Michaels & Vidal

Case [2022] FedCFamC1F 252

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Michaels & Vidal [2022] FedCFamC1F 252

File number(s): SYC 425 of 2016
Judgment of: REES J
Date of judgment: 21 April 2022
Catchwords:

FAMILY LAW – PROPERTY – BINDING FINANCIAL AGREEMENT – Application to set aside a financial agreement – Where the planned birth of a child in a same-sex relationship does not constitute a “material change in circumstances” or give rise to “hardship” – Unconscionable conduct not substantiated – Where the respondent’s first language is Country DD language – Where the respondent would not have been unable to understand the advice received including the consequences of entering the agreement if it was given in English and of the nature stipulated in Abrum & Abrum [2013] FamCA 897 – Where it would not be unjust or inequitable on the applicant to set the agreement aside –Agreement set aside pursuant to s 90UM(5)(A) of the Family Law Act 1975 (Cth).

FAMILY LAW – CHILD SUPPORT – Application for child support departure order – Where the Child Support Registrar hasn’t been served – Application dismissed.

FAMILY LAW – CHILD MAINTENANCE – No power to make a child maintenance order where there is a child support assessment in force – Application dismissed.

FAMILY LAW – PARENTING – Where the applicant seeks to increase his time spent with the child – Child’s expressed wishes for the current parenting arrangement to continue – Benefits of the child spending more time with the applicant are outweighed by other considerations – Orders for the child to spend a block of five nights per fortnight with the applicant from Term 1 2023 – Orders removing the child from the Family Law Watchlist.

Legislation:

Child Support (Assessment) Act 1989 (Cth) s 117

Family Law Act 1975 (Cth) ss 60CC, 90UJ, 90UM

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.13
Cases cited:

Abrum & Abrum [2013] FamCA 897

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447

Fewster & Drake (2016) FLC 93-745

Hoult & Hoult (2013) FLC 93-546

Lesley & Lesley [2015] FamCA 894

Logan & Logan (2013) FLC 93-555

Thorne v Kennedy (2017) 263 CLR 85
Division: Division 1 First Instance
Number of paragraphs: 185
Date of hearing: 11, 12 & 14 April 2022
Place: Sydney
Counsel for the Applicant: Ms Clifford
Solicitor for the Applicant: Karras Partners Lawyers
Counsel for the Respondent: Mr Cairns
Solicitor for the Respondent: Harris Gomez Group
Counsel for the Independent Children's Lawyer: Mr White
Independent Children's Lawyer: Legal Aid NSW

ORDERS

SYC 425 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR MICHAELS

Applicant
AND:

MR VIDAL

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

REES J

DATE OF ORDER:

21 APRIL 2022

THE COURT ORDERS:

1.That the child X born 2011 live with Mr Vidal and spend time with Mr Michaels in accordance with the current orders.

2.That from the commencement of Term 1 in 2023, X live with Mr Michaels…

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AGLC
Michaels & Vidal [2022] FedCFamC1F 252
Case
[2022] FedCFamC1F 252
Decision Date

CaseChat Overview and Summary

In the case of Michaels & Vidal, the court was asked to determine the parenting arrangements for X, a child who had been subject to ongoing conflict between his parents, Mr Michaels and Mr Vidal. The dispute centred on the allocation of time between the parents and the potential for overseas travel with Mr Vidal to Country DD. The court was required to balance the child's best interests, including his desire to maintain his current living arrangements and the need to protect him from exposure to family violence.

The legal issues that the court had to decide included the weight to be given to the child's wishes, the benefits of a meaningful relationship with both parents, and the need to protect the child from physical or psychological harm. The court also needed to consider the evidence of Dr M, a child and family psychiatrist, who had interviewed the parties and X on multiple occasions. Dr M's evidence highlighted the adverse effects of the ongoing conflict between the parents on X's development and recommended ongoing therapy to assist X in processing the different views and behaviours of his parents.

The court found that X had a clear and consistent preference to maintain his current living arrangements, which involved spending most of his time with Mr Vidal and alternating weekends with Mr Michaels. The court gave weight to X's views, recognising his maturity and understanding of the impact of his decision on both parents. The court also considered the evidence of Dr M, who stated that either proposal in relation to the time spent with Mr Michaels during school term time was adequate to maintain X's relationship with him. The court concluded that the benefits of spending more time with Mr Michaels were outweighed by the need to protect X from exposure to family violence and the negative effects of the ongoing conflict between the parents.

The court ordered that X would spend five consecutive nights in the care of Mr Michaels in each alternate week of the school term, starting from the beginning of Term 1 in 2023. The court also granted leave to Mr Vidal to make an oral application for orders to facilitate overseas travel to Country DD during school holiday periods. The court found that there was little evidence to support Mr Michaels' assertion that X was at risk of abduction and that Mr Vidal had expressed his intention to return to Australia after spending time in Country DD.

In conclusion, the court ordered that X would spend five consecutive nights in the care of Mr Michaels in each alternate week of the school term, starting from the beginning of Term 1 in 2023. The court also granted leave to Mr Vidal to make an oral application for orders to facilitate overseas travel to Country DD during school holiday periods. The court found that X's wishes should be given weight and that his current living arrangements were in his best interests.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The allegations which were made in the course of that interview have been maintained in the affidavits of each of them and in their interviews with Dr M.THE EVIDENCE OF DR M Dr M is a child and family psychiatrist who was appointed as the single expert in these proceedings. She has conducted interviews and prepared reports in 2017, 2020 and 2021. In preparation for the first report, dated 23 May 2017, when X was six years old, Dr M interviewed the parties and X in April 2017 and also spoke to Mr Michaels’ general practitioner and X’s teacher. In her summary of the current concerns of each party, Dr M wrote:[Mr Vidal] described1.When [X] is with [Mr Michaels], he could take [Mr Michaels’] drugs or be given drugs. Asked if [Mr Michaels] would give them to [X], [Mr Vidal] replied “he tried to kill me, could try to kill [X]”.2.He does not know what [X] has been exposed to in [Mr Michaels’] house, where [X] will not eat. [Mr Michaels] provides spoilt fruit and old sandwiches for [X's] lunches.3.While with [Mr Michaels], [X] has not been washed, was sent to school with dog poo on his uniform and once had his uniform on over his pyjamas. In 2015, [X] went to school in a nappy, despite being toilet trained since he was two years old.[Mr Michaels] described1.“[Mr Vidal] is brainwashing him to say things... [Mr Vidal] has coached and coached and coached” him.2.[X] is dropped off at [Mr Vidal’s] friend [Ms Q’s] home around 6.30-7.00AM. [Ms Q] “screams” and drives [X] to school without having him in a child seat. In her home he watches TV until [Ms Q’s] two children get out of bed, while [Ms Q] has twice removed small laminated photographs of [Mr Michaels] and [X], which were on a ring attached to the handle of [X’s] bag. [X] was “so tired”: by the time he starts school at 9.20 he has “already done two hours”.3. The previous week [X] had been left at school after classes were out.4.“[Mr Vidal’s] circle of friends”, two of whom have been in gaol [...] A man who has had serious drunk driving offences often sleeps in [X’s] bedroom on a blow-up mattress.5. “[X] sees parents who can't be in a room together... not with each other”.6. He is isolated with [Mr Vidal] and has the same three friends. Dr M noted that X said he wanted to change the fact that his Papa and his Dad keep fighting. She stated that X was attached to both Mr Vidal and Mr Michaels and one of his wishes was to be “with my Papa and Dad forever”. Dr M’s second report was prepared after she interviewed X with Mr Vidal in July 2020 when X was nine years old. Mr Michaels cancelled his appointment to attend on Dr M on 7 July 2020 because of illness and he failed to attend an appointment with Dr M and X on 3 August 2020. By the time of the second report, X had been in counselling with Mr R who is a clinical social worker, for 18 months. Dr M noted that, when she spoke with X in the company of Mr Vidal:To an enquiry about any problems, worries or upsets in his family, [X] referred to a “fight” between his parents around 2015/l6 and he did not “know who to believe... they both say (the other) held up a knife and chased each other around the bench... blame each other”.Continuing, [X] queried whether it was in 2014 that “[Mr Michaels] hit [Mr Vidal] with a hammer”. He mentioned a punch at the dinner table, when “the cops said you're a man and should defend yourself” to his Papa.He launched into another incident (“the second time...”), talking without hesitation, as if by rote. During this monologue, [X] spoke without any verbal expression or accompanying affective reactivity.

Decision

Reasons for decision

Since this has been made entirely clear by both Dr M and Mr R, since at least 2017, sadly for X, nothing that I say is likely to produce any different result. CONCLUSION I accept that there are benefits for X of spending more time with Mr Michaels but those benefits are outweighed by other considerations. Dr M said that when X goes to high school he will want to spend more time with his peers and have more commitments involving his friends. Those friends and peers are located in the area where X lives with Mr Vidal and his commitments are likely to be in that area as well. Dr M said:[T]hat’s a valid reason for a child to stay more time in one household where the friendship groups are and where there’s ease of connection with them, as opposed to being quite a distance. Mr Michaels’ case is that the travel time from his home to X’s high school will be about 45 minutes. Mr R, in conversation with Dr M, suggested that, on some occasions, the time may be an hour. Travel to school of that length, whether it be 45 minutes or an hour, may be burdensome to X if he feels that travel time is time keeping him away from his friends. It is desirable to limit the number of days that X has to travel. X has very clearly said that he does not want more time with Mr Michaels. Dr M described X’s views as “a quite mature reflection”. I will order that, from the start of Term 1 in 2023, X will spend five consecutive nights in the care of Mr Michaels in each alternate week of the school term. OVERSEAS TRAVEL Although neither Mr Michaels nor Mr Vidal sought orders relating either to the facilitation or restraint of overseas travel, it was clear throughout the proceedings that this was an issue to be determined and each parent was cross-examined about it. Further, in the ICL’s Minute of Orders, the ICL sought orders to facilitate overseas travel. For the avoidance of doubt, leave was granted to counsel for Mr Vidal to make an oral application for orders to facilitate travel. Mr Vidal would like to be able to take X to Country DD to spend time with his extended family there. He does not oppose X travelling overseas with Mr Michaels. Mr Michaels opposes any overseas travel for X on the basis, he says, that Mr Vidal would abduct X and not return from Country DD. He opposes the removal of X’s name from the Family Law Watchlist. There is little evidence to support Mr Michaels’ assertion that X is at risk of abduction. Mr Vidal agreed that he had said to Mr Michaels when they were together “You will spend the rest of your life wondering what X looks like” because he was scared. Country DD is a signatory to the Hague Convention in relation to child abduction as is Australia. Mr Vidal has lived in Australia since 1997, some 25 years. He runs his own business. He has family and friends in Australia. He is an Australian citizen. X is an Australian citizen. In cross-examination by counsel for the ICL Mr Vidal said that he wanted to take X to Country DD during school holiday periods but that he wanted to live in Australia. He envisioned travelling to Country DD for a period of weeks, not months, so that X would know his family in Country DD and experience the culture. He agreed that he would only be able to travel during school holidays when the orders provided for X to be with him.

Ratio Decidendi

Legal Principle Established

Dr M was also asked to comment on X’s mental health needs and stated:[X] would benefit from ongoing sessions with [Mr R], a neutral person who can assist him to process the different views and behaviours of his parents and reflect on his own actions.[X] needs his parents to genuinely engage with [Mr R], to think about his development and their parenting, particularly given the approach of adolescence.CONSIDERATION The primary considerations as outlined by s 60CC of the Act provide:(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b). Having regard to the ambit of the dispute, Dr M’s evidence was that either proposal in relation to the time spent with Mr Michaels during school term time was adequate to maintain X’s relationship with him, that relationship being well established. In relation to the risk to X from being exposed to family violence, Dr M wrote in her most recent report:Given the ongoing significant conflict between [X’s] parents, which he is not protected from, [X] has already experienced developmental adversity. Adverse childhood experiences (ACEs) can have negative, lasting effects on health, wellbeing (behaviours) and opportunity (life potential) as “these exposures can disrupt healthy brain development, affect social development, compromise immune systems, and can lead to substance misuse and other unhealthy coping behaviours”any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views; Dr M stated:[X] is a bright, articulate ten year old who can be assertive and may become defiant and disrespectful (feedback from his current teacher). He stated a clear preference for the current living arrangements (living with [Mr Vidal] and spending five non-consecutive nights a fortnight with [Mr Michaels]) to continue during term time and to extend into school holidays (not the current week about during holidays).At interview, [X] seemed thoughtful about how change in his residency would affect “what (he’s) doing”. His resolution was the same as when he was seen in July 2020 – he did not want change. His views should be given weight by the Court and his parents, although at ten he would not have the cognitive and emotional maturity to consider all factors which contribute to his long-term best interests. I accept the evidence of Dr M. X has made his views clear since at least July 2020 and his position has solidified according to Dr M’s December 2021 report. X has not suggested that he would like more time with Mr Michaels although his comment to Dr M that “he did not want to talk to Dad about the interview because ‘he wouldn’t like what I said about him’”, suggests that X has done so with considered understanding of the hurt this will cause to Mr Michaels.