Byrne and Smith and Anor

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BYRNE & SMITH & ANOR

[2009] FMCAfam 338

FAMILY LAW – Interim parenting orders – Department of Community Services intervention – drug and alcohol consumption – postponement of the final hearing – supervised or unsupervised time.

Family Law Act 1975, Pt VII

Goode & Goode [2006] FamCA 1346
Hogan and Hogan [2008] FMCAfam 1219

Applicant:

MS BYRNE

Respondent:

MR SMITH

Second Respondent:

DIRECTOR GENERAL DEPARTMENT OF COMMUNITY SERVICES

File Number:

SYC 3151 of 2008

Judgment of:

Altobelli FM

Hearing date:

26 March 2009

Date of Last Submission:

26 March 2009

Delivered at:

Sydney

Delivered on:

15 April 2009

REPRESENTATION

Counsel for the Applicant:

Ms Carr

Solicitors for the Applicant:

Athena Touriki Solicitors

Solicitor-Advocate for the Respondent:

Ms Carroll

Solicitors for the Respondent:

Legal Aid Commission of NSW

Solicitor-Advocate for the Department of Community Services:

Ms Dart

Solicitors for the Department of Community Services:

Crown Solicitor Office

Solicitor-Advocate for the Independent Children’s Lawyer:

Ms Adams

Solicitors for the Independent Children’s Lawyer:

Hamish Cummings Family Lawyers

THE COURT ORDERS PENDING FURTHER ORDER OF THE COURT:

Order 5 made by consent on 6 February 2009 be vacated.
The children, [X] born in 2002 and [Y] born in 2003, spend time with the father once each month in Sydney from 10am to 4pm on a Saturday and a Sunday, such time to be undertaken in the presence of the father’s sister, Ms S, and otherwise conditional on:
(a)The said Ms S being properly qualified and accepted as a supervisor by the 2^nd respondent; and
(b)The said Ms S entering into a written undertaking to the court, in a form provided by the solicitor for the 2^nd Respondent, to:
(i)Be present at all times when the children are collected, returned and are otherwise with the father; and
(ii)Forthwith terminate the father’s time with the children, and return them to the 2^nd respondent or its nominee, if the father consumer alcohol or is under the influence of alcohol, whilst in the presence of the children; and
(c)the father entering into a written undertaking to the court, in a form prepared by the solicitor for the 2^nd respondent, to:
(i)not consume alcohol in the presence of the children, or be under the influence of alcohol in the presence of the children, and not consume alcohol within 24 hours prior to spending time with the children; and
(ii)not to bring the children into the presence of any undesirable or inappropriate person, or anyone who is under the influence of alcohol; and
(iii)not to take the children outside of the Manly and northern beaches area of Sydney.
The children spend time with the mother in Sydney as follows:
(a)Commencing from the first Monday after the making of these orders, and continuing until further order, for a period of 2 hours during the week unsupervised, but with the 2^nd respondent arranging for the collection and return of the children and their supervision at the time of change-over; and
(b)Commencing…

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, Ms. Byrne, the father, brought proceedings against Mr. Smith, the mother, and the Director General of the Department of Community Services concerning the care and contact arrangements for their two children, [X] and [Y]. The court had to decide on the interim parenting orders, particularly the amount of contact the children should have with each parent, under what conditions, and whether the final hearing should be postponed. The legal principles governing such applications are found in Part VII of the Family Law Act 1975 and relevant case law.

The court heard from all parties and considered the evidence and submissions. The father proposed unsupervised monthly contact with the children in Sydney and Tasmania. The mother sought a more frequent unsupervised contact, which she later revised to align with the Family Consultant's recommendations. The Department of Community Services advocated for the children to remain in its care, with supervised contact with both parents. The Independent Children's Lawyer supported a graduated increase in the mother's contact, contingent on supervision at changeovers, and maintained that the father's contact should remain supervised.

The court was concerned about both parents' drug and alcohol issues and their potential impact on the children's safety and well-being. The court accepted the Family Consultant's recommendations for a gradual increase in the mother's contact, provided it was supervised at changeovers. The court decided that the father's contact should remain supervised by his sister, subject to her being properly vetted. The court also decided to postpone the final hearing to September 2009, to allow more time to assess the parents' progress in dealing with their issues and to give the children more time in foster care. The court ordered that the children spend time with the father once a month in Sydney, supervised by his sister, and time with the mother, initially supervised at changeovers, with a potential for escalation to unsupervised contact, subject to the mother's progress in managing her alcohol issues. The court also ordered that both parents refrain from consuming alcohol before or during their contact with the children and that they undergo regular drug and alcohol testing.

In conclusion, the Federal Magistrates Court granted interim parenting orders that aimed to balance the children's need for contact with both parents with the need to protect them from harm due to the parents' drug and alcohol issues. The court postponed the final hearing to allow more time for the parents to address their issues and for the children to remain in foster care. The court also ordered that the parents refrain from consuming alcohol before or during their contact with the children and that they undergo regular drug and alcohol testing.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established