Fitzpatrick and Power - [2009] FMCAfam 1007

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FITZPATRICK & POWER

[2009] FMCAfam 1007

FAMILY LAW – Children – interim relocation – best interests of young baby – with whom the child lives and spends time.

Family Law Act 1975 ss.60B, 60CA, 60CC(2), (3)(1), 61DA(3), 65DAA

AMS v AIF (1999) 199 CLR 160
Badcoe & Badcoe (2008) FMCAFam 1368
F v F (2008) 38 Fam LR 52
Goode v Goode (2007) 36 Fam LR 422
Keach v Keach (2007) FLC 93-454
M v S (2007) 37 Fam LR 32
Mazorski v Albright (2008) 37 Fam LR 518
Morgan v Miles (2008) 38 Fam LR 275
Sampson v Hartnett (No.10) (2008) 38 Fam LR 315
Taylor v Barker (2008) 37 Fam LR 461
U v U (2002) 211 CLR 238
Wiley v Wiley [2008] FamCAFC 153
Winter v Winter [2008] FamFAFC 159

P. Parkinson, “Freedom of Movement in an Era of Shared Parenting: The Differences in Judicial Approaches to Relocation,” (2008) 36 Federal Law Review 145
P. Parkinson, “Relocation: What We Know Now and Why it Matters,” Paper for Family Law Conference, Fiji (June 2009)

Applicant:

MR FITZPATRICK

Respondent:

MS POWER

File Number:

CAC 302 of 2009

Judgment of:

Neville FM

Hearing date:

1 September 2009

Date of Last Submission:

1 September 2009

Delivered at:

Canberra

Delivered on:

2 September 2009

REPRESENTATION

Counsel for the Applicant:

Mr Howard

Solicitors for the Applicant:

Farrar Gesini & Dunn

Counsel for the Respondent:

Ms Godtschalk

Solicitors for the Respondent:

Maggie Orman, Solicitor

ORDERS

UNTIL FURTHER ORDER, IT IS ORDERED THAT:

The child [X] born in 2008 (“the child”) live with the Mother.
The Mother have sole parental responsibility for the child. In exercising her parental responsibility, the Mother is to keep the Father informed of any significant medical or other issue involving the child.
Subject to Order 7 below, the mother be at liberty to relocate the residence of the child to Queensland forthwith.
The child spend time with the Father as follows:
On 4 occasions each year for 6 days in the first week of each Queensland school holiday period for 3 or more periods of 2 hours between 9:00am and 6:00pm each day for the first two occasions and then for 3 or more periods of 3 hours between 9:00am and 6:00pm for the second two occasions;
On a further 2 occasions before the family conference in March 2010 for 5 days on each occasion and for 3 or more periods of 4 hours between 9:00am and 6:00pm each day. The dates and time for these periods shall be as agreed between the parties; and
Such further or alternative times as the parties may agree from time to time.
That for the purposes of Order 4:
(a)The Mother will travel to the [Y] district for the first week of the Term 2 holidays and for one week during the Term 4 Queensland school holidays, at her own cost, unless the Father advises no less than 5 days prior to the relevant period that he…

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 Fitzpatrick and Power

Details

AGLC: Fitzpatrick and Power [2009] FMCAfam 1007
Case: [2009] FMCAfam 1007
Decision Date: 2 September 2009

CaseChat Overview and Summary

Fitzpatrick and Power is a case concerning the custody of a child born in 2008, [X]. The mother and father are in dispute over where the child should live and how visitation should be arranged. The Family Court of Australia made several orders regarding the child’s residence, parental responsibility, and visitation with the father. The mother was granted sole parental responsibility and the right to relocate the child to Queensland. The father was granted visitation rights during Queensland school holidays and before a family conference in March 2010. The court also imposed conditions on the father’s alcohol consumption and required supervision during visitation.

The court had to decide several legal issues. One issue was where the child should live and whether the mother could relocate to Queensland. Another issue was how visitation with the father should be arranged, including whether it should be supervised and where it should take place. The court also had to decide whether the father should be restrained from consuming alcohol before and during visitation. Finally, the court had to determine whether the parties should attend a family conference to try to resolve their disputes.

The court decided that the child should live with the mother and that she could relocate to Queensland. The court also decided that visitation with the father should be supervised and alternate between two locations. The court imposed conditions on the father’s alcohol consumption and required sobriety tests before visitation. The court discharged previous orders that were no longer necessary and ordered the parties to attend a family conference. The court adjourned the matter to allow time for the family conference and to see if the parties were able to resolve their disputes.

Orders

Orders of the court

UNTIL FURTHER ORDER, IT IS ORDERED THAT:

The child [X] born in 2008 (“the child”) live with the Mother.

The Mother have sole parental responsibility for the child. In exercising her parental responsibility, the Mother is to keep the Father informed of any significant medical or other issue involving the child.

Subject to Order 7 below, the mother be at liberty to relocate the residence of the child to Queensland forthwith.

The child spend time with the Father as follows:

On 4 occasions each year for 6 days in the first week of each Queensland school holiday period for 3 or more periods of 2 hours between 9:00am and 6:00pm each day for the first two occasions and then for 3 or more periods of 3 hours between 9:00am and 6:00pm for the second two occasions;

On a further 2 occasions before the family conference in March 2010 for 5 days on each occasion and for 3 or more periods of 4 hours between 9:00am and 6:00pm each day. The dates and time for these periods shall be as agreed between the parties; and

Such further or alternative times as the parties may agree from time to time.

That for the purposes of Order 4:

(a) The Mother will travel to the [Y] district for the first week of the Term 2 holidays and for one week during the Term 4 Queensland school holidays, at her own cost, unless the Father advises no less than 5 days prior to the relevant period that he will be unable to spend time with the child during that period;

(b) The Mother will travel to the [Y] district for the periods of time pursuant to Order 4(a) at her own cost.

(c) The Father will travel to the district where the Mother is then living for the first week of the Term 1 and Term 3 Queensland school holidays, at his own cost;

(d) The Father’s time spent with the child is to include his other children, being [A] born in 1997, [B] born in 2000 and [C] born in 2001.

(e) Unless otherwise agreed between the parties, the time that the child is to spend with the Father shall be supervised by either or both of Ms C or Ms D (“the supervisors”).

(f) The time that the Father is to spend with the child shall, unless the parties otherwise agree, alternate between the homes of Ms D and Ms C.

(g) The Mother, if she chooses, may be present in the house or locality where the child is spending time with the Father but must remain in another room or apart from the Father and child unless she is required to calm the child if he is distressed;

(h) Prior to the commencement of each period of time the child is to spend with the Father, the supervisor must check the sobriety of the Father. If the Father is intoxicated then that period of time shall not occur. If the Father disputes that he is intoxicated then he may choose to submit to a breath test, and if the reading is less than 0.02%, then the period of time shall occur. The mother may be present at the commencement of each period of time and during any sobriety test.

The Father be and is hereby restrained from consuming any alcohol within 6 hours of the time he is to commence spending time with the child, or during the time he spends with the child.

10.

Orders 2, 3, 4, 5, 6, 7 and 11 of the Orders made on 13 May 2009 are discharged.

11.

Upon the completion of her contract with [W] the Mother return the residence of the child to within 60 kilometres of [Y], NSW. It is noted that the Mother’s contract of employment is for 18 months.

12.

The Mother notify the Father forthwith of any serious illness or injury affecting the child and be at liberty to contact any Doctor or hospital treating the child to obtain information.

13.

Pursuant to s. 62G of the Family Law Act 1975 the parties together with the child attend a family conference with a Family Consultant of the Federal Magistrates Court and Family Court of Australia to endeavour to resolve the issues in this case. This will involve the parties together with the child attending at the Federal Magistrates Court at Canberra on 1 March 2010 at 10:00am. This conference will be reportable and if the matter does not resolve the Family Consultant is requested to prepare a family conference report.

14.

The matter be adjourned to 29 March 2010 at 10:30am.

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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