FEDERAL CIRCUIT COURT OF AUSTRALIA
Arnetts & Arnetts [2021] FCCA 1553
File number(s): BRC 13616 of 2019 Judgment of: JUDGE CASSIDY Date of judgment: 8 July 2021 Catchwords: FAMILY LAW – drug and alcohol misuse – history of domestic violence – mental health problems – where the paternal grandmother and paternal grandfather are interveners – where the father sought that two children live with him and there be an equal time arrangement with the other two children – where the mother adopts the ICL’s proposal – where the ICL proposes that the mother have sole parental responsibility and that the children live with the mother Legislation: Family Law Act 1975, ss 60B, 60CA, 60CC(2), (2)(a), (2A), (3), (3)(a)-(c), (3)(f), 60CG, 61DA(1). Cases cited: Barrett & Barrett and Anor [2017] FamCAFC 4
Betros & Betros [2017] FamCAFC 90
Briginshaw v Briginshaw [1988] FLC 91-957
Donaghey & Donaghey [2011] FamCA 13
TF & JF [2005] FamCA 394
George & Nichols [2016] FamCA 519
Heath & Hemming (No. 2) [2011] FamCA 749
Horan & Beckett [2010] FamCAFC 200
Jones v Dunkel 101 CLR 298
M v M [1988] FLC 91-979
McCall & Clark [2009] FamCAFC 92
Moose & Moose(2008) FLC 93-375
Sigley v Evor (2011) 44 Fam LR 439
T and N (2003) FLC 93-172Number of paragraphs: 179 Date of last submission/s: 11 June 2021 Date of hearing: 3, 4 and 11 June 2021 Place: Brisbane Solicitor for the Applicant McCarthy Durie Lawyers – Brisbane Office Counsel for the Applicant Ms Hillard Solicitor for the First Respondent Self-Represented Solicitor for the Second Respondent Self-Represented Solicitor for the Third Respondent Gary Rolfe Solicitors Counsel for the Third Respondent Mr Trost Solicitor for the Independent Children’s Lawyer Legal Aid Queensland Counsel for the Independent Children’s Lawyer Ms Dart ORDERS
BRC 13616 of 2019 BETWEEN: MS ARNETTS
Applicant
AND: MR ARNETTS
First Respondent
MR B ARNETTS
Second Respondent
MS C ARNETTS
Third Respondent
LEGAL AID QUEENSLAND
Independent Children’s Lawyer
ORDER MADE BY:
JUDGE CASSIDY
DATE OF ORDER:
8 JULY 2021
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting Orders and Undertakings be discharged.
Parental responsibility
2.That the mother have sole parental responsibility for the major long term issues of the children W born in 2005, X born in 2008, Y born in 2012 and Z born in 2015 (“the children”).
Lives with/spends time with
3.That the children live with the mother.
Phase one
4.That the children spend supervised time with the father:
(a)For two hours each week supervised by a Contact Centre agreed in writing between the parents and failing agreement the D Children’s Contact Centre (“the Contact Centre”).
(b)If Father’s Day falls within this phase, for an additional two hours on the Father’s Day weekend if the Contact Centre can facilitate this time.
(c)If Christmas falls within this phase, for an additional two hours on a date close to Christmas Day that the Contact Centre can facilitate.
5.In order to facilitate Order four (4):
(a)Within seven (7) days of…
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- Case
- [2021] FCCA 1553
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate parenting arrangements for the children, considering the father's history of drug use, non-compliance with previous orders, and mental health concerns. Specifically, the court needed to decide on the extent of parental responsibility, where the children would live, the nature and duration of time the children would spend with the father, and the involvement of the paternal grandparents in the children's lives. The court also had to consider conditions and safeguards necessary to ensure the children's safety and well-being.
Justice Cassidy made final orders discharging all previous parenting orders and undertakings. The mother was granted sole parental responsibility for long-term issues, and the children were ordered to live with her. The father's time with the children was to be phased, commencing with supervised contact at a contact centre, with specific conditions regarding his engagement in programs, drug and alcohol testing, and psychiatric assessment. The paternal grandmother's time with the children was also to be supervised until the father's time progressed to unsupervised contact, due to concerns about her ability to resist the father's requests and her understanding of the risks he posed. The paternal grandfather was permitted unsupervised time with the children, with specific orders restraining the father and paternal grandmother from attending locations where the grandfather was spending time with the children. The orders also included provisions for communication, exchange of information, and prohibitions against drug and alcohol consumption by the parents while the children were in their care.
Orders
Orders of the court
BRC 13616 of 2019
BETWEEN:
MS ARNETTS
Applicant
AND:
MR ARNETTS
First Respondent
MR B ARNETTS
Second Respondent
MS C ARNETTS
Third Respondent
LEGAL AID QUEENSLAND
Independent Children’s Lawyer
ORDER MADE BY:
JUDGE CASSIDY
DATE OF ORDER:
8 JULY 2021
THE COURT ORDERS ON A FINAL BASIS:
1. That all previous parenting Orders and Undertakings be discharged.
Parental responsibility
2. That the mother have sole parental responsibility for the major long term issues of the children W born in 2005, X born in 2008, Y born in 2012 and Z born in 2015 (“the children”).
Lives with/spends time with
3. That the children live with the mother.
Phase one
4. That the children spend supervised time with the father:
(a) For two hours each week supervised by a Contact Centre agreed in writing between the parents and failing agreement the D Children’s Contact Centre (“the Contact Centre”).
(b) If Father’s Day falls within this phase, for an additional two hours on the Father’s Day weekend if the Contact Centre can facilitate this time.
(c) If Christmas falls within this phase, for an additional two hours on a date close to Christmas Day that the Contact Centre can facilitate.
5. In order to facilitate Order four (4):
(a) Within seven (7) days of the date of this Order, if they have not already done so, both parents are to contact the Contact Centre and are to do all acts and things necessary to register with the Contact Centre and attend when required for an intake interview.
(b) The father is responsible for the costs associated with the parent’s intake appointment and all Contact Centre fees associated with the children spend time with the father.
(c) Both parents shall comply with the reasonable requests, rules or directions of the staff of the Contact centre.
(d) Both parents shall comply with any appointments made by the Contact Centre for supervised time.
(e) The father is at liberty to bring the paternal grandparents to the Contact Centre visits, subject to the rules of the Contact Centre.
(f) The parents are at liberty to provide a copy of these Orders to the Contact Centre.
6. The father is at liberty to send gifts and cards to the children at the mother’s nominated address and the mother has liberty to peruse these to ensure they contain content suitable for the children before providing them to the children.
Phase two
7. Upon the father providing to the mother by email:
(a) Evidence of completion of the E Community Centre Men Choosing Change Program, or similar program;
(b) Evidence of completion of the Parenting Orders Program;
(c) Hair follicle drug and alcohol test results that are negative for illicit substances, prescription medication the father does not have a prescription for and demonstrate no use to low range alcohol use;
(d) A report/letter from the father’s treating psychiatrist setting out the father’s diagnosis, if any, treatment recommended and compliance with treatment;
The children will spend time with the father:
(i) For a period of two months, each Saturday from 9.00am to 5.00pm;
(ii) Thereafter for a period of two months each alternate weekend from 9.00am Saturday to 5.00pm Sunday;
(iii) If Christmas falls within this phase from 9.00am to 12 noon Christmas Day;
(iv) Via telephone/video call each Tuesday and Thursday between 7.00pm and 8.00pm, with the father to initiate the call to the nominated telephone number of the mother.
Phase three
8. At the conclusion of the four -month period set out in Order 7(i) and (ii) the children will spend time with the father:
(a) Each alternate weekend from after school/3.00pm Friday to before school/9.00am Monday, with the father to take the children to school on the Monday mornings when they are in his care;
(b) Via telephone/video call each Tuesday and Thursday between 7.00pm and 8.00pm, with the father to initiate the call to the nominated telephone number of the mother;
(c) One half of all gazetted school holiday periods, being the first half in odd numbered years and in alternate years thereafter and the second half in even numbered years and in alternate years thereafter, and any provision for time in this Order that is inconsistent with school holiday time be suspended during school holiday periods.
(d) For the Father’s Day weekend from after school Friday to before school Monday, with the father to take the children to school on Monday mornings when they are in his care.
Christmas
9. When the children are spending time with their father pursuant to phase three in Order 8, the children will spend time with their parents over the Christmas period:
(a) That in all even numbered years:
(i) The children spend time with the father from 12 noon Christmas Eve until 12 noon Christmas Day; and
(ii) That the children spend time with the mother from 12 noon Christmas Day until 12 noon Boxing Day.
(b) That in all odd numbered years:
(i) The children spend time with the mother from 12 noon Christmas Eve until 12 noon Christmas Day; and
(ii) That the children spend time with the father from 12 noon Christmas Day until 12 noon Boxing Day.
Birthdays
10. When the children are spending time with their father pursuant to phase three in Order 8, the children will spend time with their parents on birthdays as follows:
(a) The children’s birthday;
(b) The mother’s birthday; and
(c) The father’s birthday
At times to be agreed in writing between the mother and father, and failing agreement, the children shall spend time with the father from 3.00pm to 7.00pm on those birthdays and the mother at all other times on those days, and that any provision of time under this Order that is inconsistent with this Order be suspended.
Family dispute resolution
11. No earlier than six months after time commences pursuant to Order 8 and provided that the father is compliant with hair follicle drug and alcohol testing and mental health treatment, the parents will attend family dispute resolution to discuss equal shared parental responsibility and the progression to an equal time arrangement, with the parents bearing their own costs of the family dispute resolution conference.
Mother’s Day weekend
12. The children will remain in the mother’s care on the Mother’s Day weekend and any provision under these Orders that is inconsistent with this Order be suspended.
Make up time
13. In the event the mother intends to take the children on a holiday, the mother will provide the father with no less than 30 days’ notice via email to the father, and make-up time will be arranged at the Contact Centre between the children and their father for any time missed while the children are on holidays on whatever days or times the Contact Centre can facilitate.
14. In the event the mother intends to take the children on a holiday, the mother will provide the paternal grandmother with no less than 30 days’ notice via email to the paternal grandmother, and make-up time will be arranged at the Contact Centre between the children and their paternal grandmother for any time missed while the children are on holidays on whatever days or times the Contact Centre can facilitate.
15. In the event the mother intends to take the children on a holiday, the mother will provide the paternal grandfather with no less than 30 days’ notice via email to the paternal grandfather, and make up time with be arranged between the paternal grandfather.
The children’s time with the Paternal Grandfather Mr B Arnetts
16. That the paternal grandfather Mr B Arnetts is:
(a) At liberty to spend time with the children as agreed in writing with the mother and failing agreement, for no less than two hours on the first Sunday of the month;
(b) At liberty to communicate with the children by way of email or telephone at any time;
(c) Restrained from allowing the children to come into contact with or communicate with the father or the paternal grandmother unless otherwise permitted by these Orders;
(d) At liberty to attend school events that family members are invited to attend.
17. While Orders 4 and 16 are in place, the paternal grandmother and father are restrained from attending any location where they are aware the children are spending time with the paternal grandfather.
18. While Orders 4 and 16 are in place, that should the father and paternal grandmother attend the location where the paternal grandfather is spending time with the children, the paternal grandfather shall remove them from that location. In the event the paternal grandmother or father continue to seek contact with the children on that occasion, the paternal grandfather will immediately arrange for the children to return to their mother.
The children’s time with the Paternal Grandmother Ms C Arnetts
19. Until such time as the children are spending unsupervised time with the father, that the paternal grandmother is at liberty to spend time with the children for a period of two hours each month at the Contact Centre set out in Order 4(a), separate to time the children spend with the father, on dates and times to be nominated by the Contact Centre.
20. In order to facilitate Order 16:
(a) Within seven (7) days of the date of this Order, if they have not already done so, the mother and paternal grandmother are to contact the Contact Centre and are to do all acts and things necessary to register with the Contact Centre and attend when required for an intake interview.
(b) The paternal grandmother is responsible for the costs associated with the parties intake appointment and all Contact Centre fees associated with the children spending time with the paternal grandmother.
(c) The mother and paternal grandmother shall comply with the reasonable requests, rules or directions of the staff of the Contact centre.
(d) The mother and paternal grandmother shall comply with any appointments made by the Contact Centre for supervised time.
(e) The mother and paternal grandmother are at liberty to provide a copy of these Orders to the Contact Centre.
21. When the children are spending time with the father pursuant to phases 2 and 3, Orders 7 and 8 of these Orders, the paternal grandmother is at liberty to spend time with the children while they are in their father’s care with the father’s consent.
22. The paternal grandmother will not attend the children’s schools and school events without the mother’s written consent.
23. The paternal grandmother is at liberty to send gifts and cards to the children to the mother’s nominated address and the mother has liberty to peruse these to ensure they contain content suitable for the children before providing them to the children.
Changeover
24. For the purpose of Orders 7, 8, 9, 10 unless otherwise agreed in writing between the parents, changeover shall occur at McDonalds at Suburb F and the parents will not approach within 10 metres of each other at changeover.
25. Should the parents come into contact at changeover they will not expose the children to conflict between the parents, including but not limited to denigration.
26. The paternal grandmother will not attend and is restrained from attending changeover.
Suspension of unsupervised time with the father
27. The children’s time with the father pursuant to Orders 7, 8, 9, 10 is conditional upon the father’s compliance with hair follicle drug and alcohol testing, compliance with mental health treatment and not contravening the Protection Order.
The children’s time with the father in Orders 7, 8, 9, 10 will be suspended in the event that the:
(a) Father’s hair follicle drug test results are not clear as defined in Order 28(k);
(b) Father’s hair follicle alcohol test results demonstrate high range alcohol use as defined in Order 28(l);
(c) Father’s non-compliance with treatment or medication prescribed by his treating psychiatrist, psychologist or medical practitioners; or
(d) There is a significant deterioration in the father’s mental health such that he is hospitalised, subject of an Emergency Examination Order or is admitted under the Mental Health Act as a result of his mental health;
(e) The father is convicted of a breach of the Protection Order committed from the date of these Orders, naming the mother as the aggrieved
THEN the children’s time with the father will revert to phase one in Order 4 and will only progress to phase two and three when the father provides to the mother:
(f) Hair follicle drug and alcohol test results that are negative for illicit substances, prescription medication the father does not have a prescription for and demonstrate no use to low range alcohol use if the non-compliance relates to Orders 28 (a) and/or (b); and
(g) A report/letter from the father’s treating psychiatrist setting out the father’s mental health is stable and he is not a risk to the children if the non-compliance relates to Orders 28(c) - (d). The father must provide to the treating psychiatrist providing the report/letter a copy of the Affidavit of Dr G filed 14 July 2020 and a copy of these Orders, with leave hereby given to the father to do so, and with the letter/report to include confirmation of receipt and consideration of those documents; and
(h) Evidence of completion of any courses the father has been ordered to attend as part of any sentence if the non-compliance relates to Order 28(e).
Drug and alcohol testing
28. That the mother is at liberty to request that the father undertake hair follicle drug and alcohol testing and for that purpose:
(a) Such requests occur no more than once every three months and continue for no more than two consecutive years from the date of the first hair follicle test being completed by the father pursuant to these Orders;
(b) Requests must be sent via email to Mr Arnetts;
(c) The father must undertake the test within 7 days of the request by the mother;
(d) The father is responsible for the costs of the testing;
(e) That the father make appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug and alcohol testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing;
(f) The hair drug and alcohol test must screen for alcohol EtG and drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolite.
(g) The father is to provide the collector with photographic identification to be recorded before each hair collection;
(h) This Order authorises AWDTS or nominee to provide the results of each test to both the father and the mother;
(i) In the event AWDTS does not provide the results to the mother, the father will provide the results to the mother within 24 hours of receiving same;
(j) The parents are at liberty to provide a copy of these Orders to AWDTS;
(k) The drug tests shall be taken to be “clear” if the results are negative for all illicit substances, and the father provides a letter from his General Practitioner outlining that the father has a prescription for any prescription medication shown, and the amounts of the prescription medication is within the limits provided for by the prescription;
(l) The alcohol tests shall be taken as “clear” if they show no to low range alcohol use;
(m) In the event that the father fails to undertake the test and/or provide the results to the mother, the results are deemed no clear and the children’s time with the father will revert to phase one in Order 4 until the father provides clear results.
Medical
29. The father will attend upon a psychiatrist for treatment and for that purpose:
(a) The father will provide, and is hereby given leave by the Court to provide, a copy of the Affidavit of Dr G filed 14 July 2020, a copy of the Protection Order dated 4 August 2020 and a copy of his criminal history and these Orders to the psychiatrist;
(b) The father will use his best endeavours to follow and not unreasonably refuse to comply with, all directions from the psychiatrist, including but not limited to:
(i) Attending upon all appointments recommended;
(ii) Engaging in all treatments as recommended including attendance upon a psychologist or other mental health care professional as directed by that professional for as long as therapeutically indicated;
(iii) Taking all medications as prescribed.
30. The father shall provide an irrevocable authority in the following terms:
That this Order shall be authority for the mother to obtain information from the father’s psychiatrist or other treating mental health care professional no more than once every two months for a period of two years after the father has commenced engaging in treatment with his treating psychiatrist as provided for in these Orders, confirming:
(a) The father’s compliance with Order 29;
(b) Whether there has been any significant deterioration in the father’s mental health or hospitalisation;
(c) Whether the father has been subject to an Emergency Examination Order;
(d) Whether the father has been admitted under the Mental Health Act; and/or
(e) Whether he/she has any concerns about the risk to the children being in the father’s care and such report/letter will be at the father’s cost.
31. That the father keep the mother informed in writing at all times of the names and contact details for his treating psychiatrist and any other mental health professionals, and advise of any change within seven (7) days of such change.
Exchange of information
32. The father shall use his best endeavours to have his agent inform the mother immediately if:
(a) The father is admitted to hospital, or is subject to an Emergency Examination Order or is admitted under the Mental Health Act or attends the hospital emergency department and the reason for the attendance;
(b) The father enters a drug rehabilitation program;
(c) The father is charged with any criminal offence or a driving offence involving alcohol;
(d) The father is the aggrieved, respondent or named person (if he is aware he is a named person) in a Protection Order or Temporary Protection Order.
33. That each parent shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue, significant illness or injury suffered by the children and authorise any treating medical practitioner to release the children’s medical information to the other parent.
34. That each parent shall keep the other informed of the children’s doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children and this Order shall serve as such authority.
35. That each parent shall keep the other informed of any school, educational facility or extracurricular activity provider and authorise those providers to provide the other parent with information that they are lawfully able to provide about the children.
36. That if there is a cost associated with the provision of any information or documents under these Orders from the children’s doctors, health care and other treatment providers or school, educational facility or extracurricular activity provider the expense shall be borne by the parent requesting the information.
37. The parties will keep each other informed of a contact address, email address and telephone number.
Specific issues
38. The parties will ensure that the children are not left in the care of the paternal uncle Mr H.
39. The mother will facilitate the children communicating via electronic means with their cousins including her sister Ms J’s children.
40. Both parents are restrained, and an injunction is hereby issued, from consuming illicit substances whilst the children are in their care, or allowing the children to come into contact with persons who they reasonably believe are under the influence of illicit substances, or having or otherwise allowing illicit substances to be kept at their premises whilst the children are in their care.
41. That the parties shall not consume alcohol above the legal driving limit, whilst the children are in their care or twenty-four (24) hours prior to the children coming into their care.
42. That during the time the children are with any of the parties they shall:
(a) Respect the privacy of the other parties to this matter and not question the children about the personal life of the other parties;
(b) Speak of the other parties respectfully;
(c) Not use the children to convey messages to another party, that are adult issues or concern arrangements for the children’s health and welfare;
(d) Not denigrate or insult the other parties in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parties in the hearing or presence of the children;
(e) Not attempt to discuss any issues in dispute between the parties or adult issues, with the children, or allow a third party to do so;
(f) Not discuss these court proceedings with the children;
(g) Not show or read court documents to the children;
(h) Not physically discipline the children.
43. That all parties are at liberty to release the Family Report and the Psychiatric Report and this judgment to any treating professional they or the children may attend.
44. That the Independent Children’s Lawyer be discharged save for any appeal.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
The parents and the paternal grandparents lived together on a block of land at Suburb F. The parents and the children lived in the larger home and the paternal grandparents lived in the smaller home on the block.Parenting Arrangements Post Separation The parties separated on about 30 August 2019. The mother left the former matrimonial home with Mr K, Y and Z. The father’s evidence is the parties had an informal agreement that the boys would live with the father and the girls would be in an equal time shared care arrangement. In around 12 September 2019, the girls were spending time with the father by agreement of the parents. The mother commenced these proceedings on 11 November 2019. There was a supervised visit with the father and the two girls. The father brought X and the paternal grandmother to the visit on 24 November 2019. The centre notified the father that brining X and the paternal grandmother to the visit was in breach of the “Service Agreement”. On 4 December 2019, Orders were made by consent (in summary) for:(1)Mr K, Y and Z to live with the mother and X and W to live with the father;(2)Hair follicle drug testing of the parents; and(3)The parents to complete a Triple P Parenting Course, a Parenting Orders Program, a Circle of Security course and to engage with a psychologist. On 6 December 2019, the father undertook a hair follicle test. The result was positive for Methamphetamine. On 8 December 2019 there was a second contact visit. The father was again in breach of the Service Agreement because he brought X to the visit and provided the children with letters. The supervisor then removed from the children. On 22 December 2019 there was another supervised visit organised but it was cancelled because the father did not pay the fees. On 20 January 2020 there was another supervised visit arranged, but the father failed to attend. On 20 February 2020 Orders were made by consent (in summary) for: (1)X and W to spend alternate weekends with the mother;(2)Y and Z to spend supervised time with the father, with such time to be supervised by the P Contact Centre, it being in the discretion of the contact centre as to who can attend the visits;(3)The paternal grandparents to supervise the father’s time with W and X; and(4)The father not to use illicit substances. On 19 March 2020, the mother’s affidavit records the following:[4]at approximately 6:30pm, Mr Arnetts drove W and X to Q Street, the street I was living at with Mr K, Y and Z. Upon entering Q Street, Mr Arnetts left W and X on the side of the road, approximately 50 metres down the road from my house. When W and X got out of Mr Arnetts's car they were left standing on the side of the road by Mr Arnetts. W and X walked to my residence each carrying numerous plastic bags containing their clothing and other possessions. After W and X got out of Mr Arnetts's car, Mr Arnetts drove laps around the block and only left Q Street when my neighbour told him to leave the street.[4] Affidavit of Ms Arnetts filed 4 May 2021 at paragraph 169.