Leandra & Randles
[2021] FedCFamC1A 51
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Leandra & Randles [2021] FedCFamC1A 51
Appeal from: [Randles & Leandra [2021] FCCA 1125 Appeal number(s): EAA 42 of 2021 File number(s): NCC 209 of 2021 Judgment of: AINSLIE-WALLACE J Date of judgment: 5 November 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders providing for the children to live with the father following the mother unilaterally relocating from Region C to Sydney with the children – Re-location – Best interests of the children – Where the children were to live with the mother in the event she decided to live in Region C– Where the appeal is allowed by consent on the basis of there being an error of law – Cost certificates granted.
FAMILY LAW – RE-DETERMINATION – INTERIM PARENTING ARRANGEMENTS – Where the parties seek that the Court re-determine the interim parenting arrangements – Where the father has not provided evidence of his employment commitments – Where the mother was the primary carer – Where the children are distressed from the loss of their mother’s primary care – Orders made for the children to be returned to the mother.
FAMILY LAW – COSTS – Where the mother seeks costs on the basis of offers being made – Where the mother rejected the offers made by the father – No order for costs.
Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode and Goode (2006) FLC 93-286; [2006] FamCA 1346
SS & AH [2010] FamCAFC 13
Number of paragraphs: 98 Date of hearing: 26 October 2021 Place: Sydney Counsel for the Appellant: Ms Tabbernor Solicitor for the Appellant: Watts McCray Counsel for the Respondent: Mr Hogg Solicitor for the Respondent Joplin Lawyers ORDERS
EAA 42 of 2021
NCC 209 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS LEANDRA
Appellant
AND: MR RANDLES
Respondent
ORDER MADE BY:
AINSLIE-WALLACE J
DATE OF ORDER:
5 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The appeal against orders made by a judge of the Federal Circuit Court on 1 March 2021 is allowed and orders 1, 2, 10, 16 and 17 are set aside.
2.That there be no order for costs in relation to the appeal.
3.That the Court grants to the appellant mother a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
4.That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
5.That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.
IT IS ORDERED PENDING FURTHER ORDER:
6.Within seven (7) days of the date of these orders the children, X born in 2015 and Y born in 2017, be returned to their mother’s care in Suburb F.
7.The children shall live with the mother and she is permitted to relocate the children’s residence to Suburb F.
8.The children shall spend time with the father as follows:
a. During school terms, each alternate weekend from the conclusion of school on Friday (or 5:00 pm if a non-school day) until 5:00 pm on Sunday, with such time to resume, after each school holiday period, on the first Friday following the commencement of the new school term for students.
b. For half of each of the NSW school holidays as agreed and failing agreement:
i.For the first half of the school holidays when the holidays commence in an odd numbered year; and
ii.For the second half of the school holidays when the holidays commence in an even number.
NOTATION
A.THE COURT NOTES that the balance of the Interim Orders made on 11 March 2021 not otherwise set aside by these Orders continue to be operative.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leandra and Randles has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE J:
On 11 March 2021 a judge of the Federal Circuit Court (as it then was) made interim orders in parenting proceedings between Mr Randles (“the father”) and Ms Leandra (“the mother”) concerning the parties’ two children, X born in 2015 then aged six years and Y who was born in 2017, and who is three years old. The orders required the mother to return the children to live in Town D where they had previously lived, and if the mother too returned to Town D to live, then the children would live with her and spend time with the father. If the mother declined to return to live in Town D, then the children would live with the father and spend time with the mother. On 14 March 2021, the mother returned the children to Town D. They have lived with the father ever since.
The mother appealed from those orders.
Before the appeal was heard, the parties agreed that the primary judge’s decision was affected by appealable error and made submissions that the appeal should be allowed.
In a joint submission filed on 20 October 2021, the parties identified the errors which they said would result in the appeal being allowed, that is that the primary judge failed to apply the well-known principles referrable to cases involving relocation and further took into account irrelevant matters in coming to her decision.
Having considered the reasons for decision and the parties’ submissions, I too agreed that the appeal should be allowed and Orders 1, 2, 10, 16 and 17 made by the primary judge were set aside.
The parties then sought that the Full Court re-exercise the primary judge’s discretion and each filed affidavits updating their circumstances, agreeing that the redetermination would proceed by reference to the parties’ affidavits together with submissions.
REDETERMINATION OF THE INTERIM PARENTING ARRANGEMENTS
Background
The parties commenced a relationship in December 2009 and commenced living together in March 2013 before separating in January 2019. During the relationship they lived in Town D, north of Sydney. When they separated the mother and children moved into another property in Town D. The father’s family live in Town D and the father’s mother has been of considerable support to the parties and assisted with the children both before and after separation.
After the birth of their first child, the mother said that she was primarily responsible for caring for X. The father at this time was working with a Company A and it involved him being away from the family home for a week or two weeks at a time. The mother returned to work when X was eight months old and the paternal grandmother cared for him when he was not in day care. Some months after resuming work, the mother increased her work to four days a week with X attending day care two days each week and the paternal grandmother caring for him on the other days.
When the parties’ second child Y was born, there was a period of time in which the father stayed at home and helped the mother with the children, he then returned to work, again working away from the home for a week or weeks at a time.
The mother returned to part time work from October 2018 and the children attended day care two days each week. The paternal grandmother cared for the children on the other days while the mother worked.
After the parties separated, the mother and the children moved into separate accommodation in Town D. The parties were able to agree about the time the children spent with each of them, albeit in a somewhat ad hoc fashion. It seemed to be accepted by the parties that the mother was the children’s primary carer.
In October 2020 the parties agreed that the children would live with the mother and spend alternate weekends with the father. The parties were able to make flexible arrangements which meant that the father saw the children at other times.
When the proceedings came before the Federal Circuit Court, the father was working from
4:30 pm until 3:30 am Monday to Friday. The mother worked during the day. During the week the father would collect the older child from school, taking him to the paternal grandmother’s house until the father left for work and the mother, on finishing her work, would pick up the younger child from day care and collect the older child from his grandmother.
The mother’s move
After separation, the mother said that she was financially stressed. She said that, notwithstanding that she was working two jobs, the cost of rent, the cost of day care and school fees for X and the children’s medical expenses, she was struggling to make ends meet[1]. The mother had an opportunity to work in her family’s business in Suburb F a suburb west of Sydney which is some two and a half hour’s drive from Town D. For her, it represented more flexible working hours, rent free accommodation and she would have the support of her family.
[1]Affidavit 24 September paragraph 54-56
The mother informed the father of her intention to move in November 2020. The father objected. The mother moved in December 2020 nevertheless. The mother resigned from her employment in Town D and moved with the children to Suburb F.
On moving to Suburb F, the mother enrolled X in the local school and sought the father’s views on whether he should repeat kindergarten. She also proposed options for pre-schools for Y. The father did not respond. Of course it is also uncontentious that the father had made it clear to the mother that he objected to her moving the children away from Town D.
The mother also enrolled the children in extra-curricular activities like swimming lessons and soccer.
On 27 January 2021, the father filed an Initiating Application in the Federal Circuit Court seeking orders that the mother return the children to Town D. The matter was determined on an interim basis by the primary judge on 11 March 2021 who made the orders from which the mother appealed.
The mother did not move back to Town D and on 14 March 2021 she returned the children into their father’s care. Since then the mother has been spending time with the children on each alternate weekend and during school holidays. She also frequently speaks to them by FaceTime.
The parties’ proposals
Before the orders of 11 March 2021 were made, on both an interim and permanent basis, the father sought orders that the children live in Town D, either with the mother if she returned to live in Town D or with him if she did not. On either proposal, the father sought orders that the children spend time with the other non-residential parent although in the event that the children were living with the mother, they would spend more time with him than if they were living with him and spending time with her.
The father would not move to Suburb F because he said he had employment and family support in Town D.
On the other hand, he gave evidence of research he had done on the topic of housing and employment which might be available to the mother in Region C so that she could return and live with the children. The father said however, that he did not have the capacity to financially support her, the result being that it would be for the mother to fund herself in moving back to where the father was living with the children.
While acknowledging the mother’s evidence that she had her sister’s support in Suburb F, the father said that his parents and family in Town D offered “much greater family support”.
In submissions on the redetermination, counsel for the father contended that if the mother was to move back to Town D, the children would live with her and spend substantial time with the father. The father proposed that his mother and other members of his family would continue to offer support in assisting to care for the children when he was not available, as they had done in past. There was no dispute between the parties that the father’s parents had provided significant support for the parties during their relationship and assisted them in caring for the children after they separated. It was also argued that since the parties had settled their property matter, the mother would have funds with which to return to Town D.
The mother proposed that the children live with her in Suburb F in the house provided to her by her family. Her usual hours of work are from 10.00 am until 2.00 pm but she has sufficient flexibility to enable her to meet the children’s needs outside those times. Her work also provides her with a car. Thus the mother said she would be available to the children to take them to and from school and their afterschool activities.
The mother proposed that the children spend each alternate weekend and half of the school holidays with him. It seems that the parties’ proposals as to the time the children will spend with the non-residential parent were broadly the same and given their past flexibility, it would seem that each is willing to accommodate the other with additional or substitute time.
As I have said, the mother’s position before the primary judge was that she would not return to live in Town D and she maintained that position on the redetermination. She said:[2]
61. After the Interim Orders were made, I considered whether I could move back to [Region C]. I desperately did not want to be separated from the children. By that time I was settled in [Suburb F] and did not have a job or home in [Region C]. I looked at the rental properties available, but found they were not affordable for me, and not many properties were available. If I returned to [Region C], I estimate I would need to rent a property for $500 per week.
62. I would love to be able to move back to [Region C] to have the children returned to my primary care, I consider it to be financially impossible for me to do so. I do not have the means to move. I would also need to find a rental property; a new car and I would need to find a new job. I will not be able to find a job that will provide me with flexible working arrangements so that I could attend to my own and the children’s specialist appointments, including their appointments for speech therapy…
Mother’s affidavit filed 24 September 2021, paragraphs 61 and 62.
The mother has always maintained that she would not move back to Town D and there was no submission made that she had changed her position.
The father contended that the children were settled in their present living arrangements and it would not be in their best interests for them to be moved. The father’s proposals that the mother move back to Town D involve her resuming the care of the children. As I have indicated, he will not move to Suburb F.
THE ISSUES
Since the making of the orders in March 2021 and the return of the children to Town D, the parties have amicably complied with the orders and neither party seeks to displace the presumption of equal shared parental responsibility.
It was undisputed that the children have a meaningful relationship with each of their parents and each is committed to maintaining that relationship.
As counsel for the father identified, in this particular matter the parties are very much aligned in their support of the children and their desire to ensure their best interests are served. Apart from what might be seen as niggling complaints, neither makes any serious complaint about the other. Their attitude to parenting is perhaps best summed up by the mother where she said:[3]
20. As set out below, I seek that the children return to my primary care, and orders for (sic) they spend alternative weekends and half school holidays with [the father]…
21. I do not have any concerns about [the father’s] parenting capacity, apart from concerns about his availability to look after the children in light of his work schedule. As set out below, requests for information about the children’s day-to-day parenting have gone unanswered.
[3]Mother’s affidavit filed 24 September 2021, paragraphs 20 and 21.
In short, the determination of where these children live in the interim before the final hearing is a determination of their best interests.
This is an interim hearing and it is as well to set out the metes and bounds of my consideration.
It is quite common that factual disputes and contested issues are revealed in interim parenting proceedings. However, it is also well accepted that the nature of interim proceedings, where there is no testing of evidence and all of the issues are not exposed, it may not be possible to finally determine these disputes. [4] However, it does not follow that merely because there are facts in dispute, the evidence on the issue should be disregarded but one must approach fact finding in interim maters with considerable circumspection. [5]
[4]Goode and Goode (2006) FLC 93-286 at 80,901
[5]Eaby & Speelman (2015) FLC 93-654 at 80,331
In SS & AH [2010] FamCAFC 13, the Full Court said:
100.… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
As I have said, in this matter, there are very few disputed facts and issues between the parties. However, the parties are in dispute as to the children’s living arrangements in the father’s care and whether they are settled in his care.
What are the father’s working hours and who cares for the children in his absence?
The father’s working arrangements and his availability to care for the children has been a matter in issue between the parties since the proceedings commenced in the Federal Circuit Court. There was no challenge to the mother’s account of the father’s working pattern before they separated, that is, he would be away a week or perhaps more at a time.
The father’s evidence before the primary judge was that he was a driver with a Company B. He said: [6]
42. My average hours for my current position is 4.00pm to 3.30am, Monday to Friday and I drive locally through to Sydney twice in one night.
43. I understand that if the children are to be returned to [Town D] that my work hours, given that [the mother] and myself have worked together, we will not be suitable in the long term for the children and I am currently looking for new employment, which will allow me to have a more child friendly roster.
[6]Father’s affidavit filed 27 January 2021, paragraphs 41 – 43.
There was no evidence before the primary judge that the father had found such employment or indeed whether such employment was available to him.
On 29 April 2021, the mother’s solicitor wrote to the father’s solicitor and asked the following question:[7]
1.We note that you indicated to the Court that your client has changed his employment. Please advise the nature of your client’s employment and details of his working days and hours.
2.We have been instructed that the children have been living with the paternal grandmother since the Interim Orders were made. Please advise where the children are currently living and their living arrangements.
[7] Mother’s affidavit filed 24 September 2021, Annexure A.
The no response was received from the father’s solicitor.
On 10 May 2021, a further letter was sent from the mother’s solicitor to the father’s. It said:[8]
[8] Mother’s affidavit filed 24 September 2021, Annexure A.
Parenting
We note that it was submitted to the Court on behalf of the father on 29 April 2021 that you client has now taken up new employment and he has 2 weeks off prior to commencing his new employment. As a matter of urgency, please provide further information about your client’s specific job description and hours that he will be working.
Further, your client has not provided our client with information about the children’s current routine. As such, we ask that your client provides (sic) our office with information about the children’s routine and who has been caring for the children when your client is working…
Again, no reply was received.
The father said that after the children were returned to his care in March 2021, for the following six weeks he continued his previous employment that is working nights while the children were cared for by his mother. He then said:[9]
98. I completed my final night shift on 23 April 2021 and have worked only in a minimal capacity since then. I am now employed causally by [Company B] and [Company C] as a driver.
99. I now work minimal shifts so that I can be available to care for the children. I work most Wednesdays and then pick up on average about 1-2 additional shifts each week, although I have not done so since 23 August 2021. I begin very early on a Wednesday so the Children stay Tuesday night at my parents’ house. I pack all of their belongings including their lunch for the next day, give them a bath and then enjoy dinner with them at my mother’s home before leaving them with her for the night so they don’t need to be woken early the next morning. I then collect [X] from school and [Y] from my parent’s home after work. If I am running late form work, my mother will collect [X] from school and have both of the Children for about an hour before I collect them from her home.
[9]Father’s affidavit filed 24 September 2021, paragraphs 98 and 99.
The mother’s evidence was that since the children have lived with the father they have in fact lived with their paternal grandparents during the week and spent the weekends with the father. She refers to conversations with the older child in which he said:[10]
We have sleepovers every night with Nan and Pop. Dad picks me up from school and takes me to Nans each day and we sleep over at Nan and Pop’s. Nan takes me to school in the morning and takes [Y] to daycare. Dad picks us up on Saturday morning for the weekend.
[10]Mother’s affidavit filed 24 September 2021, paragraph 23.
While the mother deposes to a conversation with the paternal grandmother on 27 April 2021 in which the grandmother told her that the children were “with [the father]”, the mother said that when she FaceTimes the children on Tuesdays, Thursdays and Sundays, she can see that they are the grandmother’s house.
The father said [11]
102. I am aware that [the mother] may allege that I work hours more than I state. I say this is not true. Marked “JL4” and annexed hereto is a true and correct copy of my 4 most recent pay slips, showing the minimal work I have done showing that I have worked 47 hours over 4 weeks, being an average of 11.75 hours per week.
103. I live alone with the Children. I am healthy. The children reside with me in the home [the mother] and I once shared with them. …
(Emphasis in original)
[11]Father’s affidavit filed 24 September 2021, paragraphs 102 and 103.
The father did indeed annex four weekly payslips referrable to his work with Company C covering the period 24 August 2021 until 12 September 2021. The hours worked range from eight and a half to 18 hours each week. Nothing was produced from his second employer, Company B.
The father’s hours of work and the care arrangements he has put in place for the children while he is working are clearly relevant. The mother’s requests for information were reasonable. The sum total of the father’s evidence about his hours of work is reflected in the above quoted paragraphs. The evidence is opaque at best, and one can only conclude deliberately so as the mother’s counsel submitted. The father’s failure to either respond to the letters from the mother’s solicitor and to give detailed evidence on this issue is inexplicable. The father’s assertion at paragraph 102 of his affidavit filed 24 September 2021 above is inconsistent with the mother’s observations and the older child’s remarks to her.
There is sufficient doubt and insufficient evidence on which I could safely rely, to accept the submission of the father’s counsel that he is the children’s primary carer and is attending to all of their daily needs. Of course, this is not to suggest that working parents do not or should not rely on family members to support their care of children. The father’s family, it was agreed, had been extremely supportive of the parties and their efforts to work and care for the children both before and after separation. Neither paternal grandparent gave evidence as to the arrangements for the children. Counsel for the father submitted that it would be “unusual” in an interim hearing to adduce third party evidence and speculated about whether affidavits from either grandparent would have been accepted for filing. As to the latter point, I do not know if that evidence would have been accepted for filing because it seems no such evidence was given. As to whether to adduce third party evidence on an issue seminal to the determination of children’s best interests was usual or not, none was adduced.
Here, however, the mother contends that it is the children’s paternal grandmother who is primarily caring for them, not the father and the father’s deliberate refusal to provide full details of his employment commitments lends support for that contention. The evidence as it stands supports for her assertion.
Are the children settled in their present living arrangements?
The mother contended that the children were not settled in their lives with the father and said that they are distressed.
The mother’s evidence is that the children are missing her and want to spend more time with her than the present orders and arrangements allow. She said that when she speaks to them on FaceTime, they ask her to talk longer and are reluctant to hang up. When the children come to her, they say how much they miss her and want to come back home to be with her. The mother said:[12]
28. On the Sunday leading up to changeover, [X] has “episodes” where he gets angry and highly emotional and often says to me “I don’t want to go back to Dads, I just want to stay here with you” At changeover [X] often cries while he is getting into [the father’s] car.
29. [Y] has been very clingy and refuses to let go of me and both children often require a long cuddle from me to settle down at the conclusion of their time with me. When I’m putting [Y] in his baby seat in [the father’s car], [Y] refuses to let go of me and will say to me words to the effect of “Cuddle me, cuddle me.”
…
38. When I had the children for the July school holidays, [X] said to me “I told dad that I want to live with you and he said fine go live with your mum”. On a number of times during this holiday [X] said to me “I miss you so much. I want to live with you again” and “when am I going to live with you always?”
[12] Mother’s affidavit filed 24 September 2021.
The father described both children as being “settled” in their routine and living arrangements with him. He said both boys were happy.
In the event that the children were living with the father in Town D, the primary judge ordered to arrange counselling for both children. The order required the father to provide the mother with full particulars in relation to the counselling.
The father said[13] that he arranged for a referral for counselling in May 2021 and eventually obtained an appointment for X to attend Ms J who is a child psychologist.
Ms J’s first appointment with X was on 9 August 2021 and she has seen him on three subsequent occasions. At the time of the hearing before me, another appointment was scheduled for 1 December 2021.
[13] Father’s affidavit 24 September 2021, paragraphs 41-44.
The father said that Ms J wishes to see X every two weeks for an indefinite time. While the father said Ms J does not discuss the session with him, he sits in on X’s sessions with Ms J.
Ms J apparently thought that given Y’s age there was little to be achieved in engaging him in counselling.
The father informed the mother of the fact of the counselling and the identity of the counsellor on 9 September 2021, by that time X had had three sessions with Ms J.
In preparation for this interim hearing, the parties jointly requested a report from Ms J.
The report was delivered on the morning of the hearing. It was tendered by consent. The report is brief but, as will become apparent, assumed particular significance in the hearing.
Ms J indicated that she had received a referral for X pursuant to a mental health care plan to provide counselling to “improve X’s adjustment to the separation of his parents”.[14]
[14] Report of Ms J dated 25 October 2021.
After reciting the history of the parties’ separation Ms J said:
[X] presented with some difficulties dealing with the separation of his parents. He has had increased levels of anxiety, and also at times has difficulty regulating his emotions. This has included physically lashing out in anger, often directed to his younger brother. At school, teachers have indicated that [X] has difficulty with concentration, is easily distracted, and has required extra assistance with his schoolwork.
She detailed the therapy she was proposing to engage X in and then said:
[X] appears to be experiencing grief and loss in relation to the change in the parenting situation. [X] has spent the majority of his childhood with his mother as a primary caregiver. He appears to be experiencing difficulty in his ability to cope with the significant reduction in the contact with his mother, and this is leading to an increase in reactive behaviours and anxiety.
The mother submitted that notwithstanding that the children have lived with the father for eight months, Ms J’s report made it clear that they, or at least X was not settled and was experiencing significant emotional distress. Ms J’s opinion, coupled with the mother’s evidence about the children’s obvious distress when with her was said to powerfully indicate that the children should be returned to live with the mother.
Counsel for the father argued that it would be “dangerous” for the Court to accept Ms J’s opinion and act on it. It was contended that Ms Js qualifications and capacity to form the opinion expressed were unknown. It was said that the notes of her sessions had not been inspected nor could the Court know what had been said to her at the time she commenced working with X that might have affected her opinion.
Just pausing there. The father’s evidence was that he obtained a referral for the counselling and in fact the mother said that on 29 April 2021 she received a message from X’s general practitioner and, on sending the father a message, was told that it was to obtain a referral to a counsellor. The submission which implied that Ms J was in some way under qualified or not equipped to conduct the counselling was not something about which the father gave evidence, nor is it an inference which arises from the evidence. Counsel for the father would not concede that the history set out in Ms J’s report was most likely provided by the father. Clearly it could not have been provided by the mother since she did not know about the appointments with Ms J until September 2021. It was submitted that perhaps the general practitioner or a third person had provided the history to Ms J. Again I note that this was not the father’s evidence. True it is that the report was provided on the morning of the hearing and its contents were perhaps not anticipated, but no application was made to call viva voce evidence to correct any mistakes or errors in the history. In short there was not a shred of evidence to support counsel’s submissions impugning Ms Ms J’s credentials or that the history set out in the report was not provided by the father. I observe that counsel for the father did not submit that the history set out in the report was inaccurate.
It is worth noting too that the request to Ms Ms J to provide a report for the Court’s benefit on the interim hearing was a joint approach. Had the father harboured any anxieties about Ms J’s abilities, one imagines that something would have been said.
As to Ms J’s notes, the request to Ms J to prepare a report was made on 7 October 2021. She was not asked to produce her therapy notes.
Next it was argued that X’s distress as observed by Ms J may not be the result of his grief at separation from the mother. It was suggested that the behavioural difficulties and lack of focus at school identified by X’s teacher as being perhaps symptomatic of ADHD may be the cause of the observed distress, or, it was submitted that the distress was the perfectly reasonable distress of a child in X’s position at being separated from his mother.
Of course, as the report indicates, Ms J knew that X’s teachers had identified him as having difficulty with concentration, was easily distracted and needed extra help with his school work. She did not suggest that these observations had any role to play in X’s emotional distress.
While it would seem likely that a small child separated from his mother would be distressed, Ms J’s opinion did not contend that X’s distress was to be reasonably expected.
Finally, it was argued that Ms J’s opinion was just a “comment thrown out” at the end of her report and it was emphasised that her language showed that she was not sure because she said “appears”. It is difficult to understand what to make of this submission but one would think that the use of the tentative “appears” reflected that Ms J had had only a few sessions with the child and as to her opinion being “thrown out”, I do not understand what that means nor how it would affect the opinion’s reliability.
In short, it was submitted by counsel for the father that I would take no account of Ms J’s report and if the children are distressed and grief stricken at being separated from their mother, that will be demonstrated once a family report has been prepared and the family consultant and, one assumes, Ms J have been cross examined.
Given that neither the counsel nor the parties’ solicitors knew when the final hearing might take place, it is inherent in the submission that if Ms J is right, then X would have to remain distressed and grieving until there has been a final hearing.
The history Ms J records and her observations to which she refers in the report are unchallenged. That she has not been cross examined, might go to the weight attributed to her opinion but it does not mean that the opinion to be disregarded. Her opinion is consistent with the mother’s unchallenged evidence of observing the children’s distress.
The opinion of Ms J, while I accept it has not been tested nor has there been a more detailed examination of the parties’ evidence, is relevant to the determination of the children’s best interests and admissible. Even adopting a cautious approach to evidence which will clearly be in issue in a final hearing, I am prepared to accept her opinion that X is grieving the loss of his mother and has difficulty coping with the reduction in his contact with the mother.
To wait and see whether her opinion is correct is, in my opinion, to gamble with these children’s wellbeing.
I am thus of the view that these children’s best interests are served by their being returned to their mother’s care pending the final hearing. In coming to that decision I am conscious that it will necessarily involve another move for these two very little children whose residence has already changed twice and, all things being equal might have weighed heavily against a further change. However accepting that X is experiencing significant grief and loss and accepting the mother’s evidence of her observations of Y’s distress, I am of the view that a return to the primary care of the mother will best serve the children’s best interests as opposed to stability in their present living arrangement.
Further, given the paucity of evidence of the father’s working hours and the arrangements made for the children in his absence, it seems likely that children are more likely than not spending substantial time in their grandparents care, which coupled with their observed distress at the loss of the close contact with their mother, fortifies my conclusion that a change of residence should take place.
Thus I will order that within seven days of the date of these orders, the children be returned to the mother’s care in Suburb F and I will make further orders for time between the children and the father as sought in the mother’s minute of order.
COSTS
Both parties sought costs against each other in relation to the appeal, although counsel for the father abandoned the application for costs in the appeal seeking instead costs certificates for both the appeal and the rehearing. Counsel for the mother however sought costs against the father at first on an indemnity basis, which was subsequently not pressed, but instead sought an order that the father pay the mother’s costs of the appeal and rehearing on a party/party basis which was said to be $8,380.72.
The basis for seeking a costs order was said to be referrable to offers of settlement.
Of course, the overarching principle in relation to parties’ costs in family law proceedings is found in s 117 of the Family Law Act1975 (Cth) which is that parties are to pay their own costs subject to a court forming the view that to make a different order is just. In that determination the court must consider the matters referred to in s 117(2A) of which s117(2A)(f) is relevant, that is:
Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer.
A bundle of documents was tendered to support the mother’s application. In brief on 22 July 2021 the father’s solicitor wrote to the solicitor for the mother proposing a settlement of all issues including property settlement. It was proposed that the mother would withdraw the appeal and that the parties have equal shared parental responsibility for the children and that they return to the mother’s care and live with her in Suburb F. It was proposed that the father would spend time with the children each alternate weekend and for the whole of the terms one and three and half of the remaining school holidays, special days, telephone contact and point of changeover etc. The offer also contained proposals for long term issues such as passports and international travel. The offer was expressed to be open for seven days from the date of the letter.
On 26 July 2021 the mother’s solicitor responded that the mother did not agree to settle the matter on the terms proposed and sought an extension of the time in which the offer would remain open. The general counter proposal was that the mother would agree to settle the issues “one step at a time” that is, once the interim issue was resolved, then the mother would consider settling the other issues quite why that was a term of any settlement was not made clear in the letter.
The father’s solicitor responded on 5 August 2021, agreeing to extend the time in which the offer would remain open and inviting a response to their offer within a further seven days.
The mother’s solicitor responded on 11 August 2021 raising issues about the time the children would be collected during school term, that the parents share holiday time rather than the father’s proposal for the whole of two school holiday periods. Another extension was sought.
On 16 August 2021 the father’s solicitor wrote rejecting the counter proposals and withdrawing the offer.
In short, the father proposed a settlement of the proceedings which relevantly involved the return of the children to the care of the mother. That offer was rejected by the mother and several counter proposals were made.
Why then was the mother seeking the father pay her costs on a party/party basis based on the offer? It was said that the mother had “engaged with the settlement process” and thus should have her costs.
Each offer made by the father’s solicitor was expressed to be open for a limited time, on each occasion the mother’s solicitor sought an extension until it is presumed that the father’s solicitor came to the view that the offer was not to be accepted.
There can be no doubt that the father’s offers were open to be accepted for a limited time, and, twice an extension was given to allow the mother to consider the father’s offer. She ultimately rejected the offer and no agreement was reached.
I am not persuaded that the father’s rejected offer to settle entitles the mother to any order for costs.
More importantly, this is a matter in which it would not be just to make an order for costs and each party should pay his or her own costs.
COSTS ON THE APPEAL
In the event that no order for costs was made inter partes the mother and father each sought costs certificates for the appeal and the rehearing.
The conditions for the granting of costs certificates in relation to the appeal are met, the appeal being allowed because of an error of law by the primary judge and the parties should also have a certificate in respect of the rehearing.
I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ainslie-Wallace. Associate:
Dated: 5 November 2021
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