TROWER & KIRWAN - [2015] FCCA 2491

FEDERAL CIRCUIT COURT OF AUSTRALIA

TROWER & KIRWAN

[2015] FCCA 2491

Catchwords:
FAMILY LAW – Final proceedings in respect of child aged seven years of age – mutual allegations of serious drug abuse – allegations of family violence – order for child to be independently represented – mother has failed to appear at final hearing – father seeks orders for equal time – ICL not in favour of such an outcome – best interests – matters for consideration.

Legislation:

Family Law Act 1975, ss.60B; 60CA; 60CC; 61DA; 65DAA; 91B

Trower & Kirwan [2014] FCCA 1729
Taylor v Taylor (1979) 143 CLR 1
B v B: Family Law Reform Act 1995 (1997) FLC 92-755
Russell & Russell & Anor [2009] FamCA 28
MRR v GR (2010) 240 CLR 461

Applicant:

MS TROWER

Respondent:

MR KIRWAN

File Number:

ADC 1075 of 2014

Judgment of:

Judge Brown

Hearing dates:

13 & 14 August 2015

Date of Last Submission:

14 August 2015

Delivered at:

Adelaide

Delivered on:

18 September 2015

REPRESENTATION

Counsel for the Applicant:

No appearance

Counsel for the Respondent:

In person

Counsel for the Independent Children's Lawyer:

Mr Hemsley

Solicitors for the Independent Children's Lawyer:

Legal Services Commission of South Australia

ORDERS

The child of the relationship X born on (omitted) 2008 live with the mother.
The child spend time with the father on the following terms: –
(a)on each weekend from the conclusion of school on the Friday to 4 PM on the following Saturday commencing on 18 September 2015; and
(b)in each other week, on alternate Wednesdays from the commencement of school or 9 AM on the Wednesday until the commencement of school or 9 AM on the following Thursday commencing on (on a date to be specified ; and
IT IS NOTED that there is no provision for school holiday time and it is anticipated that these orders shall continue during any school holiday period; and
(c)on Father’s Day from 4 PM on the Saturday preceding Father’s Day to the commencement of school on the following Monday; and
(d)from 3 PM on 24 December 2015 to 10.00 AM on 26 December 2015 and each alternate year thereafter provided that the child shall be with the mother from 3 PM on 24 December 2016 until 10 AM on 26 December 2016 and each alternate year thereafter.
For the purposes of handover, where handovers are not able to take place at the child’s school, the parties shall register at the Northern Children’s Contact Service and wherever possible handovers shall be conducted at that service.
Those handovers not able to be accommodated in accordance with the directions contained in the preceding paragraph shall take place at a police station to be agreed between them and failing agreement to be (omitted), with both parties at liberty to have an agent attending on their behalf provided that that person is known to the child and in the case of the mother is not Mr B.
Both parties are restrained and an injunction is…

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 & KIRWAN

Details

AGLC: Trower and Kirwan [2015] FCCA 2491
Case: [2015] FCCA 2491
Decision Date: 18 September 2015

CaseChat Overview and Summary

This matter concerned an application before Judge Brown regarding the living arrangements and time spent between a child, X, and her parents, Ms Trower and Mr Kirwan. The dispute centred on the appropriate parenting orders to be made, particularly in light of the parents' ongoing difficulties in co-parenting and their past issues with illicit drug use.

The court was required to determine the best interests of the child, X, who was seven and a half years old. Key legal issues included assessing the child's views, considering the significance of her relationships with both parents and her half-brother, and evaluating the impact of any proposed changes to her living arrangements. The court also had to consider the parents' respective behaviours, their capacity for communication and cooperation, and their past and present circumstances regarding drug use.

Judge Brown reasoned that while the child had a significant relationship with both parents and it would be beneficial for her to know her half-brother, a shared care regime, as proposed by Mr Kirwan, would represent a significant and potentially unpredictable change for X. This was particularly so given the incomplete nature of the evidence and the parents' mistrust of one another. The court noted that while both parents likely had past issues with illicit drugs, Ms Trower's current status was unknown, and Mr Kirwan had refused independent scrutiny. The court found that there were no practical impediments to X spending regular time with her father, given their proximity.

The court ordered that the child, X, live with the mother, Ms Trower. The child was to spend time with the father, Mr Kirwan, on each weekend from the conclusion of school on Friday until 4 PM on Saturday, commencing on 18 September 2015. Additionally, the child was to spend time with the father in alternate weeks on Wednesdays, from the commencement of school or 9 AM until the commencement of school or 9 AM on the following Thursday, with the specific commencement date to be determined.

Orders

Orders of the court

The child of the relationship X born on (omitted) 2008 live with the mother.

The child spend time with the father on the following terms: –

(a) on each weekend from the conclusion of school on the Friday to 4 PM on the following Saturday commencing on 18 September 2015; and

(b) in each other week, on alternate Wednesdays from the commencement of school or 9 AM on the Wednesday until the commencement of school or 9 AM on the following Thursday commencing on (on a date to be specified ; and

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

The chief detriment of this outcome is that it would, to some extent, represent unfinished business for the court. However, to a large extent, in my view, this unfinished nature of the proceeds is somewhat inevitable given Ms Trower’s behaviour to date. b) Additional considerations X is seven and a half years of age. Her views have not been exhaustively canvassed, given her age. Given her tender years, I do not consider that any view attributed to her, at this stage, can be a definite factor in the outcome of the case. As previously indicated, I accept that X has a significant level of relationship with both her parents. In general terms, it is also likely to be beneficial for her to come to know her half-brother Y better, given his significance in Mr Kirwan’s life and the background they share. Otherwise, I know very little about the significance of any part played in X’s life by other relatives on either the paternal and maternal aspects of her life. As previously indicated, Mr Kirwan paints a positive picture of Mr D in his household. He deposed that he has known Mr D for approximately twenty years and X gets on well with him. Ms Trower has a personal interest in calisthenics. It seems to be the case that X too participates in calisthenics. Mr Kirwan supports this activity and has, in the past, also taken X to calisthenics. It was useful to me to hear about calisthenics. It added a flavour of normality to X’s life. I was also pleased to hear the evidence from Mr M, which indicated that her school held no concerns about her welfare. Against this background, Mr Hemsley cautions against the court making any dramatic changes in X’s life, particularly given the incomplete nature of the evidence currently available. In my view, this is a significant consideration, which militates against Mr Kirwan’s proposal. In my view, to move immediately to a shared care regime would be a very significant change for X. It may also precipitate an unpredictable reaction from Ms Trower. In my view, any change for X must be carefully managed. However, in practical terms, there is no impediment to X spending regular periods of time, with her father, both during school terms and in holiday periods. The parties live comparatively close together, in suburban Adelaide. The difficulties, which are likely to arise, relate to the parties’ mistrust of one another and their ability to communicate in a way which is focused on the service of X’s best interests. Mr Kirwan is likely to push Ms Trower about parenting issues, whilst she will withdraw or avoid such pressures. Although these reasons for judgment have concentrated on the differences between the parties, they also have many things in common. On balance, it seems more likely than not that both Mr Kirwan and Ms Trower have had significant issues to do with their use of illicit drugs, in the past. What is Ms Trower’s current status in respect of such matters is not known to me. She has supplied one negative drug test, prior to her withdrawal from the proceedings. Mr Kirwan has vociferously denied any current drug use on his part but has also consistently refused to subject himself to any independent scrutiny in this regard.