Kingley and Arndale (No 2) - [2009] FamCA 1219

FAMILY COURT OF AUSTRALIA

KINGLEY & ARNDALE (NO. 2)	[2009] FamCA 1219
FAMILY LAW – CHILDREN – Interim parenting orders – The Mother’s capacity to promote a relationship with the Father – The Father’s substance abuse – Supervised time with the Father ordered – Paternal Grandmother to be supervisor
APPLICANT:		Mr Kingley

RESPONDENT:

Ms Arndale

INDEPENDENT CHILDREN’S LAWYER:

Ms Dart, Solicitor of Legal Aid

FILE NUMBER:

BRC

1363

2008

DATE DELIVERED:

3 December 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

3 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Harrison of Counsel appeared for the Applicant Father

SOLICITOR FOR THE APPLICANT:

Smith & Associates

COUNSEL FOR THE RESPONDENT:

Mr Baston of Counsel appeared for the Respondent Mother

SOLICITOR FOR THE RESPONDENT:

John-Paul Mould Solicitors

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms Dart, Solicitor, Legal Aid Office

Orders

IT IS ORDERED THAT:

The proceedings be adjourned for case management review to 9.30 am on
28 May 2010 at the Brisbane Registry of the Family Registry with the parties given leave to appear by telephone.
Orders 11 – 30 inclusive and Order 33 of the Orders made by this Honourable Court on 30 October 2009 be discharged.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

UPON THE UNDERTAKING OF THE FATHER FILED 3 DECEMBER 2009 NOT TO CONSUME ANY ALCOHOL AT ALL WHILE THE CHILD IS IN HIS CARE OR TWENTY-FOUR (24) HOURS PRIOR TO SUCH TIME:

The Father spend time supervised by the paternal grandmother, with the child, C born … December 2006, within a 50 kilometre radius of the W Post Office:
a. from 9.00 am until 4.00 pm on Saturday 5 December 2009;
b.from 9.00 am until 4.00 pm on Saturday 12 December with the child to be collected and returned to the reception area of the W Police Station.
The Father spend time supervised by the paternal grandmother, with the child at the house of the paternal grandmother or such other venue as the Father and paternal grandmother may agree:
a.from 9.00 am on Saturday 19 December 2009 until 4.00 pm on Sunday 20 December 2009;
b.from 9.00 am on Friday 25 December 2009 until 4.00 pm on

27 December 2009;
c.from 9.00 am on Saturday 2 January 2010 until 4.00 pm on Monday 4 January 2010;
d.from 9.00 am on Saturday 16 January 2010 until 4.00 pm on Monday 18 January 2010;
e.thereafter each alternate weekend commencing Saturday 6 February 2010 from 9.00 am on the Saturday until 4.00 pm on the Sunday.
The Mother and Father are not to be present at handovers. As from 19 December 2009 handover is to be at such place as nominated by the legal representatives of the parties, in the event of no agreement then the N Police Station or the P Police Station as determined by the Independent Children’s Lawyer
The Father is to advise the Mother in writing or by text message not less than twenty-four (24) hours prior to the commencement…

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 Kingley and Arndale (No 2)

Details

AGLC: Kingley and Arndale (No 2) [2009] FamCA 1219
Case: [2009] FamCA 1219
Decision Date: 3 December 2009

CaseChat Overview and Summary

In the Family Court of Australia, Barry J made orders concerning the parenting of a child, C, born in December 2006, between the child's mother and father. The proceedings involved a dispute over the father's time with the child, particularly in light of undertakings provided by the father regarding alcohol consumption.

The court was required to determine the terms of supervised time the father would spend with the child, the arrangements for handovers between the parents, and the father's financial contribution towards the mother's travel expenses. Additionally, the court addressed the need for random drug and alcohol testing for both parents and imposed orders restraining the parties from denigrating each other or discussing court proceedings in the child's presence.

Barry J's reasoning focused on facilitating supervised time for the father while ensuring the child's welfare. This was achieved through detailed orders for supervised contact, including specific dates and times, with the paternal grandmother acting as supervisor. The father provided an undertaking not to consume alcohol while the child was in his care or for 24 hours prior, which was a condition for these arrangements. The court also discharged previous orders and established new protocols for handovers, communication regarding the child's overnight stays, and financial contributions for travel. The court further ordered mandatory drug and alcohol testing for both parents and implemented injunctions to protect the child from parental conflict and denigration.

The proceedings were adjourned for a case management review on 28 May 2010, with parties granted leave to appear by telephone. Specific previous orders were discharged, and new orders were made concerning the father's supervised time with the child, subject to his undertaking regarding alcohol. The court also made orders regarding travel expenses, communication, drug and alcohol testing, and prohibitions against denigration and discussing court proceedings in the child's presence.

Orders

Orders of the court

IT IS ORDERED THAT:

The proceedings be adjourned for case management review to 9.30 am on

28 May 2010 at the Brisbane Registry of the Family Registry with the parties given leave to appear by telephone.

Orders 11 – 30 inclusive and Order 33 of the Orders made by this Honourable Court on 30 October 2009 be discharged.

IT IS ORDERED UNTIL FURTHER ORDER THAT:

UPON THE UNDERTAKING OF THE FATHER FILED 3 DECEMBER 2009 NOT TO CONSUME ANY ALCOHOL AT ALL WHILE THE CHILD IS IN HIS CARE OR TWENTY-FOUR (24) HOURS PRIOR TO SUCH TIME:

The Father spend time supervised by the paternal grandmother, with the child, C born … December 2006, within a 50 kilometre radius of the W Post Office:

a . from 9.00 am until 4.00 pm on Saturday 5 December 2009;

b. from 9.00 am until 4.00 pm on Saturday 12 December with the child to be collected and returned to the reception area of the W Police Station.

The Father spend time supervised by the paternal grandmother, with the child at the house of the paternal grandmother or such other venue as the Father and paternal grandmother may agree:

a. from 9.00 am on Saturday 19 December 2009 until 4.00 pm on Sunday 20 December 2009;

b. from 9.00 am on Friday 25 December 2009 until 4.00 pm on

27 December 2009;

c. from 9.00 am on Saturday 2 January 2010 until 4.00 pm on Monday 4 January 2010;

d. from 9.00 am on Saturday 16 January 2010 until 4.00 pm on Monday 18 January 2010;

e. thereafter each alternate weekend commencing Saturday 6 February 2010 from 9.00 am on the Saturday until 4.00 pm on the Sunday.

The Mother and Father are not to be present at handovers. As from 19 December 2009 handover is to be at such place as nominated by the legal representatives of the parties, in the event of no agreement then the N Police Station or the P Police Station as determined by the Independent Children’s Lawyer

The Father is to advise the Mother in writing or by text message not less than twenty-four (24) hours prior to the commencement of any time with the child where the child will be spending the night on each such occasion.

No photos are to be taken at the changeovers.

The Father is to pay to the Mother’s legal representatives within seven (7) days of the date hereof $200 as a contribution to the Mother’s travelling expenses for the time spent with the child pursuant to the terms of paragraphs 4(a) and (b) being a rate of $50 for each return trip by the Mother.

By 30 December 2009 the Father is to pay the Mother $200 as a contribution to the Mother’s travel expenses for the time spent with the child pursuant to the terms of orders 4 (c) and 4 (d).

10.

By 30 January 2010 the Father is to pay the Mother $200 to cover travel expenses of the Mother for the following month and on the second last day of each month thereafter.

11.

In the event there is any breach of the undertaking by the Father filed

3 December 2009 the paternal grandmother is to forthwith make arrangements to return the child to the Mother’s residence and she is to notify the Independent Children’s Lawyer in writing.

12.

The Mother and Father shall undergo random blood tests of their Carbohydrate Deficient Transferren levels and a urine alcohol and drug screen as required by the Independent Children’s Lawyer, such tests to be undertaken within twenty-four (24) hours of a request being received, the costs of which are to be borne by the parties.

13.

In the event the results of the drug and alcohol tests undertaken by the parties pursuant to Order 10 hereof are provided to the parties directly, such results are to be disclosed immediately upon receipt to the Independent Children’s Lawyer and the other party or their solicitor.

IT IS FURTHER ORDERED THAT:

14.

Neither party denigrate the other, or the other party’s family to, or in the presence of, or within hearing of the child.

15.

The parties be restrained and an injunction be granted restraining the parties from discussing any Court proceedings between them in the presence of, or within hearing of the child.

16.

The parties use their best endeavours to ensure that no third party denigrates either of the parties in the presence of, or within hearing of the child.

17.

Each party be at liberty to apply to re-list on forty-eight (48) hours notice to the other parties.

18.

Pursuant to Rule 19.50 of the Family Law Rules 2004 the hearing on 28 May 2010 is one proper for the attendance of Counsel.

19.

Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to 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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