FEDERAL CIRCUIT COURT OF AUSTRALIA
| GAIZE & GAIZE | [2020] FCCA 296 |
| Catchwords: FAMILY LAW – Parenting – urgent interim relocation application – short form reasons given in accordance with section 69ZL of the Family Law Act 1975 – where the mother is the primary carer of the two children (aged 7 and 4) – where the mother is the primary attachment figure for the children – where the mother seeks to relocate the residence of the children to Sydney for a period of 10 ½ months from 7 February 2020 until 24 December 2020 to enable her to complete her training as a professional – where the mother proposes that the children will spend time with the father every second weekend (in Brisbane, at her expense) during the course of 2020 – where the father sought that the children live with him should the mother relocate to Sydney – where the mother stated that she will not temporarily relocate to Sydney unless the children relocate with her – freedom of movement – expert evidence – where the Court is not bound to accept expert opinion – where the mother’s proposal at the time of the interim hearing was significantly different to the mother’s proposal at the time of the preparation of the family report (in particular in relation to the amount of time the children will spend with the father) – where judgment was delivered ex tempore by the Court at the conclusion of the hearing – where the father initially opposed the telephone attendance of the family report writer on the day of the interim hearing (31 January 2020) but subsequently sought (when judgment was being delivered) to adjourn the proceedings and reopen the evidence in order to obtain an updated family report or memorandum – where the application for an adjournment was made while the Court was in the very process of delivering oral Reasons for Judgment ex tempore – where the application for an adjournment was refused. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA, 65DAA, 69ZL |
| Cases cited: In the Marriage of Hall (1979) 5 Fam LR 609 Klein & Klein [2010] FamCAFC 150 |
| Applicant: | MS GAIZE |
| Respondent: | MR GAIZE |
| File Number: | BRC 14516 of 2019 |
| Judgment of: | Judge Howard |
| Hearing date: | 31 January 2020 |
| Date of Last Submission: | 31 January 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 31 January 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dodd |
| Solicitors for the Applicant: | Corney & Lind Lawyers |
| Counsel for the Respondent: | Mr Linklater-Steele |
| Solicitors for the Respondent: | Daykin Family Law |
ORDERS
That the parties are to attempt to agree on the wording of the interim orders to reflect the Reasons for Judgment.
IT IS NOTED that publication of this judgment under the pseudonym Gaize & Gaize is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 14516 of 2019
| MS GAIZE |
Applicant
And
| MR GAIZE |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
A.These…
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- AGLC
- Gaize and Gaize [2020] FCCA 296
- Case
- [2020] FCCA 296
- Decision Date
CaseChat Overview and Summary
This matter concerned an application before Judge Howard in the Federal Circuit Court of Australia. The dispute involved proposed parenting arrangements for children, specifically concerning their relocation to Sydney with their mother and the frequency of their time with their father in Brisbane. The mother had initially proposed a specific visitation schedule for the father, which was then varied during the proceedings.
The court was required to determine whether the family report writer's assessment remained relevant and applicable given a significant variation in the mother's proposal regarding the children's time with their father. The central legal issue was whether the changed factual circumstances, specifically the mother's revised proposal for increased time with the father, rendered the original family report assessment unreliable or inapplicable to the current decision-making process.
Judge Howard reasoned that the comments made by the Full Court in *In the Marriage of Hall* were applicable because the facts before the court had changed. The mother's revised proposal, which effectively doubled the father's time with the children over the year compared to what was put to the family report writer, meant that the assessment was based on different circumstances. Consequently, the court concluded that the original assessment might not accurately reflect the current situation. The father's counsel then made an oral application to adjourn and reopen the evidence.
The court was required to determine whether the family report writer's assessment remained relevant and applicable given a significant variation in the mother's proposal regarding the children's time with their father. The central legal issue was whether the changed factual circumstances, specifically the mother's revised proposal for increased time with the father, rendered the original family report assessment unreliable or inapplicable to the current decision-making process.
Judge Howard reasoned that the comments made by the Full Court in *In the Marriage of Hall* were applicable because the facts before the court had changed. The mother's revised proposal, which effectively doubled the father's time with the children over the year compared to what was put to the family report writer, meant that the assessment was based on different circumstances. Consequently, the court concluded that the original assessment might not accurately reflect the current situation. The father's counsel then made an oral application to adjourn and reopen the evidence.
Orders
Orders of the court
1.
That the parties are to attempt to agree on the wording of the interim orders to reflect the Reasons for Judgment.
Background
Background to the litigation
One of those matters pointed out In the Marriage ofHall (supra) on page 615 at subparagraph (d) was that on occasions:-“…the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be [different]” I will insert the word “different”. The word used by the Court was “wrong”. That relates, it seems to me, to a situation after a trial has occurred and a judge has made findings. But what we do have here is that the assessment made by Ms A was based on different facts or – a different proposal to the one that is now before the Court. When the matter was mentioned today, the mother by her counsel, Mr Dodd, informed the Court that she proposed a variation to her original proposal, which was that – she would pay for the children to return to spend time with their father in Brisbane once every three weeks through the calendar year of 2020. The current arrangement for these children on the nine/five agreement that was reached in May 2018 is that the children spend every second weekend with their father from Friday afternoon till Monday morning. And in addition thereto they spend every Wednesday overnight with their father. That is how it gets to nine/five. So it’s every second weekend plus every Wednesday night. At the mention this morning, amongst other matters raised with both Counsel, I raised with Counsel for the mother the prospect or possibility of not merely the mother proposing that the children be returned to Brisbane once every three weeks, but once every two weeks. Clearly some consideration was given to this by the mother. The proposal before the Court on the part of the mother at the time the hearing of the application commenced this afternoon is that the children be permitted to relocate with the mother to Sydney for a year and that they come back to Brisbane every two weeks for a changeover, I apprehend, at Brisbane Airport, Friday afternoon 6 pm, and another changeover at Brisbane Airport, Sunday afternoon at 6 pm. There is other time with the father which is anticipated as well. A major concern for the family report writer was stated, as I mentioned earlier, in paragraph 181. The family report writer assessed that there was more long term risk at being separated from the father than from the mother, because the mother currently has a very well established maternal bond. I do not recall reading anything to the effect that there is anything other than a well established paternal bond. In fact I note paragraph 175 of the family report – referred to in paragraph 39 herein. But the mother’s current proposal – and the one upon which I have to make this decision – is a significantly different proposal to what was put to the family report writer. It is, in effect, a doubling of the father’s time over the course of the year. She has doubled her proposal, if I can put it that way. In those circumstances, it is for that reason that I – I have come to the conclusion that the comments made by the Full Court at page 615 paragraph (d) in In the Marriage of Hall (supra) are applicable in the present case. The facts have changed. [N.B. at this stage (at approximately 4:00p.m. on Friday, 31 January 2020) when the Court was delivering the Reasons for Judgment ex tempore – the father’s Counsel made an oral application to adjourn the proceedings and reopen the evidence].
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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