Nicher and Nicher

[2009] FamCA 97

FAMILY COURT OF AUSTRALIA

NICHER & NICHER [2009] FamCA 97

FAMILY LAW  -  CHILDREN  -  interim parenting orders  -  interim relocation  -  ways to maximise relationship

Family Law Act 1975 (Cth)

HUSBAND: Mr Nicher

WIFE: Ms Nicher

FILE NUMBER: MLC 10780 of 2008

DATE DELIVERED: 20 January, 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 20 January 2009

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms. Smallwood

SOLICITOR FOR THE HUSBAND: Ryan, Mackey & McClelland

COUNSEL FOR THE WIFE: Mr. Curtain

SOLICITOR FOR THE WIFE: Lampe Family Lawyers

Orders

1. That the husband and wife have equal shared parental responsibility for the child of the marriage … born … January, 2002 (“the child”).

2. That until further order the child live with the wife.

3. That until further order the child spend the following time with the husband :

   (a)from 1:00 pm. on 22 January, 2009 until 5:30 pm. on Monday 26 January, 2009;

   (b)each alternate weekend from 5:30 pm. Friday (or, if the Friday is a public holiday, 5:30 pm. on Thursday) until 5:30 pm. Sunday (or, if the Monday is a public holiday, 5:30 pm. on Monday) commencing on the first weekend of the first school term in 2009, and recommencing on the first school term of each school term thereafter;

   (c)if the child would not spend time with the husband on a long weekend, pursuant to the preceding sub-paragraph, then on each long weekend from 5:30 pm. on the day preceding the long weekend (whether that be a Thursday or Friday) until 5:30 pm. on the third day of the long weekend (whether that be a Sunday or Monday);

   (d)for one half of each school term holiday at times to be agreed, and failing agreement the first half;

   (e)from 5:30 pm. on 23 December, 2009 until 12:00 noon on 26 December, 2009;

   (f)for two periods of one week each in January 2010 (prior to the commencement of the school year) at times to be agreed;  and

   (g)at such other times as are agreed between the parties. 

4. That until further order the husband and the child communicate :

   (a)by telephone on no less than two occasions in each week;

   (b)by cards and notes sent by ordinary mail;  and

   (c)email or other electronic means  PROVIDED THAT  the mother may read emails sent to the child by the husband.

5. That until further order, and subject to any agreement to the contrary between the parties, changeovers occur at a place to be agreed in T and, failing agreement, at McDonald’s in T.

6. That until further order within 48 hours of obtaining any report of a medical practitioner, psychologist, counsellor, therapist or like professional consulted by the child, the wife forward a copy of it to the husband. 

7. That the wife forthwith authorise the principal of the school attended by the child to provide to the husband, at his request and at his expense (if any) a copy of:

   (a)each order form for a school photo of the child;  and

   (b)each school report for the child.

8. That until further order the husband be at liberty to attend all events, activities and functions at the P Primary School which are routinely attended by parents and as soon as practicable, the husband serve a sealed copy of this order on the principal of the P Primary School.

9. That until further order each of the parties keep the other advised of any change in his or her residential address and of a telephone number at which he or she can be contacted in an emergency. 

10. That until further order the parties use a communication book to exchange information relevant to the child’s welfare and the communication book accompany the child on changeovers. 

11. That the report of Mr. H dated 17 January, 2009 be indexed on the court file.

12. That the parties have liberty to apply for priority to the Honourable Justice Cronin.

13. That all extant applications for interim orders be otherwise dismissed and the applications for final order be referred to the pool of cases awaiting allocation of trial directions. 

14. That pursuant to s.62B and s.65DA(2), 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

15. That the reasons for judgment this day be transcribed and copies made available to the parties.

16. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

That it confirmed, in the presence of both parties, the appropriateness of the child communicating with her paternal grandparents by telephone and, on occasions, a drawing or other item sent by post or other means. 

IT IS NOTED that publication of this judgment under the pseudonym  Nicher & Nicher is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10760 of 2008

MR NICHER

Husband

And

MS NICHER

Wife

REASONS FOR JUDGMENT

1. This case concerns the parties’ daughter, who will turn seven soon.  It first came before me on 4 December.  Each of the parties was represented by counsel, submissions were made and a ruling was delivered.  The background is set out in that ruling.  The child’s mother had relocated, without advice to the child’s father, from D, where the parties lived until their separation in March 2008, to P.  At that time orders provided, until further order, for the child to live with the wife and spend time with the husband in the school holiday period.  The effect was that the child would remain living with her mother in P until today.  Orders enabled each of the parties to put additional evidence before the court and the preparation of a family report.

2. Since that hearing the father has filed another affidavit sworn by him and affidavits sworn by his parents.  The mother has filed another affidavit sworn by her and an affidavit sworn by her uncle, with whom she is living.  Mr H’s report, dated 17 January, is before the court.

3. In essence, nothing has changed since the last hearing.  The significant matters then in dispute remain in dispute.  In particular, the wife's allegations of violence and abuse directed at her by the husband are pressed by her and denied by him.  Those are significant allegations and determination of them will impact on the decision at trial.  The husband denies ever being abusive to the wife.  He provides explanations for a couple of violent incidents involving third parties;  he says he was defending himself, or was the target of an unwarranted attack.

4. There is a still a dispute about the time the husband spent with his friend, Ms N, in L after separation and prior to the wife unilaterally relocating the child’s residence from D.  I note that the child spoke of Ms N quite naturally and fondly when she was with Mr. H;  the child told him that her father's girlfriend did the driving when they were together, indicative of spending some time with her.

5. The husband's evidence about his stays in L with the child is a little confusing.  In his most recent affidavit he deposes to staying with his girlfriend on occasions after separation, with the child.  He says this occurred because there was little room at his own father's house for the child.  Now he has resumed occupation of the former matrimonial home in D, there is lots of room for him and the child there.  The inference is that he no longer needs to take the child to his girlfriend’s home in L on weekends the child is with him. 

6. On the other hand, the husband’s evidence is that he would be content – indeed, he has offered – for the wife to move back into the former matrimonial home in D.  If that occurs, that home would not be available for him and the child on weekends and if he resumed residence with his father, space constraints would again impinge and lead to him resuming weekends at L. 

7. The court has no evidence from Ms N.  I understand she has three children of her own, of whom the youngest is 10.  What is clear is that, for whatever reason, the father and the child regularly spent time in L with Ms N at weekends prior to the wife’s relocation.  He was content to drive the child from D to L and back.  And L is much closer to P than is D. 

8. Mr H’s report has been the subject of trenchant criticism by counsel for the father.  It is unfortunate that Mr. H digressed into the legal arena, particularly as his asserted understanding of the law is not accurate.  Nevertheless, an objective reading of that report does not warrant much of the husband’s criticism.  A party who does not agree with the recommendations of an expert is likely to construe the report through that lens.  Aspects of the report may have caused the father some distress.  Mr H will be cross‑examined in due course.

9. The gist of Mr. H’s report is that both parents have a warm and affectionate relationship with the child.  Nothing in his observations of her with either parent caused him any concern.  The inference is that her primary attachment is with her mother;  that is unsurprising, given the time she spent with the wife prior to separation and after separation, and the husband's employment obligations, which have impacted, as they often do, on people in his situation.  In that sense, the child is closer to her mother and her expressed preference for her is unsurprising.  The husband may find that distressing but it does not mean the child does not love him, or want to spend time with him, or be close to him.  She does, as Mr. H makes clear.

10. Despite Mr H’s opinion I do not place significant weight on the child’s views at this time.  I do place weight on her attachments. 

11. Mr H has referred to the parties' focus on the travel time.  That it is an important factor is borne out by his recommendation, which I will refer to in a moment.  When he said the parties’ focus on it is a distraction, I take him to refer to the way the parties dealt with the issue.  Both swiftly focused on it, argued about it, and made inquiries of other people about it.  They measured the kilometres;  they talked about the hours and minutes involved.  All that was really necessary was to acknowledge, as counsel for the father sensibly said, that, on any basis, the drive between D and P is a long drive for a little girl.

12. Mr H’s evidence is that it is probable that the move from D to P has impacted positively on the wife's psychological state.  Certainly that is likely to benefit a child in her primary care.  However, it is probable the move has impacted negatively on the husband’s psychological state.  That is unfortunate, and not of benefit to the child if it interferes with his capacity to have a meaningful relationship with her. 

13. The husband's application remains as it was at the outset.  He seeks that the child’s residence be relocated back to D, or close to D, and she live with her mother there.  He seeks to spend time with the child on alternate weekends, half school holidays and on special days.  He spoke of alternate weekends being extended to a Friday, or a Monday;  I am not sure what is meant by that, as the child would be at school on Monday and Friday during school terms.  Perhaps he meant from the conclusion of school on Friday until the start of school on Monday, or perhaps an extra night.  In any event, it is clear he seeks extended time on alternate weekends.

14. To the husband's credit, and despite his criticism of the wife, which goes back to the time of the child’s birth, he has been content for the wife to remain the child’s resident parent, so long as he able to have a meaningful relationship with his daughter.  That submission acknowledges the wife’s capacity to meet the child’s day to day needs.  Nevertheless, it is his submission that when she made the decision to relocate, she was not acting in the child’s best interests. 

15. It is clear from the husband's material that he is concerned at the loss of opportunities for the child to spend time with his parents.  I have read their affidavit.  Counsel for the wife has conceded that while aspects of their evidence may be disputed, it is not disputed that they looked after the child on occasions after separation and assisted the wife when she needed help.

16. The brutal reality is that if orders are made as the husband seeks, and the child returns to live somewhere in the Melbourne area, not too far from D, and he has contact with her on alternate weekends and half-holidays, then - unless the wife agreed otherwise - his parents would only see the child when she is with her father.  That is the reality.

17. Mr H’s recommendation is that, if the wife remains in P, the husband spend every third weekend with the child, including the Monday or Friday if it is a public holiday or a school curriculum day.  As I understand the submissions of counsel, both parties submit the husband should be seeing the child more frequently than that, whatever travel is involved.  To that extent, neither relies on Mr H’s recommendation.

18. The wife's submission is that there should orders for alternate weekend time, and there should be some flexibility, so that every long weekend is spent with the father.  That is sensible, whatever the outcome.  But if weekends are swapped to achieve it, there could be nearly a three week gap between his periods of time with the child.  An option for the court would be to order that if a long weekend fell on a weekend when the husband was not otherwise spending time with the child, he have the long weekend, in addition to those which fall in the fortnightly pattern. 

19. Both parties have referred to problems about receipt of school reports, photos, doctor's reports and therapists' reports.  Orders can deal with those aspects which are really a red herring.  It is clear that when the parties lived together, the wife played a more proactive role in those areas, as is often the case, when the husband is engaged in demanding employment.  Now they do not live together, it is important that both parents are aware of all medical, educational and therapeutic interventions.

20. I referred to the relevant legal principles in the earlier ruling.  The law rests on two basic principles.  The first is the importance of maintaining a meaningful relationship with both parents and others of importance to a child her, to the extent consistent with the child’s best interests.  The second is the importance of protecting a child from physical or emotional abuse.  The court is asked to consider a number of additional factors, ranging from the views of the child to the nature of the relationship of the child with parents and others of importance to him or her, as well as factors relating to parental capacity and attitude to parental responsibility, and issues relating to the child's day-to-day needs. 

21. If the court makes an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent is in a child’s best interest and reasonably practicable.  If it is not, it must consider whether spending significant and substantial time with the other parent is in the child's best interests and reasonably practicable.  Neither party seeks an order for literally shared care. 

22. I am satisfied orders should provide for equal shared parental responsibility at this time, particularly having regard to the concerns expressed about the provision of school, medical and therapists' reports.  The court must then move to consider, in the light of the orders sought by the father, whether significant and substantial time is reasonable practicable in the child’s best interests.

23. Relocation cases, even when not interstate or overseas, and particularly at the interim level, are very difficult for families.  One parent inevitably ends up feeling grievously badly done by.  The court's responsibility is to look at the best interests of the child;  it is those best interests that are paramount.  It is not a question of punishing a party or rewarding a party.  Parents' behaviour, including that which relates to a decision to relocate, is relevant to their understanding of parental responsibility, as submitted by counsel for the father.

24. Balancing all the evidence now before the court, I do not find it in the child’s interests to require her to return to the Melbourne area at this time.  I have regard to the orders that are sought by the husband;  to the reality of the time the child may spend with his parents if the wife did return with the child to Melbourne;  to the child’s adjustment to and settlement in P;  and to those parts of Mr. H’s opinion that relate to the child’s best interests.

25. The school holidays do not end until 2 February.  Earlier orders provide for the child to be with her father until 4 January and then spend time with her mother.  I propose that, prior to the start of the 2009 school year, the husband have an extended weekend with the child, if he can arrange for someone to collect her.  I know the husband is working and the building industry may have resumed, but a family member may be able to assist him.  By way of illustration, time could be, for example, from, say, 12:00 noon this Thursday (22 January) until 5:30 pm. on Monday, which is Australia Day. 

26. In relation to ongoing time, I am satisfied the husband should spend every second weekend with the child.  In addition, if a long weekend does not fall on one of his weekends with the child, they will spend the long weekend together, as well.  The child will be spending a lot of time with her mother;  she will be with her before school and after school each day.  It is important that the child’s relationship with her father be maintained and this order may assist. 

27. The child’s time with the husband will start on the first weekend of the first school term and recommence on the first weekend of each school term thereafter.

28. In relation to Fathers’ Day and Mothers’ Day the most practical order is one which provides that if the child would not be with the husband on Father's Day, he have that weekend in lieu of the following one.  If the child would not be with the wife on Mother's Day, she have that weekend in lieu of the following one.  There is too much travel to order she spend only a few hours with a parent on this day.  The child is at an age where it is likely she will make cards and little presents on Mother's Day and Father's Day at school, and she should be able to enjoy that.

29. I will hear submissions about changeover arrangements.  I would encourage the parties to be as flexible as possible, in the child’s best interests.

30. In relation to the holidays, I propose that the child spend half of term holidays with her father.  While I hope the case resolves before Christmas, I will also make orders about Christmas time.  The parents can vary these arrangements if they wish but there will be a safety net. 

31. I am satisfied a communication book, if not being used now, should be used.  It is not to be used to criticise one another, or to make snide remarks about one another.  If the child is having drops put in her eye, tell the other parent this fact and supply the drops.  If she went to the doctor two days earlier because she has spots, tell the other parent of that.  The purpose of the book is not to record every activity undertaken or what she ate and drank.  How children cope after their parents’ separation is dependant on the parental alliance and it is vitally important the child’s parents co-operate. 

32. Orders will provide for the husband to have access to information about the child’s schooling, health and development.

33. I have not considered the appointment of an independent children's lawyer in this case.  Neither party has suggested such an appointment and at this stage I will not request VLA to provide one. 

1. I will grant liberty to apply for priority to Cronin J.  I understand such an application is made in writing and does not require another appearance.  I will refer the matter to the pool, so there is no loss of priority while the parties apply for priority. 

2. Orders will require each parent to keep the other advised of his or her residential address.  The husband will be at liberty to communicate with the child by telephone and correspondence.  I am not suggesting he write long letters to his daughter, but small children generally enjoy receiving a postcard or card every now and then.  The paternal grandparents can do that, too;  it is a way of keeping in contact.  I suggest – this is not an order – that the wife ask the child to do a drawing and send it to her grandparents.  It is important that everything possible is done to keep people who are important to the child, in her daily life.  Family members need to be a bit creative to achieve that. 

I certify that the preceding
35  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2009.

…………………………………………
Associate.