Crawford and Dean - [2012] FamCA 107

FAMILY COURT OF AUSTRALIA

CRAWFORD & DEAN

[2012] FamCA 107

FAMILY LAW - CHILDREN – parental responsibility – with whom children shall live and spend time - variation of previous parenting orders – prior orders provided for the mother to have sole parental responsibility for the two children of the relationship and for the children to spend supervised time with father for two hours every three months – history of family violence & drug abuse by parents – history of criminal offences committed by father – father’s rehabilitation – father now abstinent from illicit drug use & criminal behaviour – change of sufficient magnitude to warrant review of existing orders – finding father’s current behavioural standards poses no real risk of harm to the children – mother opposed to amendment of orders – mother’s influence over children’s views - children’s views considered and attributed little weight – disturbance to mother’s capacity to parent by an increased involvement of the father in the children’s lives – insufficient evidence of impairment of mother’s parenting capacity by increased involvement of father - finding children cannot foster meaningful relationship with father when they see him so infrequently and the mother is unwilling or unable to encourage the relationship – orders varied to encompass an increased frequency of supervised time spent by children with father and ultimately the dispensation of supervision – orders for father and children to attend family therapy - orders mother to retain sole parental responsibility

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65AA, 65D, 65DAA, 65DAC, 65DAE

Dean & Crawford [2008] FamCA 848
Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
L & T (1999) FLC 92-875
Marriage of Archbold (1984) FLC 91-532
Marsden v Winch (2009) 42 Fam LR 1
Miller v Harrington (2008) FLC 93-383
MRR v GR (2010) 240 CLR 461
Rice v Asplund (1979) FLC 90-725
SPS v PLS (2008) FLC 93-363

APPLICANT:

Mr Crawford

RESPONDENT:

Ms Dean

INDEPENDENT CHILDREN’S LAWYER:

Sharon Moore Solicitors

FILE NUMBER:

NCC

1842

2010

DATE DELIVERED:

8 March 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

7, 8 and 9 February 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr B Kelly

SOLICITOR FOR THE APPLICANT:

MacLean Curtis & Daly Solicitors

COUNSEL FOR THE RESPONDENT:

Mr I Duane

SOLICITOR FOR THE RESPONDENT:

Adams & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms D Burns

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sharon Moore Solicitors

Orders

Orders 5-8 inclusive made on 25 September 2008 are discharged.
Subject to the father’s compliance with Order 6 hereof, each of the parties shall take all reasonable steps to ensure the children J, born … August 2000, and B, born … August 2002, (“the children”) spend time with the father as follows, or as otherwise agreed:
(a)For a period of six months from the date of these orders, for two hours on the first weekend of each month, supervised by staff of the…

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 Crawford and Dean

Details

AGLC: Crawford and Dean [2012] FamCA 107
Case: [2012] FamCA 107
Decision Date: 8 March 2012

CaseChat Overview and Summary

This matter concerned orders made by Austin J regarding the time spent between the father and his two children, J and B. The dispute involved the terms and conditions under which the father would have contact with the children, including provisions for supervised contact, family therapy, drug screening, and geographical restraints.

The court was required to determine the appropriate arrangements for the children's time with the father, balancing the father's right to spend time with his children against the need to ensure the children's safety and well-being. Key issues included the level and duration of supervision for contact, the father's compliance with drug testing, the father's proximity to the mother and the children's schools, and the requirement for family therapy.

Austin J ordered a phased approach to the father's contact with the children, commencing with supervised contact for limited durations and gradually increasing the time and reducing supervision over a period of 12 months, subject to the father's compliance with various conditions. These conditions included registration and compliance with the directions of a children's contact centre, participation in family therapy with the children at his own expense, and submission to urinalysis drug screening. The father was also restrained from consuming alcohol during contact periods and from approaching within 100 metres of the mother's residence or the children's schools. The court also made orders restraining both parties from denigrating each other in the presence of the children and requiring notification of medical emergencies. The Independent Children's Lawyer was directed to arrange for family therapy and was discharged upon completion of these arrangements or the expiry of the appeal period.

Orders

Orders of the court

Orders 5-8 inclusive made on 25 September 2008 are discharged.

Subject to the father’s compliance with Order 6 hereof, each of the parties shall take all reasonable steps to ensure the children J, born … August 2000, and B, born … August 2002, (“the children”) spend time with the father as follows, or as otherwise agreed:

(a) For a period of six months from the date of these orders, for two hours on the first weekend of each month, supervised by staff of the W Children’s Contact Centre (“the Centre”);

(b) For a period of six further months, for four hours on the first weekend of each month, supervised by the Centre staff;

i) From 9.00 am until 5.00 pm on the first Saturday of each month (excluding the Saturday immediately preceding Father’s Day); and

ii) From 9.00 am until 5.00 pm on Father’s Day.

For the purposes of implementation of Orders 2(a) and 2(b) hereof:

(a) The parties shall forthwith confirm their respective registration at the Centre; and

(b) The parties shall comply with all reasonable requests and directions of staff at the Centre;

(d) The time spent by the children with the father shall commence and conclude at the times designated by the Centre;

(e) The time spent by the children with the father may be supervised by staff of the Centre “off-site” at the discretion of the staff;

(f) The mother shall cause the delivery of the children to, and collection of the children from, the Centre at the commencement and conclusion of the time spent by the children with the father; and

(g) The parties shall forthwith provide a sealed copy of these orders to the Centre.

For the purposes of implementation of Order 2(c) hereof, the mother shall cause the delivery and the father shall cause the collection of the children at the commencement of the time to be spent with the father at Public Building 1, Hunter Valley, NSW, and the father shall cause the delivery and the mother shall cause the collection of the children at the conclusion of the time spent with the father at the same place.

The Independent Children’s Lawyer shall forthwith:

(a) Arrange appointments for the parties and children to attend upon MK Psychologists in Town W, NSW, or an alternative comparable provider of psychological services, to commence family therapy as soon as it can be reasonably offered by the psychologists;

(b) Notify the parties of the venue, date, and time of the appointments with the psychologists; and

(i) The single expert report dated 16 September 2011;

(ii) The Court’s orders dated 25 September 2008;

(iii) These orders; and

(iv) The Court’s reasons for these orders.

Forthwith upon notification pursuant to Order 5(b), the parties shall do all such things and sign all such documents as may be necessary to ensure the attendance of the father and the children at the appointments made by the Independent Children’s Lawyer and the continuing participation of the father and the children in the family therapy with the psychologists for as long as is deemed necessary by the psychologists, and for that purpose:

(a) The father shall meet the cost of such family therapy; and

(b) The parties shall comply with all reasonable requests and directions of the psychologists.

The father shall submit to urinalysis drug screening upon the following conditions for a period of 12 months from the date of these orders:

(a) The father shall provide urine samples for testing within 24 hours of his receipt of a random written request by the mother, but not more frequently than twice per calendar month;

(b) The father must ensure that the pathology laboratory designated to conduct the testing does so in accordance with Australian/New Zealand Standard 4308/2001, and that the name and address of that pathology laboratory is notified to the mother;

(c) At the commencement of each test the father shall provide the pathology laboratory staff with photographic identification, shall submit to supervision of provision of the urine sample, and shall request the pathology laboratory staff to verify the fact of both identification and supervision upon laboratory records;

(d) The cost of testing is to be borne by the father; and

(e) The father shall serve upon the mother copies of the test results forthwith upon provision of those results to him; and

(f) The father shall irrevocably authorise the pathology laboratory to provide copies of all test results to the mother upon request.

If the father fails to submit to testing pursuant to Order 7 hereof, or a test result discloses the presence of an illegal drug in his body, then the time spent by the children with the father is suspended.

The father is restrained from consuming alcohol during any period in which the children spend time with him, and also during the period of 12 hours immediately preceding such time.

10.

Pursuant to s 68B of the Family Law Act 1975 (Cth) the father is restrained, without the written consent of the mother, from entering upon or approaching within 100 metres of:

(a) The mother’s residence; and

(b) Any school attended by either child.

11.

Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.

12.

Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

13.

The mother shall authorise and request the principal of any school attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.

14.

Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.

15.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

16.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period, or compliance with Order 5 hereof, whichever is the latter.

17.

Any and all outstanding applications are dismissed.

Notation

(A) The Court regards the mother’s participation in family therapy pursuant to Orders 5-6 hereof as highly desirable and notes her expressed willingness to participate.

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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