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Briggs & Briggs

Briggs & Briggs

Case [2022] FedCFamC2F 1356 7 October 2022

Contract Formation

Breach of Contract

Equal Shared Parental Responsibility

Substantial and Significant Time

Therapeutic Counselling

Jurisdiction

Limitation Periods

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Briggs & Briggs [2022] FedCFamC2F 1356

File number: ADC 3140 of 2018

Judgment of: JUDGE TURNBULL

Date of judgment: 7 October 2022

Catchwords: FAMILY LAW – CHILDREN – equal shared parental responsibility agreed by all parties – child to live with mother – nature and progression of time with father – father’s engagement in psychological counselling with respect to alcohol use, family violence, and/or impulse control – whether counselling should be a condition attaching to the child’s time with the father – additional consideration of whether a ‘positive report’ from the father’s treating psychologist should condition the father’s time – where the father currently spends time subject to supervised changeover and breathalyser tests at a police station – restrictions upon father’s time reduced – whether s 68B injunction should remain effective on final basis

Legislation:
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 61C, 61DA, 65D, 65DAC, 68B

Evidence Act 1995 (Cth) s 140

Cases cited:
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1

Boyce & Boyce [2015] FamCAFC 60

Briginshaw v Briginshaw (1938) 60 CLR 336

Dundas & Blake [2013] FamCAFC 133

Goode & Goode [2006] FamCA 1346

Isles & Nelissen [2021] FedCFamC1F 295

Isles & Nelissen [2022] FedCFamC1A 97

Koyroyshs & Koyroyshs [2020] FamCA 626

M v M (1998) 166 CLR 69

MRR & GR (2010) 240 CLR 461

Murphy & Murphy [2007] FamCA 795

Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555

Withers & Russell [2016] FamCA 793

Division: Division 2 Family Law

Number of paragraphs: 202

Date of hearing: 23–25 March, 14–15 June, 27 June, and 29 June 2022

Place: Hobart

Counsel for the Applicant: Mr Roberts

Solicitor for the Applicant: Calderwood Atkinson

Counsel for the Respondent: Mr Childs

Solicitor for the Respondent: SE Lawyers

Counsel for the Independent Children's Lawyer: Mr Boehm

Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia
ORDERS

ADC 3140 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BRIGGS

Applicant

AND:
MS BRIGGS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE TURNBULL

DATE OF ORDER:

7 OCTOBER 2022

THE COURT ORDERS THAT:
1.All extant orders, including the order appointing the Independent Children’s Lawyer, be discharged.

Parental responsibility
2.The parents, MR BRIGGS (‘the Father’) and MS BRIGGS (‘the Mother’), have equal shared parental responsibility for X born in 2015 (‘X’).
3.To effect order 2 above, both parents shall do all acts and things to ensure that both of them receive information relevant to X’s education, health, and any other matter which may give rise to a major long-term issue concerning X, including to:
(a)receive, directly from X’s school, all school reports, notices, photographs (both of X and her class), newsletters, and any other information relevant to X’s education and school events;
(b)receive, directly from the organising entity or individual, all details as to X’s extra-curricular activities or events including, but not limited to, any information as…

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.

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Details

AGLC: Briggs & Briggs [2022] FedCFamC2F 1356
Case: [2022] FedCFamC2F 1356
Decision Date

CaseChat Overview and Summary

The parties in this matter are Mr Briggs (the Father) and Ms Briggs (the Mother). The matter concerns parenting arrangements for their child, X, born in 2015. The Court was required to determine the nature and progression of X’s time with the Father, as well as the degree to which the Father should engage in counselling with respect to alcohol use, family violence, and/or impulse control. The Court also had to consider whether the progression of the Father’s time should be conditional upon obtaining a ‘positive report’ from the Father’s treating psychologist. Further, the Court had to decide whether the Father must take a breathalyser test prior to spending time with X, with the Mother at liberty to terminate the scheduled time if the Father returns a positive blood alcohol reading. The Court also considered whether, and if so for how long, the Father’s time with X should be wholly or partly supervised. The Court determined that X should spend substantial and significant time with the Father, which, after a period of building time, culminates in three nights per fortnight (or four nights per fortnight if Monday is a non-school day), and half of school holidays. The Father shall, as a condition of his time with X, undertake a course of therapy with Mr F, a clinical psychologist, for a minimum of eight sessions over the course of six months, noting also that the Mother shall attend at least one session with Mr F. The progression of the Father’s time, at any point during the building stages, shall not depend upon a ‘positive’ report from Mr F. The Father is no longer required to undertake alcohol breathalyser tests at the commencement and conclusion of X’s time with him, but he remains subject to an injunction restraining him from consuming any alcohol in the 24 hours prior to or during that time, with that injunction to remain in place until X attains the age of 18 years.

Orders