FEDERAL CIRCUIT COURT OF AUSTRALIA
| BICKERTON & MCNAMARA & ANOR | [2017] FCCA 2254 |
| Catchwords: PRACTICE & PROCEDURE – Transfer to the Family Court of Australia. |
| Legislation: Family Law Act 1975, s.65C |
| Cases cited: Valentine & Lacerra & Anor (2013) FLC 93-539 Lindon v the Commonwealth (No.2) (1996) 136 ALR 251 |
| Applicant: | MS BICKERTON |
| First Respondent: | MS MCNAMARA |
| Second Respondent: | MR BICKERTON |
| File Number: | MLC 9887 of 2016 |
| Judgment of: | Judge Harland |
| Hearing dates: | 11 & 12 September 2017 |
| Date of Last Submission: | 12 September 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 15 September 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Stanley |
| Solicitors for the Applicant: | Marcou & Associates |
| Counsel for the First Respondent: | Ms Mansfield |
| Solicitors for the First Respondent: | Cathleen Corridon & Associates |
| Counsel for the Second Respondent: | Mr Hall |
| Solicitors for the Second Respondent: | Hartleys Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Kiernan |
| Solicitors for the Independent Children’s Lawyer: | Beswick Foulkes Family Law |
ORDERS
That order 2 of the consent orders made 17 May 2017 be discharged.
That for a period of not more than three months X born (omitted) 2015 (“the child”) spend time with the mother as follows:
(a)Each Saturday from 2.00pm until 4.00pm commencing 23 September 2017;
(b)At “(omitted)” in (omitted);
(c)Supervised by the Applicant; and
(d)At other times as agreed between the mother and the applicant, with notice being given to the Independent Children’s Lawyer.
That should the Applicant observe the mother to attend at time, pursuant to Order 2 herein, drug affected then the applicant be at liberty to cancel that time.
That the mother undertake a hair follicle test no earlier than three months from the date of this order.
That should the hair follicle test undertaken by the mother reveal that there has been consumption of illicit substances in the past three months, then mother’s time pursuant to Order 2 herein become supervised time at one of the contact centres provided at order 6 herein.
That the applicant and the mother do all acts and things to enrol at the Children’s Contact Service at (omitted), the Berry Street Children’s Contact Service at (omitted), and Children’s Contact Service at Children and Family Services at (omitted), for the purpose of the mother spending time with the child as can be accommodated by the Contact Service with costs associated to be borne by the mother.
That the applicant and the father do all acts and things to enrol at the Children’s Contact Service at (omitted), the Berry Street Children’s Contact Service at (omitted), and Children’s Contact Service at Children and Family Services at (omitted) for the…
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- Case
- [2017] FCCA 2254
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the existing consent orders should be discharged, and what interim parenting orders were necessary to ensure the child's safety and wellbeing, particularly in light of allegations of drug use by the mother and the need for drug testing for the father. The court also considered the procedural step of transferring the proceedings to the Family Court of Australia.
Judge Harland reasoned that the allegations of drug use by the mother necessitated a review of the existing orders, leading to their discharge. The court made interim orders for the mother to spend supervised time with the child for a limited period, with a provision allowing the applicant to cancel contact if the mother appeared drug affected. Further, the mother was ordered to undertake a hair follicle test within three months, with the results potentially leading to more stringent supervised contact. The father was also ordered to undergo random, supervised drug testing at the request of the Independent Children’s Lawyer. The court also ordered the parties to enrol in contact services and transferred the proceedings to the Melbourne Registry of the Family Court of Australia for further hearing.
Orders
Orders of the court
1.
That order 2 of the consent orders made 17 May 2017 be discharged.
2.
That for a period of not more than three months X born (omitted) 2015 (“the child”) spend time with the mother as follows:
(a) Each Saturday from 2.00pm until 4.00pm commencing 23 September 2017;
(b) At “(omitted)” in (omitted);
(c) Supervised by the Applicant; and
(d) At other times as agreed between the mother and the applicant, with notice being given to the Independent Children’s Lawyer.
3.
That should the Applicant observe the mother to attend at time, pursuant to Order 2 herein, drug affected then the applicant be at liberty to cancel that time.
4.
That the mother undertake a hair follicle test no earlier than three months from the date of this order.
5.
That should the hair follicle test undertaken by the mother reveal that there has been consumption of illicit substances in the past three months, then mother’s time pursuant to Order 2 herein become supervised time at one of the contact centres provided at order 6 herein.
6.
That the applicant and the mother do all acts and things to enrol at the Children’s Contact Service at (omitted), the Berry Street Children’s Contact Service at (omitted), and Children’s Contact Service at Children and Family Services at (omitted), for the purpose of the mother spending time with the child as can be accommodated by the Contact Service with costs associated to be borne by the mother.
7.
That the applicant and the father do all acts and things to enrol at the Children’s Contact Service at (omitted), the Berry Street Children’s Contact Service at (omitted), and Children’s Contact Service at Children and Family Services at (omitted) for the purpose of the father being placed on waiting list with costs associated to be borne by the father.
8.
That the father undertake supervised drug screen testing (“the testing”):
(a) the testing occur at a pathology centre or other place approved by the Independent Children’s Lawyer; and
(b) the testing occur randomly and within 24 hours of the Independent Children’s Lawyer making a written request for the testing to occur.
The results of the testing, on each occasion be forwarded, as soon as possible, to the Independent Children’s Lawyer, the applicant’s solicitors, and the mother’s solicitors.
9.
That pursuant to section 39 of the Federal Circuit Court of Australia Act 1999 (Cth), these proceedings are transferred to the Melbourne Registry of the Family Court of Australia to be listed with such priority as that Court is able to provide.
10.
That all parties be permitted to provide a copy of the Family Report and these reasons for judgment and orders to any treating psychologist, psychiatrist, or counsellor.
11.
That pursuant to Rule 21.15 of the Federal Circuit Court Rules 2001 the Court certifies that it was reasonable for the parties to employ an advocate to appear in the 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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