Klein & Klein 2010 FamCAFC 150
A mother appealed rulings made by a trial judge that required the mother to return with two children after she had relocated inter-state to be nearer to family supports.
A family consultant had reported, “The primary concern of the writer is that with respect to stability of living environment, it is evident that the father has not over an extended period of time been able to provide the mother or the children with stable, secure accommodation. Considering that the best predictor of future behaviour is past behaviour, the writer is extremely concerned about the capacity of leaving the children in the care of the father, given his propensity to require the family unit to live in substandard accommodation and transient accommodation” (marked instability).
The trial judge noted that the family consultant had not been given an accurate chronology of the family’s dwellings by the mother as the child had actually spent less than two years living in temporary accommodation of tents, cars, caravans and converted shed, and had not lived in temporary accommodation for the past five years. Due to this misapprehension by the family consultant on an important point, the trial judge did not give significant weight to recommendations made by the family consultant (expert evidence unsatisfactory).
The trial judge also noted that the family report did not specifically address any of the matters that the legislature requires the court to consider in ascertaining the best interests of children. Nor did the family report address such issues as equal time or substantial and significant time.
The trial judge found that while the father was a poor provider by the standards of contemporary Australia, at least in the last five years, the family was adequately accommodated. The judge did not consider that the father’s poor provision for his family amounted to economic abuse.
The trial judge found that members of the extended family could provide emotional support to the mother even though she lived interstate.
The appeal judges ruled that there were very sound reasons for the family consultant to have concerns about the transience of the father.
The appeal judges considered that a family consultant is not required to consider each and every one of the relevant provisions of the Act but only those matters considered relevant to the best interests of the children in the case.
The appeal judges found that the finding that members of the extended family could provide emotional support from interstate was not supported by the evidence presented to court.
The appeal judges ruled that the report by the family consultant remain eligible for submission as evidence in future hearings.
The judge referred to three well known contra-indications for equal shared care time that were not challenged (co-parent):
- where there is high conflict between the parents (high conflict couple)
- where a child is very young
- where the parents live a long distance apart from each other
The judge offered an opinion that the age of eight years is old enough for a child to spend equal time with both parents (age of child).
