Carter and Greenhill (No 2) - [2019] FamCA 721

FAMILY COURT OF AUSTRALIA

CARTER & GREENHILL (NO. 2)

[2019] FamCA 721

FAMILY LAW – CHILDREN – Consideration of Rice v Asplund threshold – Where no basis for permitting parenting proceedings to be recommenced by the father after previous protracted parenting proceedings and final judgment – Where father’s application dismissed – Where directions made as to costs submissions.

Family Law Act 1975 (Cth)

Carter & Greenhill [2015] FamCA 1047
Elmi & Munro [2019] FamCAFC 138
Prewett & Mann [2013] FamCAFC 130
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Mr Carter

RESPONDENT:

Ms Greenhill

INDEPENDENT CHILDREN’S LAWYER:

Ms Seric

FILE NUMBER:

SYC

8235

2015

DATE DELIVERED:

4 October 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

17 July 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr White of Brendon Dunstan Solicitor

COUNSEL FOR THE RESPONDENT:

Mr Coleman SC

SOLICITOR FOR THE RESPONDENT:

Blackwell Short Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney Central Family Law

Orders

That the father’s Application initiating proceedings be dismissed.
That the proceedings be removed from the pending cases list.
That any application for costs be made by way of written submission filed and served within one month from this date with any submissions in response to be filed and served within six weeks from this date.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carter & Greenhill has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 8235 of 2015

Mr Carter

Applicant

And

Ms Greenhill

Respondent

REASONS FOR JUDGMENT

The present application before the Court relates to parenting proceedings between the father, aged 38 years and the mother, aged 35 years, in relation to their three children B born in 2005, C born in 2006 and D born in 2002 (“the children”).
The applicant father has filed a fresh parenting application seeking orders that, in summary, would result in the final orders of Tree J (14 December 2017 Carter & Greenhill [2015] FamCA 1047) being discharged and the children living with the father, spending every third weekend with the mother and the father holding sole parental responsibility for the children.
In a Case Outline dated 15 July 2019 the father amended his orders sought and no longer pressed his application for the children to live with him and instead sought a discrete order that the two oldest children’s enrolment at S School be as full time boarders at the college and that the children spend each alternate…

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 Carter and Greenhill (No 2)

Details

AGLC: Carter and Greenhill (No 2) [2019] FamCA 721
Case: [2019] FamCA 721
Decision Date: 4 October 2019

CaseChat Overview and Summary

The case of *Carter and Greenhill (No 2)* involved an application by the father, which was heard by Foster J in the Family Court of Australia. The dispute concerned parenting arrangements for the parties' children, with the father's application ultimately being dismissed.

The central legal issue before the court was whether the father's application should proceed, given the extensive history of the parties' relationship and the father's conduct. This included issues surrounding the parties' separation, the father's alleged drug use, his repeated breaches of apprehended violence orders, and his subsequent criminal charges. The court was required to consider the impact of these factors on the welfare of the children and the father's capacity to participate in parenting proceedings.

Foster J's reasoning focused on the father's persistent and concerning behaviour, particularly his ongoing harassment of the mother, his drug use, and his criminal charges. The court noted the father's admission to using amphetamines and testing positive for amphetamine, methamphetamine, and Phentermine. Furthermore, the father faced serious criminal charges including livestock theft and threatening behaviour, which indicated a significant disregard for legal processes and the safety of others. The court concluded that the father's actions and the gravity of the charges against him rendered his application unsustainable and detrimental to the children's best interests.

Consequently, the court ordered the dismissal of the father's application and the removal of the proceedings from the pending cases list. The parties were also directed to make any applications for costs by way of written submissions within specified timeframes.

Orders

Orders of the court

That the father’s Application initiating proceedings be dismissed.

That the proceedings be removed from the pending cases list.

That any application for costs be made by way of written submission filed and served within one month from this date with any submissions in response to be filed and served within six weeks from this date.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The history of the parties’ relationship was considered in the Reasons for Judgment of Tree J (Carter & Greenhill [2017] FamCA 1047) and have been included here where relevant:[4] After finishing boarding school, the father himself returned to F Town, and commenced work at Property K. It was whilst he was working there, and aged 22, that the father met the mother, and commenced a relationship with her. [6] After the parties’ relationship had continued for about 12 months, the mother moved to F Town. In June 2004 she obtained employment there in administration, and in July of that year, the parties commenced cohabitation in F Town.[7] B was born in 2005, after which the mother took three months of unpaid leave to care for him. The father continued to work on Property K.[8] The mother returned to work, initially for two days per weeks, but then from December 2005, full-time.[9] On 1 August 2006 the parties purchased the former matrimonial home at E Street F Town. Then in 2006 C was born, after which the mother took 32 weeks of maternity leave. The father again continued in full-time employment on Property K, save that by then it appears as though there had also commenced an aspect of the Property K operation which saw the father regularly driving trucks carting cattle to and from Property K, from distant locations. As a result of that, the father commenced to take amphetamines to help keep him awake on the long journeys. I say that it was likely at about this time that the father commenced taking those drugs because, in October 2012, he told Dr I, a psychiatrist who examined him, that he had been using amphetamines “for the past five years.”[10] In about 2010, the mother had an extra-marital affair, and later confessed this to the father who, it transpired, admitted to also having had an affair. This appeared to rekindle the parties’ relationship, and in 2011, they married. In evidence before me were photographs from the wedding, which show both C and B (then aged four and six respectively) very excited and happy at their parents’ marriage.[11] The mother says that after the marriage, she first began to observe changes in the father’s behaviour. He became increasingly paranoid, including expressing a belief that there were people outside their house, checking the roof of their house for cameras, and expressing fears that the mother was being unfaithful to him.[16] In 2012 D was born.[17] Unfortunately the parties’ relationship thereafter progressively deteriorated. The father continued to be obsessed with the mother’s alleged infidelity, and would take to looking through her mobile phone trying to find evidence from which he could accuse her. Ultimately on 1 May 2014 the parties finally separated. Although initially the mother and the children went to live with her sister, shortly thereafter, the father moved out of the former matrimonial home and the mother and children returned. The parties have not cohabited since.Post-separation[18] After separation, the mother continued in full-time employment in F Town, and the father remained working on Property K. Initially the relations between the mother and paternal grandmother remained cordial, and the paternal grandmother would, from time to time, assist the mother with the care of the children, as would other paternal family members.[19] After separation, the father began to regularly telephone the mother. In her evidence, she said he would call her up to 30 times a day, perhaps as early as 3.00 am or 4.00 am in the morning. He remained obsessed with her alleged infidelity, and wanted her to admit to it. Further, there was an occasion when, whilst the mother was away from the home, the father apparently obtained entry to it, and accessed the family’s wedding album and the mother’s wedding dress. The wedding album was subsequently located on the front driveway with a tyre mark across one of the pages. The wedding dress was located on the ground nearby. It seems likely that the father was responsible for that.[20] On another occasion, the father obtained entry to the mother’s home, and smashed her television and computer screen. He later bought her new items to replace them.[21] On 12 September 2014 the mother first reported the father’s harassing of her to New South Wales Police. She had resisted doing so prior to then. Police subsequently applied for, and obtained, a temporary apprehended violence order against the father.[22] On 6 November 2014 the father was admitted to hospital after a stick penetrated his leg. The facts surrounding that incident are not clear. In evidence before me the father said he was only admitted to hospital three days after the stick had penetrated his leg, and after he had sourced some amphetamine to assist with pain relief. On the other hand the New South Wales health records in evidence before me, note that “patient admits he took amphetamine at the time of incident.” Further, those notes say that the father was admitted on 6 November 2014 (a Thursday) but the stick had penetrated his leg on Monday night. That is consistent with the father’s version of waiting three days and ingesting amphetamine as an analgesic, although Dr I, in his oral evidence, said that amphetamine in not an analgesic.[23] Ultimately, nothing really turns upon whether the father was under the influence of amphetamine at the time of the episode, or took it subsequently for pain relief or both; the simple fact is that the father admits to then taking speed.[24] On 20 November 2014 the parties agreed to a parenting plan. It provided for equal shared parental responsibility in relation to joint decision making for the children, who would live with the mother, but spend two out of three weekends with the father, together with the majority of school holidays.[25] On 4 January 2015 the father attended the mother’s home by prior agreement, but then used the opportunity to start questioning the mother again about her personal life. This was in breach of the apprehended violence order, and the father was in due course charged and convicted for that breach, and received a six month bond in consequence. However, unfortunately, that did not stop him from continuing to telephone the mother on occasion, and leaving text messages for her.[26] On 6 April 2015 the father again attended the mother’s home, for the purposes of retrieving the children for school holidays. An argument ensued and the father refused to leave. The mother then contacted the police, but by the time they had arrived, the father had left. Later the police intercepted the father with the children in his car, and the father told the police that the mother was “mentally unstable and unfit to care for his children.”[27] On 23 April 2015, a final apprehended violence order was made against the father, for a period of 12 months. However again, the father continued to contact the mother, contrary to the order. For instance, on 16 May 2015 he called the mother four times, left two voice messages and sent seven text messages; the following day he phoned the mother on eight occasions, left six voice messages and sent 20 text messages.[28] The next day (the 18th) he called the mother 19 times and left eight voice messages and sent five text messages. The next day he called the mother seven times and left four voice messages. The following day he made six telephone calls, left eight voice messages and sent 18 text messages.[29] Amongst the matters which the father was trying to communicate with the mother about, was his concern that he had possession of a photograph of a woman, who he believed was the mother, with a man, with both of them apparently at least semi-nude. He was plainly somewhat obsessed with this, and wanted her to confess that it was her in the photograph (which the mother denies). At all events, that led to him, on 20 May, when attending the mother’s house to collect the children, saying to her “you are a fucking bitch I know that was you in the photo.”[30] All of this led to the father being charged with five breaches of the apprehended violence order, and with one offence of intimidation. Subsequently the father was arrested and bailed. He later pleaded guilty to those offences.[31] In about June 2015, the mother became aware that a job similar to that which she occupied in F Town, was becoming vacant in M Town. She discussed that, and the prospect of moving to M Town, with the paternal grandmother. She again raised the subject in September of that year, including having a discussion with the paternal grandmother (with whom she was then still on good terms) about where the children might go to school in M Town. She says that she asked the paternal grandmother to pass that information on to the father.[32] The following month the mother made a formal application for the job and was interviewed, but told the paternal grandmother that she did not believe that she had performed well in the interview. As it transpired, in fact the position was offered to her. However prior to her accepting it, on 24 November 2015 the father’s solicitors advised that the father did not consent to the children relocating to M Town. Nonetheless on 7 December 2015 the mother accepted the position in M Town, and resigned from her position in F Town. Plainly, when she did so, she was on notice that the father would not consent to the children relocating. She says that she had instructed her solicitors to commence proceedings seeking permission to relocate, but in fact the father commenced these proceedings first. However, as it transpired, no early court date in the Family Court could be obtained, and so the father proceeded to seek interim parenting orders in the Local Court at L Town, which orders were made in January 2016. Those orders did not permit relocation of the children to M Town. The mother’s subsequent appeal from the Local Court decision was dismissed.[33] In fact seemingly in December 2015, the mother left for M Town without the children, and has remained living there since.[34] Under the interim orders ultimately made in the Family Court, the parties had equal shared parental responsibility for the children, who lived with the father, but spent alternate weekends with the mother, together with one half of school holidays. This required the parties and the children to undertake extensive travel between F Town and M Town. The mother obtained assistance with that from the maternal grandmother who lives in L Town, which is en route between the two towns, and changeovers were effected at H Town and G Town.[35] Under those interim orders, the father was obliged to submit to random drug tests from time to time. On 26 May 2016, the father first tested positive for amphetamine and methamphetamine in a hair follicle test required of him under those orders. Then on 28 June 2016, the father again tested positive to codeine, amphetamine and methamphetamine; importantly the report noted that, in relation to methamphetamine, “this concentration is indicative of more than a single use of this drug in the three months covered by the testing period.”[36] Although initially the father claimed only to have used amphetamines once in 2016, during the course of his oral evidence he conceded a second occasion. He nonetheless denied any use of methamphetamine, seemingly holding the view that it was a more dangerous drug than amphetamine. How therefore the father tested positive to methamphetamine is, on his evidence, unclear.[37] As time wore on, unfortunately the communication between the paternal grandmother and the mother worsened. Sadly, that led to the communication between the respective grandmothers also deteriorating, and ultimately ceasing. From about mid to late 2016, it appears as though there have been no words exchanged between the adults at changeovers in any location.[38] Also it appears clear that the boys became progressively resistant to spending time with the mother, and began to voice a disinclination to do so.[39] During this period, as I shall discuss in detail later, the father and paternal grandmother failed to convey to the mother significant information relating to the children’s medical issues, educational issues, and extra-curricular activities. The mother began to feel that she was being marginalised and excluded from the children’s lives, by being deprived of this information.[40] On 20 July 2017, the father underwent a further hair follicle test, which detected Phentermine was present. It is not in dispute that Phentermine, also known as Duromine, has an effect similar to amphetamine, albeit it is a legal prescription drug used for weight loss. The father says that his general medical practitioner prescribed it for weight loss, and that indeed, whilst taking it, he lost about 10kg in weight. He denied that he knew that it was akin to amphetamine, or that it is commonly known as “legal speed.” A further urinalysis on 11 August 2017 again showed Phentermine in the father’s body. That said, in fact the request was made of the father on 8 August, and therefore the fact that the specimen was taken on 11 August meant that it was outside of the 48 hour court ordered time frame.[41] On 15 August 2017 police executed a warrant at Property K. They seized a number of items, including sheep ear tags and vendor declaration books, which are designed to record the sale and movement of livestock. They also located and seized a bulldozer, and a number of unregistered firearms. Subsequent investigations led to both the father and paternal grandfather being arrested and charged. The father was charged with stealing livestock, and with threatening to cause injury or harm so as to prevent information being provided to police, and further, with the use of a carriage service to menace, harass or offend. The paternal grandfather was charged with stealing livestock, stealing a bulldozer, and possessing unregistered firearms.[42] The value of the livestock that are said to have been stolen is in excess of $78,000.[43] The other two charges against the father arise from the fact that, unbeknownst to the father, at about this time, police had a telephone intercept on his phone. The two charges relate to his sending messages to a person who proved to be a police witness against him in relation to the sheep stealing charge. The first was a text message, that simply comprised the image of a fist. The father says he only sent that message in an effort to try and find out who had caused police to become involved and investigate offences against him. He denies that he knew the person whom he sent it to was in fact involved. The second relates to the father sending a winking face to the same person, immediately after police had rung him, asking him to come into the F Town Police Station.[44] According to the police Statement of Facts which is in evidence before me, the person who received both of these messages felt threatened and intimidated when they received them.[45] After being charged, initially the father and paternal grandfather were refused bail, but it was granted the next day. [46] On 29 August 2017 the father again submitted to urinalysis testing. That report suggested that the urine sample was dilute, and its chemical analysis was “not consistent with human urine.” The father denies that he substituted any other type of urine for his.