BENSON & JESS - [2015] FamCA 144

FAMILY COURT OF AUSTRALIA

BENSON & JESS

[2015] FamCA 144

FAMILY LAW – CHIILDREN – Interim Orders – where mother recently reunited with child after significant absence – paternal grandmother previously removed child from father’s household and placed in mother’s care – where father seeks any order for time between mother and child be supervised – father concerned the mother’s psychological functioning may pose risk to child – where mother opposes order for supervision – best interests of the child – consideration of Family Assessment Report – wishes of the child – orders made for child to spend time with the mother unsupervised.

Family Law Act 1975 (Cth) s 60CC

Andrew & Delaine [2009] FamCAFC 182
Every & McNaught [2007] FamCA 626
Goode & Goode (2006) FLC 93-286

APPLICANT:

Ms Benson

RESPONDENT:

Mr Jess

FILE NUMBER:

ADC

4591

2014

DATE DELIVERED:

11 March 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

27 February 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Anderson

SOLICITOR FOR THE APPLICANT:

SPK Legal

COUNSEL FOR THE RESPONDENT:

Ms Furtardo

SOLICITOR FOR THE RESPONDENT:

Adelaide Lawyers

Orders

That the child B born … 2004 shall spend time with the mother each Sunday between the hours of 10am and 4pm commencing 14 March 2015.
That the handover arrangements in respect of the child spending time with her mother shall be effected by the child being delivered to and collected from the home of the paternal grandmother or at such other place as the parties may agree.
That the mother be restrained and an injunction is granted restraining her from discussing the proceedings with the child or allowing any third party to do so.
That the parties be restrained and injunctions are granted restraining each of them from denigrating, harassing or abusing the other party to the child or in the presence of the child or permitting any third party to do so.
That the mother shall within 24 hours of a request by the solicitors for the father provide a sample of her urine/blood to a qualified medical practitioner for the purpose of the administration of procedures to test for the presence of opiates, barbiturates, amphetamines, heroin, cannabis or any other derivative of those substances, such sample to be provided to the medical practitioner in accordance with the chain of custody protocol specified in AS/NZ 4308:2008 such that the integrity and identity of the sample can be guaranteed, with the results of such testing to be made available to the father as soon as the results become available PROVIDED that the request for a drug test shall not exceed one request in each month and not more than three tests in total.
That the mother be at liberty to speak with the child each Wednesday between the hours of 5pm and 7pm NOTING that the father is to afford the child privacy during such calls and that otherwise the parties will facilitate and permit the child to contact the other party…

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 BENSON & JESS

Details

AGLC: BENSON & JESS [2015] FamCA 144
Case: [2015] FamCA 144
Decision Date: 11 March 2015

CaseChat Overview and Summary

In the matter of BENSON & JESS, Berman J of the Family Court of Australia considered an application concerning the welfare and living arrangements of a child, B. The dispute centred on the terms of the child's time with each parent and the conduct of the parents towards each other and in relation to the child.

The court was required to determine the specific arrangements for the child's time with the mother, including the frequency, duration, and method of handover. Additionally, the court had to consider the need for injunctions to protect the child from parental conflict and to ensure the mother's sobriety. The court also had to address the father's request for drug testing of the mother.

Berman J ordered that the child would spend time with the mother each Sunday between 10 am and 4 pm, with handover arrangements to occur at the paternal grandmother's home or an agreed alternative location. Injunctions were granted restraining both parents from denigrating, harassing, or abusing each other in the presence of the child or permitting third parties to do so. The mother was also restrained from discussing the proceedings with the child. Furthermore, the mother was ordered to provide urine or blood samples for drug testing upon request, subject to limitations on the frequency and number of tests, with results to be provided to the father. The mother was granted liberty to speak with the child by telephone each Wednesday, with the father to afford the child privacy during these calls and to facilitate other contact initiated by the child. The matter was adjourned for further consideration, including the potential appointment of an Independent Children’s Lawyer, with liberty to relist on two days' notice.

Orders

Orders of the court

That the child B born … 2004 shall spend time with the mother each Sunday between the hours of 10am and 4pm commencing 14 March 2015.

That the handover arrangements in respect of the child spending time with her mother shall be effected by the child being delivered to and collected from the home of the paternal grandmother or at such other place as the parties may agree.

That the mother be restrained and an injunction is granted restraining her from discussing the proceedings with the child or allowing any third party to do so.

That the parties be restrained and injunctions are granted restraining each of them from denigrating, harassing or abusing the other party to the child or in the presence of the child or permitting any third party to do so.

That the mother shall within 24 hours of a request by the solicitors for the father provide a sample of her urine/blood to a qualified medical practitioner for the purpose of the administration of procedures to test for the presence of opiates, barbiturates, amphetamines, heroin, cannabis or any other derivative of those substances, such sample to be provided to the medical practitioner in accordance with the chain of custody protocol specified in AS/NZ 4308:2008 such that the integrity and identity of the sample can be guaranteed, with the results of such testing to be made available to the father as soon as the results become available PROVIDED that the request for a drug test shall not exceed one request in each month and not more than three tests in total.

That the mother be at liberty to speak with the child each Wednesday between the hours of 5pm and 7pm NOTING that the father is to afford the child privacy during such calls and that otherwise the parties will facilitate and permit the child to contact the other party by telephone whenever the child expresses a wish to do so.

That further consideration of the matter generally and the appointment of an Independent Children’s Lawyer is adjourned to 24 April 2015 at 9am.

Liberty is given to either party to have the matter relisted upon two days’ notice.

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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