FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fiedler & Vitale [2024] FedCFamC1F 525
File number(s): NCC 983 of 2018 Judgment of: SMITH J Date of judgment: 19 July 2024 Catchwords: FAMILY LAW - CHILDREN – Interim Orders – Where the matter is listed for final hearing – Where the trial did not conclude within allocated time and remains part heard – Where the court is yet to hear from the expert – Where the father made an oral interim application to take the subject child on a cruise –Where the principles governing interim applications apply – Where the court cannot make any findings of fact – Where family violence between the father and his current partner remains a significant issue at trial – Where the court must take a conservative approach – Oral application dismissed Legislation: Family Law Act 1975 (Cth) Pt VII, s 69ZL
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Ch 10, r 10.04
Cases cited: Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Marvel & Marvel (2010) 43 Fam LR 348; [2010] FamCAFC 101
SS & AH [2010] FamCAFC 13
Division: Division 1 First Instance Number of paragraphs: 19 Date of hearing: 15–19 July 2024 Place: Newcastle Counsel for the Applicant: Ms Adams-Nash Solicitor for the Applicant: McNeilly Lawyers Counsel for the Respondent: Mr Graham Solicitor for the Respondent: Lindeman Lawyers Counsel for the Independent Children's Lawyer: Mr Gallimore Solicitor for the Independent Children's Lawyer: Stevens Family Law & Mediation ORDERS
NCC 983 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FIEDLER
Applicant
AND: MS VITALE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
19 JULY 2024
BY CONSENT AND PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.Pursuant to Rule 10.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Interim Orders be made in accordance with the document attached hereto.
THE COURT FURTHER ORDERS THAT:
2.The matter be listed for part-heard Final Defended Hearing commencing at 9.30 am on Friday, 16 August 2024, noting that appearances are required in person at the Registry of the Federal Circuit and Family Court of Australia.
3.Liberty is granted to the Independent Children’s Lawyer to approach the Court in Chambers to have the matter relisted if any issues arise during the adjournment period.
4.By no later than 14 days from the date of these orders, the parties are to confer and provide a joint list of documents to be given to the Court Child Expert, Ms B.
5.Ms B’s evidence be taken by audio-visual means.
6.The Local Court file from Town C Local Court be urgently requested, in particular the DVEC audio-visual recording of Ms D’s complaint in relation to the events of mid‑2021 regarding Mr Fiedler.
7.Dismiss the father’s oral interim application for orders “that the child shall be permitted to accompany…
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CaseChat Overview and Summary
The court had to determine whether to grant the father's interim application to take the child on a holiday cruise, considering the principles governing such applications. Given that the trial had not concluded and the court had yet to hear from the expert, it could not make any findings of fact. The court also needed to consider the significant issue of family violence in making its decision. Consequently, the court adopted a conservative approach and dismissed the father's oral interim application.
The court's reasoning underscores the importance of maintaining the child's safety and well-being. Given the unresolved issues of family violence and the incomplete nature of the trial, the court deemed it inappropriate to grant the father's application. The interim orders already in place, which include specific arrangements for the child's time with each parent and strict injunctions to protect the child, remain effective until further order. The court also scheduled the matter for a part-heard final defended hearing, with specific instructions for document exchange and evidence collection.
Orders
Orders of the court
NCC 983 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR FIEDLER
Applicant
AND:
MS VITALE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
19 JULY 2024
BY CONSENT AND PENDING FURTHER ORDER THE COURT ORDERS THAT:
1. Pursuant to Rule 10.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Interim Orders be made in accordance with the document attached hereto.
THE COURT FURTHER ORDERS THAT:
2. The matter be listed for part-heard Final Defended Hearing commencing at 9.30 am on Friday, 16 August 2024, noting that appearances are required in person at the Registry of the Federal Circuit and Family Court of Australia.
3. Liberty is granted to the Independent Children’s Lawyer to approach the Court in Chambers to have the matter relisted if any issues arise during the adjournment period.
4. By no later than 14 days from the date of these orders, the parties are to confer and provide a joint list of documents to be given to the Court Child Expert, Ms B.
5. Ms B’s evidence be taken by audio-visual means.
6. The Local Court file from Town C Local Court be urgently requested, in particular the DVEC audio-visual recording of Ms D’s complaint in relation to the events of mid‑2021 regarding Mr Fiedler.
7. Dismiss the father’s oral interim application for orders “that the child shall be permitted to accompany the father on a [holiday] from 30 July 2024 until 9 August 2024.”
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT AND NCC983/2018
FAMILY COURT OF AUSTRALIA
(DIVISION 1)
BETWEEN:
Mr Fiedler (Applicant)
AND:
Ms Vitale (Respondent)
AND: INDEPENDENT CHILDRENS LAWYER
IT IS ORDERED BY CONSENT, ON AN INTERIM BASIS:
1. That all previous Orders be discharged
2. That the child X born in 2016 (‘the child’) live with the father.
3. That the child spend time with the mother as agreed between the parties and failing agreement as follows:
a. From 9am Saturday 27 July 2024 until 5:00pm Sunday 28 July 2024; and
b. From 9am Saturday 10 August 2024 until 5.00pm Sunday 11 August 2024.
4. That for the purposes of facilitating time, changeovers shall occur at the front door of Town C Police Station at the commencement and conclusion of time.
5. That the mother have telephone or video communication via Whatsapp each Thursday at 4:30pm for 30minutes with the mother to place the call to the father’s nominated device and the father to ensure the child is available to answer the call.
6. That each party be at liberty to attend all extra curricular or school events that parents would ordinarily attend.
7. That these orders be sufficient authority for each party to communicate with the child’s educational providers and obtain all information about the child including but not limited to newsletters, circulars, reports, school photos, behavioural management plans and the like
8. That these orders be sufficient authority for each party to communicate with the child’s medical providers and obtain all information regarding to his diagnosis, treatment and options.
9. That should the child be injured or ill and require emergency medical attention the parent with whom the child is spending time shall notify the other parent of the injury/illness, diagnosis and treatment within 2 hours.
10. That parties will communicate by text message only except in cases of emergency.
11. That each party be restrained by injunction pursuant to s68B for the safety of the child from:
a. Allowing or permitting the child to come into contact with Mr E
b. Allowing or permitting the child to be in the unsupervised company of Mr G,
c. Denigrating the other party, their family or friends in the presence of hearing of the child or permitting the child to remain in the presence or hearing of any third party doing so
d. Changing the child’s currently enrolled school without written consent of both parents
e. Both parents are restrained from physically disciplining or assaulting X (either by using their hand, another body part, or an object), or allowing anyone else to do so, and must immediately remove X from the presence of anyone physically disciplining X or attempting to do so.
f. Permitting X to be exposed to Family Violence or remaining in the presence of any person engaging in family violence, and shall immediately remove X from the presence of anyone engaging in family violence behaviour.
g. Using illicit substances in the presence of X or whilst they are responsible for his care, or within 12 hours prior to X spending time in their care.
h. Discussing these proceedings or any other litigation involving the parents in the presence or within the hearing of X.
12. The parents agree the Child will not be introduced to any new partners/relationship of the parents until such time as that relationship has been constant for a period of six months.
13. Each party will ensure the child attends upon all recommended therapies until discharged by the service provider.
14. Each party shall keep the other party informed of their current residential address.
15. [Omitted].
16. [Omitted].
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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