Nicher and Nicher

[2008] FamCA 1158

FAMILY COURT OF AUSTRALIA

NICHER & NICHER [2008] FamCA 1158

FAMILY LAW – CHILDREN – application for interim mandatory injunction to relocate child’s residence – motive for change of residence – school holiday time – family report

Family Law Act 1975 (Cth)

HUSBAND: Mr Nicher

WIFE: Ms Nicher

FILE NUMBER: MLC 10780 of 2008

DATE DELIVERED: 4 December 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 4 December, 2008

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms M.L. Smallwood

SOLICITOR FOR THE HUSBAND: Ryan, Mackey & McClelland

COUNSEL FOR THE WIFE: Mr J.M. Salamanca

SOLICITOR FOR THE WIFE: Lampe Family Lawyers

Orders

1. That until further order the child of the marriage … born … January, 2002 live with the wife. 

2. That until further order the husband have the following time with the child:

   (a)from 4:00 pm. this day until 5:30 pm. on Saturday 6 December, 2008;

   (b)from 5:00 pm. Friday 12 December, 2008 until 5:30 pm. on 14 December, 2008;

   (c)from 9:00 am. on 19 December, 2008 until 4:00 pm. on 24 December, 2008;

   (d)from 9:00 am. on 28 December, 2008 until 4:00 pm. on 4 January, 2009;  and

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

3. That the changeover at 4:00 pm. this day be at a place agreed by the parties.

4. That all other changeovers be at a place to be agreed in T and, failing agreement, at McDonald’s in T, or such other place as the parties agreed.

5. That until further order the father be at liberty to attend all events, activities and functions at the P Primary School which are routinely attended by parents, and without limiting the generality of this order, any event or function which occurs in December 2008, and a sealed copy of this order be served, as soon as practicable, by the husband on the principal of the P Primary School.

6. That a family report be prepared by a psychologist agreed to between the parties and the parties do all things reasonably necessary to facilitate the preparation of that report, including attending as requested by the psychologist and ensuring the child’s attendance.

7. That the costs of the family report be borne by the husband at first instance but be reserved to the trial judge. 

8. That the further hearing of all extant applications be adjourned to 2:15 pm. on 20 January, 2009 before the Honourable Justice Brown. 

9. That on or before 16 January, 2009 each of the parties file and serve :

   (a)an updated affidavit, if desired;  and

   (b)all other affidavits on which they intend to rely.

10. 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.

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

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

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 10780 of 2008

MR NICHER

Husband

And

MS NICHER

Wife

REASONS FOR JUDGMENT

1. This is the first return date of this case before the court, the initiating application having been filed on 27 November 2008 and times having been abridged to bring it on swiftly. 

2. The parties married in March 1998 and separated in March 2008.  It is common ground that, for a significant part of that decade, there were tensions in the marriage.  The nature and extent of those are in dispute. 

3. The parties have a daughter, who was born in January 2002;  she will thus turn seven in January 2009.

4. The parties built a home in D, in regional Victoria, and took possession of that home in January 2008.  The child started prep at Y Primary School this year.  Within a couple of months, the parties had separated.  The wife remained in the home.

5. The wife’s evidence is that early in the marriage she was the target of physical violence from the husband;  she said he struck her in the face, an area of particular vulnerability as a result of facial injuries received in a car accident back in 1993.  That particular vulnerability could, of course be relevant but, vulnerable or not, were the court to find such conduct occurred, it would be a significant finding.

6. It is the wife’s evidence that, from that time, she lived in some fear of the husband and that after separation, his abuse and aggression increased.  She deposed that some time in November 2008 she formed a view that she wanted to move from the home in D to live at the home of her uncle in P, as her uncle was prepared to provide rent-free accommodation for her and the child.  Her evidence is of consulting a solicitor in the week leading up to the weekend of 15 and 16 November and of instructing them to make contact with the father.  I can say nothing of the detail to be advised to the husband, save that it included a proposal to move to P, or advice she was moving to P. 

7. The wife deposed to a significant altercation on 16 November.  She spells out an account in detail.  She deposes to calling the police and of advice given to her by police.  Interestingly, it appears that advice did not include a recommendation she make application for an intervention order.  No doubt the police records will be produced in due course.  The wife’s account is of threatening and aggressive behaviour directed at her.  There is a significant dispute about events on the 16th.

8. By 16 November, the husband had learnt from a third party, not a solicitor, of the wife's intention to move the child’s residence;  it is clear that gave rise to their argument on that day.  His evidence is of saying that the wife could go, but she was not taking the child.  He does not dispute that he told her he was taking back the car she had used since separation, apparently believing this might provide a practical deterrent to her move. 

9. The husband's solicitors sent the wife a letter on Monday, 17 November, making clear his firm opposition to any move.  That same day, her solicitors sent a letter to his solicitors (it is annexed to his affidavit) setting out the reasons for the wife’s departure. The solicitors advised:

   Given that our client is unable to maintain the mortgage payments and would struggle financially with respect to payment of rent on current commercial rates, she proposes that she move with [the child] to [P] to reside with her uncle.  He has offered rent-free accommodation.  Our client has already investigated the local school and is confident she will be able to obtain employment in [P].  The school is close to her uncle's residence.  She does not take this decision lightly but it seems to her that this is the only viable option for her financially.

10. Given the timing of that letter, weight is placed by counsel for the husband on the fact that a financial motive is the only one advanced. No mention was made, for example, of an alleged need or wish to flee a violent man. A financial motive figures very low in the argument advanced by the wife before me today; far more weight is placed on her need to flee an abusive relationship.

11. The mother's uncle has deposed to conversations he had with the wife after separation, in which she told him the father was abusive;  he has deposed to his perception that his niece was distressed and frightened.  His evidence is that it was on 16 November he offered her rent-free accommodation in P.  The wife’s counsel correctly says that the uncle does not say that was the first time he made that offer; it is possible that, consistently with the wife's account, the offer was made on earlier occasions, as well.  The wife’s evidence is that it was discussed much earlier than the Monday following the incident on the Sunday. 

12. It appears that the wife took the child from the family home, stayed at a friend's home on the Monday night and then left for P on the Tuesday.

13. The law relating to children rests on two pillars.  The first is the importance of maintaining a meaningful relationship between a child and both of his or her parents, and other people of importance to the child.  The second is the importance of protecting children from physical and emotional abuse. 

14. Until a court orders otherwise, parents have shared parental responsibility for their children.  They should consult about decisions relating to their child’s long term care and development.  One such decision is a decision about where a child lives, particularly if that decision is likely to impact on the amount of time the other parent can have with a child.  It might be unrealistic, in a case such as this, to have expected the parents to agree.  An argument could be advanced that, until a court makes an order for equal shared parental responsibility, parental responsibility can be exercised jointly or severally.  But on any basis, and regardless of the circumstances, there should have been discussion between the parties prior to the mother's unilateral departure.

15. I make it clear the court will not minimise the ramifications of violence, if found to have occurred; it can be a very important factor when determining cases involving the care of children.  Nevertheless, the contents of the detailed letter from the wife’s solicitors, the fact no intervention order was applied for, the circumstances of the wife’s departure and, indeed, the nature of the allegations at this stage - and I am not referring to the allegation of a physical assault many years ago – suggest the wife behaved in a cavalier way in so swiftly and unilaterally changing the child’s residence.

16. There is a dispute as to whether it is four hours plus, or three and a half hours, between the family home in D and the uncle’s home in P.  On any basis, it is a long drive on a Friday or Sunday afternoon, because a lot of people drive to holiday homes in the area.  A child who has some developmental delay may be particularly vulnerable to the stress of travel;  I say "may be" because the court has little evidence which would allow it to make any findings about how the child's personal circumstances, and developmental delay, might impact on her capacity to cope with travel, a change of school, and less opportunity, for example, to spend time with paternal grandparents.

17. The husband's parents are separated.  His mother lives in E in the northern suburbs, his father lives at C in Melbourne’s north.  They have accompanied him to court today.  While the wife asserts that they hate each other and will not even be in the same room together, she does not deny that both have had some contact with the child in D, including taking her to swimming and providing some assistance with her care when the wife was working in the family business.  The extent of that is in dispute;  it is yet another matter the court will have to determine.

18. There is a dispute as to the time the husband has spent with the child since separation. It should be said that, in his own account, he spoke of alternate weekend contact, and the wife's evidence is that she proposes continuing alternate weekend contact.  He, too, has sought final orders for alternate weekend contact, as well as interim orders;  he does also seek to spend time with the child on special days and during holidays. 

19. The wife's submission is that, in the interim, the child should stay at the new school in P;  the husband should have weekend contact up to the Christmas holidays; the parents should then share the Christmas holidays;  and the matter should come back to court around 20 January, 2009 having obtained a family report.

20. While the husband does not deny the usefulness of a family report, it is his submission that the wife ought to be forced to relocate the child’s residence forthwith.  Through her counsel, the wife has said that if she is ordered to return, she would not propose returning to the former matrimonial home in D but would move to live with her cousin, at S which, she says, is 25 minutes from D.  I am a little sceptical of that time frame;  even using the ring road, I doubt the distance between D and S is much less than 50 kilometres.  No doubt that can be considered in due course. 

21. I make it clear that if the court were to order that the child be relocated to D, I would consider orders providing, until further order, for the wife to have sole use and occupation of the former matrimonial home;  for the husband to be restrained from attending at that home, save with the consent of the wife;  for the husband to make all mortgage payments as and when they fall due;  for the wife to have the use and possession of the car now in her possession and for the husband to do all things necessary to ensure the payment of insurance and registration on that car.  The husband has gone back into possession of the home simply because it is empty, as a result of the wife's departure. 

22. I propose to adjourn this case back before me in January.  I will not order the child to return to her old school at this time but I make it very clear that there should be no assumption that she will be attending school in P next year.  I make this order with some apprehension.  Even were the court to require the child’s return, I would not have ordered a return to the old school for the balance of this year, given the proximity of the end of term, but the question of her residence and schooling in 2009 is still open. 

23. Orders will provide for the husband to attend all events and functions at the school in P which are routinely attended by parents.  That includes end-of-year concerts or any other activities in December.  He can make inquiries about that with the school and a copy of the order will be served on the principal of P Primary School.

24. I will order that the parties attend upon a psychologist for the preparation of a family report, that person to be agreed between the parties.  The father will pay the costs of the family report at first instance, but the question of ultimate responsibility will be reserved to the trial judge.  It may be a matter that needs to be taken into account in the property proceedings between the parties.

25. In terms of Christmas, I am not satisfied that a three-week block period with the husband is appropriate.  It is common ground that the husband is a builder and those working in the building trade often close down in the period around Christmas.  If that is the case, that would maximise the amount of time he is able to spend with the child.  I will order that she be with the husband from 9:00 am. on 19 December, which I understand is the first day of the school holidays, until 4:00 pm. on Christmas Eve.  I place weight on his own evidence that he does not want the child travelling on Christmas Day.

26. The child will then have a few days at home with her mother.  The evidence is not tested, but it is unlikely she has spent lengthy periods away from her mother.  The child will then return to the husband on 28 December at 9:00 am. - this is posited on transfers at T or such other place as the parties agree - and will remain with him from the 28th, which is a Sunday, through to the following Sunday which is 4 January.  She will otherwise be with the wife during the school holidays.  The case will be listed before me at 2:15 pm. on 20 January, 2009.  I fix that date, based on Mr Salamanca's assurances that a psychologist can prepare a family report by that date. 

27. I propose that the child spends both of the weekends before the school holidays start with the husband.  He will have time with the child from 5 to 7 December, 2008 and from 12 to 14 December, 2008.  Changeovers will be at T.

28. I will allow each party to file and serve an updated affidavit, if desired (it is not mandatory) and such other affidavits as they intend to rely on by 16 January 2009. 

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

Dated the           day of            2008.

…………………………………………
Associate.