Percy and Heffernan - [2014] FCCA 1065

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERCY & HEFFERNAN

[2014] FCCA 1065

Catchwords:
FAMILY LAW – Parenting matters – Mother secretly left Australia with young child depriving Father of contact with child for almost one year – Mother now wants to relocate to far north coast of New South Wales from central west of that State – child’s relationship with Father still at early stage of development – Mother’s proposal to relocate very unformed and uninformed– best interests considerations to ensure child’s meaningful relationship with Father continues – Mother prevented from relocating to far north coast of NSW.

Legislation:

Family Law Act 1975, ss.60CA, 60B(1) & (2), 60CC(2)(a) & (b), 60CC(2A), 60CC(3)(a) – (i), 61DA, 65DAA

Cales v Cales (2010) 251 FLR 454; (2011) 44 Fam LR 376
Collu & Rinaldo [2010] FamCAFC 53
McCall v Clark (2009) 41 Fam LR 483
Maluka v Maluka (2012) 45 Fam LR 129
Mazorski v Albright (2008) 37 Fam LR 518
Moose & Moose (2008) FLC ¶93-375
Morgan v Miles (2008) 38 Fam LR 275
MRR v GR (2010) 240 CLR 461
Sayer v Radcliffe (2013) 48 Fam LR 298
Shaeffer v Jacobs (2011) FLC ¶93-468
Sigley v Evor (2011) 44 Fam LR 439

Applicant:

MS PERCY

Respondent:

MS HEFFERNAN

File Number:

CAC 1388 of 2010

Judgment of:

Judge Neville

Hearing dates:

28 & 29 November 2013

Date of Last Submission:

29 November 2013

Delivered at:

Wagga Wagga

Delivered on:

28 May 2014

REPRESENTATION

Counsel for the Applicant:

Ms J Godtschalk

Solicitors for the Applicant:

Walsh & Blair, Wagga Wagga

Counsel for the Respondent:

Mr R Harper

Solicitors for the Respondent:

Farrell Lusher, Wagga Wagga

ORDERS

The Mother is not permitted to move to the far north coast of New South Wales.
The Mother is permitted to move to (omitted) with the child.
Unless otherwise agreed in writing between the parties (or by Court order), the Mother is restrained from moving with the child outside a radius of 50 kilometres of the (omitted) area, save that, upon giving the Father written notice of no less than 21 days, the Mother is permitted to move, with the child, to an area that is within a radius of 50 kilometres of (omitted).
The parties have equal shared parental responsibility for X born (omitted) 2009 (the Child).
The Child live with the Mother.
The Child spend time with and communicate with the Father as follows:
(a) From the date of these Orders until the end of second term in 2014:
(i)each Tuesday from 4.00pm to 7.00pm;
(ii)each alternate weekend from 4.00pm Friday to 5.00pm Sunday;
(iii)by telephone each Monday and Thursday at any time prior to 7.15pm and at any other time upon the Child’s request, with the father to facilitate the call, the mother not interrupt the call and provide the Child with privacy for the duration of the call; during term 1 and term 2 holidays the father’s normal weekend be extended by 2 days until 4.00pm Tuesday (on the first or second weekend…

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 Heffernan

Details

AGLC: Percy and Heffernan [2014] FCCA 1065
Case: [2014] FCCA 1065
Decision Date: 28 May 2014

CaseChat Overview and Summary

This matter concerned parenting orders sought by the Mother and Father regarding their child, X. The dispute primarily revolved around the Mother's request to relocate with X to the far north coast of New South Wales, which the Father opposed. The case was heard by Judge Neville.

The central legal issue before the court was to determine what parenting orders were in the best interests of the child, X, pursuant to section 60CA of the *Family Law Act 1975* (Cth). This involved assessing the impact of the proposed relocation on X's relationship with both parents, particularly her relationship with the Father, and considering the practicalities of the Mother's financial situation and employment prospects in relation to her proposed living arrangements.

Judge Neville accepted the unreserved comments and observations of the Family Consultant, whose reports indicated that the Mother's relocation request did not prioritise X's need for a relationship with her Father and that a significant distance would negatively impact their relationship. The court also considered the Mother's financial difficulties in remaining within a specified area and her need to seek employment further afield. Ultimately, the court found that X's best interests were served by maintaining a meaningful relationship with both parents, supported by research indicating positive developmental outcomes for children with such relationships.

The court made orders that the Mother was not permitted to move to the far north coast of New South Wales but was permitted to move to an alternative, unspecified location with X. The Mother was restrained from moving with X outside a 50-kilometre radius of a specified area, with a provision for a permitted move within a 50-kilometre radius of another specified area upon 21 days' written notice to the Father. The parties were granted equal shared parental responsibility, with X to live with the Mother and spend time with and communicate with the Father according to a detailed schedule that evolved over several years. Further orders addressed practical matters such as changeovers, notification of illness, child restraints, international travel, communication with educational and medical providers, notification of changes in contact details, and prohibitions against denigrating the other parent or involving the child in disputes. The child was to be registered or referred to by the surname 'Percy'.

Orders

Orders of the court

The Mother is not permitted to move to the far north coast of New South Wales.

The Mother is permitted to move to (omitted) with the child.

Unless otherwise agreed in writing between the parties (or by Court order), the Mother is restrained from moving with the child outside a radius of 50 kilometres of the (omitted) area, save that, upon giving the Father written notice of no less than 21 days, the Mother is permitted to move, with the child, to an area that is within a radius of 50 kilometres of (omitted).

The parties have equal shared parental responsibility for X born (omitted) 2009 (the Child).

The Child live with the Mother.

The Child spend time with and communicate with the Father as follows:

(a) From the date of these Orders until the end of second term in 2014:

(i) each Tuesday from 4.00pm to 7.00pm;

(ii) each alternate weekend from 4.00pm Friday to 5.00pm Sunday;

(iii) by telephone each Monday and Thursday at any time prior to 7.15pm and at any other time upon the Child’s request, with the father to facilitate the call, the mother not interrupt the call and provide the Child with privacy for the duration of the call; during term 1 and term 2 holidays the father’s normal weekend be extended by 2 days until 4.00pm Tuesday (on the first or second weekend as is applicable);

(iv) from 4.00pm on 24 December 2013 until 5.00pm on 28 December 2013 (noting that the father will not spend time on his normal weekend);

(v)from 4.00pm on 10 January 2014 until 5.00pm on 14 January 2014 (i.e. extend normal weekend by 2 days);

(vi) at such other times as may be agreed;

(b) From the commencement of term 3 in 2014:

(i) each Tuesday from 4.00pm to 7.00pm;

(ii) each alternate weekend from 4.00pm Friday to the commencement of school on Monday;

(iv) during term 3 holidays the father’s normal weekend be extended by 4 days until 4.00pm Thursday (on the first or second weekend as is applicable);

(v)From 9.00am to 5.00pm on Father’s Day if the Child is not otherwise spending time with the Father pursuant to these Orders;

(vi) during Christmas school holidays each normal weekend will be extended by 3 days;

(vii) at such other times as may be agreed;

(i) each Tuesday from 4.00pm to 7.00pm (excluding school holidays);

(ii) each alternate weekend from 4.00pm Friday to the commencement of school on Monday;

(iv) for one half of the term school holidays commencing on the Friday of the father’s normal weekend the following Saturday in week 1 and Sunday in week 2;

(v)From 9.00am to 5.00pm on Father’s Day if the Child is not otherwise spending time with the Father pursuant to these Orders;

(vi) from 4.00pm on 24 December 2015 until 5.00pm on 28 December 2015 and each alternate year thereafter;

(vii) for one half of the school holidays as is agreed between the parties or failing agreement the father’s normal weekend to be extended to 7 days;

(viii) at such other times as may be agreed.

Changeover occur by the Mother delivering the Child to the Father’s home at the commencement of the Child’s time with the Father and the Father returning the Child to the Mother’s home at the conclusion of that time.

In the event that the Child suffers any illness or injury requiring medical attention or hospitalisation whilst in the care of either parent then the parent shall immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the Child has been taken.

The Father cause to be fitted in his vehicle a child restraint that complies with the Australian Standards and NSW law.

10.

The Mother and the Father be restrained from removing the Child from the Commonwealth of Australia without the express written consent of the other parent.

11.

Each parent authorise any pre-school or day care that the Child attends to inform the other parent of any information they require, copies of any progress report, examples of work, newsletters, notification of pre-school activities and inform the other parent of any emergency, remedial or correctional treatment required by the Child as soon as is practicable and that both parents be at liberty to attend any pre-school or day care event that parents are usually invited to.

12.

Each parent authorise any treating medical practitioner, dental practitioner, hospital or medical practice that the Child shall attend from time to time to provide to the other parent any information regarding the Child.

13.

If the Child falls ill such that one of the parents takes the Child to the doctor, that parent shall notify the other parent of the doctor’s contact details and medication prescribed and any treatment recommended. Each parent shall administer such medication when it falls due, adhere to any medical treatment plan to follow, any directions from the doctor for the Child. Each parent is then restrained from seeking alternate medical treatment unless the Child’s condition appears to deteriorate.

14.

The Mother will discuss with the Father any extracurricular activities that it is proposed that the Child participate in and, if the Father consents to the Child participating in that extracurricular activity, the Father shall ensure that the Child attends that activity.

15.

Each parent shall advise the other parent of any change of any landline or mobile telephone numbers within twenty-four (24) hours of that change.

16.

Each parent shall notify the other parent of any change of address within forty-eight (48) hours.

17.

Neither parent, their agents and servants shall denigrate the other parent to the Child, in front of the Child or within the Child’s hearing.

18.

The Mother be restrained from causing the Child to be registered or referred to by any surname other than ‘Percy’.

19.

The Mother and the Father be restrained from discussing the parenting proceedings with the Child or otherwise of involving the Child in any parenting dispute.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

And in the conclusion in her first report, the Family Consultant said (emphasis added):[25] The mother’s request to relocate indicates a continuation of decision-making that has not placed the child’s need for a relationship with her father as a priority. After an extended stay in (country omitted), the mother is requesting to move a great distance around one year later. Such a confused and varied opportunity for a relationship between the child and her father is likely to have a negative impact on the child. In the course of her second report (Exhibit A2), which is properly described as an ‘addendum’ to the first report, Ms M recorded a range of matters raised by the Mother as follows:[12] The mother stated that if she were required to remain in the location as stated by the father that she would find it extremely difficult to support herself and X financially. She reported that in order to obtain employment that would enable her to meet living expenses and additional child care costs she would need to seek employment in (omitted), which is outside the distance requested by the father as it is around 80km from (omitted). The mother stated that she had been able to travel to (omitted) for study due to her parents being available for childcare, and shared living expenses. She reported that in order to remain within the area specified by the father that she would have difficulty finding (omitted) work that would pay sufficiently to support herself and X. Then, by way of further evaluation, which was predicated upon both parents reporting that X had adapted well to the increased time with her Father, and that there had been no reports of anything untoward in relation to the time spent between Father and daughter, Ms M reported (emphasis added):[17] Children’s best interests are served when they have access to a meaningful relationship with both parents. Research has shown that children in such environments are more positively developed in academic, social and self-esteem areas of functioning. Reports from both parents indicate that X is currently living in an environment which fosters this development path. Such an environment includes regular time spent and contact with each parent to share significant and daily activities and routines. X is of an age where she can developmentally manage a distance relationship with a parent, so long as she has regular contact and time spent with the non-resident parent. Having had the benefit of observing and listening to the evidence of both parties, and in the light of Ms M’s oral evidence, I should be taken to accept unreservedly the comments and observations of the Family Consultant. I agree with her assessments of the parties as recorded in her reports. In the light of the evidence of the parties, and the comments already made in relation to it, I note the following in relation to the statutory scaffolding that must be negotiated in determining orders that are in X’s best interests, pursuant to s.60CA of the Family Law Act1975 (“the Act”).

Ratio Decidendi

Legal Principle Established

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