Fisher & Fisher

Case [2021] FamCA 236

FAMILY COURT OF AUSTRALIA

Fisher & Fisher [2021] FamCA 236

File number(s): MLC1093 of 2020
Judgment of: WILLIAMS J
Date of judgment: 26 April 2021
Catchwords: FAMILY LAW – PARENTING – Application to discharge the appointment of an Independent Children’s Lawyer – Consideration of applicable principles – Application dismissed – Application for review of parenting orders made by a Senior Registrar for a 3 year old child – Significant factual disputes between the parents – Reliance on the untested evidence of a family report writer – Highly conflictual parental relationship – Held orders discharged and orders made in accordance with proposal of the Independent Children’s Lawyer
Legislation:

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 68L, 68LA, 102NA

Family Law Rules 2004 (Cth) rr 18.08. 18.10

Cases cited:

Dickens & Dickens [2016] FamCA 115

Goode & Goode [2006] FamCA 1346

Horner & Horner [2018] FamCA 487
Number of paragraphs: 72
Date of hearing: 12 – 13 April 2021
Place: Melbourne
Counsel for the Applicant: in person
Counsel for the Respondent: Ms Kildea
Solicitor for the Respondent: Melanie Wyatt Family Law
Counsel for the Independent Children's Lawyer: Mr Eidelson
Solicitor for the Independent Children's Lawyer: Bowlen Dunstan and Associates Pty

ORDERS

MLC1093 of 2020
BETWEEN:

MR FISHER

Applicant
AND:

MS FISHER

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

26 APRIL 2021

THE COURT ORDERS THAT:

1.The father’s application to discharge the Independent Children’s Lawyer is dismissed.

2.All previous parenting orders be discharged.

3.The child, X born … 2018 ("the child") live with the Mother.

4.The child spend time and communicate with the Father as follows:

(a)Each alternate Thursday from the conclusion of childcare (or 3:00pm) until the commencement of childcare (or 9:00am) Friday, commencing EITHER 15 April 2021 or 22 April 2021;

(b)Each alternate Thursday from the conclusion of childcare (or 3:00pm) until 4:00pm Sunday, commencing EITHER 15 April or 22 April 2021;

(c)In the event that Father's Day should occur when the child is in the care of the Mother, from 5:00pm on the day before Father's Day until 4:00pm Sunday;

(d)Such further and other times as may be agreed between the parties in writing.

5.The father's time spent with the child shall be suspended at the following times:

(a)In the event that Mother’s Day should occur when the child is in the care of the father from 5:00pm on the day before Mother's Day until 4.00pm Sunday.

6.Either parent may telephone FaceTime the child between 5:00-5:30pm when the child is in the care of the other parent, with the non-spend time with parent at that time to initiate the call to the mobile of the other parent, with such parent to facilitate the child speaking to the other parent.

7.For the purposes of changeover the following shall occur:

(a)at the commencement of time, if the child is in childcare, the parent whose time is commencing shall collect the child from childcare, and in the event it is a non-childcare day the parent who has the child…

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Details
AGLC
Fisher & Fisher [2021] FamCA 236
Case
[2021] FamCA 236
Decision Date

CaseChat Overview and Summary

In the matter of *Fisher & Fisher*, Mr. Fisher (the applicant father) sought to discharge the appointment of an Independent Children’s Lawyer (ICL) and review parenting orders made by a Senior Registrar concerning their three-year-old child, X. Ms. Fisher (the respondent mother) was also a party to the proceedings. The case came before Williams J in the Federal Circuit and Family Court of Australia.

The court was required to determine whether the appointment of the ICL should be discharged, and consequently, to reconsider the interim parenting orders made by the Senior Registrar. These orders had established a living and time-spent arrangement for the child, X, which the mother sought to review. The proceedings were characterised by significant factual disputes between the parents and a highly conflictual parental relationship.

Williams J dismissed the father's application to discharge the ICL, finding that the continued involvement of an ICL was appropriate given the circumstances. The court reasoned that the Senior Registrar's orders had relied heavily on the untested evidence of a family report writer, and that the highly conflictual nature of the parental relationship necessitated a fresh consideration of the arrangements for the child. The court ultimately discharged all previous parenting orders and made new orders in accordance with the proposal of the Independent Children’s Lawyer. These new orders stipulated that the child, X, would live with the mother, with specific provisions for the father's time with the child, communication arrangements, changeover procedures, and injunctions against denigrating the other parent or exposing the child to proceedings.

Orders

Orders of the court

MLC1093 of 2020

BETWEEN:

MR FISHER

Applicant

AND:

MS FISHER

Respondent

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

26 APRIL 2021

THE COURT ORDERS THAT:

1. The father’s application to discharge the Independent Children’s Lawyer is dismissed.

2. All previous parenting orders be discharged.

3. The child, X born … 2018 ("the child") live with the Mother.

4. The child spend time and communicate with the Father as follows:

(a) Each alternate Thursday from the conclusion of childcare (or 3:00pm) until the commencement of childcare (or 9:00am) Friday, commencing EITHER 15 April 2021 or 22 April 2021;

(b) Each alternate Thursday from the conclusion of childcare (or 3:00pm) until 4:00pm Sunday, commencing EITHER 15 April or 22 April 2021;

(c) In the event that Father's Day should occur when the child is in the care of the Mother, from 5:00pm on the day before Father's Day until 4:00pm Sunday;

(d) Such further and other times as may be agreed between the parties in writing.

5. The father's time spent with the child shall be suspended at the following times:

(a) In the event that Mother’s Day should occur when the child is in the care of the father from 5:00pm on the day before Mother's Day until 4.00pm Sunday.

6. Either parent may telephone FaceTime the child between 5:00-5:30pm when the child is in the care of the other parent, with the non-spend time with parent at that time to initiate the call to the mobile of the other parent, with such parent to facilitate the child speaking to the other parent.

7. For the purposes of changeover the following shall occur:

(a) at the commencement of time, if the child is in childcare, the parent whose time is commencing shall collect the child from childcare, and in the event it is a non-childcare day the parent who has the child shall deliver the child to the home of the parent who is due to commence time;

(b) at the conclusion of time, if it is a childcare day, the parent who has the child shall deliver the child to childcare, and in the event it is a non-childcare day the parent who has the child shall deliver the child to the home of the parent who is due to commence time.

8. Each party keep the other informed of their current residential address and mobile number and in the event there is any change, advise the other parent within 7 days of such change occurring.

9. Each parent keep the other advised of any serious medical illness or injury suffered by the child whilst in their respective care and forthwith advise the other of the name and contact details of any treating doctor or specialist who attends upon the child, and each parent be hereby authorised by these orders to seek information from any treating practitioner as to the wellbeing of the child.

10. The Mother and Father use a parenting App such as My Family Wizard or such other agreed parenting App for the purposes of all communication about the child, with all information to be child focused and relate to either medical or spend time with arrangements.

11. Both parents are hereby authorised by these orders to receive from the child's childcare a copy of any reports, order forms for photographs, and like documents ordinarily provided to parents, and each of the parents are at liberty to provide a copy of these orders to the relevant body as evidence of such authorisation.

12. Each party is hereby authorised by these orders to attend any childcare functions that parents would ordinarily attend.

13. Each party is hereby restrained by injunction from:

(a) Denigrating the other party or their partner, or family, in the presence of or hearing of the child nor from allowing anyone else to do so;

(b) Exposing the child to family violence;

(c) Discussing these proceedings with the child or exposing the child to affidavit material or materials which are to be used in these proceedings.

14. That the Mother and Father both continue to engage with their respective psychologist and/or mental health professionals and follow all reasonable directions given to them, with any medical or allied health professionals working with either party being permitted to be provided with a sealed copy of these orders and a copy of Ms B's family report dated 10 February 2021.

15. The requirement of s.102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings.

16. That all extant interim parenting applications be dismissed.

AND THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 Annexure 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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

This matter was listed for determination in the Judicial Duty List on 12 and 13 April 2021. The applications before the Court were the mother’s Application in a Case filed 2 March 2021 seeking a review of the Orders of the Senior Registrar made on 22 February 2021 and the father’s Response to an Application in a Case filed 7 April 2021. Background The father and the mother are the parents of the child, X born in 2018. The parties met online in June/July 2017, cohabited in August 2017, married in 2017 and separated in late January 2020 when the father left the former family home. The father has another child, Y, who is aged 10 years. Following separation, the father asserts that the mother withheld X from him for a period of approximately six weeks, prior to him commencing proceedings in the Federal Circuit Court on 4 February 2020. On 4 March 2020, Orders were made by consent for X to live with his mother and spend time with his father each week from 10 AM Wednesday until 9 AM Thursday and each Sunday from 9 AM until 4:30 PM, notwithstanding that both parents asserted that they had been the primary carer for their son prior to separation. On 17 April 2020, Orders were made appointing an Independent Children’s Lawyer. On 26 June 2020, Orders were made transferring the matter to this court. On 12 October 2020, I made Orders providing that the orders made 4 March 2020 pertaining to X, remain in full force and effect and that the parties obtain a private family report. Orders were also made in relation to the financial aspect of the application. On 11 January 2021, the matter was listed before Senior Registrar Hoult, who listed the matter before him on 22 February 2021 for an interim defended hearing about X’s living and spend time with arrangements. On 10 February 2021, a family report was completed by Ms B and released to the parties. The family report is annexure B 1 to the affidavit of Ms B affirmed 17 February 2021. On 22 February 2021, Senior Registrar Hoult made orders as follows:(a)X live with his father each alternate Thursday from the conclusion of childcare (or 3 PM) until the commencement of childcare (or 9 AM) Friday;(b)each alternate Thursday from the conclusion of childcare (or 3 PM) until the conclusion of childcare (or 3 PM) Monday commencing 4 March 2021;(c)commencing the first Thursday in May 2021, the child’s time with the father be extended to each alternate weekend from the conclusion of childcare (or 3 PM) on Wednesday until commencement of childcare (or 9 AM) Friday;(d)in the event Father’s Day should occur when the child is in the care of the mother, from 5 PM on the day before Father’s Day until 4 PM Sunday;(e)X live with his mother at all other times;(f)in the event Mother’s Day should occur when the child is in the care the father from 5 PM on the day before Mother’s Day until 4 PM Sunday;(g)either parent may telephone/face time the child between 5 PM – 5:30 PM when the child is in the care of the other parent, with the non-spend time with parent, at that time to initiate the call to the mobile of the other parent, with such parent to facilitate the child speaking to the other parent.

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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