FEDERAL CIRCUIT COURT OF AUSTRALIA
| MICALEFF & MICALEFF | [2014] FCCA 119 |
| Catchwords: FAMILY LAW – Parenting – relocation – two brothers aged 14 years and 11 years living with mother in (omitted) – both children expressing strong wish to live with father in Sydney – opposed by mother – consideration of weight to be attached to wishes – best interests of children. |
| Legislation: Family Law Act 1975 (Cth), Part VII |
| D & SV [2003] 30 Fam LR 91; FLC 93-137 G & C [2006] FamCA 994 MRR v GR [2010] HCA 4; (2010) 42 Fam LR 531 Pascale v Pascale (1999) FLC 92-878; 25 Fam LR 607 Sayer v Radcliffe &Anor [2012] FamCAFC 209; 48 Fam LR 298 |
| Applicant: | MR MICALEFF |
| Respondent: | MS MICALEFF |
| File Number: | SYC 1545 of 2008 |
| Judgment of: | Judge Coakes |
| Hearing dates: | 20 September 2013 19, 20 and 23 December 2013 |
| Date of Last Submission: | 20 January 2014 |
| Delivered at: | Newcastle |
| Delivered on: | 24 January 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Davies |
| Solicitors for the Applicant: | Doolan Wagner and Callaghan |
| Solicitor for the Respondent: | Mr K Byrnes |
| Solicitors for the Respondent: Counsel for the Independent Children’s Lawyer: Solicitor for the Independent Children’s Lawyer: | Byrnes and Cox Lawyers Mr C Boyd Foat Associates Lawyers |
ORDERS
That all previous orders in relation to the children X born (omitted) 1999 (“X”) and Y born (omitted) 2002 (“Y”) (“the children”) are discharged.
That the parents have equal shared parental responsibility for the children.
The children live with the father.
The mother is to ensure and enable the children to move to Sydney with their personal effects and clothing no later than 5.00pm Sunday 26 January 2014.
The children spend time with the mother as follows:
(a)On the fourth weekend of each school term applicable at the school attended by each child and to take place in (omitted) from not earlier than 7.00pm on Friday and until no later than 8.30pm on the Sunday or 8.30pm Monday if a long weekend with the mother to arrange and pay for the cost of the children travelling from Sydney to (omitted) and return to Sydney with the mode of travel to be as selected by the mother and if by air the mother is to give not less than 14 days prior written notice to the father of the carrier and the flight number and the time at which the children are to be at Sydney Airport and with details of the carrier, flight number and the time at which the children are due to return to Sydney Airport, and in that…
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- Micaleff and Micaleff [2014] FCCA 119
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- [2014] FCCA 119
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CaseChat Overview and Summary
The court was tasked with determining the primary residence of the children, the allocation of parental responsibility, and the specific arrangements for each parent to spend time with the children. This included establishing detailed schedules for weekends, school holidays, and communication between the children and the non-resident parent. The court also had to consider the potential impact of any proposed changes on the children's mental health, their relationships with extended family, and the practicalities and costs associated with maintaining contact with both parents.
Judge Coakes reasoned that the father had the capacity to support the children and that their wishes to live with him should be fulfilled. The court found that there was a significant risk of adverse effects on X's mental health if he remained with his mother, and that Y was also at risk. While acknowledging an initial adverse effect from separation from their mother, the court was satisfied that the children would adapt to living with their father in Sydney. The court also considered the separation from the maternal grandmother and step-grandfather, deeming the impact minimal given the grandmother's hostility towards the father. The court was not persuaded by the mother's claims of difficulty and expense in facilitating the children's living arrangements with the father.
The court ordered the discharge of all previous orders concerning the children and established equal shared parental responsibility. The children were to live with the father, with detailed provisions for the mother to spend time with them, including travel arrangements and specific weekend and holiday schedules. Further orders addressed communication, parental conduct, notification of serious injury or illness, school information access, attendance at sporting activities, change of address, therapeutic counselling, and the delivery of passports. The court also continued the order for the children to be separately represented.
Orders
Orders of the court
1.
That all previous orders in relation to the children X born (omitted) 1999 (“X”) and Y born (omitted) 2002 (“Y”) (“the children”) are discharged.
2.
That the parents have equal shared parental responsibility for the children.
3.
The children live with the father.
4.
The mother is to ensure and enable the children to move to Sydney with their personal effects and clothing no later than 5.00pm Sunday 26 January 2014.
5.
The children spend time with the mother as follows:
(a) On the fourth weekend of each school term applicable at the school attended by each child and to take place in (omitted) from not earlier than 7.00pm on Friday and until no later than 8.30pm on the Sunday or 8.30pm Monday if a long weekend with the mother to arrange and pay for the cost of the children travelling from Sydney to (omitted) and return to Sydney with the mode of travel to be as selected by the mother and if by air the mother is to give not less than 14 days prior written notice to the father of the carrier and the flight number and the time at which the children are to be at Sydney Airport and with details of the carrier, flight number and the time at which the children are due to return to Sydney Airport, and in that instance with the father or his nominee to take the children to Sydney Airport for that purpose and to collect the children from Sydney Airport upon their return;
(b) At the mother’s election, on no more than two other weekends during each school term applicable at the school attended by each child other than the fourth weekend of each school term and the Father’s Day weekend with the mother to give not less than 21 days prior written notice to the father upon each occasion the mother makes such election and with the time to commence on the Friday as specified by the mother but after the conclusion of school and before 9.00pm and to conclude not later than 8.00pm on the Sunday or 8.00pm Monday if a long weekend and with the time to be spent with the children to occur within the Sydney basin and with the mother to collect the children from outside (omitted) Cinema from the father or his nominee and with the children to be returned to the father or his nominee at the same place on the Friday provided that these arrangements can be varied by agreement between the parties in writing by text message or email or facsimile transmission as to implementation;
(c) For the first half of all school holidays applicable at the schools attended by the children in odd numbered years and for the second half of all school holidays in even numbered years with such half to be determined by calculating the number of days from 10.00am on the first day following the conclusion of the immediately preceding school term until and including the day immediately preceding the commencement of the new school term and dividing such number by two and in the event that this results in an odd number then the extra day is to be spent with the mother.
(d) On the weekend of Mother’s Day at the same times referred to in order 5(a) above and at the mother’s expense and which can occur in Sydney or (omitted) at the mother’s election;
(e) At such other or additional times as the parties may agree in writing by email or text message.
6.
To give effect to the above orders as to implementation:
(a) As to order 5(c) the father or his nominee known to the children is to take the children to (omitted) at the commencement of each school holiday period and is to collect the children from the mother in (omitted) at the conclusion of the holiday period and take them back to Sydney with the venue in (omitted) for changeover to be outside the main Post Office or such other place as agreed in writing prior to such changeover and by text message, email or facsimile transmission;
(b) On all other occasions for which provision is not made in order 5 above as agreed between the mother and the father and in the absence of agreement as determined by the father.
7.
That the children have liberal telephone communication (including Skype) with the parent with whom they are not then living or spending time at any time as reasonably requested by either of them, and with each child to be accorded privacy during such communication and with the mother to install at her expense a Skype facility no later than 30 April 2014.
8.
On the birthday of each child, the parent not spending time with the child on such occasion is to have telephone contact with both children on each such occasion at some prior agreed time or failing agreement between 7.00pm and 8.00pm with the parent with whom the child is then spending time to ensure that each child is present to receive a telephone call, that the telephone service is not being used for any other purpose, is not switched to a message bank or answering service and if a mobile, is positioned in such a place to receive telephone calls free from interference.
9.
That the father is restrained from:
(a) Taking any action or step to change the given names and surname of the children whether formally or otherwise;
(b) Enrolling either of the children at any school other than (omitted) College in the case of X and (omitted) Primary School in the case of Y for 2014 but thereafter (omitted) College without 14 days prior written notice to the mother by letter or email;
10.
Each parent is restrained from denigrating the other parent in their presence or hearing of the children or either of them including but not limited to making rude comments, making insulting comments, swearing at, shouting at and making obscene gestures and each parent is further restrained from causing or permitting any other person from engaging in such behaviour in the presence of the children or either of them.
11.
That the father and mother shall each promptly notify the other should the children or either of them whilst in the care of that parent suffer from a serious injury or be diagnosed as suffering from a serious medical condition with each parent subsequently entitled to visit the children in hospital at any time and obtain medical information about the children from the children’s treating doctors.
12.
Each parent is entitled to obtain from the schools attended by the children from time to time copies of newsletters, order forms for school photographs and other information about the children normally provided to parents and each parent is entitled to attend events at the school to which parents are invited to attend whether or not the children are living with them or spending time with them during the relevant period.
13.
During any time that the mother is spending time with the children or either of them in the Sydney basin the mother is to ensure that the children attend any sporting activities to which the children are previously committed.
14.
Each parent is to inform the other of any change in current residential address, land line telephone number, mobile telephone number, facsimile transmission number and email address with any such change to be communicated within 48 hours of such change occurring.
15.
The mother and the father are to enrol in, attend and complete a course of therapeutic counselling by 30 June 2014 or such later date as the clinician determines with a clinician experienced in family dynamics and communication nominated by the Director of Child Dispute Services, Family Courts of Australia at Newcastle or her nominee with a view to improving their communication with each other so as to discuss matters concerning the children and the children’s relationship between each of the respective parents with each of them to inform the Independent Children’s Lawyer in writing of the name and place at which such therapy is to take place and with the intent that it be preferable for both parties to attend upon such therapeutic counsellor in person but one or both parties may attend by telephone if personal attendance is impractical.
16.
That the mother cause to be delivered to the Solicitors for the father by 28 February 2014 the passports currently in her possession for the two children X born (omitted) 1999 and Y born (omitted) 2002.
17.
That the order made on 18 March 2013 in the Federal Magistrates Court of Australia at Newcastle that the children by separately represented is continued until 31 July 2014.
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
I am satisfied that the father has the capacity to support the children if they are living with him and meet any necessary school fees at a private school or otherwise. d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or If the children remain living with the mother there is likely to be a continuing adverse effect upon being separated from their father if their wishes to live with him are frustrated and prevented from being fulfilled. I accept the opinion expressed by Ms B and not disturbed during cross examination that there is a concern that X’s ongoing mental health would be adversely affected if he remained living with his mother. Similarly, for reasons to which I have referred earlier, Y is also at risk if he remains with the mother whether X is there or not. Equally, there is likely to be an initial adverse effect upon the children being separated from their mother and which will require some adjustment from each of them. Both children will worry about their mother and the effect upon her of being separated from them. I am satisfied however that both children will readily adapt to living with their father and coping with the changes of leaving (omitted), a change of school, a change of friends, adapting to a different household and other children and every other attendant uncertainty with a move of this extent. I am satisfied on the whole of the evidence that the risk of adverse effect is far less with the children moving to live with the father in Sydney than remaining with the mother in (omitted). It is not as if the children are separated by such a distance from their mother that a relationship between them is impossible. (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living; The children will be separated from the maternal grandmother and the maternal step grandfather and other members of the mother’s extended family but it seems to me on the whole of the evidence, particularly given the maternal grandmother’s hostility to the father that the effect upon the children, if any, will be minimal.e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis; There is no significant practical difficulty or prohibitive expense if the children remain living with their mother so far as the father is concerned in continuing to see them. To the father’s credit, he has travelled to (omitted) every fortnight and also been responsible for collecting and returning the children for each school holiday period. The father’s commitment in this respect is unchallenged. Whilst the mother professes difficulty and expense if the children are living with the father in Sydney, I was less than persuaded by the mother’s evidence in this respect. It seemed to me more that the mother was seeking some indulgence or sympathy and was not addressing in a positive manner the prospect of visiting her children in Sydney.