FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHELDON & ABRAHAM & ORS (No.2) | [2013] FCCA 2167 |
| Catchwords: FAMILY LAW – Parenting – 3 year old child – child living with paternal grandparents – mother deceased and father incarcerated – discreet issues in dispute – time to spend by child with maternal grandmother – whether maternal grandmother’s partner may be present when child is spending time in maternal grandmother’s home – Rice & Asplund. |
| Legislation: Family Law Act 1975,ss.60CA, 60CC, 61DA, 64B, 65C, 65D, 65DAA |
| Bosch & Rickard [2011] FMCAfam 726 Marsden & Winch (2009) FamCAFC 152 McCall & Clark [2009] FamCAFC 92 Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 |
| Applicant: | MS SHELDON |
| First Respondent: | MR ABRAHAM |
| Second Respondent: | MS ABRAHAM |
| Third Respondent: | MR Y ABRAHAM |
| File Number: | SYC 7690 of 2010 |
| Judgment of: | Judge Monahan |
| Hearing dates: | 7, 8 and 9 August 2013 |
| Date of Last Submission: | 9 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 18 December 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms Graves |
| Solicitors for the Applicant: | David H Cohen & Co |
| Counsel for the First Respondent: | Not Applicable |
| Solicitors for the First Respondent: | James Papas Solicitors |
| Counsel for the Second and Third Respondents: | Ms Conte-Mills |
| Solicitors for the Second and Third Respondents: | Phillip A Wilkins & Associates |
| Counsel for the Independent Children's Lawyer: | Ms Bateman |
| Solicitors for the Independent Children's Lawyer: | Peter Baker Solicitors |
ORDERS
All previous parenting orders in relation to X, born (omitted) 2010 (“the Child”) be discharged.
MR Y ABRAHAM (“the Paternal Grandfather”), and MS ABRAHAM (“the Paternal Grandmother”), have equal shared parental responsibility for the Child.
The Child live with the Paternal Grandfather and the Paternal Grandmother (collectively the “Paternal Grandparents”).
Mr ABRAHAM (“the Father”), shall spend time with the Child:
(a)In the event that the Father and the Paternal Grandparents agree about the time that the Father shall spend with the Child, as is agreed between the Father and the Paternal Grandparents, or
(b)In the event that the Father and the Paternal Grandparents do not agree about the time that the Father shall spend with the Child, the Father shall spend time with the Child as is determined by the Paternal Grandparents.
In the event that the Father has failed to provide a specimen of the Father’s urine in accordance with paragraph 9 below (hereinafter referred to as the ‘Failure to Provide Urine Specimen’) the time that the Father shall spend with the Child shall be supervised, by one or more of the Paternal Grandparents, the Father’s siblings or the Father’s Sister-in-Law, for a period of 12 months from the date of the Failure.
In the event:
(a)That the Father provided a specimen of the…
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- Case
- [2013] FCCA 2167
- Decision Date
CaseChat Overview and Summary
The court's reasoning focused on establishing a stable living arrangement for the child, granting equal shared parental responsibility to the paternal grandparents and ordering that the child live with them. Significant conditions were imposed on the father's time with the child, contingent on drug testing. The court outlined a detailed process for urine specimen collection and testing, with supervised time being mandated if the father failed to provide a specimen or if the specimen tested positive for specified drugs. The court also addressed the time the child would spend with the maternal grandmother, including specific dates and durations, and imposed restrictions on who could be present during those times. Provisions were also made for the paternal grandparents' travel with the child and for communication between the child and the maternal grandmother during such travel.
The court discharged all previous parenting orders and made new orders by consent of the parties, with the exception of specific provisions regarding the maternal grandmother's time, costs, and dismissal of extant applications, which were made by the court. The orders included detailed stipulations regarding the father's drug testing, the duration of supervised time, and the ability for the father to seek changes to certain orders in the future, provided such changes did not affect the child's time with the maternal grandmother. The court also noted that the particulars of obligations and consequences for contravention were set out in an annexure.
Orders
Orders of the court
1.
All previous parenting orders in relation to X, born (omitted) 2010 (“the Child”) be discharged.
2.
MR Y ABRAHAM (“the Paternal Grandfather”), and MS ABRAHAM (“the Paternal Grandmother”), have equal shared parental responsibility for the Child.
3.
The Child live with the Paternal Grandfather and the Paternal Grandmother (collectively the “Paternal Grandparents”).
4.
Mr ABRAHAM (“the Father”), shall spend time with the Child:
(a) In the event that the Father and the Paternal Grandparents agree about the time that the Father shall spend with the Child, as is agreed between the Father and the Paternal Grandparents, or
(b) In the event that the Father and the Paternal Grandparents do not agree about the time that the Father shall spend with the Child, the Father shall spend time with the Child as is determined by the Paternal Grandparents.
5.
In the event that the Father has failed to provide a specimen of the Father’s urine in accordance with paragraph 9 below (hereinafter referred to as the ‘Failure to Provide Urine Specimen’) the time that the Father shall spend with the Child shall be supervised, by one or more of the Paternal Grandparents, the Father’s siblings or the Father’s Sister-in-Law, for a period of 12 months from the date of the Failure.
6.
In the event:
(a) That the Father provided a specimen of the Father’s urine (hereinafter referred to as ‘Urine Specimen’) in accordance with paragraph 9 below, and
(b) That the final report of the testing of the Urine Specimen (hereinafter referred to as the ‘Drugs in Urine Test - Final Report’) indicated that the Urine Specimen contained one or more of the following classes of drugs (hereinafter referred to as the ‘Drugs in Urine Test’):
(i) Amphetamine type substances,
(ii) Benzodiazepines,
(iii) Cannabis metabolites,
(iv) Cocaine metabolites, or
(v) Opiates,
the time that the Father shall spend with the Child shall be supervised by one or more of the Paternal Grandparents, the Father’s siblings or the Father’s Sister-in-Law, for a period of 12 months from the date that the Father provided the Urine Specimen.
7.
Until the Father commences to spend time with the Child without the Father being supervised, the Paternal Grandparents or either of them shall request, in writing, on no less than and on no more than 12 occasions per calendar year, that the Father provide a Urine Specimen (hereinafter referred to as the ‘Request for Urine Specimen’).
8.
Other than as provided for in paragraph 7 above, the Paternal Grandfather and the Paternal Grandmother are each restrained from providing the Father with notice of a Request for Urine Specimen.
9.
So as not to constitute a Failure to Provide Urine Specimen, for the purposes of these Orders:
(a) The Father shall, within 24 hours of the Paternal Grandparents or either of them making a Request for Urine Specimen, do all things necessary to ensure that the Father provides the Father’s Urine Specimen in compliance with Australian/New Zealand Standard AS/NZS 4308:2008 ‘Procedures for specimen collection and the detection and quantification of drugs of abuse in urine’ (or such updated standard as is current from time to time).
(b) The Father shall provide all necessary directions to ensure that the respective Urine Specimen is subjected to a Drugs in Urine Test in compliance with Australian/New Zealand Standard AS/NZS 4308:2008.
(c) The Father shall provide all necessary authorities to ensure that the Drugs in Urine Test - Final Report is provided by the issuer of the Drugs in Urine Test - Final Report directly to the Paternal Grandparents or either of them.
(d) The Father is liable for all costs associated with the testing of the respective Urine Specimen and the provision of each respective Drugs in Urine Test - Final Report to the Paternal Grandparents or either of them.
10.
The period of 12 months referred to in paragraphs 5 and 6 above is reduced by no more than the last continuous period that the Father has been tested whilst subject to Orders of the Drug Court of New South Wales, provided that:
(a) The Father was required to provide a Urine Specimen at least once per calendar month by operation of Orders of the Drug Court of New South Wales,
(b) The Father has not failed to provide a Urine Specimen that was required to be provided by operation of Orders of the Drug Court of New South Wales,
(c) The Father has not provided a Urine Specimen that contained one or more of the classes of drugs that are referred to in Order 6. above, and
(d) Evidence of requirements to provide a Urine Specimen, pursuant to paragraph (a) herein, and Drugs in Urine Test - Final Report(s) have been provided from the issuer of the Drugs in Urine Test - Final Report(s) directly to the Paternal Grandparents.
11.
MS SHELDON (“the Maternal Grandmother”), shall spend time with the Child:
(a) In the event that the Maternal Grandmother and the Paternal Grandparents agree about the time that the Maternal Grandmother shall spend with the Child, as is agreed between the Maternal Grandmother and the Paternal Grandparents; or
(b) (b) In the event that the Maternal Grandmother and the Paternal Grandparents do not agree about the time that the Maternal Grandmother shall spend with the Child then such time occur on 28 December 2013 from 10:00 am until 2:00 pm and each alternate Saturday thereafter increasing by two hours (ie. from 10:00 am until 4:00 pm) on the relevant Saturdays after 15 April 2014 and increasing by a further two hours (ie. from 10:00 am until 6:00 pm) on the relevant Saturdays after 15 April 2015.
12.
The Maternal Grandmother shall do all things that are necessary and reasonable to ensure that no person is present at the Maternal Grandmother’s residence at times when the Child is at the Maternal Grandmother’s residence, excepting lineal descendants of the Maternal Grandmother (but not excepting the Child’s Uncle Z), partners of lineal descendants of the Maternal Grandmother and the Maternal Grandmother’s Mother, hereinafter respectively referred to as an ‘Included Person’.
13.
The Maternal Grandmother shall not leave the Child in the care of another person and shall ensure that the Child is in the care of the Maternal Grandmother at all times that the Child spends time with the Maternal Grandmother.
14.
The Paternal Grandparents, or either of them, or their nominee, shall deliver the Child to the Maternal Grandmother at the Maternal Grandmother’s residence at the commencement of times that the Child spends with the Maternal Grandmother.
15.
The Maternal Grandmother shall deliver the Child to the Paternal Grandparents, or either of them, at the Paternal Grandparents’ residence at the cessation of times that the Child spends with the Maternal Grandmother.
16.
The Paternal Grandparents are permitted to take the Child from Australia to a place outside Australia or from New South Wales to a place outside New South Wales for up to six weeks each calendar year (“Periods of Travel”), provided that:
(a) Notice of at least two months is given to the Maternal Grandmother,
(b) A copy of the Child’s itinerary, return tickets, accommodation and contact details are provided to the Maternal Grandmother,
(c) If the travel is to a place outside Australia, a copy of the Child’s travel insurance policy and immunisation certificate, if relevant, are provided to the Maternal Grandmother.
(d) Make-up time is arranged as agreed between the Maternal Grandmother and the Paternal Grandparents and, failing agreement, for the equivalent time in the weeks immediately prior to and after the travel.
17.
During Periods of Travel, the Paternal Grandparents shall facilitate communication via Skype between the Child and the Maternal Grandmother as is agreed between the Paternal Grandparents and the Maternal Grandmother, and, failing agreement, each Wednesday, with the call to be made between 3.00 pm and 3.30 pm Australian Eastern Standard Time or as soon as is practicable thereafter, and, in order for the communication to be facilitated, the Maternal Grandmother shall ensure that she has provided her Skype contact details to the Paternal Grandparents in a timely fashion. In the event that the Skype communication is unavailable, the Paternal Grandparents shall facilitate telephone communication between the Child and the Maternal Grandmother at the same time(s).
18.
The Maternal Grandmother is at liberty to attend all of the Child’s school curricular and extra-curricular activities including cultural functions which are relevant to the Child which a parent would normally be entitled to attend.
19.
In the event that the Child attends an extra-curricular activity that falls during the time that the Child spends with the Maternal Grandmother, the Maternal Grandmother shall ensure that the Child attends the activity or the Maternal Grandmother’s time shall commence at the conclusion of the extra-curricular activity. If the time that the Child spends with the Maternal Grandmother commences at the conclusion of an extra-curricular activity, the duration of the time that the Child spends with the Maternal Grandmother shall be the same as if the time that the Child spends with the Maternal Grandmother commenced at the time unaffected by this Order.
20.
The Paternal Grandparents, or either of them, shall not arrange for the Child to attend extra-curricular activities during time that the Child is to spend time with the Maternal Grandmother if there is a viable alternative.
21.
All parties are restrained from denigrating the other parties and/or members of their household and/or family either in the presence or the hearing of the Child, nor shall any party allow another person to do so.
22.
The Maternal Grandmother is entitled to have reasonable telephone contact with the Child and the Paternal Grandparents shall do all things that are necessary and reasonable to facilitate that telephone contact occurring.
23.
In the event that the Child is hospitalised, receives medical attention or becomes ill, to the extent that that illness impacts upon time that the Child is otherwise to spend time with the Maternal Grandmother pursuant to these Orders, the Paternal Grandparents shall notify the Maternal Grandmother of this as soon as is reasonably possible.
24.
The Maternal Grandmother and the Paternal Grandparents shall keep each other informed of their current contact details including mobile and home telephone numbers and residential address and shall inform each other within 48 hours of a change to such contact details.
25.
There be no order for costs.
26.
All extant applications before this Court be otherwise dismissed.
AND THE COURT NOTES THAT:
(A) Paragraphs 11(b), 12, 25 and 26 herein were made by the Court and all other orders were made with the consent of the parties.
(B) The Court was advised that all parties, with the exception of the paternal grandparents were legally aided and the Independent Children’s Lawyer did not propose to seek any costs against them.
(C) In the event that pursuant to paragraph 19 herein, the time the child spends with the grandmother commences after 10:00 am, the intention of that paragraph is that the time that the child spends with the Maternal Grandmother is to extend to make up any time missed.
(D) In appropriate circumstances, the father may file an Initiating Application seeking changes to paragraphs 2 to 10 herein but such changes not otherwise impact upon the child’s time to be spent with the maternal grandmother.
(E) Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, 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 Annexure A and those particulars are included in these orders.
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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