SMEDLEY & SNOWDEN - [2014] FCCA 762

FEDERAL CIRCUIT COURT OF AUSTRALIA

SMEDLEY & SNOWDEN

[2014] FCCA 762

Catchwords:
FAMILY LAW – Parenting – eight year old boy – mother wishing to relocate with boy to Darwin – father wishing boy to remain in Melbourne – mother with schizoaffective disorder – father user of marijuana for 30 years – father in poor health - allegations of violence.

Legislation:
Family Law Act 1975, ss.11F, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:
A v A: Relocation Approach (2000) 26 Fam LR 382; (2000) FLC 93-035; [2000] FamCA 751
Cowley v Mendoza (2010) 43 Fam LR 436; [2010] FamCA 597
Hepburn v Noble (2010) FLC 93-438; [2010] FamCAFC 111;
McCall v Clark (2009) 41 Fam LR 483; (2009) FLC 93-405; [2009] FamCAFC 92
MRR v GR (2010) 240 CLR 461; (2010) 84 ALJR 220; (2010) 42 Fam LR 531; (2010) FLC 93-424; (2010) 263 ALR 368; [2010] HCA 4

Applicant:

MR SMEDLEY

Respondent:

MS SNOWDEN

File Number:

MLC 6487 of 2013

Judgment of:

Judge Riley

Hearing dates:

12, 13 & 14 March 2014

Date of last submission:

21 March 2014

Delivered at:

Melbourne

Delivered on:

15 April 2014

REPRESENTATION

Counsel for the Applicant:

Ms Jenkinson

Solicitors for the Applicant:

Bowlen Dunstan Pty Ltd

Counsel for the Respondent:

Ms Goldthorp

Solicitors for the Respondent:

Lampe Family Lawyers

Counsel for the Independent Children’s Lawyer:

Ms Buchanan

Independent Children’s Lawyer:

Mark Finn

ORDERS

All previous parenting orders be discharged.
The mother have sole parental responsibility for X born (omitted) 2005 (“X”).
X live with his mother.
The mother be restrained from relocating X’s residence more than 30kms from the (omitted) Post Office.
X spend time with his father as follows:
(a)until the father has complied with orders 11, 12 and 13:
(i)from after school each alternate Friday to 7pm on Sunday; and
(ii)from after school to 7pm each Wednesday;
(b)upon the father complying with orders 11, 12 and 13:
(i)during school terms from after school each alternate Thursday to before school Monday; and
(ii)from after school each alternate Thursday to before school Friday;
(iii)for half of all Victorian school holidays as agreed between the parents and in default of agreement, the first half of such holidays commencing in the April 2015 school holidays;
(iv)from 2pm Christmas Eve to 2pm Christmas Day in 2014 and each alternate year thereafter;
(v)from 2pm Christmas Day to 2pm Boxing Day in 2015 and each alternate year thereafter;
(vi)at Easter (when Easter does not fall during school holidays) commencing 2015 for one half of the Easter period as agreed between the parents and in default of agreement for the second half;
(vii)on X’s birthday from after school to 7pm on a school day and 10am to 3pm on a weekend if X is not otherwise spending time with his father;
(viii)from 6pm Saturday to before school Monday during the Father’s Day weekend; and
(ix)such further or other times as agreed between the parents.
X’s time with his father be suspended from 6pm Saturday…

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 SMEDLEY & SNOWDEN

Details

AGLC: SMEDLEY & SNOWDEN [2014] FCCA 762
Case: [2014] FCCA 762
Decision Date: 15 April 2014

CaseChat Overview and Summary

In this matter before Judge Riley, the dispute concerned parenting arrangements for an eight-year-old boy. The mother sought to relocate with the child to Darwin, while the father wished for the child to remain in Melbourne. The court was presented with information regarding the mother's diagnosis of schizoaffective disorder and the father's long-term marijuana use, poor health, and allegations of violence.

The central legal issues before the court were: firstly, whether the mother should have sole parental responsibility for the child; secondly, whether the child should live with the mother; and thirdly, the terms of the child's time with his father, including the father's compliance with specific orders designed to address concerns about his drug use and parenting capacity. The court also had to consider the mother's desire to relocate and the implications of this for the child's relationship with his father.

Judge Riley's reasoning focused on the paramountcy of the child's welfare and best interests. The court determined that the mother should have sole parental responsibility and that the child should live with her, acknowledging her primary caregiving role. However, to mitigate concerns arising from the father's drug use and allegations of violence, the court imposed stringent conditions on the father's time with the child. These conditions included mandatory enrolment in and completion of family violence and parenting courses, engagement in counselling, and regular supervised urine drug screens. The court also placed a geographical restriction on the mother's relocation, limiting it to within 30 kilometres of a specified post office, thereby facilitating the father's ongoing involvement in the child's life.

The court discharged all previous parenting orders and made detailed orders regarding the child's living arrangements, time spent with each parent, communication, and changeovers. Crucially, the father's time with the child was made conditional upon his compliance with specific orders relating to counselling, parenting courses, and drug testing, with immediate suspension of contact for non-compliance or positive drug screens. The mother was permitted to take the child to Darwin for limited periods annually, subject to facilitating communication and make-up time. Both parents were also subject to orders restraining them from using physical discipline, abusive language, or denigrating the other parent in the child's presence.

Orders

Orders of the court

All previous parenting orders be discharged.

The mother have sole parental responsibility for X born (omitted) 2005 (“X”).

X live with his mother.

The mother be restrained from relocating X’s residence more than 30kms from the (omitted) Post Office.

X spend time with his father as follows:

(a) until the father has complied with orders 11, 12 and 13:

(i) from after school each alternate Friday to 7pm on Sunday; and

(ii) from after school to 7pm each Wednesday;

(b) upon the father complying with orders 11, 12 and 13:

(i) during school terms from after school each alternate Thursday to before school Monday; and

(ii) from after school each alternate Thursday to before school Friday;

(iii) for half of all Victorian school holidays as agreed between the parents and in default of agreement, the first half of such holidays commencing in the April 2015 school holidays;

(iv) from 2pm Christmas Eve to 2pm Christmas Day in 2014 and each alternate year thereafter;

(v) from 2pm Christmas Day to 2pm Boxing Day in 2015 and each alternate year thereafter;

(vi) at Easter (when Easter does not fall during school holidays) commencing 2015 for one half of the Easter period as agreed between the parents and in default of agreement for the second half;

(vii) on X’s birthday from after school to 7pm on a school day and 10am to 3pm on a weekend if X is not otherwise spending time with his father;

(viii) from 6pm Saturday to before school Monday during the Father’s Day weekend; and

(ix) such further or other times as agreed between the parents.

X’s time with his father be suspended from 6pm Saturday to before school Monday during the Mother’s Day weekend.

X communicate with his father by telephone each Tuesday and alternate Fridays (when X is not spending time with his father) between 6.30pm and 7pm.

X communicate with his mother by telephone on each Tuesday and Friday when X spends holiday time with his father between 6.30pm and 7pm.

Changeover at school times occur at school and otherwise occur at Subway (omitted) or such other venue as is agreed between the parents.

10.

The mother be at liberty to take X to Darwin each year for up to four weeks provided the mother facilitates telephone or Skype communication between X and his father twice a week between 6.30pm and 7pm and provides make up time to the father.

11.

The father enrol in and complete a Family Violence Intervention Course at Uniting Care (omitted) as soon as practicable and provide evidence of completion of the course to the mother’s solicitor.

12.

The father enrol in and complete a parenting course at Relationships Australia, (omitted), directed to the care of mid primary school aged boys and provide evidence of completion of the course to the mother’s solicitor.

13.

The father:

(a) engage in positive change counselling with Ms A at the (omitted) Health Service, or such other counsellor as recommended by Ms A;

(b) provide to such counsellor copies of the reports of Ms E dated 11 September 2013 and Ms B dated 17 November 2013 and these orders and reasons for judgment;

(d) provide evidence of the satisfactory completion of the course of counselling to the mother’s solicitor.

14.

For four years, the mother or her solicitor be at liberty, not more than once per month, to request the father in writing to perform supervised urine drug screens if the mother has reason to believe that the father is using illicit drugs.

15.

The father, within 48 hours of a written request from the mother or her solicitor, complete a supervised urine drug screen and provide the results of the screen to the mother’s solicitor as soon as practicable.

16.

If the father fails to comply with a request for a supervised urine drug screen within 48 hours, X’s time with the father be immediately suspended until further order of the court.

17.

If the father provides a positive supervised urine drug screen, X’s time with his father be immediately suspended until further order of the court.

18.

The mother continue to attend upon (omitted) Care Service and continue to comply with all recommended treatment and recommendations of the service.

19.

The father and mother be restrained from:

(a) using any form of physical discipline on X;

(b) using abusive language towards X;

(c) denigrating the other parent or any members of the other parent’s family in the presence or hearing of X or allowing any other person to do so; and

(d) removing X from his current school until he completes grade 6 unless the parents agree otherwise in writing.

20.

The father be restrained from using or being affected by any illicit drugs when X is spending time with him.

21.

The father be restrained from:

(a) using any illicit drugs; and

(b) storing any items used in administering illicit drugs,

at his place of residence.

22.

Both parents keep each other informed of his or her residential address, landline and mobile numbers.

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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