HIRSCH & HIRSCH (No.2) - [2020] FCCA 18

FEDERAL CIRCUIT COURT OF AUSTRALIA

HIRSCH & HIRSCH (No.2)

[2020] FCCA 18

Catchwords:
FAMILY LAW – Parenting – judgment delivered and final orders made on 16 January 2019 – mother unilaterally relocates to the City K area in July 2019 – father seeks that the mother return to the Region A area – mother seeks orders permitting her to remain in the City K area – best interests of the children – mother and children permitted to remain in the City K area.

Cases cited:

A & A: Relocation Approach [2000] FamCA 751

Hirsch & Hirsch [2019] FCCA 48

U & U [2002] HCA 36

Applicant:

MR HIRSCH

Respondent:

MS HIRSCH

File Number:

DGC 57 of 2018

Judgment of:

Judge Burchardt

Hearing date:

18-19 November 2019

Date of Last Submission:

19 November 2019

Delivered at:

Melbourne

Delivered on:

10 January 2020

REPRESENTATION

Counsel for the Applicant:

Mr Taghdir

Solicitors for the Applicant:

Go To Court Lawyers

Counsel for the Respondent:

Mr Potter

Solicitors for the Respondent:

Taylor & Barnes Solicitors

ORDERS

All previous parenting orders be discharged.
The Mother and Father have equal shared parental responsibility for the children X born 2013 and Y born 2015 (“the children”).
The children live with the Mother.
The Mother be permitted to relocate to the City K area.
The children spend time with the Father:
(a)During school terms, each alternate weekend from the conclusion of school on Friday (or after school on Thursday if not a school day) until commencement of school on Monday (or 9.00 am Tuesday if not a school day).
(b)For one half of the Term 1 and Term 3 school holidays and one half of the long term summer vacation as agreed between the parties, and in default of agreement for the first half of such school holiday period in even numbered years and the second half in odd numbered years;
(c)For the entirety of the Term 2 school holidays;
(d)From 4.00pm on Christmas Eve until 2.00pm Christmas Day in even numbered years;
(e)From 2.00pm on Christmas Day until 4.00pm on Boxing Day in odd numbered years;
(f)From 4.00pm on New Year’s Eve until 2.00pm New Year’s Day in even numbered years;
(g)From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in odd numbered years;
(h)On the weekend of Father’s Day, from 10.00am on Saturday until 5.00pm on Father’s Day; and
(i)As may otherwise be agreed between the parties.
Any period the children are to spend with the Father be suspended as follows:
(a)For one half of the Term 1 and Term 3 school holidays and one half of the long term summer vacation as agreed between the parties, and in default of agreement for the second half of such school holiday period in even numbered years and the first half in odd numbered years;
(b)From 4.00pm on Christmas Eve until 2.00pm Christmas Day in odd numbered years;
(c)From 2.00pm on Christmas Day until 4.00pm on Boxing Day in even numbered…

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 HIRSCH & HIRSCH (No.2)

Details

AGLC: HIRSCH & HIRSCH (No.2) [2020] FCCA 18
Case: [2020] FCCA 18
Decision Date: 10 January 2020

CaseChat Overview and Summary

In the matter of *Hirsch & Hirsch (No.2)*, Judge Burchardt of the Federal Circuit and Family Court of Australia made orders concerning the parenting of two children, X (born 2013) and Y (born 2015), between their Mother and Father. The dispute centred on the arrangements for the children's care and the Mother's proposed relocation.

The court was required to determine the most appropriate parenting orders, including whether to grant the Mother permission to relocate with the children to the City K area, and to establish a schedule for the children's time with each parent, ensuring the children's best interests were paramount.

The court discharged all previous parenting orders and made new orders establishing equal shared parental responsibility. The children were ordered to live with the Mother, and she was permitted to relocate to the City K area. A detailed schedule was set out for the children's time with the Father, encompassing weekends, school holidays, and specific public holidays, with provisions for agreed arrangements or default schedules in cases of disagreement. The orders also included provisions for communication between parents and children, information sharing regarding the children's schooling and health, and an injunction restraining the parties from denigrating each other in the presence of the children or discussing the proceedings with them.

Orders

Orders of the court

All previous parenting orders be discharged.

The Mother and Father have equal shared parental responsibility for the children X born 2013 and Y born 2015 (“the children”).

The children live with the Mother.

The Mother be permitted to relocate to the City K area.

The children spend time with the Father:

(a) During school terms, each alternate weekend from the conclusion of school on Friday (or after school on Thursday if not a school day) until commencement of school on Monday (or 9.00 am Tuesday if not a school day).

(b) For one half of the Term 1 and Term 3 school holidays and one half of the long term summer vacation as agreed between the parties, and in default of agreement for the first half of such school holiday period in even numbered years and the second half in odd numbered years;

(d) From 4.00pm on Christmas Eve until 2.00pm Christmas Day in even numbered years;

(e) From 2.00pm on Christmas Day until 4.00pm on Boxing Day in odd numbered years;

(f) From 4.00pm on New Year’s Eve until 2.00pm New Year’s Day in even numbered years;

(g) From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in odd numbered years;

(h) On the weekend of Father’s Day, from 10.00am on Saturday until 5.00pm on Father’s Day; and

(i) As may otherwise be agreed between the parties.

Any period the children are to spend with the Father be suspended as follows:

(a) For one half of the Term 1 and Term 3 school holidays and one half of the long term summer vacation as agreed between the parties, and in default of agreement for the second half of such school holiday period in even numbered years and the first half in odd numbered years;

(b) From 4.00pm on Christmas Eve until 2.00pm Christmas Day in odd numbered years;

(d) From 2.00pm on New Year’s Eve until 2.00pm New Year’s Day in odd numbered years;

(e) From 2.00pm on New Year’s Day until 4.00pm on the day immediately following New Year’s Day commencing in even numbered years;

(f) On the weekend of Mother’s Day, from 10.00am on Saturday until 5.00pm on Mother’s Day; and

(g) As may otherwise be agreed between the parties.

Changeovers occur at the children’s school where possible, and otherwise at the City C Police Station, or such other location as may be agreed between the parties in writing from time to time.

Each of the Mother and Father be at liberty to communicate with the children at reasonable times and by reasonable means (including by FaceTime, etc.) when the children are in the other party’s care, including, but not limited to, between 7.00pm and 7.30pm each Tuesday and Thursday night.

The parties each be, and is hereby, authorised to obtain, directly from any school attended by the children, or either of them, details of the children’s progress at school; copies of all school reports; photographs; notices of parent-teacher interviews; and notices of other functions which parents normally attend.

10.

Both parties be permitted to attend parent/teacher interviews and other school activities/functions normally attended by the parents.

11.

Neither party enrol the children, or either of them, in any extra-curricular or sporting activity which is to occur during the time the children spend with the other parent, save with the consent of such parent.

12.

Each of the parties keep the other informed of any illness or injury occurring to the children, or either of them, whilst in their care which requires medical attention, such notice to be provided as soon as practicable and not more than 24 hours following the child attending upon a medical practitioner.

13.

Each of the parties provide the other with their contact address and telephone number during periods when the children are in their care and inform the other forthwith of any change in such address or telephone number.

14.

The parties, by themselves, their servants and/or agents be and are hereby restrained by injunction from:

(a) Abusing, insulting, belittling, rebuking or otherwise denigrating the other party, their partner or their family; and

(b) Discussing these proceedings,

to or in the presence or hearing of the children or either of them and from permitting any other person to do so.

15.

All extant applications be dismissed and removed from the pending cases list.

AND THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 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 are set out in Attachment A and these particulars are included in these orders.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.