Fairfield & Hoffman

Case [2021] FamCAFC 151

FAMILY COURT OF AUSTRALIA

Fairfield & Hoffman [2021] FamCAFC 151

Appeal from: Hoffman & Fairfield [2020] FamCA 193
Appeal number(s): EAA 45 of 2020
File number(s): SYC 962 of 2016
Judgment of: AINSLIE-WALLACE, RYAN & ALDRIDGE JJ
Date of judgment: 19 August 2021
Catchwords: FAMILY LAW – APPEAL – PARENTING – International relocation refused – Duration of time with the other parent – Adequacy of reasons – Reasons quell controversies – Appellant and ICL bound by the conduct of their case at trial – Application of Pt 15.5 of the Family Law Rules 2004 (Cth) to psychiatric report – Relevant considerations – Attribution of weight –Whether findings in relation to family violence adequate – Appellant and ICL did not seek findings with greater particularity than those made – Failure to consider single expert opinion as to time – Appeal allowed in part – Orders regarding the child’s time with the father during school term be remitted for rehearing – Interim orders made for the child’s time with the father in accordance with the opinion of the single expert – Orders amended by consent – Costs certificates issued for the appeal and rehearing.
Legislation:

Family Law Act 1975 (Cth) Pt VII, ss 60CC, 62B, 65DA, 69ZN

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 8, 9

Family Law Rules 2004 (Cth) Pt 15.5, rr 15.41, 15.42
Cases cited:

Adamson & Adamson (2014) FLC 93–622; [2014] FamCAFC 232

Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

A v A: Relocation Approach (2000) FLC 93-035; [2000] FamCA 751

Baghti & Baghti and Ors [2015] FamCAFC 71

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Chapman v Palmer (1978) FLC 90-510; [1978] FamCA 86

Flanagan v Handcock (2001) FLC 93-074; [2000] FamCA 150

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

Hall and Hall (1979) FLC 90-713; [1979] FamCA 73

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

Mellick & Mellick [2014] FamCAFC 236

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Muldoon & Carlyle (2012) FLC 93-513; [2012] FamCAFC 135

Sahrawi & Hadrami (2018) FLC 93–857 ; [2018] FamCAFC 170

U v U (2002) 211 CLR 238; [2002] HCA 36

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Appeal Division
Number of paragraphs: 84
Date of hearing: 30 March 2021
Place: Sydney
The Appellant: In person
Counsel for the Respondent: Mr Dura
Solicitor for the Respondent: Horton Rhodes Legal
Counsel for the Independent Children's Lawyer: Ms Ward
Solicitor for the Independent Children's Lawyer: Delaney Lawyers

ORDERS

EAA 45 of 2020
SYC 962 of 2016

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MS FAIRFIELD

Appellant
AND:

MR HOFFMAN

Respondent
AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

AINSLIE-WALLACE, RYAN & ALDRIDGE JJ

DATE OF ORDER:

19 AUGUST 2021

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Details
AGLC
Fairfield & Hoffman [2021] FamCAFC 151
Case
[2021] FamCAFC 151
Decision Date

CaseChat Overview and Summary

In the case of Fairfield & Hoffman, Ms Fairfield, the appellant, appealed against certain orders made by the Family Court of Australia in relation to her child, X, born in 2014. The primary dispute involved the parenting arrangements and the amount of time X should spend with the father, Mr Hoffman, the respondent, during school term. The Independent Children’s Lawyer (ICL) did not appeal the orders. The legal issues revolved around whether the mother had successfully demonstrated errors in the primary judge's decisions, particularly concerning the time X should spend with the father during school term, the adequacy of reasons given, and the weight attributed to the psychiatric report.

The court found that while the mother had not successfully demonstrated error in most aspects of the orders, there were issues with the primary judge's reasoning regarding the child’s time with the father during school term. The court was not satisfied with the evidence available and preferred interim orders consistent with the single expert’s recommendations. The court also noted that the mother and the father were bound by their conduct at trial and that the ICL had not sought more detailed findings than those made. The court allowed the appeal in part, set aside the contentious orders, and remitted the matter for rehearing. Interim orders were made for the child’s time with the father according to the single expert’s opinion. The court also granted costs certificates for the appeal and the remitted rehearing.

The final orders included allowing the appeal in part, setting aside the orders concerning the child’s time with the father during school term, and remitting this aspect for rehearing. The interim orders specified that X would spend additional time with the father, from the end of school on Friday until the start of school on Monday in week 2. The court dismissed the appeal against the remaining orders and made variations to certain orders by consent. Additionally, costs certificates were issued for the appeal and the rehearing, enabling the parties and the ICL to seek costs from the Attorney-General.

Orders

Orders of the court

EAA 45 of 2020

SYC 962 of 2016

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MS FAIRFIELD

Appellant

AND:

MR HOFFMAN

Respondent

AND:

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

AINSLIE-WALLACE, RYAN & ALDRIDGE JJ

DATE OF ORDER:

19 AUGUST 2021

THE COURT ORDERS THAT:

1. The appeal be allowed in part.

2. Order 5.2 of the orders dated 19 March 2020 be set aside.

3. The question of the child’s time with the father during school term be remitted for rehearing before a judge other than the primary judge.

4. Other than as provided for above, the appeal be dismissed.

5. Pending further order, that X, born in 2014 (“the child”), in addition to the time provided for in Order 5.1 and Order 5.3 of the orders dated 19 March 2020, spend time with the father from the conclusion of school on Friday until the commencement of school on Monday in week 2.

6. There be no order as to costs.

7. The Court grants to the mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the mother in respect of the costs incurred by the mother in relation to this appeal.

8. The Court grants to the father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the father in respect of the costs incurred by the father in relation to this appeal.

9. The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney- General to authorise a payment under that Act to the Independent Children’s Lawyer in respect of the costs incurred by the Independent Children’s Lawyer in relation to the appeal.

10. The Court grants to each party and the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party and the Independent Children’s Lawyer in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party and the Independent Children’s Lawyer in relation to the rehearing of these proceedings.

BY CONSENT, THE COURT ORDERS THAT:

11. Order 1 of the orders dated 19 March 2020 is varied by adding at its commencement “Excluding Order 2 of the orders dated 23 September 2019” so that Order 1 becomes “Excluding Order 2 of the orders dated 23 September 2019, all existing parenting orders in relation to X, born in 2014 are discharged.”

12. Order 9 of the orders dated 19 March 2020 is varied by deleting the words “is at liberty to travel” and inserting immediately after the words “the mother” the words “is permitted to travel with the child”.

Background

Background to the litigation

So that it is clear, the ICL did not appeal from the orders and one of the pivotal issues in the appeal is whether the grounds of appeal presented by the mother raise the issues which concern the ICL. If they were not raised, a question arises as to the extent to which the ICL should be permitted to impugn the judgment absent an appeal. Related to this is the approach adopted by the ICL at trial and, the effect of the ICL not submitting in favour of the orders which the mother says the primary judge erred in failing to make.BACKGROUND FACTS The parties met in July 2012 and formed a relationship not long thereafter. They differed about when they commenced living together and when their relationship ended. Those differences were not resolved however there was no dispute that the parties were living together at least from November 2013 and, even if they had already separated under one roof, they ceased to cohabit in February 2016 when the mother and the child left. The mother was born in the United Kingdom in 1976 and at the time of trial was 43 years of age. The mother moved to Australia in February 2010 and she was granted permanent residence in December 2013. The mother is an allied health worker and at the time of trial, she worked two days per week, which she planned to increase. The father was born in 1970 in Australia and at the time of trial was 49 years of age. He is a health professional who works in private practice and the public sector. With the father’s agreement, following the parties’ separation the mother has taken the child to the United Kingdom in July/August 2016, December 2018/January 2019 and July/August 2019. On each occasion the father made a small contribution to the travel costs. An order was made appointing Dr C (“the single expert”) as a single expert to investigate and report upon various matters concerning the child and the parties. The single expert is a psychiatrist. Relevantly, he interviewed the parties and the child (together with observation sessions) in late April 2018. In his report dated 16 May 2018, the single expert recommended:154.Unless the Court determines that [the child] has been exposed to abusive parenting by the father as alleged by the mother, I respectfully recommend to the Court the following:1. Joint shared parental responsibility.2.For [the child] to remain in her mother's primary care with the gradual increase in [the child’s] time in her father's care to enable significant and substantive contact. This could be achieved by six-monthly increments in overnight contact from the age of four. This will enable [the child] to enjoy every second weekend in her father's care with handovers on Friday afternoon after school, with return to school on Monday morning and a mid-week night in the father's care on the off week with half the school holidays by the time she is aged seven.3.I support the current intervention with Mr M. It should be recognised that this is a slow process, which will require an ongoing commitment from both parents. This will support [the child’s] evolving relationship with her father and the mother's capacity to allow [the child] to spend increasing periods of time in her father's care.4.Attendance at a single general practitioner who will provide ongoing recommendations for any further psychological and medical care.5.Both parents should make an undertaking to the Court to not denigrate the other parent. They should undertake not to drink to excess or use substances of abuse whilst [the child] is in their care. They should undertake not to utilize corporal punishment in their parenting.6.Both parents should continue their attendance for psychological and psychiatric intervention as per the instruction of their treating therapist and psychiatrist.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This ground has not been established.CONCLUSION AND COSTS Other than in relation to the child’s time with the father during school term, the mother has failed to establish error. Thus the appeal will be allowed in part and the controversial aspect of the orders concerning time during school term will be set aside. Other than the orders that are to be made by consent, the appeal against the remaining orders will be dismissed. In closing addresses, the parties were invited to give brief submissions as to what should happen if the school term orders were set aside. It was common ground that interim orders should be made to at least provide a platform for the child’s ongoing contact with the father and to minimise the prospect of further disagreement pending the remitted rehearing. The father pressed for interim orders identical to those set aside. Although the mother agreed that this could be done, we are not satisfied that this was a considered decision, given, as it was, quickly and in the final moments of a complex hearing. It is understood that the child has spent time with the father, five nights in each fortnight, in accordance with the orders. However, we do not have evidence about the operation of the orders and do not know whether they have worked well or created difficulties. The better course is therefore for there to be interim orders consistent with the expert evidence and the question of an additional night to be considered at first instance and with more recent evidence than is available to us. Each of the parties has achieved a measure of success and an order for costs would not be appropriate. However, the conditions for the issue of costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) are established and the parties and ICL will be granted certificates for the appeal and the remitted rehearing.

Ratio Decidendi

Legal Principle Established

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