Family Court of Australia

BAGLEY & SNELL	[2010] FamCAFC 8	

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – Appeal from interim parenting orders – Same-Sex couple – Appellant sought no orders for time with the respondent – Appellant submitted the Federal Magistrate erred by wrongly equating the respondent to a parent, failing to adhere to the Goode & Goode pathway, erring in the application of s 60CC and failing to adequately weigh issues of credit – Final hearing in the matter listed for hearing in a few weeks time – No merit in any ground of appeal – Appeal dismissed – Had merit been found the circumstances of this case with the  proximity of the final hearing, and difficulty in remitting or re-exercising, would have lead to the orders remaining undisturbed and effective dismissal of the appeal	

Evidence Act 1995  (Cth) s 144
Family Law Act 1975 (Cth) s 60B; s 60CC; s 65C; s 65DAA	

Church & S Overton & Anor [2008] FamCA 952	

Appellant:	Ms BAGLEY	

Respondent:	Ms SNELL	

Appeal Number:	EA	128		of	2009	

File Number:	SYC	5477		of	2009	

Date Delivered:	29 January 2010	

Place Delivered:	Brisbane	

Place Heard:	Sydney	

Judgment of:	Warnick J	

Hearing date:	21 January 2010	

Lower court jurisdiction:	Federal Magistrates Court	

lower court judgment date:	9 October 2009	

LOWER COURT MNC:	[2009] FMCAfam 1144	

REPRESENTATION

Solicitor FOR THE Appellant:	Mr Longworth	

SOLICITORS FOR THE Appellant:	Dettmann Longworth	

COUNSEL FOR THE RESPONDENT:	Ms Christie	

SOLICITOR FOR THE RESPONDENT:	Watts McCray	

Orders
(1)	That the appeal be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Bagley & Snell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE Family Court of Australia at Brisbane	

Appeal Number: EA 128  of 2009
File Number: SYC 5477  of 2009

Ms BAGLEY 	
Appellant

And

Ms SNELL 	
Respondent

REASONS FOR JUDGMENT
1.	R Snell Bagley was born in November 2005, to Ms Bagley.  Before her birth, the mother had commenced a romantic relationship with Ms Snell, a medical practitioner.  Dr Snell and the mother commenced cohabitation about a month after R’s birth and they substantially lived in the same residence until early 2009, although the relationship may have broken down prior to that time.  After the physical separation of the parties, though living primarily with her mother, R spent time regularly, including some overnight time, with Dr Snell.  In mid-June 2009, following a mediation, R spent Tuesday afternoons, till 7.00pm, from 8.00am Thursdays until child care on Fridays and from early afternoon Sundays until child care on Mondays, with Dr Snell.  However, in August 2009, the mother unilaterally stopped the child spending time with Dr Snell.  Dr Snell commenced proceedings in the Federal Magistrates Court of Australia at Sydney.
2.	On 9 October 2009, Federal Magistrate McGuire made interim orders, including that R spend time with Dr Snell from the conclusion of child care each Wednesday until the commencement of child care each Friday and from 11.00am each Sunday until the commencement of child care each Monday.  Against those orders in particular, the mother appeals.  She seeks that there be no order for Dr Snell to spend time with the child.  Her submissions stress that Dr Snell is not a parent of the child.
3.	There are 22 grounds of appeal.  In the mother’s written summary of argument (I use that term though the mother is represented), those 22 grounds are said to fall into categories being:
1.	Acting on a wrong principle.
2.	Failure to give reasons.
3.	Error in application of s 60CC [of the Family Law Act 1975, as amended (Cth)].
4.	Failure to adhere to the approach set out in Goode & Goode.
5.	Failure to give sufficient weight to issues going to credit.
6.	Error in consideration of the best interests of the child.
4.	While I intend to use these categories as headings in the body of these reasons, and to set out the grounds nominated as being contained within each category, I think that, to an extent, the categorisation does not indicate the nature of the submissions made in support.
5.	Further, although these “categories” are largely couched in terms other than as a challenge to the weight which the Federal Magistrate gave to factors, there is a great deal about the mother’s submissions which amounts to no more than that.  Partly for these reasons, I intend to discuss the matters argued in the order of, “Acting on a wrong principle”, then “Failure to adhere to the approach set out in Goode v Goode”, then, together: Failure to give reasons”, “Error in application of s 60CC” and “Error in consideration of the best interests of the child”, and finally, “Failure to give sufficient weight to issues going to credit”.
6.	The trial for final parenting orders is set to begin 8 March 2010.  This may well impact on the ultimate result, assuming merit is found in the appeal grounds.
Acting on a wrong principle
7.	The following grounds are said to raise this argument.
1.	His Honour acted on a wrong principle in considering s 65C(c) of the Act namely:
(a)	His Honour was apparently satisfied on the facts and circumstances of the case that the Respondent met the threshold test for standing (which was conceded by the applicant in any event);
(b)	His Honour then failed to consider afresh the individual facts and circumstances of the case in order to determine whether or not a parenting order of any type was necessary or appropriate in the best interests of the child.
9.	That His Honour erred in failing to find that the Respondent did not have the status of a Parent of the subject child.
13.	That His Honour erred in finding that the evidence regarding the impact on the Applicant of any Order for time between the child and the Respondent and, in particular, the extent to which it might compromise her parenting was a matter properly left for Final Hearing.
21.	That His Honour misdirected himself as to the test to be applied in making parenting orders.
8.	The first submission that Mr Longworth, for the mother, makes here, is that Dr Snell had to pass the “threshold test for standing to bring the application”.  However, he acknowledges that the “standing” of Dr Snell was conceded by counsel for the mother at trial.  It seems that this submission is made merely to highlight the argument:
…that the issue of legal parenthood is of great significance.  The objects and underlying principles to the objects should be considered.  It is not one of the objects of the Act to ensure that “interested others” have a meaningful involvement in the lives of children to the maximum extent consistent with best interests.  That object is reserved for parents.  The principles in Section 60B(2)(b) underlying the objects made the following reference to third parties which is the only such reference in the objects and principles:-
(2)	The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(b)	children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); …
9.	In oral submissions, Mr Longworth gave some particularity to this line of argument.  He submitted that the learned Magistrate had wrongly, in terms of the Act, treated Dr Snell as of equal significance to R, as was the mother.  However, nowhere in his reasons, did McGuire FM say that each party was of equal significance.  Therefore, this submission subjectively interprets the result and the reasons.
10.	Moreover, whether the Federal Magistrate wrongly assessed Dr Snell’s significance to the child is a question of conclusion from facts; the argument is not one of principle.
11.	However, in furtherance of the argument that McGuire FM wrongly treated the parties as of equal significance to the child, and erred in principle, elsewhere in his submissions Mr Longworth correctly points out that in this case no presumption of equal shared parental responsibility applied.  (Indeed, there was no issue about parental responsibility, on an interim basis, before the Federal Magistrate.)  Mr Longworth, again correctly, says that, because no presumption about parental responsibility applied, and no order was sought about it, the terms of s 65DAA did not come into play.  He alludes in particular, to s 65DAA(2) obliging a court, in the circumstances set out, to consider whether a child spending substantial and significant time with each parent would be in the child’s best interests.  He submits that, notwithstanding the position just outlined, McGuire FM made references to the Act which indicate confusion as to whether the “pathway” opened up by an actual or proposed order for equal shared parental responsibility, applied or not.
12.	He points to the following passage:
2.	The issue is what, if any, time [R] should spend with the applicant. She seeks…On my calculations that would be three nights if we use the system of nights, three nights per week or, within the definition in the Family Law Act some substantial sharing of [R]’s care… (emphasis added)
13.	I do not accept that the simple description of the time sought by Dr Snell, by reference to a term similar to that used in the Act, indicates, let alone establishes, that the Federal Magistrate thought that he had to apply the terms of s 65DAA.  In any event, as will be seen, such a proposition is clearly rebutted by the balance of the Federal Magistrate’s reasons.
14.	In a similar vein, Mr Longworth draws attention to paragraph 14 of McGuire FM’s reasons, in which he said:
14.	The respondent proposes that there be no contact between [R] and the applicant in the interim.  The respondent’s counsel mounted and emphasised an argument that the applicant does not have the status of legal parent pursuant to s.60H of the Family Law Act and, as a result, the court should properly at law have different considerations than should this be an interim argument between two parents and as for example in respect of the consideration as to a meaningful relationship for [R] with relevant adults. (emphasis added)
15.	Mr Longworth says that both s 60B (Objects of Part and Principles underlying it) and s 60CC(2), expressing primary considerations in “How a court determines what is in a child’s best interests” only refer to “meaningful involvement” or “a meaningful relationship” between children and parents, not between children and other relevant adults.  He suggests the highlighted passage shows that McGuire FM was confused on the point.
16.	However, in paragraph 15, McGuire FM said:
15.	The respondent through her counsel says that the respondent did not on the evidence concede the right of parenthood to the applicant in respect of [R].  She argues that the court should therefore have an additional or different focus in this determination than as I said between the usual situation of a contest between two parents.  It is argued that that different focus is as a result of the different legal nature of the relationship between the child and the applicant. …
17.	Again, in my view, the terms of paragraphs 14 and 15 indicate that the learned Magistrate was alert to the point that then counsel for the mother was seeking to make.  Those terms do not demonstrate any misunderstanding of the terms of the Act.  And again, later passages of the learned Magistrate’s reasons, including that immediately following, reinforce this view.
18.	In support of his broader argument Mr Longworth raises another passage, namely:
24.	The respondent raises and in my view places some emphasis on an issue directly in respect of the approach that I take in respect of the relevant statutory considerations.  It is true given the chronology of events as apparently agreed between the parties that the applicant may not have the status of parent conferred by statute under s.60H of the Act.  That in turn refers me to a number of statutory considerations which I have already referred to, for example s.60CC(2)(a) of the Act obliges me to consider orders which address and maintain, where appropriate, a child having a meaningful relationship with both parents.  Quite clearly on the chronology and given the statutory interpretation the applicant is not a parent. (emphasis added)
19.	Mr Longworth points to the first words emphasised as indicating uncertainty. If they did, the last sentence removes that uncertainty.
20.	In my view, that last sentence also means that there is no merit in ground 9, that his Honour erred in failing to find that Dr Snell did not have the status of a parent of the subject child.  Further, that was also a matter about which there was no issue at the hearing before McGuire FM.
21.	Next, of his propositions that the reasons evidence that the learned Magistrate had, or might have, wrongly treated Dr Snell as a parent, or as “equally significant” to the mother, Mr Longworth points to the terms of paragraph 26 of McGuire FM’s reasons:
26.	There is a collateral argument put by the respondent’s counsel as I have already stated being that a court may ultimately determine that it is not in [R]’s best interests after the hearing and testing of the evidence for her to have a continuing relationship with the applicant.  The logic of the respondent’s argument is that if that is the case then the child may be distressed by an ultimate cessation of a relationship with the applicant.  That is logically a valid argument.  The respondent argues that it is perhaps a more weighty argument on account of the fact that the applicant does not have the status of parent and, if I understand the respondent’s argument correctly, there might be a stronger likelihood that that might occur.  However, I am of the view that such an argument, to put it colloquially, misses the point.  (emphasis added)
22.	In what I regard as a strained proposition, Mr Longworth points to the sentence highlighted as indicating doubt in the Federal Magistrate as to whether Dr Snell might be regarded as a parent.  I think the sentence’s meaning clear enough.  It records the mother’s argument that, because Dr Snell is not “a parent”, there was a stronger likelihood that no order for her ongoing time with the child would be made at a final hearing.
23.	In the mother’s written summary, large sections of the affidavit material of the mother that was before the learned Magistrate, are set out.  It is then submitted:
The paragraphs identified above raise matters involving the Respondent’s behaviour towards the Appellant and towards the child which are of significant concern and are undisputed.  These undisputed matters could have given rise to a finding that there was a possibility that the Appellant’s parenting capacity would adversely be affected in future.  This represented a risk to the child which could be addressed by no further contact or minimal contact.  Some other matters raised by the Appellant were disputed and none of those mattes are referred to above.  In our submissions it is submitted that there is a possibility that the Respondent will continue to dominate and overbear the Mother in relation to issue of care around [R] and to undermine her capacity to care for the child.
24.	As to whether matters raised in the mother’s material, to which Dr Snell did not specifically reply, were “undisputed”, (as the mother’s submission contends), in her summary, the mother acknowledges that Dr Snell “…states specifically in her Affidavit where she does not respond to the specific paragraphs, she does not make a concession”.
25.	In any event, the submission just quoted from the mother’s summary amounts to no more than that another view of the matter before him, was open to the Federal Magistrate.  Such an argument is not persuasive on appeal.
26.	Ground 13, that McGuire FM erroneously considered that the question of the effect on the mother’s parenting of an order for the child to spend time with Dr Snell, was a question properly left to final hearing, directs attention to paragraph 34 of his Honour’s reasons.  That paragraph, and, to give it context and demonstrate how the learned Magistrate dealt with the evidence of conflict between the parties, several paragraphs preceding it, are here set out:
30.	I can find on the evidence that the mother at least before separation and perhaps in the period following separation saw a role for the applicant in [R]’s life, and I refer again to the evidence at paragraph 172 of the respondent’s own affidavit and the report of [the psychologist], and perhaps also the letter from the respondent to the applicant annexed to the applicant’s affidavit.  I also know that there is an extremely high level of friction and conflict between the parties.  This is an important consideration for me and prima facie, such an environment is not in [R]’s best interests.  However, I must also take into account that conflict and friction is a common occurrence for children where their family structure has broken down or is breaking down and whilst undesirable it is not in my view on balance of such manifest magnitude so as to cause me to say that there should be no contact for [R] with the applicant.  
31.	The simple fact is that the physical separation, as distinct from the emotional separation, of the parties has occurred and manifestations of the conflict might therefore be limited at least in the presence of [R].
…
34.	A more intricate issue raised by the respondent mother is that her parenting may be compromised by [R] going to the applicant as I have already articulated.  This is in the sense of the well-known decisions of the Family Court in Sedgley and Sedgley and Re Andrew.  This is the mother’s claim.  Her affidavit and the report by [the psychologist] suggest on the face of it, albeit untested, that the respondent mother feels dominated and perhaps intimidated by the applicant.  This may well be the case.  However, such is the nature of this type of argument that it is nigh impossible for me to make findings without full expert evidence and testing of that evidence directed to the real point, and that is the manifestation of such feelings in the respondent on her parenting rather than the fact of such feelings.  To put it simply, I am of the view that that is an issue that is properly left for the final hearing. (footnotes omitted)
27.	A critical difficulty for Mr Longworth’s argument here is that he does not show that there was evidence of the “manifestation of such feelings in the [mother] on her parenting…”, which his Honour should have accepted, but did not.  Nor does Mr Longworth show that any particular inference should have been drawn from such evidence as there was of the mother’s feelings about Dr Snell’s conduct towards her.
28.	Further, as to the approach that McGuire FM took to the question of any impact on the mother’s parenting, of orders for the child to spend time with Dr Snell, in the mother’s written summary, (intermingled with further arguments going to the grounds discussed earlier) the arguments are:
There is untested expert evidence that the Mother has felt threatened and intimidated by the Applicant and has experienced difficulty in ending the relationship. There is evidence that the child has been exposed to a high level of conflict and there was a finding accordingly “I also know that there is an extremely high level of friction and conflict between the parties.” [Judgment Pg 7; para 30].
In the circumstances of this case the Appellant and the Respondent to the Appeal should not have been treated as equally significant in the life of the child.
The learned Federal Magistrate went on to take into account that “…conflict and friction is a common occurrence for children where their family structure has broken down or is breaking down…” [Judgment Pg 7; para 30]. “Family” is not defined in the Family Law Act. It is submitted that the Federal Magistrate erred in importing the notion of family structure so as to consider the two parties as equally significant in the life of this child necessitating orders to preserve equally the relationship between the child and each of the parties.
The obligation to ensure that the child has a meaningful relationship with her sole parent, the Appellant, to the maximum extent consistent with her best interest should have been the priority given the Objects of the Act, Section 60B.
Given the harmful conflict and mental health issues of the Respondent to the Appeal which were undisclosed and not fully addressed in Affidavit, the proper course, with respect, was to promote and protect the relationship between the child and her mother by ceasing or, in an exercise of discretion, minimising time between the child and the Respondent.
29.	As to Mr Longworth’s criticism of the Federal Magistrate’s use of the term “family structure”, I do not think his Honour’s use of that term inappropriate to the topic he was discussing.  Even if he was applying it to the household of these parties and child – which literally he did not – I would not, on the view he took of the history of the mother, Dr Snell and the child – regard that as  inappropriate.  In oral submissions, Mr Longworth also criticises his Honour’s statement that conflict was a common occurrence for a child in the circumstances described, as not being the subject of evidence.  The submission seems prefaced on the basis that the observation wrongly diminished the weight that McGuire FM gave to the evidence of conflict.  I do not accept that the reasons show that.  No submissions were directed to the terms of s 144 of the Evidence Act 1995 (Cth), relating to matters of common knowledge.  I regard the observation as common knowledge.
30.	As appears from the written submissions, the argument as to the court’s obligation to ensure that the child has a meaningful relationship with her sole parent, to the maximum extent consistent with her best interest, is put forward by Mr Longworth to support his contention that the time spent by R with Dr Snell should have been minimised, so as to maximise the time with the mother, given the conflict between the adults and Dr Snell’s mental health.
31.	This is a use not often made of the objects and primary considerations set out in Part VII of the Act.  I do not say it is not available, but in the end, I do not think it changes the focus of the enquiry as to what time the child should spend with Dr Snell, the answer to which is essentially, that time which is in her best interests.
32.	Mr Longworth highlights the (undenied) assertion in the mother’s affidavit, that she was “not planning to have a child with anyone else as a “partner”.” Accepting that, the reality of what happened once the child was born, which includes the mother giving the name “Snell” as one of the child’s names, was always likely to be given significance, as it will be seen it was, by the learned Magistrate.
33.	Mr Longworth also quoted from the decision of Benjamin J in Church & S Overton & Anor [2008] FamCA 952, where his Honour, referring to an issue of the time, if any, that grandparents should spend with their grandchildren, said:
43.	…However, any determination of the best interests of a child or children should be informed by the family dynamics between the children’s parent/s and grandparent/s. In that regard, the views of the parents are significant but not necessarily determinative.
34.	Again, in support of the proposition that insufficient weight was given by McGuire FM to the mother’s views, Mr Longworth points only to the orders made.  He does not point to anything expressed in McGuire FM’s reasons to show that his Honour placed insufficient weight on the mother’s views.
35.	As seen, Ground 21 asserts, “That his Honour misdirected himself as to the test to be applied in making parenting orders”.  This ground calls into question what Mc Guire FM said in paragraph 33 of his reasons.  As seen a few paragraphs before, in the immediately preceding paragraphs, his Honour had discussed the matter of conflict between the mother and Dr Snell.  Then he said:
32.	The applicant it seems has, from the evidence tendered, some history 
of depression and similar illnesses.  It is also quite clear on the evidence however that she has sought assistance historically over time in respect of this condition.  It is true, and there is some merit in the submissions of counsel for the respondent, that the applicant might perhaps have volunteered this information in her initiating affidavit rather than it coming to the court’s attention from the respondent.  Equally there is some merit that the court would have been assisted by some objective prognosis as to the applicant’s condition, if any.  
33.	Nevertheless, I am looking at the short term and more immediate situation for the child.  To put the issue in the sense of almost a double-negative, I ask the question is there evidence of such probity 
to convince me that there should not be contact between the child and the applicant on the basis of the applicant’s health.  Considering the evidence, I am not of the view that this is the case.  (emphasis added)
36.	The argument is that the proper test was, not as highlighted in the above passage, which assumes contact unless evidence indicates to the contrary, but,  in the context of ss 60B and 60CC, “what was in the best interests of the child”.
37.	As outlined earlier, in a category to be considered later, there are assertions that the learned Magistrate erred in considering the best interests of the child.  Further passages constituting the context of paragraph 33 of the Federal Magistrate’s reasons will be then set out.  For the moment, I simply express the view that the learned Magistrate had, earlier in his reasons, outlined the support for an order for the child to spend time with Dr Snell, as being in the child’s best interests.  In paragraph 33, he was not questioning whether some assumption in favour of contact was rebutted, but was merely balancing factors against those that supported contact.
Failure to adhere to the approach set out in Goode & Goode
38.	Ground 5 is the relevant ground.  It is:
5.	His Honour failed to follow the guidelines provided in Goode & Goode and in particular filed to identify the issues in dispute.
	Particulars
(a)	The allegation by the Applicant that the Respondent was both undermining her parenting and trying to usurp her role as the child’s mother;
(b)	The nature of the child’s relationship with the Respondent;
(c)	The nature of the relationship between the parties;
(d)	The impact of the relationship on the mother’s parenting;
(e)	The impact on the child of competition by the Respondent for the role of mother; and
(f)	The mental health of the Respondent.
(g)	The impact on the mother’s parenting of any arrangement of time spent between the Respondent and the child.
39.	The learned Magistrate said:
2.	The issue is what, if any, time [R] should spend with the applicant Dr [Snell]. … The respondent Dr [Bagley] who is the biological mother proposes no time between [R] and the applicant in the interim.
…
6.	The applicant’s case put in summary and on my understanding is this: that [R] had lived in the same household as the applicant virtually since her birth, so almost four years.  She argues that she had an ongoing involvement with [R]’s care.  It is perhaps disputed on the evidence as to the degree and nature of that involvement but regardless of that prima facie some involvement.  She argues that as a consequence [R]’s experience throughout her life has been of two adults in her life.
…
15.	… The respondent argues that if ultimately a court at a final hearing determines that it is not in [R]’s best interests to have a continuing relationship with the applicant, then to order in the interim such a regime of time for [R] with the applicant would cause stress for the child or cause the child to be distressed in the future if that relationship needed to be terminated.
16.	The respondent also refers to the copious tendered material but with particular reference to the applicant’s history of mental health difficulties.  The respondent says that the court should place some emphasis on the fact that the applicant did not disclose her medical history herself and this was only brought to light and referenced by the applicant after the respondent raised the issue.  Secondly in respect of that particular issue the respondent argues that the court should have some residual concerns as to the applicant’s health and in particular the applicant’s mental health in that she should have brought to the court objective material including a prognosis.  
17.	Next the respondent argues that the court should take into account the impact of a continuing relationship between [R] and the applicant on the respondent’s own parenting capacity of [R].  The essence of such an argument is that if the parties are in conflict then [R] spending time with and going to the applicant would cause distress to the respondent and therefore impact on her parenting of [R] and vicariously impact on [R]’s best interests.
18.	Next the respondent argues that the evidence suggests that [R] has settled or become more settled in her own demeanour since August and since the cessation of [R] spending time with the applicant.  The respondent argues that there is corroboration from other persons, including the child’s kindergarten or child care teacher.
19.	The respondent argues that she is the actual responsible parent for the child including the person responsible for the financial care of [R].
40.	The learned Magistrate then described the nature of an interim hearing, before, in paragraph 23 of his reasons, specifically recognising that despite the limitations of an interim hearing, he was obliged “to follow a legislative and intellectual process, most recently and most importantly articulated in the decision of Goode and Goode”.
41.	In the next few paragraphs, as mostly already seen, his Honour addressed the argument about the status of the mother as parent, compared to the standing of Dr Snell.  He then said:
29.	It brings me to the question of, with the plethora of allegation, counter-allegation, issues of credit and disputed fact, what can I extract or what do I know about [R]’s circumstances.  I know that [R] is very young.  She is not yet four years of age.  I know that she has for the best part of her life had a relatively consistent presence of both the applicant and the respondent in her life.  I know that there is a dispute as to the status each sought for the other in [R]’s life.  But that there is no dispute of the fact of the presence of both in [R]’s life.  
42.	In addition, as earlier seen, in paragraphs 30 to 34, his Honour discussed the conflict between the adults, the question of any impact of that on the mother’s parenting, and the issue of Dr Snell’s mental health.  McGuire FM also said:
35.	Finally, the mother argues that the child is more settled now than prior to her unilateral removal of [R] from contact with the applicant.  There are some corroborative observations from the respondent’s witnesses.  I am of the view, however, that such a term is perhaps relative and difficult to assess in respect of a four year old.  It is a type of issue that a court should receive expert assistance in respect of, and even if those observations are accurate, the evidence in my view is not of such weight or magnitude that it should on balance cause the removal of a child from an ongoing relationship of some four years’ duration.
43.	In my view, McGuire FM adequately identified the issues in dispute.  As seen, the hearing took place on 8 October 2009.  His Honour delivered judgment the next day.  As Heydon J said:
Thirdly, appellate courts will make assumptions in favour of an ex tempore judgment which they will not make for a judgment reserved for some time.  A failure to refer to evidence in an ex tempore judgment, or to analyse it fully, is more likely to be excused on the ground that the recency of its tender makes it unlikely that it was overlooked.
(“Practical Impediments to the Fulfilment of Judicial Dates”, The Judicial Review Vol 6 number 4)
Failure to give reasons
44.	The following grounds are relied upon in support of this argument.
2.	His Honour failed to give reasons why it was in the best interests of the child to make parenting orders in favour of the Respondent or at all.
11.	That His Honour failed to apply any or sufficient weight to the evidence of [the] Psychologist.
12.	That His Honour failed to apply any or sufficient weight to the evidence regarding the impact on the Applicant of any Order for time between the child and the Respondent and, in particular, the extent to which it might impact upon her parenting.
15.	That in the absence of evidence His Honour made findings that it was in the child’s best interests to have regular and frequent time with the Respondent.
22.	That His Honour placed undue weight on impact on the child were no Order made at the interim stage for time between the child and the Respondent but such an Order were made at the final hearing.
Error in application of s 60CC
45.	These are the grounds said to raise this argument.
3.	His Honour acted on a wrong principle by treating s 60CC of the Act as “a set of guidelines” rather than mandatory considerations.
4.	His Honour failed to consider the principle of protection of the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
6.	That His Honour failed to apply any or sufficient weight to the evidence as to the Respondent’s mental health.
10.	That His Honour failed to apply any or sufficient weight to the finding of his conflict and friction between the Applicant and the Respondent.
14.	That His Honour failed to apply any or sufficient weight to the evidence that since time had ceased between the child and the Respondent she had become more settled.
16.	That His Honour erred in failing to make an Order to ensure the subject child would have the benefit of a meaningful relationship with her parent to the maximum extent consistent with her best interests.
17.	That His Honour erred in failing to make an Order to ensure the subject child would be protected from psychological harm.
18.	That His Honour erred in failing to make an Order to ensure the subject child would not be exposed to abuse, neglect or family violence.
19.	That His Honour erred in failing to properly assess the considerations pursuant to s 60CC.
Error in consideration of the best interests of the child
46.	The following ground is here relied upon:
20.	That His Honour erred in finding it was in the best interests of the child to resume spending time with the Respondent.
47.	There is a degree of repetition in the grounds in these categories of arguments already discussed.  I will not repeat that discussion.
48.	As to these three categories, much of his Honour’s reasons has already been set out.  In summary, in my view, the passages demonstrate an appreciation of the issues raised by the parties, identification of the matters supporting time to be spent between Dr Snell and the child – primarily the history of Dr Snell’s involvement with the child and past support for that involvement, post-separation, by the mother, set against factors raised by the mother.  His Honour concluded his reasoning:
36.	In conclusion, therefore, and on balance and after consideration of the evidence and the legal considerations, I am of the view that [R]’s best interests are served by her spending time with the applicant who has, on the evidence, been a constant and regular presence in this child’s young life.
37.	I am mindful of previous regimes of time and I am mindful of the respondent’s evidence to the effect, and to borrow her term, of “ping-ponging” the child between households.  In my view, that is not a desirable circumstance for [R].  Consequently, I have looked at the applicant’s proposal accordingly.  I must weigh up the commonly held view that children of such a young age as [R] need regular and frequent contact with important persons in their lives so as to maintain relationships as against the obvious disruption of moving between households.  After some reflection, and again with the difficult balancing object of those competing circumstances, and considering the option of whether the visits should be short or sharp but more often, I am of the view that the proposal of the applicant as set out in her interim application, is in [R]’s best interests in the short term and I propose to order accordingly.
49.	In my view, leaving aside arguments about specific aspects of the case, or specific passages of the reasons, the path by which McGuire FM reached the result is readily discernible.
50.	In the mother’s written summary, in support of the asserted “Failure to Give Reasons”, Mr Longworth again refers to the evidence about conflict between the parties and to McGuire FM’s dealing with that.  He submits:
However, his Honour does not go on to say why the orders sought by the respondent were made without consideration of something that would be less stressful for the child.
51.	His Honour gave reasons for the orders made.  In this case, those reasons implicitly negate other possibilities.  It is not necessary to address every possible gradation of contact and explain why it is rejected.
52.	As to Ground 3, that McGuire FM wrongly treated s 60CC of the Act as containing “a set of guidelines” rather than mandatory considerations, his Honour said:
25.	However, I take the view that s.60CC of the Act provides a number of guidelines, or compulsory considerations to put it another way, to assist me in my ultimate determination which of course is to make orders which are in my view on the evidence in [R]’s best interests.  However that does not remove that ultimate responsibility and I am of the view that there is no necessary conflict between the two concepts.  That is, some of the considerations set by statute may not be relevant on the evidence – that is quite a common occurrence.  For example, with a four year old, it may be that court would not place any or any great weight on the views of the child.  In other senses, I may be precluded from some of those considerations simply by statute.  Nevertheless, in my view, many of the statutory considerations remain relevant. As for example I must consider the nature of [R]’s relationship with relevant persons in her life.  I must consider the capacity of the parties to care for the child.  I must consider the effect, if any, on changes in [R]’s current circumstances on the basis of the proposals of the parties.  (emphasis added)
53.	Whether “guidelines” was a well-chosen word for the factors referred to in s 60CC(3) of the Act or not, in my view, the mandatory consideration of them was clearly recognised in the sentence highlighted.
54.	Next, Mr Longworth raises the effect of the orders made, in that the child will not be in the same home for more than two days at a time at any time and is away from the mother in a way that never occurred prior to the parties living in separate houses.  Mr Longworth writes:
It is submitted it was open to his Honour to make orders a great deal less disruptive to the child given his Honour’s consideration that being, to use the appellant’s words “ping-ponged” between the households was not good for her.
55.	And later:
It is submitted that the conservative course would have been in the event that His Honour considered that the relationship between the child and the Respondent should be preserved until final hearing then some limited period of time could have been ordered for this 4 year old child.
…His Honour gives no specific reasons for recommending expedition however, on the face of the Orders, His Honour obviously considered it appropriate.  Accordingly it is submitted that that fact alone indicated a more conservative parenting arrangement was called for.
…
56.	McGuire FM explained his reasons for the arrangement of time to be spent between the child and Dr Snell in the final paragraph of his reasons, set out before.
57.	These submissions also draw the same responses as given in relation to some earlier arguments.  To say a course was open to a court does not of itself assert appellable error when another course has been taken.
58.	Finally, it simply does not follow that because a final hearing was expedited, some “more conservative parenting arrangement was called for”.
Failure to give sufficient weight to issues going to credit
59.	The grounds said to raise this argument are:
7.	His Honour erred in a finding of fact that the Respondent had sought assistance regarding her mental health.
8.	His Honour failed to draw an adverse inference regarding the failure of the Respondent to provide information regarding the state of her past and present mental health.
60.	In the mother’s written summary, Mr Longworth writes that “These grounds relate to the failure of the Respondent to refer at all in her initial material to mental health difficulties, current treatment and prognosis”.
61.	As to this aspect, as seen, the Federal Magistrate said, in paragraph 16 and 32 of his reasons, repeated here:
16.	The respondent also refers to the copious tendered material but with particular reference to the applicant’s history of mental health difficulties.  The respondent says that the court should place some emphasis on the fact that the applicant did not disclose her medical history herself and this was only brought to light and referenced by the applicant after the respondent raised the issue.  Secondly in respect of that particular issue the respondent argues that the court should have some residual concerns as to the applicant’s health and in particular the applicant’s mental health in that she should have brought to the court objective material including a prognosis.  
…
32.	The applicant it seems has, from the evidence tendered, some history 
of depression and similar illnesses.  It is also quite clear on the evidence however that she has sought assistance historically over time in respect of this condition.  It is true, and there is some merit in the submissions of counsel for the respondent, that the applicant might perhaps have volunteered this information in her initiating affidavit rather than it coming to the court’s attention from the respondent.  Equally there is some merit that the court would have been assisted by some objective prognosis as to the applicant’s condition, if any.  
62.	As to the asserted error of fact, the finding is simply that the mother had sought assistance in the past.  The evidence from medical practitioners supported that finding.
63.	Otherwise, while the learned Magistrate might have drawn some conclusion against the credit of Dr Snell from her failure to proffer evidence of past medical conditions, I reject any proposition that, in an interim hearing where parties are not cross-examined, such an inference should have been drawn.
Summary
64.	As I have not found merit in any of the arguments on appeal, the appeal should be dismissed.
Had merit been found in the appeal grounds, what orders would be made?
65.	In my view, having regard to the passage of time in a young child’s life since the orders appealed, a re-exercise of discretion, without further evidence, would not be appropriate.
66.	Yet, further evidence is likely to take some time to gather and may well be contentious.  I am also told that an expert report is expected.
67.	These observations would lead me to consider remission.
68.	However, I see little to be gained by remitting the matter for an interim hearing at a time which might be only a few weeks before a final hearing.  Indeed, to do so would likely place the court re-hearing the interim issues in an almost impossible position.
69.	Had I found merit in any argument, I would have in any event not disturbed the present orders, resulting in the appeal’s dismissal.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.

Associate:  

Date:  29 January 2010