Paget and Crewell - [2015] FCCA 2564

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAGET & CREWELL

[2015] FCCA 2564

Catchwords:
FAMILY LAW – Interim parenting dispute involving young children – significant issues regarding alcohol abuse by the Father – a number of issues regarding the inadequate and or inappropriate conduct of lawyers in relation to the adequacy of submissions as well as contact with Chambers (failure to adhere to the Poirot instruction of “order and method”) – role and use of alcohol testing – Father ordered in other court proceeding to undertake the Interlock program to prevent him using a car while intoxicated (interlock device to disable the car until the Father satisfactorily passes a breathalyser test) – protective responsibilities of the Court to the children.

Legislation:

Family Law Act 1975, ss.60B(1)(b), 60CC(2)(b) & 60CC(3)(i)

Federal Circuit Court Rules 2001, r.15.09

Banks & Banks [2015] FamCAFC 36
Crouper & Mitchell [2014] FamCAFC 246
Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422; (2006) FLC ¶93-286
Jackson & Macek [2015] FamCAFC 114
Redmond & Redmond [2014] FamCAFC 155
Vanzin & Vanzin [2014] FamCAFC 245

Applicant:

MS PAGET

Respondent:

MR CREWELL

File Number:

CAC 762 of 2013

Judgment of:

Judge Neville

Hearing date:

30 July 2015

Date of Last Submission:

28 August 2015

Delivered at:

Canberra

Delivered on:

10 September 2015

REPRESENTATION

Solicitors for the Applicant:

Armstrong Legal

Solicitors for the Respondent:

Harris Wake Legal

Solicitors for the Independent Children's Lawyer:

Legal Aid ACT

ORDERS

The children X (born on (omitted) 2004) and Y (born (omitted) 2006) (“the children”) live with the Mother.
The children spend time with the Father as outlined in the following Orders, on the condition that the Father does not drink alcohol for a period of not less than 24 hours prior to spending time with the children and during the time the Father is spending time with the children:
Whilst the Father’s drivers licence is disqualified the Father will spend time with the Children as follows:
(a)Each Monday and Tuesday (excluding public holidays) from after school, 3:15pm to 6:15pm, with:
(i)the Father to pay for the children to attend after school care on such days and collect them from after school care between 3:15pm and 6pm; and
(ii)the Mother to collect the children from the Father’s residence at 6:15pm.
(b)Two Sundays out of every three, from 9am to 5pm each Sunday with the Mother to deliver and collect the children to/from the Father’s residence or as otherwise agreed in writing and, the Father shall ensure the children attend any pre-arranged sporting events.
(c)Each alternate Saturday the Father may attend at the children’s sporting events to watch the children.
If the Father’s licence is re-issued as part of the Interlock program and his car is fitted with a CADAS immobiliser:
(a)Each Monday and Tuesday (excluding public holidays) from after school, 3:15pm to 6:15pm, with:
(i)the Father to pay for the children to attend after school care on such days and collect them from after school care between 3:15pm and 6pm;…

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 Paget and Crewell

Details

AGLC: Paget and Crewell [2015] FCCA 2564
Case: [2015] FCCA 2564
Decision Date: 10 September 2015

CaseChat Overview and Summary

This matter concerned parenting orders for the children X and Y, with the primary dispute revolving around the father's time with the children. The court, presided over by Judge Neville, was tasked with determining the specific arrangements for the children's living situation and their time spent with each parent, particularly in light of the father's alcohol consumption and driving licence status.

The central legal issues before the court were the conditions under which the father could spend time with the children, specifically concerning his abstinence from alcohol and the implications of his disqualified driver's licence. The court also had to consider the appointment of a single expert and the terms of reference for a family report, as well as the practical arrangements for the children's care, including after-school care and attendance at sporting events. Furthermore, the court needed to address the father's obligation to undergo regular blood testing to monitor his alcohol consumption.

The court's reasoning and applied principles are reflected in the detailed orders made. The children were ordered to live with the Mother, and the Father's time with them was made conditional on him abstaining from alcohol for at least 24 hours prior to and during his time with the children. Specific arrangements were set out for the father's time with the children, varying depending on whether his driver's licence was disqualified or re-issued with an interlock device. These arrangements included weekday afternoon contact, weekend time, and attendance at sporting events. The court also made orders regarding special days, including Christmas, Father's Day, and the children's birthdays, and stipulated that the father would be suspended from spending time with the children for two two-week periods annually to allow the mother to holiday with them. Crucially, the father was ordered to undertake monthly CDT and GGT blood tests, with the costs borne by him, and to provide the results to the Independent Children's Lawyer and the Mother. A single expert was appointed by consent to prepare a full report, with the costs also to be paid by the father.

The court noted that the paternal grandparents, who had been supervising the father's time, would be unavailable from August to November 2015. The matter was adjourned pending the receipt and release of the Family Report.

Orders

Orders of the court

The children X (born on (omitted) 2004) and Y (born (omitted) 2006) (“the children”) live with the Mother.

The children spend time with the Father as outlined in the following Orders, on the condition that the Father does not drink alcohol for a period of not less than 24 hours prior to spending time with the children and during the time the Father is spending time with the children:

Whilst the Father’s drivers licence is disqualified the Father will spend time with the Children as follows:

(a) Each Monday and Tuesday (excluding public holidays) from after school, 3:15pm to 6:15pm, with:

(i) the Father to pay for the children to attend after school care on such days and collect them from after school care between 3:15pm and 6pm; and

(ii) the Mother to collect the children from the Father’s residence at 6:15pm.

(b) Two Sundays out of every three, from 9am to 5pm each Sunday with the Mother to deliver and collect the children to/from the Father’s residence or as otherwise agreed in writing and, the Father shall ensure the children attend any pre-arranged sporting events.

If the Father’s licence is re-issued as part of the Interlock program and his car is fitted with a CADAS immobiliser:

(a) Each Monday and Tuesday (excluding public holidays) from after school, 3:15pm to 6:15pm, with:

(i) the Father to pay for the children to attend after school care on such days and collect them from after school care between 3:15pm and 6pm; and

(ii) the Mother to collect the children from the Father’s residence at 6:15pm.

(b) Every second weekend from 9am to 5pm on Saturday and 9am to 5pm on Sunday, with the Father to transport the children to and from and facilitate their attendance at, all of the sporting activities they are registered to participate in on Saturdays.

Special Days

The Father shall spend time with the children on Christmas Day for a period of not less than 4 hours at such time as it is agreed between the parties in writing and failing agreement:

(a) from 2pm to 6pm on Christmas Day in 2015 and every odd numbered year thereafter; and

(b) from 10am to 2pm on Christmas Day in 2016 and every even numbered year thereafter

The Mother is to spend time with the children on Christmas Day from 10am to 2pm in 2015 and every odd numbered year thereafter;

The Father shall spend time with the children each Father’s Day from 9am to 6pm;

The Father shall spend time with each of the children on their respective birthdays for a period of not less than 3 hours as agreed between the parties in writing, and failing agreement:

(a) from 10am to 1pm if the child’s birthday falls on a weekend; and

(b) from 3:15pm to 6:15pm if the child’s birthday falls on a school day.

The Father’s time with the children shall be suspended for two separate two-week block periods each calendar year, during which the Mother may holiday with the children, on condition that the Mother provide at least 7 days’ notice to the Father of her intention to do so in writing or by email or text.

Testing of the Respondent

10.

The Father shall undertake Carbohydrate Deficient Transferrin (CDT) and Gamma Glutamyl Transferrasse (GGT) blood tests once each month, until further Order, and at least until the release of the Family Report with the first such test to occur within 14 days of the date of these Orders.

(a) the Father pay the costs associated with obtaining the blood tests and results; and

(b) the ICL shall randomly request the Father undergo the tests and the Father shall undertake the tests within 24 hours of being requested by the ICL that he do so.

11.

To facilitate the preceding Order the Father shall do the following:-

(a) Attend upon his General Medical Practitioner to obtain a referral as set out below;

(b) Provide his General Medical Practitioner with a copy of these Orders;

(d) Attend upon (omitted) Pathology, (omitted), (omitted), ACT for the purpose of chain of custody blood collection and analysis;

(e) Obtain a copy of the result of the CDT and GGT blood tests from his GP as soon as possible after the results have been provided; and

(f) Provide a copy of the results of the CDT and the GGT blood tests to the ICL and the Mother within 7 days of receipt by him.

12.

By consent, Ms S, or other expert as agreed in writing between the parties, be appointed as the single expert pursuant to Rule 15.09 of the Federal Circuit Court Rules 2001 (Cth) and a full Report be prepared by Ms S at the earliest possible time, with the cost of such a report being paid in full by the Father.

13.

Terms of Reference are to be prepared jointly between the parties and the Independent Children’s Lawyer, and such terms are to be provided for settlement by the Court at the earliest possible time.

THE COURT NOTES THAT:

A. The paternal grandparents were supervising the Father’s time with the children from January 2015 to July 2015. They are expected to be travelling for an extended period of time of no less than 3 months from August to November 2015 and as such, are unable to continue to supervise;

B. The matter be adjourned to a date and time to be confirmed, pending receipt and release of the Family Report.

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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