Weekes and Pitcher (No.2) - [2016] FCCA 2486

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEEKES & PITCHER (No.2)

[2016] FCCA 2486

Catchwords:
FAMILY LAW – Parenting – child aged 4 – where the father committed serious acts of family violence in the presence of the child at or about the time of separation – where the child has been spending two nights a week with the father for almost two years and has a good relationship with him and where the father is able to provide satisfactory day to day care for the child - where there has been no further family violence – where the mother now seeks a reduction in the father’s time with the child including removal of overnight time – where the father asserts that this cannot be justified as the court cannot find that the child is at unacceptable risk of harm in his care – implications for the father’s time of the fact that he makes very limited admissions about the violence, has not done a perpetrators course and denies to the child that he hurt the mother – whether the child’s surname should be changed to a hyphenated surname incorporating the name of both parents.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Cases cited:

Flanagan & Handcock (2000) FLC 93-074

Ryan & Burnett [2008] FamCAFC 72

Applicant:

MR WEEKES

Respondent:

MS PITCHER

File Number:

PAC 5871 of 2014

Judgment of:

Judge Terry

Hearing date:

7 and 8 July 2016

Date of Last Submission:

8 July 2016

Delivered at:

Newcastle

Delivered on:

5 October 2016

REPRESENTATION

Counsel for the Applicant:

Ms Mahoney

Solicitors for the Applicant:

Genlaw Pty Ltd

Counsel for the Respondent:

Mr Gorton

Solicitors for the Respondent:

Legal Aid NSW Gosford

ORDERS

All previous orders are discharged.
For all purposes the child X WEEKES born (omitted) 2012 shall be known henceforth as X PITCHER-WEEKES.
The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the child X WEEKES born (omitted) 2012 to X PITCHER-WEEKES .
The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the Application of the mother referred to in Order (3) above is to do all acts and things to register the change of name of X WEEKES born (omitted) 2012 to X PITCHER-WEEKES pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the father has not been obtained.
The child shall live with the mother.
Subject to Orders (7) and (8) the mother shall have sole parental responsibility for the child.
Unless the father consents in writing or the court otherwise orders the mother is restrained from further changing the child’s surname or from relocating with the child to a place which makes it substantially more difficult for the child to spend time with the father.
If a decision is required about a major long term issue in respect of the child the…

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 Weekes and Pitcher (No.2)

Details

AGLC: Weekes and Pitcher (No.2) [2016] FCCA 2486
Case: [2016] FCCA 2486
Decision Date: 5 October 2016

CaseChat Overview and Summary

This case concerned an application before Judge Terry regarding parenting arrangements for a child, X Weekes. The dispute involved the parents' differing views on the child's surname and the extent and nature of the father's time with the child, particularly in light of past family violence findings.

The court was required to determine several legal issues, including whether to authorise a change of the child's surname to include the father's surname, despite his lack of consent. Additionally, the court had to consider the child's best interests in relation to living arrangements, parental responsibility, and the specific time the child would spend with each parent, taking into account the impact of family violence and the child's attachments. The court also had to address communication protocols between the parents and the father's obligations regarding the child's address.

In reaching its decision, the court considered various factors under section 60CC of the Family Law Act 1975 (Cth), including the child's views (though none were evident), the nature of the child's relationships with each parent and other significant persons, and the extent to which each parent had taken opportunities to spend time with or communicate with the child. The court noted the child's primary attachment appeared to be to the mother, but she also showed affection towards the father. The court also weighed the potential impact of any changes on the child, particularly in relation to the father's proposed increase in overnight stays, considering it in light of family violence findings.

The court ordered that the child be known as X Pitcher-Weekes, authorising the mother to change the child's name on the birth register notwithstanding the father's lack of consent. The child was to live with the mother, who was granted sole parental responsibility, subject to certain conditions regarding major long-term issues and the father's involvement. Detailed orders were made for the child to spend time with the father, including specific arrangements for weekends, weekdays, school holidays, and significant dates like Christmas and birthdays, with provisions for communication and information sharing between the parents.

Orders

Orders of the court

All previous orders are discharged.

For all purposes the child X WEEKES born (omitted) 2012 shall be known henceforth as X PITCHER-WEEKES.

The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the child X WEEKES born (omitted) 2012 to X PITCHER-WEEKES .

The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the Application of the mother referred to in Order (3) above is to do all acts and things to register the change of name of X WEEKES born (omitted) 2012 to X PITCHER-WEEKES pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the father has not been obtained.

The child shall live with the mother.

Subject to Orders (7) and (8) the mother shall have sole parental responsibility for the child.

Unless the father consents in writing or the court otherwise orders the mother is restrained from further changing the child’s surname or from relocating with the child to a place which makes it substantially more difficult for the child to spend time with the father.

If a decision is required about a major long term issue in respect of the child the mother shall except in the event of an emergency inform the father in writing of matters about which a decision required and about her proposal and the reasons for her proposal and shall give the father fourteen days to put forward his proposal and the reasons for his proposal. The mother shall take the father’s proposal into account in coming to her decision and shall notify the father in writing within seven days of the decision she has made.

Until the child commences school in 2018 she shall spend time with the father as follows:

(a) Each alternate weekend commencing on 15 October 2016 from 9.00am on Saturday until 5.00pm on Sunday.

(b) Each alternate Wednesday commencing on 19 October 2016 from 3.00pm to 6.00pm.

10.

Upon the child commencing school in 2018 she shall spend time with the father as follows:

(a) Each alternate week during school terms from 5.00pm on Friday until 5.00pm on Sunday.

(b) On one afternoon each alternate week during school terms from 3.00pm until 7.00pm and failing agreement on Wednesday.

(i) for the first half of the school holidays in 2018 and each alternate year thereafter from the conclusion of school or 3.00pm on the last day of Term until 12.00 noon on the following Saturday;

(ii) for the second half of the school holidays in 2019 and each alternate year thereafter from 12.00 noon on second Saturday of the holidays until 5.00pm on the last Sunday of the holidays;

(d) Notwithstanding any other Order during the Christmas school holidays:

(i) from December 2019:

A. for 7 nights commencing at 9.00am on 2 January until 5.00pm on 9 January; and

B. for 7 nights commencing at 9.00am on 16 January until 5.00pm on 23 January.

(ii) from December 2020 and each Christmas school holiday period thereafter:

A. for 14 nights commencing at 9.00am on 2 January until 5.00pm on 16 January or as otherwise agreed between the parties.

(e) At such additional or alternate times as may be agreed between the parties.

11.

Notwithstanding any other order the child shall spend the Mother’s Day weekend with the mother and the Father’s Day weekend with the father and if the child is due to spend time with the other parent on the weekend in question the weekends shall be swapped so that the child spends the Mother’s Day weekend or the Father’s Day weekend as the case may be with mother or father and the following weekend with the other parent.

12.

Notwithstanding any other order:

(a) In each even numbered year the child shall spend time with her mother from 2.00pm on Christmas Eve until 2.00pm on Christmas Day; and with her father from 2.00pm on Christmas Day until 5.00pm on Boxing Day; and

(b) In each odd numbered year the child shall spend time with her father from 2.00pm on Christmas Eve until 2.00pm on Christmas Day; and with her mother from 2.00pm on Christmas Day until 5.00pm on Boxing Day.

13.

Notwithstanding any other order the child shall spend time on the child’s birthday with each parent as follows:

(a) With the parent with whom she is not spending time with pursuant to these Orders, for 3 hours at times agreed and failing agreement from 3.00pm until 6.00pm;

(b) At all other times on the child’s birthday the time is to be spent with the parent with whom the child would usually be spending time with pursuant to these Orders.

14.

Unless occurring at the child’s school all changeovers shall be implemented by the mother delivering the child to father’s residence at the commencement of their time and the father returning the child to the maternal grandmother’s residence at the conclusion of their time.

15.

The parents shall communicate about the child and her arrangements through a Communication Book which is passed between the parents at changeovers but is only to be used as a neutral message book about non-urgent issues about the child’s arrangements, about any sicknesses the child may have suffered, about any medication or prescription medication that she is required to take, or about any upcoming events related to the child to which both parents are invited to attend, and about any other subject which relates to the child’s wellbeing and arrangements.

16.

The parents shall communicate with one another by way of SMS text message in relation to any issues about the child which require urgent notification including any accident or other emergency, and including in the event that one party will be or has been unavoidably delayed for changeover.

17.

The parties shall keep the other informed of their current mobile telephone number and advise one another of any change to that number within 24 hours.

18.

The father shall keep the mother informed of his residential address and advise her of any change to that address within 8 hours of the child coming into his care in accordance with these Orders or within 48 hours when the child is not in his care, whichever comes first.

19.

Each party shall ensure that the other party is kept informed of:

(a) Any serious medical issues or illnesses suffered by the child;

(b) Any medication that has been prescribed for the child which either party would be required to administer to the child whilst she is in his or her care; and

20.

The parties shall both be entitled to attend extra-curricular events involving the child, whether those events fall on a week day or a weekend including:

(a) Sporting activities and fixtures;

(b) Extra-curricular activities that allow for parental attendance, including but not limited to cultural and religious activities;

(c) School functions and events that allow for parental attendance including but not limited to concerts, assemblies, sports days, canteen duties and social functions but not including parent/teacher interviews; and

(d) The parent who would usually have the child on their care on the day of such activities will be responsible for her day to day care at such event and for the child’s transportation to and from that event.

21.

Both parents shall be entitled to obtain from the child’s school copies of newsletters, reports, order forms for school photographs and other information normally provided to parents and both parents shall be entitled to attend events at the child’s school normally attended by parents.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I must consider the extent to which each parent has taken or failed to have taken an opportunity to spend time with or communicate with the child or to make decisions about the child. Each parent has been keen since separation to be involved in spending time with X and making decisions for her. I must consider the issue of financial support for the child but that was not addressed in the parties’ affidavits. I must consider the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of her parents or any other child or other person including any grandparent or other relative of the child with whom she has been living. The father proposed that X commence spending four nights a fortnight with him in blocks of 3 nights in one week and one in the other immediately and that as of (omitted) 2017 when she was 4 years and three months old the time be five nights per fortnight in blocks of 4 nights in one week and one in the other. The reasoning behind this proposal was that the father did not want to lose any time with X but felt that it was preferable that she be able to spend a whole weekend with each party. The mother’s counsel submitted that this was too much in one block and was not age-appropriate. On the state of the evidence it is not open to me to conclude that X would not cope with three consecutive overnights with the father simply because of her age. Four consecutive nights from the beginning of 2017 does seem a stretch but I am not bound by the father’s proposal and could defer the commencement of more extensive time until X was older. My primary concern about X spending three or four nights in a block with the father is whether this is appropriate in light of the family violence findings and I will need to consider this later in the judgment. The mother also proposed a significant change namely that X cease spending overnight time with the father and that overnight time not resume until she commenced school in January 2018. The mother said that this should happen because of the father’s commission of acts of violence and his denial of responsibility for violence. It was her case that X was at risk of exposure to family violence in the father’s care in the future. X has a good relationship with her father but she also has a good relationship with her mother, her sister Y and Mr S and I consider it more likely than not that she would take a reduction in the time she spent with her father in her stride. However such a reduction in time would limit the things the father could do with her and it would mean that he would not be involved in caring tasks such as making a meal for her in the evening, putting her to bed and reading her a story, or getting her breakfast in the morning. He would have less time to engage her in some of the activities they do at present and it is possible that as a result of this he would become a less significant person in X’s life. I will have to consider after making findings about all of the s.60CC (2) and (3) matters whether on balance a change which involves a reduction in X’s time with the father is a change which would be in her best interests but in my view there is no doubt that it would change the nature of her relationship with him.

Ratio Decidendi

Legal Principle Established

I intend to commence by making findings about the additional considerations. The first of the additional considerations is the views of the child and the weight which can be given to the views but there is no evidence that X has a view about parenting arrangements. Both parents claimed that there were times where X said that she did not want to go to the other parent prior to changeover but this is not evidence that X has any view about where she should live. I must consider the nature of the relationship of the child with each of her parents and any other person. The family report writer provided independent evidence on this topic. She commented that X was appropriately affectionate to both the mother and the father, did not show any undue anxiety when separated from her parents to be assessed individually and appeared to be appropriately attached to both her mother and her father. She said that on observation the child’s primary attachment appeared to be to her mother. She did not explain what underlying facts led her to this conclusion but X was primarily cared for by her mother until not long prior to the parties’ separation when she was approaching two years old and she has lived primarily with her mother since the interim orders were made in December 2014. The mother is a competent and loving parent and in these circumstances it is reasonable to suppose that X’s primary attachment is to her and in any event the father conceded during cross-examination that the mother was X’s primary attachment figure. It is important to note however that the report writer observed X to be attached to both parents and said that she showed obvious affection towards the father. X has a good relationship with her sister Y. The family report writer observed her playing cooperatively with Y. The report writer observed X to be happy in the company of Mr S. The father made no complaint about Mr S, and it is reasonable to suppose that X has a good relationship with him. He has been living with the mother for about 18 months. The report writer observed that X interacted well with Mrs Weekes the paternal great grandmother and the maternal grandmother Mrs Pitcher gave unchallenged evidence that X had a close relationship with her. I must consider the extent to which each parent has taken or failed to have taken an opportunity to spend time with or communicate with the child or to make decisions about the child. Each parent has been keen since separation to be involved in spending time with X and making decisions for her. I must consider the issue of financial support for the child but that was not addressed in the parties’ affidavits. I must consider the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of her parents or any other child or other person including any grandparent or other relative of the child with whom she has been living. The father proposed that X commence spending four nights a fortnight with him in blocks of 3 nights in one week and one in the other immediately and that as of (omitted) 2017 when she was 4 years and three months old the time be five nights per fortnight in blocks of 4 nights in one week and one in the other.