Trower and Kirwan - [2014] FCCA 1729

FEDERAL CIRCUIT COURT OF AUSTRALIA

TROWER & KIRWAN

[2014] FCCA 1729

Catchwords:
FAMILY LAW – Child aged six years – interim hearing – each party makes serious allegations regarding parenting capacity of the other – nature of interim hearing – independent children’s lawyer – drug screen testing – best interests.

Legislation:

Family Law Act 1975 ss.60CA; 60CC; 61DA

Applicant:

MS TROWER

Respondent:

MR KIRWAN

File Number:

ADC 1075 of 2014

Judgment of:

Judge Brown

Hearing date:

24 June 2014

Date of Last Submission:

24 June 2014

Delivered at:

Adelaide

Delivered on:

24 June 2014

REPRESENTATION

Counsel for the Applicant:

Ms Fuda

Solicitors for the Applicant:

Vicki Lehmann & Associates

Counsel for the Respondent:

Mr Laidlaw

Solicitors for the Respondent:

Matthew Mitchell

ORDERS

UPON NOTING that the parties will exchange their mobile contact numbers via their solicitors within twenty four (24) hours.

THE COURT ORDERS THAT:

Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed as soon as is practicable to represent the interests of the child [X] born [omitted] 2008 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.
Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.
Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 14 July 2014 at 2.15 pm, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS:

The child live with the mother.
The child spend time with the father as follows:
(a)Each Wednesday commencing 25 June 2014 from after school until 6.00 pm; and
(b)Each Sunday commencing 29 June 2014 from midday until 5.00 pm.
The child is to be exchanged in the foyer of the [H] Police Station when not exchanged at the child’s school.
Each party undertake supervised urine analyse drug screen test at their own cost no later than 5.00 pm this day 24 June 2014 upon the following terms and conditions:
(a)They each shall provide urine samples in the presence of and within sight of the medical practitioner or medical technician who is responsible for submitting the sample for analysis;
(b)The solicitors forward a copy of the results of such tests to the other party’s solicitors and the court as soon as they become available.
The parties be restrained and an injunction is hereby granted restraining them…

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 Trower and Kirwan

Details

AGLC: Trower and Kirwan [2014] FCCA 1729
Case: [2014] FCCA 1729
Decision Date: 24 June 2014

CaseChat Overview and Summary

This matter came before Judge Brown concerning the care, welfare, and development of a child, [X], born in 2008. The dispute involved the parents' arrangements for the child and arose in the context of family law proceedings.

The court was required to determine several key issues. These included the appointment of an Independent Children’s Lawyer to represent the child's interests, the necessity for the parties to attend a family dispute resolution conference, and the interim living and contact arrangements for the child. Additionally, the court needed to address concerns regarding drug and alcohol use, potential parental denigration, and the circumstances under which the child could undergo medical or psychiatric examinations.

In addressing these issues, the court made orders pursuant to sections 68L and 11F of the *Family Law Act 1975*. An Independent Children’s Lawyer was appointed to represent the child's interests, with solicitors directed to forward relevant documents to the Legal Services Commission of South Australia to facilitate this appointment. The parties were ordered to attend a family dispute resolution conference with a family consultant. Interim orders were made for the child to live with the mother and spend time with the father on specified days and times, with exchanges to occur at a police station foyer unless at school. The court also imposed injunctions restraining the parties from abusing each other in the child's presence, discussing proceedings with the child, and consuming alcohol or illicit drugs while the child was in their care or within 24 hours prior. The father was further restrained from arranging medical or psychiatric examinations of the child without the mother's written consent, except in emergencies. The matter was adjourned for further consideration.

Orders

Orders of the court

UPON NOTING that the parties will exchange their mobile contact numbers via their solicitors within twenty four (24) hours.

THE COURT ORDERS THAT:

Pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed as soon as is practicable to represent the interests of the child [X] born [omitted] 2008 and to facilitate such appointment the Parties’ respective solicitors do forward all relevant documents to Mr Graham Russell of the Legal Services Commission of South Australia within seven (7) days of today’s date and that the Independent Children’s Lawyer use his or her best endeavours to be in a position to make submissions to the Court on the adjourned date.

Immediately upon appointment by the said Legal Services Commission of South Australia or otherwise, the Independent Children’s Lawyer file a Notice of Address for Service.

Pursuant to section 11F of the Family Law Act the parties attend a family dispute resolution conference at the Family Court of Australia with a family consultant on 14 July 2014 at 2.15 pm, to discuss the care, welfare and development of the child in an endeavour to resolve any differences between the parties in relation thereto. The parties are to telephone the Registry on 1300 352 000 to confirm their attendance.

UNTIL FURTHER OR OTHER ORDER THE COURT ORDERS:

The child live with the mother.

The child spend time with the father as follows:

(a) Each Wednesday commencing 25 June 2014 from after school until 6.00 pm; and

(b) Each Sunday commencing 29 June 2014 from midday until 5.00 pm.

The child is to be exchanged in the foyer of the [H] Police Station when not exchanged at the child’s school.

Each party undertake supervised urine analyse drug screen test at their own cost no later than 5.00 pm this day 24 June 2014 upon the following terms and conditions:

(a) They each shall provide urine samples in the presence of and within sight of the medical practitioner or medical technician who is responsible for submitting the sample for analysis;

(b) The solicitors forward a copy of the results of such tests to the other party’s solicitors and the court as soon as they become available.

The parties be restrained and an injunction is hereby granted restraining them from abusing, denigrating or rebuking the other in the presence or hearing of the child or from permitting any other person to do so or discussing these proceedings with the child or in the presence or hearing of the child or from permitting any other person to do so.

Each party is restrained and an injunction issue restraining them from consuming alcohol or ingesting illicit drugs while the child is in their care or twenty four hours (24) prior to the child being in their care.

10.

The father is restrained and an injunction issue restraining him from having the child medically or psychiatrically examined other than in the case of accident or emergency without the mother’s written consent.

11.

Further consideration of this matter be adjourned to 30 July 2014 at 9.30am.

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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