March & Rose - [2022] FedCFamC2F 278

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
March & Rose [2022] FedCFamC2F 278

File number(s): SYC 2908 of 2021

Judgment of: JUDGE COSTIGAN

Date of judgment: 1 March 2022

Catchwords: FAMILY LAW – Interim parenting – the nature and extent of the time the child should be spending with the father – risk of harm issues in respect of both households – whether an order should be made for parental responsibility – child’s best interests – hair testing to continue.

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Banks & Banks (2015) FLC 93-637

Goode & Goode [2006] FCA 1346; (2007) 36 Fam LR 422

M & M (1988) FLC 91-979

Division: Division 2 Family Law

Number of paragraphs: 90

Date of last submission/s: 28 February 2022

Date of hearing: 28 February 2022

Place: Newcastle

Solicitor for the Applicant: Karen Thompson

Solicitor for the Respondent: Toronto Legal

Solicitor for the Independent Children's Lawyer: Legal Aid NSW Newcastle
ORDERS

SYC 2908 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR MARCH

Applicant

AND:
MS ROSE

Respondent

AND:
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE COSTIGAN

DATE OF ORDER:

1 MARCH 2022

THE COURT ORDERS ON AN INTERIM BASIS THAT:
1.The child, X born 2014 (“the child”) shall live with the mother.
2.Until such times as the father produces a hair follicle test result that indicates low to moderate consumption of alcohol (2-29.9pg/mg), the father will continue to spend time with the child in accordance with order 1 of the orders made on 27 September 2021.
3.Upon the father producing a hair follicle test result to test for excessive alcohol consumption as a result of compliance with Order 11 herein, that shows a result consistent with low to moderate consumption of alcohol (2-29.9pg/mg) then the child spend time with the father as follows:
3.1 For a period of three (3) months each alternate Saturday from 10am until 1pm
3.2 Thereafter, each alternate Saturday from 10am until 4pm.

4 The father’s time in accordance with order 3 is also conditional upon the following:
4.1 The father is to remain engaged in the SMART recovery program until such times as the service deems his attendance is no longer required due to have completed the program and the father is to provide evidence from the service to the mother’s solicitor and the Independent Children’s Lawyer of his continued engagement prior to any time occurring in accordance with order 3.
4.2 The father will, within 48 hours of these orders, is to attend upon his general practitioner for a mental health assessment and mental health plan and the father will provide evidence of his compliance prior to any time commencing in accordance with order 3.
4.3 The father will do all things within his control to arrange to engage with any other therapy as recommended in the mental health plan referred herein at order 4.2 and will provide the mother’s solicitor and the Independent Children’s Lawyer with details of…

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 March & Rose

Details

AGLC: March & Rose [2022] FedCFamC2F 278
Case: [2022] FedCFamC2F 278
Decision Date

CaseChat Overview and Summary

The parents of X, born 2014, are in dispute about the future living and spend time arrangements for X. The father has commenced court proceedings seeking sole parental responsibility, for the child to live with him and spend supervised time with the mother. The mother has responded and sought sole parental responsibility and for the child to live with her and spend supervised time with the father. The matter proceeded on an interim basis to determine the living and spend time arrangements for X. The key issues the Court was required to decide were whether the father’s problematic use of alcohol and the risk posed by the mother’s partner Mr C warranted an order for X to continue living with the mother on an interim basis, and if so, what spend time arrangements should be made for the father. The Court found that the father’s problematic use of alcohol remained a risk factor to X and, as required by s.60CC(2A) of the Act, that this consideration be given greater weight than all other considerations. As such this consideration supported an order for X to live with the mother on an interim basis, pending further investigation by the Court. The Court found that the orders proposed by the Independent Children’s Lawyer achieved the appropriate balance between the two primary considerations. They would see an increase in time so long as the father maintained the improvements seen to date, and in order to monitor such improvements there would be orders for ongoing hair testing. The Court made orders for X to continue living with the mother on an interim basis and for the father’s time to be supervised for a period of three months each alternate Saturday from 10am until 1pm, and thereafter, each alternate Saturday from 10am until 4pm. The father’s time was conditional upon his engagement with the SMART recovery program, his obtaining and comply with the recommendations of a mental health care plan. The Court also made a range of section 68B restraints on both parties, including the father to submit to hair testing at three monthly intervals within 7 days of a request from the Independent Children’s Lawyer and be restrained from consuming alcohol 24 hours prior to or during any period the child is in his care; and the mother be restrained from leaving the child in the sole care of Mr C or in the unsupervised presence of his two children Y and Z.

Orders