FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Mallows & Harrod (No 2) [2022] FedCFamC1A 102
Appeal from: Mallows & Harrod [2022] FedCFamC2F 36 Appeal number(s): NAA 30 of 2022 File number(s): LEC 92 of 2018 Judgment of: ALDRIDGE J Date of judgment: 8 July 2022 Catchwords: FAMILY LAW – APPEAL – RELOCATION – Where the appellant sought to relocate with the children – Where the primary judge did not give the parties an opportunity to be heard on the proposed order that required the appellant to live in a particular place – Denial of Procedural fairness – Error of law established – Appeal allowed – Relevant orders set aside and varied – No orders as to costs. Legislation: Family Law Act 1975 (Cth) ss 60CC
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Jasapas & Johns (No. 2) [2020] FamCAFC 203
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Paskandy v Paskandy (1999) FLC 92-878
Pruchnik & Pruchnik (No. 2) (2018) 58 Fam LR 458; [2018] FamCAFC 128
Sampson and Hartnett (No 10) (2007) FLC 93-350; [2007] FamCA 1365
Sayer v Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
U v U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 67 Date of hearing: 21 June 2022 Place: Sydney Counsel for the Appellant: Mr Foley Solicitor for the Appellant: Guy Sara & Associates Solicitor for the First and Second Respondents: G J Donaghy & Company Solicitors Solicitor for the Independent Children’s Lawyer: Filed Submitting Notice on 5 April 2022 ORDERS
NAA 30 of 2022
LEC 92 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MALLOWS
Appellant
AND: MR HARROD
First Respondent
MS ROBIE
Second Respondent
MS BOWDEN
Intervener
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
8 JULY 2022
THE COURT ORDERS THAT:
1.The application for leave to adduce further evidence as identified in the oral application made on 21 June 2022 is refused.
2.The appeal is allowed.
3.Order 4 made on 24 January 2022 is set aside.
4.Order 8 made on 24 January 2022 is varied by the addition of the words “if the children remain living in the Town B/Town K area, or in the event the children are living in Town A at a place agreed in writing at Town D, Queensland or Town E, Queensland”.
5.The parties have liberty to apply within seven (7) days as to the form of Order 4 above.
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…
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- AGLC
- Mallows & Harrod (No 2) [2022] FedCFamC1A 102
- Case
- [2022] FedCFamC1A 102
- Decision Date
CaseChat Overview and Summary
The appeal in Mallows & Harrod (No 2) involved the maternal grandmother, both parents, and the paternal aunt, with the Independent Children's Lawyer also participating. The primary dispute centered around the living arrangements and visitation rights for the children, who were in the primary care of the paternal aunt at the time of the hearing. The maternal grandmother sought orders for the children to live with her, while the paternal aunt argued for continued care with her, with limited visits from the maternal grandmother. The parents were not actively involved in the proceedings.
The central legal issue before the court was whether it was in the best interests of the children to relocate from their current residence in New South Wales to a different location, and if so, what specific arrangements should be made for their care and visitation. This included determining the impact of relocation on the children's welfare, their attachment to their primary carer, and the importance of maintaining relationships with their maternal grandmother and extended family. The court also had to consider the evidence presented regarding the children's attachment to their Aboriginal culture and the implications of any changes in their environment.
The court found that relocation was not in the children's best interests, primarily due to the numerous changes they had already experienced in their lives. The decision emphasized the importance of minimizing future changes, maintaining consistency in their education and community relationships, and preserving their cultural connections. The court concluded that the children should remain in New South Wales, within a three-hour driving distance from the maternal grandmother. Additionally, the court rejected the paternal aunt's attempt to introduce new evidence regarding travel times and Aboriginal country maps, finding it unnecessary and potentially inadmissible.
The final orders required the children to remain in New South Wales, within a three-hour driving distance from the maternal grandmother. The children were to continue living with the paternal aunt, with specified visitation rights for the maternal grandmother and their parents, subject to any changes in circumstances or further court orders.
The central legal issue before the court was whether it was in the best interests of the children to relocate from their current residence in New South Wales to a different location, and if so, what specific arrangements should be made for their care and visitation. This included determining the impact of relocation on the children's welfare, their attachment to their primary carer, and the importance of maintaining relationships with their maternal grandmother and extended family. The court also had to consider the evidence presented regarding the children's attachment to their Aboriginal culture and the implications of any changes in their environment.
The court found that relocation was not in the children's best interests, primarily due to the numerous changes they had already experienced in their lives. The decision emphasized the importance of minimizing future changes, maintaining consistency in their education and community relationships, and preserving their cultural connections. The court concluded that the children should remain in New South Wales, within a three-hour driving distance from the maternal grandmother. Additionally, the court rejected the paternal aunt's attempt to introduce new evidence regarding travel times and Aboriginal country maps, finding it unnecessary and potentially inadmissible.
The final orders required the children to remain in New South Wales, within a three-hour driving distance from the maternal grandmother. The children were to continue living with the paternal aunt, with specified visitation rights for the maternal grandmother and their parents, subject to any changes in circumstances or further court orders.
Orders
Orders of the court
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Background
Background to the litigation
The appeal is opposed by the maternal grandmother and both parents. The Independent Children’s Lawyer (“the ICL”) filed a Submitting Notice on 5 April 2022.BACKGROUND In order to understand the appeal, it is necessary to set out the history of the matter, which is largely taken from the reasons of the primary judge. At the time of the hearing the children were in the primary care of the paternal aunt. She sought orders that would see that continue, with the children spending very limited time with the maternal grandmother. This stance was modified during the hearing and it was proposed that the children spend one weekend per school term with the maternal grandmother and specified weeks during the school holidays. The maternal grandmother proposed orders that would see the children living with her and spending seven nights in every school holiday with the paternal aunt. Additionally, orders were sought for the children to commence spending time with their parents, supervised at first but progressing in nine months to two nights a fortnight in the parent’s sole care. The parents did not play an active role in the proceedings, although they were apparently present for some or all of the hearing. They did not file trial affidavits. The children, their mother and the maternal grandmother share Aboriginal heritage. The parents separated in October 2016 and the children spent week about time in a fairly flexible arrangement, with the father at the paternal grandmother’s home in Town B, New South Wales and with the mother the maternal grandmother’s home in Town C. By January 2018, the parents were not capable of looking after the children due to their drug use and family violence. The paternal aunt took the children into her care, she said, to avoid the possibility that child welfare authorities might remove the children. The paternal aunt commenced these proceedings in February 2018. In June 2018, interim orders were made for the children to live with the paternal aunt and spend time with the maternal grandmother and extended family for three hours on one Saturday a month, with the paternal aunt and maternal grandmother taking turns travelling. Her Honour recorded that despite the orders, the paternal aunt had taken the children to Town C to spend time with the maternal grandmother eight times. The maternal grandmother had travelled to Town B only five times. In March 2021, the paternal aunt and the children moved to Town A without consulting the maternal grandmother or the parents. Orders were made on 20 April 2021 requiring the children to be returned. Since then, the children have been living in Town K with the paternal aunt and travelling 40 minutes each way to school in Town B. The paternal aunt frequently took the children to Town A for weekends and school holidays. The primary judge recorded that the travelling time between Town K and Town C was approximately 2.5 hours (at [34(d)]). Her Honour found that the children’s primary carer was the paternal aunt to whom the children were strongly attached. The children were found to have loving relationships with the maternal grandmother and their parents (at [67]–[68]).
Evidence
Evidence Before The Court
Her Honour dealt with the question of relocation and concluded:169.Although relocation was an issue in this matter the final hearing was conducted in such a way that little evidence was provided to support a relocation case.170. The submissions were also minimal on the issue.171.I find having considered the evidence before the court that it is in the children’s best interests that the children not be permitted to relocate to Town A and are to remain in New South Wales within a driving distance of three hours from the maternal grandmother and orders have been made accordingly.172. I make this finding based on the following:(a)The children have been exposed to many changes in their lives and future changes need to be minimised.(b)Remaining in New South Wales will enable the children consistency of schooling and relationships with their community and friends.(c)Remaining in New South Wales will enable the children to spend weekend time and holiday time with the maternal grandmother and maternal extended family.(d) Remaining in New South Wales will enable the children to enjoy their Aboriginal culture.APPLICATION TO ADDUCE FURTHER EVIDENCE By an oral application made at the hearing of the appeal, the paternal aunt sought to adduce evidence of Google searches as to the driving time between Town C and Town B and between Town A and Town C. The paternal aunt also sought to adduce maps of the maternal grandmother’s Aboriginal country, apparently to show that it extended into Queensland (but not as far as Brisbane, let alone Town A). The affidavit relied upon did not attempt to comply with the requirements of r 13.39 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), and was only served on the other parties late the day before the hearing. Neither boded well for the reception of the new evidence. There was some evidence at the hearing itself of the relevant travelling times. The paternal aunt said that if the children moved to Town A they would be travelling an additional 30 to 40 minutes to go to Town C as opposed to Town B, but that it was an easier road to travel because it was not winding (Affidavit of the paternal aunt filed on 19 April 2021, paragraphs 12–14). She later added that Suburb G (which is in Town A) is a three hour drive from Town C and Town K is a 90 minute drive from Town C (Affidavit of the paternal aunt filed on 19 April 2021, paragraphs 69–70). The paternal aunt also said that Town C would be an extra 30 minute drive if she and the children moved to Town A (Affidavit of the paternal aunt filed on 19 April 2021, paragraph 85). The evidence was not challenged and no contrary evidence was called. I therefore do not understand the need for the Google searches. Further, those searches were available at the hearing (CDJ v VAJ (1998) 197 CLR 172 at [111]). The source of the maps of the specific Aboriginal country, or how and by whom they were prepared, were not identified. Therefore, it is difficult to see how they are admissible. As I have mentioned earlier, their relevance is questionable.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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