GORTON & GORTON - [2018] FamCA 799

FAMILY COURT OF AUSTRALIA

GORTON & GORTON

[2018] FamCA 799

FAMILY LAW – CHILDREN – Interim parenting –Best interests of the children – Where there are concerns about the father’s alcohol use – Where the mother contends the father is an unacceptable risk to the children – Parental responsibility.

Family Law Act 1975 (Cth)

Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13

APPLICANT:

Ms Gorton

RESPONDENT:

Mr Gorton

FILE NUMBER:

DUC

2018

DATE DELIVERED:

5 October 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

17 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms De Vere of Counsel

SOLICITOR FOR THE APPLICANT:

Jacqueline Kyle Family Law

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Mr Gorton in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Maddox of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Dubbo

Orders

That the children X born … 2001, Y born … 2003 and Z born … 2006 (‘the children”) live with the mother.
That the children X and Y spend time with the father in accordance with their wishes.
That the child Z (‘the youngest child”) spend time with the father:
(a)       During school term from after school to 7 pm each Wednesday;
(b)       During the short school holidays from 10 am to 4 pm on two days during the school holiday period as agreed between the parties or failing agreement, on the first and last day of the school holiday period;
(c)       During the December/January school holidays from 10 am to 4 pm on six days during the school holiday period excluding 25 December and the period between 1 January and 14 January as agreed between the parties and failing agreement on the days set by the mother.
The father shall take the youngest child to all sporting events, social events and parties that shall take place during his time with the youngest child. If the father is not willing to take the youngest child to these events then the father’s time with the youngest child shall be suspended on that date.
In the event that the youngest child expresses a wish to return to the mother during his time with the father then the father shall return the youngest child to the residence of the mother.
The father shall collect the youngest child from the residence of the mother at the beginning of his time with the youngest child and shall return him to the residence of the mother at the end of his time with the youngest child.
That pending further order, the father shall undergo random blood tests to identify the level of carbohydrate deficient transferrin in the father’s blood (“CDT Testing”) and such testing shall occur…

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 GORTON & GORTON

Details

AGLC: GORTON & GORTON [2018] FamCA 799
Case: [2018] FamCA 799
Decision Date: 5 October 2018

CaseChat Overview and Summary

In the matter of GORTON & GORTON, Hannam J considered an application concerning interim parenting arrangements for three children. The dispute arose from the mother's contention that the father posed an unacceptable risk to the children due to concerns about his alcohol use, impacting the children's best interests and the father's parental responsibility.

The court was required to determine the interim living and spending time arrangements for the children, taking into account the mother's allegations regarding the father's alcohol consumption and its potential impact on the children's safety and well-being. A key issue was how to balance the children's best interests with the father's desire for contact, particularly in light of the alleged risks.

Hannam J ordered that the children live with the mother. The two elder children were to spend time with the father in accordance with their wishes. However, the youngest child's time with the father was significantly restricted and made conditional. This included specific, limited periods during school terms and holidays, with provisions for the father to attend the child's events and to return the child to the mother if the child wished. Crucially, the father was ordered to undergo random, regular blood tests for carbohydrate deficient transferrin (CDT) to monitor his alcohol levels, with the costs borne by him. Failure to comply with the testing regime or a positive result would lead to the suspension of his time with the youngest child. Furthermore, his time with the youngest child was conditional on him completing a parenting course, refraining from alcohol consumption for 24 hours prior to and during his time with the child, and spending some time with the child in a public location.

Orders

Orders of the court

That the children X born … 2001, Y born … 2003 and Z born … 2006 (‘the children”) live with the mother.

That the children X and Y spend time with the father in accordance with their wishes.

That the child Z (‘the youngest child”) spend time with the father:

(a) During school term from after school to 7 pm each Wednesday;

(b) During the short school holidays from 10 am to 4 pm on two days during the school holiday period as agreed between the parties or failing agreement, on the first and last day of the school holiday period;

(c) During the December/January school holidays from 10 am to 4 pm on six days during the school holiday period excluding 25 December and the period between 1 January and 14 January as agreed between the parties and failing agreement on the days set by the mother.

The father shall take the youngest child to all sporting events, social events and parties that shall take place during his time with the youngest child. If the father is not willing to take the youngest child to these events then the father’s time with the youngest child shall be suspended on that date.

In the event that the youngest child expresses a wish to return to the mother during his time with the father then the father shall return the youngest child to the residence of the mother.

The father shall collect the youngest child from the residence of the mother at the beginning of his time with the youngest child and shall return him to the residence of the mother at the end of his time with the youngest child.

That pending further order, the father shall undergo random blood tests to identify the level of carbohydrate deficient transferrin in the father’s blood (“CDT Testing”) and such testing shall occur as follows:

(a) The father shall do all acts and things necessary to obtain within seven days of the date of these Orders a pathology test request form from his general practitioner for CDT testing;

(b) That the mother notify the father by SMS or text message of her request for CDT testing;

(d) That such requests for CDT testing occur no more than two times per month;

(e) That the test be conducted at a laboratory accredited by the National Association of Testing Authorities, Australia in accordance with the current Australian Standard for the collection and detection of alcohol abuse;

(f) That the father do all acts and things and sign all documents to authorise the testing laboratory to release the test results to both the mother and the mother’s solicitors.

(g) That the cost of the test be borne by the father; and

(h) That in the event a result is returned indicating positive for a tested substance, or the father fails to comply with a relevant request, the youngest child’s time with the father under these Orders shall be suspended until further Order.

(i) The father shall supply the results of any such testing to the solicitor for the mother and the mother within 24 hours of his receipt of such test results.

The time spent by the father with the youngest child pursuant to Order 3 shall be conditional on the father:

(a) Completing a Parenting After Separation course and providing to the solicitor for the mother a certificate showing that he has successfully completed a course;

(b) Not consuming alcohol in the 24 hours prior to him spending time with the youngest child and during his time with the youngest child;

(d) Spending such time with the child in a public location as agreed between the parties.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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