FLEETWOOD & WALTERS - [2014] FCCA 580

FEDERAL CIRCUIT COURT OF AUSTRALIA

FLEETWOOD & WALTERS

[2014] FCCA 580

Catchwords:
FAMILY LAW – Parenting – mother’s ability to facilitate the child’s relationship with the father – mother’s denigration of the father – mother’s consumption of alcohol – evidence of consultant psychiatrist – change of primary residence – sole parental responsibility.

Legislation:

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

Collu & Rinaldo [2010] FamCAFC 53
Dundas & Blake [2013] FamCAFC 133
Marvel v Marvel (2010) 43 Fam LR 348

Applicant:

MR FLEETWOOD

Respondent:

MS WALTERS

File Number:

BRC 7101 of 2012

Judgment of:

Judge Howard

Hearing dates:

17 and 18 March 2014

Date of Last Submission:

21 March 2014

Delivered at:

Brisbane

Delivered on:

26 March 2014

REPRESENTATION

Solicitors for the Applicant:

Self Represented

Solicitors for the Respondent:

Self Represented

Counsel for the Independent Children's Lawyer:

Mr Linklater-Steele

Solicitors for the Independent Children's Lawyer:

DA Family Lawyers

ORDERS – UNTIL FURTHER ORDER

That the child X born (omitted) 2010 (“the child”) shall be released from the Child Dispute Services Section of the Federal Circuit Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane into the care of the father on 26 March 2014.
That the child live with the father.
That a Family Consultant at Level 3 of the Federal Circuit Court of Australia provide counselling to the child in relation to the child’s change of residency if the Family Consultant deems it necessary.
That for a period of two (2) months from 26 March 2014 the child shall have no contact whatsoever with the mother.
That the Independent Children’s Lawyer shall prepare a proposed Final Order reflecting the Reasons for Judgment and forward it to the Court by 4:00pm on 2 April 2014.

IT IS NOTED that publication of this judgment under the pseudonym Fleetwood & Walters is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 7101 of 2012

MR FLEETWOOD

Applicant

And

MS WALTERS

Respondent

REASONS FOR JUDGMENT

The Applicant father is Mr Fleetwood. He lives in (omitted), Queensland. He works in (employment omitted). The father was born on (omitted) 1986.
The mother Ms Walters was born on (omitted) 1989. The mother lives in (omitted), Queensland.
The parties are the parents of X who was born on (omitted) 2010. The parents commenced a relationship on (omitted) 2009 and commenced living together in approximately June 2009. The parents separated in December 2010. Prior to that separation the parents had lived in (omitted) and (omitted). Both of those towns are in New South Wales.
After the separation in December 2010 the mother relocated with X to Brisbane in approximately March or April 2011. The father remained in (omitted).
Between April 2011 and October 2011 the father had telephone time with the child but only saw her on limited occasions – when the mother would agree to let him do so.
Between October 2011 and 27 December 2011 the father travelled from (omitted) every…

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 FLEETWOOD & WALTERS

Details

AGLC: Fleetwood and Walters [2014] FCCA 580
Case: [2014] FCCA 580
Decision Date: 26 March 2014

CaseChat Overview and Summary

This matter concerned parenting orders sought by Fleetwood and Walters, heard before Howard J in the Family Court of Australia. The dispute revolved around the paramount consideration of the child's best interests in determining the appropriate parenting arrangements.

The court was required to determine how to apply section 60CA of the *Family Law Act 1975*, which mandates that the best interests of the child are the paramount consideration when making a parenting order. Specifically, the court needed to consider how the factors outlined in section 60CC, including the broad catch-all provision in section 60CC(3)(m) for any other relevant fact or circumstance, applied to the specific circumstances of the case.

Howard J noted that the mother had a long-standing issue with alcohol, with evidence dating back to 2004 when she was 15 years old. Subpoenaed material from the New South Wales Police Service detailed an incident on 1 October 2004 where the mother, then a minor, was found intoxicated and detained by police. The police notes described her behaviour as aggressive, abusive, and physically resistant towards officers, including spitting directly into the face of one officer. The court considered this history of excessive alcohol consumption and associated behaviour as a relevant fact and circumstance under section 60CC(3)(m) when assessing the child's best interests.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 60CA of the Family Law Act 1975 states:-““SECTION 60CA CHILD’S BEST INTERESTS PARAMOUNT CONSIDERATION IN MAKING A PARENTING ORDER60CA In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.” Section 60CC of the Act states how it is that a Court determines what is in a child’s best interests. The primary considerations are stated in s.60CC(2). Additional considerations appear in s.60CC(3). Section 60CC(3)(m) is a subsection requiring the Court to take into account, “any other fact or circumstance that the Court thinks is relevant”. Because of the myriad of issues for consideration in this particular parenting case – it is convenient and appropriate for the Court to deal firstly with s.60CC(3)(m). For many years the mother has had a problem with alcohol. The evidence discloses that, as early as 2004 – when the mother was only aged 15 years – the mother was consuming alcohol excessively and to such an extent that it was impairing her ability to make sensible decisions. Exhibit 5 contains subpoenaed material from the New South Wales Police Service. On 1 October 2004 in (omitted), New South Wales, the mother was intoxicated and was detained by the police. The police notes of 1 October 2004 note as follows:“At 9.30pm on Friday the 1st October 2004, the young person was located by Police in (omitted) well affected by alcohol consuming alcohol from a bottle of ‘Smirnoff’ vodka spirit. Due to her inability to take care of herself and her state of intoxication, she was detained and conveyed to the Police station with the aim to contact a parent/guardian to release her into their custody. Whilst at the station she was placed in a muster room, not in the charge room due to her tender age. The young person insisted on Police supplying her with a cigarette. This request was refused. The young person started to walk out of the station, she was informed she was not able to leave until a parent/guardian was able to take her into their custody. The young person became aggressive and abusive towards Police and had to be restrained. The young person was placed in to the charge room into a dock. A mobile phone was in her possession in the dock and she had a silver chain best around her waist that was a custody risk. The dock door opened and the young person was invited to leave the dock and remove her personal property. The young person refused to leave yelling abuse at Police. Eventually the young person was forcibly removed for the purpose of being searched. She resisted, kicking Leading Senior Constable B in the stomach as she was standing on the seat in the dock. The young person had to be restrained on the ground whilst a female officer removed her property. The young person resisted any attempt to put her legs back in the dock, as Police were trying to push her in, the young person kicked Constable T in the shins. Eventually the door was closed. The young person was entered into custody, during that period the young person continued to yell loud abuse at any Police officer present. The young persons father was contacted, he stated that he was working a shift as a (omitted) and was unable to attend until 4:30am. A Duty Officer from (omitted) attended the station and spoke to the young person, who abused the Duty Officer in response. Whilst in the dock the young person was baring her buttocks towards Police whilst wearing a G-string and continually yelled abuse at Police. With the Duty Officer present it was decided to move the young person to a cell where the young person had more room and a mattress to lie on with a blanket. The dock door was opened and the young person hurled abuse at the officers present. No officer touched her or came into contact with her in any way. The young person walked to the cell and stood in the door yelling abuse directly in the face of Leading Senior Constable B, as she was yelling, saliva from her mouth was striking Leading Senior Constable B in the face. Leading Senior Constable B asked her not to spit in his face, the young person spat a mouthful of spit then directly into the fact of Leading Senior Constable B from a distance of about 20cm away. The saliva struck the officer in the left eye, cheek, forehead and hair. The young person walked into the dock and the dock was secured. Leading Senior Constable B immediately washed the saliva off his person. The young person was informed that she had assaulted Police and action would be taken. The young person continued yelling loud offensive abuse at Police for a further 40 minutes before quietening down. Police suspect the young person may have had more than alcohol this evening. Neither Constables T or B were injured as a result of each assault. Leading Senior Constable B felt disgust at her actions, Constable T felt pain where she was kicked for some time afterwards.”