FEDERAL CIRCUIT COURT OF AUSTRALIA
| FITZPATRICK & ESSER | [2018] FCCA 3756 |
| Catchwords: FAMILY LAW – Parenting– no dispute over live with – dispute over whether child should spend any time with father – child strongly resistant – entrenched attitude – impact on child’s mental and psychological health – evidence of family consultant – whether mother should have sole parental responsibility – final orders in child’s best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 61C, 61DA, 65DAA |
| Cases cited: Re F Litigants in Person Guidelines [2001] FamCA 348 Hall & Hall (1979) FLC 90-713 Reeves & Grinter [2017] FamCAFC 19 Goode & Goode (2006) FLC 93-286 MRR & GR (2010) 240 CLR 461 Sigley & Evor [2011] FamCAFC 22 Champness & Hanson (2009) FamCAFC 96 Slater & Light (2013) FamCAFC 4 R&R: Children’s Wishes (2000) FLC 93-000 Reiner & Reiner (2009) FamCA 926 Wang & Dennison (No.2) (2009) FamCA 1251 Heath & Hemming(No.2) (2011) FamCA 749 |
| Applicant: | MS FITZPATRICK |
| Respondent: | MR ESSER |
| File Number: | MLC 10183 of 2008 |
| Judgment of: | Judge O'Sullivan |
| Hearing dates: | 6 & 7 December 2018 |
| Date of Last Submission: | 7 December 2018 |
| Delivered at: | Dandenong |
| Delivered on: | 12 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr. MacFarlane |
| Solicitors for the Applicant: | Lampe Family Lawyers |
| Counsel for the Respondent: | Self-Represented |
| Solicitors for the Respondent: | Self-Represented |
ORDERS
All previous parenting orders be discharged.
The applicant mother have sole parental responsibility for the child, [X] born 2006 (“the child”) and the applicant mother forthwith advise the respondent father of any decisions made by her in the exercise of sole parental responsibility save for the provision of any information that will provide information of where the child lives or attends school.
The child live with the applicant mother.
Any time spent and communication between the child and the respondent father be in accordance with the child’s wishes, save that the respondent father be at liberty to send letters, cards and gifts to the child, care of Property A, Victoria.
The respondent father provide the applicant mother with his telephone number and email address and inform her of any change of either.
In the event the child expresses a wish to the applicant mother to spend time or communicate with the respondent father then the applicant mother communicate this information to the respondent father and facilitate the child’s request.
The applicant mother provide to the respondent father a copy all future school reports in relation to the child after first ensuring the identity of the school has been removed from such report and upon request by the respondent father, the applicant mother provide a photograph of the child to him such request to occur not more frequently than once every six months.
All extant applications be otherwise dismissed.
Pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these…
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- FITZPATRICK & ESSER [2018] FCCA 3756
- Case
- [2018] FCCA 3756
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the mother should have sole parental responsibility for the child and what arrangements, if any, should be made for time spent and communication between the child and the father, all within the overarching consideration of the child's best interests.
Judge O'Sullivan reasoned that the child's well-being and wishes were paramount. Applying principles of family law concerning the best interests of the child, the court found that granting the mother sole parental responsibility was appropriate given the circumstances. The court's orders reflected a careful balancing of the child's resistance and mental health concerns with the father's right to maintain some connection, albeit limited and child-driven.
Consequently, all previous parenting orders were discharged. The applicant mother was granted sole parental responsibility and the child was ordered to live with her. Any time spent and communication between the child and the respondent father were to be in accordance with the child's wishes, with the father permitted to send letters, cards, and gifts. The mother was directed to facilitate the child's requests for contact and to provide the father with school reports (with identifying school information removed) and photographs upon request, subject to limitations. The father was also ordered to provide his contact details to the mother.
Orders
Orders of the court
1.
All previous parenting orders be discharged.
2.
The applicant mother have sole parental responsibility for the child, [X] born 2006 (“the child”) and the applicant mother forthwith advise the respondent father of any decisions made by her in the exercise of sole parental responsibility save for the provision of any information that will provide information of where the child lives or attends school.
3.
The child live with the applicant mother.
4.
Any time spent and communication between the child and the respondent father be in accordance with the child’s wishes, save that the respondent father be at liberty to send letters, cards and gifts to the child, care of Property A, Victoria.
5.
The respondent father provide the applicant mother with his telephone number and email address and inform her of any change of either.
6.
In the event the child expresses a wish to the applicant mother to spend time or communicate with the respondent father then the applicant mother communicate this information to the respondent father and facilitate the child’s request.
7.
The applicant mother provide to the respondent father a copy all future school reports in relation to the child after first ensuring the identity of the school has been removed from such report and upon request by the respondent father, the applicant mother provide a photograph of the child to him such request to occur not more frequently than once every six months.
8.
All extant applications be otherwise dismissed.
9.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and these particulars are included in these orders.
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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