FEDERAL CIRCUIT COURT OF AUSTRALIA
| RAEBURN & RAEBURN | [2020]FCCA 1112 |
| Catchwords: FAMILY LAW – Interim parenting – best interests of children – orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 121, 60B, 60CA |
| Banks & Banks [2015] FamCAFC 36 Goode & Goode (2006) FLC 93-286 Marvel & Marvel [2010] FamCA 240 Eaby & Speelman [2015] FamCAFC 104; (2015) FLC ¶93-654 |
| Applicant: | MS RAEBURN |
| Respondent: | MR RAEBURN |
| File Number: | SYC 3560 of 2019 |
| Judgment of: | Judge Newbrun |
| Hearing dates: | 26 March 2020 |
| Date of Last Submission: | 26 March 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 8 April 2020 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Frakes of Watts Mccray (NSW) Pty Ltd |
| Solicitors for the Respondent: | Ms Blake of Blumberg Family Lawyers |
| Counsel for the Respondent | Ms C Petrie |
| Solicitors for the Independent Children’s Lawyer | John Spence & Associates |
| Counsel for the Independent Children’s Lawyer | Mr Maddox of Counsel |
PENDING FURTHER ORDER THE COURT ORDERS:
That all previous parenting orders regarding the children X born in 2007 and Y born in 2011 (“the Children”), be discharged.
That the children X (born in 2007) age 12 and Y (born in 2011) age 8 ("the children") live with the mother.
That the children spend time with the father as agreed between the parties or as follows:
(a)Each Saturday from 9am to 8pm.
(b)Upon completion by the father of three consecutive clean chain of custody drug screens, from 27 June 2020 each Friday from afterschool, or 3pm in the event that the children are not at school, until 8pm Saturday.
That the time that the father spends with the children in accordance with Order 3 shall be supervised at all times by either the paternal grandmother Ms A and/or the paternal grandfather Mr B or such other person as agreed between the parties in writing.*
For the purpose of Order 3, changeover shall be affected as agreed or by the person/s providing the supervision collecting the children from, and returning the children to the mother's residence.
That upon completion of further three consecutive clean chain of custody drug screens, from 27 September 2020 the children spend time with the father as agreed between the parties or as follows:
(a)Week 1: from afterschool Friday to before school Monday, or 3pm Friday to 9am Monday in the event that the children are not at school; and
(b)Week 2: from after school Wednesday to before school Thursday, or 3pm Wednesday to 9am Thursday in the event that the children are not at school.
That upon completion of a further three consecutive clean chain of custody drug screens from 18 December 2020 the children live with each of the parties in a week about with the changeover time to be Sundays at 6pm.
That the father shall be at liberty to communicate with the children, when they are not in his care, by telephone including Facetime each Sunday and Tuesday nights between 6.30pm and 7.30pm.
That the father shall do all things necessary…
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- AGLC
- Raeburn and Raeburn [2020] FCCA 1112
- Case
- [2020] FCCA 1112
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were how to best ensure the children's welfare and safety pending final determination of parenting arrangements. This included addressing concerns raised about the father's drug use and its potential impact on his parenting capacity and the children's exposure to harm. The court was required to balance the children's need for stability and safety with the father's right to spend time with them, considering the evidence presented regarding drug testing and the father's living arrangements.
The court's reasoning focused on the paramountcy of the children's best interests, as mandated by the *Family Law Act 1975* (Cth). To mitigate risks associated with the father's drug use, the court made detailed interim orders. These orders included the children living with the mother, with supervised time for the father that progressively increased in duration and independence contingent upon the father providing a series of clean drug screens. The father was also restrained from consuming illicit or non-prescription drugs, and required to live with his parents when the children were in his care. Furthermore, an independent expert, Dr C, was appointed to report on the father's drug use, potential addiction, mental health, and overall parenting capacity, with specific matters for consideration outlined in the orders.
The court ordered the discharge of all previous parenting orders and established a phased approach to the father's time with the children, conditional on his compliance with drug testing and other requirements. The father was also restrained from denigrating the mother and discussing proceedings in the children's presence. The court also made orders regarding communication, school liaison, and the appointment of an expert to assess the father's drug use and its implications for his parenting. The matter was adjourned for mention, with liberty to relist.
Orders
Orders of the court
PENDING FURTHER ORDER THE COURT ORDERS:
1. That all previous parenting orders regarding the children X born in 2007 and Y born in 2011 (“the Children”), be discharged.
2. That the children X (born in 2007) age 12 and Y (born in 2011) age 8 ("the children") live with the mother.
3. That the children spend time with the father as agreed between the parties or as follows:
3. (a) Each Saturday from 9am to 8pm.
3. (b) Upon completion by the father of three consecutive clean chain of custody drug screens, from 27 June 2020 each Friday from afterschool, or 3pm in the event that the children are not at school, until 8pm Saturday.
4. That the time that the father spends with the children in accordance with Order 3 shall be supervised at all times by either the paternal grandmother Ms A and/or the paternal grandfather Mr B or such other person as agreed between the parties in writing.*
5. For the purpose of Order 3, changeover shall be affected as agreed or by the person/s providing the supervision collecting the children from, and returning the children to the mother's residence.
6. That upon completion of further three consecutive clean chain of custody drug screens, from 27 September 2020 the children spend time with the father as agreed between the parties or as follows:
6. (a) Week 1: from afterschool Friday to before school Monday, or 3pm Friday to 9am Monday in the event that the children are not at school; and
6. (b) Week 2: from after school Wednesday to before school Thursday, or 3pm Wednesday to 9am Thursday in the event that the children are not at school.
7. That upon completion of a further three consecutive clean chain of custody drug screens from 18 December 2020 the children live with each of the parties in a week about with the changeover time to be Sundays at 6pm.
8. That the father shall be at liberty to communicate with the children, when they are not in his care, by telephone including Facetime each Sunday and Tuesday nights between 6.30pm and 7.30pm.
9. That the father shall do all things necessary to ensure the return of the children to the mother's home at the conclusion of the father's time.
10. That in the event of childhood illness or emergency the parent with whom the child or children are with, contact the other parent forthwith to inform them.
11. That each of the parties, their servants and agents be hereby restrained by injunction from:
11. (a) Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and
11. (b) Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, or any of them, and from permitting any other person to do so.
12. That both parents be permitted to liaise directly with the children's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children's progress.
13. That each party is at liberty to attend at the said children's school for the purposes of any function or activity normally attended by parents.
14. That in the event that the results of the tests set out in orders for hair testing or urinalysis set out below test positive for any illicit substance, the father’s time with the children is suspended.
15. That the ICL have liberty to relist the matter on 7 days notice to the parties.
16. The Father is restrained by injunction from consuming any illegal drugs, or non-prescription drugs including but not limited to amphetamines, methamphetamines or cannabis.
17. That within 7 days of a request to the father or his solicitor by the ICL, the Father make an appointment any attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug testing purposes. Collection is to be conducted by a qualified and certified collector. Chain of custody procedure is to be applied to the sample. Testing is to be conducted an approved laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this Order:
17. 17.1 The Father is required to maintain his head hair at a length not less than 4 centimetres. Neither head hair or body hair is to be cut, bleached or dyed between the date of this Order and the time of collection of the hair;
17. 17.2 Within 7 days of the request by the ICL, the Father is required to make an appointment with AWDTS by telephoning 1300 378 483 for the purpose of providing a hair sample for hair drug testing purposes;
17. 17.3 Each party or their legal representative is at liberty to provide AWDTS with a copy of these orders;
17. 17.4 The Father is to attend at an AWDTS clinic or nominee and submit to the supervisor a collection of a hair sample at the earliest available appointment within 7 days of the date of these orders;
17. 17.5 The Father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order hereby authorising AWDTS or nominee to provide the results of each tests to the Father and Mother’s legal representative and the Independent Children’s Lawyer upon receipt of such test results;
17. 17.6 The hair drug test may screen for drugs of abuse including amphetamine type substances, and metabolites, cannabis and metabolites and any other drug specified in this Order as required;
17. 17.7 AWDTS is required to utilise the testing services of an appropriate laboratory to conduct hair testing to the recognized international standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available;
17. 17.8 The costs of the hair testing is to be met by the Father
17. 17.9 The Father is only required to submit to hair drug testing not more frequently than once every three calendar months.
18. The Father shall submit to urinalysis (under supervision and chain of custody) upon request by the Independent Children’s Lawyer, such urinalysis to be conducted in accordance with the Australia/New Zealand Standard 4308:2008 – Procedure for collection, detection and quantification of drugs and abuse in urine.
19. The Independent Children’s Lawyer communicate such requests for urinalysis to the Father or his legal representative in writing with any test to be completed within 48 hours of receipt of such request and be verified by certificate which includes a temperature endorsement.
20. The Father forward the drug test results to the Independent Children’s Lawyer and other party’s solicitor immediately upon receipt.
21. The Father shall live with the paternal grandparents at all times whilst the Children are in his care.
22. Leave to the Mother to seek costs of this Interim Hearing following judgment in the Final Hearing of these parenting proceedings.
23. Dr C be appointed as Expert to enquire into and report upon matters relating to the use of illicit and/or non-prescription drugs by the father and made recommendations for future treatment to address this issue.
24. For the purpose of preparation of her report, the father:
24. 24.1 Attend all appointments made Dr C;
24. 24.2 Provide copies of all reports from testing carried out pursuant to these interim orders and as otherwise required by Dr C for the report.
24. 24.3 Comply with all reasonable directions and requests made by Dr C.
25. In preparing her report, Dr C be requested to consider the following matters;
25. 25.1 Whether the father’s use of illicit and/or non-prescription drugs indicates an addiction to any such drug;
25. 25.2 Whether the father may have an underlying mental health condition which may have contributed to his use of illicit and/or non-prescription drugs;
25. 25.3 Whether the father’s use of illicit and/or non-prescription drugs can be managed through therapeutic means;
25. 25.4 If therapy is considered appropriate, recommend a psychologist with the required expertise;
25. 25.5 Whether it is considered appropriate for the father to enter a rehabilitation facility to address his drug use;
25. 25.6 If a rehabilitation facility is considered appropriate, any timeframe or other recommendations in relation to rehabilitation;
25. 25.7 Whether the father is at risk of relapse and/or future problematic drug use;
25. 25.8 Any recommendations for future engagement with therapeutic or other health care practitioners and services, in relation to relapse prevention and maintenance of abstinence from problematic drug use;
25. 25.9 Any other recommendations in relation to the father’s future engagement with therapeutic or other health care practitioners and services to address drug use, mental health or anything else;
25. 25.10 Whether the father’s use of illicit and/or non-prescription drugs, and/or any mental health condition, may impact the father’s parenting capacity and if so, how the father’s parenting capacity may be affected;
25. 25.11 Whether the father’s use of illicit and/or non-prescription drugs, and/or any mental health condition, may put the children at risk of being exposed to any physical or psychological harm if he were to spend with the father;
25. 25.12 If it is considered that the children may be at risk of being exposed to any physical or psychological harm while spending time with the father, any conditions on the time which may ameliorate that risk;
25. 25.13 Any other matter considered relevant together with a consideration of relevant s. 60CC Family Law Act 1975 factors.
26. The parties to bear equally the cost of the report by Dr C but subject to the Mother’s entitlement to make an application for refund of her half share of such report following judgment after the Final Hearing of these parenting proceedings.
27. Direct the Independent Children’s Lawyer’s to cause to be provided to Dr C a copy of Dr E’s evidence.
28. These proceedings are adjourned for mention to 23 October 2020 at 9:30am. It is anticipated that the Expert Report of Dr C will have been released prior to this date.
29. Grant leave to parties and Independent Children’s Lawyer to apply to the Court in chambers for vacation of the above mention date in the event the Expert Report of Dr C has not yet been prepared.
30. Direct that the Father’s solicitors provide to the Court’s Associate in word format the Father’s proposed Interim Parenting Orders set out at pages 1 – 5 inclusive of the Father’s Tender Bundle.
31. Direct the Independent Children’s Lawyer to provide to the Court’s Associate within 14 days in word format a copy of the Independent Children’s Lawyer’s Short Minute of Orders.
31. * This order, by not referring to the Father’s new partner, reflects the intention of the Court, as explained in paragraph 72 of the Reasons for Judgment; in this context the Court varies its making of the Father’s proposed Order 3 in his Tender Bundle, pursuant to Rule 16.05(2)(e) of this Court’s Rules.
IT IS NOTED that publication of this judgment under the pseudonym Raeburn & Raeburn 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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