BLANCHET & SMOLA

[2019] FCCA 3357

FEDERAL CIRCUIT COURT OF AUSTRALIA

BLANCHET & SMOLA [2019] FCCA 3357

Catchwords:
FAMILY LAW – Parenting – interim hearing – who children live with.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR BLANCHET

Respondent: MS SMOLA

File Number: DUC 219 of 2019

Judgment of: Judge Dunkley

Hearing date: 12 November 2019

Date of Last Submission: 12 November 2019

Delivered at: Dubbo

Delivered on: 19 December 2019

REPRESENTATION

Solicitors for the Applicant: Ms Friend of Legal Aid NSW

Solicitors for the Respondent: Ms Fiddock of Austen Brown Boog

Solicitors for the Independent Children's Lawyer: Ms Osborne of Osborne Legal

ORDERS

1. Pending further order, [X] born … 2013 and [Y] born … 2015, shall live with their mother.

2. To give effect to order 1, having regard to paragraph 1.2.2.1 of minute of orders made into orders on 12 November 2019, the operation of order 1 hereof shall commence at 12 noon on 9 January 2020 when the father shall deliver [X] into the mother’s care at Town A Police Station.

3. Pending further order, the mother is to enrol [X] into a public school in Town B and during 2020 ensure his attendance on time at that school.

4. She is to notify the father with details of [X]’s school enrolment and ensure the father’s details and contact details are included on [X]’s school enrolment.

IT IS NOTED that publication of this judgment under the pseudonym Blanchet & Smola is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DUBBO

DUC 219 of 2019

MR BLANCHET

Applicant

And

MS SMOLA

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Blanchet (the father) and Ms Smola (the mother) are the parents of [X] aged 6, who was born on … 2013 and [Y] aged 4½, who was born on … 2015.

Current Orders

1. On 26 July 2019 the court as a temporary measure following an urgent interim hearing ordered:

   PENDING FURTHER ORDER, THE COURT ORDERS THAT:

   (1)The father shall have sole parental responsibility for [X] born … 2013.

   (2)[X] shall live with his father.

   (3)[X] shall spend time with his mother each alternate weekend from 10am Saturday to 4pm Sunday commencing 10 August 2019.

   (4)The mother shall have sole parental responsibility for [Y] born … 2015.

   (5)[Y] shall live with her mother.

   (6)[Y] shall spend time with her father each alternate weekend from 10am Saturday to 4pm Sunday commencing 3 August 2019.

   (7)Changeovers relevant to orders 3 and 6 hereof shall occur at the beginning and end of each period in a supervised setting at Interrelate Town B from as soon as that service can provide such facility and prior to that service becoming available at Interrelate, changeovers at the beginning and end of each period shall occur in the foyer of the Town B Police Station.

   (8)To facilitate order 2 hereof, the mother is to return [X] to the father’s care at 10am on 3 August 2019 in the foyer of the Town B Police Station.

   THE COURT FURTHER ORDERS

   (9)Each party shall exchange with the other by not later than 4pm on 5 November 2019, a drug test result arising from a hair follicle sample test.

Orders Sought

1. The father seeks interim orders as follows:

   1.That the parents are to have equal shared parental responsibility for the children, [X] ("[X]") born … 2013, and [Y] ("[Y]") born … 2015.

   2.That [X] and [Y] live with the Father.

   3.That the Mother spend time with the children as follows:-

   3.1Each alternate weekend from after school Friday until 4.00pm Sunday.

   3.2For one half of all school holiday periods, as follows:-

   3.2.1In the Terms 1, 2 and 3 school holiday periods for the first  half in even years and the second half in odd years with the Mother and for the second half in even years and the first half in odd years with the Father, to commence in Term 1 holidays 2020;

   3.2.2In the Term 4 school holiday periods, to commence in Term 4 holidays 2019, as follows:-

   3.2.2.1For the first half in odd years and during the second half in even years with the Father.

   3.2.2.2For the first half in even years and during the second half in odd years with the Mother.

   3.3    At such other times as agreed between the parents.

   4.If Father's/Mother's Day falls outside the relevant parents' time with the children, the children are to spend time with the relevant parent on the Father's/Mother's Day weekend instead of the weekend prior to the Father's/Mother's Day weekend.

   5.The parent with whom the children are not otherwise spending time with on each of the children's birthday is to spend time with the children in the town that the children are then living, for at least two hours if it falls on a school day and at least four hours if it falls on a weekend unless otherwise agreed.

   6.For the purposes of the Terms 1, 2 and 3 school holiday periods, the "first half' of a school holiday period means from 10.00am  on the first day following  the last day of the school term until 4.00pm on the Sunday falling closest to the midpoint of the holiday period.

   7.For the purposes of the Term 4 school holiday period, the "first half' of a school holiday period means from 10.00am on the first day following the last day of the school term until 4.00pm on the day falling closest to the midpoint of the holiday period and in the event there are uneven days in the holiday period changeover is to occur at 12 noon on the day after the mid-point having regard to the number of days in the holiday period.

   8.For the purposes of the Term 4 holiday period, the "second half' of a school holiday period means from 4.00pm on the day falling closest to the midpoint of the school holiday period and in the event there are uneven days in the holiday period changeover is to occur at 12 noon on the day after the mid-point having regard to the number of days in the holiday period, until 4.00pm on the final Saturday of the school holiday period.

   9.Each parent shall have telephone/video call communication with the children when they are not in their care every second night between 6.00pm and 6.30pm and for the purpose of this Order the parent who does not have the children in their care is to call the other parent's mobile phone and the parent with the children in their care is to facilitate the children speaking to that parent.

   10.That for the purposes of changeover the parents are to meet at the Town B Police station at the commencement of the Mother's time and at the Town A Police Station at the conclusion of the Mother's time.

   11.That these Orders are sufficient authority for each parent to be provided with copies of all school reports, school photograph order forms, notices and advices concerning the children and any activities involving the children.

   12.That each parent notify the other in writing of any changes to contact/residential details at least 24 hours prior to any change.

   13.That each parent notify the other if the children are seriously injured, require hospitalisation and or in the event of an emergency.

   14.That these Orders are sufficient authority for each parent to contact and speak to the children's treating health care professional and obtain medical information, reports and the like regarding the children.

   15.That both parents are restrained from consuming alcohol to excess or any illicit drugs during periods that the children are in their care nor allowing any third person to do so.

   16.That both parents not denigrate either parent, his/her partner or members of his/her family to the children or in the presence of the children or at all or encourage others to do so.

2. The mother seeks interim orders as follows:

   1.The Mother have sole parental responsibility for the children [X] born … 2013 and [Y] born … 2015.

   2.The children live with the Mother.

   3.The children spend time with the Father as follows:

   (a)     During the NSW school term:

   (i)each alternate weekend from 5:00pm Friday to 4:00pm Sunday

   (ii)The time provided in this Order to be suspended during NSW school holidays and recommences on Friday of week 1 of each school term.

   (b)During the school holidays (other than the Christmas school holiday period):

   (i)During the first half of each school holiday period commencing from the conclusion of school on the last day of the school term and concluding at 5:00pm on the second Saturday thereof during odd numbered years; and

   (ii)During the second half of each school holiday period commencing at 5.00pm on the middle Friday of the school holiday period until 5.00pm on the day immediately prior to the commencement of school in even numbered years.

   (c)     During the Christmas school holiday period:

   (i)for half of the Christmas school holiday period, being the first half in even numbered years and the second half in odd numbered years;

   4.That for the purpose of Order 3 changeover shall occur at Interrelate Town B with only the Mother and Father to attend changeover.

   5.The parent who does not have care of the children shall be permitted to telephone the children between 6:00pm and 7:00pm on Monday, Wednesday and Friday.

   6.The Father submit himself, at his own cost, to random chain of custody urinalysis test, not more than once within a four (4) week period, within 48 hours of receiving a request to do so from the Mother's legal representative and that:

   (a)Such urinalysis is conducted in accordance with the Australian / New Zealand Standard 4308:2008: Procedure for the collection, detection and quantitation of drugs of abuse in urine.

   (b)In the event of the production of a positive or abnormal drug screening report then the Father is to submit himself to further chain of custody urinalysis, at his own costs, each week thereafter until a positive of abnormal drug screening report is not produced; and

   (c)The Father do all things necessary to immediately provide to the Mother's legal representative a copy of the urinalysis result once he receives it.

   7.That should the Father's urinalysis result show a positive or abnormal drug screening report, then the Father's time with the children shall be suspended and will recommence on the first Friday after the Father has provided to the Mother's legal representative a negative or normal drug screening report.

Issues

1. The parents remain in dispute about with whom [X] and [Y] will live.

2. Each parents seeks both children live with them pending further order.

3. The Independent Children’s Lawyer submits pending further order both children should live with the mother.

4. The parents and Independent Children’s Lawyer otherwise agree the spend time with arrangements and ancillary orders that are to be made once the live with issue is determined.

Determination

1. Given the importance of sibling relationships and the proximity in age of the children, [X] and [Y], I am satisfied it is in their best interest that they live together as a sibling unit and spend time with the other parent together as a sibling unit.

2. Exhibit B confirms the father remains a user of marijuana.

3. His test results indicate a decrease in either strength of the drug or frequency and quantum of his use.

4. The father lives in Town A with his partner Ms C.

5. The father and Ms C have a child [E] aged 10 months, who was born on … 2019.  They are expecting another child in March 2020.

6. Also living with them is Ms C’s son from a previous relationship, [F] who is aged 5.

7. [X] is once again, since the orders were made on 26 July 2019, also living with his father and Ms C.  [X] has been re‑enrolled at and currently attends Town A Public School.

8. Since the orders of 26 July 2019 Ms Smola has returned from western Sydney to live in Town B.

9. She has enrolled [Y] in Town B District Pre School, where she will begin attendance in 2020.

10. Neither parent is in paid employment.

11. Each of the father’s and mother’s drivers licence were suspended as at the date of the interim hearing.

12. The father is able to reapply for his licence on 6 December 2019.

13. Family have been helping him with transport.

14. It is not clear when the mother’s driver’s licence suspension expires.

15. There is about 160kms, just under 2 hours driving time, between Town B and Town A.

16. The parents’ separated in either late 2017 or early 2018.  [X] then remained in the father’s care and [Y] then remained in the mother’s care.  The father says this was a consensual decision.  The mother says she was coerced into the arrangement.

17. In May 2019 the mother retained [X] in her care when he was visiting.  She then moved to western Sydney taking [X] with her.

18. The father on 31 May 2019 sought a recovery order, initially in the Local Court which transferred the case to the Federal Circuit Court were urgent parenting orders were made on 26 July 2019.

19. The father’s drug tests show his continued use of marijuana.  The mother has not undertaken testing.  She is I am satisfied still using drugs.  It is unclear which drugs.

20. The father was subject to an AVO in which the mother was the person in need of protection.  The father is subject to a current AVO in which Ms C’s is the person in need of protection.  The children have been present when the father has perpetrated family violence on the mother.

21. Both parents have untreated mental health issues.

22. The Child Inclusive Conference memorandum confirms each of [X] and [Y] to have significant relationships with each of their parents.  The consultant observed the children to be comfortable with each parent and each parent relating warmly and responsively to each of [X] and [Y].

23. For periods of time each parent did not facilitate [X] spending time with the other parent.  The father when he moved to Town D with [X].  The mother when she moved to Town I with [X].

24. The nature and strength of [X]’s relationship with Ms C’s and the other children in the father’s home is not the subject of any reliable evidence at this time.

25. [X] told the consultant “he missed his father” when he lived in Sydney.

26. There are concerns about the mother’s attention to [Y]’s dental hygiene and treatment.  Belatedly the mother has begun attendance at this need, and treatment has begun.  The mother also did not prioritise [X]’s school attendance when they were living in western Sydney.

27. [Y] has never really lived with her father.

28. The impact upon her if her live with arrangements are changed, is not clear.  Give her age and the limited time she has been in the father’s care, she is likely to experience loss if she lives with her father.

29. Similarly the impact upon [X] if he lives with his mother is not clear, although he was able to articulate to the consultant he missed his father when he was retained in his mother’s care, so he too may experience loss.

30. The documents produced on subpoena by NSW Police and health organisations, show a pattern of drug use by both parents, violence and criminal acts being perpetrated by the father and compromised mental health for each parent.

31. The mother is a [G Aboriginal] woman.

32. Little evidence is available about the children’s engagement with their aboriginal culture which is derived from their mother, when in their father’s care.

33. The mother says she is able to provide or facilitate cultural instructions for the children if they live with her.

34. On balance given the past issues of family violence perpetrated by the father tips a finely balanced case in which there is risks in both parents’ households, in favour of both children living as a sibling unit with the mother and spending significant and substantial time with the father.  In the ordering of such time, I consider Ms C’s to be a protective influence.

35. Should the mother’s drug test show the presence of other than marijuana then the Independent Children’s Lawyer can exercise the relisting leave granted on 12 November 2019 to enable that fact to be further considered.

36. A family report was ordered on 12 November 2019 which will not be available for nearly 12 months.

37. If by final hearing one parent was drug free with a significant period of abstinence and the other was not, that would be a very important factor for consideration.

38. Given the mother’s, until recently, neglect of [Y]’s dental treatment and her poor record of engagement of either child with education, a sole parental responsibility order in her favour would not benefit the children, despite the past history of family violence perpetrated by the father.

39. In the interim no order for parental responsibility will be made.

40. Orders 4 and 5 made on 12 November 2019 provided:

    4.By consent, the parties are to implement [Y]’s treatment dental plan currently being undertaken through Dental Clinic H.

    5.The parent with whom the child [Y] is living, is to ensure from the beginning of school 2020 she is to be enrolled to attend either preschool 3 days a week or kindergarten on a full time basis.

41. Those orders remain protective for [Y].

42. An order will be made mandating [X] being enrolled at and in attendance at a primary school in 2020.

43. That order will be protective for [X].  The 2019 school year will be nearly completed by the date of these orders, so an order is not necessary for this year.

44. The orders made by consent on 12 November 2019 within order 2 will remain operative pending further order.

Conclusion

1. There was by agreement comprehensive orders made on 12 November 2019 regarding school holiday time with orders relevant to the children.

2. Those orders also contained an order:

   ·regulating changeovers

   ·parental drug testing

   ·special period time with orders

   ·communication orders

   ·information sharing orders

   ·restraining orders

3. In combination with the live with order made pending further order herein, the total suite of orders is, I am satisfied pending further order, in the best interest of each of [X] and [Y].

4. The orders herein give rise to some practical difficulties given transport difficulties and parental licence suspensions.  The parents in the past have been able to manage these difficulties with the assistance of others.  The orders herein are as practical as these difficulties allow.  No other arrangements would alleviate these problems without sacrificing time between the children and their father.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Dunkley

Associate: 

Date:  19 December 2019