FEDERAL CIRCUIT COURT OF AUSTRALIA
| GIBSON & BUTLER | [2020] FCCA 2770 |
| Catchwords: FAMILY LAW – Parenting – young children – recent consent interim orders – father had provided clear drug tests prior to consent orders – mother entered orders based on clear tests – mother subpoenaed testing company – reports of the tests of the same dates as the clear test reports showed positive results – father admitted having had copies of documents showing positive tests and not providing them as it would impact his capacity to have time with children – no finding on interim basis as to how documents showing clear results came into being –consent orders entered on a false premise open to court to reconsider orders – father told ambulance officers he had been using ice for a month – father advised court he was only using it for a day – inadequately treated mental health – unacceptable risk from combination of drug use and mental health issues – supervised time only – consequential orders. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 64B, 65AA, 65D, 69ZL, Part 7 |
| Cases cited: Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346 |
| Applicant: | MS GIBSON |
| Respondent: | MR BUTLER |
| File Number: | CAC 48 of 2019 |
| Judgment of: | Judge B Smith |
| Hearing date: | 4 September 2020 |
| Date of Last Submission: | 4 September 2020 |
| Delivered at: | Sydney |
| Delivered on: | 4 September 2020 |
REPRESENTATION
| The Applicant appeared for herself |
| The Respondent appeared for himself | ||
| Solicitors for the Independent Children's Lawyer: | Mark Macdiarmid Family Law Specialist | |
ORDERS
The matter be listed for mention on 13 April 2021 at 9:30AM.
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.
The parenting orders made by consent on 2 March 2020 are discharged.
The mother have sole parental responsibility of X born in 2013 and Y born in 2016 (‘the children’) with regards to the children’s education and with regards to any urgent medical issues that arise, but she is to take reasonable steps to keep the father informed in respect of her decisions.
The children shall live with the mother.
The father be permitted to FaceTime the children every Tuesday between 5.45pm and 6.15pm.
Pending the commencement of time at the Contact Centre provided for in Orders 8 and following below, the father shall spend time with the children as agreed in writing between the parents and…
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- Gibson and Butler [2020] FCCA 2770
- Case
- [2020] FCCA 2770
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the consent orders, entered into on a potentially false premise, should be reconsidered. Further, the court needed to assess the risk posed to the children by the father's admitted drug use, particularly in light of his inadequately treated mental health issues, and to make consequential parenting orders accordingly.
Judge B Smith found that the father's admission of recent ice use for a month, contradicting his earlier assertion of only a day's use, combined with his mental health issues, presented an unacceptable risk to the children. Consequently, the court discharged the previous consent orders. The mother was granted sole parental responsibility for the children's education and urgent medical issues, with a requirement to keep the father informed. The children were ordered to live with the mother, and the father's time with the children was restricted to supervised contact only, with detailed provisions for engagement with a supervision service, drug testing, and mediation.
Orders
Orders of the court
1.
The matter be listed for mention on 13 April 2021 at 9:30AM.
2.
Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.
3.
The parenting orders made by consent on 2 March 2020 are discharged.
4.
The mother have sole parental responsibility of X born in 2013 and Y born in 2016 (‘the children’) with regards to the children’s education and with regards to any urgent medical issues that arise, but she is to take reasonable steps to keep the father informed in respect of her decisions.
5.
The children shall live with the mother.
6.
The father be permitted to FaceTime the children every Tuesday between 5.45pm and 6.15pm.
7.
Pending the commencement of time at the Contact Centre provided for in Orders 8 and following below, the father shall spend time with the children as agreed in writing between the parents and failing agreement each alternate weekend for up to 4 hours, supervised by such supervision service as is nominated pursuant to the next Order (‘the supervision service’) at such times and venues as are agreed between the parents and the supervision service, and failing agreement as are determined by the supervision service, and to facilitate the time provided for in this Order each parent shall forthwith do all things necessary to engage with the supervision service including completing any necessary intake process in a timely fashion.
8.
The supervision service will be a service agreed between the father and the Independent Children’s Lawyer, selected from the following services:
(a) B Contact Centre;
(b) C Contact Centre;
(c) C Contact Centre;
(d) D Family Services;
(e) E Contact Centre; and
(f) F Contact Centre.
9.
The father will obtain a report from the supervision service for each occasion he spends time with the child pursuant to the previous Order and will make a copy of such report available to the solicitors for the mother and the Independent Children’s Lawyer within 7 days of receipt by the father.
10.
The father will be responsible for all fees and charges of the supervision service with respect to the children’s time with him.
11.
The father and mother must forthwith:
(a) Contact Sydney Contact Service at Suburb G (conducted by H Family Services) on ... to arrange any necessary appointments for assessment for suitability for supervision of the time the child spend with the father (‘the assessment’);
(b) attend the assessment;
(c) comply with any appointments made by the Contact Centre for supervised time;
(d) comply with all reasonable policies and rules of the Contact Centre; and
(e) comply with all reasonable requests or directions of the staff of the Contact Centre.
12.
If after assessment the parties are accepted by the Contact Centre as suitable for supervised time, the father is thereafter to spend time with the children at a frequency of not more than once per fortnight for a period of 4 hours.
13.
In the event that the Contact Centre offers supervised time only at times which are less regular than specified in the previous Order, then contact shall occur at the times that are offered by the Contact Centre.
14.
The mother must deliver the child to and collect the child from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity.
15.
The parents shall be equally responsible for any fee charged by the Contact Centre.
16.
A copy of these orders may be provided to the children’s school or day care centres.
17.
Within 5 days and thereafter upon request by the Independent Children’s Lawyer at any time, but on no more than one occasion every 3 months either party shall submit themselves for hair testing and provide such hair samples as directed by The Drug Detection Agency for the purposes of obtaining a drug screen using the Drug Detection Agency’s standard 5-Panel Hair Drug Test (testing for Amphetamines / Methamphetamine, Cannabis, Opiates, Cocaine, & PCP).
18.
The party be restrained from taking any steps to interfere with the provision of hair samples or to interfere with the test results.
19.
The party direct and authorise The Drug Detection Agency to provide directly to the Independent Children’s Lawyer and the other party copies of all test results forthwith upon those results becoming available.
20.
The party shall meet his/her own costs of such hair testing.
21.
Upon request by the Independent Children’s Lawyer at any time, but on no more than two occasions per calendar month not falling on a Friday, a weekend day or any day of a long weekend, the party shall within 24 hours of such request being made:
(a) do all things, sign all documents and pay all fees necessary to submit themselves to an accredited laboratory for urinalysis testing (under supervision and chain of custody), such urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2008: Procedure for the collection, detection and quantitation of drugs of abuse in urine; and
(b) upon the results of such tests being available, cause copies of the results to be provided to the Independent Children’s Lawyer and the other parent.
22.
Without admissions, each parent is restrained from:
(a) Consuming any prescription medication other than as prescribed;
(b) Physically disciplining the children;
(c) Denigrating the other parent or a person with whom the other parent has a relationship in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence;
(d) Discussing the proceedings or any allegations raised in these proceedings with the children or permitting any other person to do so with their knowledge or in their presence;
(e) Permitting the children having access to any of the documents filed in these proceedings;
(f) Communicating any information intended for the other parent through the children;
(g) Causing the children to be a medium in any way between the mother and the father or between the mother and the father and any other person; and
(h) Discussing major long-term matters with the children including living arrangements and schooling, until such issues have been raised and discussed with the other parent, a mutual decision has been reached and consent is given by both parents to those matters being discussed with the children or the parties agree to the matter being raised and discussed with the children.
23.
The parents and the Independent Children’s Lawyer shall participate in a Legal Aid mediation under the COMP program (‘the mediation’) at a time and date appointed by Legal Aid NSW. The Independent Children’s Lawyer has sought funding for the mediation to take place.
24.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:
(a) to consider the factors in sections 60CC and 65DAA of the Family Law Act 1975;
(b) to consider issues raised in the Family Consultant’s Memorandum to Court;
(c) to profile of the parents (and other significant adults);
(d) to assess the parents interactions (and those of other significant adults);
(e) to assess the children’s developmental and emotional state;
(f) to assess the relationship of the children to the parents (and other significant persons);
(g) to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;
(h) to assess the proposed and actual home environments; and
(i) to assess the proposals of each party as to the children’s future.
25.
The Family Consultant is granted leave to inspect all documents produced in response to Subpoena.
26.
The report be released as soon as practicable, or unless otherwise arranged with Chambers.
27.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
28.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the Children to whom these proceedings relate:
(a) a Children’s Court;
(b) a child protection authority;
(c) a convener of any legal dispute resolution conference.
29.
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
30.
Following release of the Family Report and prior to the adjourned date, the parties file and serve a minute of final order sought by each of them as to parenting.
31.
Liberty is granted to the Independent Children’s Lawyer to approach the Court in Chambers to have the matter relisted if they see reason.
NOTES:
(A) Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
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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