Astin and Astin - [2019] FamCA 648

FAMILY COURT OF AUSTRALIA

ASTIN & ASTIN

[2019] FamCA 648

FAMILY LAW – CHILDREN – Interim Parenting – Allegations of family violence, alcohol misuse, drug use and mental health concerns – Best interests of the children – Where the father seeks interim orders to spend time with the children – Where the mother contends that the risks of harm posed by the father are so great that the children should spend no time with him – Where the ICL proposes orders to mitigate harm posed by father through supervision of the children’s time with him at a contact centre – Orders made as proposed by the ICL.

Family Law Act 1975 (Cth) ss 60CA, 60CC, 65D

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Astin

RESPONDENT:

Ms Astin

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

PAC

1466

2019

DATE DELIVERED:

12 September 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

29 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gardiner

SOLICITOR FOR THE APPLICANT:

Adam Jones Solicitor

COUNSEL FOR THE RESPONDENT:

Ms Judge

SOLICITOR FOR THE RESPONDENT:

Maclarens Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Oxford

Orders

Pending further order

The children X born … 2007, Y born … 2010 and Z born … 2011 (“the children”) live with the mother.
The children spend time with the father at the father’s expense supervised by B Group, C Group or by a similar supervision service as agreed between the parties for a period of four hours each weekend on a day and at times as agreed between the parties.
Time in Order 2 is to commence as soon as practicable for the supervision service.
Each party will do all things necessary to contact and engage the services of the supervision service forthwith.
Changeover is to occur at the mother’s residence or at any other place as agreed by the parties in writing with the supervisor to be present when the children are collected and returned.
The parties are hereby restrained by injunction from:
(a)       Denigrating one another or allowing any other person to do so in the presence or hearing of the children;
(b)       Consuming illicit substances or being affected by illicit substances during any period the children are in their care or within 12 hours of the children being in their care; and
(c)       Physically disciplining the children.
The father is hereby restrained by injunction from:
(a) Consuming alcohol during any period the children are in his care or within 12 hours of the children being in his care;
(b) Entering the mother’s residence, D Street, Suburb E in the State of New South Wales.
The father submit to random urinalysis under the following conditions:
(a) The drug testing shall be by way of chain of custody urine drug screens with samples supplied in…

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 Astin and Astin

Details

AGLC: Astin and Astin [2019] FamCA 648
Case: [2019] FamCA 648
Decision Date: 12 September 2019

CaseChat Overview and Summary

The case of *Astin and Astin* concerned interim orders made by Hannam J regarding the parenting of three children. The dispute involved the living arrangements for the children, their time spent with each parent, and various conditions and restrictions imposed on both parents.

The court was required to determine the appropriate interim orders for the children's residence and time with each parent, considering the need for supervision and specific behavioural requirements. Key issues included the father's contact with the children, the father's consumption of illicit substances and alcohol, the mother's consumption of illicit substances, and the physical discipline of the children. The court also had to consider the father's compliance with drug and alcohol testing, and the participation of both parents in specific programs and therapy.

Hannam J made orders that the children live with the mother and spend time with the father under supervision. The father was ordered to submit to random urinalysis, carbohydrate-deficient transferrin (CDT) testing, and hair drug testing, with the costs to be borne by him. Both parents were restrained from denigrating each other in the presence of the children, consuming illicit substances within specified periods of the children's care, and the father was specifically restrained from consuming alcohol during periods of care and from entering the mother's residence. The father was also ordered to maintain his hair length for testing purposes. Furthermore, both parents were required to enrol in a "Keeping in Contact" program and attend family therapy sessions, with the costs of therapy to be shared equally.

Orders

Orders of the court

Pending further order

The children X born … 2007, Y born … 2010 and Z born … 2011 (“the children”) live with the mother.

The children spend time with the father at the father’s expense supervised by B Group, C Group or by a similar supervision service as agreed between the parties for a period of four hours each weekend on a day and at times as agreed between the parties.

Time in Order 2 is to commence as soon as practicable for the supervision service.

Each party will do all things necessary to contact and engage the services of the supervision service forthwith.

Changeover is to occur at the mother’s residence or at any other place as agreed by the parties in writing with the supervisor to be present when the children are collected and returned.

The parties are hereby restrained by injunction from:

(a) Denigrating one another or allowing any other person to do so in the presence or hearing of the children;

(b) Consuming illicit substances or being affected by illicit substances during any period the children are in their care or within 12 hours of the children being in their care; and

The father is hereby restrained by injunction from:

(a) Consuming alcohol during any period the children are in his care or within 12 hours of the children being in his care;

(b) Entering the mother’s residence, D Street, Suburb E in the State of New South Wales.

The father submit to random urinalysis under the following conditions:

(a) The drug testing shall be by way of chain of custody urine drug screens with samples supplied in a supervised environment and checked for adulteration;

(b) The drug testing shall meet the Australian/New Zealand Standard 4308/2001;

(c) The Independent Children’s Lawyer shall issue such requests by email to the father’s legal representative or, in the event the father is self-represented at any time during the course of the proceedings, by email directly to the father;

(d) The father shall ensure that a copy of the urinalysis test results are provided to the mother and the Independent Children’s Lawyer within 48 hours of receipt from his general practitioner or the pathology centre;

(e) Copies of the urinalysis test results may be provided by the Independent Children’s Lawyer to any Single Expert Witness or family consultant appointed to provide a report in this matter;

(f) The father shall be solely responsible for the costs of the uninalysis testing pursuant to these orders;

(g) The Independent Children’s Lawyer shall not issue requests for urinalysis testing more frequently than on one occasion in each calendar month.

The father undergo carbohydrate-deficient transferrin (“CDT") in accordance with the following conditions:

(a) The father will undergo a CDT testing to detect excessive alcohol use with such test to be performed by a medical practitioner or at a Pathology Centre within 48 hours of receiving a request from the Independent Children’s Lawyer;

(b) The CDT test is to be analysed using high-performance liquid chromatography (“HPLC”) analysis method;

(c) The Independent Children’s Lawyer shall issue such requests by email to the father’s legal representative or, in the event that the father is self-represented at any time during the course of the proceedings by email directly to the father. For the purpose of this order, the father shall provide an email address to the Independent Children’s Lawyer within 48 hours of becoming self-represented;

(d) The father shall ensure that a copy of the CDT test results are provided to the mother and the Independent Children’s Lawyer within 48 hours of receipt from his general practitioner or the Pathology Centre.

(e) Copies of the CDT test results may be provided by the Independent Children’s Lawyer to any single expert witness or family consultant appointed to provide a report in this matter;

(f) The father shall be solely responsible for the cost of the CDT testing pursuant to these orders;

(g) The ICL shall not issue requests for CDT testing more frequently than on one occasion in each calendar month.

10.

That the father make an appointment and attend for hair collection at an Australian Workplace Drug Testing Service (AWDTS) Clinic or nominee for hair drug testing purposes. Collection is to be conducted by a qualified and certified collector. Chain of Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025.2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:

(a) The father is required to maintain his head hair at a length of not less than four (4) centimetres, neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;

(b) Within seventy-two (72) hours of the date of these orders, the father is required to make an appointment with AWDTS by telephoning for the purpose of providing a hair sample for the hair drug testing purposes;

(d) The father is to attend at an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample at the earliest available appointment time within seven (7) days of receiving written notice to undertake hair collection for hair drug testing purposes;

(e) Written notice to undertake hair collection for hair drug testing purposes may be sent to the father care of the email address and shall be deemed to have been received by the father at the date and time it is sent via email;

(f) The father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to both parties, the father and the mother, the Independent Children’s Lawyer, and/or their legal representatives upon receipt of such test results.

(g) The hair drug test may screen for drugs of abuse including amphetamine type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites.

(h) AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025.2005 by the relevant National Accreditation body, AWDTS selection is to be based on the type of test require, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of hair Testing (SoHT) guidelines, cost and time required for results to be made available.

(i) The father is only required to submit to hair drug testing not more frequently than once per three (3) calendar months;

11.

The parties will forthwith do all things and take all steps to enrol in and complete the “Keeping in Contact” program offered by F Group and do all things to make the children available if required for the purpose of that program.

12.

That Mr H be appointed as Family Therapist and for the purpose of that therapy, both the mother and father shall do all things required to ensure the attendance of the three children at all such sessions that are recommended by Mr H and that both the mother and the father shall personally attend all such sessions as are recommended by Mr H. The costs of Family Therapy are to be equally shared between the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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