Herz and Picot - [2016] FCCA 3297

FEDERAL CIRCUIT COURT OF AUSTRALIA

HERZ & PICOT

[2016] FCCA 3297

Catchwords:
FAMILY LAW – Parenting – Where arrangements for a child aged 9 to spend time with her father broke down after she disclosed that she had been sexually abused by young playmates over a period of years while spending time with him – where some time has now been re-established – where the mother wishes to relocate from (omitted) to Queensland with the child – where the father opposes the relocation – order made permitting the relocation – where the Independent Children’s Lawyer proposed that the relocation be deferred for twelve months – no perceived benefit in delaying the relocation if it is to occur.

Legislation:

Family Law Act1975 (Cth) ss.60CC, 61DA

Cases cited:

AMS & AIF [1999] 199 CLR 160
Herz & Anor & Picot [2011] FamCA 210
Mazorski & Albright [2007] 37FamLR 518
U & U (2002)FLC 93-112

Applicant:

MR HERZ

Respondent:

MS PICOT

File Number:

NCC 1885 of 2008

Judgment of:

Judge Terry

Hearing dates:

4, 5, 6 and 7 October 2016

Date of Last Submission:

7 October 2016

Delivered at:

Newcastle

Delivered on:

20 December 2016

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondent:

Mr Boyd

Solicitors for the Respondent:	Everingham Solomons Solicitors
Counsel for the Independent Children's Lawyer:	Mrs Kearney
Solicitors for the Independent Children's Lawyer:	Kaberry Family Law

ORDERS

All previous Orders regarding X born (omitted) 2007 (“the child”) are discharged.
Subject to order (17) the mother shall have sole parental responsibility for the child.
The child shall live with the mother.
The mother shall as soon as reasonably practicable advise the father in writing (by text message or otherwise) of the date on which she proposes to relocate to Queensland being a date no earlier than 2 January 2017.
Until the mother relocates to Queensland the father shall spend time with the child:
(i)Each Wednesday from 3.00pm to 5.00pm commencing on 21 December 2016.
(ii)From 11.00am to 5.00pm on Christmas Day.
(iii)For 5 consecutive days unless otherwise agreed between the parties being from 10.00am to 4.00pm each day commencing at 10.00am on Wednesday 28 December 2016 and ending at 4.00pm on Sunday 1 January 2017.
(iv)Each alternate weekend from 10.00am on Saturday to 4.00pm on Saturday and from 10.00am on Sunday to 4.00pm on Sunday commencing on 7 January 2017 (if the mother is still in (omitted)).
(v)Each Wednesday from 3.00pm to 5.00pm commencing on Wednesday 4 January 2017 (if the mother is still in (omitted)).
(vi)At such additional or alternate times as may be agreed between the parties.
Changeovers for the purposes of Order 5 shall unless otherwise agreed between the parties occur at McDonalds (omitted).
Upon the mother’s relocation to Queensland the child shall spend time with the father as follows:
(a)For 5 days in the first week of Term 1 Queensland school holidays from 10.00am to 4.00pm on Monday, Tuesday, Wednesday, Thursday and Friday.
(b)For 5 days in the first week of Term 2 Queensland school…

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 Herz and Picot

Details

AGLC: Herz and Picot [2016] FCCA 3297
Case: [2016] FCCA 3297
Decision Date: 20 December 2016

CaseChat Overview and Summary

This case concerned an application by the mother, Herz, to relocate with the child, X, to Queensland, and the father, Picot, opposing this application. The matter came before Judge Terry.

The court was required to determine the primary considerations under s 60CC(2) of the Family Law Act 1975 (Cth), namely the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm. The court also had to consider the extent to which each parent had taken or failed to take opportunities to spend time with or communicate with the child, or to make decisions about the child, and the extent to which each parent had fulfilled their obligations to support and maintain the child. Finally, the court had to consider the likely effect of any change in the child's circumstances, including the likely effect of her separation from either parent.

The court found that while the child currently had a meaningful relationship with her father, relocation to Queensland would significantly curtail their contact. The judge noted that the father had, until recently, paid minimal child support and had failed to engage with the child's therapy, which contributed to a period of no contact. Despite these concerns, the judge found no evidence that the mother denigrated the father or undermined the child's relationship with him, and observed that the child reacted positively to the father even after a significant break in contact. The court also considered the mother's long-standing desire to relocate to Queensland to be near her sister, predating any issues of alleged abuse. The judge acknowledged that relocation would represent a significant change for the child, severely limiting her time with her father and preventing him from attending school events.

The court ordered that all previous orders regarding the child be discharged. The mother was granted sole parental responsibility, and the child was to live with the mother. The mother was permitted to relocate to Queensland, with specific provisions for the father's time with the child both before and after the relocation, including detailed arrangements for school holidays and communication. Injunctions were granted restraining the father from spending time within a 15-kilometre radius of a specific post office and from permitting the child to come into contact with certain individuals. The mother was also restrained from changing the child's name. Both parents were ordered to notify each other of significant events concerning the child and to maintain updated contact details. Finally, both parents were restrained from denigrating each other in the presence of the child or on social media.

Orders

Orders of the court

All previous Orders regarding X born (omitted) 2007 (“the child”) are discharged.

Subject to order (17) the mother shall have sole parental responsibility for the child.

The child shall live with the mother.

The mother shall as soon as reasonably practicable advise the father in writing (by text message or otherwise) of the date on which she proposes to relocate to Queensland being a date no earlier than 2 January 2017.

Until the mother relocates to Queensland the father shall spend time with the child:

(i) Each Wednesday from 3.00pm to 5.00pm commencing on 21 December 2016.

(ii) From 11.00am to 5.00pm on Christmas Day.

(iii) For 5 consecutive days unless otherwise agreed between the parties being from 10.00am to 4.00pm each day commencing at 10.00am on Wednesday 28 December 2016 and ending at 4.00pm on Sunday 1 January 2017.

(iv) Each alternate weekend from 10.00am on Saturday to 4.00pm on Saturday and from 10.00am on Sunday to 4.00pm on Sunday commencing on 7 January 2017 (if the mother is still in (omitted)).

(v) Each Wednesday from 3.00pm to 5.00pm commencing on Wednesday 4 January 2017 (if the mother is still in (omitted)).

(vi) At such additional or alternate times as may be agreed between the parties.

Changeovers for the purposes of Order 5 shall unless otherwise agreed between the parties occur at McDonalds (omitted).

Upon the mother’s relocation to Queensland the child shall spend time with the father as follows:

(a) For 5 days in the first week of Term 1 Queensland school holidays from 10.00am to 4.00pm on Monday, Tuesday, Wednesday, Thursday and Friday.

(b) For 5 days in the first week of Term 2 Queensland school holidays from 10.00am to 4.00pm on Monday, Tuesday, Wednesday, Thursday and Friday.

(i) In the first week of the school holidays from 10.00am to 4.00pm on Monday, Tuesday and Wednesday; then

(ii) From 10.00am on Thursday to 4.00pm on Sunday.

(d) For 1 week in the Term 4 (Christmas) Queensland school holidays commencing at midday on 27 December 2017 and concluding at midday on 3 January 2018.

(e) For not less than 5 hours on any non-school day during any time that the father is in or near the place where the child lives provided that the father has given the mother at least 14 days’ notice via text message of his intention to spend that time.

(f) At such additional or alternate times as may be agreed between the parties.

From 2018 and each year thereafter the child shall spend time with the father:

(a) For 1 week in each of the Term 1 and 3 Queensland school holidays commencing at midday on the first Saturday to midday on the second Saturday of the holidays in odd-numbered years and commencing at midday on the second Saturday to midday on the last Saturday in even-numbered years.

(b) For the entire Term 2 Queensland school holiday period commencing at midday on the first Saturday and concluding at midday on the last Saturday.

(i) For the first half in odd-numbered years from midday on the first Saturday to midday on the third Saturday;

(ii) For the second half in even-numbered years from midday on the third Saturday to midday on the last Saturday.

(d) For not less than 5 hours on any non-school day during any time that the father is in or near the place where the child lives provided that the father has given the mother at least 14 days’ notice via text message of his intention to spend that time.

(e) At such additional or alternate times as may be agreed between the parties.

Until the mother agrees in writing to changeovers between the parties occurring at a halfway point between (omitted) and (omitted) changeovers for the purposes of Order 7(a) to 7(d) and 8(a) to (c) shall occur at McDonalds Restaurant (omitted).

10.

Changeovers for the purposes of Order 7(e) and 8(d) shall take place at the McDonalds Restaurant at (omitted) Queensland.

11.

Unless otherwise agreed by the mother in writing the father is restrained and an injunction is granted restraining him from spending time with or taking the child within a 15 kilometre radius of (omitted) Post Office.

12.

The father is restrained and an injunction is granted restraining him from permitting the child to come into contact with or remain in the presence of Mr M or any of the perpetrators identified by the child.

13.

The child shall have telephone (Skype of Facetime if available) communication with the father as agreed between the parties but failing agreement:

(a) Each Monday and Friday evening between 6.30pm and 7.00pm Queensland time.

(b) On the child’s birthday between 6.30pm and 7.00pm Queensland time.

(d) At other times as reasonably requested by the child.

14.

The child shall have telephone communication with the mother at any time reasonably requested by the child when the child is in the father’s care and otherwise as agreed between the parties but failing agreement between 6.30pm and 7.00pm each Monday and Friday NSW time.

15.

Telephone communication shall occur by the person seeking to communicate with the child initiating the call and the other parent ensuring that their mobile telephone is switched on, charged and in a mobile service area and making the child available to receive the call and each parent shall give the child privacy during the call.

16.

The father shall not consume illicit drugs or more than three (3) standard alcoholic drinks in accordance with the Australian Alcohol Guidelines during any time that the child spends with him.

17.

The mother is restrained and an injunction is granted restraining her from taking any steps to change the child’s name.

18.

The mother shall promptly notify the father in the event of any of the following occurring:

(a) Any change of school for the child including contact details.

(b) Any medical emergency or hospitalisation of the child.

(c) Any change of counsellor/psychologist/medical practitioner regularly consulted by the child including contact details and shall invite the father to participate in such appointments.

19.

Each party shall maintain an address and telephone number notified to the other and shall notify the other in writing within 24 hours of any change, updating the other on details of such change.

20.

Each party is restrained from denigrating the other or permitting any other person to do so in the presence or hearing of the child or on social media including Facebook.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I must have regard to the extent to which each parent has taken or failed to take the opportunity to spend time with or communicate with the child or to make decisions about the child. It is regrettable that the father ignored Ms V's request for him to become involved in X's therapy. He missed an opportunity to be part of future decisions about her and his refusal to become involved was partially responsible for him not seeing X for twelve months. I must have regard to the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to support maintain the child. Until very recently the father was either paying minimal (i.e. $48.00 per month or $34.00 per month) or nil child support for X. Since the current round of litigation began the father has paid X's school fees on two occasions and he buys things for her when she is with him. In September 2016 the mother was advised that the father’s child support assessment had increased to $233.00 per month for the period to 31 December 2017 but she remains suspicious and understandably so about whether she will receive a higher amount of child support in the long term. There was something of a flavour in the father’s evidence of it being his view that he should not be paying money to the mother rather he should be paying directly for things which benefitted X. One of his defensive responses when challenged about the level of child support he had been paying was:If X was with me week about I’d be supporting her. Such comments demonstrate a misunderstanding of the nature of child support and sometimes they demonstrate a wilful misunderstanding of it. However although I have some misgivings about the father's attitude to the payment of child support the evidence is too slight for me to make an adverse finding against him and he has recently been assessed to pay child support at a higher level than in the past. I must have regard to the likely effect of any change in the child’s circumstances including the likely effect of her separation from either of her parents or any other child or person including any grandparent or other relative of the child with whom he or she has been living. Relocation to (omitted) which is about 8 hours’ drive from (omitted) would mean a significant change for X. She would realistically only be able to see the father during school holidays. He could also have Skype communication with her if he obtained a computer and learned to use Skype which he is quite capable of doing but on any view his time with her would be greatly curtailed. Relocation would put an end to any prospect of equal time as envisaged in the 2011 orders or to X’s time with the father increasing to at least five nights a fortnight. She would not spend any school nights with him and he would not be able to attend her school events or extracurricular activities. The first thing to observe is that there is now no prospect of equal time occurring in the future and even if X remains in (omitted) overnight time will be difficult to arrange on a regular basis in the future. The father is embedded in (omitted) and will not even contemplate moving to (omitted). X is adamant that she does not wish to go to (omitted) and Ms V’s view was that she may be in her teens before she would be ready to do so.

Ratio Decidendi

Legal Principle Established

S.60CC(2) contains the primary considerations and they are the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence. A meaningful relationship has been described as one which is significant important and valuable to the child[7] and X has a meaningful relationship with her father at present; she values him and he is important to her. [7] Mazorski & Albright [2007] 37FamLR 518 If X moves to Queensland with the mother she will see the father far less frequently than she does at present, perhaps only of four times a year unless the father goes to Queensland to see her during term time. She will also be able to have Skype communication with him if he obtained a lap top or smart phone which he is capable of doing if he chooses. This would require effort by the father but during cross-examination he laconically conceded that if he had to he would make the effort. However the extent of her interaction with her father would inevitably be less than it would be if she remained in (omitted). If X’s interaction with the father becomes less frequent he may decline in in importance her life but unless there is some other intervening factor such as a poor and undermining attitude by the mother it does not follow that her relationship with him will become completely unimportant or cease to be meaningful. The family report writer expressed concern about the mother’s willingness to facilitate a relationship between X and the father. I do not accept that this is a valid concern. It would be too much to say that the mother particularly likes the father but she complied with court orders about X spending time with him for over three years after the 2011 orders were made. It was only after X made the disclosures that the mother stopped complying with the orders and even then she was willing to agree to some time, just not the time the father proposed. There was no evidence that the mother denigrated the father to X or to anyone else and the fact that X reacted warmly to the father at the family report interviews after the significant break in time with him strongly suggests that the mother is not doing anything designed to undermine the relationship. Ms V has had involvement with the mother since she became X’s psychologist and she said as follows in her affidavit:In my involvements with X and her mother, I have observed no signs of X being “aligned” with her mother. X speaks positively of her father, reports happy visits with him, and mentions with a tone of sadness if he has failed to make a phone call.[8][8] Paragraph 18 of Ms V’s affidavit filed on 25 August 2016. There is no foundation for a finding that the mother does not support X having a relationship with her father and I certainly cannot assume that the mother’s application to relocate suggests that. The mother’s sister lives on the (omitted) and the mother has in the father’s words wished to relocate there “from Day 1”, long before any issue arose about X being abused. It simply cannot be suggested that the mother is seeking to relocate because she is otherwise faced with the prospect of X spending increasing amounts with the father.