Standish and Lynch - [2016] FamCA 1034

FAMILY COURT OF AUSTRALIA

STANDISH & LYNCH

[2016] FamCA 1034

FAMILY LAW – CHILDREN – Parenting Orders – Abuse of crystal methamphetamine and other illegal drugs by both parents - Allegations by mother of sexual abuse of child by father - Whether children at risk in unsupervised care of the father – On the evidence the father does not present an unacceptable risk to the children in terms of the allegations of sexual abuse but does present an unacceptable risk in terms of his drug abuse - Orders that the father spend graduated supervised time with the children for a period of 12 months and for such time to move to unsupervised time on the condition that the father undergo regular drug testing

Family Law Act 1975 (Cth) ss 60B and 60CC

Mauldera & Orbel (2014) FLC 93-602

Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038

APPLICANT:

Mr Standish

RESPONDENT:

Ms Lynch

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

FILE NUMBER:

LNC:

463

2015

DATE DELIVERED:

2 December 2016

PLACE DELIVERED:

Hobart

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

13 & 14 September 2016 & 12 October 2016 – by consent leave was granted and further evidence was adduced on 8 November 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Higgins

SOLICITOR FOR THE APPLICANT:

Bishops

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Briffa

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

Orders

All previous parenting orders in relation to B (born … 2010) and C (born … 2011) (‘the children’) are vacated as and from 17 December 2016.
Ms Lynch (‘the mother’) and Mr Standish (‘the father’) have equal shared parental responsibility for the children.
The children shall live with the mother.
The children shall spend time with the father as agreed in writing between the parties and in the event that they are unable to agree then as follows:-
(a)to coincide when the father is present in Tasmania during the school term each second month as follows:-
(i)During week 1 – from 3.00pm Friday until 5.00pm Sunday;
(ii)During weeks 2 and 3 – from 3.00pm Friday until 3.00pm Monday;
(b)During each of the Tasmanian mid-term holiday periods for a block of one (1) week provided that the father provides to the mother a minimum of forty two (42) days written notice of the proposed dates.
(c)During the Christmas/summer school holiday periods, when the father returns to Tasmania:-
(i)for a period of two weeks each such holiday period;
(ii)for the 2016/2017 and 2017/2018 holiday periods, two one week periods separated by at least one week;
(iii)for 2018/2019 onwards a block of two weeks;
(iv)such times to commence 3.00pm on the Friday following the father’s return to Tasmania and end the following Friday or Friday week (as the case may be) at 3.00pm .
(v)with the children to spend time with the father (if he is in Tasmania) in even numbered years, from 3.00pm on Christmas…

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 Standish and Lynch

Details

AGLC: Standish and Lynch [2016] FamCA 1034
Case: [2016] FamCA 1034
Decision Date: 2 December 2016

CaseChat Overview and Summary

This matter concerned parenting orders made by Benjamin J in relation to two children, B and C. The dispute involved the mother, Ms Lynch, and the father, Mr Standish, regarding the children's living arrangements and time spent with each parent.

The court was required to determine the terms of parenting orders that would best serve the interests of the children. This involved considering issues of parental responsibility, the children's primary residence, and the specific arrangements for the children to spend time with the father, including conditions and safeguards to ensure the children's welfare.

Benjamin J made orders vacating previous parenting orders and establishing equal shared parental responsibility. The children were ordered to live with the mother, with specific, detailed provisions for the children to spend time with the father. These provisions included conditions such as the paternal grandmother's presence during the father's time with the children for a period, restrictions on overnight stays for the father for an initial period, mandatory drug testing for the father, and consent orders for ongoing therapeutic counselling for the children, drug rehabilitation courses for both parents, and parenting after separation courses. The court also made orders restraining both parents from using illicit drugs while the children are in their care, from using physical discipline, and from denigrating the other parent in the children's presence. The Independent Children's Lawyer's appointment was extended for twelve months, and the court directed that copies of the orders and reasons be forwarded to the Tasmanian Child Safety Office.

Orders

Orders of the court

All previous parenting orders in relation to B (born … 2010) and C (born … 2011) (‘the children’) are vacated as and from 17 December 2016.

Ms Lynch (‘the mother’) and Mr Standish (‘the father’) have equal shared parental responsibility for the children.

The children shall live with the mother.

The children shall spend time with the father as agreed in writing between the parties and in the event that they are unable to agree then as follows:-

(a) to coincide when the father is present in Tasmania during the school term each second month as follows:-

(i) During week 1 – from 3.00pm Friday until 5.00pm Sunday;

(ii) During weeks 2 and 3 – from 3.00pm Friday until 3.00pm Monday;

(b) During each of the Tasmanian mid-term holiday periods for a block of one (1) week provided that the father provides to the mother a minimum of forty two (42) days written notice of the proposed dates.

(i) for a period of two weeks each such holiday period;

(ii) for the 2016/2017 and 2017/2018 holiday periods, two one week periods separated by at least one week;

(iii) for 2018/2019 onwards a block of two weeks;

(iv) such times to commence 3.00pm on the Friday following the father’s return to Tasmania and end the following Friday or Friday week (as the case may be) at 3.00pm .

(v) with the children to spend time with the father (if he is in Tasmania) in even numbered years, from 3.00pm on Christmas Eve until 3.00pm on Christmas Day and in odd numbered years from 3.00pm Christmas Day to 3.00pm Boxing Day, otherwise the children spend Christmas Eve, Christmas Day and Boxing Day with the mother.

THAT for the purpose of Order 4(a), 4(b), 4(c) (i) and (ii) herein:-

(a) for a period of twelve months (12) from the date of these orders the paternal grandmother Ms D Standish shall be present at all times whilst the children are spending time with the father, including any outings;

(b) the father shall spend no overnight time (8.00pm to 8.00am) with the children for a period of six (6) months from the date of this Order, with the children to remain in the care of the paternal grandmother on such nights when they would have otherwise spent time with the father over this period;

(c) the father shall arrange at his own expense a weekly urine test to screen for drugs for a period of twelve (12) months from the date of this order and shall direct the result of such drug tests to be sent to the Independent Children’s Lawyer at the Legal Aid Commission of Tasmania (with such screens to be suspended while the father is working interstate);

(d) the father shall arrange at his own expense a weekly urine test to screen for drugs for a period of twelve (12) months from the first anniversary of date of this order and shall direct the result of such drug tests to be sent to the mother (with such screens to be suspended while the father is working interstate);

(e) In the event that the father misses a test (without reasonable excuse) or provides a false test result or such test produces a drug positive result; then the time the children see the father is suspended pending written agreement between the parties or further order of a court exercising jurisdiction under the Family Law Act 1975 (Cth); and in that regard leave is given to the mother, father and Independent Children's Lawyer to apply for urgent mention before this Court for a period of twelve (12) months from the date of this order.

Either party may make available to the general practitioner for each of the children and any mental health practitioner or counsellor:-

(a) a copy of these orders;

(b) the reasons upon which they are based;

(d) the Magellan report.

BY CONSENT the mother and father shall each do all acts and sign all documents to continue the engagements of the children with therapeutic counsellor, Ms E, such treatment to continue for as much as is reasonably recommended by Ms E and/or is recommended by each of the children’s treating general practitioners.

BY CONSENT the mother and father are restrained from using any illicit drugs or being affected by illicit drugs whilst the children are in their care or supervision.

BY CONSENT the parties shall not use physical discipline on the children when they are in their care.

10.

Both the mother and father be and are restrained from denigrating, belittling or abusing the other parent or members of the other parent’s family in the presence or hearing of the children or either of them.

11.

BY CONSENT each of the parties shall attend and complete a drug rehabilitation course reasonably nominated by the Independent Children’s Lawyer. Such course to be commenced within twelve (12) months from the date of these orders and completed within eighteen (18) months of the date of these orders.

12.

Each of the parents shall attend and complete a parenting after separation course within the same period of time as set out in order 11 above.

13.

Each parent shall notify the other of any medical emergency, illness or injury suffered by either of the children whilst in their care warranting treatment by a third party and shall authorise any treating health professional to communicate with the other party regarding the condition and treatment of the children.

14.

Pursuant to s 65DA(2) and s 62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

15.

All outstanding applications be dismissed.

16.

BY CONSENT the appointment of the Independent Children’s Lawyer be extended for a period of twelve (12) months from the date of these orders.

IT IS CERTIFIED

17.

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS DIRECTED

18.

The Independent Children’s Lawyer forward a copy of these orders and these reasons that support the orders to the Tasmanian Child Safety Office together with a copy of the Family Report.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.