FITZPATRICK & ESSER - [2018] FCCA 3756

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…

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.

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Details

AGLC: FITZPATRICK & ESSER [2018] FCCA 3756
Case: [2018] FCCA 3756
Decision Date: 12 December 2018

CaseChat Overview and Summary

In the matter of *Fitzpatrick & Esser*, heard by Judge O'Sullivan, the dispute concerned parenting arrangements for a child born in 2006. While there was no disagreement regarding the child living with the mother, a significant conflict arose over whether the child should have any contact with the father, given the child's strong resistance and entrenched attitude, which was impacting their mental and psychological health. Evidence from a family consultant was presented to the court.

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

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 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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