Gaize and Gaize
[2020] FCCA 296
•31 January 2020
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 reasons were delivered ex-tempore on 31 January 2020 and have been settled and corrected for grammatical errors in order to convey the precise intention of the Court. In addition to these reasons the Court also relies on the transcript of the proceedings. Further, the Court relies upon the Reasons for Judgment delivered in Gaize & Gaize (No. 2) [2020] FCCA 297 and incorporates those reasons in these Reasons for Judgment.
The Court has been asked to make an interim determination in this parenting case. I note section 69ZL of the Family Law Act 1975 (“the Act”). The Court will be giving reasons in short form in accordance with that section.
The Court is asked to determine whether or not the mother should be granted permission to relocate the residence of two young children for one year to Sydney for the mother to pursue her career; in particular, for the mother to pursue training and accreditation as a health care worker.
The mother in this case was born in 1983. The father was born in 1984. The parties commenced living together when they married in 2005. They separated under one roof in December 2015. They stayed living under one roof until approximately September 2017. These dates in terms of separation under one roof and separation physically are approximates. The father in this case re-partnered approximately two years ago. The parties – that is, the mother and the father – divorced in April 2019. They have two children together, Y, born in 2013, and X, born in 2016.
When the parties separated under one roof they were both very much involved in caring for the children. Separation of a young couple under one roof rarely has a good outcome. Indeed, for the parties in fact to have been separated under one roof for as long as they were – almost two years – is, it seems to me, an extraordinarily long period of time. In any event, the parents made this situation work, no doubt by both of them making many compromises.
The father eventually left the house in September 2017 or thereabouts. From that time until May 2018 the parents equally cared for the children. That is to say there was an equal time arrangement. Under that arrangement the children lived with the father from Sunday to Wednesday, then with the mother from Wednesday to Sunday. That was the general split, as I understand it. About a half a week each is the way to look at it. That was the way they were until the May 2018 mediation.
So from separation when the father left the house in September 2017 until May 2018 it was half a week each with each parent or thereabouts. And then from the mediation in May 2018 the situation is that the parents agreed that the children should live with the mother primarily. Nine nights a fortnight with the mother and then with the father five nights. So what we have term in terms of the Act, is “substantial and significant time” for both parents (s.65DAA). Under that agreement (in May 2018) there was to be a review of the matter in late 2019.
In 2019, the mother proposed that she be permitted to relocate the residence of the children for one year (during 2020) so that she could pursue her career as I mentioned earlier. The situation with the mother’s career is set out in some detail in her affidavit filed on 17 January 2020. The matter was mentioned in the Court in late 2019, and the Court set the matter down for an interim hearing on an urgent basis because the mother wanted to take up the posting at her employer in Sydney. The mother explains in her affidavit filed 17 January 2020 that in order for her to become a health care worker, it is a requirement that she trains in at least two different States. The mother states in paragraph 43:
“43. Because the training program can only be undertaken in major locations, and because the training program is across Australia and New Zealand, it is a requirement that we train in at least 2 different states. If I do not fulfil this requirement, I cannot complete my training. This is set out in paragraph 5.1.2 of the Training Regulations (last updated September 2018) "the Training Regulations" specifies this requirement. Annexed hereto and marked with the letters "G-2" is a copy of the Training Regulations.”
The question of the mother’s career as a health care worker and the question of the mother’s desire to become a health care worker, from my reading of the family report, seems to have been one significant underlying factor which led, unfortunately, to the breakdown of their marriage. The father on his own admission felt that the mother’s desire and her ambition was somewhat different to what they had previously planned together. That is something which is not accepted by the mother.
The mother maintains that the parties had discussed the mother specialising in health care, but that, it seems, is not an agreed fact and I do not need to decide it today. But it is the case, as I said, that the father conceded to the family report writer that he was unhappy with the mother’s commitment to her career, essentially, I apprehend, because he felt this was going to mean a different role for him or less time that the mother would spend with the family – for whatever reason. As I say, it is hardly crucial in terms of this proceeding. It may become more relevant at a final hearing.
In any event, for present purposes, the mother, if she wishes to pursue her career as a health care worker at this point in time, the mother must undertake a year of training in a different State. There is no evidence contrary to the mother’s evidence in paragraph 43 of her affidavit where she said, as I noted earlier:
“If I do not fulfil this requirement, I cannot complete my training.”
The mother, since the birth of the two children, has been the primary carer. The father, on his own admission, was very much involved in the care of Y from the time of her birth, but was less involved in the care of X from the time of X’s birth. The parents actually separated just prior to or around the time of X’s birth. It is a bit unusual, because when X was born, in 2016, they were, of course, still living under the one roof.
It is not precisely clear what the father’s involvement was with X as a very young child, but in any event that does not matter now for today’s purposes, because the family report writer makes it clear that, whatever the father’s view was at the time – no matter how ambivalent he was at the time of the birth of X – it seems the family report writer has latched on to the fact that the father has, for want of a better phrase – certainly made up for it – if that is the way to phrase it. He became (over time) more involved in the raising of X.
We have on the one hand the mother’s desire to pursue her career goals to achieve a significant personal and professional career milestone by becoming a health care worker. The Court, even though I am providing short form reasons, is required to consider the proposals and the section 60CC factors and the other relevant issues relating to the best interests.
The father’s position is, essentially, that he is fine if the mother wants to go to Sydney, but if she goes, the children should stay with him and he will take care of them on a full-time basis. They can see their mother every second weekend. The mother can come to Brisbane for that purpose. The father proposes that they will see their maternal family every second weekend or perhaps even more if that was to be arranged or ordered or desired. I do note that both sets of grandparents, the paternal and the maternal have been very involved in the children’s lives.
The mother’s position is that she has been the primary carer. The mother is the primary attachment figure (according to the family report writer, Ms A). The mother wants the children to go with her. The mother’s proposal is that she will be assisted by her sister, Ms B, who will go with her to Sydney and live with her and with the children, so that when the mother has to attend at work or for study or for whatever reason, that any caring that needs to occur of these children will not be left to an outside paid person, but will be done by a family member, namely the maternal aunt – somebody who is well known to the children.
It is the case that Ms B returned from the United States in 2017. She may have only been involved in the children’s lives these past two and a bit years. But there is nothing to suggest that she does not have a good and close bond with the children. The family report writer considered the various proposals, although this has to be noted: at the time that the parties were interviewed and at the time of the completion of the family report, the mother’s proposal was that the children would go with her to Sydney for a year, but that they would come back to Brisbane once per month for a weekend with their father. What the family report concluded – and I note the family report was finalised on or about 20 January, so only about 11 days ago and was not filed until yesterday, 30 January – the family report effectively concluded that that sort of diminishment in the father’s time was going to impact upon the father’s relationship with the children to such an extent that the family report writer concluded, amongst other things, that it would be better for the children to remain primarily with the father. I note, for instance, paragraph 181 of the family report, which states:-
“181. Consistency in parenting facilitates children's attachment security and are associated with low problem behaviour. It is assessed that the Court must consider the impact of reducing the children's access to support from the father and their extended family in the event of temporary relocation, to the risk of being separated from their current primary carer within the context of the father's proposal for the children to live with him whilst Ms Gaize completes her studies; particularly as it is assessed that there is more longterm risk at being separated from the father than being separated from the mother due to the very well established maternal bond.”
I have to confess I really don’t know what some of that actually means. And, indeed, much of the narrative within the family report is written in a rather convoluted manner. I get the gist of it. Some of the sentences are constructed in what has to be said is an unusual way. I note, for instance, the last sentence in paragraph 178. That sentence states:
“178…The available information indicates that when their primary carer is unavailable, they are supported by the father or their extended family, which increases their resilience to being separated from her exposing the need for the children to adapt to these changes within the context of relocation.”
In any event, notwithstanding my concerns with the construction of the sentences written by the family report writer, on the facts as presented to the family report writer, the conclusion or the recommendation from the family report writer was that the children would be better off staying with the father in Brisbane until January 2021.
The Court, of course, is not bound by a family report. I note the decision of the Full Court in In the Marriage of Hall (1979) 5 Fam LR 609. In particular at 615, subparagraph (a), where the Full Court stated:-
“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…”
The Full Court then set out quite a number of matters – matters of principle and general observations – which, of course, remain valid today and were relatively recently reiterated in Klein & Klein [2010] FamCAFC 150 at paragraph 241.
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].
s.60CC
The Court notes the primary considerations set out in section 60CC(2).
The evidence from Ms A on her observations of these children with these parents is that the children both have a close and loving relationship with the father and with the mother. They have a meaningful relationship with the father and the mother.
s.60CC(3)(a)
The Court then is required to look at the additional considerations. The children’s views can’t really be given weight because they’re so young.
s.60CC(3)(b) and s.60CC(3)(c)
I have considered the nature of the children’s relationship with the parents. The parents have taken (subject to one thing I will say) every opportunity to be involved in the raising of these children. I did note that at the commencement or at the beginning of X’s life, the father was apparently somewhat ambivalent, but I do not put any weight on that because I’m not in a position to make a definite or detailed finding about it, I do not think.
s.60CC(3)(ca) and s.60CC(3)(d)
They have both maintained the children. There will be a change in the circumstances. Looking at that decision of Kent J sitting as part of the Full Court of the Family Court of Australia in Edgar & Strofield [2016] FamCAFC 93. Paragraph 29 is relevant. I do think it is important that the Court in this sort of case is not distracted, as his Honour said, by the issue of “relocation”. His Honour stated at paragraph 29:-
“29. As it seems to me, those critical findings and observations in the Reasons for Judgment for the stay order, which do not assume any kind of significance in the primary Judgment, demonstrate that his Honour was there distracted by the issue of “relocation”; rather than focusing upon the competing proposals of the parents in the circumstances as they existed at the time of the interim hearing, in the context of the undisputed history, so far as the appropriate interim care arrangements for the children were concerned.”
(Emphasis added).
Well, that is exactly what we have here. It is the competing proposals of the parents in the circumstances as they exist now at the time of this interim hearing, and their competing proposals today have already been referred to at some length by the Court.
It is very different to a situation where a parent comes to the Court and says “I want to move to Sydney from Brisbane on a permanent basis, and I want the right to do it at an interim stage and I intend going there and staying there for good.”
That is not the mother’s case. That is not the mother’s proposal.
The father, via his counsel, has indicated to the Court that the father is concerned. I note that the counsel for the father said on more than one occasion “If it is truly going to be for one year”. The father is concerned that it will be for more than one year. But I do note the concessions made by the mother to date in terms of her intentions and the matters taken into account by this Court today. The orders that I’m proposing to make will ensure that after one year has elapsed the children will be back in Brisbane. They will be at the D School.
I understand that X will commence Prep in 2021. That will be at the D School in Brisbane. I note that Y is already at the D School. It will be a disruption to her if she goes away for a year then and returns but, nonetheless, one has to weigh up (in the balance) when exercising the discretion, that sort of disruption, with the other sort of disruption which would see her not living with the primary carer and primary attachment figure, the mother.
Ms A states at paragraph 173 that Ms Gaize is the children’s primary carer and primary attachment figure:-
“173. When considering Y and X’s parenting arrangements to date, it is indicated that Ms Gaize has upheld the role of the children’s primary carer and primary attachment figure.”
Ms A then goes on further to say:-
“All the available information indicates that Y and X have developed a positive, nurturing and secure bond with the mother in her role as primary carer.”
There is no doubt that during the calendar year of 2020 it will be a significant change to their current parenting arrangements. However, what will not change during that time is that their primary carer and primary attachment figure, that is, their mother, will continue to be their primary carer and primary attachment figure. They will continue to see their father every second weekend, but it is true that they will not get to see him every Wednesday (or overnight every second Sunday).
I particularly note that at paragraph 175, Ms A states:-
“It is assessed that Mr Gaize maintains a warm, nurturing and loving relationship and Y and X and that both children experience a positive bond with him.”
She goes on there to talk about the earlier attachment issues relating to the father and X and she talks about the significance of X’s different attachment experiences to that of her sibling. But, in any event, it’s not necessary for the Court to dwell on that issue at the moment.
The point is that the proposal by the mother at the time of the interim hearing is that the time between the children and the father will be every second weekend. Now, what that effectively means then is that the children – the change in their circumstances will be that they will miss time with their father on every Wednesday night and, I guess, every second Sunday night.
s.60CC(3)(e) and s.60CC(3)(f)
There will be practical difficulties and expenses, which the mother says she will pay for. There seems to be every indication that both parents have the capacity to provide for the needs of the children. The parents are significantly supported in their care of the children by their extended family members, indicated by not only the involvement of the grandparents but other family members.
The paternal family will get to see Y and X every second weekend throughout the calendar year of 2020 and, I apprehend, more often if they wanted to travel to Sydney.
There was a reference made by Mr Dodd to holiday time. It seems to me that the holiday time, that is to say, measured around school holiday periods in the New South Wales school calendar, should be not equal during the calendar year 2020 but significantly more in favour of the father. This will, it seems to me, go some way to making up the diminution in the amount of face-to-face time between the father and the children during the calendar year.
It is important to also note that in terms of the urgent nature of the application, if the matter is adjourned it may well be several months before the Court could even return to it, which, of course, is another reason that it needs to be concluded on an interim basis now. Any such delay would effectively defeat the mother’s urgent application.
s.60CC(3)(j)
There are allegations of family violence, but I am not in a position to make any findings about it.
s.60CC(3)(m), s.61DA and s.65DAA
There is to be an order for equal shared parental responsibility. If one parent is in Sydney during 2020 and one in Brisbane, it is not reasonably practicable for there to be an equal time order or a substantial and significant time order, even if it was to be in their best interests.
It seems to me that upon the return to Brisbane at the beginning of 2021 the children would return to the current arrangement, which is the 9/5 arrangement pending further determination of the Court. The matter should be mentioned in the Court by about the end of February 2021. If the matter has not resolved by that stage then it will be given a final hearing date.
As I said earlier, though, the Court orders will be that if something happened in terms of the mother’s accreditation or her study in Sydney and she needed to stay somewhat longer in Sydney than she currently anticipates, then the mother ought not be under any misapprehension. These orders that I am proposing will state that the children are to be back here in Brisbane, and if the mother can’t be here as their primary carer then they will be living primarily with the father from that point in time pending any final determination.
However, the point is that the history of these matters is always relevant. It is always taken into account in a best-interests consideration.
The Court is very mindful of sentiments indicated by the Full Court over many years relating to restricting a parent’s desire to move from one state to another, even if it’s on a temporary basis. I know that the father says “Well, you know, the mother can go and the children can stay here”, but the mother says “Well, if the children don’t go, I’m not going”. So it would, in effect, be a situation where she was prevented from choosing where she wants to live in 2020 and prevented from completing her study to become a health care worker.
What is apparent on the mother’s evidence is that it is not an easy proposition to obtain entry into a further course of study. It is not simply a matter of putting your hand up and saying “I want to do this therefore pick me”. It is significantly different and the mother’s own affidavit makes that clear. There is no suggestion to the contrary. So that when this kind of opportunity arises for the mother at this stage in her career, given the mother’s current proposal at the time of this interim hearing, it seems to me to be another reason, in balancing all of the various considerations when exercising the discretion.
I have noted, for instance, the number of hours that the mother apparently has worked in her roles in Queensland. 50 to 60 hours per week whilst she was at, I believe, the City C employer. The mother has stated in her affidavit that her time in Sydney will be less – there will be less demands on her time at the employer. There is actually nothing contrary to that evidence.
The life of a child in a family with at least one hard-working professional is what it is. Parents give to their children the time that they can. One of the matters I have taken into account in making this determination is the willingness of Ms B to travel with her sister to Sydney so that she is available to take up the slack to assist the mother during what will undoubtedly be an extremely busy year.
I note the mother’s evidence, as I said earlier, that in order for her to become a health care worker she needs to complete this particular period in another state. It seems to me that doing it in 2020 makes a good deal of sense because it means that X can start Prep back at the D School in 2021. I know and appreciate that it will be a somewhat disrupted year for the children. It will be a disruptive year for Y to move schools for a year. But, with the support of the father, the mother, grandparents, aunties and, undoubtedly, uncles I have no doubt that these two young children will be able, with the help, as I say, of all those people, to successfully navigate 2020.
The making of orders by the Court that these children will return to commence school at the D School at the commencement of the 2021 school year it seems to me sufficiently deals with the father’s concerns, such as they are, that the mother might not come back after one year. The fact is, the children are coming back, that’s for sure.
If it was to occur, as I said, that the mother did not come back, the children will come back anyway. They will live with the father. The mother can have every second weekend with them. But whatever that arrangement is, the mother will have to pay for it. If she is interstate, I mean. And I do not see why the time could not take place in Brisbane or elsewhere, if it comes to that. It is really putting in place some contingencies because of the suggestion made on behalf of the father that there is a suspicion by the father or a fear that the mother will not be returning.
I am well aware of the general attitude of the Courts in relation to interim relocations, but I must say that in the particular circumstances of this case – it is a somewhat different case to the usual interim relocation application, for two reasons:
a)Firstly, the mother will still be in a position to facilitate alternate weekend time with the father. (I note that is somewhat less than what he currently has, but it is still alternate weekend time with the father); and
b)Secondly, this is an interim relocation application on a temporary basis for a particular reason in relation to the mother pursuing her career as a health care worker. It is not, as I said earlier, an advance beachhead by the mother in an application to relocate permanently to Sydney. That is not what is sought by the mother.
These are two issues at the forefront of the Court’s mind in making this decision today.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 14 February 2020
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