Garton & Dale (No 2)

Case [2023] FedCFamC1F 24

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Garton & Dale (No 2) [2023] FedCFamC1F 24

File number(s): MLC 11826 of 2020
Judgment of: WILSON J
Date of judgment: 31 January 2023
Catchwords:

FAMILY LAW – RELOCATION – best interests of the child – relevant legal and factual considerations – application refused.

FAMILY LAW – PARENTING – application for the enlargement of time for the father – application granted. 

Legislation: Family Law Act1975 (Cth) 4AB, 60B, 60CC and 65DAA
Cases cited:

AMS & AIF (1999) 199 CLR 160

Briginshaw v Briginshaw (1938) 60 CLR 336

Commonwealth v Baume (1905) 2 CLR 405

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

G & C [2006] FamCA 994

Galea v Galea (1990) 19 NSWLR 263

Gerber & Beck [2020] FamCA 210

GH v The Catholic Child Welfare Society (Diocese of Middlesbrough) [2016] EWHC 3337

Godfrey v Sanders (2007) 208 FLR 287

Honeysett v The Queen (2014) 253 CLR 122

In the Marriage of Scott (1994) 17 FamLR 420

Isles v Nelissen (2022) 65 Fam LR 288

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Lovell v Lovell (1950) 81 CLR 513

M v S (2006) 37 Fam LR 32

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705

Mazorski v Albright (2007) 37 Fam LR 578

Morgan v Miles (2007) 38 Fam LR 275

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Richter v Richter (2019) 63 Fam LR 102

Sigley v Evor (2011) 44 Fam LR 439

South West Water Authority v Rumble’s [1985] AC 609

Taylor v Barker (2007) 37 Fam LR 461

Taylor v Public Service Board (1976) 137 CLR 208

Yarrow & Yarrow [2022] FedCFamC1A 135

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 1 First Instance
Number of paragraphs: 189
Date of last submission: 16 November 2022
Date of hearing: 4-6 and 17-20 October 2022 and 14-16 November 2022  
Place: Melbourne
Counsel for the Applicant: Mr J. Werner
Solicitor for the Applicant: Kelly & McHale Family Lawyers
Counsel for the Respondent: Mr C. Dunlop
Solicitor for the Respondent: Nicholes Family Lawyers
Counsel for the Independent Children's Lawyer: Mr D. Robertson

ORDERS

MLC 11826 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR GARTON

Applicant
AND:

MS DALE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

WILSON J

DATE OF ORDER:

31 JANUARY 2023

THE COURT ORDERS THAT:

1.All previous parenting orders are discharged.

2.The mother and father have equal shared parental responsibility for the child X born 2018 (“the child”).

3.The child live with the mother.

4.Commencing from the date of the making of these orders the child shall spend time with the father as follows –

(a)in week one, Friday from 3:30pm until Monday 9:00am; and

(b)in week two Wednesday…

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AGLC
Garton & Dale (No 2) [2023] FedCFamC1F 24
Case
[2023] FedCFamC1F 24
Decision Date

CaseChat Overview and Summary

In the matter of Garton & Dale (No 2), the court was presented with a dispute concerning the relocation of a child by the mother and the enlargement of time the father was permitted to spend with the child. The case involved cross-examination of Dr S, an expert psychologist, who had been engaged to write a report for the trial and assess the mother's mental health. Dr S's evidence highlighted several significant points, including her acceptance of the mother's narrative as reliable and her diagnosis of adjustment disorder based on the mother's perspective. The court was tasked with determining the credibility of Dr S's assessment and the mother's claims of family violence, as well as evaluating the implications of the mother's relocation application and the father's request for an increase in his time with the child.

The court had to address several key legal issues. Firstly, it needed to assess the reliability and utility of Dr S's evidence, particularly in light of her unreserved acceptance of the mother's narrative and the potential impact on her analysis. Secondly, the court had to consider the mother's application for relocation, weighing her motivations against the best interests of the child. This involved examining the potential impact of relocation on the child's relationship with the father, the practicalities of the proposed relocation, and the adequacy of arrangements for the child's care in the new location. Finally, the court had to evaluate the father's application for an increase in his time with the child under the provisions of section 65DAA of the Family Law Act, determining whether equal shared parental responsibility could be achieved in a manner that was in the child's best interests and reasonably practicable.

The court concluded that Dr S's evidence was of limited utility due to her unreserved acceptance of the mother's narrative, which raised doubts about the truthfulness of the mother's statements. This, in turn, impaired the psychologist's analysis. Regarding the mother's relocation application, the court found that it was not in the best interests of the child to permit relocation. The court noted several factors, including the potential for severely circumscribed interaction between the child and the father, the lack of consideration for the child's schooling in the relocation destination, and the mother's apparent motivation being her personal wishes rather than the child's best interests. Consequently, the mother's relocation application was refused. The court then turned to the father's application for an enlargement of his time with the child, considering it under section 65DAA. Given that equal shared parental responsibility was agreed upon, the court found that it was in the child's best interests and reasonably practicable for the child to spend equal time with both parents.

In conclusion, the court's final orders included the refusal of the mother's relocation application and the approval of the father's application for an enlargement of his time with the child. These decisions were based on a thorough evaluation of the evidence, with particular attention to the best interests of the child and the implications of each parent's proposals.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Dr S was cross-examined. She gave evidence in answer to questions put to her in cross‑examination as follows – (a)She received a letter of instruction sent by the mother’s solicitors by means of a “retainer” for the purpose of writing a report for the trial of this proceeding[19] as well as to assess the mother’s mental health;[20][19] T505 L5-11. [20] T507 L27. (b)she had direct prior contact with the mother before the letter of instruction was received to the effect that the mother sought to retain her “in an expert capacity”;[21][21] T506 L28-43.(c)Dr S was not giving evidence as a single expert;[22][22] T505 L43.(d)the use of serious violence and gender-based violence tends to be the focus of her work;[23][23] T511 L11-29.(e)she based her findings on the mother’s perspective of events;[24][24] T513 L5.(f)in reference to allegations of family violence she conceded that she did not have “the faintest idea what [the father’s] version of events is”;[25][25] T513 L14 – T516 L42.(g)the transcript recorded the following exchange[26] – [26] T519 L10 - T520 L12. MR WERNER – If she provides you with a compelling narrative and you make a diagnosis based on that narrative, of necessity, you are accepting the narrative as reliable - - -?---Thank you - - -Surely you can agree with that?---I should also clarify though, in relation to adjustment disorder, that that can be based on a perceptual event.That’s not what you’ve worked on in this report though, I would suggest to you. You have assumed, by way of forming a clear view, the narrative that [the mother] gave you is accurate. It was compelling?---I believe that when [the mother] told me, and continues to tell me in more recent sessions, about the things that she witnessed in the home, I believe that she believes those things. I do not believe that she’s making those things up in terms of impression management.Well, you’ve said she’s not paranoid?---Correct.So if she’s not paranoid, then you’re assuming that there is some legitimate factual basis for it, surely?---Again, it’s a very technical, clinical answer, but there’s a big gap between reality perception and then paranoid or delusional content.All right. You’ve formed a positive view, if I read it correctly, that [the mother’s] reported experiences are genuine. Paragraph 8.1.2. You’ve referred to paragraph 8.1.1 to the malicious reporting - - -?---Yes.- - - as the DHS has described it - - -?---Yes.- - - and you’ve gone on to say:I hold a counter opinion for this position. Based on [the mother’s] outline, I perceived that [the mother] became concerned, isolated, unhappy due to the dissolving of the relationship and this dissolving of the relationship was due to a range of factors that included her experiencing reported violence and witnessing reported violence towards her son.It’s as clear as a bell you have accepted her narrative, surely?---So when it says I hold a counter opinion, this is in reference to the causal inferences made through the DHHS reporting. So the causal inference made in that reporting, as I read it, was that [the mother] had made a decision to go back to the United States and then concocted this story in order to support her moving back to the United States. I hold a counter opinion to that, which is that the relationship dissolved. There was toxicity in that dissolution. That that was extremely distressing to [the mother] and that she has reported violence and also to both herself and her son, so that’s her reports and - - - Do you believe that?---Do I believe [the mother]?Do you believe her narrative of that being the victim of family violence?---I believe that [the mother] was not feeling safe in that home. Could you answer my question responsively, please, [Ms S] – [Dr S], I beg your pardon. It’s a really simple possibility. Do you believe it’s true?---I do.(h)Dr S diagnosed adjustment disorder;[27](i)Dr S agreed that the mother’s claim that the father’s mother could “corrupt the outcome of this court process” are “implausible” and “absolute nonsense”;[28] and(j)with respect to the veracity of the mother’s complaints against the father, Dr S gave evidence as follows – Would you agree me that, as a matter of life experience, it sometimes happens that people tell lies?---Yes, people tell lies.Yes. And when a person tells a deliberate lie, I would suggest to you it’s inevitably because they perceive they would derive some advantage from doing so. They don’t do it for any other reason. Would you agree with that?---No, I wouldn’t agree with that.Don’t agree with that. Okay. Would you accept that it’s perfectly possible that some of the allegations that [the mother] has made against [the father] are inaccurate factually?---Yes. You accept that. Do you accept it’s perfectly possible that some of her complaints against [the father] are her own subjective interpretation of events which might not be objectively fair?---Yes.[27] T520 L45-6.[28] T522 L30-3. THE EVIDENCE OF FAMILY VIOLENCE

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I found Dr S’s evidence to be of very limited utility. She accepted unreservedly the mother’s narration of the background. I have real doubt whether the mother was truthful in her statements of factual matters to the psychologist. It follows that the psychologist’s analysis was commensurately impaired.CONSIDERATION OF THE MOTHER’S RELOCATION APPLICATION As has already been recorded, the mother’s relocation application must be refused. In my judgment – (a)the mother’s desire for her to be near her own family must be subordinated to the best interests of the child;(b)if the child relocates, his face-to-face time with his father will be severely circumscribed and any interaction between the child and the father will in all practical terms be reduced to time by electronic means;(c)the child’s schooling in the relocation destination has not been seriously considered by the mother;(d)the practical and financial obstacles that would need to be overcome by the father in regularly visiting the child in the relocation destination are enormous; (e)if relocation were permitted the child would be effectively denied a meaningful relationship with his father;(f)the father and the child presently enjoy a very favourable loving relationship that will likely be damaged by the proposed relocation;(g)if relocation is permitted, I entertain little to no confidence that the mother will facilitate time for the child with the father if she formed the opinion, howsoever unreasonably, that the father may be or had been affected by alcohol or drugs;(h)such medical assistance as the child requires has not been arranged in the relocation destination;(i)the proposed male influence for the child in the relocation destination is the mother’s father, a person one generation senior to the child’s actual father; and(j)the benefits articulated by the mother in any proposed relocation were superficially attractive only, such as a larger home in which the child could live, an outdoor lifestyle, ice hockey and playing in the snow in winter. It was readily apparent to me that the mother’s real motivation in seeking a relocation order was not based on the best interests of the child but rather it was based on her personal wishes to be nearer her relatives. In a parenting case, of which this is one, the court’s primary duty is to create orders that most suitably promote the best interests of the child, not the personal wishes of one parent of the child. In refusing the mother’s relocation application, I recognise that the mother is at risk of an adverse reaction which could result in her behaviour altering negatively towards the child. Any such issue can be addressed if and when it emerges. It may not.THE FATHER’S TIME ENLARGEMENT APPLICATION Having refused the mother’s relocation application, the next issue, logically as well as chronologically, is the application by the father for an enlargement of the time he presently enjoys with the child. Equal shared parental responsibility is agreed. Section 65DAA of the Family Law Act became engaged. The effect of the applicability of s 65DAA(1) is that I am required to consider whether the child spending equal time with both parents is –(a)in the child’s best interests; and (b)reasonably practicable.