Tucker & Tucker - [2023] FedCFamC2F 854

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tucker & Tucker [2023] FedCFamC2F 854

File number(s): PAC 761 of 2018

Judgment of: JUDGE STREET

Date of judgment: 13 July 2023

Catchwords: FAMILY LAW – PARENTING - 7 year child – poly substance abuse- on going addiction- supervised stages

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Cases cited:
A v A (1998) FLC 92-800

Cotton & Cotton (1983) FLC 91-330

Deiter & Deiter [2011] FamCAFC 82

Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

Fitzwater & Fitzwater (2019) 60 Fam LR 212

G & C [2006] FamCA 994

Isles & Nelissen (2022) FLC 94-092

Johnson & Page (2007) FLC 93-344

Jurchenko & Foster (2014) FLC 93-598

Loddington & Derringford (No 2) [2008] FamCA 925

M v M (1988) 166 CLR 69

Masson v Parsons (2019) 266 CLR 554

McCall & Clark (2009) FLC 93-405

N v S (1996) FLC 92-655

Napier & Hepburn (2006) FLC 93-303

Nikolakis & Nikolakis [2010] FamCAFC 52

Stott & Holgar [2017] FamCAFC 152

Division: Division 2 Family Law

Number of paragraphs: 186

Date of hearing: 19 – 21 October 2022, 28 – 29 March 2023, 14 April 2023

Place: Sydney

Counsel for the Applicant: Ms D Kaiti

Solicitor for the Applicant: Jacqui Griffin Mobile Solicitors

Counsel for the Respondent: Ms R Druitt

Solicitor for the Respondent: Frank Law

Counsel for the Independent Children’s Lawyer: M McConaghy

Independent Children’s Lawyer: Legal Aid NSW
ORDERS

PAC 761 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS TUCKER

Applicant

AND:
MR TUCKER

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE STREET

DATE OF ORDER:

14 April 2023

THE COURT ORDERS THAT:
1.That all previous orders made in relation to the child, X born in 2016 (‘X’), be and are hereby discharged.

Parental Responsibility
2.That the Father have sole parental responsibility for all major long-term decisions relating to the care, welfare and development of X.
3.That the Father consult the Mother in writing as to any significant proposed decision about X’s major health, education and religion before he makes the decision and will notify the Mother of the decision in writing as soon as reasonably practical.

Live with
4.That X shall live with the Father.

Spend Time with – Stage One (Centre-Based Supervision)
5.That unless otherwise agreed to between the Mother and Father in writing, X shall spend supervised time (centre-based supervision) with the Mother as follows:
(a)From the date of these Orders and for up to a period of two months (or at such other period as when Order 5(b) commences), under the supervision of B Contact Service, each alternate week for two hours at such times as nominated by B Contact Service AND IT IS NOTED that such time is to occur at the Centre.
(b)Thereafter, under the supervision of C Children’s Contact Service Suburb D, on one occasion every fortnight for a minimum period of two hours at such times as…

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 Tucker & Tucker

Details

AGLC: Tucker & Tucker [2023] FedCFamC2F 854
Case: [2023] FedCFamC2F 854
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia, Division 2, heard a parenting case between Tucker and Tucker, concerning their son X, born in 2016. The key legal issues involved determining the best parenting arrangements for X, considering the parents' drug abuse, family violence, and X's welfare. The court needed to decide whether the mother's drug addiction and history of family violence posed an unacceptable risk to X, and if so, what supervised contact arrangements would be appropriate. The court also had to weigh the importance of X maintaining a relationship with both parents against the need to protect him from harm. The court considered expert evidence, family reports, and the parents' and child's perspectives.

The court found that the mother's polysubstance abuse and recent car accident while under the influence of drugs posed an unacceptable risk to X. The court accepted that the mother was still addicted to amphetamines and likely other illicit drugs, which impaired her ability to care for X. The court found that unsupervised contact would not be in X's best interests at this time. However, the court also recognised the importance of X maintaining a relationship with his mother. The court ordered that X live with his father but spend time with his mother under strict supervised arrangements, with gradual progression to unsupervised contact as conditions were met. The orders included drug testing, restrictions on the mother's behaviour, and requirements for communication between the parents. The court aimed to balance X's need for protection with his right to a meaningful relationship with both parents.

Orders