Blanchet & Smola
[2022] FedCFamC2F 900
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Blanchet & Smola [2022] FedCFamC2F 900
File number(s): DUC 219 of 2019 Judgment of: JUDGE DUNKLEY Date of judgment: 13 July 2022 Catchwords: FAMILY LAW - PARENTING - interim hearing Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 68 Date of hearing: 10 June 2022 Place: Parramatta Solicitor for the Applicant: Ms Keen of Legal Aid NSW Solicitor for the Respondent: Mr Pigott of JWP Lawyers Solicitor for the Independent Children's Lawyer: Ms Osborne of Osborne Legal ORDERS
DUC 219 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BLANCHET
Applicant
AND: MS SMOLA
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE DUNKLEY
DATE OF ORDER:
13 July 2022
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.Paragraph 2 of exhibit A made into orders by consent on 25 August 2020 shall continue.
2.Paragraphs 1, 4 and 5 of the minute of order made by consent on 13 May 2022 shall continue.
3.Paragraphs 2 and 3 of the minute of order made by consent on 13 May 2022 are suspended.
4.The children X born in 2013 and Y born in 2015 shall spend time with their father:
(a)During school term time, each alternate weekend from after school Thursday to before school Monday, starting the first Thursday of each school term.
(b)During Term 1, 2 and 3 school holidays from after school on the last day of term to 5pm on the first Wednesday of the school holiday.
(c)During Term 4 school holidays:
(i)From after school on the last day of term to 4pm on Christmas Day.
(ii)From 4pm on 2 January to 4pm on 7 January.
(iii)From 4pm on 20 January to 4pm on 25 January.
5.(a) Changeovers on school days shall occur at the Town A Public School.
(b)Changeovers on non-school days shall occur in the foyer at Town A Police Station.
6.The ICL is to provide a sealed copy of these orders to the Principal, Town A Public School and the Officer in Charge, NSW Police at Town A.
7.Within 28 days of the date of these orders, the mother shall obtain a referral to a paediatrician for both children from her general practitioner and shall obtain the first available appointment with the paediatrician for each of the children, and thereafter obtain a report as to the children’s health, development and any identified needs.
8.Within 28 days of the date of these orders, the mother shall obtain a referral to a speech pathologist for both children and shall obtain the first available appointment with the speech pathologist for each of the children and commence such treatment as is recommended.
9.Within 28 days of the date of these orders, the mother shall obtain a referral to an ENT surgeon for Y and shall obtain the first available appointment with the ENT surgeon for Y and thereafter implement any recommended regime of treatment.
10.The mother shall advise the Independent Children’s Lawyer and the solicitor for the father of the date of the appointments with the paediatrician, ENT surgeon and the first appointment with the speech pathologist.
11.Each parent shall notify the other in writing of any changes to their contact/residential details not more than 24 hours after any change.
12.Each parent notify the other if the children are seriously injured, require hospitalisation and/or in the event of an emergency medical issue.
13.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.
14.The mother and the father are each restrained from denigrating the other parent or their family in the presence of the children or within hearing of the children and from leaving the children in the presence of any third party that is denigrating the other parent or their family.
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 a pseudonym Blanchet & Smola has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DUNKLEY
Mr Blanchet (the father) and Ms Smola (the mother) are the parents of X, aged 8, who was born in 2013, and Y, aged 7, who was born in 2015.
The mother and father’s relationship started in 2009 or 2010, that discrepancy being unimportant to resolve given the date of birth of the children.
The parents’ separated in November 2017 or January 2018, and again that discrepancy is not needing resolution given the history of the parents since then.
At date of separation, whenever it was, X remained living with his father and Y remained living with her mother.
In about March 2018 the father and X moved to live in Town D. The mother and Y remained living in Town A.
In December 2018 the father and X and the father’s new partner returned to live in Town A.
In 2019 a child of the father and his new partner was born, that child is named E. They have since had another child, J.
In May 2019 the mother retained X in her care and relocated with him and Y to Sydney.
On 19 December 2019 interim parenting orders were made consequent upon an interim hearing.
On 25 August 2020 final parenting orders were made by consent and Y and X thereafter lived week about with each parent, and the parents had equal shared parental responsibility. Both parents were then living in Town B.
Since March 2021 a number of significant events have occurred including:
·the father testing positive for methamphetamine whilst driving with the children;
·the mother and father, at separate times, moving from Town B to live in Town A;
·the father being charged with affray;
·the father being subject to an ADVO to protect his partner.
On 3 May 2022 the father filed an Initiating Application, affidavit, parenting questionnaire and notice of risk, aggrieved that the mother had withheld the children from living with him.
There is no doubt that there have been significant changes in circumstances since final orders were made on 25 August 2020, such that a further hearing so as to decide what parenting orders are now in X and Y’s best interest shall occur.
This judgment relates only to new interim parenting orders. A final hearing will not occur this year due to there being no dates available for such hearing.
DOCUMENTS RELIED ON
Father
·Initiating Application filed 3 May 2022
·Affidavits of Mr Blanchet filed 3 June 2022 and 3 May 2022
·Affidavit of Ms K filed 3 June 2022
·Affidavit of Ms C filed 3 May 2022
·Notice of Risk
·Parenting questionnaire
·Tender bundle prepared by ICL marked exhibit A
·Case outline
Mother
·Response filed 12 May 2022
·Affidavits of Ms Smola filed 12 May 2022 and 9 June 2022
·Case outline
Independent Children’s Lawyer
·ICL tender bundle exhibit A
·Child Impact Report dated 20 May 2022
·Case outline
ORDERS SOUGHT
The father, in the case outline prepared by his solicitor, seeks primary and alternate orders being:
1. That the children live with the Father.
2. That the Father have sole parental responsibility for the children.
3. The children shall spend time with the Mother as follows:-
3.1Each alternate weekend from the conclusion of school (or 3pm) Friday to the commencement of school (or 9am) Monday;
3.2For one half of each New South Wales gazetted school holiday periods, being the first half in odd numbered years, and the second half in even numbered years;
3.3At other such times as agreed between the parties.
4.On special occasions, order 7 shall be suspended and the following shall apply:-
4.1On Father’s Day the Father shall spend time with the children from 9am to 5pm.
4.2On Mother’s Day the Mother shall spend time with the children from 9am to 5pm.
4.3For the children’s birthdays, the parent who does not have care of the child whose birthday it is shall spend time with the child from the conclusion of school (or 3pm) to 6pm on a school day or from 9am to 1pm on a non-school day.
4.4For the Easter period:
4.4.1In even numbered years, the Mother shall spend time with the children from 3pm Friday to 9am Monday.
4.4.2In odd numbered years, the Father shall spend time with the children from 3pm Friday to 9am Monday.
4.5 For the Christmas period:
4.5.1In even numbered years, the children shall spend time with the Mother from 9am 24 December until 1pm Christmas Day and with the Father from 1pm Christmas Day until 5pm Boxing Day.
4.5.2In odd numbered years, the children shall spend time with the Father from 9am 24 December until 1pm Christmas Day and with the Mother from 1pm Christmas Day until 5pm Boxing Day.
5.For the purpose of order 7.2 The “first half” of a school period means from 9.00am on the first day following the last day of the school term until 5.00pm on the Sunday falling closest to the midpoint of the holiday period and the “second half’ of a school holiday period means from 5.00pm on the Sunday falling closest to the midpoint of the school holiday period until 5.00pm on the final Saturday of the holiday period.
6. Changeover shall occur in front of the [Town A] Police Station.
7.The parties shall have telephone/facetime communication with the children when the children are not in their on Monday, Wednesdays and Fridays between 6- 6.30pm. The parent who does not have care of the child shall initiate the call and the children are to be allowed privacy for the call.
8.The mother shall submit to a hair follicle test for the detection of amphetamine-type substances, cannabis, opiates (including heroin and morphine), sedative-type drugs, cocaine and other drugs of abuse through The Drug Detection Agency and the results are to be forwarded to the Applicant’s solicitor upon receipt.
9.The Father shall enrol in and complete a Men’s Behavioural Change program and the program Parents Not Partners and shall provide evidence of his completion of these programs to the Independent Children’s Lawyer.
10.That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.
11.That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within forty-eight (48) hours of such change occurring.
12.That the parties be restrained from consuming drugs (with the exception of prescribed medication) and/or alcohol for a period of twenty four (24) hours prior to the parties spending time with the children and during the time spent with the children.
IN THE ALTERNATIVE
1. The Final Orders made 25 August 2020 be confirmed.
2. The parties are directed to comply with the Final Orders made 25 August 2020.
The mother, in the case outline prepared by her solicitor, seeks the following orders:
1. All prior parenting Orders are suspended.
2.The mother has sole parental responsibility of the children [X] born [in] 2013 and [Y] born [in] 2015 (“the children”)
3. The children live with the mother.
4. The children spend time with the father as follows:
a. Each Sunday for 2 hour period at a contact centre.
b.In the alternative, from Saturday 2pm until Sunday 2pm in the presence [Ms L] or [Ms K].
5. Changeover shall occur in the foyer of the [Town A] Police Station.
6.The children are to be presented to School on each day of required attendance no later than 8.45am and in the event that they are too unwell to attend school, a medical certificate is to be provided to the other parent and the Independent Children’s Lawyer.
7.Within 28 days of the date of these Orders, the mother shall obtain a referral to a Paediatrician for both children from her General Practitioner and shall obtain the first available appointment for each of the children.
8.Within 28 days of the date of these Orders, the mother shall obtain a referral to a Speech Pathologist for both children and shall obtain the first available appointment for each of the children.
9.Within 28 days of the date of these Orders, the mother shall obtain a referral to an ENT surgeon for [Y] and shall obtain the first available appointment with the ENT for [Y].
10.The mother shall advise the Independent Children’s Lawyer and the solicitor for the father of the date of the appointments with the Paediatrician, ENT surgeon and the first appointment with the Speech Pathologist.
11.The mother and the father are each restrained from using illicit drugs while the children are in their care and for a period of 12 hours prior to the children coming into their care.
12.Within 14 days of receiving a request from the Independent Children’s Lawyer, the mother and the father shall each submit to hair follicle drug testing for the presence of illicit drugs, and shall make the results from each test available to the ICL and the solicitor for the other party within 7 days of receipt.
13.For the purpose of Order 13, the mother and the father are each restrained from cutting their hair shorter than 3cms.
14.Within 7 days of receiving a request from the Independent Children’s Lawyer, the mother and the father shall each submit to Carbohydrate Deficient Transferrin testing to assess alcohol consumption and shall make the results from each test available to the ICL and the solicitor for the other party within 7 days of receipt.
15.The father shall enrol in and complete, a Men’s Behavioural Change program and the program Parents Not Partners and shall provide evidence of his completion of these programs to the Independent Children’s Lawyer.
16.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.
The ICL in her case outline submits for the making of the following interim parenting orders:
1. All prior parenting Orders are suspended.
2.The mother has sole parental responsibility of the children [X] born [in] 2013 and [Y] born [in] 2015 (“the children”)
3. The children live with the mother.
4. The children spend time with the father as follows:
a.During school terms, from after school Friday until before school Monday; and
b.For half of the school holidays, being the first half in odd numbered years and the second half in even numbered years.
5.The father’s time as set out in Order 4 shall occur in the presence of the father’s partner [Ms C] or his mother [Ms K].
6.Changeover shall occur at the children’s school and if not a school day in the foyer of the [Town A] Police Station.
7.The children are to be presented to [Town A] School on each day of required attendance no later than 8.45am and in the event that they are too unwell to attend school, a medical certificate is to be provided to the other parent and the Independent Children’s Lawyer.
8.Within 28 days of the date of these Orders, the mother shall obtain a referral to a Paediatrician for both children from her General Practitioner and shall obtain the first available appointment for each of the children.
9.Within 28 days of the date of these Orders, the mother shall obtain a referral to a Speech Pathologist for both children and shall obtain the first available appointment for each of the children.
10.Within 28 days of the date of these Orders, the mother shall obtain a referral to an ENT surgeon for [Y] and shall obtain the first available appointment with the ENT for [Y].
11.The mother shall advise the Independent Children’s Lawyer and the solicitor for the father of the date of the appointments with the Paediatrician, ENT surgeon and the first appointment with the Speech Pathologist.
12.The mother and the father are each restrained from using illicit drugs while the children are in their care and for a period of 12 hours prior to the children coming into their care.
13.Within 14 days of receiving a request from the Independent Children’s Lawyer, the mother and the father shall each submit to hair follicle drug testing for the presence of illicit drugs, and shall make the results from each test available to the ICL and the solicitor for the other party within 7 days of receipt.
14.For the purpose of Order 13, the mother and the father are each restrained from cutting their hair shorter than 3cms.
15.Within 7 days of receiving a request from the Independent Children’s Lawyer, the mother and the father shall each submit to Carbohydrate Deficient Transferrin testing to assess alcohol consumption and shall make the results from each test available to the ICL and the solicitor for the other party within 7 days of receipt.
16.The father shall enrol in and complete, a Men’s Behavioural Change program and the program Parents Not Partners and shall provide evidence of his completion of these programs to the Independent Children’s Lawyer.
17.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.
18.Each parent notify the other in writing of any changes to contact/residential details at least 24 hours prior to any change.
19.Each parent notify the other if the children are seriously injured, require hospitalisation and or in the event of an emergency.
20.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.
21.The mother and the father are each restrained from denigrating the other parent or their family in the presence of the children or within hearing of the children and from leaving the children in the presence of any third party that is denigrating the other parent or their family.
LITIGATION HISTORY
Since the filing by the father of his Initiating Application on 3 May 2022, the following court events and outcomes have occurred:
·On the first return date of the father’s Initiating Application on 5 May 2022 it was ordered:
1.The Respondent is to file and serve a Response, Affidavit, Parenting Questionnaire and Notice of Risk by 12 May 2022.
2.This case is listed for interim hearing at 9.30am on 13 May 2022 in [Town B] as a face to face hearing
3.The respondent is to ensure that the children [X] born [in] 2013 and [Y] born [in] 2015 are enrolled at and attending a primary school on each day that primary schools are open
4.Pursuant to Section 68L of the Family Law Act an Independent Children’s Lawyer is appointed for [X] born [in] 2013 and [Y] born [in] 2015 and request that Legal Aid NSW provide such representation.
5.Leave is granted to the legal representatives to inspect material produced pursuant to s.69ZW from NSW Police and Department of Communities and Justice.
·On 13 May 2022 it was ordered, by consent pending further order:
1.That [X] born [in] 2013 and [Y] born [in] 2015 (“the children”) shall live with their Mother.
2. That the Father spend time with the children as follows:-
a.From 4pm Friday until 4pm Sunday commencing 20 May 2022 and alternating each weekend thereafter.
b.On Friday 13 May 2022 between 12.30pm and 1.30pm.
c.Telephone/facetime contact each Monday and Wednesday between 6pm and 6.30pm with the Father to initiate the call and the Mother to ensure the telephone is switched on and allow privacy for the call.
3.Changeover is to occur at [Town A] Police Station and is to be facilitated by the Mother and the Father’s sister, [Ms L].
4.Both the Mother and Father are restrained from consuming alcohol within 24 hours of the children coming into their care and whilst the children are in their care.
5.Both the Mother and Father are restrained from consuming illicit substances whilst the children are in their care.
A child impact report was ordered, and s 69ZW orders directed to Department of Communities and Justice and NSW Police were made, and the case was listed for interim hearing on 10 June 2022.
EVIDENCE
The father is aged 27, being born in 1995.
He identifies as Aboriginal.
The mother is aged 26, being born in 1995.
The mother is Aboriginal.
The parents were about 15 years old when their relationship started and they have separated numerous times during their relationship.
The father has re‑partnered with Ms C.
Ms C has a child from a previous relationship, M, aged 7. The father and Ms C have two children, E, aged 3, and J, aged 2, who are siblings of X and Y.
In mid 2021 (the date is disputed) following a discussion, both the father and the mother moved from Town B to Town A. Both the mother and father have extended family in the area.
There is disputed evidence as to who cared for the children after the move to Town A until 17 April 2022.
X and Y now attend Town A Public School.
Town A is not a big town.
It is an agreed fact that since 17 April 2022 X and Y have lived with their mother and she did not allow them to spend time with the father until orders were made on 13 May 2022.
Since 13 May 2022 the children have lived with the mother and since 20 May 2022 have spent alternate weekends with the father.
The mother rents a 3 bedroom home in Town A and is a carer.
The father is not employed.
It is an agreed fact X was injured on 7 April 2022.
Whilst the circumstances of the causation of his injuries are not accepted by the parents, documents being medical records in exhibit A cause me to conclude X was climbing a chain wire fence to gain access to the Town A Building, fell and damaged his ribs. He was not under adult supervision at this time. The Building was closed and he did not immediately report his injuries, likely fearing disciplinary consequences.
His injuries were serious. Over time his breathing deteriorated, his pain increased, and he spent time in a number of hospitals, including at Town A and Town B, before being airlifted to N Hospital. He has now recovered.
The mother alleges serious and severe family violence being perpetrated upon her by the father at times during their relationship.[1]
[1] see paras 27-30 mother’s affidavit filed 9 June 2022
In paragraph 80 of her affidavit signed 9 June 2022, she writes:
I am seeking that the final orders be varied so that the children can live with me and spend time with the father.
The father admits recent and past use of marijuana.
CHILD IMPACT REPORT
X told the consultant:
·that his mother looks after him really well
·he likes his father, Nan and all his cousins
·his father and Ms C fight a lot and he does not like that
·he liked living with his mother and seeing his father at the weekends
Y told the consultant:
·that dad and Ms C yelled at each other
·that she does not like yelling
The consultant held the following opinions:
·that X and Y had been exposed to family violence and parental conflict over an extended period
·that the children, particularly X, had witnessed family violence from an early age
·X and Y are at a developmental stage of middle childhood where routine and boundaries are important
·that X and Y love both their parents but appear to feel safest with their mother
Ms K
She is the paternal grandmother.
She lives in Town A, close by the father’s home.
She assists with changeovers when asked, and does so regularly.
Ms C
She is the father’s partner.
She describes having a loving relationship with X and Y and treating them as if they were her own children.
She reports a conflictual relationship with Ms Smola.
She confirms the father regularly uses marijuana so as to help him sleep.
In paragraph 29 of her affidavit she writes:
I have been present and heard both [Y] and [X] tell [Mr Blanchet] and myself that they want to stay with us.
DETERMINATION
The significant area of risk for X and Y is the conflict and family violence they are exposed to arising from their parents in the past and the present. Another risk is the reduced parenting capacity the father’s marijuana use causes.
Whether the mother or father is the victim or the perpetrator, or whether it is mutual conflict, cannot be determined at interim hearing and will require extensive cross examination at final hearing.
I am satisfied there is no other current identified risk for the children. The father’s continued use of marijuana can be mitigated if the father complies with orders made on 13 May 2022.
X’s recent injuries, I am satisfied, did not arise from neglect of care rather from an attempt by an active child to amuse himself. The causation is clear, a fall from a height whilst attempting to scale a fence.
The mother’s disregard of her responsibilities as a parent by ensuring Y and X’s regular attendance at school is dealt with if she complies with the orders made on 5 May 2022.
The lack of parental co‑operation in co‑parenting since 25 August 2020 makes an equal time order in neither Y nor X’s best interest despite the close proximity of the parent’s respective homes in a small town.
To minimise exposure to parental conflict, periods of time starting and ending at school, where at all possible, reduces exposure to potential conflict and enables both parents to engage with the children’s educational provides.
Neither child enjoys the yelling/disputation they report in the father’s home. This means less time in that home than otherwise might have been indicated reduces exposures to this behaviour.
Children experiencing stress often have worse outcomes than those who do not.
The impact of drug use on the father’s parenting capacity is another reason to reduce time for the children in his home, until it is clear he has becomes abstinent.
On balance, spending time with their father each alternate week from after school Thursday to before school Monday together with a slightly longer period during school holidays mitigates the above identified issues and enable sufficient time for the children to maintain their relationship with their father, continue to develop their relationships with their siblings E and J, and not negatively impact their maternal relationship.
Further assessment of the father and mother’s compliance with orders 4 and 5 made on 13 May 2022 will be possible at final hearing.
There will be no change to the existing equal shared parental responsibility order made on 25 August 2020 until all the evidence can be tested at final hearing.
The parents were able to sufficiently cooperate in the recent crisis with X’s injury to be satisfied that order can function in the children’s best interest in spite of the other short comings identified in parental conflicted behaviour.
A number of the ancillary orders sought by the ICL are in the children’s best interest and will be made.
Supervision of the father’s time is not required as the risk is sufficiently mitigated by the orders.
The orders are at this time, on the current evidence, in each child’s best interest and reasonably practicable.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dunkley. Associate:
Dated: 13 July 2022
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