MCGIVERN & HAMLIN
[2020] FCCA 976
•1 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCGIVERN & HAMLIN | [2020] FCCA 976 |
| Catchwords: FAMILY LAW – Interim parenting – where following separation, the child lived with the mother and spent limited time with the father – where CDT testing is required – where consideration of the best interest of the child, with particular focus on s.60CC(2)(a) of the Family Law Act 1975 (Cth) – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC |
| Cases cited: Banks &Banks [2015] FamCAFC 36 Goode & Goode [2006] FamCA 1346 Marvel & Marvel [2010] FamCA 240 SS & AH [2010] FamCAFC 13 |
| Applicant: | MR MCGIVERN |
| Respondent: | MS HAMLIN |
| File Number: | PAC 848 of 2020 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 24 April 2020 |
| Date of Last Submission: | 24 April 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 1 May 2020 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Rahhal |
| Counsel for the Respondent: | Ms Canntrall |
| Solicitor for the Independent Children's Lawyer: | Ms Rutkowska |
ORDERS
That X (“X”), born in 2017, live with Ms Hamlin (“the mother”).
That X spend time with Mr McGivern (“the father”) from 10:00am till 2:00pm for a period of eight weeks each Saturday from the date of these Orders. The location of that time is to be within a one hour’s drive of the mother’s home, with the father to advise the mother of the location. The mother to deliver X to that location by 10:00am. During the period of time spent with the father, X is to have a midday nap. The father is to return X to the mother’s home at the conclusion of this time and in any event by 3:00pm.
During the initial eight week period, the father is restrained by injunction from consuming alcohol for a period of 24 hours prior to and during any time that X spends with him, pursuant to these Orders.
During the initial eight week period, the father is to undertake one random CDT test, at his expense, within 48 hours of being advised by the Independent Children’s Lawyer (“ICL”) of the requirement to undertake that test. The father is to provide the results of that test to the ICL and the mother’s legal representatives within 48 hours of receipt. For the purposes of this order, the father is to provide to the ICL his current email address to enable the request to be made. The results of any CDT test is to be provided to the Court by the father’s legal representatives.
That the mother keep the father informed of X’s health issues, as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken, except in the case of an emergency (with the mother to inform the father as soon as reasonably practicable).
That the mother and father be restrained from making any derogatory comments about the other parent or any member of their family in the presence of and/or the hearing of X.
The matter is relisted to appear before Judge Humphreys at 2:00pm on Friday 26 June 2020 for further hearing.
Grant liberty to restore on 2 days’ notice.
IT IS NOTED that publication of this judgment under the pseudonym McGivern & Hamlin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 848 of 2020
| MR MCGIVERN |
Applicant
And
| MS HAMLIN |
Respondent
REASONS FOR JUDGMENT
Introduction
This judgment concerns interim orders regarding Mr McGivern (“the father”), to spend agreed time with the child X (“X”), born in 2017, now aged 3 years.
The father and Ms Hamlin (“the mother”), resided together between September 2015 and January 2016 and again from May 2016 until 9 March 2018. The parties were never married.
The parties initially resided in a unit in Suburb A, owned by the mother. In March 2016, the parties moved to a rental property in Suburb B, where the father still resides. The mother now resides back in Suburb A.
The mother alleges she ended the relationship due to the abuse of alcohol by the father. After consuming alcohol, the mother alleges the father would become angry, aggressive and agitated. X has resided with the mother since separation. There is a dispute between the parties as to the amount of time the father has spent with X since separation. It is common ground that the father, at the request of the mother, has completed alcohol or Carbohydrate Deficient Transferrin (“CDT”) tests. That test indicates whether or not alcohol is being abused.
It is common ground that the father has not spent time with X since November 2019. The father has however, been able to FaceTime X on a regular basis.
On 20 February 2020, the father commenced proceedings in this Court, seeking time with X. Pursuant to orders of this Court, an Independent Children’s Lawyer (“ICL”) has been appointed.
Proposals
Each party agrees that X should reside with the mother. The dispute centres on what time and under what conditions, the father should spend time with X.
In the father’s case outline, filed 15 April 2020, he proposes that he should spend time with X each Friday from 6.00 pm until Saturday 6.00 pm.
In the mother’s case outline, filed 24 April 2020, she seeks orders that the father undergo random alcohol tests (CDT) not more than once per month within 48 hours of being notified by mother’s lawyers and, subject to the father returning CDT tests less than 1.4%, he spend the following time with X:
a. For the period of 6 weeks from the date of any Orders, each Saturday between 9:00am – 11:00am, within the walking distance of the mother’s home.
b. Thereafter each Saturday from 9:00am to 5:00pm, with that time to occur within one hour’s drive from the mother’s residence. The mother to deliver X to that location and the father to return
herX to the mother’s residence.c. The mother also seeks an injunction restraining the father from consuming alcohol during the period of 24 hours prior to and during any time spent with X.
Each party seeks various ancillary Orders.
In the ICL’s case outline filed 24 April 2020, the ICL proposes the following Orders :
a. Initially, an increase of 4 hours per Saturday, increasing to 9:00am – 5:00pm Saturday, progressing into overnight and weekend time.
b. Upon overnight time commencing, the parties meet half way between Suburb A and Suburb B, to provide a break for X during travel.
c. The father not to consume alcohol 24 hours prior to and during any time spent with X.
d. The father undertake random CDT testing at the request of the ICL, no more than once per two calendar months.
Materials
The mother relied upon the documents referred to on page two of her case outline.
The father relied upon the documents referred to on page four of his case outline.
In addition to the case outlines from the father, mother and ICL, the following material was before the Court:
a. Affidavit of the father dated 20 February 2020.
b. Affidavit of the mother dated 18 March 2020 and a brief updated affidavit dated 20 April 2020.
c. Tender bundle from the father filed 21 April 2020.
d. Notices of Risk filed by each of the parties.
Submissions
The solicitor for the father confirmed that the father was still seeking overnight time on a Friday and Saturday. The solicitor for the father submitted that the mother has made allegations regarding the father’s alcohol abuse in order to prevent the father from having a meaningful relationship with X. Solicitor for the father submitted that the mother is also imposing unnecessary travel restrictions. The solicitor for the father submitted that there was no capacity issues with either parent and that the father had previously been compliant with requirements when he spent time with X.
The solicitor for the father submitted that there should be a longer period of time than the four hours initially proposed by the ICL. The father has siblings who lived within a reasonable distance of Suburb A, the closest being his sister at Suburb C, which is about a one hour drive from Suburb A. The solicitor for the father submitted that any initial period of time could be spent at the sister’s premises, following which overnight time should be allowed, within a reasonably short period of time.
The solicitor for the father submitted that there was a significant cost in relation to CDT testing and that any initial day time only access, should not be for an extended period, prior to overnight access being granted.
Counsel for the mother indicated that the mother does not object to the father spending time with X, subject to conditions relating to the amount of time spent initially and in particular, that an alcohol testing regime be put in place. This is to ensure that the father is not under the influence of alcohol while spending time with X or while driving a vehicle where X was a passenger.
Counsel for the mother submitted that the mother’s case is that on an interim basis, the father should not have overnight time. The mother was unable to say when overnight time should be granted. Counsel for the mother submitted that subject to any orders made by the Court, the matter could be relisted for a further interim hearing, once the results of further CDT testing are known. The mother wants to be able to trigger testing, based on her interactions with the father. The Court was advised that the mother was prepared to deliver X to the nominated place where time should be spent with the father.
The ICL submitted it was appropriate that they trigger any CDT testing rather than the mother. The ICL indicated that they check their emails daily, including on weekends.
Legal Principles
The law in relation to parenting matters is relatively well settled (see Goode and Goode [2006] FamCA 1346). Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders. Pursuant to s.60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
Pursuant to s.60CC(2) of the Act, the primary considerations are the benefit of the child having a meaningful relationship with both of the child’s parents and the need to protect the child from harm by being subjected to or exposed to abuse, neglect or family violence. The Court is also required to take into account the considerations under s.60CC(3) of the Act, although it is not necessary to discuss each and every matter set out in s.60CC(3) of the Act, where the factor is not determinative (see Banks and Banks [2015] FamCAFC 36 at [46] – [52] per Thackray, Murphy and Kent JJ).
Significant care needs to be taken in interim hearings as the evidence cannot be tested, evaluated and weighed. It is often necessary to adopt a conservative approach or one which is likely to avoid harm to the child (see Marvel and Marvel [2010] FamCA 240 at [120]). It may not be possible to ignore an assertion by one of the parties, notwithstanding its accuracy, may be in issue (see SS and AH [2010] FamCAFC 13 at [88] per Thackray and Boland JJ).
Consideration
It is common ground between the parties that time between the father and X should recommence. The disagreement relates to the amount of time and the circumstances under which that time should occur.
The mother proposes that initially, for a period of six weeks, time occur between 9:00am – 11:00am, within walking distance of the mother’s residence in Suburb A and changeover to occur at the mother’s residence. Given the current COVID19 restrictions on movement, together with the closure of playgrounds, parks, cafes and other public places, the Court is not satisfied that this is either practicable or achievable.
Following the initial six week period, it was then proposed that the father spend time with X from Saturday from 9:00am to 5:00pm, with that time to occur within one hour’s drive of the mother’s residence. The mother to deliver X to that location at the commencement of the father’s time and the father to return X to the mother’s residence, at the conclusion of his time with X. The father has indicated that this could occur at his sister’s residence located in Suburb C. This would require the father to travel to Suburb C in order for the time to commence and at the conclusion of that time to deliver X back to the mother at Suburb A. This would impose a considerable travel burden upon the father, given he resides at Suburb B. Whilst this might be feasible for a limited period of time, the Court is not satisfied that it would be appropriate for this to continue on a medium to long-term basis.
Given the fears of the mother regarding the abuse of alcohol by the father, it was also put to the Court that CDT testing should take place during that period, at times nominated by the mother. That test identifies the abuse of alcohol. The cost of that testing, to date, has been borne by the father. The father is employed full-time as a Professional with Employer D at Suburb E in outer Sydney. The father’s employer requires him to undergo random drug and alcohol testing. The Court has been provided with the results of that testing from 20 June 2018 and 26 June 2019, each of which were negative, in that he had a zero blood alcohol reading and negative reading for illicit drugs. The Court has also been provided with a CDT test dated 26 March 2020, which again, did not show alcohol abuse.
Given this material, the Court is not satisfied it is either reasonable or warranted that the father undergo CDT testing more than once every two months. This accords with the recommendation of the ICL. The Court is also of the view that any risk of the father abusing alcohol prior to time with X, can be appropriately mitigated by an injunction that the father not consume alcohol within 24 hours prior to and during any time spent with X.
In terms of the various considerations, the Court is satisfied, pursuant to s.60CC(2)(a) of the Act, that it is in X’s best interests that she have a meaningful relationship with her father and that the relationship should include time spent with her father, including overnight time.
The Court is satisfied, pursuant to s.60CC(2)(b) of the Act, that given the history and concerns of the mother, that it is reasonable to put in place a risk mitigation, on an interim basis, to protect X from any alleged abuse of alcohol by her father, pending final orders by the Court. That risk mitigation should be in the form of an injunction, as set out above and the requirement that the father undertake random CDT testing at the request of the ICL, no more than once per two calendar months.
In terms of the matters in s.60CC(3) of the Act, that are relevant to this matter, X is too young to express any views pursuant to
s 60CC(3)(a) of the Act. Pursuant to s.60CC(3)(b) of the Act, the Court notes that the mother has been and remains the child’s primary carer. There is no suggestion that X does not have a good relationship with either her mother and/or her father. The father has spent limited time with her, due to concerns by the mother as to the father’s alcohol usage. As a result, the mother sought to limit physical contact with the father.
In terms of s.60CC(3)(c) of the Act, the Court notes the mother’s assertion that the father has not taken every opportunity to spend time with X since separation and that he has failed to address the reasonable concerns of the mother about alcohol abuse. The Court notes the father’s admission that he uses but does not abuse alcohol and that it has been necessary for him to commence proceedings in this Court, in order for physical time spent with X to recommence.
In terms of s.60CC(3)(d) of the Act, the Court is satisfied that the Orders proposed will ensure that X’s circumstances are not unduly impacted and that they will be enhanced by spending time with her father.
In terms of s.60CC(3)(e) of the Act, the Court is mindful of the practical difficulties imposed on the father by the need to travel from Suburb B to Suburb C, in an initial period as proposed by these Orders. Because of this, the initial period of time has been limited, with the matter to be bought back to Court at the expiration of that period, in order for overnight time to be considered.
In terms of s.60CC(3)(j) of the Act, there is no material before the Court alleging any family violence involving X or a member of X’s family.
In terms of s.60CC(3)(l) of the Act, the Court is satisfied that the proposed course provides a clear pathway for both parties and should limit the potential for the institution of further proceedings in relation to X.
Bearing in mind all of the relevant considerations and in particular the need for X to have a meaningful relationship with her father, the following course of action is proposed:
1. That X (“X”), born in 2017, live with Ms Hamlin (“the mother”).
2. That X spend time with Mr McGivern (“the father”) from 10:00am till 2:00pm for a period of eight weeks each Saturday from the date of these Orders. The location of that time is to be within a one hour’s drive of the mother’s home, with the father to advise the mother of the location. The mother to deliver X to that location by 10:00am. During the period of time spent with the father, X is to have a midday nap. The father is to return X to the mother’s home at the conclusion of this time and in any event by 3:00pm.
3. During the initial eight week period, the father is restrained by injunction from consuming alcohol for a period of 24 hours prior to and during any time that X spends with him, pursuant to these Orders.
4. During the initial eight week period, the father is to undertake one random CDT test, at his expense, within 48 hours of being advised by the Independent Children’s Lawyer (“ICL”) of the requirement to undertake that test. The father is to provide the results of that test to the ICL and the mother’s legal representatives within 48 hours of receipt. For the purposes of this order, the father is to provide to the ICL his current email address to enable the request to be made. The results of any CDT test is to be provided to the Court by the father’s legal representatives.
5. That the mother keep the father informed of X’s health issues, as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken, except in the case of an emergency (with the mother to inform the father as soon as reasonably practicable).
6. That the mother and father be restrained from making any derogatory comments about the other parent or any member of their family in the presence of and/or the hearing of X.
7. The matter is relisted to appear before Judge Humphreys at 2:00pm on Friday 26 June 2020 for further hearing.
8. Grant liberty to restore on 2 days’ notice.
The Court notes that in the absence of there being any significant issue relating to time spent with X by her father, the Court would require some persuasion before it would not order overnight time to occur, after the expiration of the eight week period. This preliminary indication is made on the basis that it may assist the parties in coming to an agreed position prior to the matter being brought back to Court.
If such an agreed position can be arrived at, the hearing date of 26 June 2020, may be vacated by the filing of consent orders with the Court.
The Court makes no order as to parental responsibility or as to costs.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Date: 1 May 2020
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