Gadde and Gadde and Anor (No 4)

[2016] FamCA 685

FAMILY COURT OF AUSTRALIA

GADDE & GADDE AND ANOR (NO 4) [2016] FamCA 685

FAMILY LAW – PRACTICE AND PROCEDURE - Amendment under slip-rule – DRUG TESTING

Family Law Act 1975 (Cth)

APPLICANT: Ms Gadde

RESPONDENT: Mr Gadde

INTERVENOR: DD Pty Ltd

FILE NUMBER: SYC 417 of 2015

DATE DELIVERED: 15 August 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 15 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson

SOLICITOR FOR THE APPLICANT: Barkus Doolan

SOLICITOR FOR THE RESPONDENT: Self-representing

SOLICITOR FOR THE INTERVENOR: Pearson Emerson Meyer Family Lawyers

Orders

IT IS ORDERED THAT

1. Within 14 days of the date of these orders the husband provide to the wife all court documents and court records and court particulars in respect of the proceedings listed before the Suburb FF Local Court on 20 July 2016.

2. 4(4) of the orders made on 23 November 2015 (the Orders) is hereby discharged and in lieu thereof the following shall apply:

   The husband shall within 24 hours of receiving a nomination from the wife or the wife’s solicitors in writing undertake a supervised urine drug test, a request not to be made more than twice each calendar month and such testing to be in accordance with Australian Standard Section 2, NZS4308 at an accredited testing laboratory and under the guidance of his treating medical practitioner or his treating specialist for detection of all drugs in the husband’s system and the results of such testing shall be provided to the wife’s solicitors as soon as they are available. 

3. The husband shall inform the wife by e-mail within 12 hours of having submitted to the test pursuant to the preceding order.

4. In the event the father shall fail to undertake a test pursuant to the preceding order or in the event any test pursuant to order 2 above returns a positive result for the ingestion of any illicit drug, time between the father and L in accordance with these orders shall be suspended and the parties have liberty to apply to the court upon the provision of 48 hours’ notice.

5. Pursuant to the Slip Rule the definition of the joint account as provided for in the orders made 27 July 2016 be amended as follows:

   NAB joint account means the account held in the husband and wife’s joint names with National Australia Bank Limited, being account number …, BSB ...

IT IS FURTHER ORDERED THAT

1. The applicant and the Intervenor are to file and serve all affidavit material upon which he or she intends to rely at trial in the form of single consolidated affidavits from each witness he or she relies upon by close of business on 18 November 2016.

2. The respondent is to file and serve all affidavit evidence that he intends to rely upon at trial in the form of single consolidated affidavits from each witness by close of business on 9 December 2016. 

3. The applicant and Intervenor may file any affidavits in reply by close of business on 16 December 2016. 

4. The applicant is to serve upon the respondent a draft Balance Sheet setting out the pool that she contends for as it existed at the commencement of the relationship, at separation and approximate to the time of trial by close of business 16 December 2016.  The parties are, if agreement is available, to file a Joint Balance Sheet by close of business 31 January 2017.  If there is no agreement as to what is to be included on that Balance Sheet then each party is to file a Balance Sheet of the pool that each submits was in existence at the commencement of the relationship, at separation and at a time approximate to the trial by close of business 31 January 2017.

5. The parties are to file and serve Case Outline Documents on 31 January 2017.  The parties are to file a list of Objections 14 days before the allocated trial date, with a list of outstanding objections 7 days before the trial date.      

6. The parties are at liberty to relist the matter in relation to disclosure issues on 14 days’ notice in writing to each other party. 

7. The husband is at liberty to relist the matter on 14 days’ notice in writing if the matter of his access to the V bank funds referred to in my reasons for judgment of 27 July 2016 are unable to be otherwise resolved. 

8. The parties are at liberty to issue subpoenas returnable no later than 31 January 2017. 

9. On 14 days’ notice in writing the parties may relist the matter for directions in relation to Single Experts for valuation and in relation to subpoenas being issued in respect of Country F based entities. 

10. The matter is otherwise listed for further trial directions and allocation of a trial date on 31 January 2017 at 9am. 

11. The parties are at liberty to appear by telephone on 31 January 2017 provided each advises the Canberra Registry 7 days in advance of their intention to do so. 

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 Gadde & Gadde & Anor 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 CANBERRA

FILE NUMBER: SYC 417 of 2015

Ms Gadde

Applicant

And

Mr Gadde

Respondent

DD Pty Ltd
Intervenor

EX-TEMPORE REASONS FOR JUDGMENT

1. The applicant seeks orders as set out in a Minute of Orders Sought that was provided to the Court on 12 August 2016 after having been provided to the father's then solicitor on 11 August 2016 and to the father directly on 12 August 2016.

2. The first order sought relates to a restraint from the father driving a motor vehicle with L as a passenger in the motor vehicle.  I note that at present the father has a suspended driver's license.  As indicated by the mother's material and the father’s concession the father concedes that this means that he is unable to drive a motor vehicle at all until this is dealt with.  An offence of driving while suspended carries with it a criminal sanction.  I do not regard the adding of an injunction restraining him from driving a motor vehicle to add anything of substance that would be protective of L beyond the criminal sanction which may already be visited upon the father directly for driving.  I decline to make order 1.

3. Order 2 requests the husband to provide all court documents and Court records and Court particulars in respect of proceedings listed before the Suburb FF Local Court on 20 July 2016.  The husband agrees to provide these matters and I make order 2 as sought in the Minute of Orders Sought save that the word court will be inserted in front of the words documents, records and particulars. 

4. Orders 3, 4 and 5 are a suite of orders designed to replace Order 4.4 of the orders made on 23 November 2015.  Those orders there were part of a regime of the father spending time with L in the context of a mechanism that provided for random drug testing.  It is clear that the arrangements for random drug testing to date have proven to be contentious despite the fact that the Consent Orders expressed the father spending time with L as conditional upon compliance with the drug testing regime.  Although the father has not filed material in relation to this Application he has asserted that he has not been non-compliant with the orders other than on an occasion when he was required to appear before Justice McClelland.  He states that the mother in her requests has been non-compliant.  The mother’s material asserts otherwise being that there have been requests that have not been properly complied with by the father. 

5. If the current terms were to stay in place then the father is currently at risk of having his time with L suspended indefinitely until the matter can be brought back before the Court on the basis of the assertions that he has not been compliant with the regime.  I understand from Senior Counsel for the mother that it is the mother's intention that the father spend time with L and that should orders 3, 4 and 5 be made substituting the new regime that the father’s time with L would continue subject to his compliance with that regime. 

6. It seems to me desirable and in the best interests of L maintaining a relationship with his father in the context of there being proper protections in respect of drug use by the father for the new regime to be substituted for the old regime.  This will enable the father to spend time with L without the uncertainty of potential non-compliance with the previous orders bringing his time with L to an end.  The new orders will mean that he will be in a position to exercise time with L without the threat of suspension unless there is a non-compliance with orders 3, 4 and 5.  As I consider that that substitution and certainty is in the best interests of L I make orders 3, 4 and 5 as sought in the Minute of Orders Sought.

7. The wife further seeks at order 6 an amendment under the Slip Rule of the orders made by me on 27 July 2016, specifically Order 1.  I amend, pursuant to the Slip Rule, Order 1 of those orders so that the National Australian Bank account is corrected to be National Australia Bank account number …BSB ... 

8. I make this amendment on the basis that it was the clear intention of the Orders that the particular bank account which it is agreed by each of the parties was the bank account to be referenced by that order was misdescribed in the first order by virtue of a transposition of two numbers.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 15 August 2016.

Associate: 

Date:  19 August 2016