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…

Grounds of appeal

[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.

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Details

AGLC: GAIZE & GAIZE (No.2) [2020] FCCA 297
Case: [2020] FCCA 297
Decision Date: 31 January 2020

CaseChat Overview and Summary

In *Gaize & Gaize (No.2)*, Howard J of the Federal Circuit Court of Australia considered an urgent interim relocation application brought by the mother, who was the primary carer of the parties' two young children. The mother sought to relocate the children to Sydney for approximately 10.5 months to complete her healthcare worker training, proposing that the children would spend time with the father every second weekend in Brisbane at her expense. The father, in response, sought for the children to live with him should the mother relocate, and the mother had indicated she would not relocate without the children.

The central legal issues before the Court were whether to grant the mother's application for interim relocation of the children to Sydney, and whether to grant the father's subsequent application to adjourn the proceedings and reopen the evidence to obtain an updated family report or memorandum. The father's application for adjournment was made as the Court was in the process of delivering its ex tempore judgment.

Howard J reasoned that the mother's proposal had evolved significantly from the time of the family report, particularly concerning the quantum of time the children would spend with the father. While not bound by expert evidence, the Court considered the available material. The urgency of the mother's training, commencing in February 2020, meant that any adjournment would likely defeat her application. Consequently, the application to adjourn and reopen the evidence, made during the delivery of judgment, was refused.

The Court ordered that the mother's application for temporary relocation be granted, allowing the children to relocate to Sydney with her for the specified period. The Court incorporated its reasons from the initial judgment and the transcript of the hearing on 31 January 2020 into its final reasons.

Orders