BANFIELD & OAKFORD - [2020] FCCA 1289

FEDERAL CIRCUIT COURT OF AUSTRALIA

BANFIELD & OAKFORD

[2020] FCCA 1289

Catchwords:
FAMILY LAW – Parenting – where the father lives in City B – where the mother lives in Town C in central Queensland – where the parents lived in City B prior to separation – where the mother unilaterally moved to Town C with the children following separation (7 hours’ drive from City B) – best interests – children aged 4 years and 2 years – where the children’s attachments and relationships with the parents (in particular the father) was the subject of close scrutiny and expert evidence – a consideration of “meaningful relationship”.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

MRR & GR (2010) 240 CLR 461

Simpson v Hartnett (No.10) (2007) 215 FLR 155

Godfrey v Sanders (2007) 208 FLR 287

Sigley v Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

McCall v Clark (2009) 41 Fam LR 48

Mazorski & Albright (2007) 37 Fam LR 518

Champness & Hanson [2009] FLC 93 – 407

Collu & Rinaldo [2010] FamCAFC 53

Smith and Smith (1994) FLC 92-488

Applicant:

MR BANFIELD

Respondent:

MS OAKFORD

File Number:

BRC 9222 of 2018

Judgment of:

Judge Howard

Hearing date:

20 February 2020

Date of Last Submission:

20 February 2020

Delivered at:

Brisbane

Delivered on:

22 May 2020

REPRESENTATION

Counsel for the Applicant:

Mr Thomas

Solicitors for the Applicant:

Fallu McMillan Lawyers

The Respondent attending as a self-represented litigant.

ORDERS

That each party shall provide a copy of a proposed Final Order (reflecting the Reasons for Judgment) to each other party by 4:00pm on 4 June 2020.
That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 11 June 2020.
That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9222 of 2018

MR BANFIELD

Applicant

And

MS OAKFORD

Respondent

REASONS FOR JUDGMENT

A.The Court commenced delivering these Reasons for Judgment ex-tempore on 20 February 2020 and indicated that it would reserve its decision and conclude delivering these Reasons for Judgment subsequently and publish them in writing to the parties. On 20 February 2020 the Court explained this process to the parties. These are now the published and settled Reasons for Judgment.

The application before the Court relates to a…

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

Case: [2020] FCCA 1289
Decision Date: 22 May 2020

CaseChat Overview and Summary

In the matter of *Banfield & Oakford*, Judge Howard of the Family Court of Australia considered parenting arrangements for two young children, X and Y. The dispute arose after the mother unilaterally relocated with the children from City B to Town C, a seven-hour drive away, following the parents' separation. The father remained in City B.

The court was required to determine the children's best interests, with a particular focus on fostering a meaningful relationship with both parents. Key legal issues included the weight to be given to the children's existing attachments and relationships with each parent, especially in light of the significant geographical distance created by the mother's relocation. The court also considered the mother's attitude towards the father's involvement in the children's lives and whether the proposed arrangements would minimise the likelihood of further litigation.

Judge Howard applied section 60CC of the Family Law Act 1975, emphasising the primary considerations of the benefit to the child of having a meaningful relationship with both parents. The court noted the children's secure attachment to their mother, who was the primary carer. However, significant concern was raised regarding the younger child, Y, and his attachment to the father. Expert evidence suggested that Y's relationship with his father was not yet capable of being described as "meaningful" due to his young age and the limited contact since the relocation. The court inferred a lack of insight from the mother regarding her responsibility to foster the children's relationship with their father, which was considered a deficiency in her approach to parenthood. The court also considered that permitting the mother to remain in Town C could lead to future applications by the father for increased time with the children.

The court ordered that each party was to provide a proposed Final Order to the other by 4 June 2020, and that the parties should attempt to reach an agreed position by 11 June 2020. If agreement could not be reached, the matter was to be listed for a mention, with both parties to attend personally.

Orders

Orders of the court

That each party shall provide a copy of a proposed Final Order (reflecting the Reasons for Judgment) to each other party by 4:00pm on 4 June 2020.

That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 11 June 2020.

That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

Background

Background to the litigation

Section 60CC(3)(g) states:-“(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant;” One aspect of the evidence that relates to section 60CC(3)(g) is the fact that in the child Y is so young. He is so young that in order to secure his attachment with his father, the family report writer’s evidence is that there needs to be more frequent visits than once every four weeks. I will expand on this aspect later in these reasons. My attention has not been drawn to any evidence that would make section 60CC(3)(h) relevant. The parties should inform the Court if there is in fact any Aboriginal or Torres Strait Islander heritage. Section 60CC(3)(i) states:-“(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;” In relation to Section 60CC(3)(i) – there is one important aspect of parenthood which the mother has not accepted. One of the responsibilities of a parent is to foster and support the child’s relationship with the other parent – so long, of course, that it is consistent with the best interests of the child. In this case, we have a father who wants to be involved in their lives, who has demonstrated an ability to care for them, who has demonstrated a close, loving and meaningful relationship with X and who loves Y and very much wants to develop a meaningful relationship with Y. So in terms of the responsibilities of parenthood, it seems to me that in that area that I have just highlighted it has been somewhat lacking so far as the mother is concerned. My attention has not been drawn to any evidence that would make section 60CC(3)(j) or (k) particularly relevant in these proceedings. Section 60CC(3)(l) states:-“(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;” In the present circumstances – if the mother were to be permitted to remain living with the children in Town C, I can foresee, as the children get older, a further application by the father for more time with the children. After proceedings were instituted, the matter came before the Court and the Court ordered the preparation of a memorandum by the Family Consultant, Ms K. The family consultant's memorandum is exhibit 2. Ms K noted the children interacted positively with their father. X was excited to see her father, ran to him for a cuddle. X was affectionate, interactive and confident with her father. X listened to the father’s instructions without protest. Y was woken from a sleep to be observed with his father. He was content to sit on his father’s lap whilst he was waking up. He smiled, explored the room and was affectionate with his father once fully awake. He also listened to his father’s instructions. The father was appropriate with the children. He was highly interactive with them, leading and following play. He was encouraging, made suggestions and also ensured the children were safe. For example, he told Y to be careful not to accidentally hit X with a toy he was waving around.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 60CC then sets out how it is that a Court is to determine what is in a child’s best interests. 60CC(2) states:-“(2) The primary considerations are:(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and Section 60CC(2)(a) refers to the benefit to the children of having a meaningful relationship with both of their parents. There are benefits to these children in having a meaningful relationship with both of their parents. The current status of the children’s relationships with their parents requires close consideration. The family was interviewed by Mr E, the family report writer. It is apparent that the children have a close and loving relationship with their mother, with whom they live on a full-time basis. The mother’s attachments with the children are secure. She is the primary attachment figure. She is the primary carer. I do need to point out one very important aspect of the evidence in this regard. The child, X, has a firm attachment with the father, as noted by the family report writer. On the other hand, Y was very young when he left City B. Herein lies one of the very great dangers when one parent moves a long distance from another parent, especially when the child or children are so very young. The mother had given evidence at one stage that she had not left City B until Y was four months old so that there was four months for the father to “bind to Y”. They are the words used by the mother. Unfortunately, this evidence, along with a significant amount of other evidence in the case indicates to the Court that the mother lacks insight in relation to the best interests of these children. I infer from what was stated by Mr E, that four months is a very long way from being old enough to have formed a proper attachment and a proper bond between Y and the father. It is that terribly important aspect of the young boy’s attachment to his father which is of concern to the Court. In fact, Mr E was so concerned about Y’s attachment to his father that it leads the Court to draw an inference from the opinion of Mr E (and from other evidence) that Y’s relationship with his father is not likely capable of being described as a "meaningful relationship” - which is the term used in the legislation (in section 60B(1) and 60CC(2)(a)). In relation to the children’s attachments to the parents I have considered this question (and section 60CC(2)(a)) in more detail later in these Reasons the Judgment when considering section 60CC(3)(m). Section 60CC(2)(b) relates to – the need to protect children from various forms of harm. There is no significant evidence that these children have been subjected to or have been exposed to any form of harm or neglect or family violence. To the extent that there was any family violence in the relationship between the parents – neither parent specifically drew this to the Court's attention during the course of the hearing. It was not an issue that loomed large in this case.