DITTMAR & DITTMAR - [2020] FCCA 2373

FEDERAL CIRCUIT COURT OF AUSTRALIA

DITTMAR & DITTMAR

[2020] FCCA 2373

Catchwords:
FAMILY LAW – Parenting – where there is one child of the relationship – whether either parent poses an unacceptable risk to the child – where there are allegations of sexual abuse of the child – where it is found one parent does not see any benefit in the child maintaining a meaningful relationship with the other.

Legislation:

Family Law Act 1975 (Cth), Part VII, ss.4(1), 4AB, 60B, 60CA, 60CC, 61DA
Evidence Act 1995 (Cth), s.140

Cases cited:

K & B (1994) FLC 92-478
M v M (1988) CLR 69
MRR & GR [2010] HCA 4
Napier v Hepburn (2006) FLC 93-303

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 (16 December 1992)
Briginshaw v. Briginshaw[1938] HCA 34; (1938) 60 CLR 336, at p 362; Marsden & Winch (No. 3) [2007] FamCA 1364 (21 November 2007).

Applicant:

MR DITTMAR

Respondent:

MS DITTMAR

File Number:

BRC 189 of 2019

Judgment of:

Judge Middleton

Hearing dates:

5 & 12 August 2020

Date of Last Submission:

17 August 2020

Delivered at:

Brisbane

Delivered on:

31 August 2020

REPRESENTATION

Counsel for the Applicant:

Mr Bunning

Solicitors for the Applicant:

Law Legal Practice

Counsel for the Respondent:

Ms McLennan

Solicitors for the Respondent:

Cranston McEachern Lawyers

ORDERS

That the parents have equal shared parental responsibility for the child X born in 2017.
That the child shall live with the father.
Forthwith the mother is to contact Dr B and provide to him a copy of the reasons for judgment. The mother is as soon as possible to illicit from Dr B the name of either a psychologist or psychiatrist (referred to as ‘the practitioner’) (preferably one in the City C area) to assist her with the recommendations in the report from Dr B dated 8 July 2019 and the reasons for judgment of the court. In the event that Dr B does not provide to the mother the name of a practitioner to the mother within 7 days of her correspondence, then the mother be at liberty to choose a practitioner (apart from Ms D).
The mother shall, upon either being provided with the name of the practitioner in order 2 or if she is required to elect (pursuant to order 2):
(a)Provide to the practitioner a copy of the psychiatric report of Dr B and the reasons for judgment.
(b)Provide within 7 days of engagement with the practitioner the name of the practitioner to the father in writing.
(c)Engage with the practitioner at a frequency and for a duration as recommended by the practitioner.
(d)All engagement by the mother with the practitioner be at the mothers sole cost.
(e)Engage with the practitioner to deal with the issues raised by Dr B in his report and by the court in the reasons for judgment.
(f)At such time as the practitioner is of the view that 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 DITTMAR & DITTMAR

Details

AGLC: Dittmar and Dittmar [2020] FCCA 2373
Case: [2020] FCCA 2373
Decision Date: 31 August 2020

CaseChat Overview and Summary

In the matter of *Dittmar & Dittmar*, Judge Middleton of the Family Court of Australia considered a dispute between the parents concerning the upbringing of their child, X, born in 2017. The proceedings involved allegations of sexual abuse against the child and a finding that one parent did not recognise the importance of the child maintaining a meaningful relationship with the other parent.

The court was required to determine whether either parent posed an unacceptable risk to the child and, consequently, what parenting arrangements would be in the child's best interests. This included assessing the impact of the allegations and the parents' respective attitudes towards the child's relationship with the other parent on the child's welfare.

Judge Middleton made orders for equal shared parental responsibility, acknowledging the importance of both parents being involved in the child's life. However, the child was ordered to live with the father. The mother was directed to engage with a psychologist or psychiatrist to address issues raised in a report by Dr B and by the court, with her sole cost. Until the mother completed this engagement, the child's time with the mother was to be supervised. Following the mother's engagement with the practitioner, the orders outlined a phased approach to the child's time with each parent, including specific arrangements for school holidays and collection/return points, with a prohibition on relocating the child out of the Town G area without consent or court order.

Orders

Orders of the court

That the parents have equal shared parental responsibility for the child X born in 2017.

That the child shall live with the father.

Forthwith the mother is to contact Dr B and provide to him a copy of the reasons for judgment. The mother is as soon as possible to illicit from Dr B the name of either a psychologist or psychiatrist (referred to as ‘the practitioner’) (preferably one in the City C area) to assist her with the recommendations in the report from Dr B dated 8 July 2019 and the reasons for judgment of the court. In the event that Dr B does not provide to the mother the name of a practitioner to the mother within 7 days of her correspondence, then the mother be at liberty to choose a practitioner (apart from Ms D).

The mother shall, upon either being provided with the name of the practitioner in order 2 or if she is required to elect (pursuant to order 2):

(a) Provide to the practitioner a copy of the psychiatric report of Dr B and the reasons for judgment.

(b) Provide within 7 days of engagement with the practitioner the name of the practitioner to the father in writing.

(d) All engagement by the mother with the practitioner be at the mothers sole cost.

(e) Engage with the practitioner to deal with the issues raised by Dr B in his report and by the court in the reasons for judgment.

(f) At such time as the practitioner is of the view that the mother no longer requires their assistance, the mother shall illicit from the practitioner correspondence which sets out the dates of the mother attendance up on the practitioner, the matters address by the counsellor and that the mother no longer needs to see the practitioner.

Until such time as the mother provides correspondence from the practitioner pursuant to order 4(f). the child shall spend time with the mother at all times as the parties agree in writing and failing agreement:

(a) Every week on a Saturday for 2 hours at E Contact Centre, City F (or a Sunday if Saturday is not available) with the mother to be at liberty to also have her parents attend the supervised time but all time between the child and the mother/her parents shall be supervised by E Contact Centre.

Once the mother has provided to the father a letter from the practitioner engaged that she no longer requires the assistance of the practitioner pursuant to order 4(f). then the child shall live with each party at all times as may be agreed but failing agreement as follows;

(a) X shall live with the father.

(b) X shall spend time with the mother:

(i) From 3:30pm on Friday to 5:00pm on Sunday each alternate week commencing the first weekend after the information pursuant to order 4(f) is provided to the father (with such time to commence at 3:15pm on Thursday if Friday is a public holiday and/or conclude at 5:00pm on Tuesday if Monday is a public holiday).

(ii) In the gazetted school holidays in September and December/January 2020 in accordance with paragraph 5b.i. of these orders and on Wednesday each week from 9:00am to 2:00pm with changeover to occur at Town G McDonalds.

(iii) In the gazetted school holidays in 2021 and onwards;

1. For only half of the April and September gazetted school holiday periods being the first half in odd numbered years and the second half in even numbered years.

2. For all of the June/July gazetted school holiday periods.

3. For weeks 3, 4 and 6 of the December/January gazetted school holiday periods each year.

For the purpose of school holiday time the following shall apply:

(a) The first day of the school holiday period commence at 3:00pm on the last day of the gazetted school term.

(b) The last day of the school holiday period is the Sunday immediately before the first gazetted day of the school term.

(d) Any provision for time in these orders that is inconsistent with school holiday time shall be suspended during gazetted school holiday periods.

Unless provided otherwise in these orders;

(a) The mother shall collect the child from the father at Town G McDonalds at the commencement of time; and

(b) The father shall collect the child from the mother or her nominee a City C McDonalds at the conclusion of time.

The father and the mother shall keep each other informed at all times of their residential address and mobile telephone number and shall notify the other in writing of any change within 72 hours of that change.

10.

The mother and father shall keep each other informed of any medical emergency or major illness involving the child that occurs during periods when the child is residing with each of them.

11.

This order shall act as an authority for school that the child may attend from time to time to provide each of the parents with all information relating to the child’s progress at school including school reports, newsletters and photographs.

12.

The child shall not be relocated out of the Town G area without the written consent of the parties or an order of the Court.

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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