GALAWAY & ALBION - [2020] FCCA 2621

FEDERAL CIRCUIT COURT OF AUSTRALIA

GALAWAY & ALBION

[2020] FCCA 2621

Catchwords:
FAMILY LAW – Parenting – interim hearing about a child who is two years old – whether it will benefit the child to spend any time with the father currently – where the child lives with the mother and has not spent time with father for more than 12 months – where the father has a criminal history – where the father has recently been charged with assault – where both parties have history of illicit drug use – where the father has engaged in drug therapy and counselling.

Legislation:

Family Law Act 1975 (Cth) ss.11F, 60CC(2)

Cases cited:

Macey & Liddell [2018] FamCA 1027

Applicant:

MR GALAWAY

Respondent:

MS ALBION

File Number:

ADC 1326 of 2020

Judgment of:

Judge Young

Hearing date:

3 September 2020

Date of Last Submission:

3 September 2020

Delivered at:

Darwin

Delivered on:

17 September 2020

REPRESENTATION

Counsel for the Applicant:

Mr Childs

Solicitors for the Applicant:

Dixon Gallasch

Counsel for the Respondent:

Mr Tredrea

Solicitors for the Respondent:

Carmen Wood & Associates

ORDERS

UNTIL FURTHER ORDER:

The child X born in 2018 (“the child”) is to live with the mother.
Both parties are to enrol immediately in the Children’s Contact Service at Suburb B forthwith for the purpose of the child spending supervised time with the father at the centre on six occasions prior to the adjourned date.
Upon completion of the child spending supervised time with the father as referred to in paragraph 2 the father is to request a report is to be prepared by a representative of the Child Contact Service in regard to observations of the child and the father.
That within 24 hours of a receipt of a request in writing from the mother or her solicitor the father is attend and submit to a urine test for the presence of illegal drugs and/or substances in accordance with the chain of custody protocol specified in AS/NZ 4308:2008 on the basis that such testing may be requested not more than once per calendar month.
The results of the testing be provided to the mother or her solicitor upon receipt of same.
That within 72 hours of a receipt of a request in writing from the mother or her solicitor the father is to undergo one hair follicle drug analysis testing prior to the adjourned date at the expense in all things of the father with the sample of hair to be no less than 3 cm.
Until such time as the hair follicle drug analysis test referred to in paragraph 6 herein has been completed, the father is to ensure that he maintains at least 3 cm of hair from which a sample may be taken and his hereby restrained and an injunction is hereby granted restraining him from using any chemicals or treatments on his hair other than commercially available shampoo and/or conditioner.
That the father hereby authorises the drug testing collection service responsible for the administration…

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 GALAWAY & ALBION

Details

AGLC: Galaway and Albion [2020] FCCA 2621
Case: [2020] FCCA 2621
Decision Date: 17 September 2020

CaseChat Overview and Summary

In the matter of *Galaway & Albion*, Judge Young considered an interim parenting dispute concerning a two-year-old child. The child resided with the mother and had not had contact with the father for over 12 months. The father had a criminal history, had recently been charged with assault, and both parties had a history of illicit drug use, although the father had engaged in drug therapy and counselling.

The court was required to determine whether it would be beneficial for the child to spend any time with the father at this interim stage, given the circumstances. This involved assessing the risks and potential benefits of supervised contact, particularly in light of the father's history and the child's age and lack of recent contact.

Judge Young reasoned that while the father's history presented concerns, the child's welfare was paramount. The court sought to facilitate supervised contact to allow for an assessment of the father's current capacity and the child's response. To mitigate risks, the court ordered that the child live with the mother and that the father enrol in a Children's Contact Service for supervised time. Further, the father was required to undergo regular urine testing and a hair follicle drug analysis, with specific protocols and timelines for reporting results to the mother.

The court ordered that the child live with the mother, and that the father engage in supervised contact with the child at a Children's Contact Service. The father was also ordered to submit to urine and hair follicle drug testing, with results to be provided to the mother. The matter was adjourned for mention.

Orders

Orders of the court

UNTIL FURTHER ORDER:

The child X born in 2018 (“the child”) is to live with the mother.

Both parties are to enrol immediately in the Children’s Contact Service at Suburb B forthwith for the purpose of the child spending supervised time with the father at the centre on six occasions prior to the adjourned date.

Upon completion of the child spending supervised time with the father as referred to in paragraph 2 the father is to request a report is to be prepared by a representative of the Child Contact Service in regard to observations of the child and the father.

That within 24 hours of a receipt of a request in writing from the mother or her solicitor the father is attend and submit to a urine test for the presence of illegal drugs and/or substances in accordance with the chain of custody protocol specified in AS/NZ 4308:2008 on the basis that such testing may be requested not more than once per calendar month.

The results of the testing be provided to the mother or her solicitor upon receipt of same.

That within 72 hours of a receipt of a request in writing from the mother or her solicitor the father is to undergo one hair follicle drug analysis testing prior to the adjourned date at the expense in all things of the father with the sample of hair to be no less than 3 cm.

Until such time as the hair follicle drug analysis test referred to in paragraph 6 herein has been completed, the father is to ensure that he maintains at least 3 cm of hair from which a sample may be taken and his hereby restrained and an injunction is hereby granted restraining him from using any chemicals or treatments on his hair other than commercially available shampoo and/or conditioner.

That the father hereby authorises the drug testing collection service responsible for the administration of the test referred to in paragraph 6 herein to dispatch directly to his solicitor a copy of the test results forthwith upon them becoming available, with the father’s solicitor to provide same to the mother’s solicitor within seven (7) days thereafter.

The matter be adjourned to 25 May 2021 at 9:30am for mention.

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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