FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Abberley & Clement [2021] FedCFamC2F 211
File number(s): CAC 2180 of 2019 Judgment of: JUDGE W J NEVILLE Date of judgment: 20 October 2021 Catchwords: FAMILY LAW – Review of Registrar’s decision – Father’s application for time with the child - Mother subsequently filed Response including Orders for liberty to relocate – Registrar ordered supervised time between the Father and child to commence and dismissed the Mother’s Application for interim relocation – where the Father has essentially spent no time with the child except for a period of 15 minutes at a contact centre – where the Mother seeks to relocate with the child to the Region B – Father confirmed his daily us of cannabis – Mother provided two expert Reports that are subsequent to an expert Report – Mother has obtained a job and is also now expecting her second child – long history of trauma in Mother’s life – Father has no relationship with young child – interim relocation Application granted. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60(2A), 60CC(3)(a) – (o)
Federal Circuit and Family Court of Australia Act 2001 (Cth) Part 7, Division 3
Federal Circuit and Family Court of Australia Rules 2021 (Cth) rr.14.05, 14.06, 14.07
Cases cited: Banks & Banks (2015) FLC 93-637
Franklyn & Franklyn [2019] FamCAFC 256
Godfrey & Sanders [2007] FamCA 102
Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
Harris v Caladine (1991) 172 CLR 84
Morgan v Miles (2007) 38 Fam LR 275Perry & Perry (2015) FLC 669
Sigley v Evor (2011) 44 Fam LR 439
Redmond & Redmond [2014] FamCAFC 155
Taylor v Barker (2008) 37 Fam LR 461
Vanzin & Vanzin [2014] FamCAFC 245
Number of paragraphs: 159 Date of hearing: 3 August 2021 Place: Canberra Solicitor for the Applicant: Robinson + McGuinness Solicitor for the Respondent: KJB Law Solicitor for the Independent Children's Lawyer: Legal Aid ACT ORDERS
CAC 2180 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ABBERLEY
Applicant
AND: MS CLEMENT
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
20 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Orders made by Senior Registrar Tran on 22 March 2021 be discharged.
2.The Mother be at liberty to relocate the child’s, X (born: in 2019), place of residence to the greater Sydney region.
3.The Mother will cause her legal representative to advise the Independent Children’s Lawyer and the legal representative for the Father that she and X have relocated to the greater Sydney region within 7 days of the Mother having done so.
4.Subsequent to the Mother having relocated the Mother will, within 28 days thereafter, do all acts and things required to enrol in and complete a “Keeping Kids in Mind” course (or comparable course/program in or around the area in which the Mother resides) and provide evidence of having completed such a…
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CaseChat Overview and Summary
The primary legal issue before the court was whether the mother should be granted interim liberty to relocate with the child to the greater Sydney region. The court also had to consider the appropriate conditions for any contact between the father and the child. The court examined the evidence provided by both parties, including expert reports, and considered the history of trauma in the mother's life, the father's use of cannabis, and the lack of a relationship between the father and the child.
The court found that the mother should be granted interim liberty to relocate with the child to the greater Sydney region, due to the long history of trauma in her life, her new job, and her pregnancy. The court also found that the father's use of cannabis was a concern, but that supervised time between the father and the child could commence after six months of negative drug tests. The court made several orders, including that the mother be at liberty to relocate, that the father participate in drug testing and random testing, and that supervised time between the father and the child commence after six months of negative drug tests.
The court dismissed the Registrar's orders and the mother's interim application for relocation was granted. The court also made several other orders, including that the parties notify the court of the agreed procedural course for the matter, and that the parties' therapeutic counsellors be provided with a copy of the reasons for judgment.
Orders
Orders of the court
CAC 2180 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR ABBERLEY
Applicant
AND:
MS CLEMENT
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
20 OCTOBER 2021
THE COURT ORDERS THAT:
1. The Orders made by Senior Registrar Tran on 22 March 2021 be discharged.
2. The Mother be at liberty to relocate the child’s, X (born: in 2019), place of residence to the greater Sydney region.
3. The Mother will cause her legal representative to advise the Independent Children’s Lawyer and the legal representative for the Father that she and X have relocated to the greater Sydney region within 7 days of the Mother having done so.
4. Subsequent to the Mother having relocated the Mother will, within 28 days thereafter, do all acts and things required to enrol in and complete a “Keeping Kids in Mind” course (or comparable course/program in or around the area in which the Mother resides) and provide evidence of having completed such a course or program to the ICL and the legal representative for the Father within 14 days of completion.
5. Within 14 days of the date of these Orders, being by 3 November 2021, the Father is to arrange and participate in chain-of-custody hair follicle drug testing for illicit substances and in doing so, provide a hair sample of sufficient length such that the use of any illicit substances for at least the previous 6 months can be tested. A copy of the Father’s test results are to be forwarded to the Independent Children’s Lawyer (ICL) and the Mother’s solicitors within 48 hours of receipt.
6. For the purposes of Order 5, the Father be restrained from:
(a) Causing his hair to be cut shorter than a length of 5 centimetres; and
(b) Dying or bleaching his hair.
7. The Father do all things necessary to participate in random chain-of-custody testing no more than once per calendar month at the request of the ICL and will forward a copy of the test results to the ICL and the Mother’s solicitor within 48 hours of receipt.
8. Following 6 months of negative drug tests (the time period to commence from the date of the first drug test), supervised time between the Father and child is to commence at an agreed contact centre and failing agreement, at C Counselling in Suburb D or Suburb E.
9. The parties’ therapeutic counsellors be provided with a copy of these reasons.
10. Ms F, the Father’s psychologist, be provided with a copy of the Mother’s affidavit dated 15 September 2020.
11. Within 21 days of the date of these Orders, being by 10 November 2021, the parties are to notify the Court via email to Associate.JudgeWJNeville@fcfcoa.gov.au regarding the agreed procedural course for the matter.
12. The Application in a Case filed by the Mother 20 May 2021 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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