FEDERAL CIRCUIT COURT OF AUSTRALIA
| PENFOLD & MILTON & ANOR | [2016] FCCA 3349 |
| Catchwords: FAMILY LAW – Parenting – dispute between Father and maternal Grandmother – Father with significant history of drug use – Mother now brain injured (possibly drug related) – competing allegations of domestic violence – child subject of the proceedings cared for by maternal Grandmother who also cares for the Mother and the Mother’s children from previous relationships – Grandmother proposes that if anything happens to her then the child’s teenage half sibling will look after the child – Father has shown significant improvement in his life with multiple clear drug screens, proposed employment and is in stable relationship with a new child – Family Consultant recommends gradual transition of young child into the Father's care – Independent Children’s Lawyer supports this recommendation – Orders for ongoing drug tests for the Father and gradual transition over two years for young child to transition into his care from maternal Grandmother. |
| Legislation: Evidence Act 1995 (Cth), s.128 Family Law Act 1975 (Cth), ss.60CA, 60CC(3)(h), 61DA, 65DAA |
| Applicant: | MR PENFOLD |
| First Respondent: | MS MILTON |
| Second Respondent: | MS OWEN |
| File Number: | AYC 108 of 2015 |
| Judgment of: | Judge Neville |
| Hearing dates: | 30 and 31 May 2016 |
| Date of Last Submission: | 5 July 2016 (Updating material provided 14 December 2016) |
| Delivered at: | Canberra |
| Delivered on: | 21 December 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Self - represented |
| Counsel for the Second Respondent: | Mr Moffett of Counsel |
| Solicitors for the Second Respondent: | Tarella Law |
| Counsel for the Independent Children's Lawyer: | Mr Stagg of Counsel |
| Solicitors for the Independent Children's Lawyer: | Evans Family Lawyers |
ORDERS
Until such time as Order 2 takes effect the following will apply in respect to the child X born (omitted) 2013 (“the child” and “X”), and subject to any other agreement between the parties in writing:
(a)The Father and the Second Respondent, Ms Owen, have equal shared parental responsibility for the child:
(b)The child live with the Second Respondent;
(c)The Father spend time with the child each Sunday from 9:00am to 6:00pm for a period of one (1) month from the date of these Orders, commencing on 1 January 2017;
(d)Following time in Order 1(c), and for a period of three (3) months, the Father spend time with the child as follows:
(i) In Week One, each Thursday from 9:00am to 5:00pm; and
(ii)In Week Two, from Saturday from 9:00am until Sunday at 5:00pm.
(e)Following time in Order (d), and for a period of two (2) months, the Father spend time with the child as follows:
(i) In Week One, each Thursday from 9:00am to 5:00pm; and
(ii)In Week Two, from Friday from 9:00am until Sunday at 5:00pm.
(f)Following time in Order 1(e), and for a period of two (2) months, the Father spend time with the child as follows:
(i) In Week One, each Thursday from 9:00am to 5:00pm; and
(ii)In Week Two, from Thursday from 9:00am until Sunday at 5:00pm.
(g)Following time in Order 1(f), and for a…
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- Case
- [2016] FCCA 3349
- Decision Date
CaseChat Overview and Summary
The court was tasked with establishing a phased approach to parental responsibility and living arrangements for the child. This involved determining the initial period of equal shared parental responsibility with the child living with the Second Respondent, followed by a gradual increase in the Father's time with the child over several months. Ultimately, the court had to decide on a final arrangement where the child would live with the Father, who would have sole parental responsibility, with specific notification requirements to the Maternal Grandmother and Mother regarding major long-term decisions. Additionally, the court needed to address specific provisions for time spent with the Mother, holiday arrangements, changeover procedures, drug testing for the Father, and general conduct orders for all parties.
The court's reasoning involved a detailed, step-by-step progression of parenting arrangements designed to transition the child from living with the Second Respondent to living with the Father. This phased approach was implemented through a series of orders, each lasting for a specified period, to allow for gradual adjustment. The court applied principles of family law concerning the best interests of the child, including provisions for parental responsibility, living arrangements, and time spent with each parent. Specific orders were made regarding the Father's drug testing, supervised time with the Mother, and prohibitions on discussing proceedings or speaking negatively about parties in the child's presence. The court also made orders for the Father to complete a parenting course and for the release of the child's medical and educational information to the Father and Maternal Grandmother.
The final orders dismissed all extant applications, finalising the matter. The court also noted the need for the New South Wales Legal Aid Commission to extend the Independent Children's Lawyer's grant of aid to ensure compliance with specific orders related to drug testing and re-listing the matter if necessary.
Orders
Orders of the court
1.
Until such time as Order 2 takes effect the following will apply in respect to the child X born (omitted) 2013 (“the child” and “X”), and subject to any other agreement between the parties in writing:
(a) The Father and the Second Respondent, Ms Owen, have equal shared parental responsibility for the child:
(b) The child live with the Second Respondent;
(c) The Father spend time with the child each Sunday from 9:00am to 6:00pm for a period of one (1) month from the date of these Orders, commencing on 1 January 2017;
(d) Following time in Order 1(c), and for a period of three (3) months, the Father spend time with the child as follows:
(i) In Week One, each Thursday from 9:00am to 5:00pm; and
(ii) In Week Two, from Saturday from 9:00am until Sunday at 5:00pm.
(e) Following time in Order (d), and for a period of two (2) months, the Father spend time with the child as follows:
(i) In Week One, each Thursday from 9:00am to 5:00pm; and
(ii) In Week Two, from Friday from 9:00am until Sunday at 5:00pm.
(f) Following time in Order 1(e), and for a period of two (2) months, the Father spend time with the child as follows:
(i) In Week One, each Thursday from 9:00am to 5:00pm; and
(ii) In Week Two, from Thursday from 9:00am until Sunday at 5:00pm.
(g) Following time in Order 1(f), and for a period of two (2) months, the Father spend time with the child as follows:
(i) In Week One, each Thursday from 9:00am to 5:00pm; and
(ii) In Week Two, from Wednesday from 9:00am until Sunday at 5:00pm.
(h) Following time in Order 1(g), and for a period of two (2) months, the Father spend time with the child as follows:
(i) In Week One, each Thursday from 9:00am to 5:00pm; and
(ii) In Week Two, from Tuesday from 9:00am until Sunday at 5:00pm.
(i) Following time in Order 1(h), and for a period of two (2) months, the Father spend time with the child as follows:
(i) In Week One, each Thursday from 9:00am to 5:00pm; and
(ii) In Week Two, from Monday from 9:00am until Sunday at 5:00pm.
(j) Following time in Order 1(i), and for a period of two (2) months, the Father spend time with the child as follows:
(i) In Week One, each Thursday from 9:00am to 5:00pm; and
(ii) In Week Two, from Monday from 9:00am until the following Monday at 5:00pm.
(k) Following time in Order 1(j), and for a period of two (2) months, the Father spend time with the child as follows:
(i) In Week One, each Thursday from 9:00am to 5:00pm; and
(ii) In Week Two, for a period of 8 nights, from Monday from 9:00am until the following Tuesday at 5:00pm.
2.
From completion of time in Order 1(k) the following will apply:
(a) The said child will live with the Father;
(b) The Father will have sole parental responsibility for the child, with a requirement that he notify the Maternal Grandmother and via the Maternal Grandmother, the Mother, of any and all major long-term decisions regarding the child.
(c) From completion of time in Order 1(k) the following will apply:
(i) The Second Respondent will spend time with the child from 9:00am on Friday until 5:00pm on Sunday, each alternate week.
3.
In addition to Orders 1 and 2 inclusive, the parties will spend time with the child as follows:
(a) On Mother’s Day and Father’s Day respectively, if the child is not in the party’s care celebrating that day, as agreed, and failing agreement, from 9:00am until 5:00pm;
(b) On the parties’ birthdays, if the child is not otherwise in the party’s care celebrating this day, as agreed, and failing agreement, from 9:00am until 12:00pm;
(c) On the child’s birthday, if the child is not otherwise in the party’s care celebrating this day, as agreed, and failing agreement, from 9:00am until 12:00pm;
(d) Over the Christmas period, as agreed between the parties or, failing agreement:
(e) the child shall spend time with the Father from 9.00am on Christmas Eve to 3.00pm on Christmas Day commencing in 2016 and each alternate year thereafter; and 3.00pm on Christmas Day until 6.00pm on Boxing Day in 2017 and each alternate year thereafter;
(f) the child shall spend time with the Maternal Grandmother from 9.00am on Christmas Eve to 3.00pm on Christmas Day commencing in 2017 and each alternate year thereafter; and 3.00pm on Christmas Day until 6.00pm on Boxing Day in 2016 and each alternate year thereafter.
4.
For the purposes of changeover, changeover is to occur with the Father collecting from and delivering the child to the Maternal Grandmother’s home at the commencement and conclusion of time, unless otherwise agreed.
5.
The child spend time with the First Respondent Mother during such time that the child is in the care of the Second Respondent providing that the time with the Mother be supervised at all times by the Second Respondent, or other competent adult.
6.
The Father is to complete random urinalysis drug testing, no more than four times per year, for two years, at the request of the Independent Children’s Lawyer.
7.
Within 7 days of receipt of the test results, the Father is to make a copy of these results available to the Independent Children’s Lawyer’s Office.
8.
The Independent Children’s Lawyer is granted liberty to request that the matter be urgently re-listed in the event that any of the Father’s urinalysis test results are positive for illicit substances.
9.
All parties are restrained from saying unkind or unpleasant things about the other parties to the child, in her presence, or allowing any other person to do so.
10.
Both parties are restrained from discussing these Court proceedings with the child, or doing so in their presence, or allowing any other person to do so.
11.
This Order be authority for any treating medical practitioner or counsellor for the child to provide any requested information regarding the child to either the Father, Mr Penfold and the Maternal Grandmother, Ms Owen.
12.
This Order be authority for any education institution (inclusive of day care, pre-school, school) the child is enrolled at and attends to provide any requested information regarding the child to either the Father, Mr Penfold and the Maternal Grandmother, Ms Owen.
13.
Both parties are required to update the other of their current contact telephone number, email address and residential address. Both parties are required to notify the other of any change within 3 business days of any change of these details.
14.
Both parties are restrained from consuming illicit substances when the child is in their care.
15.
Both parties are restrained from consuming alcohol to excess when the child is in their care.
16.
The Father is to enrol in a Parenting Course within 3 months of the date of these Orders, and is required to complete the course as soon as practicable in accordance with the Course requirements.
17.
The Father is to provide the Independent Children’s Lawyer and the Maternal Grandmother with evidence of the completion of this parenting Course within 14 days of the completion of the program.
18.
Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
19.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
20.
All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.
THE COURT NOTES THAT:
A. Due to the nature of Orders 7 and 8, the New South Wales Legal Aid Commission is requested to extend the Independent Children’s Lawyer’s grant of aid to ensure she is able to comply with Orders 7, 8 and 9.
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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