FAMILY LAW – CHILDREN – Interim parenting – Relocation – Where the parties and child relocated from the United States to Australia in 2019 – Where subsequently the parties have separated on a final basis – Where the mother seeks to relocate back to the United States with the child on an interim basis – Where the father and Independent Children’ Lawyer oppose the mother’s Application – Where the mother suffers from a depressive anxiety condition – Where both parties make allegations of the other engaging in family violence – Where the Court noted such factual dispute cannot be resolved in interim proceedings – Application dismissed.
Legislation:
Family Law Act 1975 (Cth) Pt VII, s 4AB, 43(1)(c), 60B, 60CA, 60CC, 61DA, 65DAA
Ms Kelso of Legal Aid NSW Sydney Central Family Law
ORDERS
SYC 5377 of 2019
BETWEEN:
MR ANGELI
Applicant
AND:
MS FARINA
Respondent
LEGAL AID NSW SYDNEY CENTRAL FAMILY LAW
Independent Children’s Lawyer
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
23 NOVEMBER 2020
THE COURT ORDERS THAT:
1.The Application in a Case sealed 29 October 2020 filed 23 October 2020 is dismissed.
2.The matter be listed for a final hearing at the earliest opportunity.
3.Leave is granted to the Independent Children’s Lawyer to issue such subpoenas as the Independent Children’s Lawyer deems appropriate and as may be reasonably requested of the Independent Children’s Lawyer by either of the parties.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Angeli & Farina [2020] FamCA 975
Case
[2020] FamCA 975
Decision Date
CaseChat Overview and Summary
In *Angeli & Farina*, the Family Court of Australia considered an application by the mother for interim orders to relocate with the child to the United States. The father and the Independent Children’s Lawyer (ICL) opposed this application. The parties and the child had previously relocated from the United States to Australia in 2019, and had since separated on a final basis. The mother suffers from a depressive anxiety condition, and both parties made allegations of family violence against each other, which the Court noted could not be resolved at an interim stage.
The primary legal issue before the Court was whether to grant the mother's application for interim relocation of the child to the United States, having regard to the child's best interests under section 60CC of the *Family Law Act 1975* (Cth). This required the Court to consider various factors, including the child's views, the parents' decision-making capacity, time spent with the child, communication, parental obligations, family violence, the effect of change, and the practical difficulties of implementing orders. The Court also had to navigate the complexities of determining these issues in interim proceedings, where conflicting evidence and limited information are common.
The Court's reasoning was guided by established principles for interim relocation applications, as outlined in cases such as *Morgan* and *Goode*. It acknowledged the difficulty of resolving complex factual disputes, including allegations of family violence, at an interim stage. The Court considered the evidence presented, including the report of a single expert, Dr D, who noted the child's expressed desire to return to the United States but also indicated the child's vulnerability and potential to reflect his mother's distress. Despite the child's expressed views and the mother's primary carer role, the Court found that the child had a warm, close, and loving relationship with both parents. Crucially, the Court noted that the evidence before it was insufficient to definitively resolve disputed issues relevant to the child's best interests at this interim stage.
Ultimately, the Court dismissed the mother's application for interim relocation. The matter was listed for a final hearing at the earliest opportunity, and leave was granted to the ICL to issue subpoenas as deemed appropriate.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The Application in a Case sealed 29 October 2020 filed 23 October 2020 is dismissed.
2. The matter be listed for a final hearing at the earliest opportunity.
3. Leave is granted to the Independent Children’s Lawyer to issue such subpoenas as the Independent Children’s Lawyer deems appropriate and as may be reasonably requested of the Independent Children’s Lawyer by either of the parties.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Angeli & Farina has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Background
Background to the litigation
The ICL seeks that orders be made in accordance with those set out in their case outline document as follows: 1. The Mother’s Application in a case be dismissed.2. The matter be listed for a Final Hearing at the earliest opportunity.3. Leave is granted to the Independent Children’s Lawyer to issue subpoenas.PARTIES’ CONTENTIONS AND AGREED OR OBJECTIVELY VERIFIABLE FACTS In 1978, the father was born. He is aged 42 years. In 1979, the mother was born. She is aged 41 years. In 2003, the parties married in Europe. In 2010, the parties commenced living in City A, B State in the USA. In 2011, the child was born. He is currently aged nine (9) years. At this time, the mother ceased working as an investment banker. In September 2017, the parties’ became citizens of the USA. In July 2018, the parties first travelled to Australia for a period of three (3) weeks to, as the father contends, explore job opportunities for himself and the prospect of the parties and child relocating to Australia. In October 2018, the father accepted an offer of employment as an educator with the G Organisation. On 15 January 2019, the father moved to Australia and commenced employment with the G Organisation. The mother and the child remained living in the USA. In late March 2019, the mother and child travelled to Australia to visit the father and spent approximately two (2) weeks in Australia. In April 2019, the mother and the child travelled to Australia to visit the father and spent approximately two (2) weeks in Australia. The father, the mother and the child were all granted permanent residency at or about this time. In June 2019, whilst the mother and child were travelling in Europe, the father “found emails between his wife [the mother] and Ms H” which the father construed as suggesting the two were in a romantic relationship: Dr D’s Single Expert Report dated 29 November 2020 at page 15. It is undisputed that the mother has formed a relationship with Ms H (“the mother’s current partner”) who currently lives in City A, B State in the USA. On 2 July 2019, the mother and the child arrived in Australia to live with the father. On 1 August 2019, the parties attended counselling with J Service. They attended for three (3) sessions together and, subsequently, the father continued to attend some sessions on his own. On 15 August 2019, the mother contends that the parties separated on a final basis and, shortly after, on the same day, the father commenced proceedings in the Federal Circuit Court of Australia. In August 2019, the maternal grandparents arrived in Australia to support the mother. The maternal grandparents lived in Europe. On 16 October 2019, Judge Boyle of the Federal Circuit Court of Australia made the following Orders:THE COURT ORDERS THAT:1.The proceedings are transferred to the Family Court of Australia at Sydney and are listed for directions before a Registrar on 20 November 2019 at 10:30am. 2.Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer be appointed for the child Z born … 2011. 3.The Legal Aid Commission of New South Wales is requested to make arrangements as soon as possible for appropriate representation for the child.4.The Court advise the Senior Solicitor, Family Law Litigation Section of the Legal Aid Commission of NSW of this order forthwith.5.Each party make available to the Legal Aid Commission of NSW (Sydney Office) forthwith copies of all applications and affidavits upon which that party relies together with any existing orders and copies of any relevant reports.6.The Mother and Father facilitate the attendance upon his/her representative of the child at times and dates requested by that representative.THE COURT ORDERS BY CONSENT PENDING FURTHER ORDER THAT:7.Z spend time with the Husband as follows:a. During school term time:i.Every Monday to Friday from 7.30am. when the Husband will collect Z and deliver him to school;ii.Every alternate Saturday commencing 19 October 2019 from 10.00am Saturday to 1.00pm Sunday and each alternate Saturday thereafter; andiii.Every second Wednesday commencing 23 October 2019 from after school until 7pm. when the Husband will assist Z with his homework and give him dinner before returning him home.b. At such other times as agreed in writing between the parties.8.Except when time is to commence "from after school" or conclude by delivery "to school", changeover take place at the entrance to the Wife's building.9.Notwithstanding any other order, Z spend time with the Husband on the following special days:a. From 9.00a.m. until 5.00p.m. on Father's day each year;b. On Z's birthday from after school until 6.00p.m. in the event the birthday falls on a school day, when the Husband will collect Z from school at the commencement of the time and return Z to the Wife's residence at the conclusion of the time, and from 9.00a.m. until 1.00p.m. in the event the birthday falls on a non-school day.10.Z be at liberty to telephone either parent at any reasonable time when the other parent shall do all acts and things necessary to facilitate, positively encourage and not hinder Z speaking with the other parent by telephone.11.The Father be restrained, on a without admissions basis from:a. Permitting Z access to his personal computer or allowing Z to access any electronic device on which Z may inadvertently be exposed to pornography;b. Accompanying Z into the toilet area; andc. Having a shower with Z.12.Each party be restrained from:a. Denigrating the other parent, Z or any member of the other parent's family, in the presence and/or hearing of Z, and each parent do all acts and things necessary to prevent any third party from denigrating the other parent or any member of the other parent's family in the presence and/or hearing of Z;b. Discussing these proceedings, including the contents of any document filed by or on behalf of either parent, with Z;c. Showing Z any document filed by or on behalf of either parent.Appointment of Single Expert13.That Dr D be appointed as the Court Expert in these proceedings pursuant to Part 15.5 of the Family Law Rules to provide a report in respect of Z. 14.That such report shall deal with the following matters relevant to these proceedings:a. The benefit of Z having a meaningful relationship with both of his parents;b. The proposed return of the Wife and Z to City A, B State, USA. c. Any views expressed by the child and any factors that would affect the weight that the Court should place on those views.d. The nature of the relationship between the child with each of the child's parents and with significant other persons (including grandparents or other relatives).e. The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and other parent.f. The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:i.Either of the parents; orii.Any other child, or other person, (including grandparent or other relative) with whom the child has been living.g. The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.h. The capacity of:i.Each parent; andii.Any other person, (including any grandparent or other relative) to provide for the needs of the child including emotional and intellectual needs.i. The maturity, sex, lifestyle and background of the child and of either of the parents and any other characteristics of the child that the Court Expert thinks are relevant.j. The attitude to the child and to the responsibilities or parenthood demonstrated by each of the parents.k. Any family violence involving the child or a member of the child's family.l. Any further matter that related to the care welfare or development of the child.15.Noting the date of 7 November 2019 has been reserved for interviews, that in order to facilitate preparation of the report referred to in the preceding order:a. The parties each provide the Court Expert with copies of documents filed on their behalf in these proceedings within fourteen (14) days;b. Each of the parties is to attend upon the Court Expert for such interviews and observation sessions as the expert requires at any reasonable time nominated by the Court Expert.c. The Mother is to ensure the attendance of Z at such interviews or observation sessions and as such times and places as the Court Expert reasonably requires.16.That the parties equally meet the costs of the Court Expert.17.The mother to file and serve an Affidavit by the maternal grandmother by 1 November 2019 and the father may respond via Affidavit by 6 November 2019.18.That the father file and serve an amended application addressing financial orders, and any Affidavit and Financial Statement by 27 November 2019.19.The Court Notes that:a. The father may not be able to drive Z to school every day as provided by Order 7.a.i in which event the father will give to the mother notice by text message or email by 5.00pm the previous day. b. The interim parenting orders herein are intended to put in place arrangements for Z only until the parties' competing applications for interim orders are dealt with by the Court. Family Law Watch List Orders20.That the Mother, MS FARINA (date of birth …1979), their servants and/or agents be and are hereby restrained by injunctions, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said child Z, born … 2011 from the Commonwealth of Australia.AND IT IS REQUESTED that the Australia Federal police give effect to this order by placing the name of Z, born … 2011 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the Watchlist until the Court orders its removal.21.That each party be restrained from selling, disposing of or encumbering any property currently existing other than to draw funds from bank accounts to meet ordinary costs of living, without giving to the other party 21 days' notice in writing of his or her intention to do so, with the exception that the husband may pay accrued credit card debt from funds in bank accounts. 22.That without admission the Husband will not charge credit cards in the wife's name.23.That on Saturday 19 October 2019 the husband shall provide to the wife via the maternal grandmother her American Express Card, in the event that he locates it.
Evidence
Evidence Before The Court
Senior counsel for the father contends that, at this interim stage of the proceedings, the Court is without sufficient information to determine the extent of the risk of the child contracting COVID-19 during the course of travel and, if that occurred, the extent to which the mother would be able to access appropriate health treatment. The father contends that the Court’s inability to determine the extent of risk and, hence, whether it presented an unacceptable risk of harm to the child was a further reason why the Court should decline to accede to the mother’s interim Application to relocate. EVIDENCE The mother relies upon the following documents:(a)Application in a Case filed on 23 October 2020 sealed 29 October 2020; (b)Affidavit of the mother filed 23 October 2020 including annexures; (c)Affidavit of Dr C filed 29 October 2020; and (d)Single Expert Report of Dr D dated 29 November 2019. The father relies upon the following documents:(a)Proposed Minute of Order; (b)Notice of Risk filed 15 August 2019; and (c)Affidavit of the father filed 4 November 2020 and annexures. The ICL relies upon the following documents:(a)Single Expert Report of Dr D dated 29 November 2019. APPROACH AND THE LAW – CONCEPTS AND PRINCIPLES This Court has, on a number of occasions, acknowledged the difficulties of determining cases concerning the potential relocation of a parent and a child in interim proceedings. In Morgan and Miles (2007) FLC 93-343 (“Morgan”) at [84], Boland J said: The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing or, now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII. The decision of the Full Court in Goode and Goode (2006) FLC 93-286 (“Goode”) usefully sets out the approach which should be taken in considering an application for relocation orders on an interim basis. At [81]-[82], under the subheading “How should interim proceedings be conducted?”, the Full Court said:81. In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed. 82. In an interim case that would involve the following:(a) identifying the competing proposals of the parties;(b) identifying the issues in dispute in the interim hearing;(c) identifying any agreed or uncontested relevant facts;(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Decision
Reasons for decision
This consideration is not relevant.Issues relating to the parents – decision-making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibilityLong-term decision-making, time and communication Section 60CC(3)(c) of the Act requires the Court to consider the extent to which each of the parties 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 to communicate with the child. The evidence before the Court establishes that the mother has been the child’s primary carer, however, the evidence is not such that the Court is in a position, in these interim proceedings, to determine the extent to which the father has been involved in making decisions about major long-term issues in relation to the child. As noted, the parties provide conflicting evidence regarding this issue. However, at pages 17 to18 of his Report, Dr D sets out the information he obtained from both the child and the father regarding events that they had attended together, including the fact that the child had been “quite exuberant talking about a couple of these”. Dr D summarised his observations regarding the child’s interactions with his father as follows:[The child] and his father shared a very active, intense and apparently enjoyable interaction. They joked with each other quite a bit and they tended to go off in tangents into areas of mutual enjoyment. At the end of the session when I explained that I would be passing [the child] back to his mother, [the child] commented unprompted about this having been a special day because he had had a few extra hours with his father. Dr D similarly recorded the child as having a close relationship with his mother. While the mother questions the extent to which the father has, in the past, been involved in the child’s life, the evidence before the Court, even at this interim stage of the proceedings, establishes that the child has a warm, close and loving relationship with both of his parents. As noted, Dr D summarised his observations of the child’s interaction with both of the parties by concluding that the child “has a strong and positive relationship with both of them”.The parent’s obligations to maintain the child Section 60CC(3)(ca) of the Act requires the Court to consider the extent to which each of the parties has fulfilled, or failed to fulfil, their obligations to maintain the child. Significantly, by way of consent Orders made on 26 August 2020, the parties agreed that, in addition to the father paying periodic child support for the child determined in accordance with the relevant child support legislation and guidelines, the parties also agreed that the father would pay non-periodic child support in respect of the child as and when the requirement falls due as follows: 4.1 Periodic child support for Z in accordance with the assessment by the Department of Human Services (Child Support); and4.2 Non-periodic child support in respect of Z, as and when they fall due, as follows:4.2.1 to Z's school, within 14 days of receipt of accounts or invoices from the school or the Wife, all school fees including but not limited to tuition, fees, excursion fees, incidental sporting costs, the costs of all school books, school uniforms, and extracurricular activities; and 4.2.2 any medical, dental, orthodontic, hospital, optical, physiotherapy, podiatry, or other medical specialist fees or expenses in respect of Z which are not covered by Medicare and/or Z’s private health insurance policy.
Ratio Decidendi
Legal Principle Established
The primary reason why I have declined the mother’s Application is, however, as a result of my consideration of the matters set out in s 60CC(3) of the Act which I detail below.Additional considerations Section 60CC(3) of the Act sets out additional considerations for determining what is in a child’s best interests. Those considerations can conveniently be grouped under the following topics:(a)Issues relating to the child – their views, level of maturity, culture and relationships;(b)Issues relating to the parents – decision-making, time spent with child, fulfilled obligations, attitude, capacity and exercise of responsibility;(c)Issues of family violence;(d)Effect of change;(e)Practical difficulty of implementation of orders;(f)Avoiding further proceedings; and(g)Other relevant matters. In Banks (supra) at [48]-[50], the Full Court outlined a practical approach to applying the considerations set out in s 60CC of the Act, in interim proceedings, in the following terms:48. It should also be said that in parenting proceedings as in all civil litigation, it will be the issues that are joined that will dictate which section 60CC factors that are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the children, require determination prior to a proper determination at trial.49. … there is a risk that in discussing every s 60CC 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: SCVG & KLD (2014) FLC 93-582. 50. When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors. Issues relating to the child - their views, level of maturity, culture and relationshipsAny views expressed by the child Section 60CC(3)(a) of the Act requires the Court to have regard to 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. Counsel for the mother contends that the Court should have regard to the opinion of Dr D as set out in his Report dated 29 November 2019 at page 27, paragraph (c) of his “conclusions and recommendations”, where he reported:After having taken control of our interview by leading me through his City A photographs book, [the child’s] responses to my question strongly emphasized a desire to return to City A with his mother. However, he also seemed toc qualify his responses in relation to his father in a way suggesting that they actually have a close relationship. I note that I have referred to [the child] being a somewhat anxious, insecure, and slightly emotionally immature child. For that reason I think that he is vulnerable to becoming caught up in his mother's very obvious distress in such a way that he framed much of what he told me privately in terms of what he thought his mother would like him to say.