Lyle and Keith - [2009] FMCAfam 661

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LYLE & KEITH

[2009] FMCAfam 661

FAMILY LAW – Parenting – intractable dispute – best interests of the child – drug testing & third-party monitoring – futile orders.

Family Law Act 1975, Part VII, ss.60B (a), 60CA, 60CC (2),(a), (3)(b), (c), (d), (e), (i), (4), (4A), 61DA, 65DAA

Goode v Goode (2007) 36 Fam LR 422
Humane Society International Inc v Kyodo Senpaku Kaisha [2004] FCA 1510
Keach & Keach (2007) FLC ¶93-353
In re L (A Child) (Contact: Domestic Violence) [2001] Fam 260
Mazorski v Albright (2008) 37 Fam LR 518
Monds & Mullan [2009] FMCAfam 58
Swain v Waverley Municipal Council (2005) 220 CLR 517
U v U (2002) 211 CLR 238
W and G (No 2) (2005) FLC ¶93-248

Commonwealth Parliamentary Debates (Senate Hansard) (27^th March 2006)

T. Altobelli, “A response to `A Cautionary Tale’: Learning to paint with a fine brush.” This paper was presented to the 8^th Annual Family Law Intensive, Sydney
R. Chisholm, “The meaning of “meaningful”: Exploring a key term in the Family Law Act amendments of 2006,” (2008) 22 Australian Journal of Family Law 175
R. Kaspiew, “Empirical Insights into Parental Attitudes and Children’s Interests in Family Court Litigation,” (2007) 29 Sydney Law Review 131
J. McIntosh and R. Chisholm, “Shared Care and Children’s Best Interests In Conflicted Separation: A Cautionary Tale from Current Research,” (2008) 20 Australian Family Lawyer 3-16

Applicant:

MR LYLE

Respondent:

MS KEITH

File Number:

CAC 4 of 2007

Judgment of:

Neville FM

Hearing date:

11 May 2009

Date of Last Submission:

11 May 2009

Delivered at:

Canberra (Wagga Wagga sittings)

Delivered on:

11 May 2009

REPRESENTATION

Counsel for the Applicant:

Mrs Dwyer

Solicitors for the Applicant:

Legal Aid NSW (on a duty basis)

Counsel for the Respondent:

Mr Groch

Solicitors for the Respondent:

Denniston & Day, Wagga Wagga, as agents for Jensen’s Solicitors, Lennox Head, NSW
Jensen's Solicitors & Attorneys

Counsel for the Independent Children’s Lawyer

Ms Godtschalk

Solicitors for the Independent Children’s Lawyer

Robb & Associates

ORDERS

UNTIL FURTHER ORDER, IT IS ORDERED THAT:

All previous Orders be discharged.
The Application in a Case filed by the Mother on 7^th May 2009 is withdrawn.
The Mother will have sole parental responsibility for the child, [S] born in 1999.
[S] will continue to live with her Mother.
The Father is to spend time with [S] for a block period of four hours per fortnight, at times to be agreed between the parents in consultation with the Contact Centre, and or the Independent Children’s Lawyer, as follows:–
(a)With the first hour to be supervised at the Contact Centre;
(b)The middle two hours to be unsupervised, with the Father to inform the Contact Service 48 hours ahead of time of his planned activities with [S] away from the Centre; and
(c)The last hour to be supervised at the Contact Centre.
The Father undertake a drug urinalysis test within 21 days, noting that this test is not a…

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 Lyle and Keith

Details

AGLC: Lyle and Keith [2009] FMCAfam 661
Case: [2009] FMCAfam 661
Decision Date: 11 May 2009

CaseChat Overview and Summary

In the Family Court of Australia, Lyle and Keith was a case concerning the parental responsibility for a child, [S], born in 1999. The mother sought sole parental responsibility and a specific visitation arrangement for the father, which included supervised and unsupervised time, contingent on certain conditions. The court was required to determine the allocation of parental responsibility, the visitation arrangements, and the conditions that must be met to facilitate the father's visitation, while ensuring the safety and welfare of the child.

The primary legal issues before the court were whether the mother should have sole parental responsibility for [S], the appropriateness of the proposed visitation schedule for the father, and the conditions that should be imposed to safeguard the child during these visits. The court needed to balance the rights and responsibilities of both parents with the paramount consideration of the child's best interests. The court also needed to consider the mother's concerns about the father's drug use and the potential impact on the child.

The court found that the mother should have sole parental responsibility for [S], reflecting her primary role in the child's care. It was determined that the father would have limited supervised and unsupervised visitation, with stringent conditions to protect [S]. The court imposed restrictions on the father's drug and alcohol use, required supervision during parts of the visitation, and set out detailed guidelines for the contact sessions to ensure the child's safety. The court also mandated that both parents must refrain from speaking negatively about each other in front of [S] and from discussing the court proceedings with her. The court granted the mother's request to withdraw her earlier application and set out specific conditions for the father's visitation, ensuring that the child's welfare remained the primary focus.

The court's orders included the discharge of previous orders, the withdrawal of the mother's application, the granting of sole parental responsibility to the mother, and the establishment of a specific visitation schedule for the father, subject to various conditions. The father was required to undergo a drug test and adhere to strict guidelines during his visitation times. Both parents were instructed to cooperate with the Contact Centre and the Independent Children’s Lawyer to facilitate the visitation and to protect the child's best interests. The matter was adjourned for further mention to allow for ongoing assessment and adjustment of the arrangements as necessary.

Orders

Orders of the court

UNTIL FURTHER ORDER, IT IS ORDERED THAT:

All previous Orders be discharged.

The Application in a Case filed by the Mother on 7th May 2009 is withdrawn.

The Mother will have sole parental responsibility for the child, [S] born in 1999.

[S] will continue to live with her Mother.

The Father is to spend time with [S] for a block period of four hours per fortnight, at times to be agreed between the parents in consultation with the Contact Centre, and or the Independent Children’s Lawyer, as follows:–

(a) With the first hour to be supervised at the Contact Centre;

(b) The middle two hours to be unsupervised, with the Father to inform the Contact Service 48 hours ahead of time of his planned activities with [S] away from the Centre; and

The Father undertake a drug urinalysis test within 21 days, noting that this test is not a precondition for spending time with [S] pursuant to the Orders above.

Liberty to apply is granted if the drug test pursuant to Order 6 proves positive for any illicit drugs other than marijuana.

Copies of any drug test results, or any other documents used in these proceedings, are restricted to the lawyers and Contact Centre only. Drug test results, and any other documents in these proceedings, are not to be divulged by the parties to anyone else.

Both of [S]’s parents will continue to work and liaise with the Contact Centre staff and do all such acts as recommended by them to assist the Mother in managing her anxiety about [S]’s unsupervised time with her Father.

10.

It is requested that during the first hour the Father spends with [S], the Contact Centre monitor the sobriety of the Father and any other notable things, and if the Father is suspected of being drug and or alcohol affected, the staff of the Contact Centre reserve the right to terminate that contact session.

11.

In the event that the Centre determines that Mr Lyle is not appropriately capable of spending time with his daughter, that time must not proceed, and no “make-up” time is to be provided unless agreed to by Ms Keith in writing.

12.

The Mother is not to cancel unilaterally any scheduled visits for [S] and her Father, unless she provides a letter to the Court and the Contact Centre at least 48 hours prior, explaining why the visit is not able to go ahead.

13.

The Father is not to take any non-prescription drugs or alcohol at least 24 hours before spending time with [S], or during the time he spends with her.

14.

The Mother is restrained from following or interfering with the Father’s time with [S] and the Mother is to use her best endeavours to prevent other family members from doing the same.

15.

Both parents are restrained from saying unkind or unpleasant things about the other to [S] or in her presence, or allowing any other person to do so.

16.

Both parents are restrained from discussing these Court proceedings with [S] or showing her any documents related to these proceedings, nor allowing any other person to do so.

17.

It is requested that the Independent Children’s Lawyer provide a copy of these Orders to the Contact Centre.

18.

The matter be adjourned for further mention on 10th August 2009 at 9:30am at Wagga Wagga.

19.

Pursuant to s.65DA(2) and s.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 and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders and new attachment of consequences.

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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