Percy and Dickens - [2016] FCCA 2244

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERCY & DICKENS

[2016] FCCA 2244

Catchwords:
FAMILY LAW – Parenting – Children aged 7 & 5 living with their father – mother proposing change of residence – where the father perpetrated family violence during the relationship – where the family report writer expressed concern about the father’s capacity to facilitate and encourage a close and continuing relationship between the mother and the children and where the evidence at trial validated that concern – order made for a change of residence – consideration of the time the children should spend with the father.

Legislation:

Family Law Act 1975, ss.60CC, 61DA

Applicant:

MS PERCY

Respondent:

MR DICKENS

File Number:

NCC 1166 of 2015

Judgment of:

Judge Terry

Hearing dates:

18 and 19 August 2016

Date of Last Submission:

9 September 2016

Delivered at:

Newcastle

Delivered on:

9 September 2016

REPRESENTATION

Counsel for the Applicant:

Ms Court

Solicitors for the Applicant:

Harpers Legal

Counsel for the Respondent:

Mr Wilkinson

Solicitors for the Respondent:

Winder Lawyers

ORDERS

Subject to Orders (2) & (3) the mother shall have sole parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2011.
The mother shall not without the consent of the father or an order of the court change the children’s surname or relocate with the children to a place which makes compliance with the spend time with orders impractical or arduous for the children.
Except in the event of an emergency the mother shall notify the father by text message of any decision which needs to be made about a major long term issue for the children and shall inform him of the outcome she prefers. If the father responds within 14 days the mother shall take his opinion into account in making her decision and the mother shall promptly notify the father of any decision she makes in the exercising of sole parental responsibility.
The children shall live with the mother.
The father must attend upon his treating psychologist and upon UNIFAM within 14 days and in such appointments:
(a)Provide the practitioner with a copy of these Orders;
(b)Discuss the change in living arrangements for the children and the impact upon him and the children.
The children spend time with the Father as agreed between the parties but failing agreement as follows:
(a)Commencing on 25 September 2016 the children shall spend time with the father from 10.00am to 4.00pm each Sunday, for a period of 2 months.
(b)Commencing on the first Friday following the conclusion of Order (6)(a) and continuing each alternate week thereafter, from the conclusion of pre-school/school Friday until the commencement of pre-school/’school the immediately following Monday.
(c)Commencing on the first Wednesday after the conclusion of Order (6)(a) and continuing each Wednesday thereafter:
(i)from the conclusion of school Wednesday until the commencement of school the immediately following Thursday for X;
(ii)until Y commences kindergarten in 2017, from 2:45pm Wednesday until 3:00pm the immediately following Thursday; and
(iii)once Y has commenced kindergarten in 2017,…

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 Percy and Dickens

Details

AGLC: Percy and Dickens [2016] FCCA 2244
Case: [2016] FCCA 2244
Decision Date: 9 September 2016

CaseChat Overview and Summary

In the matter of Percy and Dickens, heard before Judge Terry, the dispute concerned the parental responsibility and living arrangements for two children, X and Y. The court was tasked with determining the best interests of the children in light of the parents' differing circumstances and the children's needs.

The court was required to consider the likely effect of any changes in the children's circumstances, including the impact of separation from either parent or other significant persons. It also had to assess the practical difficulties and expenses associated with the children spending time with and communicating with each parent, and whether these would substantially affect the children's right to maintain regular contact with both. Furthermore, the court needed to evaluate the capacity of each parent to provide for the children's emotional and intellectual needs.

The court reasoned that the mother had maintained a close bond with Y, suggesting a smoother transition to her full-time care. While X exhibited signs of psychological stress, the mother's ability to manage his behaviour, coupled with his continued engagement in counselling and the continuity of his schooling, provided some confidence in his ability to settle into her care. The court found that the parents lived in reasonable proximity, mitigating concerns about practical difficulties in maintaining contact. The mother was assessed as a suitable parent with no issues regarding drugs, alcohol, or criminal convictions, possessing a good work history and demonstrating sensitivity to X's needs.

The court made orders granting the mother sole parental responsibility for the children, subject to specific conditions regarding surname changes and relocation. The children were ordered to live with the mother, with detailed provisions for the father's time with the children, including specific arrangements for weekends, weekdays, school holidays, birthdays, and telephone communication. The orders also included provisions for the father to engage with a psychologist and UNIFAM, and for both parents to refrain from denigrating each other or discussing court proceedings with the children. The parties were also ordered to remain engaged with UNIFAM for various programs, and the Independent Children's Lawyer was to explain the orders to the children before being discharged.

Orders

Orders of the court

Subject to Orders (2) & (3) the mother shall have sole parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2011.

The mother shall not without the consent of the father or an order of the court change the children’s surname or relocate with the children to a place which makes compliance with the spend time with orders impractical or arduous for the children.

Except in the event of an emergency the mother shall notify the father by text message of any decision which needs to be made about a major long term issue for the children and shall inform him of the outcome she prefers. If the father responds within 14 days the mother shall take his opinion into account in making her decision and the mother shall promptly notify the father of any decision she makes in the exercising of sole parental responsibility.

The children shall live with the mother.

The father must attend upon his treating psychologist and upon UNIFAM within 14 days and in such appointments:

(a) Provide the practitioner with a copy of these Orders;

(b) Discuss the change in living arrangements for the children and the impact upon him and the children.

The children spend time with the Father as agreed between the parties but failing agreement as follows:

(a) Commencing on 25 September 2016 the children shall spend time with the father from 10.00am to 4.00pm each Sunday, for a period of 2 months.

(b) Commencing on the first Friday following the conclusion of Order (6)(a) and continuing each alternate week thereafter, from the conclusion of pre-school/school Friday until the commencement of pre-school/’school the immediately following Monday.

(i) from the conclusion of school Wednesday until the commencement of school the immediately following Thursday for X;

(ii) until Y commences kindergarten in 2017, from 2:45pm Wednesday until 3:00pm the immediately following Thursday; and

(iii) once Y has commenced kindergarten in 2017, from the conclusion of school Wednesday until the commencement of school the immediately following Thursday.

Notwithstanding any other Order the children shall spend time with the parties as follows:

(a) During the New South Wales Christmas School Holiday periods commencing in odd numbered years as follows:

(iv) From the 18th December to 3.00pm on the 25th of December with the Mother;

(v) From 3.00pm on the 25th of December to 10.00am on the 1st of January with the Father;

(vi) From 10.00am on the 1st of January to 10.00am on the 8th of January with the Mother;

(vii) From 10.00am on the 8th of January to 10.00am on the 15th of January with the Father;

(viii) From 10.00am on the 15th of January to 10.00am on the 22nd of January with the Mother.

(b) During the New South Wales Christmas School Holiday periods commencing in even numbered years as follows:

(i) From the 18th of December to 3.00pm on the 25th of December with the Father;

(ii) From 3.00pm on the 25th of December to 10.00am on the 1st of January with the Mother;

(iii) From 10.00am on the 1st of January to 10.00am on the 8th of January with the Father;

(iv) From 10.00am on the 8th of January to 10.00am on the 15th of January with the Mother;

(v) From 10.00am on the 15th of January to 10.00am on the 22nd of January with the Father.

(c) Commencing with the Term 1 school holidays in 2017 exclusive of the Easter arrangements (Order 9) for half of each of the Term 1, 2 and 3 school holidays being the first half in odd numbered years and the second half in even numbered years.

If Mother’s Day or the mother’s birthday falls on a day when the children would not otherwise be with the mother the children will spend time with the mother from 9.00am to 5.00pm on those days.

If Father’s Day or the father’s birthday falls on a day when the children would not otherwise be with the father the children will spend time with the father from 9.00am to 5.00pm on those days.

10.

The children will spend time from 9.00am on Good Friday to 9.00am on Easter Sunday with the father and from 9.00am on Easter Sunday until 9.00am the day after Easter Monday with the mother in even numbered years and from 9.00am on Good Friday to 9.00am on Easter Sunday with the mother and from 9.00am on Easter Sunday to 9.00am on the day following Easter Monday with the father in odd numbered years.

11.

The children will spend time on the children’s birthdays as follows:

(a) if the birthday falls on a week day, from the conclusion of school that day until 6:00pm with the parent they would not ordinarily be with that day;

(b) if the birthday falls on a weekend day, from 10:00am to 3:00pm on that day with the parent the children would not ordinarily be with that day.

12.

For the purpose of facilitating the time that the children spend with the Father in accordance with Orders for times that commence or conclude at school or pre-school, changeover shall take place at school or pre-school, for all other time changeover shall take place at (omitted) Service Station.

13.

The father shall have telephone communication with the children as agreed between the mother and the father but failing agreement between 5.00pm and 6.00pm each Wednesday and Saturday when the children are not in his care with such communication to occur by the father placing a call to the mother’s mobile telephone number and the mother ensuring the children are made available to receive that call.

14.

Each party is restrained from denigrating the other parent and members of the other parent’s family in the presence or hearing of the children or from allowing the children to remain in the presence or hearing of any third party who does so.

15.

Each party is restrained from discussing details of these court proceedings with the children or showing them any documents associated with these proceedings and from questioning the children about who they want to live with.

16.

The parties are to keep one another advised of their current residential address and landline and/or mobile telephone numbers and advise the other within twenty four (24) hours of a change of such details.

17.

The parties shall ensure that X remains engaged with Unifam Counselling and Mediation for the purpose of participating in The Anchor Program as and when directed for as long as deemed necessary.

18.

If in the future Unifam Counselling and Mediation recommend that Y should participate in The Anchor Program, then the parties shall within seven (7) days of such a recommendation make contact with Unifam Counselling and Mediation for the purpose of enrolling Y in The Anchor Program and if deemed suitable to participate, thereafter take Y to all appointments and counselling sessions as directed and recommended by Unifam Counselling and Mediation for as long as deemed necessary.

19.

The parties shall remain engaged with Unifam Counselling and Mediation for the purpose of participating in the Keeping Contact Program as directed by Unifam Counselling and Mediation and for as long as deemed necessary.

20.

That the Independent Children’s Lawyer shall forthwith meet with the children or if she prefers arrange for the family report writer to meet with the children so that the Orders can be explained to the children.

21.

Following compliance with Order (19) the Independent Children’s Lawyer is discharged.

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 must consider the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from: (i) either of his or her parents; or (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 mother’s case was that Y would have little difficulty transitioning her to full time care because she has never lost a close and affectionate bond with the mother and the evidence suggests that this is correct. Y told the family report writer in March 2016 that she did not know why she saw more of the father than the mother. It was the mother’s case that when X was away from the father’s influence he often behaved in an affectionate way with her, but she also gave evidence that he had recently been hitting her. She gave detailed evidence in the witness box about an occasion when this occurred after X became angry about losing at a video game but in her affidavit she also said that X had been hitting her on other occasions. The evidence as a whole suggests that X is under severe psychological stress and how he will react if an order is made for change of residence is difficult to predict. If his residence is changed and he then spends time with the father and the father makes him feel bad about what has happened he may be very difficult for the mother to handle when he returns to her care. On the positive side the mother said that she did not intend to remove the children from (omitted) School so they will have continuity there. Also on the positive side X is engaged in counselling at Unifam which provides a resource to assist him to settle into the mother’s care and the mother gave calm and insightful evidence in the witness box about how she had handled the instance when X became upset about the video game, giving some confidence that the mother will be able to assist X to settle. I must consider 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. This is not an issue given that both parents live within reasonable proximity of each other in (omitted). I must consider the capacity of: (i) each of the children's parents; and (ii) any other person (including any grandparent or other relative of the children); to provide for the needs of the children including their emotional and intellectual needs. The mother does not have a problem with drugs and alcohol and does not have any criminal convictions. She has a good work history and is a good role model for her children. There is no reason to suppose that the mother would not be able to get the children to and from school and she has demonstrated considerable sensitivity throughout these proceedings to X’s needs in particular. Her description of how she dealt with the incident where X became upset over the video game suggested that she would be well able to handle appropriately any issues of discipline in her home.