Ditcher and Fetzer - [2014] FamCA 175

FAMILY COURT OF AUSTRALIA

DITCHER & FETZER

[2014] FamCA 175

FAMILY LAW – CHILDREN – Best interests – child has a meaningful relationship with both parents – child has lived primarily with the father since separation – mother seeks that the child live with her for equal time – father seeks that the child live with him for longer periods than with the mother – equal time not reasonably practicable or in the child’s best interests – child lives primarily with father – child’s residence with the mother conditional upon the mother continuing a therapeutic relationship with a psychiatrist

FAMILY LAW – CHILDREN – Parental responsibility – both parties seek equal shared parental responsibility – allegations of family violence do not render the presumption of equal shared parental responsibility inapplicable – proposals for one party to make final decisions in the event of deadlock rejected

FAMILY LAW – PRACTICE & PROCEDURE – Application to invoke section 69ZT(3) dismissed

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 61DB, 62B, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 69ZT
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)
Family Law Rules 2004

Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
Marriage of L & T (1999) 25 Fam LR 590
MRR v GR (2010) 240 CLR 461
Pavli v Beffa (2013) 48 Fam LR 677

APPLICANT:

Ms Ditcher

RESPONDENT:

Mr Fetzer

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

10619

2012

DATE DELIVERED:

25 March 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Austin J

HEARING DATE:

3, 4, & 5 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pendergast

SOLICITOR FOR THE APPLICANT:

Hartley Healy Lawyers

COUNSEL FOR THE RESPONDENT:

Ms McMillan QC

SOLICITOR FOR THE RESPONDENT:

Cooper Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Page QC

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

All former orders relating to the child L, born … 2011, (“the child”) are discharged.
The mother and father shall have equal shared parental responsibility for the child.
The child shall live with the father whenever she is not living with the mother.
Unless otherwise agreed between the parties in writing, the child shall live with the mother, subject to the mother’s continued compliance with Order 9 hereof:
(a)Up to and including Sunday 29 June 2014:
(i)Each week, from 3.00 pm or the conclusion of the child’s attendance at pre-school (whichever is the later) on Thursday until 6.00 pm on Saturday.
(b)From and including Thursday 3 July 2014 up until the child commences school:
(i)Each week, from 3.00 pm or the conclusion of the child’s attendance at pre-school (whichever is the later) on Thursday until 6.00 pm on Sunday; and
(c)From the time the child commences school:
(i)During school terms, commencing on the first Thursday of each term, each alternate weekend from 3.00 pm or the conclusion of the child’s attendance at school (whichever is the later)…

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

AGLC: Ditcher and Fetzer [2014] FamCA 175
Case: [2014] FamCA 175
Decision Date

CaseChat Overview and Summary

In *Ditcher & Fetzer* [2014] FamCA 175, the Family Court of Australia considered a dispute between the mother, Ms Ditcher, and the father, Mr Fetzer, concerning the parenting arrangements for their young child. The primary issue before the court was the amount of time the child would spend with each parent, with the mother seeking equal time and the father seeking longer periods with him. The court also addressed the matter of parental responsibility and the mother's ongoing psychiatric treatment.

The court was required to determine the best interests of the child, specifically whether equal time with both parents was reasonably practicable and in the child's best interests, or if a different arrangement was more appropriate. Additionally, the court considered whether the presumption of equal shared parental responsibility applied, given allegations of family violence, and whether proposals for one parent to hold ultimate decision-making power in the event of deadlock were appropriate. The court also had to decide on an application to invoke specific provisions of the Family Law Act relating to evidence.

Applying the principles of the *Family Law Act 1975* (Cth), particularly sections concerning the best interests of the child and parental responsibility, the court found that equal time was not reasonably practicable or in the child's best interests. The court reasoned that while the child had a meaningful relationship with both parents, and had lived primarily with the father since separation, the mother's ongoing need for psychiatric treatment necessitated a carefully structured arrangement. The court upheld the presumption of equal shared parental responsibility, finding that allegations of family violence did not render it inapplicable in this instance, and rejected proposals for one parent to have final decision-making authority. The application to invoke section 69ZT(3) of the Act was dismissed.

The court ordered that the parties have equal shared parental responsibility for the child. The child was to live with the father, with specific, progressively increasing periods of time allocated to the mother. These arrangements were conditional upon the mother continuing her therapeutic relationship with a psychiatrist, and she was required to provide information and authorisations regarding her treatment to the father. The court also made orders restraining denigration of either parent in the child's presence and requiring parties to keep each other informed of their contact details.

Orders