Theodore & Ambrose - [2022] FedCFamC2F 1619

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Theodore & Ambrose [2022] FedCFamC2F 1619

File number(s): DUC 105 of 2022

Judgment of: JUDGE OBRADOVIC

Date of judgment: 24 November 2022

Catchwords: FAMILY LAW – Interim Parenting – short form reasons – where final consent orders made in 2019 – father engaged in criminal activity – assessment of risk – best interest of child – parental responsibility – child to spend gradually increasing time with father – orders for drug testing.

Legislation: Family Law Act 1975 (Cth) ss.60CC, 69ZL

Cases cited:
1 Beaton & Beaton [2020] FamCAFC 297

Goode v Goode [2006] FamCA 1346

Isles v Nelissen [2022] FedCFamC1A 97

2 Keats & Keats [2016] FamCAFC 156

Division: Division 2 Family Law

Number of paragraphs: 47

Date of hearing: 22 November 2022

Place: Parramatta

Counsel for the Applicant: Ms Otrebski

Solicitors for the Applicant: Richard Wise Solicitor

Appearing for the Respondent: Mr Virgona

Solicitors for the Respondent: Mastronardi Legal

Appearing for the Independent Children’s Lawyer: Ms Hughes

Solicitors for the Independent Children’s Lawyer: Hughes And Co Lawyers And Conveyancing
ORDERS

DUC 105 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS THEODORE

Applicant

AND:
MR AMBROSE

Respondent

order made by:

JUDGE OBRADOVIC

DATE OF ORDER:

24 November 2022

PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.Order 1.2 made on 18 July 2022 is discharged.
2.The child X born in 2013 (“the child”) shall spend time with the father, Mr Ambrose, as follows:
(a)Commencing on Saturday 3 December 2022 and each alternate Saturday thereafter from 9am to 4pm;
(b)Commencing on Saturday 11 February 2023 and each alternate weekend thereafter from 9am Saturday to 4pm Saturday and from 9am Sunday to 4pm Sunday; and
(c)Commencing on Saturday 1 June 2023 and each alternate weekend thereafter from 9am Saturday to 4pm Sunday.

3.The time in Order 2 is conditional upon the following:
(a)Forthwith, the father do all things and acts and sign all documents necessary to enrol in drug and alcohol counselling and provide confirmation of his enrolment to the mother’s legal representatives and the Independent Children’s Lawyer as soon as reasonably practicable;
(b)The father attend appointments with the drug and alcohol counsellor at a frequency recommended by the said counsellor and for the duration of the treatment recommended by the counsellor;
(c)The father is to provide evidence of his participation in drug and alcohol counselling to the mother’s legal representatives and the Independent Children’s Lawyer within twenty-one (21) days of these Orders.
(d)The father shall obtain a report from his drug and alcohol counsellor upon the Independent Children’s Lawyer’s request addressing the following:
(i)Dates of attendances;
(ii)Education and Therapy undertaken;
(iii)Any programs completed;
(iv)Any courses completed;
(v)Any further programs or courses recommended for the Father to complete; and
(vi)General comments.

(e)The father shall each 3 months contact and make an appointment in Town J with the Drug Detection Agency for the purpose of undertaking a chain of custody 5-panel hair follicle drug test and for the purpose of…

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 Theodore & Ambrose

Details

AGLC: Theodore & Ambrose [2022] FedCFamC2F 1619
Case: [2022] FedCFamC2F 1619
Decision Date

CaseChat Overview and Summary

In this case, the Federal Circuit and Family Court of Australia was asked to decide on interim parenting arrangements for a child born in 2013. The primary concern was the father's criminal activities and drug use, which led the mother to suspend the child's unsupervised time with the father. The court was required to determine if the father's conduct posed an unacceptable risk of harm to the child, and if so, what conditions should be imposed to mitigate such risks. The court also needed to weigh the best interests of the child against the father's desire for more unsupervised time.

The court examined the evidence, including the father's criminal history, his admission to drug use, and his recent efforts to change his lifestyle. The court acknowledged the strong relationship between the child and the father but emphasised the importance of safety. It decided that while the child was not currently at an unacceptable risk of harm, certain conditions needed to be imposed to ensure her safety. These conditions included the father's enrolment and participation in drug and alcohol counselling, regular drug testing, and immediate suspension of unsupervised visits if the father faced new criminal charges. The court also ordered a gradual increase in the child's unsupervised time with the father over a six-month period, allowing the father to demonstrate sustained change in his behaviour.

The court's decision balanced the child's need for a relationship with both parents against the need to protect her from potential harm. It recognised the father's efforts to change but stressed the importance of continued supervision and accountability. The final orders reflect these considerations, aiming to provide a safe environment for the child while gradually increasing her time with the father.

Orders