Hertz & Anor & Picot - [2011] FamCA 210

FAMILY COURT OF AUSTRALIA

HERTZ AND ANOR & PICOT

[2011] FamCA 210

FAMILY LAW - CHILDREN – these proceedings involve two applicant fathers – the mother has a child/children with each of the applicant fathers

FAMILY LAW - CHILDREN – Parental responsibility – where the mother previously relocated the children to another town without informing the fathers of the children’s whereabouts – the mother failed to consider the disruption caused by the relocation to the children’s lives – where one of the children suffers from delayed intellectual development as a result of brain injury – the second applicant father and the mother were distressed by the brain injury – the second applicant father and the mother have poor communication and trust – where the first applicant father suffered past alcohol dependence – the first applicant father has taken steps to manage his alcohol dependence – the first applicant father has support from the paternal family – Presumption of equal shared parental responsibility applies – parties agree

FAMILY LAW - CHILDREN – Relocation – mother’s application to relocate – subsequent withdrawal of that application

FAMILY LAW - CHILDREN – With whom the child of the first applicant father shall live and spend time – the mother is the primary carer of this child – first applicant father and second applicant father enjoy a good relationship – siblings should maximise time with one another – both applicants willing to facilitate all of the children’s time with one another – child shall spend staged program of time with the father leading up to equal time

FAMILY LAW - CHILDREN – With whom the children of the second applicant father shall live and spend time – both children in secondary school – equal time is disruptive to their education – the children shall live with the mother – spend substantial and significant time with the father

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA,

FIRST APPLICANT:	Mr Hertz
SECOND APPLICANT:	Mr Picot

RESPONDENT:

Ms Picot

INDEPENDENT CHILDREN’S LAWYER:

Stephen Marks

FILE NUMBER:

NCC

1885

2008

DATE DELIVERED:

31 March 2011

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

8, 9, 10 and 11 November 2010 and 3 December 2010

REPRESENTATION

COUNSEL FOR THE FIRST APPLICANT:

Mr M Gilbert

SOLICITOR FOR THE FIRST APPLICANT:

Bridge Street Lawyers

COUNSEL FOR THE SECOND APPLICANT:

Mr T Bates

SOLICITOR FOR THE SECOND

APPLICANT:

Michel & White

COUNSEL FOR THE RESPONDENT:

Mr M Weightman

SOLICITOR FOR THE RESPONDENT:

Bell & Johnson

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr T Allen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Stephen Marks

Orders

That all previous parenting orders relating to L born … April 1997, R born … February 1999, together referred to as “the boys”, and C born … May 2007, collectively referred to as “the children” be and are hereby discharged.
That Mr Picot and Ms Picot have equal shared parental responsibility for L and R.
That Mr Hertz and Ms Picot have…

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.

Continue reading Hertz & Anor & Picot

Details

AGLC: Hertz & Anor & Picot [2011] FamCA 210
Case: [2011] FamCA 210
Decision Date: 31 March 2011

CaseChat Overview and Summary

These proceedings involved two applicant fathers, Mr Hertz and Mr Picot, and the mother, Ms Picot, concerning parenting arrangements for their respective children. The dispute arose after the mother relocated the children without informing the fathers of their whereabouts, causing disruption. One child suffers from delayed intellectual development due to a brain injury, a matter of distress for both parents, who also experienced poor communication and trust. The first applicant father had a history of alcohol dependence but had taken steps to manage it and received support from his family. The presumption of equal shared parental responsibility was agreed upon by the parties.

The court was required to determine the living arrangements and time each child would spend with their respective parents. Specifically, the court needed to address the relocation application made by the mother, which was subsequently withdrawn. The court also had to consider the best interests of the children, including the impact of any proposed arrangements on their education and their relationship with their siblings, given that the first applicant father and second applicant father enjoyed a good relationship and both were willing to facilitate sibling contact.

Cleary J applied the presumption of equal shared parental responsibility, noting the parties' agreement. The court's reasoning focused on maximising the children's time with one another and ensuring a staged program of time with the fathers. For the children of the second applicant father, the court found that equal time would be disruptive to their education, leading to orders for the children to live with the mother and spend substantial and significant time with the father. For the child of the first applicant father, the court ordered a staged program of time leading to equal time with the father.

The court discharged all previous parenting orders and made new orders for equal shared parental responsibility between the respective parents. The children were ordered to live with the mother, except when spending time with their respective fathers, with detailed schedules for each child outlining the specific times they would live with or spend time with their fathers, including provisions for holidays and special occasions. The orders also included provisions for liberal telephone contact, notification of medical emergencies, and a restraint on denigrating the other parent.

Orders

Orders of the court

That all previous parenting orders relating to L born … April 1997, R born … February 1999, together referred to as “the boys”, and C born … May 2007, collectively referred to as “the children” be and are hereby discharged.

That Mr Picot and Ms Picot have equal shared parental responsibility for L and R.

That Mr Hertz and Ms Picot have equal shared parental responsibility for C.

That the children live with the mother at all times other than when they are living with or spending time with their respective fathers in accordance with these orders.

L and R

That L and R live with their father Mr Picot as follows:

5.1 during school terms, each alternate weekend from the conclusion of school on Thursday until 6.30 pm Sunday;

5.2 for half of all school holidays, being the first half in even numbered years and the second half in odd numbered years;

5.3 on the weekend of Father’s Day from 6.00 pm Saturday to 6.30 pm Sunday whether or not the boys would ordinarily be spending time with their father on that weekend;

5.4 at such other and/or additional times as may be agreed between the parties in consultation with L and/or R.

If in accordance with Order 5.1 above L and R would ordinarily be spending time with the father during the Mother’s Day weekend, the father’s time with the boys is suspended on the Mother’s Day weekend from 6.00 pm on Saturday for the balance of that weekend period.

If in accordance with Order 5 above L and R would ordinarily be spending time with the father on the mother’s birthday, the father’s time with the boys is suspended between 3.00 pm and 7.00 pm on the mother’s birthday, and the boys shall spend time with their mother.

If in accordance with these Orders the boys would ordinarily be spending time with the mother on the father’s birthday, the mother’s time with the boys is suspended between 3.00 pm and 7.00 pm on the father’s birthday, and the boys shall spend time with their father.

L and R’s time with each parent is suspended from 2.00 pm Christmas Eve until 2.00 pm Boxing Day each year during which times L and R will spend time with each parent as follows:

9.1 with the mother from 2.00 pm Christmas Eve until 2.00 pm Christmas Day in even numbered years and from 2.00 pm Christmas Day until 2.00 pm Boxing Day in odd numbered years; and

9.2 with the father from 2.00 pm Christmas Eve until 2.00 pm Christmas Day in odd numbered years and from 2.00 pm Christmas Day until 2.00 pm Boxing Day in even numbered years.

10.

For the purpose of implementing the time the boys spend with each parent, where such time does not coincide with the commencement or conclusion of school, the father shall collect the boys from the residence of the mother at the commencement of the time the boys live or spend time with him, and the mother shall collect the boys from the residence of the father at the commencement of the time the boys live with her.

10.

That C live with her father Mr Hertz as follows:

10.1 Commencing forthwith and until the child attains four years of age (… May 2011), each Tuesday and Thursday from 9.00 am to 5.00 pm and on each weekend from 9.00 am Saturday to 5.00 pm Sunday; and

10.2 Thereafter, for a period of four months:

10.2.1 from 9.00 am to 5.00 pm each Tuesday; and

10.2.2 from 9.00 am Thursday to 9.00 am Friday each week; and

10.2.3 on each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday; and

10.3 thereafter, until the child attains 5 years of age or commences formal schooling (whichever is the earlier):

10.3.1 from 9.00 am to 5.00 pm each Tuesday; and

10.3.2 from 9.00 am Thursday to 5.00 pm Sunday each alternate weekend;

10.4 from the age of five years or commencement of formal schooling (whichever is the earlier):

10.4.1 from after school Tuesday to before school Wednesday each week; and

10.4.2 from after school Thursday to 6.30 pm Sunday each alternate weekend;

10.4.3 for half of each term holiday and half of each Christmas school holiday period with the first such Christmas holiday period to be in alternating periods as agreed between the parties of no more than 10 days at a time; and

10.5 from the commencement of the school year in which the child turns eight years of age (2015):

10.5.1 from the conclusion of school on Monday until commencement of school the following Monday and alternating through each school term;

10.5.2 for half of all school holiday periods being the first half in even numbered years and the second half in odd numbered years;

10.5.3 on the Father’s Day weekend from 6.00 pm Saturday to 6.30 pm Sunday whether or not the child is ordinarily spending time with the father on that weekend; and

10.5.4 at such other and/or additional times as may be agreed between the parties in writing.

11.

If in accordance with Order 10 above C would ordinarily be spending time with the father on Mother’s Day, the father’s time with C is suspended on the Mother’s Day weekend from 6.00 pm Saturday for the balance of that weekend period.

12.

If in accordance with Order 10 above C would ordinarily be spending time with the father on the mother’s birthday, the father’s time with C is suspended between 3.00 pm and 7.00 pm on the mother’s birthday, and C will spend with her mother.

13.

If in accordance with these orders C would ordinarily be spending time with the mother on the father’s birthday, the mother’s time with C is suspended between 3.00 pm and 7.00 pm on the father’s birthday, and C will spend with her father.

14.

C’s time with each parent is suspended from 2.00 pm Christmas Eve until 2.00 pm Boxing Day each year during which times C will spend time with each parent as follows:

14.1 with the mother from 2.00 pm Christmas Eve until 2.00 pm Christmas Day in even numbered years and from 2.00 pm Christmas Day until 2.00 pm Boxing Day in odd numbered years; and

14.2 with the father from 2.00 pm Christmas Eve until 2.00 pm Christmas Day in odd numbered years and from 2.00 pm Christmas Day until 2.00 pm Boxing Day in even numbered years.

15.

For the purpose of implementing the time C spends with each parent, where such time does not coincide with the commencement or conclusion of school, the father shall collect C from the residence of the mother at the commencement of the time C lives or spends time with him and the mother shall collect C from the residence of the father at the commencement of the time C lives with her.

The children

16.

The parties shall have liberal telephone contact with the children when they are with the other parent.

17.

Each parent shall notify the other parent of any medical emergency, illness or injury suffered by any of the children whilst in their respective care warranting treatment by a third party and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

18.

The parents will permit the school at which each of the children attend to provide reports, notices and applications for school photographs to each other parent at his or her expense and authorise the school to communicate directly with the respective parent.

19.

Each party is restrained from denigrating any other party in the presence or hearing of any of the children and from permitting the child or children to remain in the presence or hearing of any other person denigrating a party.

20.

The parties shall keep each other advised of their current residential address, email, landline and mobile telephone numbers.

21.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

THE COURT NOTES:

22.

That the parties have agreed the mother and children may attend a wedding in Queensland in 2011 at a date and time to be advised, provided that dates, times and venue are advised in advance and these Orders will be suspended during that period.

23.

The Orders are intended to operate so that the boys are living with or spending time with their father at times when C is living with or spending time with her father to the fullest extent that is possible, given the variation in their orders.

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

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