FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Baier & Pitter [2024] FedCFamC2F 586
File number(s): BRC 16352 of 2022 Judgment of: JUDGE COPE Date of judgment: 14 May 2024 Catchwords: FAMILY LAW – Parenting – Where father submits the court has no jurisdiction to determine child related proceedings – Where the father uses sovereign citizen terminology – Where father previously absconded with the children and regards the children as his property – Where father failed to engage with family report – Where there are mental health issues - Mother have sole parental responsibility – Children to live with Mother – Father to spend supervised time with children – Father restrained from removing children from Mother’s care – Recovery order to issue and lie on file Legislation: Commonwealth Constitution Act
Admiralty Act 1988
Corporations Act 2001 (Cth)
Family Law Act 1975 (Cth) Part VII, ss 60B, 60CA, 60CC, 60CG, 61DA, 65AA, 65DAA, 67U, 67V, 68B
Cestui Que Vie Act 1666
Convention on the Rights of the Child
Cases cited: Deiter & Deiter [2011] FamCAFC 82
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520
N v S (1996) FLC 92-655
Napier & Hepburn (2006) FLC 93-303; [2006] FamCA 1316
Nikolakis & Nikolakis [2010] FamCAFC 52
Re Magistrate M M Flynn; ex parte McJannett (2013) WASC 372
Division: Division 2 Family Law Number of paragraphs: 180 Date of last submission/s: 5 April 2024 Date of hearing: 4 & 5 April 2024 Place: Cairns Counsel for the Applicant: Mrs Bassano Solicitor for the Applicant: MK Family Law The Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Lawrence Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 16352 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BAIER
Applicant
AND: MR PITTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE COPE
DATE OF ORDER:
14 MAY 2024
THE COURT ORDERS THAT:
1.The mother will have sole parental responsibility for major long term parenting issues for X born in 2018 and Y both born in 2018 (“the children”) except for decisions regarding long term medical decisions where Order 2 applies.
2.In the exercise of Order 1 above for the purposes of long-term medical decisions:
(a)the mother will consult with the father, in writing, not less than seven (7) days prior to any decision being made and seek the father’s input into the decision regarding medical matters or changing the children’s surname.
(b)The father will respond once, in writing, to the mother’s proposed decision within seven (7) days of receiving such information.
(c)The mother will consider the father’s response to any decision proposed; and
(d)The mother will advise the father, in writing, not less than seven (7) days after any major, long-term decision has been made for the children.
3.The mother will…
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- Baier & Pitter [2024] FedCFamC2F 586
- Case
- [2024] FedCFamC2F 586
- Decision Date
CaseChat Overview and Summary
The court had to decide whether to grant sole parental responsibility to the mother, establish living arrangements, set conditions for supervised contact, and determine the appropriate response to any removal of the children from the mother's care. The court also needed to consider the obligations and consequences of the orders as required by the Family Law Act 1975.
The court granted Ms Baier sole parental responsibility for major long-term parenting issues, except for long-term medical decisions, which require consultation with Mr Pitter. The children were to live with Ms Baier, and Mr Pitter was to have supervised contact under strict conditions, including completing a parenting program and drug testing. The court also issued a recovery order to ensure the children's return if removed from Ms Baier's care and restrained Mr Pitter from interfering with the children's living arrangements. Non-denigration clauses and procedural directives were also included.
The final orders granted sole parental responsibility to Ms Baier, established supervised contact conditions for Mr Pitter, and included a recovery order and restraints on Mr Pitter. The court also set out detailed obligations and consequences of the orders, as required by the Family Law Act 1975.
Orders
Orders of the court
BRC 16352 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS BAIER
Applicant
AND:
MR PITTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE COPE
DATE OF ORDER:
14 MAY 2024
THE COURT ORDERS THAT:
1. The mother will have sole parental responsibility for major long term parenting issues for X born in 2018 and Y both born in 2018 (“the children”) except for decisions regarding long term medical decisions where Order 2 applies.
2. In the exercise of Order 1 above for the purposes of long-term medical decisions:
(a) the mother will consult with the father, in writing, not less than seven (7) days prior to any decision being made and seek the father’s input into the decision regarding medical matters or changing the children’s surname.
(b) The father will respond once, in writing, to the mother’s proposed decision within seven (7) days of receiving such information.
(c) The mother will consider the father’s response to any decision proposed; and
(d) The mother will advise the father, in writing, not less than seven (7) days after any major, long-term decision has been made for the children.
3. The mother will have sole responsibility for the day-to-day care welfare and development of the children.
4. The children will live with the mother.
5. The children will spend supervised time with the father as agreed in writing between the mother and father CONDITIONAL UPON:
(a) Prior to the commencement of any time with the children, the father must have attended and completed the Post Orders Parenting program in person and must provide the mother with a certificate of completion within 48 hours of receiving such certificate;
(b) Within thirty (30) days of the date of these Orders, the father must complete a hair follicle test and provide the results of such test to the mother; and
(c) The father must not be under the influence of illicit substances or alcohol when the children are in his care.
6. Supervised time in accordance with the above order is to occur as follows:
(a) In the event the father lives in the City B area:
(i) The children’s supervised time with the father will occur once per fortnight, subject to availability at the service.
(ii) The supervised time will occur at the City B Contact Service.
(iii) The father will be responsible for the entire cost of the supervision.
(b) In the event the father lives outside the City B area time will occur on the following conditions:
(i) The father must give the mother fourteen (14) days’ written notice of his intention to spend time with the children;
(ii) The father will be responsible for the entire costs of the supervision;
(iii) The father must hold a valid driver’s licence and must provide to the mother a copy of such valid driver’s licence at least forty-eight (48) days before such time is to commence;
(iv) Supervised time will occur not more than four (4) hours per day; and
(v) Supervised time will occur on weekends.
7. The father may communicate with the children by videocall each Monday and Thursday between 5:00 pm and 5:30 pm (noting such time does not mean the entire 30 minutes to occur) or at such other times as advised by the mother, in writing, from time to time.
Recovery Order
8. In the event that the children are removed from the Mother, a Recovery Order will issue for the return of the children.
9. The Recovery Order in accordance with paragraph 10 is to lie in the Registry to be uplifted upon the Mother filing an Affidavit deposing to any removal of the children from her care.
10. Pursuant to s 67U of the Family Law Act 1975 (Cth), a recovery order do issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a) to find and recover the children X (born in 2018) & Y (born in 2018) and to deliver the said children to the Mother, or to a place as the Mother and the person effecting such recovery agree to be appropriate; and
(b) to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.
11. The Father, his servants and/or agents are hereby restrained from removing or attempting to remove or causing the removal of the children from the Mother's care until further order of the Court.
12. All Police Officers and agents referred to in this Order be at liberty to proceed on an email copy of this Order.
Restraints
13. The father is restrained pursuant to section 68B and section 114 of the Family Law Act 1975 from:
(a) Locating or attempting to locate the mother and the children’s residence;
(b) Communicating or attempting to communicate with the children’s school or organiser of any extra-curricular activity;
(c) Attending the children’s school or school event or school function organised by the children’s school/s; and
(d) Removing or attempting to remove or procuring another person to remove the children from any school, institution or at any other place in which the children attend or are placed by the mother from time to time.
Non-Denigration
14. That during the time the children are communicating with either parent, the parties will:
(a) Not denigrate the other party or the other party’s family or associates in the presence or hearing of the children and shall remove the children from the presence of others who may be doing so.
(b) Respect the privacy of the other parties and not question the children about the personal life of the other parties or family or associates of the other parties or allow a third party to do so.
(c) Speak of the other parties respectfully and use their best endeavours to ensure third parties do so in the presence or hearing of the children and if the children are present and this is occurring, they are to remove the children.
(d) Not ask the children who they want to spend time with or live with.
(e) Not expose the children to any form of family violence or domestic violence.
(f) Ensure that there is no corporal punishment or threat of corporal punishment to the children whilst in their respective care; and
(g) Ensure that the children are not exposed to abuse, neglect, or family violence whilst in their care.
Procedural
15. Thirty (30) days from the date of this Order, the Independent Children’s lawyer be discharged.
16. All extant applications be removed from the Pending Cases List.
THE COURT NOTES THAT:
A. Pursuant to section 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 are set out in Attachment A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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
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