Branson & Fuller

Case [2021] FCCA 1999

FEDERAL CIRCUIT COURT OF AUSTRALIA

Branson & Fuller [2021] FCCA 1999

File number(s): DUC 172 of 2020
Judgment of: JUDGE OBRADOVIC
Date of judgment: 30 August 2021
Catchwords: FAMILY LAW – interim parenting – assessment of risks – family violence – illicit substance use – best interest of the children
Legislation: Family Law Act 1975 (Cth), ss 68B, 68C, 69ZL
Cases cited: Goode v Goode [2006] FamCA 1346
Keats & Keats [2016] FamCAFC 156
Number of paragraphs: 23
Date of hearing: 28 July 2021 and 24 August 2021
Place: Parramatta
Appearing for the Applicant: Mr Johnson
Solicitor for the Applicant: Paul Johnson Solicitor
Appearing for the Respondent: Mr Pigott and the Respondent in person
Solicitor for the Respondent: Legal Aid Dubbo
Appearing for the Independent Children's Lawyer: Ms McKay and Ms Osborne
Solicitor for the Independent Children's Lawyer: Osborne Legal

ORDERS

DUC 172 of 2020
BETWEEN:

MR BRANSON

Applicant
AND:

MS FULLER

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

30 AUGUST 2021

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1.All prior parenting Orders be suspended.

2.The children X born in 2009, Y born in 2010 and Z born in 2013 (“the children”) shall live with the father.

3.For the purposes of order 2 above, the mother shall deliver the children to the father at the Town B Police Station at 10am on 31 August 2021.

4.The father will do all acts and things and sign all documents necessary to enrol the children in school in Town C to commence classes on Monday 6 September 2021.

5.The children shall spend time with the mother as follows:-

(a)Commencing 10 September 2021, continuing on each alternate Friday during school terms, from 6pm Friday until 6pm Sunday; and

(b)For half of each school holiday period, being the first half in even numbered years and the second half in odd numbered years.

6.Changeover shall occur at McDonald’s on J Street in Town B at the commencement of each time period and at the Town C Police Station in Town C at the conclusion of each time period.

7.In addition to the time that the children will spend time with each of the parties as set out in Orders 2 & 5, on the following occasions of special significance the child shall spend time with the parties as follows:

(a)The mother and the father will each be entitled to spend 4 hours with the children on their own birthday(s) at a time to be agreed between the parties, but failing agreement from 3:00pm until 7:00pm;

(b)The parent with whom the children are not ordinarily spending time with on each child’s birthday shall spend time with the children from 3:00pm to 7:00pm unless otherwise agreed;

(c)The children will spend time with the father on the Father’s Day weekend on the same times as set out at Order 5a) and if this was not the father’s usual weekend with the children, it will be spent in lieu of the following weekend;

(d)The children will spend time…

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Branson & Fuller [2021] FCCA 1999
Case
[2021] FCCA 1999
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CaseChat Overview and Summary

This matter concerned parenting orders sought by Mr Branson (the applicant father) against Ms Fuller (the respondent mother) regarding their three children, X, Y, and Z. The proceedings were before Judge Obradovic.

The court was required to determine the best interests of the children in circumstances where both parents presented significant risks. The legal issues included assessing the probabilities of competing claims and the likely impact on the children of any decision, particularly in light of the father's history of violence and antisocial behaviour, including past alcohol and drug use, and the mother's history of drug and alcohol use and antisocial behaviour. The court also had to consider the children's prior primary care by the mother and their recent periods of time spent with the father.

The court reasoned that both households presented significant risks to the children, necessitating the selection of the "least-worst option." The court noted the father's past violence towards the mother, his arrest, custodial sentence, and the subsequent domestic violence order. It also acknowledged the mother's convictions for mid- and high-range drink driving, malicious damage, stalking, intimidation, and common assault. Despite these concerning histories, the court observed that the father had not come to adverse police attention since his release in December 2019, and the mother had no further offences after September 2019. Furthermore, recent inspections of the mother's household by the Department of Communities and Justice and the police had not raised safety concerns. The court also took into account that the children had spent increasing periods with the father since April 2021, albeit not in accordance with prior court orders.

Pending further orders, the court made extensive orders suspending prior parenting orders. The children were ordered to live with the father, with specific arrangements for the mother to deliver the children to him. The father was authorised to enrol the children in school in a new town. Detailed provisions were made for the children to spend time with the mother, including during school terms and holidays, with specific changeover locations. The orders also addressed special occasions, parental attendance at school and extracurricular events, communication protocols between parents, and provisions for obtaining medical information. Crucially, both parents were restrained from denigrating each other, discussing proceedings with the children, or permitting the children to see documentation related to the proceedings. The mother was also restrained from consuming alcohol or illicit drugs during periods the children were in her care, and the father was subject to an apprehended violence order restraining him from entering the mother's residence and from stalking or harassing her. Further orders mandated drug testing for both parents, with specific requirements regarding hair length and the frequency of testing. The father was also ordered to complete a specific course.

Orders

Orders of the court

DUC 172 of 2020

BETWEEN:

MR BRANSON

Applicant

AND:

MS FULLER

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

30 AUGUST 2021

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1. All prior parenting Orders be suspended.

2. The children X born in 2009, Y born in 2010 and Z born in 2013 (“the children”) shall live with the father.

3. For the purposes of order 2 above, the mother shall deliver the children to the father at the Town B Police Station at 10am on 31 August 2021.

4. The father will do all acts and things and sign all documents necessary to enrol the children in school in Town C to commence classes on Monday 6 September 2021.

5. The children shall spend time with the mother as follows:-

(a) Commencing 10 September 2021, continuing on each alternate Friday during school terms, from 6pm Friday until 6pm Sunday; and

(b) For half of each school holiday period, being the first half in even numbered years and the second half in odd numbered years.

6. Changeover shall occur at McDonald’s on J Street in Town B at the commencement of each time period and at the Town C Police Station in Town C at the conclusion of each time period.

7. In addition to the time that the children will spend time with each of the parties as set out in Orders 2 & 5, on the following occasions of special significance the child shall spend time with the parties as follows:

(a) The mother and the father will each be entitled to spend 4 hours with the children on their own birthday(s) at a time to be agreed between the parties, but failing agreement from 3:00pm until 7:00pm;

(b) The parent with whom the children are not ordinarily spending time with on each child’s birthday shall spend time with the children from 3:00pm to 7:00pm unless otherwise agreed;

(c) The children will spend time with the father on the Father’s Day weekend on the same times as set out at Order 5a) and if this was not the father’s usual weekend with the children, it will be spent in lieu of the following weekend;

(d) The children will spend time with the mother on the Mother’s Day weekend and if this was not the mother’s usual weekend with the children, it will be spent in lieu of the following weekend;

(e) The parties will both be entitled to attend all events, involving the children including but not limited to: -

(i) Sporting fixtures;

(ii) Extracurricular activities that allow for parental attendance;

(iii) School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.

8. The parties will ensure that each parent is listed on the children’s school enrolment form as a parent and emergency contact.

9. These Orders are sufficient authority for each parent to be provided with copies of all school reports, school photograph order forms, notices and advices concerning the children and any activities involving the children.

10. Each parent notify the other in writing of any changes to contact/residential details at least 2 weeks prior to any such change occurring.

11. Each parent notify the other if any of the children receive medical attention or is seriously injured or requires hospitalisation or in the event of an emergency, as soon as is practicably possible after such event.

12. For the purpose of communication of information between the parties, the mother and father shall:

(i) communicate by telephone in an emergency situation;

(ii) communicate by text message or email about day to day matters including arrangements for each party to spend time with the children or all other matters relating to the parenting of the children.

13. These Orders are sufficient authority for each parent to contact and speak to each child’s treating health care professionals and obtain medical information, reports and the like regarding the children.

14. The parents are to use their best endeavours to ensure that the children attend school on each day of required attendance, unless their absence is explained by a medical certificate from their general practitioner.

15. Each of the mother and the father are restrained from the following conduct:-

(a) Denigrating either parent, his/her partner or members of his/her family to the children or in the presence of the children or at all or encourage others to do so;

(b) Discussing these proceedings with the children or within their hearing;

(c) Permitting or allowing the children to see any documentation produced in relation to these proceedings;

(d) Consuming alcohol during any period that the children are in their care or within 12 hours of the children coming into their care; and

(e) Using illicit drugs during any period that the children are in their care or within 12 hours of the children coming into their care.

16. Mr Branson is, pursuant to s.68B of the Family Law Act 1975 (Cth), for the personal protection of Ms Fuller, injuncted and restrained from;

(a) Entering or remaining in the place of residence of Ms Fuller; and

(b) Stalking, threatening, harassing, assaulting or denigrating Ms Fuller.

17. Within 14 days of a request from the Independent Children’s Lawyer each of the mother and the father shall each submit to a hair follicle illicit test to detect the presence of illicit substances through the Drug Detection Agency and the results are to be forwarded to the other party and the Independent Children’s Lawyer upon receipt and provided further that such drug testing shall not be requested more frequently than 3 monthly.

18. The mother and the father are each restrained from cutting their hair shorter than 3 centimetres in length whilst any drug testing order is current.

19. Within 7 days of receiving a request from the Independent Children’s Lawyer to provide a further CDT test, the mother and/or the father shall submit to further CDT testing and shall provide a copy of the results to the Independent Children’s Lawyer upon receipt and provided further that such screening shall not be requested more frequently than monthly.

20. The father shall attend a complete the Manning Up course run by D Group and shall provide evidence of his enrolment in such course within 28 days from the date of these Orders.

21. The first half of a school holiday period shall commence at 6pm on the last day of required attendance and shall end at 12noon on the day closest to the midpoint having regard to the total number of nights (“the midpoint”) and the second half shall commence at 12noon on the day closest to the midpoint and shall conclude at 6pm on the day prior to the first day of required attendance in the new school term.

22. In the event that a school holiday period has an uneven number of nights, the additional night will be with the mother.

23. The parties and the Independent Children’s Lawyer are granted liberty to have the matter restored to the list on 24 hours’ notice.

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

In terms of a risk assessment, the Court is to determine that issue by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected (Keats & Keats [2016] FamCAFC 156).Uncontested Facts There are a few agreed and/or uncontested facts between the parties, as far as relevant they are as follows:a.The parties commenced a relationship in 2001.b.The mother gave birth to the parties’ first child, Mr E, in 2002. Mr E is 19 years old and not the subject to these proceedings.c.X was born in 2009.d.Y was born in 2010.e.Z was born in 2013. f.In 2016 the parties and their children moved from the Region F to Town C. g.The parties married in 2017.h.In July 2018 the parties separated after the father assaulted the mother, including choking her. The father was arrested and then granted bail to attend residential rehabilitation at G Centre. The father received a 12 month custodial sentence and an apprehended domestic violence order was in place until January 2021. The father has not come to the attention of the police for any adverse reason since his release from custody in December 2019.i.After the assault, the mother and the children spent time with the maternal grandparents in Suburb H before moving to Town B. j.Until August 2018 the mother had no offences recorded on her criminal history. In August 2018 the mother was charged with a mid-range drink driving offence and in October 2019 the mother was charged with a high-range drink driving offence. The mother has also been convicted of 2 counts of malicious damage, 1 count of stalk/intimidate and 1 count of common assault since separation in July 2018. There have been no further offences of the mother after September 2019. k.In 2019 the Department of Communities and Justice (“DCJ”) inspected the mother’s household. There was no intervention as a result of the inspection. l.In 2021 following further reports of drug use and inadequate care, the DCJ and the police inspected the mother’s household. Neither the DCJ nor the police raised safety concerns for the children. m.The Children have spent block periods with their father since April 2021. Such time was not in accordance with the Orders made by the Court but rather via some arrangement between the parents.Determination Some of the very concerning features of this case, are the significant violence which the father had perpetrated upon the mother and in general his violent and antisocial behaviour, as well as past alcohol and drug use. The other very concerning features are the mother’s drug and alcohol use, and her antisocial behaviour. The children are at significant risks in both households and it is the unfortunate task of this Court to have to determine the least-worst option for them. The children have until early 2021, spent very little time with the father and the mother has been their primary carer. There is a suggestion in the father’s care that the children were living with their grandparents for significant periods of time and that the mother was not their primary carer, particularly in the past two years. Between July 2018 and April 2021, the children had not lived in the same household as the father. Since April 2021, the children have lived between the parents and there has been some tug-of-war between the parents as to where the children will be staying.

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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