ELDRIDGE & ELDRIDGE - [2017] FCCA 822

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELDRIDGE & ELDRIDGE

[2017] FCCA 822

Catchwords:
FAMILY LAW – Parenting – interim – relocation – allegations of family violence – reasonable practicability.

Legislation:

Family Law Act 1975, Pt.VII

Morgan & Miles [2007] FamCA 1230
C & S [1998] FamCA 66

Applicant:

MR ELDRIDGE

Respondent:

MS ELDRIDGE

File Number:

TVC 229 of 2017

Judgment of:

Judge Demack

Hearing date:

20 March 2017

Date of Last Submission:

20 March 2017

Delivered at:

Mackay

Delivered on:

21 March 2017

REPRESENTATION

Solicitors for the Applicant:

S R Wallace and Wallace Lawyers

Solicitors for the Respondent:

Marriott Oliver Solicitors

ORDERS

That pursuant to Rule 8.01 of the Federal Circuit Court Rules 2001, these proceedings be transferred to the Federal Circuit Court of Australia at Wollongong.
That the children X born in 2013 and Y born in 2016 (“the children”) live with the mother in the Region H area of New South Wales.
That the children spend supervised time with the father as agreed between the parties but failing agreement then for a period of two (2) consecutive nights once each calendar month provided such time is spent in Sydney and is supervised at all times by a member of the father’s immediate family namely the paternal grandmother Ms AA, the paternal uncle Mr BB or the paternal aunts Ms CC and Ms DD.
That the father shall be restrained from:
(a)Consuming alcohol during his time with the children and for a period of twenty-four (24) hours beforehand; and
(b)Smoking or rolling cigarettes in the presence of the children.
That the father undergo Liver Function and Carbohydrate Deficient Transferrin (CDT) testing.
That in Order to facilitate Order 5 above:
(a)The mother’s solicitor will send a request by no later than 12pm by email to the father’s solicitor;
(b)Such request will be sent no more frequently than once per calendar month for two consecutive months only;
(c)By no later than 6pm on the third business day following the request, the father will attend on a medical practitioner to facilitate the testing, with the Liver Function test to specifically measure Gamma Glutamyl Transpeptidase (GGT), Mean Cell Volume (MCV), Aspartate Transaminase (AST), Alanine Transaminase (ALT) and Alkaline Phosphatase (ALP) levels;
(d)The father will be responsible for the cost of such testing;
(e)At the end of attending for the purpose of facilitating the testing, the father shall:
(f)Provide the pathology centre and/or the medical practitioner with photographic identification confirming his identity as Mr Eldridge born in 1980; and
(g)Obtain a receipt from the medical practitioner and/or pathology centre confirming receipt of a sealed copy of this Order and sighting of photographic identification of the father confirming his identity;
(h)Once the results are released to the father, he will ensure that a copy is forwarded to the mother’s solicitor no later than 4pm on the next business day.
That this matter be adjourned for mention at 09.30am on 18 May 2017 in the Federal Circuit Court of Australia at Wollongong.

IT…

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 & ELDRIDGE

Details

AGLC: ELDRIDGE & ELDRIDGE [2017] FCCA 822
Case: [2017] FCCA 822
Decision Date: 21 March 2017

CaseChat Overview and Summary

The proceedings involved the parents, Mr. and Mrs. Eldridge, concerning parenting orders for their two children, X and Y. The dispute centred on the children's living arrangements, the father's time with the children, and conditions to be imposed on the father. The matter was heard in the Federal Circuit Court of Australia.

The court was required to determine the primary residence of the children, the nature and supervision of the father's time with the children, and whether specific restrictions should be placed on the father's conduct during his time with the children. Additionally, the court needed to consider the necessity and process for the father to undergo medical testing, specifically Liver Function and Carbohydrate Deficient Transferrin (CDT) tests, and the associated responsibilities for facilitating and reporting on these tests.

The court ordered that the children live with the mother in a specified area of New South Wales. The father was granted supervised time with the children, with detailed provisions for the frequency, location, and supervision by named family members, should the parties not agree otherwise. The court also imposed specific prohibitions on the father, including abstaining from alcohol during and for a period before his time with the children, and not smoking in their presence. Furthermore, the court mandated that the father undergo Liver Function and CDT testing, outlining a strict procedure for requesting, attending, and reporting the results of these tests, with the father bearing the costs. The proceedings were adjourned for mention in the Federal Circuit Court at Wollongong.

Orders

Orders of the court

That pursuant to Rule 8.01 of the Federal Circuit Court Rules 2001, these proceedings be transferred to the Federal Circuit Court of Australia at Wollongong.

That the children X born in 2013 and Y born in 2016 (“the children”) live with the mother in the Region H area of New South Wales.

That the children spend supervised time with the father as agreed between the parties but failing agreement then for a period of two (2) consecutive nights once each calendar month provided such time is spent in Sydney and is supervised at all times by a member of the father’s immediate family namely the paternal grandmother Ms AA, the paternal uncle Mr BB or the paternal aunts Ms CC and Ms DD.

That the father shall be restrained from:

(a) Consuming alcohol during his time with the children and for a period of twenty-four (24) hours beforehand; and

(b) Smoking or rolling cigarettes in the presence of the children.

That the father undergo Liver Function and Carbohydrate Deficient Transferrin (CDT) testing.

That in Order to facilitate Order 5 above:

(a) The mother’s solicitor will send a request by no later than 12pm by email to the father’s solicitor;

(b) Such request will be sent no more frequently than once per calendar month for two consecutive months only;

(c) By no later than 6pm on the third business day following the request, the father will attend on a medical practitioner to facilitate the testing, with the Liver Function test to specifically measure Gamma Glutamyl Transpeptidase (GGT), Mean Cell Volume (MCV), Aspartate Transaminase (AST), Alanine Transaminase (ALT) and Alkaline Phosphatase (ALP) levels;

(d) The father will be responsible for the cost of such testing;

(e) At the end of attending for the purpose of facilitating the testing, the father shall:

(f) Provide the pathology centre and/or the medical practitioner with photographic identification confirming his identity as Mr Eldridge born in 1980; and

(g) Obtain a receipt from the medical practitioner and/or pathology centre confirming receipt of a sealed copy of this Order and sighting of photographic identification of the father confirming his identity;

(h) Once the results are released to the father, he will ensure that a copy is forwarded to the mother’s solicitor no later than 4pm on the next business day.

That this matter be adjourned for mention at 09.30am on 18 May 2017 in the Federal Circuit Court of Australia at Wollongong.

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

Full text does not contain this section.