Trembath and Colbert - [2014] FCCA 2261

FEDERAL CIRCUIT COURT OF AUSTRALIA

TREMBATH & COLBERT

[2014] FCCA 2261

Catchwords:
FAMILY LAW – Long history of litigation – father psychologically troubled – father lacks insight – son’s view given significant weight – Independent Children’s Lawyer supports family consultant’s recommendations.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

Caravaggio & Caravaggio [2011] FamCA 254
Collu & Rinaldo [2010] FamCAFC 53
McCall & Clark (2009) FLC 93-405
Re: F Litigants in Person Guidelines (2001) FLC 93-072

Applicant:

MR TREMBATH

Respondent:

MS COLBERT

File Number:

MLC 12731 of 2007

Judgment of:

Judge Curtain

Hearing dates:

26 June 2013

27 June 2013

14 February 2014

6 August 2014

7 August 2014; and
8 August 2014

Date of Last Submission:

8 August 2014

Delivered at:

Melbourne

Delivered on:

3 October 2014

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Not relevant

Counsel for the Respondent:

In person

Solicitors for the Respondent:

Not relevant

Counsel for the Independent Children's Lawyer:

Ms Mandelert

Solicitors for the Independent Children's Lawyer:

Lampe Family Lawyers

ORDERS

THE COURT ORDERS BY CONSENT THAT:

The Contravention Application of the father filed 28 May 2014 be dismissed.

THE COURT ORDERS THAT:

The 3 Subpoena Notices of Objection filed by the father on 25 June 2014 be struck out.
The father be granted leave to make an oral application for the following orders:
“The child, X born (omitted) 2002 (“X”) spend time with the father as follows:
(a)each alternate weekend from the conclusion of school Friday to the commencement of school Tuesday during school terms;
(b)all of September/October 2014 school term holidays and one half thereafter of all school term holidays;
(c)the first two thirds of the long summer vacation for the next two (2) years and thereafter one half of the long summer vacation; and
(d)on Father’s Day from 6.00pm Saturday evening before to school Monday and on X’s birthday at times agreed.”
All prior parenting orders be discharged.
The child, X born (omitted) 2002 (“X”) live with the mother.
The mother have sole parental responsibility for X.
X spend time with the father as follows:
(a)during school terms each alternate Saturday or Sunday as initially nominated by X and thereafter each such weekend day, from 1.00pm to 4.00pm or such other days and times as agreed between the parents and X in writing;
(b)on Father’s Day and X’s birthday at times agreed between the parents and X; and
(c)at such other days and times including holidays and special days as agreed between the parents and X.
X communicate with his father at such times and with such frequency as agreed between the parents and X.
For the purpose of order (7) above X’s time with the father shall be supervised by an adult agreed to by the parents until such time as the father produces three (3) consecutive supervised drug screens clear of any illegal drugs at two (2) monthly intervals over a six (6) month period.
The parents agree on changeover arrangements, and…

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 Trembath and Colbert

Details

AGLC: Trembath and Colbert [2014] FCCA 2261
Case: [2014] FCCA 2261
Decision Date: 3 October 2014

CaseChat Overview and Summary

In the matter of *Trembath and Colbert*, heard by Judge Curtain, the parties sought final parenting orders concerning their child, X. The proceedings involved an application by the father to dismiss a contravention application and to strike out objections to subpoena notices. The court also considered an oral application by the father for specific time spent with X, and the mother's application for X to live with her and for the mother to have sole parental responsibility.

The court was required to determine the best interests of the child, X, in light of the parents' competing applications and the father's history, which included concerns regarding drug use. Specifically, the court had to decide on the living arrangements for X, the extent of X's time with each parent, and the conditions and restrictions to be imposed on the father's time with X to ensure X's safety and wellbeing. The court also had to address the discharge of prior parenting orders and the appointment of an Independent Children's Lawyer.

The court's reasoning led to a comprehensive set of consent orders. The father's contravention application was dismissed, and his objections to subpoena notices were struck out. Prior parenting orders were discharged, and X was ordered to live with the mother, who was granted sole parental responsibility. X was to spend time with the father under supervised conditions, with the supervision to cease upon the father producing three consecutive clear drug screens at specified intervals. The father was also restrained from possessing or using illicit drugs and from excessive alcohol consumption prior to or during time with X. He was further ordered to undertake drug counselling at his own expense. The court also made detailed provisions regarding changeover arrangements, communication, and the parents' obligations to keep each other informed of X's health and wellbeing.

Orders

Orders of the court

THE COURT ORDERS BY CONSENT THAT:

The Contravention Application of the father filed 28 May 2014 be dismissed.

THE COURT ORDERS THAT:

The 3 Subpoena Notices of Objection filed by the father on 25 June 2014 be struck out.

The father be granted leave to make an oral application for the following orders:

“The child, X born (omitted) 2002 (“X”) spend time with the father as follows:

(a) each alternate weekend from the conclusion of school Friday to the commencement of school Tuesday during school terms;

(b) all of September/October 2014 school term holidays and one half thereafter of all school term holidays;

(c) the first two thirds of the long summer vacation for the next two (2) years and thereafter one half of the long summer vacation; and

(d) on Father’s Day from 6.00pm Saturday evening before to school Monday and on X’s birthday at times agreed.”

All prior parenting orders be discharged.

The child, X born (omitted) 2002 (“X”) live with the mother.

The mother have sole parental responsibility for X.

X spend time with the father as follows:

(a) during school terms each alternate Saturday or Sunday as initially nominated by X and thereafter each such weekend day, from 1.00pm to 4.00pm or such other days and times as agreed between the parents and X in writing;

(b) on Father’s Day and X’s birthday at times agreed between the parents and X; and

X communicate with his father at such times and with such frequency as agreed between the parents and X.

For the purpose of order (7) above X’s time with the father shall be supervised by an adult agreed to by the parents until such time as the father produces three (3) consecutive supervised drug screens clear of any illegal drugs at two (2) monthly intervals over a six (6) month period.

10.

The parents agree on changeover arrangements, and in default of agreement, the father and his supervisor (when relevant) collect X from the mother’s home at the start and the mother collect X at the conclusion of all time with at a place agreed between the parents, and failing agreement, a mid-point between their respective homes and should the father be more than 45 minutes late to collect him his time with X shall not occur on those occasions.

11.

The mother and the father keep each other advised of their current address, mobile telephone number and email address, and any changes thereto.

12.

Each parent shall promptly advise the other of any serious accident or illness affecting X while in their respective care.

13.

Each parent be at liberty to attend X’s basketball games (with a copy of the timetable to be supplied by the mother), other extra curricular activities, school parent/teacher nights and school events.

14.

The father shall not transport X on a motorcycle without first obtaining the mother’s consent.

15.

The father shall continue to attend his treating psychologist and follow that person’s reasonable directions.

16.

The father be and is hereby restrained from:

(a) possessing or using marijuana on any other illicit drug; and

(b) drinking alcohol to excess twenty four (24) hours before or during any time with X.

17.

The father undertake drug counselling at his expense by an expert nominated by the Independent Children’s Lawyer (in discussion with the father) and continue such counselling until advised that it is no longer required.

18.

The order of Judge Curtain dated 26 March 2014 appointing the Independent Children’s Lawyer be discharged.

19.

The parties’ applications, oral and written be otherwise dismissed.

AND THE COURT NOTES THAT:

A. 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 these 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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