L -v- P [2022] WASCA 40 (1 April 2022)

1. The parties were to have equal shared parental responsibility for M.

2. M was to live with the mother with arrangements for M to spend time with the father.

3. The mother was at liberty to change M's principal place of residence to Poland as soon as COVID-19 related restrictions on international travel were eased or lifted such that the parties and M could travel freely between Western Australia and Poland without the imposition of quarantine requirements.

5 The father appeals on numerous grounds. These include alleged errors in factual findings (grounds 1 and 2), alleged failures to consider material considerations either properly (grounds 4 and 5) or at all (ground 3), an alleged failure to make a definitive finding as to whether the father had engaged in family violence (ground 5) and an alleged failure to comply with the obligations owed to the father as a self-represented litigant (ground 6). Finally the father alleges that the primary judge failed to give adequate reasons about certain matters (ground 7).

6 At the appeal hearing, after hearing from senior counsel for the father, the court did not call on counsel for the mother. Orders were made dismissing the appeal with reasons to follow. These are our reasons for dismissing the appeal.

7 The father and mother were both born in Poland. The father was born in January 1985, making him 35 at the time of trial, and is an engineer and project manager in gainful employment in the oil and gas industry in Western Australia. The mother was born in August 1987, making her 33 at the time of trial, and was not working outside the home. The mother had worked in an allied health field in Poland. However, the mother's qualifications are not recognised to the extent necessary to permit her to practice in Australia without significant further study.

8 The primary judge made findings, unchallenged in the appeal, that:

1. It was common ground that both parties demonstrated an appropriate attitude to M and to the responsibilities of parenthood.[2] It was also common ground that: [3]

(a) M had a meaningful relationship with both parents; and

(b) it was to M's benefit that those relationships be maintained.

2. The mother had been M's primary carer since birth[4] and her primary attachment was to the mother.[5]

3. Both parties had an appropriate capacity to provide for M's needs. However, the mother's capacity was presently greater than that of the father.[6]

4. Neither party had any family in Perth. Nor were there persons in Perth (other than the parties) with whom M had a significant relationship.[7]

5. M had extended family in Poland. However, M's relationships with them were not yet developed.[8]

6. The relevant change in M's circumstances which would arise from the adoption of either proposal before the court related primarily to the change in M's ability to regularly spend time with both parents.[9] The primary judge observed that, regardless of the orders made, where the parties were living in different countries the practical difficulties and expense of M spending time with each parent would substantially affect M's right to maintain personal relations and direct contact with both of her parents on a regular basis.[10]

7. The mother's desire to return to live in Poland was bona fide.[11] She was genuinely unhappy in Perth and had been strong in her desire to return to Poland since even before the breakdown of the relationship.[12] The mother had family support and employment opportunities in Poland.[13] The mother said that she would live in Poland whether or not M accompanied her.[14]

8. The father could readily relocate to Poland - where he also had family located relatively near the mother's family - and would have viable options open to him if he did. However, the father did not want to relocate for two reasons: (a) the father thought Perth was a better place to live; and (b) the father thought his career would go backwards as he could not work in the oil and gas industry anywhere near where M would be living.[15] In that regard the father said that he would continue to live in Perth whether or not M lives in Poland.[16]

9. Both parties agreed that M should be brought up in a particular religious faith.[17]

10. Both parties would provide an appropriate lifestyle for M and were capable of supporting an appropriate connection with her Polish heritage.[18]

9 In the primary court the father proposed that the parties have equal shared parental responsibility and that M continue to live in Perth. He proposed detailed orders as to the living arrangements, culminating in a 'week about' arrangement once M reached five years old. In the event that the mother chose not to stay in Western Australia the father proposed that M stay with him. He did not propose that M spend time with her mother in Poland.[19]

10 The mother proposed that she have sole parental responsibility and that M live with her. The mother also proposed that she be permitted to relocate M to Poland as soon as she obtained permission from the Department of Home Affairs to leave Australia. She proposed that the father be at liberty to spend time with M in Poland and that she, the mother, travel to Western Australia once per year for a period of four weeks and that M spend time with the father during those visits.[20]

11 The primary judge asked the parties to address what the orders should be if he resolved the relocation question adversely to them. Such proposed orders were not to be and were not construed as any concession. Nor did the primary judge regard these orders as representing an alternative proposal advanced by the relevant party.[21]

12 The father said that if, contrary to his wishes, the mother was permitted to relocate M to Poland, he would remain in Perth. However, the father said that the parties should still have equal shared parental responsibility. He considered it impracticable for M to travel to Australia to spend time with him but said that he would travel to Poland at a minimum once every second year.[22]

13 The mother said that if, contrary to her wishes, she was not permitted to relocate M to Poland, she would nevertheless move to Poland. In this scenario she said that the parties should have equal shared parental responsibility. After the mother departed, M should live with the father in Perth. However, in this scenario, the mother proposed that M should spend 21 consecutive nights with her every three months. To facilitate this the mother proposed that she would travel to Western Australia once a year and that otherwise the father should be ordered to travel with M to Poland three times a year.[23]

14 The primary judge addressed the applicable legal principles in orthodox terms.[24] No ground of appeal expressly challenges his Honour's recitation of those principles. Among other things the primary judge referred to Banks v Banks[25] and stated as to the matters set out in s 66C of the Family Court Act 1997 (WA) that:

The requirement to consider each matter set out in s 66C does not mean that each factor must be expressly discussed in a judgment, where the factor in question has no sufficient relevance to displace the determinative significance of factors specifically discussed.[26]

15 After identifying the applicable legal principles, the primary judge referred to a number of the s 66C factors and other legislative considerations which were not in issue.[27] These included the factors in s 66C(3)(a) and s 66C(3)(l) of the Act, in respect of which the primary judge said:

Bearing in mind [M's] age and level of maturity and understanding, the parties agreed that no weight should be given to any views she might have expressed to either of them.[28]

...

Neither party suggested that a consideration of whether it would be preferable to make the order least likely to lead to the institution of further proceedings was relevant.[29]

16 The alleged failure to consider these s 66C factors is challenged by ground 3.1 and ground 3.2 respectively.

17 The primary judge referred to the steps taken to accommodate the father as a self-represented litigant.[30] While stating that, understandably, the father struggled at times, the primary judge was satisfied that the trial proceeded in a manner that afforded procedural fairness.[31] This is challenged by ground 6. The primary judge then described and made observations about the evidence adduced at trial by the various witnesses.[32] Relevantly, the primary judge found that the father, while somewhat inflexible, gave his evidence honestly.[33] Among other things the father conceded that he could move back to Poland and would have viable options open to him if he did so.[34] As to the mother, the primary judge stated:

The mother gave her evidence in a measured and clear manner. While her answers to questions as to why she had cooperated with the father in leasing a property in Perth at a time where she would say it was already agreed that she would relocate to Poland were not entirely convincing, in general her evidence was straightforward, and I formed the impression that it was truthful.[35]

18 The finding that the mother's evidence was generally truthful is challenged by ground 1.

19 At trial the parties were in dispute as to the application of the statutory presumption favouring equal shared parental responsibility.[36] The father contended that the presumption applied. The mother contended that the presumption did not apply as there were reasonable grounds to believe that the father had engaged in family violence. The primary judge recorded that the father admitted certain instances in which he had verbally abused the mother. The father also said, in closing submissions, that there was 'verbal violence from both parties'.[37] The primary judge concluded:

On balance, I am satisfied that there are reasonable grounds to believe that at times the father behaved towards the mother in a manner that meets the statutory definition of family violence. Accordingly, in my view the statutory presumption favouring equal shared parental responsibility does not apply in this case.[38]

21 The primary judge went on to clarify that the conclusion reproduced at [19] above was not a finding that the father had behaved in a physically violent manner towards the mother. Nor was it a finding that there was any risk of the father doing so in [39]e future.39 Similarly, it was not suggested that parenting orders needed to be framed to protect M from physical or psycholo[40]cal harm.40

22 The primary judge then considered the evidence and made various intermediate findings as to the nature of M's relationship with her parents, the extent to which each parent had taken the opportunity to participate in making decisions in relation to M and to spend time and communicate with her, and the likely effect of any change in M's circumstances and the practical difficulty and expense of her spending time and communicating with her parents.[41] Among other things, the primary judge stated:

With no disrespect to the father, even if the mother proposed to remain long-term in Perth and the question of relocation had never been raised, the evidence would not support a finding that an equal shared care arrangement, let alone with weekly handovers, would be in [M's] best interests. In addition to the matters already raised, it must be borne in mind that [M] has only recently turned three. It must also be borne in mind that the father would propose to continue to work full-time, albeit he would suggest there is some flexibility in his working hours depending on project commitments from time to time, and would be heavily dependent on day care arrangements, and potentially before and after school care arrangements in due course. His evidence did not otherwise descend into any detail as to the practical arrangements he would propose.

...

The practical difficulties associated with [M] spending time with each parent if they are living in separate countries are fairly obvious. Neither party is wealthy; international travel is expensive. The father intends to continue in full-time employment, and there will be limitations on the amount of annual leave he can take. The mother intends to work in Poland, but on her case could only afford to travel to Western Australia once per annum regardless of whether [M] is living with her.[42] (emphasis added)

23 Ground 2 alleges that the primary judge erred in fact in finding that the father would continue to work full-time.

24 Finally, in considering any other relevant matters, the primary judge considered the practical limitations on international travel arising as a consequence of the COVID-19 pandemic.[43]

25 The primary judge then turned to the parties' competing proposals.[44] His Honour did not regard the father's proposal to be an outcome which was in M's best interests. The primary judge concluded that M's best interests were served by remaining in the primary care of the mother.[45] His Honour then stated as to relocation:

I conclude that while the mother would remain a competent and caring parent if living in Perth despite her unhappiness at being here, she will be a better parent in Poland. Apart from her own happiness, she will have the close practical and constant support of her parents. The practical arrangements for [M's] care in Poland which she proposes are entirely appropriate, and sustainable.

I accept also that, in the difficult circumstances faced by the parties, the mother's proposals for [M] to spend time with and communicate with the father are appropriate and child focused bearing in mind [M's] age and the care arrangements for her to date. That said, as [M] matures it is to be expected that those arrangements would develop such that she could spend more extended time with the father in blocks, thereby potentially adding flexibility to travel options and the like.[46]

26 However, due to travel uncertainty presented by the COVID-19 pandemic, the primary judge did not regard it as being in M's interests to relocate promptly.[47] His Honour contemplated and eventually made orders whereby M was to continue to live with the mother. Orders were also made allowing the mother to move to Poland with M once travel restrictions were eased such that the parties could travel between Perth and Poland without quarantine restrictions.[48]

27 Despite finding that the statutory presumption favouring equal shared parental responsibility did not apply, the primary judge concluded that it was in M's best interests for the parties to have equal shared responsibility.[49] However, in terms of s 89AA(1) and s 89AA(2) of the Family Court Act, the primary judge concluded that it would not be in M's best interests to spend equal time with each parent or to spend substantial and significant time with each parent. In any event, his Honour observed that neither party suggested that orders of that nature would be reasonably practicable given the parties' respective expressed intentions as to living in Perth and Poland.[50]

28 The primary judge then dealt with a miscellany of parenting orders in terms that are not material to the issues on appeal.[51]

29 The appellant father required an extension of time to appeal. The appeal notice was lodged 12 days after the time provided for in r 26(2) of the Supreme Court (Court of Appeal) Rules 2005 (WA).

30 The extension application was not opposed.[52] The failure to commence the appeal within time was due to inadvertent error on the part of the father's legal representatives, the father having taken prompt steps to seek advice as to pursuing an appeal upon the making of the primary court's orders of 19 November 2020.[53] No prejudice arose from the short delay in the lodgement of the appeal notice.

31 In all the circumstances it was appropriate that the court extend the time for the filing of the appellant's appeal notice.

1. The learned trial Judge erred in fact by finding that the Respondent Mother was generally truthful.

2. The learned trial Judge erred in fact in finding that the Applicant Father would continue to work full-time.

33 There are a number of recent decisions[54] in which this court has discussed the approach to appellate review of factual findings affected by a trial judge's assessment of the witnesses' credibility and reliability at trial having regard to the long-established principles most recently set out in the High Court decisions in Robinson Helicopter Co Inc v McDermott[55] and Lee v Lee.[56]

34 It is unproductive to repeat yet again that which should be regarded as settled principle. For the purpose of this appeal it is enough to state that in the case of a factual finding that is based, at least to any substantial degree, on an assessment of the credibility and reliability of one or more witnesses as a result of seeing and hearing them give their evidence, an appellate court will not interfere with the finding unless it is demonstrated to be wrong: (1) by reference to incontrovertible facts or uncontested testimony; (2) because the finding is glaringly improbable or contrary to compelling inferences; or (3) because the trial judge failed to use, or has palpably misused, his or her advantage as trial judge.

35 The appellant father's submissions in support of grounds 1 and 2 did not engage with this or other applicable legal principles of appellate restraint in relation to factual findings affected by a trial judge's assessment of the credibility and reliability of the witnesses at trial. To the contrary, at the appeal hearing senior counsel for the appellant accepted that he could not advance any submission that the alleged errors the subject of grounds 1 and 2 met the test for appellate review of factual findings based on credibility or reliability.[57]

36 This alone was sufficient to dismiss grounds 1 and 2. However, each of grounds 1 and 2 had other difficulties which meant that the grounds had to be dismissed.

37 In alleging that the primary judge was in error in finding that the mother was generally truthful the appellant father sought to challenge a general credibility finding. The limited utility of such a ground of appeal is well understood. As was stated by this court in McRobert Superannuation Pty Ltd v Cranston:

A finding that a witness is 'generally credible', without more, is of no practical significance unless that finding contributes in some way to a primary finding of fact that is in issue in the trial. Findings as to witnesses' credibility and reliability are only made so that the trier of fact can make findings as to the facts in issue in the proceeding. They are not ends in and of themselves.

Similarly, a ground of appeal that seeks to challenge a finding that a witness is 'generally credible' is, without more, of no consequence unless there is an identified challenge to an actual finding of fact that was in issue in the trial.[58]

38 Senior counsel for the appellant father initially submitted that grounds 1 and 2 were linked with ground 5.[59] However, that was later retracted. Senior counsel accepted that ground 2 could not feed into ground 5.[60] Accordingly, only ground 1 was pursued on the basis that it was relevant to ground 5. Nevertheless, as will be seen, ground 5 itself asserted an immaterial error; it could not, by itself, ground a successful appeal which reversed the orders under appeal. Since ground 1 was only contended to have relevance insofar as it informed ground 5, ground 1 was also immaterial to the proper disposition of the appeal.

39 In any event, ground 1 was without merit. In challenging the finding that, in general, the mother's evidence was straightforward and truthful, the appellant father focussed on three specific aspects of the evidence.[61] These were:

1. The mother's evidence as to why she had cooperated in leasing a Perth property when her relocation to Poland had allegedly already been agreed[62] - evidence that the primary judge found to be 'not entirely convincing'.[63]

2. The mother's evidence that she did not understand the primary judge's question about M spending extra time with the father during the 2019 father's day weekend. The relevant passage reads:

So you had flexible plans to meet up with a friend that you weren't prepared to forego so that [M] could spend extra time with her father?---I don't understand. Could you say it again, please.

I think you probably do. All right. It doesn't matter.[64]

3. The mother's evidence that the father had been manipulative and restricted her access to financial resources was said to be inconsistent with the mother's oral evidence that she had access to a joint account after separation.[65]

40 The mother's evidence was extensive. The mother swore two trial affidavits. The first is 170 pages in length of which 40 pages were by way of direct evidence. The second is 116 pages in length of which 18 pages were by way of direct evidence. The mother's cross-examination ensued over some 79 pages of transcript (although part of this reflects significant interchanges between the primary judge and the father as to the cross-examination). The evidence was detailed and ranged over a wide variety of subject matters.

41 The circumstance that, on a review of the evidence in preparation for this appeal, the legal representatives for the appellant father were only able to identify three relatively minor respects in which the mother's evidence is susceptible to criticism provides ample support for the primary judge's finding that the mother's evidence was generally truthful. It certainly has not been demonstrated that the primary judge's general credibility finding was wrong based on incontrovertible facts or uncontested testimony or because the finding is glaringly improbable or contrary to compelling inferences. Nor is there any proper basis to conclude that the primary judge failed to use or misused his advantage as trial judge.

43 Ground 2 alleged that the primary judge erred in fact in finding that the father would continue to work full-time. In so framing the ground the appellant father misstated the primary judge's finding. The primary judge did not find that the father would continue to work full-time. Rather, his Honour found that the father proposed or intended to continue to work full-time.[66]

44 There was ample support for the primary judge's finding in the terms as made by his Honour. The father worked full-time both before and after M's birth.[67] In cross-examination the father confirmed that he had a full-time job.[68] The father nevertheless said that he was able to take full-time care of M.[69] The cross-examination continued:

So if you're at work where do you propose [M] goes?---Well, depends. If [M] is - will be sick I can stay at home. If [M] is not sick, obviously we have various institutions like day care - - -

Yes? - - - where she can attend, and she was attending to day care four days a week already - - -

Yes? - - - before our separation. And there is - I spoke with day care and there's no problem to put her five days a week.

Yes?---As I said before, I have option to work from home, so I can work from home as well, or just take parental leave, if required. Second thing is we have also babysitters and I already made inquiry about the babysitters as well if they're available, and the most importantly, I want to make it clear, this is not my - I do, I work so I can live and provide supper to my family, but if I won't be able to look after [M] because of my work I can quit it today.

Okay. So you say quitting your job is something that you would consider if no one can take care of [M]. Is quitting your job something you would consider to move to Poland?--- Well, this is extreme situation.

Okay?--- So we're talking but I don't want to quit my job obviously. I'm just saying if I wouldn't have any other option.[70] (emphasis added)

45 The appellant father relied on this passage. In written submissions the father submitted that the evidence established that his employment offered significant flexibility including the ability to work from home and that he was prepared to cease work to care for M full-time.[71] The former may be accepted. The latter misreads the evidence. The father did not say that he would terminate his employment. Rather, he said only that he could terminate his employment. This, as the last paragraph in the passage confirms, was not the father's preferred option. To the contrary, the father stated that he did not want to terminate his employment. The corollary of not wishing to terminate his full-time employment is that - as the primary judge found - the father proposed or intended to continue in full-time employment albeit that, if it proved to be the only available option, the father could cease work. Indeed, that is the tenor of the evidence read as a whole. The father was outlining how - with third-party assistance and work flexibility - he was able to continue to work full-time and also care for M full-time. In short, the father was intending to continue to work full-time but there was an extreme contingency in which he might have contemplated not working full-time.

Grounds 3, 4 and 5: the alleged failure to consider material considerations

47 Ground 3 alleges various failures to consider material considerations at all. It provides:

The learned trial Judge erred in law by failing to consider:

3.1 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 pursuant to section 66C(3)(a) of the Family Court Act 1997 ('the Act');

3.2 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 pursuant to section 66C(3)(1) of the Act; and

3 .3 the willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent as any other fact or circumstance that the court thinks is relevant pursuant to section 66C(3)(m) of the Act.

48 Grounds 4 and 5 allege a failure to properly consider material considerations:

4. The learned trial Judge erred in law by failing to properly consider:

4.1 the nature of the child's relationship with the Applicant Father pursuant to section 66C(3)(b) of the Act;

4.2 the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and communicate with the child pursuant to section 66C(3)(c) of the Act and the attitude to the child and to the responsibilities of parenthood demonstrated by each parent pursuant to section 66C(3)(i) of the Act; and

4.3 the effect of any change in the child's circumstances including the likely effect on the child of any separation from either of their parents pursuant to section 66C(3)(d) of the Act.

5. The learned trial Judge erred in law by failing to properly consider and make definitive findings about whether the Applicant Father had engaged in family violence.

49 Senior counsel for the appellant father described grounds 3 and 4 as the essence of the appeal[72] and being critical to its success.[73] It was said that, from the father's perspective, the primary judge did not deal properly with the reasoning process that was required pursuant to the Family Court Act.[74] It was acknowledged, however, that most of the appeal fell away if the court considered that the primary judge's approach to the s 66C factors was sufficient.[75] Indeed, senior counsel candidly informed the court that if it considered that the primary judge's reasoning process with respect to grounds 3 and 4 was sufficient, then the appellant father must lose the appeal (although later appearing to suggest that the appeal might still succeed if ground 7 was upheld).[76]

50 In respect of grounds 3 and 4, senior counsel for the appellant father submitted that each s 66C factor needed to be considered and discussed.[77] Senior counsel was critical of the primary judge's approach in as much as some s 66C factors were addressed only by recording the parties' respective positions in relation to the criteria.[78] Senior counsel characterised the reasoning process as superficial.[79] In this respect senior counsel made the submission that any one of the s 66C factors may be sufficient to refuse the relocation application.[80]

51 Ground 3 concerns alleged failures to consider s 66C factors at all.[81]

52 Although styled as a relocation case, the primary court made a parenting order. The court may, subject to certain matters, make such parenting order as it thinks proper.[82] A parenting order may deal with the person with whom a child is to live and the allocation of parental responsibility for a child.[83] In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.[84] Section 66C addresses how the court determines what is in a child's best interests.

53 In contested proceedings, when determining what is in the child's best interests, the court must consider the matters set out in s 66C(2) and s 66C(3).[85]

54 Section 66C(2) provides for two primary considerations:

(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.

55 Section 66C(3) sets out a list of additional considerations.

56 Accordingly, a parenting order of the type made by the primary judge involves the exercise of a judicial discretion. It is made by reference to a paramount consideration of a general kind - the best interests of the child - which involves an assessment of a number of other considerations. Those considerations involve value judgments in respect of which there may be room for reasonable differences of opinion. So too the overall assessment of what is in the best interests of the child involves such a value judgment. It is authoritatively established that, consequently, appellate intervention requires the demonstration of a discretionary error of the kind referred to in House v The King.[86]

57 In this regard ground 3 is concerned with whether the primary judge did not take a material consideration into account.

58 The appellant father referred to a number of authorities on the obligation to 'consider' the various matters as mandated by s 66C of the Family Law Act.[87] For the purpose of determining this appeal it is enough to state that:

1. The term 'consider' imports an obligation to give proper, genuine and realistic consideration.[88]

to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of.[89]

3. The breadth and depth of the court's consideration of the various matters will depend on the issues joined between the parties.[90]

4. The nature and extent of the requisite consideration might, in some circumstances, be no more than to 'merely salute [the consideration] in passing'.[91]

59 It will be recalled that the primary judge referred to Banks v Banks in stating that the requirement to consider each matter set out in s 66C did not mean that each factor must be expressly discussed in reasons for decision (see [14] above).

60 Senior counsel for the appellant father submitted that the primary judge was incorrect in relying on Banks v Banks insofar as that case related to an interim decision. Senior counsel said, however, that it was unnecessary to come to a view about whether Banks v Banks was correctly decided.[92] It appears, then, that the contention is that the approach in Banks v Banks should be restricted to interim decisions. Senior counsel asserted that the primary judge misdirected himself in relying on Banks v Banks to conclude that a s 66C factor[93] need not be expressly discussed where the factor in question had no sufficient relevance to displace the determinative significance of factors specifically discussed.[94]

61 It is true that Banks v Banks concerned interim parenting proceedings. The Full Court of the Family Court of Australia referred to that aspect of the case in observing that it would be a sterile and unnecessary exercise to address other factors when it was obvious that the findings made on other factors would be determinative of the child's best interests.[95] The primary judge relied on this observation in putting forward the passage reproduced at [14] above (that being the passage criticised by senior counsel for the appellant). But the circumstance that Banks v Banks involved an interim decision is not, on our reading of the decision, material to the Full Court's observation that each s 66C factor need not be traversed in the court's reasons where it is obvious on the facts and issues joined that there are only one or two decisive factors. More generally the Full Court noted that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 66C factors ar[96]relevant.96 The Full Court also stated:

Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every [s 66C] factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to 'consider' each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion.[97]

62 In Banks v Banks the Full Court was identifying an available judicial approach of general application in parenting proceedings. It is plain that there is a legislative requirement to consider the s 66C factors. The Full Court was well aware of that obligation. Before turning to its discussion of the s 66C factors the Full Court expressly stated that the absence of discussion of any particular s 66C factor did not necessarily reflect any failure to consider it.[98] But the obligation to consider a factor does not mean that the factor must be discussed in a trial judge's reasons. The necessary content of judicial reasons alters depending on the context in which the reasons are required. Factual concessions, where accepted by the court, may deal conclusively with one or more s 66C factors. The reasons need only address and discuss the contentious matters which remain outstanding.

63 No doubt some judges will err on the side of caution by expressly referring to and discussing a s 66C factor that is immaterial to the proper disposition of the case. But s 66C does not mandate that a conclusion be proffered as to each factor. The omission to expressly refer to the process of consideration in the reasons for decision does not necessarily mean that a trial judge has not complied with his or her obligation to consider. In a particular case the requisite consideration might be inferred from what is otherwise said in the reasons.[99] Indeed, as Murphy & Cronin JJ stated in Tibb v Sheean:

In a case without pleadings ... the circumstances of the case and the overt manifestations of what has been 'considered' will emerge from the proposals of the parties; their evidence; the manner in which they have run their case and, for example, matters canvassed during the trial. In turn, those matters will inform what is, and what is not, included in the reasons.[100]

64 While, for these reasons, the appellant father's criticism of the primary judge's reliance on Banks v Banks was misplaced, the father nevertheless contended by ground 3 that the primary judge had erred in failing to consider various s 66C factors.

65 Senior counsel for the appellant father explained the argument in support of ground 3 by reference to ground 3.1. Senior counsel said that, in relation to the factor prescribed by s 66C(3)(a) (ie any views expressed by the child) the primary judge had simply recorded that the parties had agreed that no weight should be given to any views M might have expressed to either of them bearing in mind M's age, level of maturity and understanding. The parties' approach might be thought to be unsurprising given that M was merely three years old at the time of the trial. Nevertheless, senior counsel for the appellant father criticised the primary judge as having delegated the necessary reasoning process to the parties, and as having taken the parties' position as determinative, so as to exclude his obligation to consider the matter. It was said to be insufficient to simply repeat what the parties had said. In that respect senior counsel rejected the proposition that the primary judge was implicitly accepting the correctness of the parties' position. Senior counsel accepted, however, that it would have been sufficient had the primary judge expressly stated that he accepted the parties' position.[101]

66 The same sort of point was said to arise with the other limbs of ground 3.[102]

67 There is no support for the appellant father's contention that the primary judge delegated the necessary reasoning process to the parties. The primary judge took an active role in the conduct of the trial. The primary judge was correct to do so given the principles for conducting child-related proceedings as specified in s 202B of the Family Court Act. In that respect, at an early stage after the commencement of the trial, the primary judge made detailed inquiries of the father and counsel for the mother to determine what matters were in issue between the parties.[103] In response to the primary judge's questioning, the parties agreed that, given M's age, level of maturity and understanding, no weight should be given to any views M may have expressed.[104] The primary judge referred to that agreement in the passage of his reasons that is reproduced at [15] above.

68 The primary judge was acutely conscious of the statutory imperative mandated by s 66C. His Honour made appropriate enquiries of the parties to determine the s 66C factors that were in issue. In his reasons the primary judge expressly observed that the court 'must consider the matters set out in s 66C' in determining what is in a child's best interests.[105] Insofar as the primary judge relied on the passage from Banks v Banks his Honour made plain that he did not intend to discuss factors where a factor had no sufficient relevance to displace the determinative significance of the factors that were discussed. Accordingly, the omission to discuss any particular consideration should not be taken as a failure to consider that factor. Even so, his Honour identified those legislative considerations which were not in issue. This included, having regard to the parties' agreement, the additional consideration mentioned in s 66C(3)(a) of the Family Court Act.

69 It is obvious in these circumstances that the primary judge performed his duty by considering, as an additional consideration mandated by s 66C(3)(a), any views expressed by M and the factors relevant to the weight the court should give to those views. Reading the relevant passage of the reasons in context, the primary judge accepted the parties' joint concession that no weight should be given to M's views given her tender age and level of maturity. It was well open to the primary judge to accept the concession. In the circumstances of this case nothing further was required either by way of consideration or by way of discussion in the primary judge's reasons.

70 In written submissions the appellant father says that there was evidence that M wanted to spend more time with him. The father says that the primary judge failed to consider this evidence and failed to consider the issue properly or at all.[106] However, having determined - without error - that M's maturity and level of understanding was such that no weight should be given to any views expressed by M, this evidence was simply not to the point. In any event the evidence, such as it was, did not amount to the expression of any view on the fundamental issue for determination - that being whether there ought to be an order permitting relocation.

71 Ground 3.1 was without merit. Grounds 3.2 and 3.3 fail conformably with ground 3.1. As to ground 3.2, neither party suggested that the factor prescribed by s 66C(3)(l) was relevant.[107] The primary judge evidently accepted that position and thereby had regard to the additional consideration. On appeal the appellant father raised the possibility of further overseas litigation - including the possibility of proceedings in Poland to overcome orders made in Western Australia - as well as the parties' inability to agree leading to further litigation.[108] As to the former, the primary judge noted the concerns but, having regard to evidence that orders of the Family Court of Western Australia could be registered and enforced in Poland, decided that nothing turned on them.[109] As to the latter, the parties' inability to agree on numerous matters was self-evident and could not have escaped the primary judge. There was nothing to suggest that refusal of the relocation order would be the option least likely to lead to the institution of further proceedings in relation to M.

72 As to ground 3.3, the primary judge expressly dealt with and rejected a submission by the appellant father that the mother had restricted his time with M and that this reflected an inappropriate attitude to the responsibilities of parenthood on the mother's part.[110] The primary judge also recorded the parties' respective proposals for the ongoing involvement that the other party was to have in M's life.[111] And, importantly, the primary judge made a finding that the mother acknowledged that M had a meaningful relationship with the father and it was in M's best interests for that relationship to be maintained and developed.[112] There was, in the circumstances, appropriate consideration of the willingness and ability of the father and the mother to facilitate and encourage a close and continuing relationship between M and the other parent.

74 Senior counsel for the appellant father differentiated ground 4 from ground 3 by explaining that ground 4 related to an alleged failure to properly consider certain s 66C factors.[113] Senior counsel said on three occasions that the ground went to a weight question.[114] Thus, in alleging that there was a failure to properly consider these s 66C factors, the father:[115]

1. accepted that the primary judge gave consideration to the relevant s 66C factors; but

2. alleged there was not proper consideration because insufficient weight was given to the factor (for example, because on occasions the primary judge failed to make specific findings or merely adopted the parties' positions).

75 The primary judge was exercising a wide discretion - one in which the paramount consideration was the best interests of M. While, in reaching his conclusion, the primary judge was required to consider the matters set out in s 66C(2) and (3) of the Family Court Act, a disagreement as to one or more of those considerations only on matters of weight does not, in itself, justify appellate interference.[116] The attribution of weight to one or more factors in a combination of factors is the essence of a discretionary judgment. The extent to which matters of weight may justify appellate intervention in respect of a discretionary judgment was discussed by Latham CJ in Lovell v Lovell in a passage that bears repeating:

If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. 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.[117] (emphasis added)

76 To similar effect are the observations of Buss P in Meyer v Solomon. Importantly, as Buss P noted, a weighting error is not, of itself, ordinarily an independent ground which justifies appellate intervention. An alleged failure in the exercise of a discretion to give sufficient weight to a relevant consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the court.[118]

77 The appellant father's written submissions in support of ground 4 criticised the depth and extent of the primary judge's consideration of the factors prescribed by s 66C(3)(b), s 66C(3)(c), 66C(3)(d) and s 66C(3)(i). The father referred to evidence and other matters which were not addressed by the primary judge. The argument in support of the various limbs of ground 4 was that the primary judge had failed to consider the evidence and other matters as identified despite them being relevant to the various s 66C factors.

78 This is not a case where the primary judge failed to exercise the discretion entrusted to the court by not considering the mandatory s 66C considerations the subject of ground 4. To the contrary, dealing with the various s 66C factors:

1. As to ground 4.1, in terms of s 66C(3)(b) the primary judge found it was common ground that M had a meaningful relationship with both parents, ie M had a meaningful relationship with the father and the mother.[119] Otherwise the primary judge made a series of relevant findings under the heading 'The nature of [M's] relationship with each parent, and with other persons'.[120]

2. As to ground 4.2, in terms of s 66C(3)(c) the primary judge made findings as to the extent to which each parent had taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to M, and to spend time and communicate with her.[121]

3. Also as to ground 4.2, in terms of s 66C(3)(i) the primary judge found it was common ground that both parties demonstrated an appropriate attitude to M and to the responsibilities of parenthood.[122] Further findings in this respect were made under the heading 'The attitude to [M], and to the responsibilities of parenthood, demonstrated by each parent'.[123]

4. As to ground 4.3, in terms of s 66C(3)(d) the primary judge made a series of findings under the heading 'The likely effect of any change in [M's] circumstances, and the practical difficulty and expense of her spending time and communicating with her parents'.[124] The primary judge found that there would be a change in M's ability to regularly spend time with both parents.[125]

79 In the fourth respect, as to the likely effect of any separation from either parent, the primary judge found that M's circumstances would 'fundamentally change' under either party's proposal.[126] That finding must be understood in the light of unchallenged findings that: (1) the mother had been M's primary carer since birth;[127] (2) M's primary attachment was to the mother;[128] and (3) even if there was no question of relocation, an equal shared care arrangement would not be in M's best interests.[129] These findings were material to the primary judge's ultimate determination. M was three years old. Given that the mother was to relocate in any event, were the appellant father's proposal to be accepted and the respondent mother's proposal to be rejected, M would cease to be cared for full-time by the mother notwithstanding the arrangements that had prevailed since M's birth and the circumstance that even an equal shared care arrangement was not in M's best interests. That would self-evidently be a very significant change in M's circumstances on separation from the mother.

80 The appellant father's assertion that the primary judge failed to properly consider the various s 66C considerations is, at bottom, a complaint about the primary judge's reasoning process. The father disagrees with the primary judge's reasoning, arguing that additional evidence or other matters, when weighed in the mix, put a different complexion on the factors the subject of ground 4. It is plain, however, that the primary judge considered the factors specified in s 66C(3)(b), s 66C(3)(c), 66C(3)(d) and s 66C(3)(i) in reaching his determination as to what was in M's best interests. At most the appellant father complains of weighting errors in the primary judge's consideration of the s 66C factors as a step along the way to his Honour's ultimate conclusion. In accordance with settled authority the alleged weighting errors the subject of ground 4 cannot and do not demonstrate appellable error in the exercise of the primary judge's discretion.

82 Ground 5 challenged the primary judge's findings concerning whether the appellant father had engaged in family violence. When the reasons are read fairly and as a whole, the primary judge made no finding that the father had engaged in family violence; his Honour was careful to limit his finding to that required in terms by s 70A(2) of the Family Court Act. The primary judge found only that there were reasonable grounds to believe that the father had behaved towards the mother in a manner that met the statutory definition of family violence.[130] His Honour went on to state that this finding did not represent a conclusive finding that the father had behaved in a physically violent manner towards the mother.[131]

83 Contrary to the appellant father's assertion that they are materially indistinguishable, a finding that there are reasonable grounds to believe that a person has engaged in family violence is self-evidently different to a finding that a person has engaged in family violence. The latter requires proof of the fact of family violence. The former only requires proof of the existence of facts which are sufficient to induce the requisite state of mind (ie belief that a person has engaged in family violence) in a reasonable person.[132]

84 The Act contains a broad definition of the term 'family violence'. By s 9A(1) it means:

violent, threatening or other behaviour by a person that coerces or controls a member of the person's family ... or causes the family member to be fearful.

85 The Act identifies examples of behaviour that may constitute family violence. The examples include repeated derogatory taunts.[133]

86 Ground 5 was immaterial to the disposition of the appeal. In terms of the primary judge's reasoning process, as revealed in his Honour's reasons, the significance of the impugned finding was only that the s 70A statutory presumption of equal shared parental responsibility did not apply. The primary judge did not rely on the relevant finding in any other way. But, having found that the presumption did not apply, the primary judge nevertheless went on to hold that an order for equal shared parental responsibility was in M's best interests.[134] The primary judge made an order to that effect.[135] Accordingly, as senior counsel for the father conceded at the appeal hearing, the impugned finding went nowhere in terms of the orders that were the subject of the appeal.[136]

87 Ground 5, if upheld, could not result in a reversal of the orders under appeal and in that respect lacked any utility.[137] So understood ground 5 asserted an error that was immaterial to the proper disposition of the appeal. It failed on that basis alone without requiring any consideration of its merits.

89 The primary judge was not required to make a definitive finding about whether the father had engaged in family violence. It was enough for the primary judge to make a finding that sufficed in terms of s 70A(2)(b) of the Family Court Act. The primary judge did so. Nor, in that respect, did the primary judge fail to properly consider the issue arising in respect of s 70A(2)(b). To the contrary, reading the primary judge's reasons fairly and as a whole, his Honour identified admissions on the part of the father to the effect that he had verbally abused the mother.[138] This was the platform for the primary judge to be satisfied that there were reasonable grounds to believe that at times the father behaved towards the mother in a manner that met the statutory definition of family violence.[139] Given the breadth of the statutory definition, as referred to at [84] - [85] above, there was no error in that conclusion.

Ground 6: the alleged failure to deal with the father as a self-represented litigant

The learned trial Judge erred in law by failing to comply with the obligations owed to the Applicant Father as a self-represented litigant.

92 The appellant father did not complain about the information that the primary judge had provided to him at the commencement of the trial. Rather, as developed at the appeal hearing, the nub of ground 6 was that the primary judge should have identified the 'abridged reasoning process' his Honour intended to adopt as to the s 66C factors and then invited submissions from the appellant or given the appellant the opportunity to obtain legal advice on that process. Senior counsel for the father explained that the reference to 'abridged reasoning process' was a reference to the primary judge's approach to the s 66C factors as was the subject of grounds 3 and 4.[140]

93 Senior counsel for the appellant father accepted, correctly, that if grounds 3 and 4 failed there would be nothing in the procedural fairness point the subject of ground 6. There would have been nothing further that ought to have been stated by the primary judge to the father. As senior counsel put it, if the court considered that the reasoning process the subject of grounds 3 and 4 was adequate, then the primary judge did not need to give the father 'advance notice' that his Honour intended to adopt that process.[141]

94 Grounds 3 and 4 have failed. Ground 6 failed with the failure of grounds 3 and 4 in light of the concession properly made by senior counsel for the appellant father.

95 There was a further argument advanced in support of ground 6 in the written appellant's case. The appellant father contended that the primary judge failed to afford procedural fairness by not giving notice that he intended to rely on the contents of the mother's case information affidavit.[142] In this respect, when addressing the statutory presumption of equal shared parental responsibility and whether there were reasonable grounds to believe that the father had engaged in family violence, the primary judge stated:

In her case information affidavit filed at the commencement of the proceedings the mother said that the father was 'manipulative' and 'would restrict [her] access to financial resources', particularly when she was not working.[143]

96 The appellant father complained that the mother did not identify the case information affidavit as being a document on which she intended to rely at trial.

97 It is not clear whether the appellant father continued to rely on this contention in support of ground 6 given the limited basis on which ground 6 was advanced in oral submissions at the appeal hearing. However, assuming that the contention was pressed, it was without merit for at least three reasons:

1. First, as senior counsel for the appellant father accepted at the appeal hearing,[144] the same kind of evidence was given in the mother's trial affidavit.[145] It is unquestionably the case that the father was on notice of the substance of the mother's allegation.

2. Second, as has been discussed in addressing ground 5 (see [89] above), the primary judge did not rely on this allegation in making the finding that there were reasonable grounds to believe that the father had engaged in family violence in terms of s 70A(2)(b).

3. Third, as has again been discussed in addressing ground 5 (see [86] - [87] above), the conclusion that there were reasonable grounds to believe that the father had engaged in family violence in terms of s 70A(2)(b) was immaterial to the final decision insofar as the primary judge concluded that an order for equal shared parental responsibility was in M's best interests.

Ground 7: the alleged failure to give adequate reasons

The learned trial Judge erred in law by failing to give adequate reasons about the child's primary care, her re-location and spending substantial and significant time with the Applicant Father.

100 The decision of this court in Browne v Browne contains a concise synthesis of the principles relevant to an evaluation of the adequacy of reasons:

(1) Reasons for decision need not be lengthy or elaborate.

(2) Reasons should disclose the intellectual process that led to the decision in sufficient detail and with sufficient certainty to enable the litigant to know why they were unsuccessful and to enable an appeal court to determine whether the decision involved appellable error.

(3) It is certainly not necessary to refer to every submission advanced by a party. However, a tribunal or court must engage with the central element(s) of a losing party's case and explain why that case fails. Considering that party's submissions is an aspect of what procedural fairness requires.

(4) In determining the adequacy of the reasons, the reasons must be read as a whole, and, if necessary, considered in the context of the evidence. An appellate court may take into account what can legitimately be inferred from the reasons. Whether reasons are adequate will depend upon the circumstances of the case and the matters that arose for the judge's consideration.[146] (citations omitted)

101 The critical question is whether the essential path of reasoning to the impugned conclusion is disclosed in sufficient detail and with sufficient certainty to meet the objects referred to in [100(2)]. In that respect the adequacy of the reasons is to be assessed in the context of the evidence, issues and submissions i[147]he case.147 Nevertheless, the obligation to give adequate reasons does not require an elaborate explanation of each expression used to describe particular evidence. There is no obligation to give 'reasons fo[148]easons'.148

102 The appellant father contended that the primary judge failed to give adequate reasons with respect to his decisions concerning primary care, relocation and spending substantial and significant time with the father.[149] However, beyond assertion, the father's submissions did not identify the alleged inadequacy in the primary judge's reasons so far as primary care and relocation were concerned. There was no such inadequacy. The primary judge gave clear and, to say the least, legally adequate reasons for his determinations as to primary care and relocation.

103 In its essence, this was a relatively simple case. Whatever the decision, one parent was to stay in Perth; the other was to relocate to Poland. Practically speaking, M could only live with one parent. It could not sensibly be suggested that a three-year-old child might live with both parents, moving regularly between households in Perth and Poland. In this regard there was no challenge to the primary judge's finding that the practical difficulties and expense of M spending time with each parent would substantially affect M's right to maintain personal relations and direct contact with both of her parents on a regular basis. Similarly, in terms of primary care, it was inevitable that a parenting order would only nominate one of the father or the mother as the person with whom M was to live. The primary judge was presented with stark competing alternatives and tasked with determining which of the two was in M's best interests.

104 On primary care, in concluding that it was in M's best interests that M remain in the primary care of the mother, the primary judge took into account M's age and the background facts recounted at [8.1] - [8.3] and [8.10] above. In deciding between the competing proposals, while his Honour considered the various s 66C factors and made necessary factual findings in doing so, the key considerations, according to his Honour, were:

1. The mother had been M's primary carer since birth and her primary attachment was to the mother.

2. The mother's capacity to provide for M's needs was presently greater than that of the father.

3. The father proposed to continue to work full-time and would be heavily dependent on day care arrangements (and potentially before and after school arrangements in due course).

105 In all the circumstances, but particularly having regard to those three matters, the primary judge regarded it as being in M's best interests to remain in the primary care of the mother.

106 The primary judge's reasons, considered as a whole, amply satisfy the requirements for adequacy. The primary judge exposed his reasoning in clear terms in a manner that, viewed objectively, conveyed to the appellant father why he was unsuccessful in contending that he should have primary care of M, rather than the mother, and undoubtedly enabled this court to assess whether there was appellable error. In truth, as developed in the written submissions and at the appeal hearing, the appellant father's complaint was not as to the adequacy of the primary judge's reasons - in the sense of properly disclosing the intellectual process undertaken by his Honour - but rather disagreement with the primary judge's reasoning process (in part by lack of consideration of particular matters). That is not a complaint to be pursued under the rubric of a ground alleging inadequacy of reasons.

107 On relocation, the primary judge's reasons are again clear and legally adequate. The relevant passage is reproduced at [25] above. The conclusion followed inexorably from his Honour's determination that it was in M's best interests to remain in the primary care of the mother and the practical reality that the mother intended to relocate to Poland.

108 The appellant father submitted as follows as to the primary judge's reasons on M spending substantial and significant time with each parent:

At [J135] the learned trial Judge said, 'As is clear from what appears earlier in these reasons, I have considered whether [M] spending equal time with each parent would be in her best interests and have concluded that it would not. Similarly, for all the reasons already outlined I do not consider that [M] spending substantial and significant time (as that term is defined in the legislation) with each parent would presently be in her best interests.'

With due respect to his Honour the statement begs the question, 'What reasons?' noting what has been submitted in these submissions about his Honour's unsafe findings of fact and the section 66C(3) factors either not considered or not properly considered.[150]

109 Accordingly, the challenge to the adequacy of this aspect of the primary judge's reasoning relies on grounds 1 - 5. Those challenges have failed. This aspect of ground 7 must fail with grounds 1 - 5. In any event, in reproducing the primary judge's reasons the appellant father's submission is incomplete. The primary judge went on to state that neither party suggested that orders of either nature (ie orders for equal or substantial and significant time) would be reasonably practicable given their expressed positions as to where they would each intend to live regardless of any parenting orders made.[151] The primary judge evidently accepted that to be the position. That is self-evidently unassailable reasoning on the part of the primary judge which means that this aspect of ground 7 is without merit.

110 The primary judge's reasons for his determinations as to primary care, relocation and the time M was to spend with the appellant father were provided in sufficient detail so as to inform the father why he lost and to assess whether there was appellable error. Indeed, the argument to the contrary lacks any reasonable basis. Ground 7 was without merit.

111 It was for these reasons that the court made orders on 9 March 2022 dismissing the appeal.

1. The application for an extension of time in which to appeal is granted.

3. The question of costs is reserved to the delivery of the reasons in the appeal.

113 COVID-19 travel restrictions affecting quarantine requirements in Western Australia were eased shortly before the appeal hearing. Accordingly, pending the determination of the appeal, the primary court made an order by consent on 4 March 2022 staying the operation of the relocation order. It was not necessary for this court to formally discharge the stay order. The appeal was determined by virtue of the court's orders made 9 March 2022. Accordingly, the stay order ceased to have operative effect as and from this court's dismissal of the appeal.

114 We would now hear from the parties as to the costs of the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] [2020] FCWA 206 (Primary reasons).

[21] Primary reasons [22], [27] - [28].

[25] Banks v Banks [2015] FamCAFC 36; (2015) FLC 93-637.

[36] See Family Court Act s 70A.

[43] Primary reasons [114] - [120].

[44] Primary reasons [123] - [130].

[46] Primary reasons [127] - [128].

[51] Primary reasons [136] - [140].

[52] Respondent's submissions par 1.1 WAB 56.

[53] Affidavit of the father sworn 17 December 2020 pars 4 - 7 WAB 3 - 4.

[54] See eg: Child and Adolescent Health Service v Mabior [2019] WASCA 151 [93] - [96]; Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [95] - [96]; Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334 [105] - [108], [205] - [213]; Wilson v Arwon Finance Pty Ltd [2020] WASCA 137 [193] - [194]. See also Smart v Power [2019] WASCA 106 [100] - [106] (a decision pre-dating Lee v Lee).

[55] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 (esp at [43]).

[56] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129 (esp at [55]).

[58] McRobert Superannuation Pty Ltd v Cranston [2021] WASCA 126 [166] - [167].

[61] Appellant's submissions pars 25 - 27 WAB 30. Other matters were raised in the appellant's PD 7.4 schedule. Some of these consisted of matters stated in error in an affidavit that were corrected in oral evidence. Otherwise the additional matters referred to are of little significance and do not demonstrate untruthfulness on the part of the mother.

[71] Appellant's submissions par 30 WAB 31.

[82] Family Court Act s 89(1).

[83] Family Court Act s 84(2).

[84] Family Court Act s 66A. See also s 86A.

[85] Family Court Act s 66C(1).

[86] Bondelmonte v Bondelmonte [2017] HCA 8; (2017) 259 CLR 662 [31] - [32].

[87] Appellant's submissions pars 11 - 12 WAB 28 (referring in particular to: Tickner v Chapman [1995] FCAFC 1726; (1995) 57 FCR 451, 462, 476 - 477, 495 - 496; Goode v Goode (2006) FLC 93-286 [57] - [64]; and Tibb v Sheean [2018] FamCAFC 142 [75] - [88]).

[89] Tibb v Sheean [82] (referring to Tickner v Chapman (462)).

[90] Tibb v Sheean [85] (referring to French v Fetala [2014] FamCAFC 57 [48]).

[91] Tibb v Sheean [85] (referring to French v Fetala [48]).

[93] Banks v Banks involved proceedings to which the Family Law Act 1975 (Cth) applied. Accordingly, it was concerned with the Commonwealth Act's equivalent to s 66C of the Family Court Act (ie s 60CC of the Family Law Act). However, the provisions are substantially identical. For ease of exposition we will refer to Banks v Banks as if the decision addressed s 66C of the Family Court Act.

[94] Appellant's submissions par 34 WAB 31.

[95] Banks v Banks [50]. See also [52].

[99] Tibb v Sheean [85] (referring to French v Fetala [48]).

[106] Appellant's submissions pars 40 - 41 WAB 32.

[108] Appellant's submissions pars 43 - 49 WAB 32 - 33.

[109] Primary reasons [121] - [122].

[111] Primary reasons [12] - [26].

[116] Gronow v Gronow [1979] HCA 63; 144 CLR 513, 519.

[117] Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519. See also Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614.

[118] Meyer v Solomon [2021] WASCA 168 [144] (referred to with approval in Porter Street Investments Pty Ltd v Nellbar Pty Ltd [2022] WASCA 33 [113]).

[119] Primary reasons [85]. See also at [90].

[120] Primary reasons [85] - [90].

[124] Primary reasons [92] - [108].

[132] George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 112.

[133] Family Court Act s 9A(2)(d).

[134] Primary reasons [134]. See also at [83].

[135] Primary court's orders made 19 November 2020 par 2 BAB 1.

[137] As senior counsel for the father again conceded at the appeal hearing: Appeal ts 5.

[142] Appellant's submissions par 88 WAB 40.

[145] Respondent mother's trial affidavit filed 2 April 2020 pars 23, 25, 47, 80, 88 - 89, 149, 155, 157, 182, 184, 186 GAB 345, 349, 354, 355, 366, 367, 368, 372, 373.

[146] Browne v Browne [2019] WASCA 1 [80].

[148] Child and Adolescent Health Service v Mabior [100].

[149] Appellant's submissions par 97 WAB 42.

[150] Appellant's submissions pars 93 - 94 WAB 41.