Wright & Dannell
[2022] FedCFamC2F 1743
Federal Circuit and Family Court of Australia
(DIVISION 2)
Wright & Dannell [2022] FedCFamC2F 1743
File number(s): ADC 2222 of 2022 Judgment of: JUDGE DICKSON Date of judgment: 6 December 2022 Catchwords: FAMILY LAW – CHILDREN – parenting orders – interim proceedings – two children aged seven and six years - consideration of the best interests of the children – equal shared parental responsibility – proposed relocation by the mother from Town B to Adelaide – where the mother alleges her wellbeing and parenting abilities will be adversely affect if she remains – weight to be applied to recommendations in Family Assessment Report pending Trial – interim orders for time spending and special occasion time – interim orders for the children to remain in Town B pending Trial Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA Cases cited: AMS & AIF (1999) FLC 92-852
Andrew & Delaine [2009] FamCAFC 182
B & B (1997) FLC 92-755
Beaton & Beaton [2020] FamCAFC 297
Campbell & Spalding [1998] FamCA 66
D & P [2006] FamCA 170
Friscioni & Friscioni [2010] FamCAFC 108
Goode v Goode (2006) FLC 93-286
Hall & Hall (1979) FLC 90-713
Hannigan & Sorraw [2010] FamCAFC 257
Harris & Harris (1977) FLC 90-276
Morgan & Miles [2007] FamCA 1230
U v U [2002] HCA 36
Wood & Wood (1976) FLC 90-098
Division: Division 2 Family Law Number of paragraphs: 97 Date of hearing: 5 December 2022 Place: Adelaide Counsel for the Applicant: Ms Ross Solicitor for the Applicant: Bartel & Hall Counsel for the Respondent: Mr Robinson Solicitor for the Respondent: Alex Mandry Legal Group Solicitor for the Independent Children's Lawyer: Ms Goldsworthy ORDERS
ADC 2222 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WRIGHT
Applicant
AND: MS DANNELL
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE DICKSON
DATE OF ORDER:
6 DECEMBER 2022
UPON APPLICATION MADE TO THE COURT by Ms Ross of Counsel for the Applicant, Mr Robinson of Counsel for the Respondent and Ms Goldsworthy as the Independent Children’s Lawyer.
UPON NOTING THAT the proceedings were conducted in person.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.All previous interim parenting orders be discharged.
2.The parties have equal shared parental responsibility for the children X born in 2015 and Y born in 2016 (‘the children’).
3.The said children do live with the mother save as provided otherwise herein.
4.The said children spend time with father as follows:
(a)During the Christmas school holidays 2022/23 as follows:
(i)From 4:00pm (or the conclusion of school) Friday 16 December 2022 to 9:00am Wednesday 21 December 2022;
(ii)From 3:00pm Sunday 25 December 2022 to 3:00pm Monday 26 December 2022;
(iii)From 4:00pm Thursday to 9:00am Wednesday and each alternate week thereafter following the cycle of the father’s roster;
(b)As and from Term 1 2023 and following the cycle of the father’s roster referred to in paragraph 4(a)(iii) herein from the conclusion of school (or 4:00pm if a non-school day) Thursday to the commencement of school Monday (or 9:00am if a non-school day) and each alternate week thereafter;
(c)At such other times as agreed between the parties in writing.
5.The parties be restrained by way of injunction from:
(a)Changing the said children’s principal place of residence from the Town B area;
(b)Changing the said children’s enrolment from the Town B Primary School and the Town B Junior Primary School;
(c)Abusing, assaulting, denigrating, harassing or belittling the other or allowing anyone else so to do; and
(d)Discussing these proceedings with or in the presence of either of the said children or allowing anyone else so to do.
6.Unless otherwise agreed in writing, any handover in Town B not occurring at the said children’s school do take place at the McDonalds restaurant in Town B.
7.Any handover in Adelaide do take place at a public location to be agreed between the parties in writing.
8.Each party be at liberty to FaceTime or telephone call the said children on three (3) occasions during the week that the said children are not living or spending time with either parent.
9.The parties are to communicate with one another in relation to the said children's care, welfare and development by way of text message, unless in the event of an emergency when telephone communication is permitted.
10.The parties shall each notify the other of any illness or injury suffered by the children whilst they are in their care at the earliest practicable opportunity.
11.Each party is permitted to, and hereby authorises the other to, receive any and all information with respect to health professionals upon who the child may attend from time to time and this Order shall serve as an irrevocable authority for such purpose.
12.The father be restrained by way of injunction from working in any period when the said children are in his care.
13.All interim applications are dismissed.
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 a pseudonym Wright & Dannell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Ex tempore reasons settled from transcript)JUDGE DICKSON:
INTRODUCTION
These short form reasons for judgment pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’) were delivered orally following the hearing between the parties concerned on 5 December 2022. These reasons have been corrected for errors of expression and syntax in an attempt to make the orally delivered reasons amenable to being read.
The reasons are also provided having regard to the Full Court decision of Goode & Goode as to the legislative pathway applicable to parenting cases on an interim basis and to guide the Court in relation to making orders that are in the best interests of children.[1]
[1] (2006) FLC 93-286.
BACKGROUND
These proceedings concern competing parenting applications between the parents, Mr Wright, the applicant father, and Ms Dannell, the respondent mother.
The parties in this case commenced a relationship in 2013, commenced cohabitation in 2015 and separated on 19 May 2022. The parties have two children, X born in 2015 (‘X’) and Y born in 2016 (‘Y’) (‘the children’).
Following separation the mother and the two children moved to the home of the maternal grandparents. It is alleged that, at that time, the mother confirmed her wish to relocate to Adelaide with the subject children. The father did not consent to the two children, X and Y, moving to Adelaide.
In addition to the two children of the relationship the mother has an older child, C, now aged 16 years. C currently resides in Adelaide and attends D School in Town E. C is said to be a gifted sportsman and is engaged in the pursuit of sports with an aspiration to work and play sports at a professional level. One of the planks of the mother’s case is that she wishes to move to Adelaide to support C in his pursuit of sport at D School at Town E.
The parties have resided, for the most part, during the course of their relationship in Town B. The father describes himself as a drive-in drive-out (DIDO) worker from Town F. The mother works locally in a business. The father has family in Town B and the mother too has family who reside in close proximity.
The mother now seeks to move to Adelaide with the subject children preferably with orders to be made at the conclusion of this hearing and if unsuccessful will maintain the position of seeking a final order that she be permitted to move to Adelaide with X and Y.
The father, for his part, remains resolutely opposed to any suggestion of the children moving 600 kilometres from Town B to Adelaide and ultimately aspires to care for the children in a shared care arrangement.
DOCUMENTS RELIED UPON
The applicant father relied upon the following documents as set out in part B of his Outline of Case Document (Interim Hearing):
(1)Initiating Application filed 25 May 2022;
(2)Affidavit in support filed 25 May 2022;
(3)Parenting Questionnaire filed 25 May 2022;
(4)Response to Initiating Application filed 9 June 2022;
(5)Notice of Child Abuse, Family Violence or Risk filed 9 June 2022;
(6)Affidavit of the father filed 20 June 2022;
(7)Affidavit of Ms G annexing a copy of the Family Assessment Report filed 26 September 2022;
(8)Application in a Proceeding filed 7 October 2022;
(9)Affidavit filed in support filed 7 October 2022; and
(10)Affidavit of the Independent Children’s Lawyer filed 30 November 2022.
The mother relied upon the following documents as set out in her Outline Of Case Document (Interim Hearing) filed 30 November 2022:
(1)Response to Initiating Application filed 9 June 2022;
(2)Affidavit of the mother filed 9 June 2022;
(3)Parenting Questionnaire filed 9 June 2022;
(4)Affidavit of the mother filed 28 November 2022;
(5)Affidavit of Ms H filed 30 November 2022;
(6)Affidavit of Ms G annexing a copy of the Family Assessment Report filed 26 September 2022; and
(7)Affidavit of the mother filed 18 October 2022.
THE FATHER’S POSITION
I have had had regard to all of the documents sought to be relied upon by the father but, in particular, the orders and pleadings promoted by him in the Application in a Proceeding and supporting affidavit which sets out the father’s proposed parenting orders for the purposes of the next tranche of the litigation.
In the Application in a Proceeding filed 13 October 2022, the father sought the following parenting orders:
(1)That the father’s time with the children pending trial commence at the conclusion of school on Thursday, 20 October 2022 with the father to collect the children from school and to conclude at the commencement of school on Wednesday, 26 October 2022 and thereafter each alternate fortnight from Thursday to Wednesday;
(2)That the parties shall notify the other of any illness or injury suffered by the children whilst they are in their care at the earliest practicable opportunity;
(3)That the parties be restrained by way of injunction from denigrating the other party to or in the presence of the children; and
(4)That the parties shall do all things necessary to ensure that the children remain enrolled at the Town B Junior Primary School and the Town B Primary School, respectively, pending further or other order.
Further submissions were made counsel for the father in relation to orders pertaining for Christmas Day 2022 pending the Trial in 2023.
THE MOTHER’S POSITION
Whilst not specifically referred to in the mother’s Outline of Case document, the Court had understood and proceeded on the basis that the mother was seeking orders as set out in the Response to Application in a Proceeding filed 18 October 2022 in relation to the interim orders promoted by the mother pending Trial.
Those orders are as follows:
(1)That the children, X and Y, live with the mother;
(2)That the children spend time with the father during the father’s rostered days off work:
(a)During school term from after school on Friday until the commencement of school on Monday in each alternate week,
(b)From 3:00pm on 28 December 2022 until 6:00pm on 1 January 2023 and then for four overnight periods on each alternate week with the father but with the exception of the week prior to school returning during the Christmas school holiday period; and
(c)Such other times as agreed in writing.
THE INDEPENDENT CHILDREN’S LAWYER’S POSITION
The Independent Children’s Lawyer who was appointed by the Court, given the complexity of the issues in relation to the future living arrangements for the said children, also filed an Outline of Case document on 30 November 2022.
The documents relied upon by the Independent Children’s Lawyer are referred to in Part B of that document and reflect the documents referred to above as relied upon by each of parties as set out above.
The Independent Children’s Lawyer sought the following orders:
(1)That the mother be restrained by way of injunction from changing the principal place of residence of the children away from the Town B area;
(2)That the children live with the mother;
(3)That the children spend time with the father as follows:
(a)Commencing Friday, 16 December 2022 from the conclusion of school Friday or 3:00pm of a non-school day to the commencement of school Monday or 9:00am of a non-school day;
(b)Commencing Thursday, 19 January 2023 from the conclusion of school Thursday or 3:00pm of a non-school day to the commencement of school Monday or 9:00am of a non-school day;
(4)All handovers shall take place as follows:
(a)On a school day at the children’s school; and
(b)On a non-school day at a public location in Town B;
(5)That the father be at liberty to FaceTime or call the children on three occasions during the week that he does not spend time with the children;
(6)The parties to communicate with each other in relation to the children’s care, welfare and development by way of text message unless in the event of an emergency when telephone communication is permitted;
(7)The parties shall notify the other of any illness or injuries suffered by the children whilst they are in the care of the other at the earliest practicable opportunity;
(8)Each party be permitted and authorises the other to receive any and all information with respect to health professionals upon who the child or children may attend from time to time with the order to serve as an irrevocable authority for such purpose; and
(9)That on a without admissions basis the parties be restrained by way of injunctions from:
(a)making critical or derogatory remarks about the other party or any member of the other parties’ family within the presence or hearing of the child;
(b)discussing these proceedings within the presence of the child; and
(c)allowing any third party to do any of the above; and
(1)That the matter be listed for Trial.
ISSUES IN DISPUTE
For the purposes of the argument which took place before the Court on 5 December 2022, there was broad agreement in relation to a number of ancillary or specific issues type orders which do not appear to be controversial. The parties were also in agreement with respect to orders being made for equal shared parental responsibility of the said children.
The major disputes between the parties are summarised as follows:
(1)Whether or not the children should be permitted to relocate from Town B to Adelaide as sought by the mother pending Trial;
(2)In the event that relocation is not permitted should the children live with the father for four nights per fortnight initially and moving, ultimately, to six nights per fortnight as sought by the father, or whether or not the children should spend four nights per fortnight with the father as promoted by the mother or if there should be a gradual increase in time spending from three nights per fortnight to four nights per fortnight as promoted by the Independent Children’s Lawyer;
(3)In the event that relocation is permitted what time spending should occur between the children and their father given that they will now be living some 600 kilometres away from one another; and
(4)What arrangements should be made for the children on Christmas Day 2022 noting the mother’s submissions through her counsel that she had understood that the father would be working and had made arrangements to attend in Adelaide for the purposes of Christmas Day. The father, through his counsel, indicated he would be available across the Christmas Day period and sought that the children spend time with each of their parents in the Town B area.
The father’s prepared orders were supported by the Independent Children’s Lawyer.
SUBMISSIONS
The father
The father’s counsel submitted that the Family Assessment Report (‘the Family Report’) prepared by Ms J at its highest recommended that the relocation of the children may be in the children’s best interests.
The father’s position is that given the evidence of the parties had not yet been tested, the Court should err on the side of caution and decline to permit the mother to relocate to Adelaide on an interim basis.
It is the father’s contention that it is in the best interests of the children that they remain living in their settled environment in Town B pending all of the evidence being ventilated and tested at a Trial listing.
The father did not oppose the matter being listed for Trial at the earliest date the Court could provide, with submissions made as to the length of Trial being four days in the event that the parties’ property settlement applications did not settle.
The father opposed any orders which permitted the children to move to Adelaide on an interim basis.
The mother
Counsel on behalf of the mother submitted that the father had conceded, through his documents, that the mother was the primary caregiver to the two subject children.
It was submitted that if the mother’s wellbeing was adversely affected by staying in Town B, then this would, in turn, adversely affect the care of the children by the mother.
Counsel for the mother submitted, with reference to the mother’s affidavit of 9 June 2022, that:
(1)The mother wished to attend university in Adelaide and to attend at her tertiary commitments in person;
(2)The mother sought to be reunited with the eldest child, C, now living in Adelaide, and to resume caring for C in an environment that would see C living with one parent rather than boarding with a third party; and
(3)The mother deposed in her most recent affidavit to having made inquiries and understanding that there would be a capacity for the said children in these proceedings to attend at the D School in Adelaide in 2023.
It was submitted that the move to Adelaide would improve the mother’s mental health and wellbeing as the children’s primary caregiver.
The mother submitted that the father, as a DIDO worker and being a high income earner, has the capacity to travel to Adelaide to spend time with the children. It was submitted that if the father’s case was accepted at its highest he could travel to Adelaide and care for the children on a week about basis in Adelaide rather than in Town B. It was submitted that the father earns a significant income and, in those circumstances, it was “ludicrous” to say that he was not in a position to spend time with the children in the Adelaide area.
Counsel for the mother submitted that this was a case where “the exception proves the rule”. In other words, this was a case where shared care, if the case of the father was taken at its highest, could be accommodated either in Town B or in Adelaide and that there was nothing prohibiting the Court from considering the mother’s proposal.
Counsel for the mother submitted that the father’s application for shared care would not be rendered nugatory at Trial because the issue then became one of the father’s capacity to travel to Adelaide. In the event that the Court considered that the change to the children was not in their best interests, the children could, in effect, be relocated back to the Town B area following final hearing. The mother’s counsel submitted that the mother’s proposal was a “win/win for everyone”.
The Independent Children’s Lawyer
The Independent Children’s Lawyer submitted that the relocation issues in this case should be determined at final hearing noting that if the relocation was granted on an interim basis, it beheld ramifications for the children, particularly in terms of them leaving an environment they have known all their lives, changing schools and moving away from extended support and schooling.
The Independent Children’s Lawyer submitted that the evidence currently is provisional and untested and urged the Court to exercise caution.
The Independent Children’s Lawyer noted that if the mother’s application was permitted the children would be living some 600 or 700 kilometres away from the father. The Independent Children’s Lawyer submitted that the children have a right to have a meaningful relationship with each of their parents and, in the circumstances of this case, the children should remain in Town B until such time as the parties are cross-examined and all options are put before the Court by way of tested evidence.
The Independent Children’s Lawyer further submitted that whilst the mother had a right to freedom of movement, in this particular case on an interim basis, the children should remain living in Town B pending Trial.
In relation to the school holiday arrangements, the Independent Children’s Lawyer maintained that time should take place in accordance with the orders promoted in the Outline of Case document.
The Independent Children’s Lawyer did not support the children spending either seven or six nights per fortnight in the care of the father during the school holiday period for Christmas 2022/2023.
It was submitted that by April 2023, the Independent Children’s Lawyer would support an extended week about arrangement during the school holidays.
For the purposes of Christmas Day, which was also in dispute between the parties, the Independent Children’s Lawyer submitted that given the special nature of Christmas Day, they supported the children being able to see their father on Christmas Day, Christmas Eve or Boxing Day, particularly in circumstances where if the mother is ultimately successful at Trial the children’s arrangements for Christmas from 2023 will arguably and potentially look very different.
THE LEGAL PRINCIPLES
Pursuant to section 60CA of the Family Law Act 1975 (Cth) (‘the Act’), the service of a child’s best interests is the most important consideration in this case.[2] The same principles are said to apply both at an interim and final stage. The distinction, of course, is that interim hearings do not determine final and long-term arrangements in relation to children whereas final proceedings do.
[2] Family Law Act 1975 (Cth) s 60CA.
In this instance, the Court is being called upon to make an interim decision in relation to the children’s care in circumstances where the parties have diametrically opposing opinions as to what arrangements would serve the children’s best interests.
The aims and principles of the Act are set out in section 60B of the Act. Those aims and principles direct me to consider the desirability of a child’s parents being as closely involved as possible in their child’s life; both in terms of the exercise of parental responsibility and the time they spend with their child commensurate with the need to protect the child from physical or psychological harm or from being exposed to abuse, neglect or family violence.[3]
[3] Ibid s 60B.
Parental Responsibility
The starting point for the Court’s consideration as it is in any parenting matter is to consider the issue of equal shared parental responsibility. This obligation is set out in section 61DA of the Act.
In this case, the parties are ad idem that an order should be made for equal shared parental responsibility. That order being made then compels me to consider whether or not an order should be made for shared care of the children or, in the alternative, whether or not the children should spend substantial and significant time with one parent whilst residing predominantly with the other.
Best Interests of the Children
In considering the children’s best interests I am directed to a list of matters as set out in section 60CC of the Act.
At first instance there are two categories of matter that I must consider, namely, the primary considerations and the additional considerations. There are two primary considerations, namely:
(1)The need to ensure that the children have a meaningful relationship with both of their parents; and
(2)The need to ensure that the child or children is protected from harm both physical and psychological which may arise if the children concerned are exposed to any kind of abuse, neglect or family violence.[4]
[4] Ibid s 60CC(2).
Section 60CC(3) of the Act directs me to consider additional considerations which are more numerous including the wishes of the subject children. Although the primary considerations are usually required to be given more emphasis arising as they do from the aims and principles set out in the Act in determining the outcome of any particular case, one or more of the additional considerations may come to the fore.
Given that the parties are consenting to an order for equal shared parental responsibility, the Court must give consideration to the issue of whether or not equal shared is in the best interests of the children or if it should be substantial and significant time.
In considering periods of equal time or substantial and significant time, the Court must consider and be satisfied of two criteria:
(1)Firstly, whether or not the arrangements are likely to be in the best interests of the children concerned; and
(2)Secondly, whether or not the arrangements are likely to be reasonably practicable to be put into operation as set out in section 65DAA of the Act.
Section 65DAA(5) addresses the issue of practicality. The Court is required to consider where the parties reside, their current and future capacity to implement shared care type arrangements, their ability to communicate with one another and solve problems by mutual agreement and, most important, the likely impact of such arrangement on the children concerned.
Proposed Relocation
Given the aims and principles of the Act, cases involving one parent wishing to move a significant distance away from the other parent raise important issues for the Court. Such cases throw up competing principles which can be very difficult to reconcile.
The Act does not set out that parties who have separated from one another are not able to make decisions regarding their future and enable them to lead separate lives. There is no principle of law that requires separated parents to live in close proximity to one another for the balance of their natural lives.
On the other hand, the principles, aims and objects of the Act set out that there is an entitlement of children to have a meaningful relationship with each of his or her parents regardless of the fact that the parties’ relationship has broken down.
In the face of these important considerations, the Full Court in the decision of Campbell & Spalding stated that relocation cases require careful analysis.[5] Accordingly, it is the usual practice of the Court that it is considered preferable for cases involving matters of relocation not to be decided at an interim stage. This is particularly in circumstances where decisions regarding relocations may have potentially serious ramifications for a child and those ramifications take on greater weight when the child is of a tender age.
[5] [1998] FamCA 66.
Furthermore, each case involving a proposal to remove a child from a particular location in which he or she lives is different and each case will require careful analysis and consideration by the Court after hearing the parties give evidence and, importantly, after having consideration given to the best interests of children by a Court Child Expert.
The careful analysis of relocation matters comes about in circumstances whereas it was stated by the Full Court in the decision of B & B that “tyranny of distance develops by degrees.”[6]
[6] (1997) FLC 92-755, [7.10].
As the Court observed in the decision of Morgan & Miles,[7] it is artificial in the extreme to determine a case which involves issues of relocation on the basis of distance alone. What is important is the consequences of a move or proposed move for any child affected by it.
[7] [2007] FamCA 1230.
The Full Court in the decision of Beaton & Beaton confirmed that the issue for consideration by the Court in relocation cases of an interim nature are guided by the best interests of the children as set out in the Act.[8] The Full Court held that the so-called “guidelines” as set out in the decision of Morgan & Miles should not be considered as “guidelines” and that judges must have reference to and give regard to the parameters set out in the Act as it relates to the best interests of the children rather than looking at the so-called “guidelines.” To do so, would result in the Court falling into error.
[8] [2020] FamCAFC 297.
As referred to herein, the consequence of any proposed move does not turn on distance alone. The Court must carefully consider all factors involved including financial considerations in relation to whether or not parties will be able to facilitate time spending if a relocation some significant distance away is to be countenanced by the Court.
The Court further notes that, for the purposes of a relocation case, the mother is not obliged to provide overwhelming reasons with respect to her proposed relocation at Trial.
THE FAMILY ASSESSMENT REPORT DATED 20 SEPTEMBER 2022
In contemplation of the final hearing in this matter, the parties, to their credit, have engaged Ms J.
A Family Report dated 20 September 2022 was prepared by Ms J.
The Family Report involved interviews with each of the parties, the subject children and also the child C.
At the time of interview, X was aged seven years and three months. X is reported in his private interview with Ms J as noting that his sole concern was “that we will move apart very far (from the father)” in the event the mother and children relocated to Adelaide.[9] X reported that “Mum thinks Town B is garbage and trash.”[10]
[9] See the Private Family Report of Ms J dated 20 September 2022 at paragraph 71.
[10] Ibid.
X noted that this made him feel “sad” and, similarly, that if he moved further away from his father he would feel “sad”.[11] He was aware that his mother would feel “sad” and his father “very happy” if they stayed in Town B and vice versa.[12]
[11] Ibid.
[12] Ibid.
The child Y, who was six years and two months at the time of interview, indicated that he would feel “happy” if he moved to Adelaide as this would enable him to see his cousins noting that his experience of time in Adelaide was that it was “fun”.[13]
[13] Ibid at paragraph 79.
Y conveyed his belief (as relayed to him by the father) that he will “come to us”.[14] That is, spend time with the children in Adelaide. Y conveyed an awareness that his mother would feel happy if they moved and sad if they stayed and that his father would feel the opposite.
[14] Ibid.
The observed interaction between the children and their father revealed no concerns to Ms J and it was considered that both of the children had a close and loving relationship with each of their parents.
In paragraph 93 of the Family Report, Ms J opined that:
Generally, there are no concerns about either [X] or [Y] with regard to their development, behaviour or engagement with school. They appear to have positive and established relationship with both parents; observations with both parents did not raise concern.
Recommendations of the Report Writer
In paragraph 94 of the Family Report, Ms J goes on to acknowledge that disputes of this nature are to be determined on a case by case basis with the consultant hoping that the observations and considerations contained in the report will be of assistance to the court in determining the best interests of the children.
Ms J rightly observed that the Court will acknowledge the right of a parent to have freedom of movement. She also noted the salient consideration of matters involving relocation as to whether or not the arrangements for time spending with the parent left behind was sufficient to maintain a parent/child relationship across the geographical distance.
Ms J balances those comments in paragraph 97, opining that the Court may find that the mother’s reasons for moving to Adelaide are not strong, noting that in three years C would be likely attending school in the Country K.
In paragraph 99 of the Family Report, Ms J opines:
As it stands currently, however, purely on the basis of what impact the mother’s proposed relocation to Adelaide would have on the father’s relationship with the children the consultant was of the view that if the parties were able to facilitate weekend time spending twice per term (one weekend in Adelaide, one weekend in [Town B]) and the children spend the maximum of school holiday time in [Town B] as well as having regular FaceTime then the mother’s relocation with the children should be supported.
Lastly, it was recommended that if relocation did occur that the children be able to complete the school year in Town B and this would support a more natural transition to a new school year at the start of the school year.
Accordingly, in light of the above discussion, Ms J recommended:
· That the mother and children be able to relocate to Adelaide and that the children subsequently spend time with the father twice per term and for as much as the school holidays as the father can accommodate in addition to regular FaceTime calls; and
· If the matter proceeds to trial the court would be assisted by further information relating to the mother’s support of the children’s relationship and time spending with the father in the interim. If it was found that the mother was engaging in restrictive gatekeeping this would not support her relocation.[15]
[15] Ibid at ‘Recommendations’.
Counsel on behalf of the father argued that the Family Report recommendations should not be given significant weight at an interim hearing. The Court takes counsel to be submitting not only should the interim report await cross-examination at Trial but, ultimately, following the line of authority well pronounced by this Court and by the Family Court as it was then known, that any Trial judge is not bound to follow the recommendations contained in a Family Assessment Report.
In this regard, I have had regard to the decisions of Wood,[16] Harris,[17] Hall & Hall,[18] D & P,[19] Andrew & Delaine,[20] Friscioni,[21] and Hannigan & Sorraw.[22]
[16] (1976) FLC 90-098.
[17] (1977) FLC 90-276.
[18] (1979) FLC 90-713.
[19] [2006] FamCA 170.
[20] [2009] FamCAFC 182.
[21] [2010] FamCAFC 108.
[22] [2010] FamCAFC 257.
The leading decision with respect to Family Assessment Reports remains the Full Court decision of Hall & Hall.[23] In that case, the learned Justices, comprising Evatt CJ, Asche and Hogan JJ, specifically referred to and set out in their reasons how a Family Assessment Report will be considered by a Trial judge. The Full Court held:
[23] (1979) FLC 90-713.
(a)There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the Counsellor is usurping the role of the Court or that the Judge is abdicating his responsibilities. In the Marriage of Wood (1976) F.L.C. 90-098 at page 75,447; In the Marriage of Harris (1977) 29 F.L.R. 285; 1977 F.L.C. 90-276.
(b)Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views co-incide with the judgment of the Court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c)While the Counsellor's views will normally have weight with the Court because of his expertise and experience, the Counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in Court under examination and cross-examination, and make findings of fact based on evidence before the Court which might not have been available to the Counsellor.
(d)Hence, the Counsellor's assessment of the parties may often be based upon facts which the Counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the Counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in Court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character than that which the Counsellor has accepted.
(e)Sometimes the Family Report will necessarily be neutral. While the Court will be assisted by a positive view, there will be many cases where the Counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f)Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the Court well and assist the Court's investigation. A Counsellor, therefore, need not be disturbed if a recommendation is not accepted because the Court has had the advantage of much more material and much more examination in depth than was available to the Counsellor.
(g)It follows that in some cases it may be desirable to question Counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did-not seek to test the recommendations of the Counsellor in the light of instructions given to that practitioner. To cross-examine a Counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h)Where there is proper reason for cross-examination, the Court will be assisted and, we have no doubt, so will the Counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the Counsellor himself to examine and test his own methods under critical investigation. We draw attention to an Article by Mrs. A. Marshall, Director of Court Counselling Sydney Registry - "Social Workers and Psychologists as Family Court Counsellors within the Family Court of Australia". The Article appears in the March 1977 Edition of Australian Social Work, Volume 30 Number 1 Page 9- and at page 11 appears the passage:
"Family Law Regulation 117 provides for the cross-examination of a counsellor in relation to the Report. It is seen as an advantage by counsellors that they can in this way be held accountable for the Report".
(i)Finally, and most importantly, and as a matter of public policy, no party should leave the Court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied. In the case of In the Marriage of Harris (supra) Fogarty J. said (at 29 F.L.R. 289, 1977 F.L.C. at p. 76,474:
"It is in my view inimical to the proper workings of the Court and in particular to the proper carrying out of the functions of a welfare officer that it might be thought by practitioners or litigants that welfare officers or their reports occupy some special or privileged position before the Court unchallenged or unchallengeable but yet perhaps decisive of the issue. Custodial proceedings still basically fall to be determined by the Court in accordance with the traditional system of determining cases. Where a welfare report is delivered which contains either factual matters or matters of opinion which a party desires to challenge but is not permitted to do so that party may be pardoned for feeling that justice has not been seen to be done".
Similarly, in the Marriage of M (1978) 30 F.L.R. (Notes) atp. 562; (1978) F.L.C. 90-249 at p. 77,182 Marshall S.J., in adopting the views of Fogarty J. set out above, stated:
"If the contents of such a report are not open to challenge by cross-examination the Court would leave itself open to the criticism of conducting a trial 'by report' rather than on the whole of the evidence".
This Court is in full agreement with the views set out above.[24]
[24] (1979) FLC 90-713, 11–14A.
In short, Hall & Hall remains a leading authority in relation to the weight to be attached to a Family Assessment Report both at Trial and on an interim basis.[25] Accordingly, I do not view the recommendations made by Ms J in her Family Report as being anyway binding upon me at this interim hearing or at all.
[25] Ibid.
Furthermore, the Independent Children’s Lawyer having interviewed the children in the period prior to the argument informs the Court both during submissions and in the Outline of Case document that the subject child X expressed to the Independent Children’s Lawyer that:
(1)He wanted to spend more time with his father and wanted to live with both parents equally;
(2)He did not mind what location he lived in; and
(3)He would feel sad if he moved to Adelaide because he would miss his father.[26]
[26] See the Outline of Case Document (Interim Hearing) of the Independent Children’s Lawyer filed on 30 November 2022 at Page 4.
The subject child Y expressed to the Independent Children’s Lawyer that:
(1)He wanted to live in Adelaide so he could stay at his cousin’s house;
(2)He would miss his father if he moved to Adelaide and it would make him sad not seeing his father as often; and
(3)He would rather live with his father than with his mother.[27]
[27] Ibid.
I confirm that the wishes of the children aged seven and six are not binding on the Court to the extent that these are still very young children but they are one of many factors that the Court will ultimately bring to account in determining the interests of these children at a final hearing.
In short, I consider that this is a matter requiring close and delicate analysis of all possible options available in the best interests of these children.[28] All possible options will be on the table at Trial.
[28] AMS & AIF (1999) FLC 92-852.
There is merit to the submission made by counsel for the mother that this case is unique in that the father is a DIDO worker who does not reside in Town B on a full time basis. The High Court decision of U & U will take on importance at the final hearing in terms of the capacity for the father to travel to Adelaide and to spend time with the children in Adelaide if relocation is permitted given the nature of his employment and ability to travel.[29]
[29] U v U [2002] HCA 36.
They are all matters upon which the Court eagerly awaits the evidence at the ultimate hearing in this matter.
CONCLUSION
I have come to the conclusion in considering all of the relevant evidence available before me at this hearing and noting the matter is listed for Trial for four days in the week commencing 24 April 2023, that, pending Trial, the children should remain living in Town B and that the mother’s application for interim relocation should be declined.
As counsel for the mother acknowledged in the hearing, a Trial date before this court less than 12 months before the original filing date of the initiating application by the father on 25 May 2022 has afforded this family what might be described as ‘special treatment’. This matter has been expedited above many others given the way that it has come before me by way of interim application and acknowledging the mother’s desire to move to Adelaide to be with her son, C. I have made special arrangements for this Trial to be given priority in the week commencing 24 April 2023. The corollary of that, however, will mean that the children will remain living in Town B pending final hearing which is only some five months away.
In relation to the arrangements for the children pending final hearing in April 2023 and weighing up all of the relevant applicable criteria that I am directed to consider, I have reached the decision that pending final hearing the children should:
(1)Spend time with their father as is proposed by him during the Christmas school holidays, effectively, on a week about arrangement but with some minor variations to accommodate the conclusion of the school term and the father’s work roster; and
(2)That the children should spend time with each of their parents in Town B for the purposes of Christmas Day 2022.
Whilst I acknowledge the submissions made by counsel on behalf of the mother that she had made arrangements to spend Christmas Day in Adelaide for the purposes of this year, as I had already noted, if the mother is successful in her ultimate application to relocate to Adelaide Christmas arrangements for these children as and from 2023 will never be the same. In those circumstances, I consider that the children would benefit from seeing each of their parents in their home town over this Christmas period.
In addition, I acknowledge the submission made by counsel for the father that he has recently suffered a bereavement by the way of the loss of his mother. In circumstances where there has been a significant family loss together with a marital separation, I consider it important that the children be able to spend extended time with both their paternal and maternal family for this special occasion.
In relation to the arrangements for the children commencing from Term 1 2023 and noting that, in effect, the Trial will be taking place before me towards the end if not just shortly after the April school holidays, I propose to make an order as promoted by the mother for the children to spend four nights per fortnight with the father during school terms and not as the father seeks for six nights per fortnight nor as the Independent Children’s Lawyer seeks for three nights per fortnight.
The mother promotes four nights per fortnight. That is an arrangement which meets with her consent and with her support. In circumstances where there is simply no capacity to arrange any further gradual increases in time given the close proximity of the Trial, I consider that pending Trial four nights per fortnight is in the best interests of the subject children.
In the event that the parties do not resolve the matter prior to Trial and subject, of course, to the evidence I would entertain a variation of that order pending delivery of judgment in the event that the parties are not able to cooperate in reaching agreement at that time.
For all of those reasons, the Court makes the orders as set out at the commencement of these Ex Tempore Reasons for Judgment.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge Dickson. Associate:
Dated: 6 December 2022
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