Eldridge and Drysdale - [2018] FamCA 1113

FAMILY COURT OF AUSTRALIA

ELDRIDGE & DRYSDALE

[2018] FamCA 1113

FAMILY LAW – CHILDREN – Interim application – Where the father seeks that the children spend certain time with him – Where the mother alleges that the father has been physically abusive towards the children – Where the parties agree that the father’s time with the children should be supervised by relatives, pending the release of the Single Expert’s report – Court orders that the children spend day time only with the father – Court orders that such time be supervised by relatives – Court orders that the father undergo hair follicle testing – Court orders that an Independent Children’s Lawyer be appointed.

Family Law Act 1975 (Cth) ss. 4AB, 60CC, 61DA, 65DAA

B & B (1993) FLC 92-357
Banks & Banks (2015) FLC 93-637
Bant & Clayton [2015] FamCAFC 222
Blinko & Blinko [2015] FamCAFC 146
Fitton & Kimble [2017] FCWA 106
Jurchenko & Foster (2014) FLC 93-598
M & M (1988) 166 CLR 69
SS & AH [2010] FamCAFC 13

APPLICANT:

Mr Eldridge

RESPONDENT:

Ms Drysdale

FILE NUMBER:

SYC

5453

2018

DATE DELIVERED:

21 December 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

12 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richards

SOLICITOR FOR THE APPLICANT:

Walter & Elliott Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lethbridge SC

SOLICITOR FOR THE RESPONDENT:

Pearson Emerson Meyer Family Lawyers

Orders

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:
Parenting orders

By consent, the children live with the mother.
The children spend time with the father as agreed in writing between the parents and, in the absence of agreement, as follows:
(a)       each Thursday from 3:30 pm to 5:30 pm; and
(b)       each alternate Friday from 5:30 pm to 7:45 pm; and
(c)       each Sunday from midday to 4:00 pm;
and on each of those occasions, such time is to be supervised by either Mr Drysdale, Ms B or Ms Eldridge.
For the purposes of changeovers that do not occur at the children’s school, the mother shall deliver the children to the father at the commencement of the time and collect the children from the father at the conclusion of the time.
By consent, the parents shall facilitate the children speaking with the parent with whom they are not spending time, in the event the children or either of them request to speak with that parent.
By consent, if for any reason the father is not available to spend time with the children pursuant to these orders, the father shall notify the mother by SMS text message as early as reasonably practical prior to the commencement of the scheduled time with the children.
By consent, each parent shall notify the other not more than 24 hours after any change to their landline and/or mobile phone telephone numbers and/or their email addresses, of his or her new landline and/or mobile telephone number and/or email address.
By consent, each parent shall notify the other, no less 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 Eldridge and Drysdale

Details

AGLC: Eldridge and Drysdale [2018] FamCA 1113
Case: [2018] FamCA 1113
Decision Date: 21 December 2018

CaseChat Overview and Summary

This matter concerned parenting orders and injunctions sought by the parties, Eldridge and Drysdale, in the Federal Circuit and Family Court of Australia. The dispute involved arrangements for the children's living arrangements, time spent with each parent, and various protective measures for the children.

The court was required to determine the terms of parenting orders concerning the children's residence, time with each parent, and communication between parents. Additionally, the court considered applications for injunctions to restrain certain behaviours by the parents, including physical discipline, discussing proceedings in the children's presence, exposure to inappropriate material, substance use, and denigration of the other parent. The court also addressed the need for hair follicle testing for the father, therapeutic counselling for the children, the appointment of an Independent Children's Lawyer, and the appointment of a single expert witness.

The court made orders by consent in relation to most parenting arrangements, including that the children live with the mother and spend time with the father under supervised conditions. Injunctions were granted, restraining both parents from specific harmful behaviours towards the children and in their presence, including physical discipline, discussing proceedings, exposing children to inappropriate content, consuming prohibited substances or excessive alcohol, and denigrating the other parent. The father was ordered to undergo hair follicle testing and was restrained from cutting or colouring his hair prior to such testing. The parents were ordered to arrange therapeutic counselling for the children and to facilitate the appointment of an Independent Children's Lawyer and a single expert witness.

Orders

Orders of the court

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

Parenting orders

By consent, the children live with the mother.

The children spend time with the father as agreed in writing between the parents and, in the absence of agreement, as follows:

(a) each Thursday from 3:30 pm to 5:30 pm; and

(b) each alternate Friday from 5:30 pm to 7:45 pm; and

and on each of those occasions, such time is to be supervised by either Mr Drysdale, Ms B or Ms Eldridge.

For the purposes of changeovers that do not occur at the children’s school, the mother shall deliver the children to the father at the commencement of the time and collect the children from the father at the conclusion of the time.

By consent, the parents shall facilitate the children speaking with the parent with whom they are not spending time, in the event the children or either of them request to speak with that parent.

By consent, if for any reason the father is not available to spend time with the children pursuant to these orders, the father shall notify the mother by SMS text message as early as reasonably practical prior to the commencement of the scheduled time with the children.

By consent, each parent shall notify the other not more than 24 hours after any change to their landline and/or mobile phone telephone numbers and/or their email addresses, of his or her new landline and/or mobile telephone number and/or email address.

By consent, each parent shall notify the other, no less than 21 days prior to moving to a new residence, of their new address.

By consent, the parents shall:

(a) inform the other parent as soon as reasonably practicable and in any event not more than three (3) hours after any medical issue, significant health issue or significant illness or injury suffered by the children or either of them; and

(b) keep the other parent informed of the names and addresses of any treating medical or other allied health practitioner who treats the children and authorise such practitioners to provide the other parent with information that they (the applicable medical or other allied health practitioners) are lawfully able to provide about the children.

By consent, the parents do all acts and things and sign all documents necessary to ensure that the children's school, from time to time, provides each parent with a copy of the children's school reports, as well as any other written material relating to their school, academic, sporting, social or other extra-curricular activities, including school newsletters and notices.

Injunctions

10.

Without admissions, and save as provided for in these orders, each parent, their servants and agents be restrained by injunction from:

(a) assaulting and threatening the children;

(b) using physical force upon the children whilst disciplining them;

(c) discussing these proceedings or any parenting disputes or issues in the presence or hearing of the children, and from allowing the children to remain in the presence or hearing of any third party who is engaging in such conduct;

(d) allowing or facilitating the children to engage in activities which are inappropriate for their respective ages, including but not limited to exposing the children to computer games, films or video clips with classification ratings in excess of those recommended for children of their age by the Australian Classifications Board;

(e) consuming:

(i) any prohibited drugs including but not limited to amphetamines, methamphetamines, cannabis, benzodiazepines and opiates (provided however that this shall not prevent either parent consuming opiates and benzodiazepines in strict accordance with a prescription issued by a treating medical practitioner);

(ii) prescription medication, including opiates and benzodiazepines, except in strict accordance with the prescription issued by the treating medical practitioner; and/or

(iii) alcohol in an amount in excess of the prescribed legal limit for driving a motor vehicle in the State of New South Wales;

both during periods when the children are spending time with them and for 12 hours prior to such periods; and

(f) denigrating the other parent or the other parent’s family and/or friends in the presence, or within hearing, of the children, and from allowing the children to remain in the presence or hearing of any third party who is engaging in such conduct

Hair Follicle Test

11.

The father undergo a hair follicle test within seven (7) days, and every three (3) calendar months thereafter, the cost of which is to be borne by father.

12.

By consent, the father be restrained and an injunction is hereby granted restraining him from cutting his hair shorter than three (3) centimetres and/or colouring his hair prior to the hair follicle test referred to in order 11, above.

13.

By consent, the test is to be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia in accordance with the current Australian Standard for the collection and detection of drugs of abuse.

14.

By consent, the father provide the pathologist with photographic identification, to be recorded before each test, and the authority to provide the results of each test to the other parent’s lawyer and the Independent Children’s Lawyer, immediately upon its completion.

15.

By consent, in the event of a positive test or any breach of this order by the father, the children's time with the father under these orders is suspended until further order, each parent in that event having liberty to apply at short notice.

Counselling

16.

The parents forthwith arrange for the children to attend therapeutic counselling with an agreed counsellor ("the counsellor") to assist the children with transitioning between the parents’ houses and dealing with the separation of the parents, and will ensure the children's attendance at such times and frequency requested by the counsellor.

17.

By consent, the costs of the counselling referred to in order 16 above are to be borne equally by the parents as and when same fall due and do all acts and things possible to apply for a Medicare rebate in respect of the costs of the counselling, should a rebate be available.

Independent Children’s Lawyer

18.

Pursuant to section 68L(2) of the Family Law Act 1975 (Cth), the interests of the children be independently represented by a lawyer and it is requested that the Legal Aid Commission of New South Wales make arrangements, as soon as is practicable, to secure that representation.

19.

The parents each provide to the Legal Aid Commission of New South Wales all documents thus far filed in these proceedings by that parent, together with all existing orders and copies of any relevant reports.

20.

The Independent Children’s Lawyer be granted leave to inspect and copy any subpoena material produced to date.

Single Expert

21.

By consent, pursuant to Part 15.45 of the Family Law Rules 2004 (Cth), Dr S (“the expert”) be appointed as a single expert witness to prepare a report in relation these proceedings, and:

(a) forthwith, upon appointment of an Independent Children’s Lawyer, pursuant to the above orders, the parties shall join with the Independent Children’s Lawyer in agreeing upon the letter of instruction to the expert; and

(b) in the event of any dispute as to the terms of instruction to the expert, the parties and the Independent Children’s Lawyer shall, forthwith, make arrangements to relist the proceedings for further directions and shall, for such purpose, have liberty to apply to the Court on seven (7) days’ written notice to the Court and each other.

22.

By consent, the parents shall do all acts and things necessary to facilitate the preparation of the single expert report, including:

(a) attending on the single expert;

(b) paying one half of the costs of the single expert.

23.

By consent, the parents are to provide the expert with:

(a) a copy of these orders;

(b) a copy of any Child Inclusive Conference memorandum; and

(i) R School,

(ii) C Clinic;

(iii) NSW Police;

(iv) The Department of Family and Community Services; and

(v) Suburb D Medical Centre.

24.

By consent, for the purposes of order 23 above, the mother's solicitor have leave to photocopy all material produced under subpoena and provide such material to the expert.

25.

The parents be granted liberty to apply in respect of a variation of the parenting orders currently in place, upon release of the Single Expert Report.

Provision of orders to the children’s school

26.

By consent, the mother have leave to provide a copy of these orders to R School, Suburb E.

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

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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