Byrne and Smith and Anor (No.2) - [2009] FMCAfam 1115

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BYRNE & SMITH & ANOR (No.2)

[2009] FMCAfam 1115

FAMILY LAW – Parenting – drug and alcohol issues – expert evidence about CDT testing – urine testing – hair testing – protecting children from harm – intervention by Direct-General of the Department of Community Services – children placed in care of paternal grandmother.

Family Law Act 1975, ss.60CA, 60CC, 61DA

Hogan& Hogan [2008] FMCAfam 1219

Applicant:

MS BYRNE

Respondent:

MR SMITH

Intervenor:

DIRECTOR-GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES

File Number:

SYC 3151 of 2008

Judgment of:

Altobelli FM

Hearing dates:

21-25 September 2009

Date of Last Submission:

25 September 2009

Orders Made:

30 September 2009

Delivered at:

Sydney

Delivered on:

23 October 2009

REPRESENTATION

Counsel for the Applicant:

Ms Carr

Solicitors for the Applicant:

Athena Touriki Solicitors

The Respondent:

Self Represented

Counsel for the Intervenor:

Mr Moore

Solicitors for the Intervenor:

Crown Solicitor

Counsel for the Independent Children’s Lawyer:

Ms Gillies

Solicitors for the Independent Children’s Lawyer:

Hamish Cumming Family Lawyers

ORDERS MADE ON 30 SEPTEMBER 2009

THE COURT ORDERS BY CONSENT THAT:

Orders be made today without delivery of reasons.
The time for filing of an appeal not commence until written reasons for judgment are delivered.

THE COURT NOTES THAT:

Written reasons for judgment are expected on or before 30 October 2009.

THE COURT ORDERS THAT:

That the Minister for Community Services (“the Minister”) have sole parental responsibility for the long term care, welfare and development of the children [X] born in 2002 and [Y] born in 2003 (“the children”).
That Ms S (“the paternal grandmother”) have sole responsibility for the day to day care, welfare and development of the children.
That the children live with the paternal grandmother.
That the children spend time with the mother on a minimum of twelve (12) occasions per year, such time to occur as follows:-
(a)In Tasmania unless otherwise agreed;
(b)Supervised by a person or agency nominated by the paternal grandmother and approved of by the Director General of the Department of Human Services (“the Director General”) or her delegate;
(c)That the mother be solely responsible for any cost associated with supervision.
(d)Unless otherwise agreed the children’s time with a parent will not be more than once per month, will be scheduled to minimise disruption to the children’s education, and will be for no longer than one week during school holiday periods and four days and three nights during school terms.
That the children spend time with the father on a minimum of
12 occasions per year, such time to occur as follows:-
(a)In Tasmania unless otherwise agreed;
(b)Supervised by a person or agency nominated by the paternal grandmother and approved of by the Director General or her delegate;
(c)That the father be solely responsible for the cost of such contact.
(d)Unless otherwise agreed the children’s time with a parent will not be more than once per month, will be scheduled to minimise disruption to the children’s education, and will be for no longer than…

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 Byrne and Smith and Anor (No.2)

Details

AGLC: Byrne and Smith and Anor (No.2) [2009] FMCAfam 1115
Case: [2009] FMCAfam 1115
Decision Date: 23 October 2009

CaseChat Overview and Summary

The case of Byrne and Smith and Anor (No.2) involves the Minister for Community Services, the children's parents, and the paternal grandmother. The dispute concerns the long-term care, welfare, and development of two children, [X] and [Y], born in 2002 and 2003, respectively. The Family Court of Australia was tasked with determining the best arrangement for the children's future, including custodial arrangements and visitation rights for their parents.

The primary legal issues the court had to decide were the allocation of parental responsibility, the living arrangements for the children, and the conditions under which the children would spend time with their parents. The court had to weigh the welfare and best interests of the children as the paramount consideration, while also taking into account the views of the children, their parents, and the paternal grandmother.

In delivering its judgment, the court determined that the Minister for Community Services should have sole parental responsibility for the long-term care, welfare, and development of the children. The paternal grandmother was granted sole responsibility for the day-to-day care, welfare, and development of the children, with the children to reside with her. The court also set out specific conditions for the children's visitation with both parents, including the location, frequency, and supervision of these visits. Additionally, the court imposed restrictions on the parents' behaviour during their time with the children and required the paternal grandmother to provide certain undertakings to the court.

The final orders of the court included the Minister for Community Services having sole parental responsibility, the paternal grandmother having sole responsibility for the day-to-day care of the children, and specific conditions for the children's visitation with their parents. The court also required the paternal grandmother to provide undertakings to the court and imposed restrictions on the parents' behaviour during their time with the children.

Orders

Orders of the court

That the Minister for Community Services (“the Minister”) have sole parental responsibility for the long term care, welfare and development of the children [X] born in 2002 and [Y] born in 2003 (“the children”).

That Ms S (“the paternal grandmother”) have sole responsibility for the day to day care, welfare and development of the children.

That the children live with the paternal grandmother.

That the children spend time with the mother on a minimum of twelve (12) occasions per year, such time to occur as follows:-

(a) In Tasmania unless otherwise agreed;

(b) Supervised by a person or agency nominated by the paternal grandmother and approved of by the Director General of the Department of Human Services (“the Director General”) or her delegate;

(d) Unless otherwise agreed the children’s time with a parent will not be more than once per month, will be scheduled to minimise disruption to the children’s education, and will be for no longer than one week during school holiday periods and four days and three nights during school terms.

That the children spend time with the father on a minimum of

12 occasions per year, such time to occur as follows:-

(a) In Tasmania unless otherwise agreed;

(b) Supervised by a person or agency nominated by the paternal grandmother and approved of by the Director General or her delegate;

That the paternal grandmother provide the following Undertakings to the Court in a form prepared by the Independent Children’s Lawyer in consultation with the Intervenor:

(a) To not allow the father to reside in the home where the children may from time to time reside without the written consent of the Director General or her delegate; and

(b) To not allow contact between children and the father except as provided for in these Orders or as otherwise approved of by the Director General or her delegate in writing; and

(d) That she will engage with support services for herself and the children as directed by the Director General or her delegate; and

(e) To keep the Department of Human Services (“the Department”) informed of her residential address and contact numbers;

(f) To notify the Department in the event that either parent attempts to spend time with the children other than in accordance with these Orders or approved of by the Department.

10.

That the parents and each of them be, and hereby are, restrained from:-

(a) Consuming alcohol and/or illegal drugs during their time with the children or in the 24 hours prior to such time;

(b) Denigrating the other parent, their family and/or partners in the presence or hearing of the children;

(d) Doing any act or saying anything which may undermine the children’s placement with the grandmother.

(e) Allowing any other person to do any of the above whilst in the presence or hearing of the children.

11.

The Independent Children’s Lawyer not be discharged for a period of six (6) months from the date that reasons for judgment are published and in that period the Independent Children’s Lawyer take all reasonable steps to facilitate the children spending time with the mother and father in accordance with these orders.

12.

If any issue arises in relation to the interpretation, implementation or enforcement of these orders within 24 months of the date of publication of reasons for judgment in this matter such that the matter needs to be relisted, the matter is to be relisted before Federal Magistrate Altobelli on seven (7) days notice if reasonably possible.

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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