Longer and Longer - [2013] FMCAfam 257

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LONGER & LONGER

[2013] FMCAfam 257

FAMILY LAW – Parenting – children aged 6 and 4 – where the mother unilaterally relocated from [M] to Newcastle with the children after separation more than two years ago – where the father has remained in the [M] area – where each parent refuses to consider moving closer to the other parent – whether the mother should be required to re-establish the children’s residence in [M] – whether the children should live primarily with the mother or in a week about arrangement – whether if the children live with the mother in Newcastle the father should be able to spend overnight time with them and take them to [M] – where the mother contends that the father is a coercive and controlling man who fails to supervise the children properly, has no empathy with them and may pose a risk to their safety – where the father is critical of the mother’s day to day care of the children and would rather give the mother bags of healthy groceries than pay child support.

Family Law Act 1975 (Cth),ss.60CC, 61DA, 65DAC

Collu & Rinaldo [2010] FamCAFC 53
Gravis & Major [2010] FamCAFC 239
Mazorski & Albright (2007) 37 Fam LR 518
Sampson & Hartnett (No.10) (2007) 38 FamLR 15

Applicant:

MS LONGER

Respondent:

MR LONGER

File Number:

NCC 731 of 2011

Judgment of:

Terry FM

Hearing dates:

9 & 10 February 2012, 7 & 8 June 2012 and 24 July 2012 & 27 February 2013

Date of Last Submission:

27 February 2013

Delivered at:

Newcastle

Delivered on:

02 April 2013

REPRESENTATION

Counsel for the Applicant
(Direct Brief)

Mr Boyd

The Respondent:

In Person

ORDERS

Subject to order (2) the mother shall have sole parental responsibility for the children [X] born [in] 2007 and [Y] born [in] 2008.
The mother is not permitted to:
(i)change the children’s names;
(ii)relocate the children’s place of residence to a place at a greater distance from the father’s residence than they are living at present;
(iii)travel internationally with the children
without the written consent of the father or an order of the court.
The children shall live with the mother.
The children shall spend time with the father as follows:
(a)During school terms:
(i)on the last weekend of each month from 9.00am on Saturday until 4.00pm on Sunday until the commencement of Term 4 2013 and thereafter from 5.30pm on Friday until 4.00pm on Sunday save that the father may at his election (to be notified to the mother by email not less than 72 hours prior to the commencement of time on the last weekend in August) forgo time with the children on the last weekend in August each year and spend time with the children on the Father’s Day weekend in September.
(ii)from 10.00am until 5.00pm on the second Sunday of each month PROVIDED THAT the father has given the mother at least 72 hours notice by email of his intention…

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: Longer and Longer [2013] FMCAfam 257
Case: [2013] FMCAfam 257
Decision Date

CaseChat Overview and Summary

The case of Longer and Longer involved a dispute between the parents of two young children. The father sought an order for the children to live with him, while the mother sought to maintain the current arrangement where the children resided with her. The Family Court was tasked with determining the best interests of the children and the appropriate living arrangements. The primary considerations under section 60CC(2) of the Family Law Act, such as the benefit to the children of maintaining a relationship with both parents and the need to protect them from harm, were to be weighed against the additional considerations outlined in section 60CC(3).

The court had to decide whether the children's views, if any, should be considered, and if so, what weight should be given to them. The father alleged that the children expressed a desire to live with him, but the court found this evidence unreliable due to its alignment with the father's wishes, the father's credibility issues, and the children's young age. The court also examined the nature of the children's relationships with both parents and their extended family. The evidence suggested that the children had a secure relationship with their mother and maternal relatives, despite occasional displays of attachment to the father post-visits.

The court reasoned that the primary considerations under section 60CC(2) could not be adequately addressed without first considering the additional considerations in section 60CC(3). The nature of the children's relationships with each parent, their understanding of the issues, and the implications of family violence were crucial factors. The court found that it was appropriate to consider these matters in reverse order, as indicated by the Full Court in Collu & Rinaldo. Ultimately, the court determined that the best interests of the children were served by maintaining their residence with the mother, given the evidence of their secure attachment to her and the absence of any substantiated concerns regarding her parenting.

The final orders of the court were that the children would continue to reside with the mother, with appropriate arrangements for the father to have contact with the children. The court emphasised the importance of the children's ongoing relationship with both parents and the need to protect them from any potential harm.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The primary considerations in s.60CC(2) are as follows:a)The benefit to the children of having a meaningful relationship with both of the children’s parents; andb)The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. It is usually logical to make findings about the primary considerations in s.60CC(2) before turning to the additional considerations in s.60CC(3) but in some cases it is difficult to make findings about the primary considerations until findings have been made about the additional considerations and this is such a case. Until findings are made about such things as the nature of the relationship of the children with each of their parents, the capacity of each parent to provide for the needs of the children and the implications of the family violence in the relationship it will not be possible for me to make findings about the primary considerations. The Full Court in Collu & Rinaldo[6] indicated that it was acceptable to consider the s.60CC(2) and (3) matters in reverse order and I intend to do so in this case. [6] Collu & Rinaldo [2010]FamCAFC53 The first of the additional considerations is any views expressed by the children and any factors (such as the children’s level of understanding) that the court thinks are relevant to the weight to be given to those views. Dr H considered the children too young at the time of her report (4 & 2) to have their views canvassed, and there was no independent evidence that the children had views about any of the issues in dispute. The father maintained that the children had both said at times that they wanted to live with him and wanted to live in [M] but I cannot place weight on this evidence. First, it coincides with the father’s own wishes and does not come from an independent source, and the father was not always a witness of credit. Second, even if one or other of the children did say these things they are both very young and are not mature enough to understand the full ramifications of such choices. Third, I cannot exclude the possibility that the children either said those things to please the father or said them but felt differently the next moment or the next hour or upon their return to their mother. I must consider the nature of the relationship of the children with each of their parents and any other persons (including any grandparent or other relative of the child). I am satisfied that the children have a good relationship with the mother. It does not follow from the fact that [X] has clung to the father on occasions after visits and has not wanted to leave him that she has a poor relationship with her mother. Dr H who is independent in the matter said as follows:When I observed [the children] in the playroom with maternal kin they displayed secure base behaviour towards their mother and grandparents, all of whom took their cue from the children’s play interests. As is normal for children their age, both were reserved with me (a stranger) initially but after a time [Y] acknowledged me as a friendly presence and responded to my questions and comments. [X] snubbed me throughout. [7][7] Dr H’s report paragraph 55