Jarry and Reston - [2019] FCCA 1824

FEDERAL CIRCUIT COURT OF AUSTRALIA

JARRY & RESTON

[2019] FCCA 1824

Catchwords:
FAMILY LAW – Parenting – where the Mother failed to file Response material – where the Mother was aware of the proceedings but failed to appear at the hearing – where the matter proceeded on an undefended basis – where the orders made were in the best interests of the child.

Legislation:

Family Law Act 1975 (Cth), ss.60CA, 60CC(2)(a), 60CC(2)(b), 60CC(2A), 60CC(3)(b), 60CC(3)(g), 60CC(3)(i), 60CC(3)(m), 60DA, 66DAA.

Cases cited:

Banks & Banks [2015] FamCAFC 36
Narkis& Narkis (No 4) [2017] FamCA 200

Applicant:

MR JARRY

Respondent:

MS RESTON

File Number:

TVC 196 of 2019

Judgment of:

Judge Andrew

Hearing date:

18 April 2019

Date of Last Submission:

18 April 2019

Delivered at:

Town G

Delivered on:

18 April 2019

REPRESENTATION

Solicitors for the Applicant:

Ruddy Tomlins & Baxter

There being no appearance by or on behalf of the Respondent

ORDERS

THE COURT ORDERS ON A FINAL BASIS:
Parental Responsibility

That the Father, MR JARRY have sole parental responsibility for issues relating to the long term care, welfare and development of the child [X] born … 2012, (referred to as the “Child”) including by not limited to:
(a)Any medical or health matter concerning the Child;
(b)Any medical or health matter concerning either parent which may affect the ability of that parent to care for the Child;
(c)Matters relating to the education of the Child, including but not limited to, the choice of school and curriculum and the provision to the other parent of all school reports, order forms for the school photographs and all communications from the Children’s school other than with respect to routine or administrative matters;
(d)Disciplinary matters other than of a trivial nature;
(e)Matters concerning the social development and sporting activities of the Child;
(f)Matters concerning the religion or faith of the Child; and
(g)Generally, any matter regarding the child in respect of which a parent should be informed of or consulted having regard to the provisions of Part VII of the Family Law Act.
That the Father shall be responsible for the day-to-day care, welfare and development of the Child whilst she is living with him.

Living and Time Arrangements

That the Child live with the Father.
That the Child spend time with the Mother, MS RESTON, supervised by the Father or such other person as nominated on his behalf, and at such times and locations as nominated by the Father from time to time.

Drug Testing

That the Mother, Ms Reston is restrained from using illicit drugs.
That until 31 December 2021, the Mother, Ms Reston is to submit to urinalysis and hair follicle tests for the detection of such drugs randomly at appointments made by the Father and/or his lawyers, not being more often than once per month.
That for the purpose of hair follicle tests, Ms Reston shall not cut her hair shorter than 3 centimetres until the date specified in the Order 6.
That within 24 hours of the date…

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 Jarry and Reston

Details

AGLC: Jarry and Reston [2019] FCCA 1824
Case: [2019] FCCA 1824
Decision Date: 18 April 2019

CaseChat Overview and Summary

In the matter of *Jarry and Reston*, heard by Judge Andrew, the dispute concerned orders relating to parental responsibility, living arrangements, and drug testing for the child [X]. The father, Mr Jarry, sought orders for sole parental responsibility and specific living and time arrangements, as well as drug testing for the mother, Ms Reston.

The court was required to determine the extent of parental responsibility to be allocated between the parents, the primary living arrangements for the child, and the necessity and conditions of drug testing for the mother. These determinations were to be made in accordance with the overarching principles of the child's best interests as stipulated in Part VII of the *Family Law Act*.

Judge Andrew ordered that the father, Mr Jarry, have sole parental responsibility for long-term decisions concerning the child's care, welfare, and development, including medical, educational, disciplinary, social, and religious matters. The child was ordered to live with the father and spend time with the mother under supervision. Furthermore, the mother was restrained from using illicit drugs and ordered to undergo random urinalysis and hair follicle tests until 31 December 2021, with specific provisions regarding hair length, referral, accredited laboratories, identification, and the scope of testing. The costs of these tests were to be shared equally, and a positive test would result in the suspension of the mother's time with the child pending further order.

Orders

Orders of the court

THE COURT ORDERS ON A FINAL BASIS:

Parental Responsibility

That the Father, MR JARRY have sole parental responsibility for issues relating to the long term care, welfare and development of the child [X] born … 2012, (referred to as the “Child”) including by not limited to:

(a) Any medical or health matter concerning the Child;

(b) Any medical or health matter concerning either parent which may affect the ability of that parent to care for the Child;

(c) Matters relating to the education of the Child, including but not limited to, the choice of school and curriculum and the provision to the other parent of all school reports, order forms for the school photographs and all communications from the Children’s school other than with respect to routine or administrative matters;

(d) Disciplinary matters other than of a trivial nature;

(e) Matters concerning the social development and sporting activities of the Child;

(f) Matters concerning the religion or faith of the Child; and

(g) Generally, any matter regarding the child in respect of which a parent should be informed of or consulted having regard to the provisions of Part VII of the Family Law Act.

That the Father shall be responsible for the day-to-day care, welfare and development of the Child whilst she is living with him.

Living and Time Arrangements

That the Child live with the Father.

That the Child spend time with the Mother, MS RESTON, supervised by the Father or such other person as nominated on his behalf, and at such times and locations as nominated by the Father from time to time.

Drug Testing

That the Mother, Ms Reston is restrained from using illicit drugs.

That until 31 December 2021, the Mother, Ms Reston is to submit to urinalysis and hair follicle tests for the detection of such drugs randomly at appointments made by the Father and/or his lawyers, not being more often than once per month.

That for the purpose of hair follicle tests, Ms Reston shall not cut her hair shorter than 3 centimetres until the date specified in the Order 6.

That within 24 hours of the date of this order Ms Reston obtain from a medical practitioner a referral to a pathologist for the conduct of such tests.

That the tests 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 illicit drugs.

10.

That Ms Reston provide the pathologist with photographic identification, to be recorded before each test, and the authority to provide the results of each test to the Applicant and/or Applicant’s lawyers immediately upon its completion.

11.

That each test shall be for the detection of amphetamine-type substances, cannabis, opiates (including heroin and morphine), sedative-type drugs, cocaine, chronic alcohol use and any other drugs of abuse.

12.

That the Applicant and Respondent equally share the cost of such tests and the referral.

13.

That in the event of a positive test, the Respondent Mother’s time with the Child under this Order is suspended until further Order, each party in that event having liberty to apply at short notice.

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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