Wiggs and Piercy (No.3) - [2019] FCCA 3688

FEDERAL CIRCUIT COURT OF AUSTRALIA

WIGGS & PIERCY (No.3)

[2019] FCCA 3688

Catchwords:
FAMILY LAW – PARENTING – Dispute about parenting arrangements for a child aged 7 who has been living with her father since early 2019 – mother proposing that the child return to live with her or alternatively live at least 50% of the time with her – father proposing that the child live with him and spend no time with the mother – where the father has an extensive criminal record and has served a term of imprisonment for dealing in methamphetamine – where the father is in a stable relationship and has not been charged with any offences for over three years – where the child has a good relationship with the father and is being well cared for by him and his partner – where there are significant concerns about the mother’s mental health and her aggressive and dysregulated behaviour – where the mother’s obsession that the child is at risk of sexual abuse from a wide variety of people impacts on her capacity to provide appropriately for the child’s day to day needs including her education and socialisation – where the mother’s relationship with the child is fractured and the child is fearful of her mother – where it is by no means assured that the father will have a trouble free future but where the court must focus on the need to protect the child from immediate risk of harm – child to continue to live with the father – where it is impossible to make an order for the child to spend time with the mother because the child would be at unacceptable risk of harm in her unsupervised care and professional supervision has been tried and has failed.

Legislation:

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

Cases cited:

Sedgley & Sedgley (1995) FLC 92-263
Wiggs & Piercy [2018] FCCA 3992

Applicant:

MS WIGGS

Respondent:

MR PIERCY

File Number:

NCC 2334 of 2018

Judgment of:

Judge Terry

Hearing dates:

3, 4 & 5 December 2019

Date of Last Submission:

5 December 2019

Delivered at:

Newcastle

Delivered on:

20 December 2019

REPRESENTATION

Solicitors for the Applicant:

Northern Suburbs Lawyers

Counsel for the Respondent:

Mr Boyd

Solicitors for the Respondent:

Joplin Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Ticehurst

Solicitors for the Independent Children’s Lawyer:

Harpers Legal

ORDERS

The father shall have sole parental responsibility for [X] born … 2012 (“[X]”).
[X] shall live with the father.
[X] shall spend no time with the mother.
Subject to Order (5) the mother is restrained from having any form of contact or communication with [X] including but not limited to:
(a)Attending any school/s that the [X] may from time to time attend;
(b)Attending any sporting or extra-curricular activities that [X] may from time to time attend;
(c)Contacting or communicating with [X] by any means including but not limited to telephone, text messages, email, post, in person or through any type of social media…

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.

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Details

Case: [2019] FCCA 3688
Decision Date: 20 December 2019

CaseChat Overview and Summary

In *Wiggs and Piercy (No.3)*, Judge Terry considered an application concerning the parental responsibility and living arrangements for a child, [X], born in 2012. The dispute centred on the child's welfare and the extent of contact permissible between the child and the mother.

The court was required to determine the primary considerations under section 60CC(3) of the *Family Law Act 1975*, specifically focusing on the views expressed by the child, [X], and the weight to be given to those views considering her maturity and level of understanding. The court also needed to assess the nature of the child's relationship with each parent and any other significant persons in her life.

Judge Terry's reasoning was heavily influenced by the consistent views expressed by [X] to both a psychologist, Ms F, and the family report writer. [X] repeatedly stated her desire to live with her father and expressed fear of her mother, indicating a belief that she would not be returned if she saw her. These views were considered in light of [X]'s apparent happiness and security in her father's care since January 2019. While acknowledging that a seven-year-old's views do not determine the matter, the court found them to be consistent with the child's needs and attachments. The mother's assertion of a good relationship and a desire for contact was contrasted with evidence suggesting the child's fear of her.

The court ordered that the father have sole parental responsibility for [X], that [X] live with the father, and that [X] spend no time with the mother. The mother was significantly restrained from any form of contact or communication with [X], with limited exceptions for forwarding letters, cards, and gifts on four occasions annually, subject to the father's inspection and discretion. The father was authorised to apply for and retain an Australian Passport for [X] without the mother's consent and was at liberty to travel internationally with [X] notwithstanding the mother's lack of consent.

Orders

Orders of the court

The father shall have sole parental responsibility for [X] born … 2012 (“[X]”).

[X] shall live with the father.

[X] shall spend no time with the mother.

Subject to Order (5) the mother is restrained from having any form of contact or communication with [X] including but not limited to:

(a) Attending any school/s that the [X] may from time to time attend;

(b) Attending any sporting or extra-curricular activities that [X] may from time to time attend;

(c) Contacting or communicating with [X] by any means including but not limited to telephone, text messages, email, post, in person or through any type of social media or phone application; and

(d) From engaging, soliciting or using any other person to contact or communicate with [X] by any means, including but not limited to telephone, text messages, email, post, in person or through any type of social media or phone application.

The mother is permitted to forward to [X] letters, cards and gifts/parcels on four occasions each year including for her birthday, Christmas and Easter. The father is permitted to inspect the letters, cards and gifts/parcels and is to hand to [X] any such letters, cards and/or gifts/parcels from the mother addressed to [X] unless he forms the view because of the content of the letters cards or gifts/parcels that it would not be in the child’s best interests to do so.

The father shall within seven days of the date of these orders inform the mother of an address to which the letters, cards and gifts/parcels may be sent and shall advise her within seven days of any change to that address.

The father shall promptly advise the mother should the child be involved in a serious accident or be diagnosed as suffering from a serious medical condition but the mother shall not be permitted to visit the child in hospital without the father’s written consent.

The mother shall keep the father advised of a mobile telephone number and email address for the purposes of the father communicating with her pursuant to Orders (6) and (7).

Pursuant to Section 11(1) (b) of the Australian Passport Act 2005 the father shall be authorised to apply for and retain an Australian Passport for the child [X] born … 2012 without the signature, consent or approval of the mother.

10.

Pursuant to Section 65Y of the Family Law Act 1975 the father shall be at liberty to travel internationally with [X] notwithstanding the consent of the mother having not been obtained.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

S.60CC (3) contains a number of additional considerations. Findings about these will inform the findings I make about the primary considerations and as I frequently do I intend to start by making findings about the additional considerations. The first of the additional considerations is any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views. After [X] came into the father’s care on 16 January 2019 he took her to see Ms F, a psychologist, for the purpose of providing her with some support. Ms F’s records were produced in answer to subpoena and the tenor of the note she made on 26 January 2019 was that [X] was happy in her new family setting. Following a session with [X] on 16 April 2019 Ms F wrote this:When I asked [X] about visiting her mum she said she didn’t want to go because “she will not bring me back”, I prompted “has she not brought you back before” and she said “yes”. …[X] said she wants to stay with Dad and Ms CMs C, she is happy.[13][13] Tender Bundle page 296 The family report writer interviewed [X] in April 2019 and she said as follows: [X] stated that she wanted the Judge to know that she wanted to live with her father and that she doesn’t want to see her mother. She stated that she is scared that if she sees her mother she will not be returned. [X] also stated that she wanted the Judge to know that she is unsafe with her ‘Nan A’ and shouldn’t see her. [X] had a session with Ms F on 2 July 2019 following the contact centre visit on 28 June 2019 and Ms F’ notes include the following:I asked if she saw her mum last week and she said yes. She said I played with another nice family at the play centre. I went outside when the police came. Mum made Ms U [a contact centre worker] cry. I asked her if she wanted to see mum again and she said no, mum makes me scared.[14][14] Tender Bundle page 403 Neither Ms F nor the family report writer were challenged about the accuracy of their reports about the things [X] had said. The family report writer said as follows about the views [X] expressed to her: The views expressed by [X] are consistent with the needs and attachments of the child. [X] appears to recognise that her life has become far more settled and secure since commencing living with her father. I am satisfied that [X]’s current views are that she wants to live with her father and does not want to spend time with her mother. However she is only 7 and her views do not determine the matter. I must consider the nature of the child’s relationship with each of her parents and any other person including a grandparent of the child. The mother said that prior to 16 January 2019 she was [X]’s primary and indeed mostly sole carer. She did not accept that [X] had a poor relationship with her and said that on 14 June 2019 [X] wanted to leave the contact centre with her. The father maintained that [X] did not have a good relationship with her mother and was fearful of her and there are a number of pieces of evidence which taken together suggest that this is so.