FAMILY LAW - APPEAL – CHILDREN – RELOCATION – Whether the trial Judge erred in permitting the Mother and child to relocate from [T] to the Czech Republic – Where the child lived with the Mother and spent time with the Father
FAMILY LAW - APPEAL – FAMILY REPORT – Where the Family Consultant recommended that the child continue to reside in [T] – Whether the trial Judge erred in rejecting the findings of the Family Consultant – Where the trial Judge had before her a large amount of written and oral evidence and also had the opportunity to observe the parties and various witnesses being cross examined – The principles in Hall and Hall (1979) FLC 90-713 – Where the trial Judge did not reject the Family Consultant’s evidence and gave weight to what the Family Consultant said – Where the trial Judge undertook a very thorough and detailed consideration of the evidence, including from the Family Consultant, and the relevant statutory considerations – No error established
FAMILY LAW - APPEAL – FINDINGS OF FACT – Whether the trial Judge erred in finding that the Father engaged in marijuana use – Whether the trial Judge erred by accepting evidence concerning the Father’s alcohol and marijuana use – Whether the trial Judge erred in finding that the education system in [T] was below standard – Whether the trial Judge erred in not considering the Father’s proposed accommodation in [T] – Whether the trial Judge erred by rejecting the Father’s possible relocation to Cairns – No merits in the appeal – Appeal dismissed
FAMILY LAW - COSTS – As agreed by the parties within 48 days of the date of these orders and failing such agreement as assessed on a party/party basis
[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.
Continue reading Friscioni & Friscioni
Sign in free to access the full text
Details
AGLC
Friscioni & Friscioni [2010] FamCAFC 108
Case
[2010] FamCAFC 108
Decision Date
CaseChat Overview and Summary
The case of Friscioni & Friscioni involved an appeal concerning the relocation of a child from Tasmania to the Czech Republic. The appeal centred around whether the trial judge had erred in permitting the child's relocation. The appeal also addressed whether the trial judge had erred in rejecting the findings of a Family Consultant who recommended that the child continue to reside in Tasmania. The Full Court of the Family Court of Australia was tasked with examining these legal issues.
The court examined the principles outlined in Hall and Hall, emphasising that a Family Report, while valuable, does not usurp the court's role nor absolve the judge from their responsibilities. The court noted that judges are not bound to accept the findings of a Family Consultant and must weigh all evidence presented. In this case, the trial judge had ample evidence, including the Family Consultant's report, and had observed the demeanour of the parties and witnesses during cross-examination. The judge undertook a thorough consideration of the evidence and statutory considerations, finding no error in her decision.
The court found no merit in the appeal, affirming the trial judge's decision. The judge did not reject the Family Consultant's evidence outright but rather gave it appropriate weight alongside the other evidence. The trial judge's findings, including those related to the father's use of marijuana and the education system in Tasmania, were upheld. The court concluded that the trial judge had properly exercised her discretion and that the appeal lacked merit.
The court dismissed the appeal and ordered the appellant to pay the costs of the respondent and the Independent Children’s Lawyer, with the specific amount to be agreed upon by the parties or assessed on a party/party basis if no agreement was reached within 48 days.
Orders
Orders of the court
1.
The appeal be dismissed.
2.
The Appellant pay the costs of the Respondent.
3.
The Appellant pay the costs of the Independent Children’s Lawyer.
4.
The costs referred to in orders 2 and 3 hereof be in an amount as agreed by the parties within 48 days of the date of these orders and failing such agreement as assessed on a party/party basis.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
On behalf of the Independent Children’s Lawyer it was submitted that the trial Judge’s comments at [7] and [8] “apply to the witnesses who gave evidence for the parties, not the evidence of the parties themselves”. Further, that her Honour’s comments at [10] “relate to the ‘family report process’ and are not limited to the giving of honest evidence in any event, but rather, refer to the evidence which can emerge at a trial, or the observing of the manner in which witnesses and parties present themselves at trial, about which a [Family Consultant] may not be aware”.Conclusion In this case the trial Judge had before her a large amount of written and oral evidence and also had the opportunity to observe the parties and various witnesses being cross-examined. The evidence before her Honour included what was in the family report prepared pursuant to s 62G of the Act by a Family Consultant. In the family report the Family Consultant expressed an opinion, as she was entitled to, on the ultimate issue, namely, what proposal would be in the best interests of the child: see s 80 of the Evidence Act 1995 (Cth). Although the Family Consultant was an expert appointed by the Court to prepare a family report she was not in a privileged position and was required to give her evidence in the ordinary way. As Gibbs CJ observed in Re JRL; ex parte CJL (1986) 161 CLR 342 at 348: “In the performance of this function the court counsellor becomes a potential witness - a court appointed witness who is perhaps in some respects analogous to an expert witness - but is not part of the court”: See also BBT and JMT (1980) FLC 90-809 per Wood J. In Hall and Hall (1979) FLC 90-713 the Full Court (Evatt CJ, Asche SJ and Hogan J) said at 78,819:In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities. In Wood (1976) FLC 90-098 at p. 75,447; Harris and Harris (1977) FLC 90-276; (1977) 29 F.L.R. 285.(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.(g) It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.(h) Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation. We draw attention to an article by Mrs.A. Marshall, Director of Court Counselling Sydney Registry — “Social Workers and Psychologists as Family Court Counsellors within the Family Court of Australia”. The article appears in the March 1977 edition of Australian Social Work, vol. 30 No. 1, p. 9 and at p. 11 appears the passage:“Family Law reg. 117 provides for the cross-examination of a counsellor in relation to the Report. It is seen as an advantage by counsellors that they can in this way be held accountable for the Report”.(i) Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied. In the case of Harris (supra) Fogarty J. said at FLC p. 76,474; F.L.R. p. 289:“It is in my view inimical to the proper workings of the Court and in particular to the proper carrying out of the functions of a welfare officer that it might be thought by practitioners or litigants that welfare officers or their reports occupy some special or privileged position before the Court unchallenged or unchallengeable but yet perhaps decisive of the issue. Custodial proceedings still basically fall to be determined by the Court in accordance with the traditional system of determining cases. Where a welfare report is delivered which contains either factual matters or matters of opinion which a party desires to challenge but is not permitted to do so that party may be pardoned for feeling that justice has not been seen to be done.”Similarly, in M. and M.(1978) FLC 90-429 at p. 77,182; (1978) 30 F.L.R. (Notes) at p. 562, Marshall S.J., in adopting the views of Fogarty J. set out above, stated:“If the contents of such a report are not open to challenge by cross-examination the Court would leave itself open to the criticism of conducting a trial `by report' rather than on the whole of the evidence.”This Court is in full agreement with the views set out above.