Binsted & Kimpton
[2022] FedCFamC1F 512
•18 July 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Binsted & Kimpton [2022] FedCFamC1F 512
File number: CAC 1444 of 2020 Judgment of: GILL J Date of judgment: 18 July 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where applicant father failed to file material according to directions for trial – Matter proceeded undefended, though with his attendance – Directions given for further opportunity for father to file material for further hearing in 12 months.
FAMILY LAW – CHILDREN – Interim orders made where equal parental responsibility given to the mother and paternal grandmother – Where the children live with the paternal grandmother, with increasing time with the mother – Where the children’s respective fathers pose an unacceptable risk – Where the mother has taken positive steps to improve her circumstances – Where the Court will review the care arrangements in six months.
Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 18 July 2022 Place: Canberra Solicitor for the Applicant: Rodney Kennedy Solicitors Pty Ltd Counsel for the First Respondent: Mr Stagg Solicitor for the First Respondent: Dillon-Smith Lawyers Counsel for the Second Respondent: Mr Masters Solicitor for the Second Respondent: Kennedy & Cooke Solicitor for the Third Applicant: No appearance Counsel for the Independent Children’s Lawyer: Ms Yu Solicitor for the Independent Children’s Lawyer: Venus & Smart ORDERS
CAC 1444 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BINSTED
Applicant
AND: MS KIMPTON
First Respondent
MS GEMMELL
Second Respondent
MR DENFERT
Third Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
GILL J
DATE OF ORDER:
18 JULY 2022
THE COURT ORDERS, UNTIL FURTHER ORDER, THAT:
1.All previous Orders are hereby discharged.
Parental Responsibility
2.That the First and Second Respondents have equal shared parental responsibility for X (“X”), born in 2016, and Y (“Y”), born in 2017 (“the children”).
Arrangements for the Children Living with and Spending time with the First Respondent and Second Respondent
3.That the children live with the Second Respondent.
4.That the children spend time with the First Respondent by agreement but failing agreement as follows:
(a)from 2.00 pm to 4.00 pm on alternate Saturdays for a period of (6) six weeks commencing from the date of these Orders;
(b)at the expiry of Order 4a, from 12.00 pm to 4.00 pm on alternate Saturdays for a period of 6 weeks commencing from the date of these Orders;
(c)From the Saturday immediately following the expiry of Order 4b, from 9.00 am to 5.00 pm on alternate Saturdays for a period of (6) six weeks; and
(d)at the expiry of Order 4c, from 9.00 am Saturday to 5.00 pm Sunday on alternate weekends.
5.That the First Respondent spend time with the children in the school holidays and on special occasions by agreement but failing agreement;
(a)For one day as agreed for each week of the school holiday period from 9.00 am to 5.00 pm;
(b)On X’s birthday in 2022 from 1.00 pm until 4.00 pm.
(c)On First Respondent’s birthday from 3.00 pm until 6.00 pm.
(d)On Mother’s Day 2023 from 9.00 am Saturday until 5.00 pm Sunday
(e)On Christmas from 2.00 pm Christmas Eve until 11.00 am Christmas Day.
6.That the First Respondent spends time with Y on Y’s birthday in 2022 from 1.00 pm until 4.00 pm.
7.For the purposes of facilitating Orders 4–6, changeovers shall take place by agreement between the First and Second Respondent and failing agreement at Children’s Playground at D Shopping Centre, C Town NSW.
8.For the purposes of facilitating Orders 4(d) and (e), the First Respondent shall ensure that there is a separate bedroom with separate beds for the children that is not occupied by any other persons during the time spent by the children with the First Respondent.
9.That on the week the children are to see the First Respondent, the children shall speak with the First Respondent by telephone or video at 5.00 pm on Thursday and on the week that the children do not see the First Respondent each Thursday and Sunday at 5.00 pm. For the purposes of this Order:
(a)The First Respondent shall initiate such calls or communications; and
(b)The Second Respondent shall ensure that the children are available to receive the First Respondent’s calls or communications.
Injunctions
10.That the children spend no time with the Applicant Mr Binsted and that the Applicant be restrained by injunction from approaching or contacting either the First or Second Respondents or the children.
11.That the First and Second Respondents are restrained by injunction from permitting the children to have any contact whatsoever with Mr Denfert and Mr Binsted.
12.That the First Respondent be restrained by injunction from permitting the children to have any contact with Mr B unless the First Respondent is present throughout the contact.
13.Each party is hereby restrained by injunction from:
(a)Discussing these proceedings in the child’s presence or hearing, and each party shall use their best endeavours to ensure that no other person does so in the child’s presence or hearing, and immediately remove the child from any environment that exposes them to the same;
(b)Attempting to influence the children’s views in relation to their living or spend time arrangements with any other party;
(c)Abusing, insulting, belittling, rebuking or otherwise denigrating the children, the other party, or any member of the other party’s household or extended family to or in the child’s presence or hearing or by use of social media, and each party shall use their best endeavours to ensure that no other person does so in the children’s presence or hearing, and immediately remove the children from any environment that exposes them to the same;
(d)Exposing the children to family violence including emotional or verbal abuse;
(e)Striking or applying any form of physical chastisement to the children, and each party shall ensure that no other person does so and immediately remove the children from any environment that exposes them to the same.
Notifications and other practicalities
14.That the First and Second Respondents are to provide each other with at least (14) fourteen days’ notice prior to any change of address unless in the event of an emergency and in this instance then as soon as practicable.
15.That the First and Second Respondents are to provide each other with any changes to their telephone and email contact details within 48 hours of such change occurring.
16.That the First Respondent shall ensure that the Second Respondent is notified as soon as practicable if, while in her care either of the children are
(a)admitted to hospital;
(b)involved in a medical emergency; or
(c)should a child be required to take medication when in the care of the Second Respondent the First Respondent will ensure sufficient medication travels with the child to cover the first 48 hours of the changeover.
17.That the Second Respondent shall ensure that the First Respondent is notified as soon as practicable if, while in her care either of the children are
(a)admitted to hospital;
(b)involved in a medical emergency; or
(c)should a child be required to take medication when in the care of the First Respondent the Second Respondent will ensure sufficient medication travels with the child to cover the first 48 hours of the changeover.
18.That these Orders authorise any school which either child attends from time to time to provide both Respondents with copies of all reports, notices and documents in relation to the children including information which may be sought from time to time by either Respondent in relation to the children.
19.If either of the children are participating in a special event at school or an extra-curricular activity both Respondents are permitted to attend all such events as normally attended by parents.
20.The Respondents may communicate with one another by email, telephone or text and shall ensure all communication is polite and child-focused.
21.That the children attend E School and F School unless the First Respondent and Second Respondent agree in writing to enrol the children in a different school.
Drugs and Alcohol
22.That the parties are to maintain abstinence from any illicit or non-prescribed substances of abuse nor to consume alcohol to excess whilst the children are in in their care.
23.That the Applicant and the First Respondent shall each submit to supervised random urinalysis drug screening in accordance with the current Australian standard within 48 hours of a request in writing from the Independent Children’s Lawyer via email to their legal representative and if not legally represented directly to the parties and such request such be made no more frequently than once per month.
24.That the results of the drug testing in Order 23, above, be provided to the Independent Children’s Lawyer within 48 hours of receipt.
Hair Follicle testing
25.That the First Respondent forthwith make application to the Legal Aid Commission of NSW for an extension to her grant of aid to include funding for hair follicle testing for drugs of abuse.
26.That pending Legal Aid funding approval, the First Respondent is to make an appointment and attend for hair collection at an Australian Workplace Drug Testing Services (“AWDTS”) Clinic or nominee for hair drug testing purposes and in particular:
(a)Collection is to be conducted by a qualified and certified collector;
(b)Chain of custody procedure is to be applied to the sample;
(c)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 body for that laboratory; and
(d)Either head or body hair may be collected for testing.
27.That the Applicant is bound by Orders 25, and 27–31 in the same manner as the First Respondent regardless of whether he has Legal Aid funding.
28.That the First Respondent is to maintain her head hair at a length of not less than three centimetres and the Applicant is to maintain facial or other hair at a similar length.
29.That the First Respondent is restrained from bleaching or dying her head hair and/or body hair.
30.Written notice of the Independent Children’s Lawyer for the purposes of requesting that any parties undertake drug testing may be sent to the parties’ legal representative by email and shall be deemed to have been received by each party’s legal representative at the date and time it is sent by email.
31.That the First Respondent is to provide the collector with photographic identification to be recorded before each hair collection.
32.That the hair drug tests are to screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites and opioids and metabolites.
33.That these orders are to act as an authority to provide the test results to the parties or their legal representatives and the Independent Children’s Lawyer.
34.That leave be granted to each party and the Independent Children’s Lawyer to provide a copy of these orders to AWDTS.
35.Grant liberty to the Independent Children’s Lawyer to re-list the matter on 48 hours’ notice.
The Court notes that:
36.The First and Second Respondents intend that the children will spend informal time with the First Respondent in addition to the time provided for in these orders, provided that no difficulties arise.
It is further ordered that:
37.I declare that Ms Gemmell, the grandmother of X, is a person concerned with the care, welfare and development of Y.
38.I declare that Mr Denfert is a party to this case and that he has been adequately put on notice of these proceedings.
39.I direct that today’s proceedings proceed on an undefended basis in respect of Mr Denfert and Mr Binsted.
40.I direct that Mr Binsted file and serve an Amended Initiating Application setting out the orders that he seeks along with a single consolidated affidavit from himself and each witness he intends to rely upon in support of that Amended Initiating Application by 4.00 pm on 26 September 2022.
41.Absent further order of the court, in the event that Mr Binsted does not comply with the above order, the balance of the proceedings will continue on the basis that they are not defended by him.
42.The matter is to be adjourned to 10.00 am on 6 December 2022 for mentions, directions and possible hearing, and direct that it is an in-person appearance for the legal practitioners and for the parties, unless they are otherwise excused.
43.The Independent Children’s Lawyer is excused from personal attendance on that occasion and may attend by video link provided she makes arrangements with the Registry to enable that to happen.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Binsted & Kimptom has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
GILL J:
These proceedings concern the best interests of X and Y. They were listed for final hearing today. I will give the background of X’s and Y’s circumstances in the broadest of terms, given that the parties participating in the proceedings today have come to a consent position that seems to address those background circumstances.
The first is that X and Y have faced a number of risks in their lives. Although, at this point I do not come to a final determination about the nature of those risks, or the extent of those risks, I observe the following.
Firstly, Mr Denfert, who is the father of X, has not participated in the proceedings. The evidence in the proceedings indicates that he has now been convicted of a number of sex offences involving a relative, which are at present a sufficient indicator that he forms an unacceptable risk of harm to the children. The proceedings are undefended as far as he is concerned today.
Y’s father, Mr Binsted, has attended for today’s proceedings but they are conducted on an undefended basis due to his non-compliance with the requirements to file material in the proceedings. I have made orders which will enable him to participate on terms should he file in accordance with the further directions that I have given. He has a criminal history, or at least the evidence indicates he has a criminal history involving violence. The evidence indicates that he has engaged in threats of self-harm and also threats of serious harm to the mother. At present, these are untested. They may require testing at final hearing. He has a criminal record and there are allegations made that X has said of him that “he used to lick and spit on my flower.” Further, there is an allegation that one of the children’s dressing gowns being worn by the child in his care, was shortly, after he had gone to spend some time with the child alone in a room, found to have semen on it, with the implication being that it was his semen on the dressing gown: see the interim hearing conducted by Senior Judicial Registrar Evans. Again, I note that these are at present untested allegations and may be the subject of further evidence.
Those matters, at this stage, are sufficient to exclude him from spending any time or having any contact with either of the children on the basis that he may pose a risk of unacceptable harm to them.
The mother’s current partner, Mr B, has previously abused the drug ice and suffered from related mental health issues flowing, it seems, from the use of that substance. He has had significant interactions with the criminal justice system, including having described himself as “on the run” at times. He has also had significant interactions with the Department of Communities and Justice, New South Wales, such as to cause at least one of his children to be permanently removed from his care. He is apparently presently clean from ice and not labouring under the same issues that he struggled with when he was consuming ice, but is apparently still consuming cannabis. He too has a criminal record, including acts of violence. He is the current partner of mother.
The mother, who is present in Court today, has a history involving homelessness, cannabis abuse, close association with people who have been significant ice abusers. She has been subjected to significant family violence and has had significant periods without the children. It may also be seen that she has undertaken strong efforts to ensure that she is clean from use of cannabis and to try and put herself into a position where she is in a good place to be able to care for the children and have an ongoing relationship with the children.
Under the circumstances described above, Ms Gemmell, who is the grandmother of X, being the mother of Mr Denfert, stepped in to conduct the care of both X and Y; that is both X and Y have been living with her.
The Family Report that has been prepared in these proceedings indicates that she has provided a stable, caring, and appropriate home. It appears that the home that has been able to be provided by Ms Gemmell, is the most stable existence that the children have been able to encounter in their short lives. The Family Report was unequivocal in recommending that it should still be the place where the children live and that they would suffer should that arrangement be disrupted.
The parties have apparently given very careful consideration to the Family Report and the issues arising in this matter, and have agreed to terms which will provide for the sharing of parental responsibility between the mother and Ms Gemmell and will facilitate a transition supported by drug testing such that the mother might spend more and more time with the children. Although the parties initially each proposed there be self-executing transitions, in that time without further intervention from the Court, I indicated to the parties that I considered that despite the desirability of finalising court proceedings, court proceedings being very difficult for everybody who is concerned, it was more desirable to ensure that the increase in the children’s time with the mother is working well as it transitions.
Accordingly, it was in the children’s best interests, and in accordance with the principles for the conduct of child-related proceedings and protective against abuse and protective of increasing the benefits that the children might have with their mother to merely make orders on an interlocutory basis at this stage. That was a course of action ultimately supported by the mother, the Independent Children’s Lawyer and Ms Gemmell, who prepared appropriate terms to facilitate such.
Accordingly, acknowledging the good work that the mother has undertaken in preparing herself to spend more time with the children, and acknowledging the good home that is being provided for them by Ms Gemmell, I am prepared to make orders as proposed by Ms Gemmell, the mother and the Independent Children’s Lawyer and to bring the matter back before me in six months’ time. The parties will also have liberty to relist the matter before that, if necessary.
The reason for having the matter come back in six months’ time and allowing the parties to bring the matter back before me means that if there are difficulties encountered by the parties in the care of the children, the Court may be in a position to quickly formulate a response to ensure that the increasing pathway for the children to spend time with the mother is not derailed and is properly facilitated. It is the intention that if the matters are unable to otherwise be resolved between the parties, then a final hearing will be listed for approximately 12 months’ time. This gives Mr Binsted the opportunity, should he choose to comply with the directions that have been made by the Court, to participate and prosecute his claim to spend time with the children.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 21 July 2022
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