CROSSMANN & PALMER - [2015] FCCA 3123

FEDERAL CIRCUIT COURT OF AUSTRALIA

CROSSMANN & PALMER

[2015] FCCA 3123

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – parental responsibility – equal shared parental responsibility – allegations of drug and alcohol abuse – whether drug testing required – whether evidence sufficient to require blood testing – CDT test – liver function test – equal shared care – whether equal shared care in the children’s best interests – substantial and significant time – principles for conducting child-related proceedings considered – principles for considering whether it is in a child’s best interests to spend equal time with each parent.

Legislation:

Family Law Act 1975 (Cth), ss.13C, 60B, 60CA, 60CC, 61DA, 62G, 65DAA, 67Q, 68L, 69ZN

Cases cited:
Cilento & Cilento (1980) 6 Fam LR 35; FLC 90-847 not followed
Cowling & Cowling [1998] FamCA 19; (1998) 22 Fam LR 776; FLC 92-801 not followed
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 followed
McCall & Clark [2009] FamCAFC 92; (2009) 41 Fam LR 483; FLC 93-405
Palmer & Crossmann [2014] FCCA 2378
T & N [2001] FMCAfam 222 followed

Applicant:

MR CROSSMANN

Respondent:

MS PALMER

File Number:

SYC 6195 of 2014

Judgment of:

Judge Scarlett

Hearing date:

16 November 2015

Date of Last Submission:

16 November 2015

Delivered at:

Sydney

Delivered on:

24 November 2015

REPRESENTATION

Solicitor for the Applicant:

Mr Ndou

Solicitors for the Applicant:

Lovemore Lawyers

Solicitor for the Respondent:

Ms Meadth

Solicitors for the Respondent:

Alexanders Lawyers

Solicitor for the Independent Children's Lawyer:

Ms Shea

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW

ORDERS

UNTIL FURTHER ORDER

All previous parenting Orders are discharged.
The Applicant and the Respondent are to have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2011.
The children X and Y are to live with the Mother.
The children are to spend time with the Father as follows:
(a)Each Wednesday, commencing at 10:00am in the case of Y and from after school or 3:00pm in the case of X until 9:00am on Thursday; and
(b)From and after the second Saturday after the date of these Orders and continuing on each alternate weekend thereafter from 10:00am on Saturday until the commencement of school or 9:00am as the case may be on Monday PROVIDED THAT from and after 1 March 2016 the children are to spend time with the father each alternate weekend from immediately after school or 3:00pm as the case may be on the Friday until the commencement of school or 9:00 am.
In addition to the times referred to in the immediately preceding Order, the children X and Y are to spend time with the Father on the following special occasions, namely:
(a)From 3:00pm on Christmas Day until 5:00pm on Boxing Day in 2015 and all odd numbered years thereafter;
(b)From 9:00am on Good Friday until 5:00 pm on Easter Saturday in 2016 and all even numbered…

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 CROSSMANN & PALMER

Details

AGLC: Crossmann and Palmer [2015] FCCA 3123
Case: [2015] FCCA 3123
Decision Date: 24 November 2015

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Scarlett in the Federal Circuit and Family Court of Australia. The dispute involved the Applicant (Mother) and the Respondent (Father) regarding the care arrangements for their two children, X and Y.

The court was required to determine the specific orders concerning equal shared parental responsibility, the children's living arrangements, and the time each parent would spend with the children. Additionally, the court addressed communication protocols between the parents, changeover procedures, and provisions for drug and alcohol testing for the Father. The orders also stipulated requirements for parents to keep each other informed of matters relating to the children's welfare and education, and to provide contact details.

Judge Scarlett discharged all previous parenting orders and made new orders establishing equal shared parental responsibility. The children were ordered to live with the Mother, with specific provisions for the Father's time with them, including mid-week and alternate weekend arrangements, as well as detailed arrangements for special occasions and holidays. The orders also mandated telephone communication between the children and the non-resident parent each evening. Furthermore, the court imposed injunctions restraining both parents from discussing the proceedings with the children, passing messages through them, using physical discipline, making disparaging remarks about the other parent, consuming alcohol to excess or illicit drugs when the children are in their care or for 12 hours prior, and showing the children photographs or videos of the other parent taken after separation. The Father was also ordered to undergo supervised urine analysis for alcohol and illicit drugs upon request by the Independent Children's Lawyer, with results to be provided to the ICL and the Mother's legal representative. Both parents were ordered to attend and complete anger management and domestic violence programs.

Orders

Orders of the court

UNTIL FURTHER ORDER

All previous parenting Orders are discharged.

The Applicant and the Respondent are to have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2011.

The children X and Y are to live with the Mother.

The children are to spend time with the Father as follows:

(a) Each Wednesday, commencing at 10:00am in the case of Y and from after school or 3:00pm in the case of X until 9:00am on Thursday; and

(b) From and after the second Saturday after the date of these Orders and continuing on each alternate weekend thereafter from 10:00am on Saturday until the commencement of school or 9:00am as the case may be on Monday PROVIDED THAT from and after 1 March 2016 the children are to spend time with the father each alternate weekend from immediately after school or 3:00pm as the case may be on the Friday until the commencement of school or 9:00 am.

In addition to the times referred to in the immediately preceding Order, the children X and Y are to spend time with the Father on the following special occasions, namely:

(a) From 3:00pm on Christmas Day until 5:00pm on Boxing Day in 2015 and all odd numbered years thereafter;

(b) From 9:00am on Good Friday until 5:00 pm on Easter Saturday in 2016 and all even numbered years thereafter;

(d) From 5:00pm on Easter Saturday until 5:00 pm on Easter Monday in 2017 and all odd numbered years thereafter;

(e) For a period of three (3) hours from immediately after school or 3:00pm as the case may be until 6:00 pm on each of the children’s birthdays; and

(f) From 5:00pm on the day before Father’s Day until the commencement of school or 9:00am on the following Monday morning.

Notwithstanding the above Orders, the children X and Y to spend time with the mother from 5:00pm on the day before Mother’s Day until the commencement of school on the following Monday morning.

The Mother and Father must do all things to ensure that the children X and Y are to have telephone communication with the parent with whom they are not living or spending time between the hours of 6:00pm and 6:30pm each evening.

For the purposes of changeover where the children go from the care of one parent to the care of the other parent, unless otherwise agreed between the parents in writing, all changeovers will take place at the school attended by X or at the (omitted) Police Station.

Within forty-eight (48) hours of receiving a request from the Independent Children’s Lawyer the father is to submit to a supervised chain of custody urine analysis for alcohol and illicit drugs in accordance with the Australian/New Zealand Standard AS/NZS 4308:2008: Procedures for the specimen collection and the detection and quantitation of drugs of abuse in urine with the Independent Children’s Lawyer making no more than one (1) request per month.

10.

The Father or his legal representative must provide the urine analysis results to the Independent Children’s Lawyer and to the mother’s legal representative within seven (7) days of receiving the results.

11.

Each parent must keep the other parent informed as soon as is reasonably practicable of:

(a) any serious injury sustained by either of the children;

(b) any need for either of the children to attend a medical practitioner or a hospital for treatment;

(d) any social, school or religious function which the children or either of them are to attend; and

(e) any other matter relevant to the children’s welfare.

12.

Each parent must provide to the other parent all landline and mobile contact telephone numbers and residential, postal and email addresses, including contact details during holiday periods and notify the other parent in writing of any change in any of their contact details within twenty-four (24) hours of such change occurring.

13.

Each parent must authorise any relevant health professional or school attended by either of the children or educational professional to provide the other parent with copies of reports and any other information and documentation relating to the health or education of the children or either of them.

14.

Both parents are entitled to attend all events involving the children or either of them including but not limited to:

(a) Sporting events;

(b) Extra-curricular activities that allow for parental attendance;

(c) School functions that allow for parental attendance and the parent who has the children in his or her care on the day of that activity will be responsible for the care and supervision of the children at the event and the children’s transportation to and from that event.

15.

Apart from their attendance at any of the activities referred to in the immediately preceding Order the parents are otherwise restrained from attending at the school or schools attended by either of the children except in the case of emergency or changeover or by appointment or invitation.

16.

The parents are restrained from approaching each other at any school functions except for the purposes of changeover or in the case of emergency.

17.

Within three (3) months of the date of these Orders and in accordance with the provisions of section 13C of the Family Law Act 1975 the parents must:

(a) Attend and complete an anger management program and a domestic violence program nominated by the Independent Children’s Lawyer;

(b) Sign all such documents and do all such acts and things necessary to enrol in, undertake and successfully complete the anger management program and the domestic violence program;

(c) Pay and otherwise be responsible for all costs if any associated with the anger management program and the domestic violence program; and

(d) Provide appropriate certificates of completion to the other parent’s legal representative and the Independent Children’s Lawyer.

18.

Both parents are restrained by injunction from:

(a) Discussing these proceedings with either or both of the children, unless required by a Court Order to do so, or from showing to either or both of the children any documents relating to these proceedings, including reports and affidavits, or from discussing the contents of any such document with either or both of the children;

(b) Passing messages to the other parent through either or both of the children;

(d) Making any critical, disrespectful, disparaging or derogatory remarks about the other parent or any member of the other parent’s family or household to either of the children or in the presence or hearing of either of the children or allowing any third party to do so, such injunction to include verbal, written or electronic means including email, text message, Facebook or any other form of social media;

(e) Consuming alcohol to excess or administering to themselves any illicit drug at any time when either or both of the children are in their care or for twelve (12) hours beforehand; or

(f) Showing to either or both of the children any video footage or photographs that they have taken of the other parent following separation, including but not limited to footage or photographs taken at changeover.

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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