Aleksandrov & Avellino
[2024] FedCFamC1F 594
•5 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Aleksandrov & Avellino [2024] FedCFamC1F 594
File number(s): BRC 11436 of 2017 Judgment of: BAUMANN J Date of judgment: 5 September 2024 Catchwords: FAMILY LAW – CHILREN – Where the parties separated prior to the child’s birth and have been engaged in litigation for a significant portion of the child’s life – Where the father suffered a serious injury in 2018 – Where the father is prescribed medicinal cannabis – Following negotiations and with the assistance of an Independent Children’s Lawyers, final consent Orders were reached resolving the substantive issues – Discrete issue remained in dispute as to further drug testing – Where the father reagitated the issue of the child travelling to New Zealand within his written submissions – No further orders made Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 27 Date of last submission/s: 25 October 2023 Date of hearing: 26 September 2023 Place: Brisbane Solicitor for the Applicant: Freedom Law Solicitor for the Respondent: Stolar Law Solicitor for the Independent Children's Lawyer: Pippa Colman & Associates Law Practice Pty Ltd ORDERS
BRC 11436 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ALEKSANDROV
Applicant
AND: MR AVELLINO
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
5 SEPTEMBER 2024
THE COURT ORDERS ON A FINAL BASIS:
1.That all outstanding parenting Applications be dismissed.
2.That the Independent Children’s Lawyer be discharged.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Aleksandrov & Avellino has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
On 26 September 2023, after a process of negotiation, the Applicant mother, Ms Aleksandrov, (“the mother”) and the Respondent father, Mr Avellino, (“the father”) reached final consent parenting orders in respect of their son X (born in 2015).
The Orders, which for context are Appendix One to these Reasons (“the said final Orders”), provided for X to live with the mother and to spend significant and substantial time with the father, under certain conditions (particularly Orders 7 and 14 to 16 inclusive). Extended school holiday time was to commence with an initial three day block in the June/July 2024 gazetted school holidays.
The conditions arose from, at least, concerns resulting from a serious injury suffered by the father in 2018. The assessed complications of that injury were the catalyst for the mother initiating her parenting proceedings 10 March 2020, after the parents had earlier reached final Orders by consent on 6 August 2019.
It is also a relevant context that the parents separated in January 2015 – some months before the birth of the child – and have been involved in litigation about X since 2017.
OUTSTANDING DISCRETE ISSUE
As the said final Orders reflect, the parents were unable to reach agreement on a regime for the father to undertake random hair follicle drug testing. The mother’s proposal, as set out in her written submissions filed 3 October 2023, was contended at paragraphs 1, 2 and 3 as follows:
1.That the father shall undergo random hair follicle drug testing as requested by the mother on one occasion during the period from the date of these orders to 20 June 2024 as follows:
a.That the father shall undergo such test within 7 days of receipt of such request from the mother in writing;
b. That the cost of such test is to be borne by the father; and
c.That such test is to be provided to the mother within 48 hours of receipt along with the father’s current prescription for cannabis, THC, or the like.
2.That the mother is at liberty to obtain a toxicology report regarding any test result produced by the father pursuant to order 1, for the purpose of ascertaining whether the result is in excess of the father’s prescription.
3.Should any such report indicate the father’s cannabis or THC use is in excess of his current prescription, the father’s time with the child shall be suspended until the father produces a hair follicle test and toxicology report indicating his use is not in excess of his current prescription with the father to bear the cost of the test and the toxicology report.
(As per original)
At paragraphs 4 to 32 of her written submissions, the mother’s solicitor explains the basis for the order sought.
Whilst the timetable directed by the Court ordered the Independent Children’s Lawyer to provide written submissions by 18 October 2023 (after the father’s submissions), in fact they were filed on 17 October 2023 with the father yet to file this written submission at that time. In essence, the Independent Children’s Lawyer supported one drug test, with a slightly different process than suggested by the mother.
The father, who was unrepresented in these proceedings (until 13 October 2023 when Stolar Law filed a Notice of Address for Service), filed written submissions on 25 October 2023. He contended that:
(a)he “fully refuses” to undergo any further hair follicle testing and refused to pay for any further testing as proposed by “the other party”; and
(b)he seeks to reagitate those parts of the said final Orders. In respect of this issue, the father refers to various, I infer, negotiations with the mother which he says lead him to believe his time with X during school holidays would increase beyond the four-night blocks (as ordered) and to step up to seven-night blocks from 12 December 2025. He says that “without [seven] consecutive days in the [Orders] how will [X] ever get to go to [New] Zealand to see his paternal family”.
Travel and regime of time
It is clear from the said final Orders that the issue of overseas travel to New Zealand was never consented to by the mother but remained an issue for the father – as Notation A of the said final Orders indicated “[t]hat the Court is currently unable on the evidence to predict when it would be in the best interests of the child to spend time in New Zealand with the paternal family.”
The Court is satisfied that when the father consented to the Orders made on 26 September 2023, he did so knowing that the agreed block of holiday time was capped at that time, being four nights. The Court was aware the father seeks to travel to New Zealand in the future so that the child can engage with the paternal family who live there, but that it would be impractical to do so if the visits were limited to four nights (taking into account travel time).
However, in 2023, the evidence did not support speculating when it might be in the best interests of X to spend more than four nights with the father – considering not only the child’s age and the concerns arising from the father’s medical history and more recent use of medicinal cannabis, but also the fact that three nights of school holiday time was only scheduled to commence in 2024, and not increase to four nights until 2025 and then no further.
Both parents were aware that the Court might consider in the future increasing time for the child to spend with the father (to allow for travel to New Zealand) depending on a number of factors, including the father’s compliance with the Orders made and the child’s ability to manage longer periods in the father’s care and being away from the mother. These future options were simply that – a matter for discussion in the future, where the parties had agreed on a process for alternative dispute resolution (at Orders 25 and 26).
In the circumstances where I find Orders were made, revisiting the regime of time cannot be considered at this time.
Drug testing
On their face, the orders sought by the mother were to require the father to undertake a hair follicle drug test before June 2024 when the first gazetted holiday block of three days during those school holidays was to have commenced (Order 8(a)). The timing of such test was adopted by the Independent Children’s Lawyer. As already noted, the father opposed any further testing.
It is a matter of regret, which the Court expresses, that due to an administrative oversight, that these Reasons were not published in a timely manner.
However, it is noted that the timetable for testing which the mother and the Independent Children’s Lawyer wished to impose has now expired. By June 2024, the unsupervised time X was to spend with the father that commenced in September 2023 for two days, one night (Order 6(a)), increased to two days, two nights on an alternate week basis.
No further application to reopen, whilst the Judgment on the hair follicle testing regime has been reserved, was made. Whilst this may not mean there have not been issues, the failure to do so (especially as to the delay in Judgment crept towards June 2024) is a matter that the Court has contemplated.
The basis for one further hair follicle test, on the case persisted by the mother and supported by the Independent Children’s Lawyer was founded on:
(a)a recording from a hair follicle test in 2021 of positive readings for marijuana;
(b)a recording from a hair follicle test in 2022 of positive for marijuana (carboxy THC) but negative readings for cannabinoid (CBD) for which the father has a prescription; and
(c)the failure of the father to submit to further testing as requested by the Independent Children’s Lawyer including a request made on 28 March 2023,
and the continuing concern that even if, as the father deposes, he has a prescription for use of medical cannabis for pain relief, that the levels detected could represent an overuse or, additional use of recreational marijuana, that combined makes the child potentially at risk of harm in the father’s unsupervised care.
One of the continuing concerns is that there is no probative medical evidence – and there is a level of uncertainty if such evidence could be obtained – that analyses the test results. At paragraph 21 of the submissions of the Independent Children’s Lawyer, she indicated she had requested both parties to agree for the results of the test from 2022 “to be provided to an independent expert as to prepare a toxicology report to show whether the results are in line with the father’s prescription”. Both parties informed the Independent Children’s Lawyer in early 2023 that they could not afford to pay for such a report (estimated at $1,100) and no order to do so has been made.
In such circumstances where neither party was prepared to pay (and certainly Legal Aid should not do so), further testing where the father has a prescription for medicinal marijuana would have limited utility.
Whilst the mother and the Independent Children’s Lawyer contend that further testing is required to provide “comfort” to the mother, that is not the absolute test to be applied.
The current final Orders provide an injunction at Order 7 restraining the father during the 48 hour prior to the commencement of him spending time with the child, against using alcohol or illegal substances, including medication prescribed by a registered medical practitioner not taken in accordance with any associated prescription.
There is no evidence that the father has been taking prescribed medication outside the limits prescribed. Furthermore, since September 2023, pursuant to Order 16, on the father’s written authority, the father’s treating health professionals are at liberty to “contact the mother, should they hold any concerns in relation to the father’s ongoing parental capacity that may place the child at risk of physical, emotional or psychological harm”. Again, there is no evidence of the mother receiving any such contact from the father’s treating health professionals.
Finally, whilst I acknowledge the caution expressed by social worker, Ms B in her family report dated 16 January 2023, the child X is approaching his birthday. He is strongly attached to his primary carer, the mother, who will have been informed by X whether any concerning behaviour of the father troubles him. This highly vigilant mother is likely to have engaged the child on the visits that have been occurring. Nothing has, since September 2023, been brought to the Court’s attention of any concern.
CONCLUSION
These parties, and of course X, deserve finality. Whilst I accept that the family has been in limbo because of the delay in these Reasons being published, on balance the Court did not regard it as necessary to initiate a further opportunity for the parties to make further submissions on this discrete issue.
In circumstances where the time for any hair follicle testing to be undertaken has expired and where, if it was now ordered, it seems little likelihood that any required expert analysis would occur, I see no utility in making the order sought.
In the exercise of my discretion, I therefore have decided to make no further orders in these current proceedings, other than to discharge the Independent Children’s Lawyer.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 5 September 2024
APPENDIX ONE
Definitions
1.That in these Orders:
(a)“the Applicant” and “the mother” means the Applicant mother, Ms Aleksandrov;
(b)“the Respondent” and “the father” means the Respondent father, Mr Avellino;
(c)“the parties” and “the parents” means the Applicant and Respondent together;
(d)“the child” means the child of the parties, X born in 2015.
Existing Orders
2.That all existing Orders are discharged.
Parental Responsibility
3.That except as otherwise provided for, the father and mother shall have equal shared parental responsibility for decisions concerning major long-term issues about the care, welfare, and development of X born in 2015 (“the child”).
4.That notwithstanding the provisions of Order 3 hereof:
(a)The father shall be responsible for the daily care, welfare, and development of the child when he is living or spending time with him;
(b)The mother shall be responsible for the daily care, welfare, and development of the child when he is living or spending time with her.
Lives With/Time With
5.That the child live with the mother.
6.That the child shall spend time with the father as agreed in writing, but failing agreement as follows:
(a)Commencing 16 September 2023, and each alternate week thereafter, from 9.00am Saturday until 10.00am Sunday;
(b)Commencing Friday, 2 February 2024, and each alternate week thereafter, from after school on Friday until 4.00pm on Sunday.
7.That during the forty-eight (48) hours immediately prior to the commencement of any period of time spent with the child, and during the time the child spends with the father, the father is restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of:
(a)alcohol;
(b)any illegal substance;
(c)medication prescribed by a registered medical practitioner not taken in accordance with any associated prescription.
School Holiday Time
8.That the child shall spend time with the father during all gazetted school holiday periods as agreed by the parents in writing and failing agreement as follows:
(a)In the June - July 2024 gazetted school holidays, from after school on Friday, 21 June 2024 until 4.00pm on Monday 24 June 2024 (being 3 nights).
(b)In September - October 2024 gazetted school holidays, from after school on Friday 13 September 2024 until 4.00pm on Monday 16 September 2024 (being 3 nights).
(c)In the December 2024 - January 2025 school holidays:
(i)from after school on Friday 13 December 2024 until 4.00pm on Monday, 16 December 2024 (being 3 nights); and
(ii)from 4.00pm on Friday 10 January 2025 until 4.00pm on Monday 13 January 2025 (being 3 nights).
(d)In the April 2025 gazetted school holidays from after school on Friday 4 April 2025 until 4.00pm on Tuesday 8 April 2025 (being 4 nights).
(e)In the June - July 2025 gazetted school holidays from after school on Friday 27 June 2025 until 4.00pm on Tuesday 1 July 2025 (being 4 nights).
(f)In the September - October 2025 gazetted school holidays from after school on Friday 19 September 2025 until 4.00pm on Tuesday 23 September 2025 (being 4 nights).
(g)In the December 2025 - January 2026 school holidays:
(i)from after school on Friday 12 December 2025 until 4.00pm on Tuesday 16 December 2025 (being 4 nights);
(ii)from 4.00pm on Friday 26 December 2025 until 4.00pm on Tuesday 30 December 2025 (being 4 nights);
(iii)from 4.00pm on Friday 9 January 2026 until 4.00pm on Tuesday 6 January 2026 (being 4 nights).
(h)From 2026 onwards during the Easter, June- July and September-October school holiday period:
(i)For the first half of the school holiday period commencing after school on the last day of the school term, until 4.00pm after the lapse of four (4) nights in the school holiday period;
(ii)In even numbered years in the second half of school holidays from 4.00pm on the Monday of the second week until 4.00pm on the Friday of the second week.
(i)From December 2026 onwards during the December school holiday period:
(i)In odd numbered years for weeks, 1, 3, 5 and 7 (if applicable) for four (4) nights from Monday to Friday;
(ii)In even numbered years for weeks 2, 4, 6 and 8 (if applicable) for four (4) nights from Monday to Friday;
(iii)Where changeovers shall take place at 4.00pm after the lapse of each four (4) night period commencing from the last day of the school term;
(iv)The child shall return to live with the mother prior to the last day of school holidays.
Special Days
9.That if the child is not in the father’s care for Father’s Day, the child shall spend time with the Father from 4.00pm on the Saturday immediately prior to Father’s Day until 4.00pm on Father’s Day.
10.That if the child is not in the mother’s care for Mother’s Day, the child shall spend time with the mother from 4.00pm on the Saturday immediately prior to Mother’s Day until 4.00pm on Mother’s Day.
11.That the child spend time with the parents at all times as agreed between the parents in writing during the Easter period and failing agreement:
(a)in even numbered years, commencing 2024:
(i)with the father from 9.00am on Easter Saturday until 12.00pm on Easter Sunday; and
(ii)with the mother from 12.00pm on Easter Sunday until 4.00pm on Easter Monday.
(b)In odd numbered years, commencing 2025:
(i)with the mother from 9.00am on Easter Saturday until 12.00pm on Easter Sunday; and
(ii)with the father from 12.00pm on Easter Sunday until 4.00pm on Easter Monday.
12.That the child spend time with the parents at all times as agreed between the parents in writing during the Christmas period and failing agreement:
(a)in odd numbered years, commencing 2023:
(i)with the mother from 9.00am on Christmas Eve until 2.00pm on Christmas Day; and
(ii)with the father from 2.00pm on Christmas Day until 5.00pm on Boxing Day.
(b)in even numbered years, commencing 2024:
(i)with the father from 9.00am on Christmas Eve until 2.00pm on Christmas Day; and
(ii)with the mother from 2.00pm on Christmas Day until 5.00pm on Boxing Day.
Changeover
13.That unless otherwise agreed between the parents in writing, changeover shall occur at the child’s school on school days, and otherwise at the Suburb D Service Station.
Father’s health
14.That the father shall continue to engage with his specialist medical practitioners and general practitioner as is recommended by them, and provide evidence to the mother of such engagement upon request, with such requests to not be made more often than on a six monthly basis.
15.That pursuant to s 121 of the Family Law Act 1975 (Cth), the father be granted leave and is directed to provide to his specialist medical practitioners and general practitioner and with a copy of:
(a)these Orders;
(b)the affidavits of Ms B filed 21 October 2020 and 17 January 2023 annexing the family reports prepared in these proceedings; and
(c)the affidavit of Dr E filed 10 January 2023 annexing the father’s medical assessment;
and shall provide evidence to the mother in writing of his compliance with same.
16.That the father shall provide an authority to his treating health professionals (including but not limited to those in the immediately preceding Orders) that they are at liberty to contact the mother, should they hold any concern in relation to the father’s ongoing parental capacity that may place the child at risk of physical, emotional or psychological harm, and for that purpose:
(a)the father shall be granted leave to, and is directed to, provide a copy of these Orders to any such practitioner; and
(b)the father shall send the mother a copy of that authority upon providing same to any treating medical practitioner, along with the details of such practitioner if requested by the mother.
Communication
17.That the parent with whom the child is not living with at the time shall be at liberty to communicate with the child via video call or Facetime when they are not in their care at any time as agreed between the parents in writing, and failing agreement, between 5.00pm until 5.30pm each Tuesday and Thursday and for that purpose:-
(a)the parent with whom the child is living with at the time shall ensure that the child is available to take the call;
(b)the parent with whom the child is living with at the time shall ensure that the child is afforded privacy during the calls; and
(c)the parent with whom the child is not living with at the time is to initiate the call to the phone of the parent with whom the child is living with at the time.
18.That in the event the child expresses a desire to speak to the parent with whom the child is not living with at the time, at any reasonable time, the parent with whom the child is living with shall do all such things necessary to facilitate same.
19.That the parents shall communicate via AppClose (“the App”), or such other agreed parenting app, only in relation to issues involving the child, unless in a case of an emergency where the parents will communicate by telephone.
20.That the parents will each pay their own costs to register with the App, if any, and the ongoing annual renewal fees.
General
21.That the parents shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent, and will use their best endeavours to ensure that no other person does same;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the child, and will use their best endeavours to ensure that no other person does same;
(d)Communicate to each other in a polite and respectful manner;
(e)Be restrained from communicating adult issues, including any court proceedings, with the child and in the presence of the child, and will use their best endeavours to ensure that no other person does same;
(f)Keep each other informed at all times of their contact telephone number and email address and inform the other of any change to same within 24 hours of such change taking place;
(g)Keep each other informed of the names and addresses of any treating medical or other allied health practitioners who treats the child and authorise those practitioners to provide to the other parent with information that they are lawfully able to provide about the child;
(h)Inform each other immediately of any medical condition, significant health issue or significant illness suffered by the child;
(i)Should either parent reside with any other person, that parent shall obtain a criminal history background check and provide a copy of same to the other parent, prior to that person commencing residing with the parent.
(j)The child shall not spend time in either parent’s residence if the parent is residing with any person who has a convicted criminal history of:-
(i)Any offences relating to drugs;
(ii)Any offences in relation to children;
(iii)Any sexual offences;
(iv)Any offences involving violence.
22.That these Orders be sufficient authority to enable each party (at their own expense) to:
(a)Obtain copies of all school reports, photographs and any other documents relevant to the child’s schooling;
(b)Contact any medical practitioner or other allied health practitioner who is treating the child to release and provide to each parent any information or documents as that parent requests from time to time, with the cost of provision to be borne by the party requesting the information;
(c)Authorise both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays, parent/teacher interviews and extracurricular activities;
(d)Provide an authority, and does so by this Order, to the child’s school or day care provider/s to provide copies of notices, school reports, school photo order forms, school newsletters, behaviour progress reports and generally liaise with and discuss with both parents the ongoing progress and behaviour of the child.
23.That the mother and father shall make arrangements for the child to attend with Ms B, for the purpose of Ms B explaining the Orders to the child, about his father’s medical condition and the effects of his condition, and to ensure that the child is able to safety plan if any issues arise during his time with his father. For the purpose of this Order the mother and father shall equally attend to payment of Ms B fee in respect of same.
24.That the father shall facilitate the child’s attendance at any extra-curricular activities that the child is involved in, which occurs during the child’s time with the father.
25.That should the father be unavailable to personally care for the child due to illness, work commitments or any other reason, the father shall give the mother the option of having the child returned to her care in the first instance, before other care arrangements are made.
Alternative Dispute Resolution
26.That the process to be used for resolving future disputes about the child or reviewing the terms of this Order shall be as follows:
(a)A Family Dispute Resolution Practitioner shall be appointed by the parent raising a dispute or issue;
(b)The parents shall consult with the Family Dispute Resolution Practitioner to assist with resolving any dispute in relation to the child or reaching agreement about changes to be made to the parenting arrangements for the child; and
(c)They shall pay the costs of the Family Dispute Resolution Practitioner equally.
27.That unless there are some emergent circumstances before an application is made to a Court for a variation of this Order to take into account the changing needs of the child each party is to take steps referred to in the preceding clause.
THE COURT ORDERS UNTIL FURTHER ORDER:
28.That the Court having made final orders today but noting that the mother presses for an additional order which is not consented to by the father the remaining issue will be dealt with as follows:
(a)The mother shall by 4.00pm Wednesday 4 October 2023 file and serve a written submission setting out the additional order sought by the mother and the reasons why such an order on the evidence is in the best interests of the child as to the outstanding issue;
(b)The father shall by 4.00pm on 11 October 2023 file and serve a written submission in response to the mother’s written submission: and
(c)The Independent Children’s Lawyer shall by 4.00pm on 18 October 2023 file and serve any written submission in respect of the issues.
29.That unless otherwise ordered by the Court, the remaining issue be determined on the papers in Chambers.
30.That the final hearing dates listed to commence for two (2) days on 2 November 2023 be vacated.
IT IS NOTED:
A.That the Court is currently unable on the evidence to predict when it would be in the best interests of the child to spend time in New Zealand with the paternal family.
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