Chapman & Fletcher - [2023] FedCFamC1F 4

Federal Circuit and Family Court of Australia
(DIVISION 1)
Chapman & Fletcher [2023] FedCFamC1F 4

File number(s): BRC 10325 of 2016

Judgment of: JARRETT J

Date of judgment: 11 January 2023

Catchwords: FAMILY LAW - CHILDREN – With whom a child lives – Where there was a previous application for a short-term custody order to the Chief Executive – Where the application for a short-term custody order was refused – Where the applicant was found a parent willing and able to care for the child – Where the second respondent is the child’s foster carer – Where the child has a good relationship with both the applicant and second respondent – Whether the applicant is capable of meeting the child’s physical and emotional needs – Where the evidence suggests the applicant can meet the child’s physical and emotional needs – Where a change of residence is ordered

Legislation: Family Law Act 1975 (Cth) ss 60CC(2)(b), 60CC(3)(m)

Cases cited:
Agambar & Agambar [2021] FedCFamC1A 1

Aldridge & Keaton (2009) FLC 93-421

Maldera v Orbel (2014) FLC 93-602 at [79]– [81];

Valentine & Lacerra (2013) FLC 93-539

Division: Division 1 First Instance

Number of paragraphs: 121

Date of hearing: 6 July, 2022

Place: Brisbane

Counsel for the Applicant: Litigant in person

Counsel for the First Respondent: Litigant in person

Counsel for the Second Respondent: Mr Cahill

Solicitor for the Second Respondent: Genuine Legal

Counsel for the Independent Children’s Lawyer: Mr Hodges

Solicitor for the Independent Children’s Lawyer: Barbara Fox Solicitor
ORDERS

BRC 10325 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CHAPMAN

Applicant

AND:
MS FLETCHER

First Respondent

MS PENNEL

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

JARRETT J

DATE OF ORDER:

11 January 2023

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The applicant and the first respondent have equal shared parental responsibility for decisions concerning the major long-term issues for X born 2015.
3.Commencing upon the making of these orders, except as otherwise provided in these orders, X shall live with the applicant.
4.X shall live with the first respondent at all such times as shall be agreed between the applicant and the first respondent, and failing agreement each alternate weekend (commencing on the second weekend following the making of these orders) from 9.30am on Saturday until 4.00pm on the next day save that:
(a)should Father’s Day fall on a Sunday on which X is to live with the first respondent pursuant to these orders, his weekend time with her on that weekend shall be suspended and replaced by time on the following weekend; and
(b)should Mother’s Day fall on a Sunday on which X is to live with the applicant pursuant to these orders, his weekend time shall occur on that weekend and his time with her on the immediately following weekend shall be suspended.

5.X shall spend time with the second respondent at all such times as shall be agreed between the applicant, the first respondent and the second respondent,…

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 Chapman & Fletcher

Details

AGLC: Chapman & Fletcher [2023] FedCFamC1F 4
Case: [2023] FedCFamC1F 4
Decision Date

CaseChat Overview and Summary

This case involves parenting arrangements for a child, X, who is seven years old. X does not currently live with his parents, the applicant (his father) or the first respondent (his mother). He lives with the second respondent and her husband, who are foster carers. The applicant seeks an order for X to live with him, while the first respondent seeks an order for X to live with her. The second respondent seeks an order for X to continue living with her. The central issue in this case is which of the parties is best able to meet X's physical and emotional needs, particularly those arising from his health concerns. The court considered the capacity of each party to meet X's needs, as well as the importance of stability and continuity in X's care.

The court found that the applicant has the capacity to meet X's physical and intellectual needs, and is likely to be able to meet his emotional needs as well. The court accepted that the applicant would be able to make suitable accommodation arrangements and organise his work schedule to suit his responsibilities towards X. The court also found that the second respondent is capable of meeting X's physical and intellectual needs, and has facilitated X's relationship with the applicant. The court noted that the applicant has demonstrated a commitment to X through his involvement in the proceedings.

The court rejected the submissions of the independent children's lawyer and the second respondent that placing X in the full-time care of the applicant would be unsafe, as the evidence did not adequately define the nature or magnitude of the risk. The court found that the applicant would comply with any orders of the court, and that there was no basis in the evidence for the submission that he would not.

The court made orders for X to live with the applicant, with the first respondent having overnight time with X each alternate weekend, and the second respondent having time with X on one day of one weekend per month. The court also made orders for telephone communication, changeovers, and the sharing of information about X's living arrangements and health care professionals.

The court made a referral to the Australian Federal Police and the Queensland Police Service to review the evidence in these proceedings for any potential offences. The court expressed hope that such referrals are given the consideration they deserve.

Orders