Fitzroy and Clauson

Case [2017] FCCA 46


FEDERAL CIRCUIT COURT OF AUSTRALIA

FITZROY & CLAUSON [2017] FCCA 46
Catchwords:
FAMILY LAW – Parenting – relocation of children’s residence from Brisbane to Hobart – spend time with arrangements – restraint regarding posting on social media – change of children’s surname to a hyphenated surname.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B, 121

Cases cited:

Hall & Hall (1979) FLC 90-713

Sayer & Radcliffe [2012] FamCAFC 209
Taylor & Barker [2007] FamCA 1246
Duggan & Duggan [2009] FamCAFC 115
Heaton & Heaton [2012] FamCAFC 139
AMS v AIF (1999) 199 CLR 160
Morgan & Miles (2007) FLC 93-343
McCall & Clark (2009) FLC 93-405
Chapman & Palmer (1978) FLC 90-510
Mahony & McKenzie (1993) FLC 92-408

Applicant: MS FITZROY
Respondent: MR CLAUSON
File Number: HBC 287 of 2015
Judgment of: Judge Baker
Hearing dates: 4 November 2016, 9 December 2016
Date of Last Submission: 9 December 2016
Delivered at: Hobart
Delivered on: 2 February 2017

REPRESENTATION

Counsel for the Applicant: Mr Trezise
Solicitors for the Applicant: Dobson Mitchell Allport
Counsel for the Respondent: Self-Represented
Solicitors for the Respondent: N/A

ORDERS

  1. The parties have equal shared parental responsibility for their children [X] (“[X]”) born (omitted) 2012 and [Y] (“[Y]”) born (omitted) 2014 (“the Children”).

  2. The children be known by the surname Fitzroy-Clauson.

  3. The children live with the mother and she is permitted to relocate their residence to Tasmania.

  4. After [X] has spent one week of supervised time with the father pursuant to order 3 made 4 November 2016, in 2017 [X] spend time during the day with the father each alternate month from the first Monday until the first Friday of the calendar month; and on any other month, if the father gives the mother 14 days’ written notice of his intention to exercise such time:

    (i)On the first visit,  time to be unsupervised  for a period up to five hours each day, and to fit around [X]’ Kindergarten attendance.

    (ii)After the time referred to in (i), [X] spend one night with the father from 5:00 pm Monday until 2:00 pm Tuesday, or the commencement of Kindergarten, whichever is earlier; and for up to five hours on the subsequent week days, or such time as agreed.

    (iii)After the time referred to in (ii), [X] spend two nights with the father from 5:00 pm Monday until 2:00 pm Wednesday, or the commencement of Kindergarten, whichever is the earlier; and for up to five hours on Thursday and Friday, or such time as agreed.

    (iv)On each subsequent visit after the time referred to in (iii), the overnight time shall increase by one extra night.

  5. [X] spend time with the father in Brisbane for one week during the third term school holidays 2017 and, if [X] has spent two consecutive nights with the father by that time, he spend three consecutive nights with him; otherwise he spend two nights; and the balance of the week to be day time for up to 8 hours or such time as…

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AGLC
Fitzroy and Clauson [2017] FCCA 46
Case
[2017] FCCA 46
Decision Date

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Baker in the Federal Circuit Court of Australia. The dispute involved the parents, Fitzroy and Clauson, regarding the future care and time arrangements for their two children, [X] and [Y]. A key element of the dispute was the mother's proposed relocation of the children's residence to Tasmania.

The court was required to determine the extent of shared parental responsibility, the children's surname, the primary residence of the children, and the specific arrangements for the children to spend time with the father. This included detailed provisions for both supervised and unsupervised time, the progression of overnight stays, holiday arrangements, and communication methods between the children and the father. The court also considered an application for the mother to relocate the children's residence and a restraining order against the father concerning social media posts.

Judge Baker made orders for equal shared parental responsibility, with the children to live with the mother and be permitted to relocate to Tasmania. The children were to be known by the surname Fitzroy-Clauson. The court then set out a detailed schedule for the children's time with the father, which included a phased approach to increasing unsupervised time for [X] and a gradual increase in unsupervised time for [Y] after supervised sessions. The father was restrained from posting material about the mother or her family on social media. Leave was granted to the father to apply for unsupervised time with [Y] after a specified number of supervised sessions.

Orders

Orders of the court

1.

The parties have equal shared parental responsibility for their children [X] (“[X]”) born (omitted) 2012 and [Y] (“[Y]”) born (omitted) 2014 (“the Children”).

2.

The children be known by the surname Fitzroy-Clauson.

3.

The children live with the mother and she is permitted to relocate their residence to Tasmania.

4.

After [X] has spent one week of supervised time with the father pursuant to order 3 made 4 November 2016, in 2017 [X] spend time during the day with the father each alternate month from the first Monday until the first Friday of the calendar month; and on any other month, if the father gives the mother 14 days’ written notice of his intention to exercise such time:

(i) On the first visit, time to be unsupervised for a period up to five hours each day, and to fit around [X]’ Kindergarten attendance.

(ii) After the time referred to in (i), [X] spend one night with the father from 5:00 pm Monday until 2:00 pm Tuesday, or the commencement of Kindergarten, whichever is earlier; and for up to five hours on the subsequent week days, or such time as agreed.

(iii) After the time referred to in (ii), [X] spend two nights with the father from 5:00 pm Monday until 2:00 pm Wednesday, or the commencement of Kindergarten, whichever is the earlier; and for up to five hours on Thursday and Friday, or such time as agreed.

(iv) On each subsequent visit after the time referred to in (iii), the overnight time shall increase by one extra night.

5.

[X] spend time with the father in Brisbane for one week during the third term school holidays 2017 and, if [X] has spent two consecutive nights with the father by that time, he spend three consecutive nights with him; otherwise he spend two nights; and the balance of the week to be day time for up to 8 hours or such time as agreed, the commencement and conclusion time to be nominated by the father, if not otherwise agreed.

6.

The mother be responsible for the travel costs for the visit referred to in order 5 and subsequent third term school holiday visits.

7.

After [X] has spent time with the father in accordance with orders 4 and 5, [X] spend time with the father:

(i) From 2018, for one half of all school holidays, during the first half, if not otherwise agreed, the third term holiday visit to occur in Brisbane.

(ii) From 2018, for two weekends per school term from Friday after school until Monday morning at school upon the father giving 14 days’ notice in writing to the mother.

(iii) Such further or other times as agreed.

(iv) The father be responsible for the costs of travel for visits, save for the third term school holiday visits, for which the mother is responsible.

8.

After [Y] has spent one visit of supervised time pursuant to order 3 made 4 November 2016, [Y] spend time with the father each alternate month from the first Monday until the first Friday of the calendar month; and on any other month, if the father gives the mother 14 days’ notice of his intention to exercise such time:

(i) At the (omitted) Children’s Contact Centre, or such other service that can be utilised from 2:00 pm until 5:00 pm, or such other time as the Contact Centre or such other service can accommodate; or alternatively such time to be supervised by a person to be agreed; and

(ii) Unsupervised time as agreed, when [Y] is ready for such time, for short periods of up to three hours and increasing gradually for such periods of time as agreed.

(iii) For one week in Brisbane in 2017 during the third term school holidays, each day for three hours from 2:00 pm until 5:00 pm or such other time as agreed, such time to be supervised at a contact centre to be nominated by the father, or by such other supervisor as agreed, if not otherwise agreed that unsupervised time occur.

9.

[X] and [Y] communicate with the father via Skype, FaceTime or telephone calls for a duration of 30 minutes three times per week at such times to be agreed via text message.

10.

The father be and is hereby restrained from posting or maintaining any material on social media sites about the mother, the children or members of the mother’s family.

11.

Leave is granted to the father to apply for unsupervised time with [Y] after six sessions of supervised time has occurred pursuant to order 8(i).

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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