MCDOWELL & REDFIELD - [2020] FCCA 2670

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCDOWELL & REDFIELD

[2020] FCCA 2670

Catchwords:
FAMILY LAW – Parenting – interim orders – young child - allegations of family violence – recovery – competing live with applications – assessment of risk – best interests of child – orders made for the child to live with the father and spend time with the mother.

Legislation:

Family Law Act 1975 (Cth), s.67Q

Applicant:

MS MCDOWELL

Respondent:

MR REDFIELD

File Number:

PAC 4725 of 2020

Judgment of:

Judge Obradovic

Hearing dates:

14 and 22 September 2020

Date of Last Submission:

22 September 2020

Delivered at:

Parramatta

Delivered on:

24 September 2020

REPRESENTATION

Appearing for the Applicant:

Mr Gonzales

Solicitors for the Applicant:

Gonzalez & Co

Counsel for the Respondent:

Mr Blackah

Solicitors for the Respondent:

John Hall Lawyers

PENDING FURTHER ORDER:

Subject to the undertaking provided to the Court by Ms B filed on 22 September 2020, the child, X born in 2020, shall live with the father.
The child shall spend time with the mother as follows:
(a)Each Sunday from 8.30am to 6pm on Monday; and
(b)Each Wednesday and Friday from 8.30am to 6pm;
(c)And at all other times as agreed to between the parents in writing.
The father or his nominee shall respectively deliver to and collect the child from McDonald’s Restaurant Suburb C, NSW, at the commencement and conclusion of the child’s time with the mother.
The parents are both restrained by injunction from:
(a)Drinking alcohol whilst in the presence of the child or for 12 hours prior to the child coming into that parent’s care; and
(b)Using any illicit substance or misusing any prescription medication for a period of not less than 24 hours prior to the child coming into that parent’s care and for the duration of the time the child is in that parent’s care.
The mother and father each shall within 24 hours of receiving a request from the other party or the Independent Children’s Lawyer to do so submit themselves to urine drug analysis and attend to provide a urine sample for forensic testing with respect to the presence of cannaboids, opiates, amphetamines, methamphetamines and benzoids:
(a)A request for urine drug testing may not be made by either party or the Independent Children’s Lawyer on more than two occasions in each calendar month;
(b)The test is to be conducted in accordance with the current Australian Standard for the collection and detection of drugs of abuse;
(c)The parent undergoing the test shall provide to the pathologist photographic identification to be recorded before each test and the authority to provide the results of each test to the legal representative for the other parent and the Independent Children’s Lawyer immediately upon its completion;
(d)Each of the parties shall pay the costs of their own urine drug tests and any referral.
The mother and father are to provide a hair sample to enable a full drug screen by hair follicle testing within 30 days of the date hereof and on receipt 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 MCDOWELL & REDFIELD

Details

AGLC: McDowell and Redfield [2020] FCCA 2670
Case: [2020] FCCA 2670
Decision Date: 24 September 2020

CaseChat Overview and Summary

In the matter of McDowell & Redfield, heard by Judge Obradovic, the dispute concerned interim parenting orders for a young child, X, born in 2020. The proceedings involved competing applications for the child to live with one of the parents and included allegations of family violence, requiring an assessment of risk to the child.

The court was required to determine the best interests of the child in the interim, specifically whether the child should live with the father or the mother, and to establish appropriate time spent with the non-resident parent. The court also needed to consider the implications of family violence allegations and the use of substances by the parents on the child's welfare.

The court reasoned that, pending further orders, the child should live with the father. This decision was accompanied by specific time spent arrangements for the mother, including supervised pick-up and drop-off locations. Crucially, the court imposed stringent orders regarding alcohol and illicit substance use by both parents, mandating abstinence for specified periods before and during time with the child. Further, both parents were ordered to undergo drug and alcohol counselling and forensic testing, including urine analysis and hair follicle testing, with strict protocols for requesting and conducting these tests. The mother was also directed to continue psychiatric and psychological treatment. An Independent Children's Lawyer was appointed for the child.

Orders

Orders of the court

PENDING FURTHER ORDER:

1. Subject to the undertaking provided to the Court by Ms B filed on 22 September 2020, the child, X born in 2020, shall live with the father.

2. The child shall spend time with the mother as follows:

2. (a) Each Sunday from 8.30am to 6pm on Monday; and

2. (b) Each Wednesday and Friday from 8.30am to 6pm;

2. (c) And at all other times as agreed to between the parents in writing.

3. The father or his nominee shall respectively deliver to and collect the child from McDonald’s Restaurant Suburb C, NSW, at the commencement and conclusion of the child’s time with the mother.

4. The parents are both restrained by injunction from:

4. (a) Drinking alcohol whilst in the presence of the child or for 12 hours prior to the child coming into that parent’s care; and

4. (b) Using any illicit substance or misusing any prescription medication for a period of not less than 24 hours prior to the child coming into that parent’s care and for the duration of the time the child is in that parent’s care.

5. The mother and father each shall within 24 hours of receiving a request from the other party or the Independent Children’s Lawyer to do so submit themselves to urine drug analysis and attend to provide a urine sample for forensic testing with respect to the presence of cannaboids, opiates, amphetamines, methamphetamines and benzoids:

5. (a) A request for urine drug testing may not be made by either party or the Independent Children’s Lawyer on more than two occasions in each calendar month;

5. (b) The test is to be conducted in accordance with the current Australian Standard for the collection and detection of drugs of abuse;

5. (c) The parent undergoing the test shall provide to the pathologist photographic identification to be recorded before each test and the authority to provide the results of each test to the legal representative for the other parent and the Independent Children’s Lawyer immediately upon its completion;

5. (d) Each of the parties shall pay the costs of their own urine drug tests and any referral.

6. The mother and father are to provide a hair sample to enable a full drug screen by hair follicle testing within 30 days of the date hereof and on receipt of the result is to cause his/her solicitors to forward a copy of that result to each of the solicitors and the Independent Children’s Lawyer.

7. The mother and father are restrained from taking any steps to interfere with the provision of hair follicle sample or to interfere with the test results.

8. Each party is to meet their own costs of such hair follicle testing.

9. The mother and father shall, forthwith, do all acts and things necessary to attend drug and alcohol counselling with an appropriately accredited or qualified therapist and/or service provider, and:

9. (a) Do everything reasonably necessary obtain a referral (if required), undertake and successfully complete a program and/or sessions as recommended by that appropriately accredited or qualified therapist and/or service provider;

9. (b) Follow all reasonable recommendations, directions and treatments provided by the appropriately accredited or qualified therapist and/or service provider and

9. (c) Each party meet their own costs associated with undertaking such drug and alcohol counselling.

10. The mother shall forthwith attend her current treating psychiatrist and/or psychologist for the purposes of ongoing treatment and follow all reasonable instructions of that psychiatrist and/or psychologist including:

10. (a) attending all appointments made by the health professional for her;

10. (b) taking all medication prescribed by the medical professional for her; and

10. (c) undertaking all treatment recommended by the health professional for her.

THE COURT FURTHER ORDERS

11. Pursuant to s.68L of the Family Law Act 1975 an Independent Children’s Lawyer is appointed for X born in 2020 and request the Legal Aid Commission of NSW to provide such representation.

12. The parties are to provide to the Independent Children’s Lawyer, within 48 hours of receiving notice of their appointment, all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.

13. The parties are to provide to the Independent Children’s Lawyer immediately upon notification of their appointment, a copy of any subpoena issued in the proceedings.

14. List the matter for directions at 12 noon on 25 November 2020.

15. The parties are granted liberty to seek to have the matter restored to the list on 24 hours’ notice.

IT IS NOTED that publication of this judgment under the pseudonym McDowell & Redfield is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

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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