FAMILY COURT OF AUSTRALIA
| PENGLETON & FARAM | [2020] FamCAFC 2 |
| FAMILY LAW – APPEAL – PARENTING – Where the parents live approximately one hour and forty minutes’ drive apart – Where the parents separated when the child was 6 months old – Where the parents facilitated an equal shared care arrangement without Court orders until the child reached school age – Where both parents sought orders providing for the child to live with them and attend the local primary school – Where the trial judge ordered that the child remain living with the mother – Where a change of care from the mother to the father was not in the child’s best interests – Where the child had been in the primary care of the mother for an extended period of time prior to trial – Where the child had close relationships with her half-brother and the extended maternal family – Where the trial judge found that the mother adequately supported the child’s relationship with the father – Where the father alleges the trial judge gave inadequate reasons and mischaracterised the family report writer’s evidence – Where the father asserts the trial judge made erroneous findings as to the significance of a move from the mother’s care to the father’s and failed to consider s 60CC(3)(l) – Where none of the father’s challenges are established – Appeal dismissed – Where there is no order as to costs. |
| Family Law Act 1975 (Cth) ss 60CC(3), 65DAA |
| Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232 AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gelbvieh & Senepol [2007] FamCA 476 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22 Simmons & Kingley (2014) FLC 93-581; [2014] FamCAFC 47 U v U (2002) 211 CLR 238; [2002] HCA 36 |
| APPELLANT: | Mr Pengleton |
| RESPONDENT: | Ms Faram |
| FILE NUMBER: | BRC | 11319 | of | 2017 |
| APPEAL NUMBER: | NOA | 23 | of | 2019 |
| DATE DELIVERED: | 8 January 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 8 August 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 February 2019 Orders issued: 21 February 2019 |
| LOWER COURT MNC: | [2019] FCCA 277 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person via telephone |
Orders
The respondent mother be given leave to appear by telephone at the hearing of the appeal.
The appeal be dismissed.
There be no order as to costs of the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pengleton & Faram has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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Details
- AGLC
- Pengleton and Faram [2020] FamCAFC 2
- Case
- [2020] FamCAFC 2
- Decision Date
CaseChat Overview and Summary
In the case of Pengleton and Faram, the matter was before the court concerning the best interests of a child, specifically regarding a proposed change of residence and school. The dispute involved the parents, who had differing views on the most suitable living arrangement for their child. The family report writer had opined that both parental proposals were in the child's best interests but could not recommend one over the other. The trial judge, in their findings, considered the report writer’s evidence and concluded that a change of residence and school would be a major disruption for the child, who was well settled in her current living and schooling arrangements.
The legal issues before the court included the weight to be given to the family report writer's opinion, the significance of the child’s established relationships and routines, and the potential impact of a change on the child’s well-being. The court had to balance the competing interests of the parents against the paramount consideration of the child's best interests. The trial judge acknowledged the potential for the child to cope with the change if supported by both parents but emphasised the substantial disruption such a change would entail.
The court, in its reasoning, considered the family report writer's oral evidence and the trial judge's findings. The report writer had initially opined that the child would likely cope with the transition but later acknowledged that the disruption would be more significant given the additional time the child had spent in her current living arrangement. The court found that the trial judge’s conclusions were supported by the evidence and that the disruption to the child's well-established routines and relationships warranted a finding in favour of maintaining the status quo.
In conclusion, the appeal was dismissed, and the original orders were upheld. The respondent mother was granted leave to appear by telephone at the hearing of the appeal, and there was no order as to the costs of the appeal. The form of the order was subject to the entry of the order in the Court’s records.
The legal issues before the court included the weight to be given to the family report writer's opinion, the significance of the child’s established relationships and routines, and the potential impact of a change on the child’s well-being. The court had to balance the competing interests of the parents against the paramount consideration of the child's best interests. The trial judge acknowledged the potential for the child to cope with the change if supported by both parents but emphasised the substantial disruption such a change would entail.
The court, in its reasoning, considered the family report writer's oral evidence and the trial judge's findings. The report writer had initially opined that the child would likely cope with the transition but later acknowledged that the disruption would be more significant given the additional time the child had spent in her current living arrangement. The court found that the trial judge’s conclusions were supported by the evidence and that the disruption to the child's well-established routines and relationships warranted a finding in favour of maintaining the status quo.
In conclusion, the appeal was dismissed, and the original orders were upheld. The respondent mother was granted leave to appear by telephone at the hearing of the appeal, and there was no order as to the costs of the appeal. The form of the order was subject to the entry of the order in the Court’s records.
Orders
Orders of the court
1.
The respondent mother be given leave to appear by telephone at the hearing of the appeal.
2.
The appeal be dismissed.
3.
There be no order as to costs of the appeal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
As already recorded above, at [65] of the reasons the trial judge recorded the following:65.The report writer says that, if the Court considered it in the child’s best interests to move the child’s residence to the father – the child (with the support of both parents) would cope. That is probably correct. However, the family report writer also noted in her evidence in Court that such a move would be significant to the child. The conclusion I have reached is that it would be a very significant adjustment for the child. Based on the available evidence – the conclusion I have reached is that a change of residence and a change of school would be a major disruption for this little girl. The child is well settled in her current living arrangement. The child is well settled in her current schooling arrangement.(Emphasis added) In her family report, the report writer opines, in summary, that both the proposal of the mother and that of the father are in the child’s best interests (paragraph 106); that the report writer cannot make a recommendation as to which is better for the child (paragraph 109); that the child would “likely cope” transitioning from the mother’s care to that of the father if so ordered (paragraph 107(c)); and that timing is an important factor as the longer the dispute carried on, the harder it would be to transition if required to (paragraph 110). In that context, it bears emphasis that eight months had elapsed since the family report was prepared over which period the child obviously continued to live in Town C with her mother and brother and to attend the local school. The child had restarted the 2019 school year prior to the subject orders being made. In her oral evidence at trial, the report writer initially re-emphasised that the child would “probably cope reasonably well” with moving and changing schools.[12][12] Transcript 29 January 2019, p.62 lines 18-24. Review of the trial transcript discloses that when the report writer was giving oral evidence the trial judge sought to update the family report writer on relevant matters since her report was prepared. There were these relevant exchanges between the trial judge and the expert:[13]Yes. All right. What role in your thinking or your opinion, or to what – how much weight should the court give to the fact that the child has had that first year of prep and established relationships with the children in the area, and has her pony there, and these sorts of things? I mean, have you got a particular view one way or the other about how important those things are?---I think for [X] at the moment I’m sure they are very central in her life, and now it has been a much longer time. This has now become kind of her normal - - -Yes, I know?---Her normal life. So I think disruption to that is going to have the potential to have some impact, but in saying that I think developmentally she, with the right support – and I’ve noted this in my report, that because of the good relationships with both parents, if both parents are supportive of whatever decision is made, I do think she will cope with that. It just is likely to be a bigger disruption now because there has been more time that she has had to settle into the current living arrangement.(Emphasis added)[13] Transcript 29 January 2019, p.68 lines 5-19.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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