GAIZE & GAIZE (No.2)

[2020] FCCA 297

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAIZE & GAIZE (No.2) [2020] FCCA 297

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 health care worker – 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.

PRACTICE AND PROCEDURE – APPLICATION TO ADJOURN AND RE-OPEN – 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 – where the Court incorporates in these Reasons for Judgment the reasons provided in Gaize & Gaize [2020] FCCA 296 and on the transcript of the proceedings on 31 January 2020 – where the application for temporary relocation was heard urgently in circumstances where the mother needs to start her employment training in Sydney in February 2020 – where any adjournment or delay would effectively defeat the mother’s application.

Cases cited:

Gaize & Gaize [2020] FCCA 296
In the Marriage of Hall (1979) 5 Fam LR 609

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

IT IS NOTED that publication of this judgment under the pseudonym Gaize & Gaize (No.2) 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 [2020] FCCA 296 and incorporates those reasons in these Reasons for Judgment.

1. By way of additional reasons in relation to the application to adjourn and reopen the evidence made orally by Mr Linklater-Steele on behalf of the father, while the Court was in the very process of delivering judgment ex tempore this afternoon.  Mr Linklater-Steele made an oral application essentially for the matter to be adjourned and evidence reopened so that Ms A could be updated in terms of the mother’s proposal.

2. As I said whilst delivering the main reasons for judgment, the mother’s proposal and case now is, in fact, very different to what it was when the parties saw Ms A.  The mother has, as I said earlier, doubled the number of weekends in the year that she says she will pay for these children to return to Brisbane to spend time with their father.

3. As I said earlier, when the matter was mentioned this morning the mother had increased her proposal to once every three weeks.  The mother then further increased her proposal to once every two weeks by the time the hearing of the application commenced this afternoon.

4. These cases are not assisted by the fact that there are no pleadings in the family law jurisdiction.  However, it is possible for parties to change their proposals and to change their arguments, and they do it regularly. 

5. Mr Dodd of counsel on behalf of the mother did, prior to 1 pm today, inform the Court that the mother’s proposal was now – that she would pay for the children to return to Brisbane once every fortnight.  If the father wished to seek an adjournment of the matter at that point in time so that further evidence from Ms A could be obtained then that was the point in time when the application should have been made for an adjournment and the obtaining of further evidence.  As I stated (by way of reasons) during the course of argument on the hearing of the application for an adjournment – if the father’s counsel had applied for an adjournment at that point I would have been more inclined to accede to the request. Instead, the matter ran through.  Comprehensive submissions were made by Mr Linklater-Steele on behalf of the father based on the mother’s proposal of the children spending every second weekend with the father. Mr Dodd made submissions on behalf of the mother also, of course, based on the mother’s proposal of time with the father to take place every second weekend.

6. In the course of the delivery of the ex-tempore reasons for judgment and at a point in time where it undoubtedly became apparent to Mr Linklater-Steele that the Court was or might be heading towards a conclusion that the best interests of the children will be served by a temporary relocation with their mother to Sydney – the Court was interrupted while it was in the process of delivering judgment and an application was made orally by Mr Linklater-Steele to reopen the evidence so that the particular current proposal of the mother can be put to Ms A for her opinion.

7. That application to adjourn and reopen is rejected, for the following reasons.  Firstly, as I said earlier, if there was an issue (so far as the father was concerned) with the mother changing her proposal (right at the point when submissions were about to be made by counsel for the mother) – then the father’s counsel should have made an application to adjourn at that point.  That was not done.  I do consider that the horse bolted at that point.

8. Next, by way of reasons, as I said earlier, it is undoubtedly the case that there is no magic in a family report.  It could not be clearer.  The Court is not going to be bound by whatever opinion a family report writer proffers (In the Marriage of Hall (1979) 5 Fam LR 609).

9. Next is the fact that this matter is urgent.  There is no doubt about it.  That is why the Court set it down for hearing at the end of January.  The matter is urgent.  It has been given an urgent interim slot on 31 January for the reason that the mother, in order to take up her posting at her employer in Sydney in the training program, needs to be there next week, the first week in February.  This matter needs to be determined urgently.  As stated in the main reasons (Gaize & Gaize [2020] FCCA 296) at paragraph 45 – 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.

10. The Court relies on the reasons stated herein and on the reasons stated in Gaize & Gaize [2020] FCCA 296. In addition, the Court relies on the transcript of 31 January 2020.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date:  14 February 2020