Patrick and Riley - [2017] FamCA 849

FAMILY COURT OF AUSTRALIA

PATRICK & RILEY

[2017] FamCA 849

FAMILY LAW – CHILDREN – With whom the child lives – Where the child has a more meaningful relationship with the father than with the mother – Where the child presently lives with the father and spends time with the mother, though not substantial amounts of time – Where the father’s concern is the child’s safety in the mother’s care should she relapse into drug and alcohol abuse – Where the mother genuinely wishes to remain abstinent from drug and alcohol abuse – Where the mother shall undertake drug and alcohol testing as a condition of the child spending time with her – Where the mother’s partner agrees to undertake drug and alcohol testing, even though not a party to the proceedings – Where the father understands the importance of the child’s relationships with the maternal family – Concluded the child live with the father and the parties have equal shared parental responsibility for her

Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65D, 65DA, 65DAA, 65DAC

Family Law Rules 2004 (Cth) rr 15.14, 15.41, 15.51, 15.52

Jacks & Samson (2008) FLC 93-387

Marriage of L & T (1999) 25 Fam LR 590

APPLICANT:

Mr Patrick

RESPONDENT:

Ms Riley

INDEPENDENT CHILDREN’S LAWYER:

Rowley & Associates

FILE NUMBER:

SYC

1106

2015

DATE DELIVERED:

26 October 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

10, 11 & 12 October 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr S. O'Ryan QC

SOLICITOR FOR THE APPLICANT:

Karras Partners Lawyers

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr N Jackson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Rowley & Associates

Orders

All former orders relating to the child B, born .. 2011 (“the child”) are discharged.
The parties shall have equal shared parental responsibility for the child.
The child shall live with the father.
Subject to the mother’s compliance with Orders 7 and 8 hereof, the parties shall take all reasonable steps to ensure the child spends time with the mother as follows:
(a)Until the commencement of the first school term in 2018:
(i)During the current school term:
(A)Each Tuesday and Thursday from the conclusion of school until 7.30 pm; and
(B)Each alternate weekend, from 9.00 am Saturday until 6.00 pm Sunday, commencing on the second Saturday after the child last spent time with the mother on Saturday under pre-existing interim orders.
(ii)During the Summer school holidays:
(A)On Tuesday 19 December 2017, from 4.00 pm until 7.30 pm;
(B)On Thursday 21 December 2017, from 4.00 pm until 7.30 pm;
(C)From 3.00 pm Christmas Eve until 3.00 pm Christmas Day;
(D)From 9.00 am on 29 December 2017 until 9.00 am on 2 January 2018;
(E)From 9.00 am on 12 January 2018 until 9.00 am on 16 January 2018; and
(F)From 9.00 am on 25 January 2018 until 9.00 am on 28 January 2018.
(b)…

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 Patrick and Riley

Details

AGLC: Patrick and Riley [2017] FamCA 849
Case: [2017] FamCA 849
Decision Date: 26 October 2017

CaseChat Overview and Summary

This matter concerned orders relating to the child B, born in 2011, between the parents, Patrick and Riley. The court was required to determine the parenting arrangements for the child, including the allocation of parental responsibility, the child's living arrangements, and the time the child would spend with each parent.

The court was asked to determine the specific terms of shared parental responsibility, the primary residence of the child, and a detailed schedule for the child's time with each parent, encompassing school terms, holidays, and specific dates. Further issues included the conditions under which the mother could spend time with the child, including mandatory drug and alcohol testing, and the consequences of non-compliance with these conditions. The court also had to consider provisions for communication between the child and each parent, and orders restraining denigration and ensuring information sharing regarding the child's activities.

Austin J ordered the discharge of all former orders relating to the child. The parties were granted equal shared parental responsibility, with the child to live with the father. A comprehensive schedule was established for the child's time with the mother, which was to commence immediately and evolve over several stages, with specific provisions for school terms, holidays, and significant dates like Christmas and Mother's/Father's Day. Crucially, the mother's compliance with specific drug testing (urinalysis and CDT) and alcohol abstinence conditions was made a prerequisite for the full operation of these time orders. Non-compliance or positive drug tests would result in a suspension of the primary time orders, with a reduced schedule for the mother until pre-conditions were met for three consecutive months. The court also made orders regarding communication, the exchange of information, and the participation of both parties in a post-separation parenting program.

Orders

Orders of the court

All former orders relating to the child B, born .. 2011 (“the child”) are discharged.

The parties shall have equal shared parental responsibility for the child.

The child shall live with the father.

Subject to the mother’s compliance with Orders 7 and 8 hereof, the parties shall take all reasonable steps to ensure the child spends time with the mother as follows:

(a) Until the commencement of the first school term in 2018:

(i) During the current school term:

(A) Each Tuesday and Thursday from the conclusion of school until 7.30 pm; and

(B) Each alternate weekend, from 9.00 am Saturday until 6.00 pm Sunday, commencing on the second Saturday after the child last spent time with the mother on Saturday under pre-existing interim orders.

(ii) During the Summer school holidays:

(A) On Tuesday 19 December 2017, from 4.00 pm until 7.30 pm;

(B) On Thursday 21 December 2017, from 4.00 pm until 7.30 pm;

(D) From 9.00 am on 29 December 2017 until 9.00 am on 2 January 2018;

(E) From 9.00 am on 12 January 2018 until 9.00 am on 16 January 2018; and

(F) From 9.00 am on 25 January 2018 until 9.00 am on 28 January 2018.

(b) From the commencement of the first school term in 2018:

(i) During school terms:

(A) Each Thursday from the conclusion of school until 7.30 pm; and

(B) Each alternate weekend from the conclusion of school on Friday until 6.00 pm Sunday, commencing on the first Friday of each term.

(ii) For the first five consecutive days of the Autumn school holidays, commencing at the conclusion of school on the last day of term.

(iii) For the first five consecutive days of the Winter school holidays, commencing at the conclusion of school on the last day of term.

(i) During school terms:

(A) Each Thursday from the conclusion of school until 7.30 pm; and

(B) Each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday (or Tuesday if Monday is a public holiday), commencing on the first Friday of each term.

(ii) For the first half of the Spring school holidays.

(iii) During the Summer school holidays, on an alternating week-about basis commencing in the first week of the holidays.

(d) From the commencement of the first school term in 2019 and thereafter:

(i) During school terms, each alternate weekend from the conclusion of school on Thursday until the commencement of school on Monday (or Tuesday if Monday is a public holiday), commencing on the first Thursday of each term.

(ii) For the first half of the Autumn, Winter, and Spring school holidays.

(iii) During the Summer school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an odd numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an even numbered year.

For the purposes of implementation of Orders 4(b), 4(c), and 4(d) hereof, the school holidays are deemed to commence at the conclusion of school on the last day of school term, the holidays are deemed to end at the commencement of school on the first day of the new term, and the mid-point is noon on the day halfway between those first and last days.

Orders 3, 4(c), and 4(d) hereof are suspended during the following periods:

(a) From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the child will spend time with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day and with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years.

(b) Between 10.00 am and 6.00 pm on each Mother’s Day and Father’s Day, during which periods the child shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

Subject to the conditions set out in Order 8 hereof, the mother shall provide to the father the following test results for both herself and Mr C:

(a) Urinalysis tests for opiates, benzodiazepines, cannabis, cocaine, amphetamines, methamphetamines, and Ritalin; and

(b) Carbohydrate Deficient Transferrin (CDT) tests.

For the purpose of implementing Order 7 hereof:

(a) The father’s requests for the testing of the mother and Mr C may be made randomly, for two years from the date of these orders, but not more frequently than intervals of four weeks;

(b) The urinalysis test procedure must be undertaken within 48 hours of the father’s written requests;

(c) The urinalysis testing shall be conducted by way of chain-of-custody urine drug screens meeting Australian/New Zealand Standard 4308/2008;

(d) The CDT test procedure must be undertaken within 24 hours of the father’s written requests;

(e) The mother shall notify the father of the pathology service where the tests are conducted;

(f) The costs of the tests shall be borne by the mother and father equally for 12 months from the date of these orders and solely by the father thereafter; and

(g) The mother shall provide to the father copies of the test results forthwith upon provision of those results to her.

In the event of either:

(a) The mother’s default in compliance with Orders 7 and 8;

(b) The urinalysis tests of either the mother or Mr C revealing a positive result for any of the nominated drugs in the Mass Spectrometry Test; or

Orders 4 and 6 hereof are suspended and the child shall instead spend time with the mother pursuant to Order 10 hereof until she has thereafter fulfilled the pre-conditions to the operation of Orders 4 and 6 for three consecutive months.

10.

In the event Order 9 hereof applies, the parties shall take all reasonable steps to ensure the child spends time with the mother:

(a) Each Tuesday and Thursday during school terms, from the conclusion of school until 7.30 pm; and

(b) Each alternate weekend (during both school terms and school holidays) on both Saturday and Sunday, from 10.00 am until 4.00 pm, commencing on the second Saturday after the event that invokes operation of Order 9.

11.

For the purposes of implementing Orders 3, 4, 6, and 10 hereof, the parties shall respectively ensure the child’s:

(a) Collection from school, whenever the child’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

(b) Return to school, whenever the child’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

12.

The parties shall take all reasonable steps to ensure the child communicates privately by telephone with:

(a) The mother each Sunday at 6.00 pm when the child is living with the father and for that purpose the mother shall telephone the child on the telephone number provided to her by the father and the father shall ensure the child is able to receive the mother’s calls on that number at that time.

(b) The father each Wednesday at 6.00 pm when the child is spending time with the mother and for that purpose the father shall telephone the child on the telephone number provided to him by the mother and the mother shall ensure the child is able to receive the father’s calls on that number at that time.

(c) The parent with whom the child is not then staying, on the child’s birthdays at 6.00 pm, and for that purpose the parent with whom the child is not staying shall telephone the child on the telephone number provided by the other parent for that purpose and the parent with whom the child is staying shall ensure the child is able to receive the other parent’s calls on that number at that time.

13.

The mother is restrained from consuming alcohol whilst ever the child is spending time with her and for the immediately preceding period of 12 hours.

14.

The parties are restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

15.

The parties, in so far as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the child is to participate.

16.

The parties shall ensure the child’s attendance at all educational, sporting, cultural, and extra-curricular events in which the child is enrolled or in which the child is due to participate.

17.

The parties shall forthwith inform the other, and keep the other informed, in writing of their respective current residential address, mobile telephone number, and email address.

18.

The parties shall forthwith enrol themselves to commence and thereafter participate in and complete a post-separation parenting program, subject to the approval of that program by the Independent Children’s Lawyer.

19.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

20.

Subject to granting approval pursuant to Order 18 hereof, the Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

21.

Costs are reserved for 28 days.

22.

Any and all outstanding applications are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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