Gibson and Noon - [2016] FCCA 2336

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIBSON & NOON

[2016] FCCA 2336

Catchwords:
FAMILY LAW – Interim parenting – significant independent evidence of Mother’s use of drugs – strong and clear views of older children that support evidence of Mother’s regular drug use – need for precautionary protective approach towards all children especially the younger two children.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2), 60CC(2A), 60CC(3)(a), (b), (d), (e), (f), (i), (k)

Cases cited:

Banks & Banks (2015) FLC 93-637

Crouper & Mitchell [2014] FamCAFC 246
McCall v Clark (2009) 41 Fam LR 483
Mazorski v Albright (2008) 37 Fam LR 518

Perry & Perry (2015) FLC 93-669

SPS & PLS (2008) 217 FLR 164; (2008) FLC 93-363

Vanzin & Vanzin [2014] FamCAFC 245

Applicant:

MR GIBSON

Respondent:

MS NOON

File Number:

CAC 773 of 2016

Judgment of:

Judge Neville

Hearing date:

13 July 2016

Date of Last Submission:

8 August 2016

Delivered at:	Canberra
Oral reasons delivered on:	12 August 2016

Written reasons provided:

19 September 2016

REPRESENTATION

Solicitors for the Applicant:

Counsel for the Respondent:

Farrell Lusher Solicitors, Wagga Wagga

Mr K Pattenden

Solicitors for the Respondent:

Friedlieb Byrne, Wagga Wagga

Solicitors for the Independent Children's Lawyer:

Evans Family Lawyers

ORDERS

The Father have sole parental responsibility for the children, W (born (omitted) 1999), X (born (omitted) 2003), Y (born (omitted) 2009) and Z (born (omitted) 2011) (“the children”).
The children live with the Father.
The Mother spend time with the children W and X according to their wishes.
The Mother spend time with the children Y and Z as follows:
(a)On a fortnightly basis under the supervision of the (omitted) Children's Contact Services as can be accommodated by that service.
That, for the purposes of Orders 4(a), each of the parties will:
(a)Contact the (omitted) Children's Contact Services within seven (7) days to arrange an appointment for assessment for suitability;
(b)Attend the assessment;
(c)Comply with any appointment made by the (omitted) Children's Contact Services;
(d)Comply with all reasonable rules of the (omitted) Children's Contact Services;
(e)Comply with all reasonable requests or directions of the staff of the (omitted) Children's Contact Services;
(f)Pay their own fees nominated by the (omitted) Children's Contact Services.
If the parties are accepted by (omitted) Children's Contact Services following intake procedure, then the Mother is to spend time with the children Y and Z as per Order 4(a) under the supervision of that service.
The Mother’s time with the children Y and Z is to be implemented by the Father or his agent delivering the children to and collecting the children from the (omitted) Children's Contact Services at the start and end of the Mother’s time.
If the (omitted) Children's Contact Services is unable or unwilling to provide supervision as set out above, then either party shall have liberty to restore the matter to the list on seven (7) days written notice to the other party and to the Court.
The Mother is restrained from consuming illicit substances within twelve (12)…

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 Gibson and Noon

Details

AGLC: Gibson and Noon [2016] FCCA 2336
Case: [2016] FCCA 2336
Decision Date: 19 September 2016

CaseChat Overview and Summary

This matter concerned parenting orders for four children, W, X, Y, and Z, with the father, Mr. Gibson, seeking sole parental responsibility and the children to live with him, and the mother, Ms. Noon, also seeking orders regarding time with the children. The dispute was heard by Judge Neville in the Federal Circuit Court of Australia.

The court was required to determine the best interests of the children, specifically addressing issues of parental responsibility, living arrangements, and the nature and extent of time the mother would spend with the children. Key legal issues included the impact of drug use on parenting capacity, the need for supervised contact, and the overall welfare and development of the children in light of the parental separation. The court also considered the children's wishes, particularly for the older children, W and X.

Judge Neville made orders granting the father sole parental responsibility and determining the children's primary residence with him. The mother was granted time with the older children, W and X, according to their wishes, and supervised time with the younger children, Y and Z, through a contact service. The orders imposed strict conditions on both parents regarding drug consumption and mandated random drug testing for both parties. Furthermore, the court ordered the parties to attend counselling and a post-separation parenting program, and directed the preparation of a Family Report by a court-appointed family consultant to investigate various aspects of the children's welfare, their relationships with each parent, and the parents' capacities and attitudes. The matter was listed for a final hearing.

Orders

Orders of the court

1. The Father have sole parental responsibility for the children, W (born (omitted) 1999), X (born (omitted) 2003), Y (born (omitted) 2009) and Z (born (omitted) 2011) (“the children”).

2. The children live with the Father.

3. The Mother spend time with the children W and X according to their wishes.

4. The Mother spend time with the children Y and Z as follows:

(a) On a fortnightly basis under the supervision of the (omitted) Children's Contact Services as can be accommodated by that service.

5. That, for the purposes of Orders 4(a), each of the parties will:

(a) Contact the (omitted) Children's Contact Services within seven (7) days to arrange an appointment for assessment for suitability;

(b) Attend the assessment;

(d) Comply with all reasonable rules of the (omitted) Children's Contact Services;

(e) Comply with all reasonable requests or directions of the staff of the (omitted) Children's Contact Services;

(f) Pay their own fees nominated by the (omitted) Children's Contact Services.

6. If the parties are accepted by (omitted) Children's Contact Services following intake procedure, then the Mother is to spend time with the children Y and Z as per Order 4(a) under the supervision of that service.

7. The Mother’s time with the children Y and Z is to be implemented by the Father or his agent delivering the children to and collecting the children from the (omitted) Children's Contact Services at the start and end of the Mother’s time.

8. If the (omitted) Children's Contact Services is unable or unwilling to provide supervision as set out above, then either party shall have liberty to restore the matter to the list on seven (7) days written notice to the other party and to the Court.

9. The Mother is restrained from consuming illicit substances within twelve (12) hours of her spending time with the children or at any time during.

10. The Father is restrained entirely from consuming illicit drugs.

11. Both parties are to undergo random monthly drug screens by chain of custody urinalysis at their own expense as requested by the Independent Children’s Lawyer, with such tests to be undertaken within forty-eight (48) hours of receiving such a request, with results to be provided by the parties to the Independent Children’s Lawyer within seven days.

12. The Independent Children’s Lawyer be at liberty to request the parties undertake chain of custody hair follicle drug screen on two occasions before final hearing of this matter, and if so requested, the following will apply:

(a) The Mother and Father are restrained from cutting, dying or otherwise altering their hair in any way at any time between such request being received from the Independent Children’s Lawyer and submitting to hair follicle drug screen; and

(b) Each party pay the cost of their respective chain of custody hair follicle drug screen.

13. The Mother be at liberty to communicate with the Children by telephone between 5.00PM and 6.00PM on:

(a) Each Monday and Thursday; and

(b) Christmas Day and Easter Sunday; and

(d) The day of X’s birthday, being (omitted); and

(e) The day of Y’s birthday, being (omitted); and

(f) The day of Z’s birthday, being (omitted).

14. For the purposes of Order 13, above, the Mother will initiate the telephone call to the Father’s landline or mobile telephone and the Father will provide all such reasonable assistance to enable telephone communication to occur. Nothing in this Order requires the children W or X to participate in telephone communication with the Mother against their wishes.

15. The Father will communicate with the Mother in relation to the children’s health and wellbeing, medical emergencies and treatment and will notify the Mother of any injuries or hospitalisation suffered by any child as soon as practicable and by any means necessary.

16. Each parent will keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and will advise the other parent of any change to those details in writing within twenty-four (24) hours of such change occurring.

17. Within fourteen (14) days of the date of these Orders, that is by close of business on 26 August 2016, the Father will provide to the children’s respective schools:

(a) a copy of these Orders; and

(b) an authority for the release of information to the Mother, including but not limited to, school reports, school photograph order forms.

18. Within fourteen (14) days of the date of these Orders, that is by close of business on 26 August 2016, the Mother will attend drug and alcohol counselling, or obtain the relevant referral necessary to undertake such drug and alcohol counselling. The Mother will provide written evidence of her attendance and completion of any drug and alcohol counselling undertaken by her.

19. Within fourteen (14) days of the date of these Orders, that is by close of business on 26 August 2016, the Mother and Father will enrol in a post-separation parenting program at Centacare in (omitted) and upon completion the parents will provide evidence of their completion of the post-separation parenting program.

20. Pursuant to section 62G(2) of the Family Law Act 1975 (‘the Act’) the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in section 60CC of the Act as well as the issues in Order 23.

21. The parties will do such things necessary to facilitate the preparation of the report including attending upon the Family Consultant as requested.

22. The Court Expert will:

(a) Investigate all matters relating the welfare, care and development of the Children;

(b) Carry out an assessment of the parents;

(d) Provide a report to the Court.

23. The Court Expert prepare a report to consider the following issues:

(a) The nature of the relationship between the Children and each of their parents;

(b) The emotional attachment of each of the Children with each of their parents;

(c) The likely effect, if any, of any change in the circumstances of the children X, Y and Z including the likely effect of them of any separation from either of their parents or from any other child or person with whom they have been living;

(d) The attitude of each of the parents to the Children and to their responsibilities of parenthood including but not limited to their attitudes to:

(i) Each other;

(ii) Encouraging and facilitate time with the other parent and the Children’s relationship with the other party;

(iii) Denigrating the other parent in front of the Children;

(e) The capacity of each parent to provide for the Children’s emotional and intellectual needs;

(f) The likely effect, if any, on the emotional and psychological needs of the children X, Y and Z if either of the proposals made by the Mother and the Father respectively were implemented;

(g) Any aspect of psychological or psychiatric health of the Mother or Father which in the opinion of the expert may have an effect and what that effect may be;

(h) The effect on the children X, Y and Z on each parent’s proposed living arrangements and any other arrangements open to the parents;

(i) The likely effect and significance of any different capabilities and approaches to parenting of each of the Mother and Father for the interests of the Children;

(j) The likely effect of separation of the children X, Y and Z from each of the Mother, the Father and any other child;

(k) The nature of the relationship and emotional attachments between the Children;

(l) Any views expressed by any child in relation to living arrangements and any factors which the Court Expert considers are relevant to the weight that ought to be given to those wishes, including:

(i) The child’s respective age and maturity;

(ii) The degree of appreciation by the child of the factors involved in the issue before the Court and their longer term implication;

(iii) The strength and duration of their views;

(iv) The extent to which those views are based on a choice that is well thought through and appropriate as distinct from peripheral matters;

(v) The extent to which those views are the result of pressure on the child, or of the child and how far they reflect the child’s own choice;

(vi) The likely impact on the child of any order contrary to their views;

(vii) Any other issue that the Court Expert considers relevant.

24. In preparing the report, the Court Expert have access to all material filed by the parties in these proceedings. Specifically, the Court Expert shall be provided with copies of the following documents:

(a) Initiating Application of MR GIBSON filed 17 May 2016;

(b) Affidavit of MR GIBSON filed 17 May 2016;

(d) Response of MS NOON filed 14 June 2016;

(e) Affidavit of MS NOON filed 14 June 2016;

(f) Notice of Risk of MS NOON filed 14 June 2016;

(g) Material obtained by way of Orders made pursuant to s.69ZW of the Family Law Act 1975, specifically that material provided by the New South Wales Department of Family and Community Services and the New South Wales Police Services;

(h) Hair follicle drug screen results thus far obtained and provided by each of the Mother and Father and any further results obtained following requests made by the Independent Children’s Lawyer;

(i) Memorandum of the Child Inclusive Conference dated 4 July 2016 and released by Orders dated 8 July 2016;

(j) Any further material filed in this matter.

25. The parents shall refrain from making critical or derogatory remarks about the other, or their family in the presence of or within the hearing of the Children and the parents shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other, or members of their family in the presence of or within the hearing of the child.

26. The matter be listed for Final Hearing for 2 days commencing on 21 August 2017 at 10:00am in Wagga Wagga.

27. Evidence in chief at the Hearing be by way of Affidavit. Oral evidence in chief will only be permitted by leave. Affidavits must comply with Divisions 2.1 and 15.4 of the Federal Circuit Court Rules 2001.

28. The Applicant Father pay any hearing fee or seek a waiver of the fee by 7 August 2017.

29. Each party file and serve by 31 July 2017:

(a) one affidavit setting out any further evidence in chief;

(b) one affidavit of each lay witness intended to be relied upon at trial; and

30. The parties cannot rely on any material filed after 31 July 2017 without the leave of the Court.

31. Each party file and serve on all other parties and the Court by 14 August 2017 a case outline, setting out:

(a) the final orders sought;

(b) a summary of the issues in dispute;

(d) a list of authorities intended to be relied upon; and

(e) a statement of asserted assets and liabilities.

32. An editable Microsoft Word copy of the case outline must be emailed to associate.JudgeNeville@federalcircuitcourt.gov.au by close of business on 14 August 2017.

33. The Independent Children’s Lawyer is to prepare a chronology, to be settled with the parties, by 14 August 2017.

34. The parties are to notify any Family Consultant or other Court appointed expert required to give evidence at the trial a minimum of 6 weeks prior to trial.

35. Subpoenas be returnable no later than 14 August 2017.

36. The matter be listed for pre-hearing directions on 7 August 2017 at 9:15am in Canberra with the practitioners granted leave to attend by telephone on this occasion only.

THE COURT NOTES THAT:

37. Failure to comply with hearing directions could result in Orders for costs (including personal costs Orders) and the possibility that the Court will not hear the matter on the scheduled dates; and

38. Should the matter settle prior to the Final Hearing, or should the Final Hearing be listed to another date, the party who put any expert on notice must notify them that they are no longer required to give evidence, at the earliest possible time. Failure to do so may result in Orders for costs (including personal costs Orders) for hearing related expenses incurred by that expert;

39. The practitioners have telephone leave and unless advised no later than 48 hours prior to the next Court event, Ms H will be contacted on (omitted) and Ms M will be contacted on (omitted);

40. All parties must attend the Final Hearing in person.

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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