interstate travel.
10. Insofar as the appellant seeks to impugn, by sub-ground 1(g), the primary judge's finding at [115] that the appellant considered that child's relationship with her paternal grandparents to be "very much secondary to and significantly less important" than child's relationship with her new partner's parents, again, that finding was open to his Honour on the evidence. Properly distilled, the appellant's complaint is not that there was no evidence to underpin that finding; rather, the appellant is merely dissatisfied with the finding.
11. Sub-ground 1(h), in relation to the primary judge's rejection of the appellant's allegations of family violence by the respondent, is merely duplicative of sub-ground 1(b), which has been addressed above.
12. The appellant contends, by sub-ground 1(i), that the primary judge wrongly found at [140] that she would not comply with orders for the child to spend time with the respondent, should a relocation be ordered, and that such non-compliance was mitigated by the child remaining in New South Wales. Again, that contention does not do justice to what his Honour relevantly said in that paragraph, namely:

The chance of the mother failing to comply with Court Orders, presenting excuses, reasonable or otherwise to not comply with Court orders, made very real by the mothers previous conduct and her attitude to the father's relationship with [the child], is far less when the parents live in proximity then if there is the tyranny of distance where consequent travel requirements and costs are involved.

(Emphasis added)

1. In the preceding paragraph (at [139]), his Honour, in considering the disadvantages of the appellant's proposed relocation, recorded that the appellant had "indicated her willingness to disregard Court Orders". Earlier, at [41], his Honour cited from the transcript where the appellant conceded in cross-examination that, "as a person who has breached orders of the Court, that [she is] somebody who other people involved in this matter might regard as very difficult to trust".
2. Accordingly, the finding of which the appellant complains, when viewed in proper context, was well open to his Honour and his reasons therefor are patently apparent.
3. Lastly, insofar as the appellant seeks to impugn, by sub-ground 1(j), the primary judge's finding at [140] that her new partner "may find alternative employment in the [New South Wales] area in his chosen occupation" (emphasis added), that complaint ignores his evidence, to which his Honour referred at [60], namely:
   1. Mr [Dymas] confirmed during his cross-examination that he was qualified to obtain a [trades] licence, however whether or not he was qualified to obtain a [trades] licence in New South Wales, Queensland or both was not clarified, though noting that on the evidence he has not worked in Queensland as a [tradesman]. He was asked by Mr Livingstone, "So you don't even know whether or not the offer that has been made by your father to relocate yourself, your wife, your child, your step-daughter to another state is even worth more than the contract that you would get working under your award with a company down here in the state of New South Wales", to which he replied "yes"

1. Further, the appellant's new partner gave evidence, in cross-examination, that he worked as a tradesman in New South Wales and that he had worked for his father's company there for 11 years.
2. In the circumstances, the primary judge's finding that the appellant's new partner might find alternative employment in New South Wales, in his chosen occupation, was well open to him and his Honour's reasons for so finding are readily apparent.
3. Grounds 1 and 2 fail.

1. These grounds of appeal are inter-related. The appellant's Summary of Argument refers to and focuses on [139] of the primary judge's reasons and contends that, having determined that it was not relevant to the exercise of his discretion whether the appellant's application for relocation was motivated by an attempt to minimise the influence of the respondent in the child's life, his Honour erred in proceeding to make such a finding and misdirected himself as to the relevant findings that were to be made when considering the appellant's relocation proposal.
2. At [139], the primary judge relevantly said:

• There was a suggestion in the father's case that the arrangement of the move to Queensland by Mr [Dymas]'s parents, followed by Mr [Dymas], the mother with [the child] and [Y] is in the nature of a plot to move [the child] far away from the father so as to eliminate the disruption he presents to their lives. The orders sought by the mother for time between [the child] and the father even if she does relocate, are against this suggestion, and in any case, once again, the evaluation of the motives of the parents is not the point - the best interests of [the child] is the point and so I give no regard to this concept in determining what orders are properly to be made in the best interests of [the child].

• The recommendations and opinions expressed in both her Report and the cross-examination of Ms [W] are against the relocation of [the child]. The evidence given by Ms [W] that a period of about 6 months elapse before any such move occurs, with increased time between [the child] and the father during those 6 months was an opinion expressed about what should happen in the event that the Court determines that the relocation is in [the child]'s best interests, not a dropping or lessening of Ms [W]'s opinion that such a move is not in [the child]'s best interests. That said, I do find that, on the mother's part, the proposed relocation of [the child] to Queensland is an attempt to minimise the influence of the father on [the child]'s life. It is a continuation of the mother's actions in that regard on several occasions since separation.

3. When properly parsed, it is evident that his Honour rejected the strand of the respondent's case that the arrangement of the move to Queensland was "in the nature of a plot" to move the child away from the respondent. The primary judge found that the orders sought by the appellant for time to be spent between the respondent and the child, in the event of relocation, militated against such a "plot".
4. However, that is not inconsistent with his Honour's finding, in the subsequent sub-paragraph, that the appellant's proposed relocation of the child to Queensland was an attempt to minimise the respondent's influence on the child's life, being merely a continuation of her actions in that regard on several occasions since separation.
5. The relocation was not a singular plot; the primary judge found that it was something not as malevolent as that. Rather, it was merely part of a continuum of events since separation, the finding of which was clearly open to his Honour on the evidence. Indeed, in oral submissions, Senior Counsel for the appellant conceded that a "plot" involved a higher scope for mala fides.
6. Further, insofar as the primary judge correctly held that what is relevant is not an evaluation of the motives of the parents but, rather, an evaluation of what is in the best interests of the child, that does not preclude, in that exercise, consideration of past conduct. In this case, the appellant's actions, on several occasions since separation, in attempting to minimise the respondent's involvement in, and influence on, the child's life, made such a finding perfectly open to his Honour. In oral submissions, Senior Counsel for the appellant conceded that the attitude of the proposed relocating parent to the other parent and to the child's relationship with that other parent is "pretty critical".
7. Grounds 3 and 4 fail.

1. This ground of appeal contends that, as a consequence of the 13-month delay between the conclusion of the trial, on 16 November 2023, and the delivery of judgment, on 11 December 2024, the appellant was denied procedural fairness in several respects. However, as drawn, the ground of appeal is more a litany of complaints, rather than a proper ground of appeal.
2. The general principle is that delay, in and of itself, is not a ground of appeal, nor does it lead to procedural unfairness as a matter of course; however, it may lead a court of appeal to scrutinise the trial judgment more carefully.
3. In Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17 at [69], the Full Court of the Federal Court said:
   1. Delay between the taking of evidence and the making of a decision is not, of itself, a ground of appeal, unless the judge could no longer produce a proper judgment or the parties are unable to obtain from the decision the benefit which they should (cf Boodhoo v Attorney-General of Trinidad and Tobago [2004] UKPC 17; [2004] 1 WLR 1689 at [11]- [12]). Nor does such delay of itself indicate that a trial has miscarried or that a verdict is in any manner unsafe. However, where there is significant delay in giving judgment, it is incumbent upon an appellate court to look with special care at any finding of fact challenged on appeal. In ordinary circumstances, where there is a conflict of evidence, the trial judge who has seen and heard the witnesses, has an advantage.
4. In Manifold & Alderton [2021] FamCAFC 61; (2021) FLC 94-015 at [37], the Full Court held that "the focus is not on the delay per se, but the failure by the primary judge to take relevant matters into account, to engage with the [appellant's] case and with the evidence, and to provide adequate reasons for [his or] her conclusions".
5. In Folette & Langley, an appeal was unsuccessful after a 16-month delay in judgment because the primary judge invited the parties to reopen the evidence prior to delivery of judgment and neither party took up that invitation. True it is that, in the present case, the primary judge did not proffer such an invitation; however, that is not to say that, with the passage of time, and the increasing delay, the appellant could not have made such an application.
6. In the present case, the complaint of delay, which complaint, of itself, is not unreasonable, is not directed, for example, to the alleged errors of fact. Rather, it is asserted that the delay of nearly 13 months gave rise to a miscarriage of justice.
7. The complaints in the sub-paragraphs of Ground 5, as partly expanded upon in the appellant's Summary of Argument, can be answered in short compass. The parties were aware of the passage of time and the delay of the primary judge in the delivery of judgment. The appellant could not sit back, await judgment and, if dissatisfied, appeal on the ground that his Honour's delay denied her procedural fairness. In oral submissions, Senior Counsel for the appellant said, albeit from the Bar table but without objection, that whilst an approach had been made to the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2), by reason of the primary judge's delay in delivering judgment, no application for leave to re-open the case was made. If the appellant was troubled by the matters which she particularises in Ground 5, she could have made an application to re-open the case; however, she did not do so. Had she made such an application, and leave to re-open been refused, notwithstanding the delay in the delivery of judgment and the attendant passage of time, then the appellant may have had a ground of appeal in this regard. However, that is not the case. None of this is to say that the primary judge's unexplained 13-month delay is to be condoned; it is not.
8. In the circumstances, Ground 5 fails.

1. This ground of appeal (which was originally argued in the appellant's Summary of Argument jointly with Ground 6, which was subsequently abandoned) contends that the primary judge erred in finding that, if he did not make an order for substantial and significant time, then he was required to consider the parties' competing proposals (referring to [84]).
2. What his Honour in fact said at [84] was:
   1. If I do not make an order for the child to spend substantial and significant time with each parent, I must consider the parties' competing proposals and make such parenting orders as I think proper - s65D.
3. His Honour correctly stated the law, as it then stood. Section 65D(1) of the Act then relevantly provided:

(1) In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

1. Section 61DA(1) of the Act then relevantly provided:

(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.

Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

1. Section 65DAA(1)-(2) of the Act then relevantly provided:

(1) Subject to subsection (6), 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.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend equal time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

(2) Subject to subsection (6), if:

(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;

the court must:

(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.

Note 1: The effect of section 60CA is that in deciding whether to go on to make a parenting order for the child to spend substantial time with each of the parents, the court will regard the best interests of the child as the paramount consideration.

Note 2: See subsection (5) for the factors the court takes into account in determining what is reasonably practicable.

1. His Honour's recitation of the law at [84] was entirely orthodox and unremarkable. As s 65D(1), to which his Honour referred, provided, in proceedings for a parenting order (which the proceedings before his Honour were), he could make such parenting order as he thought proper, subject to s 61DA and, by reason thereof, s 65DAA.
2. The appellant's reliance upon Goode & Goode (2006) FLC 93-286 is misconceived. At [82(i)]-[(j)], the Full Court said:

(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; ...

1. That is effectively what his Honour said at [84].
2. In any event, his Honour found that it was in the child's best interests to spend "substantial and significant time with both parents" (at [132]) and that such an arrangement would have a beneficial impact upon her "in that she could maintain her excellent meaningful relationship with her mother, while also having the opportunity to develop, strengthen and deepen a meaningful relationship with her father" (at [135]), rendering the appellant's complaint regarding what his Honour said at [84] moot.
3. Ground 9 fails.

1. This ground of appeal contends that the primary judge failed to exercise his discretion appropriately, by failing to consider other orders that might appropriately be made outside of the proposals put by the parties that would have ameliorated some of the concerns expressed by his Honour.
2. The appellant correctly submits that, as s 65D(1) then provided, in proceedings for a parenting order, the Court might (subject to s 61DA and, by reason thereof, s 65DAA) make such parenting order as it thinks proper, but is not bound by the proposals of the parties.
3. However, although the Court is not bound by those proposals, it could not order, for example, that a child live with one parent, if it considers that to be in the child's best interests, when such order is not sought by that parent. Rather, the parties' proposals define the parameters of the issue, within which the outcome is not binary. Metaphorically, the parents' proposals are the proverbial goal posts at the opposite extremities of the football field within which the match between them takes place; where the ball lands within that field, and whether a goal or a point is scored, is unknown by them, but, to be considered, the ball must not land out of bounds. That said, it is not for the Court, of its own motion, and without orders sought or submissions made by either or both of the parties, to divine a solution itself.
4. Ground 7 fails.

1. These inter-related grounds of appeal contend that the primary judge failed to give sufficient weight to the impact on the appellant's household, and therefore the child and her best interests, if the appellant were prevented from relocating to Queensland and, related to that, that his Honour also failed to give adequate consideration to the impact on the child of having her stepfather live in another state, either directly or through the impact on the appellant and the child's half sibling.
2. The difficulty of challenging a trial judge's attribution of weight on appeal is well established. As Latham CJ said in Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 at 519 (cited with approval by Gibbs CJ in Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605 at 614):

In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion ... unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.

1. In Gronow v Gronow (1979) 144 CLR 513, Stephen J explained, at 519-520 that:

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

1. As the weight or importance given to evidence is a matter quintessentially for the primary judge, Kirby J said in CDJ v VAJ (1998) 197 CLR 172 at 230-231 that an appellant would have to show that the primary judge was "plainly wrong".
2. Importantly, as was identified by the High Court in 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:
   1. ... when a court is invited to make a discretionary decision, to which many factors may be relevant, it is incumbent on parties who contend on appeal that attention was not given to particular matters to demonstrate that the primary judge's attention was drawn to those matters, at least unless they are fundamental and obvious.
   2. The alternative approach would permit a party to run one case before the primary judge and different cases on however many levels of appeal were open. Where it is said on appeal that a primary judge was in error in not taking into account a particular consideration "expressly", even though it was not explicitly submitted to the primary judge that it should be, a benevolent construction of the primary judge's reasons will often reveal, by a process of inference and implication, that the relevant consideration was borne in mind, even though it was not stated in as clear-cut a way as an appellate court, dealing with a hostile submission by one party not put nearly as distinctly, or at all, to the primary judge, might prefer.
3. At [138]-[139] of his reasons, the primary judge considered the advantages and disadvantages of the appellant's proposed relocation to Queensland. At [140]-[141], his Honour considered the advantages and disadvantages of the respondent's proposal, "taking it is inherent in those orders that [the child] does not relocate to Queensland with the mother" (at [140]). In particular, in relation to the disadvantages of the respondent's proposal, his Honour relevantly said at [141]:
   • If the mother does not relocate [the child]'s residence to Queensland, there is a distinct possibility of unhappiness, frustration and resentment on the part of the mother and Mr [Dymas] which may have an effect on the harmony of their relationship and on their household, with the possibility of consequent detrimental effect on the mother's parenting of [the child]. The mother's freedom to live where she chooses is inhibited, with flow on effect to Mr [Dymas].
   • Mr [Dymas] may pursue his employment in his father's company and be absent in Queensland for periods of time of the working week or more, and the consequent possible effect upon the mother and Mr [Dymas]'s relationship.
4. Further, at [112], the primary judge earlier also said:
   1. If the father is successful and [the child]'s place of residence is not changed to Queensland, and even if she remains in the mother's primary care and spends time with the father, her circumstances will be changed in that she will in all likelihood be living in a household where there is unhappiness and even resentment on the part of the mother and Mr [Dymas] having been thwarted in their aim of moving to Queensland.
5. It is, therefore, readily apparent that the primary judge considered the advantages and disadvantages of each party's case. The appellant is not able to show that his Honour failed to "properly consider" these matters; rather, her complaints, explicitly in Ground 8 and implicitly in Ground 14, are merely ones of weight, which her Senior Counsel sensibly and correctly conceded, in oral submissions, are not a ground of appeal.
6. Grounds 8 and 14 fail.

1. This ground of appeal contends that the primary judge erred in finding that the only way in which the relationship between the child and the respondent could be developed and strengthened was if the child remained living in New South Wales, referring to [99] "and following" [sic].
2. The appellant's Summary of Argument is of little assistance in relation to this ground of appeal and was not elucidated to any worthwhile extent in oral submissions.
3. Although couched as an asserted error of fact, it appears to be more a complaint as to weight. However, as a factual finding, it was entirely open to his Honour on the evidence, noting that a relocation was not supported by the Family Report writer.
4. At [79] of his reasons, the primary judge referred to the Family Report and noted, from the "evaluation" section therein, inter alia, as follows:
   • If [the child] spends substantial and significant time in Mr [Alton]'s care, and her experience is that of a warm, loving and responsive parent, [the child]'s attachment to him will grow and she will come to understand the difference between a biological and psychological parent. [The child] appears quite comfortable in her father's care. The more time she spends with him the stronger her attachment to him will be. [The child] was observed to be quite comfortable and settled with [the father].

• ...
  • If [the child] were to move to Queensland now, she would not have the same opportunity to develop her relationship with Mr [Alton]. She is unable to maintain a relationship by herself [make phone calls/ contact via social media] and would be wholly reliant on [the mother] to facilitate and support the relationship. This is of concern to the writer, as, in [the mother's] words, "we can't even agree on a pre-school".
• (Footnotes omitted) (Emphasis in original)

1. At [80], the primary judge noted, inter alia, the following matters from the cross-examination of the Family Report writer:
   • When asked by Mr Livingstone if her recommendation was that the relocation of [the child] to Queensland not take place, Ms [W] said "yes". Ms [W] confirmed that amongst her reasons for the recommendation were [the child]'s age, her attachment to her father and members of the father's family, and the importance of those matters to [the child]. Ms [W] also confirmed that she recommended that [the child]'s time with the father be increased.

• ...
  • Ms [W] agreed with Mr Richardson that the fact of the mother being [the child]'s primary carer bears upon whether the relocation to Queensland is in [the child]'s best interests, but then agreed with me that it was only one of the relevant reasons amongst many.
  • Mr Richardson informed Ms [W] that if the mother remains in [New South Wales] with both children, the evidence was that Mr [Dymas] would travel back and forth to Queensland for work, and asked Ms [W] if such circumstances would impact the mother's family unit. Ms [W] said it would, and when asked how, said, "on many levels. So there would not be the day-to-day interaction between both of the girls - [the child]and [Y], and Mr [Dymas], day-to-day interaction between the mother and her new husband, but it's manageable - people do it. And I guess it's a choice that they're making. I guess the only thing I can say is that the children are the ones that don't have a choice." When asked if that would be an overall negative experience for [the child], Ms [W] answered:

I wouldn't say an overall negative experience. I mean - and it depends on what the mother's circumstances are, should she remain here. And I don't know what their circumstances are right now because the report was written in May and this project was apparently going to happen - it was only just offered apparently. If the mother is living on her own with the two children, that's something that she won't be used to, and yes, that could negatively impact her parenting. She may find that more stressful without having that support. If she's living with her family - as she has done in the past, then that could alleviate that pressure... the only difficulty that I can see with the mother staying in [New South Wales] and Mr [Dymas] relocating is that it's likely to be stressful on their relationship. It will - it could also impact the children, obviously, if their relationship is stressed. That will have an impact on both of their parenting.

Mr Richardson then asked Ms [W] if that stress on the relationship between the mother and Mr [Dymas] may not be in [the child]'s best interests, to which she replied, "potentially, yes".

• Further in relation to the issue of relocation, Ms [W] said:

If the parenting relationship improved and [the child] has the opportunity to spend the sort of time with her father that would allow the relationship to continue to strengthen, then a relocation could be - could be okay for her, but unfortunately what we've seen to date is that there has been a resistance, and a resistance to the amount of time that [the child] spends with her father, so that relationship hasn't been able to develop to the same point that it obviously has with her mother, and also with the step-father. So, if there was an understanding that, you know, [the child] could quite - could more easily cope, and the relationship could cope with separation once there was a firm base. If they had have been told that two years ago, then a relocation could be possible, but unfortunately, that's not what has been happening. There has been this power struggle. There has been a lessening of time. There has been inconsistent time, withholding, and so forth, and so that has disrupted the attachment process.

• Ms [W] expressed the opinion that if a relocation was to be allowed, it ought not be until there had been six months of consistent and increasing time between [the child] and the father, but even in that event Ms [W] expressed her doubts as to whether the meaningful father daughter relationship would survive the relocation. When asked by Richardson, "Based on your engagement with these parties and the totality of the matters which have been relayed to you, that you have reviewed and what you've heard in this court, do you agree with me that it is possible for [orders for 6 months increased time between [the child] and the father followed by a relocation] to be a success for these parties?", Ms [W] responded, "I don't think I could say that it looks possible. I hope it I s".
• In relation to the issue of relocation Ms [W] said_, "... it needs a change of attitude from [the mother] as well, though, to understand that [the child] needs her father as well and that he is just as important as mum is. And I think - I don't know that that's actually accepted"_.

1. Accordingly, his Honour found at [99]-[100]:
   1. The relationship between [the child] and the father is a developing relationship which has been restricted since separation for the reasons mentioned in the preceding paragraph, such that it was the principal concern of Ms [W] in her Report and in her cross-examination that an expansion of time between [the child] and her father was needed to enable that relationship to develop and strengthen.
   2. I find that the likely effect of change in [the child]'s circumstances by relocating with her mother, Mr [Dymas] and [Y] to reside in Queensland would be that the opportunities for her to spend time with her father and so being able to develop and strengthen her relationship with him would be necessarily restricted by the tyranny of distance and the practical realities of how often [the child] and the father would be able to spend time together.
2. Further, at [109], his Honour also found:
   1. The likely effect of a change in [the child]'s circumstances by having her place of residence relocated to Queensland is to restrict the opportunity to develop a relationship with the father below what it would be if she remained living in [New South Wales], and similarly restrict the opportunity to develop a relationship with her step-family, her paternal grandparents and paternal extended family, and on the evidence, restrict her opportunity to maintain and develop a relationship with her maternal grandparents and maternal extended family. Other than Mr [Dymas]'s family, there is no reliable evidence that would suggest that the mother's family would move or even intend to move to Queensland.
3. Accordingly, his Honour concluded at [142]:
   1. Having considered the advantages and disadvantages of each parents' proposals, I find that a relocation of [the child]'s place of residence from [New South Wales] to Queensland is not in her best interests, compared to [the child] remaining in [New South Wales] in adequate proximity to her father to enable her to spend substantial and significant time with him while continuing to live primarily with her mother. ...
4. His Honour's findings were well open to him on the evidence.
5. Ground 10 fails.

1. These inter-related grounds of appeal contend that the primary judge erred in finding that substantial and significant time could not take place if the child lived in Queensland and that, once his Honour had made a finding that substantial and significant time was in the child's best interests, a relocation should not be ordered.
2. Insofar as the primary judge found that substantial and significant time, which his Honour found to be in the child's best interests, could not take place if the child lived in Queensland, that was a truism, both in law and in fact.
3. At [85], his Honour said:
   1. Substantial and significant time includes days that fall on weekends and holidays, days that do not fall on weekends or holidays, the child being able to be involved in occasions and events special to the parents, the parents being able to be involved in occasions and events of particular significance to the child, and the parents being able to be included in the child's daily routine.
4. Section 65DAA(3) then provided:

(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:

(i) days that fall on weekends and holidays; and

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

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

(i) the child's daily routine; and

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

(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.

1. The mother's proposal was that, ultimately, upon relocation, the child spend time with the father for one weekend a month, from 5.00 pm on Friday until 4.00 pm on Sunday, for one half of all Queensland school holidays and on special occasions. Self-evidently, neither at law or in fact, did the monthly time she proposed constitute substantial and significant time.
2. Insofar as the appellant contends that the primary judge erred in holding that, once his Honour had found that substantial and significant time was in the child's best interests, a relocation should not be ordered, that does an injustice to his Honour's extensive reasons.
3. In refusing the appellant leave to relocate the child to Queensland and ordering that the child spend substantial and significant time with the respondent, including, ultimately, in each alternate week, from Wednesday afternoon until Monday morning, the primary judge took into account a multitude of other factors, many of which have been referred to above, including the appellant's attitude towards the respondent and his relationship with the child; her admitted breaches of interim orders; his Honour's misgivings about the appellant's new partner's promotion, within his father's New South Wales -based business, to Queensland; and the expert opinion of the Family Report writer.
4. Further, it is apparent from [87], and his reference therein to Gillespie & Gillespie (2024) FLC 94-191, that his Honour was cognisant, inter alia, that "[a] parenting case which involves a 'relocation' element is just another parenting case and should not be treated as a separate issue to that of determining what parenting order is in the child's best interests", as well as that "[a]n applicant seeking to relocate with children need not show compelling reasons for the proposed move although the reasons for the proposed move will be one of the matters to be considered". His Honour decided the parties' competing parenting applications in an orthodox manner, in accordance with the Act and the relevant jurisprudence.
5. Grounds 12 and 13 fail.

1. Prior to the hearing of the appeal, costs schedules were filed on behalf of each of the appellant and the respondent.
2. At the conclusion of the hearing of the appeal, as is usual, counsel for the appellant and the respondent respectively made submissions in relation to costs, depending on the outcome of the appeal.
3. Relevantly, in the event the appeal was dismissed, as transpires to be the case, counsel for the respondent sought an order for costs calculated in accordance with the scale prescribed in Schedule 3 to the Federal Circuit and Family Court of Australia Rules 2021 (Cth) in the sum of $11,052.25.
4. As discussed with counsel for the respondent, whilst his costs schedule may be calculated in accordance with the prescribed scale, it is readily apparent from the schedule that the scale costs sought include some costs more in the nature of solicitor/client costs, than strictly party/party costs.
5. In Hand & Bodilly [2013] FamCAFC 98 at [91], the difference between party/party costs and solicitor/client costs was accepted to be:

... that on a taxation between parties on a solicitor and client basis, the unsuccessful party has to pay all the costs incurred by his opponent excepting in respect of (1) costs and expenses incurred prior to the institution of the action; (2) journeys and expenses of which the party liable could have no knowledge, and which would not ordinarily be performed or incurred; (3) the employment of more counsel, or the payment to them of larger fees than the circumstances of the case warrant, including the giving of special retainers.

1. The Full Court in that case then compared solicitor/client costs with indemnity costs (at [102]).
2. In Milliford & Milliford [2019] FamCA 128, after referring to Hand & Bodilly, Rees J said at [21] that -

... the distinction between indemnity costs and solicitor/client costs, is that the former order provides a complete indemnity for costs actually incurred, with no enquiry as to the reasonableness of the costs incurred. Whereas an order for solicitor/client costs requires an enquiry as to the reasonableness of the costs.

1. Notwithstanding that the scale costs sought by the respondent, in the sum of $11,052.25, include some costs more in the nature of solicitor/client costs, Senior Counsel for the appellant did not oppose an order for costs being made against her client in that amount, in the event the appeal was unsuccessful; rather, she sought a "long period", in the order of six months, to make payment.
2. I was not taken to any evidence of the appellant's financial circumstances in support of her Senior Counsel's submission that a long period to pay should be ordered. However, this was not strongly resisted by counsel for the respondent. In the circumstances, in the absence of such evidence, an order will be made that the appellant pay the respondent's costs of the appeal, fixed in the sum of $11,052.25, within 90 days.

I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum.