Halifax and Temple - [2014] FCCA 1808

FEDERAL CIRCUIT COURT OF AUSTRALIA

HALIFAX & TEMPLE

[2014] FCCA 1808

Catchwords:
FAMILY LAW – Parenting – parental responsibility – relocation – where the parties both have a history of drug abuse – where they currently live about 2500 kilometres apart – whether it is possible for the child to maintain a meaningful relationship with the father if the mother and child remain living so far from the father.

Legislation:

Family Law Act 1975, ss.61DAA, 4AB, 60B, 62B, 60CA, 60CC, 61DA

Mazorski v Albright (2008) 37 FLR 518
Tait & Dinsmore [2007] FamCA 1383
Godfrey & Sanders [2007] FamCA 102
Kirke & Mason (No.2) [2009] FMCAfam 1346
A & A [2000] FamCA 751
Goode & Goode [2006] FamCA 1346

Applicant:

MS HALIFAX

Respondent:

MR TEMPLE

File Number:

DGC 1161 of 2013

Judgment of:

Judge Small

Hearing dates:

31 March – 2 April 2014

Date of Last Submission:

2 April 2014

Delivered at:

Melbourne

Delivered on:

15 August 2014

REPRESENTATION

Counsel for the Applicant:

Ms Campbell

Solicitors for the Applicant:

Ms Campbell was instructed by the Family Law Assistance Program

Counsel for the Respondent:

Ms Wilson

Solicitors for the Respondent:

Rennick Lawyers

ORDERS

All previous orders in relation to the child [X] born [in] 2012 (“the child”) are discharged.
The parties shall have equal shared parental responsibility for the child.
The child shall live with the mother.
The mother is permitted to remain living in Melbourne with the child.
The child shall spend time and communicate with the father by agreement and failing agreement as follows:
A. Until the child goes to school:
(a)On the last weekend of each month from 10:00 am to 5:00 p.m. on Saturday and Sunday for a period of four months;
(b)Thereafter on the last weekend of each month from 10:00 a.m.      on Saturday until 10:00 a.m. on Sunday for a period of four      months;
(c)Thereafter on the last weekend of each month from 10:00 a.m.      on Saturday until 5:00 p.m. on Sunday;
(d)Once the child turns four for one week in the long summer holiday by agreement and failing agreement from 10:00 a.m. on     the first Saturday in January 2017 to 10:00 a.m. on the second       Saturday;
(e)By telephone, Facetime or other electronic means by agreement between the parties and failing agreement:
(i)between 6:00 p.m. and 6:30 p.m. each Wednesday and Saturday;
(ii)at 8:00 a.m. on the child’s birthday and the father’s birthday each year should they not fall on a day when the child is spending time with the father pursuant to these orders;
(iii)at 8:00 a.m. on Christmas Day each year should it not fall on a day when the child is spending time with the father pursuant to these orders;
with the father to make the call and the mother to ensure that the child is available to receive it.
(f)At such other times and places as may be agreed between the    parties from time to time.
B. Once the child begins school:
(a)During Victorian school terms on the last weekend…

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 Halifax and Temple

Details

AGLC: Halifax and Temple [2014] FCCA 1808
Case: [2014] FCCA 1808
Decision Date: 15 August 2014

CaseChat Overview and Summary

This matter concerned parenting orders for a child born in 2012, brought before Judge Small. The dispute involved the father, Mr Temple, and the mother, Ms Halifax, regarding the arrangements for their child. The court was required to determine the specific orders concerning the child's living arrangements, time spent with each parent, and communication between the parents, taking into account the parents' respective lifestyles and concerns about the mother's past drug use.

The court was tasked with determining the best interests of the child, as mandated by the *Family Law Act 1975*. This involved considering various factors, including the maturity and background of the child and parents, their attitudes towards parenthood, and the potential impact of any proposed orders on the child's well-being. A significant consideration was the court's concern regarding the mother's past drug use and the potential for this to affect her ability to meet the child's physical and emotional needs. The court also noted evidence of racial epithets used by the mother towards the father, which indicated a lack of insight into the child's heritage and the impact of such language.

In its reasoning, the court applied the principles of the *Family Law Act 1975* concerning the best interests of the child. While not making a finding that the mother was currently using drugs, the court made orders designed to protect the child from potential neglect arising from such a risk. The court discharged previous orders and established new arrangements for equal shared parental responsibility, with the child to live with the mother. The orders detailed specific, phased arrangements for the child to spend time with the father, including weekend visits and communication via electronic means, with provisions for travel expenses and alternating locations. The court also imposed injunctions restraining the parties from abusing each other in the child's presence and included provisions for drug screen testing for the mother, with liberty to apply should positive results for illicit substances occur without medical explanation.

The court ordered that all previous orders in relation to the child be discharged. It further ordered equal shared parental responsibility, with the child to live with the mother, who was permitted to remain living in Melbourne with the child. Detailed provisions were made for the child to spend time and communicate with the father, both before and after the child commenced school, with specific arrangements for travel and expenses. The court also made orders restraining abusive behaviour towards each other in the child's presence, requiring the father to provide updated photographs for the child's room, and outlining conditions for drug testing of the mother. All extant applications were otherwise dismissed.

Orders

Orders of the court

All previous orders in relation to the child [X] born [in] 2012 (“the child”) are discharged.

The parties shall have equal shared parental responsibility for the child.

The child shall live with the mother.

The mother is permitted to remain living in Melbourne with the child.

The child shall spend time and communicate with the father by agreement and failing agreement as follows:

A. Until the child goes to school:

(a)On the last weekend of each month from 10:00 am to 5:00 p.m. on Saturday and Sunday for a period of four months;

(b) Thereafter on the last weekend of each month from 10:00 a.m. on Saturday until 10:00 a.m. on Sunday for a period of four months;

(d) Once the child turns four for one week in the long summer holiday by agreement and failing agreement from 10:00 a.m. on the first Saturday in January 2017 to 10:00 a.m. on the second Saturday;

(e) By telephone, Facetime or other electronic means by agreement between the parties and failing agreement:

(i) between 6:00 p.m. and 6:30 p.m. each Wednesday and Saturday;

(ii) at 8:00 a.m. on the child’s birthday and the father’s birthday each year should they not fall on a day when the child is spending time with the father pursuant to these orders;

(iii) at 8:00 a.m. on Christmas Day each year should it not fall on a day when the child is spending time with the father pursuant to these orders;

with the father to make the call and the mother to ensure that the child is available to receive it.

(f) At such other times and places as may be agreed between the parties from time to time.

B. Once the child begins school:

(a) During Victorian school terms on the last weekend of each month from 10:00 a.m. on Saturday until 5:00 p.m. on Sunday;

(b) For half the Victorian school term holidays by agreement and failing agreement from 10:00 a.m. on the first Saturday until 6:00 pm on the second Saturday;

(i) From 12 noon on the first Sunday to 12 noon on the third Sunday in odd numbered years;

(ii) From 12 noon on the third Friday to 6:00 pm on the fifth Friday in even numbered years.

(d) By telephone, Facetime or other electronic means by agreement between the parties and failing agreement:

(i) between 6:00 p.m. and 6:30 p.m. each Wednesday and Saturday;

(ii) between 8:00 a.m. and 8:30 a.m. on the child’s birthday, the father’s birthday, Fathers’ Day and Christmas Day each year should they not fall on a day when the child is spending time with the father pursuant to these orders;

with the father to make the call and the mother to ensure that the child is available to receive it.

(e) At such other times and places as may be agreed between the parties from time to time.

For the purposes of the monthly time spent, the mother shall travel to Townsville with the child on the first occasion after the date of these orders and on each alternate occasion thereafter, and the father shall travel to Melbourne on the second occasion after the date of these orders and on each alternate occasion thereafter.

When the mother travels to Townsville she shall pay for all travel expenses for her and the child, and when the father travels to Melbourne he shall pay for his travel expenses.

The time specified in paragraph 5B(a) hereof shall suspend for the period of the Victorian school holidays each year.

The parties shall keep each other informed of their current address and contact details at all times and each shall notify the other within seven days of any change to those details.

10.

Each party shall notify the other as soon as practicable should the child suffer any illness or injury requiring the attention of a registered medical practitioner.

11.

Neither party shall be under the influence of alcohol (ie have a blood-alcohol level of more than 0.05%) while the child is in his or her care.

12.

For 24 hours immediately prior to the commencement of any period of time spent (including any period during which the child is residing with him or her), and during all periods of time spent (including all periods during which the child is residing with him or her), the parties are restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of, any legal or illegal drug or substance, save and except for:

(a) any legal medication prescribed for him or her by a registered medical practitioner, and taken or used by him or her strictly in accordance with such prescription; and

(b) any over-the-counter legal medication or pharmaceutical substance ordinarily sold in major supermarkets, and taken or used by him or her strictly in accordance with the directions appearing on such medication or pharmaceutical substance.

13.

For a period of twelve months from the date of these orders, within 36 hours of a request from the father in writing, including by text message or email or other electronic communication, the mother shall undertake supervised drug screen testing (“the Testing”) at a registered pathology facility and shall provide the results of that screen to the father within 24 hours of receipt, and the father shall not make such a request more than once in any calendar month.

14.

The father shall have liberty to apply if the results of any of the mother’s drug screens show positive results for illicit substances and the mother does not provide a letter from her general practitioner that fully explains the presence of illicit substances in her sample.

15.

Both parties are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of the child, and from permitting any other person so to do.

16.

The father shall provide to the mother a photograph of himself, such photograph to be renewed every six months, and the mother shall ensure that the photograph of the father is placed in the child’s bedroom where the child can see it from his bed, and shall encourage the child to understand that the photograph is of his father.

17.

The father shall have leave to send to the child cards, letters, photographs and gifts from time to time on occasions other than those described in paragraphs 5A(e)(ii) and (iii) and B(d)(ii), but no more than once every two months.

18.

Save for the situation described in paragraph 14 hereof, the parties shall attend family dispute resolution before issuing any further proceedings in relation to the child’s care arrangements.

19.

All extant Applications are otherwise dismissed.

AND THE COURT NOTES THAT:

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 these particulars are included in these Orders.

Background

Background to the litigation

Were it to be shown that Ms Halifax had returned to her drug-using lifestyle, it would almost inevitably result in her neglecting [X]’s physical and emotional needs as she pursued her addiction. While I have not made a finding that Ms Halifax is using drugs again, there is some evidence that causes me concern in that regard, and I will, again, make orders that protect [X] as far as possible from that potential neglect.Section 60CC(3)(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; The parties in this matter are relatively young, both being 25 years old. According to them, their current lifestyles should cause the court no concern. Mr Temple has re-partnered and lives with his partner and her children in a five bedroom house in circumstances where he is employed full-time. Ms Halifax lives in a shared house in which she and [X] have their own rooms and bathroom. She was studying at the time of trial and hopes to find employment as an [omitted]. The maturity of both parties is in question with both conceding that the relationship was extremely volatile and with arguments continuing on several occasions at changeover since separation. There are no particular characteristics that the Court needs to take into account in relation to [X] apart from the fact that he is now two years old and therefore completely dependent on the adults in his life for his safety and security.Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right; There is no indication or evidence before the Court that Ms Halifax is of Aboriginal descent. Ms Halifax did not check the box on her Initiating Application form to indicate that Mr Temple is of Aboriginal descent and indeed marked the “No” box in that section of the form. There is no indication in either party’s affidavit material to indicate such a background. However, it was Mr Temple’s clear evidence on affidavit that during the incident outside his Townsville workplace on 19 March 2013, and in the days following, Ms Halifax called him a “stupid black cunt” on multiple occasions. I note that neither Ms Halifax nor Mr Temple was questioned at trial about that specific matter. I can take that issue no further save to say that any racial epithet hurled at one parent by a child’s other parent indicates a lack of insight into the child’s own heritage and into the effect on the child’s sense of identity of such epithets.Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

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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