Branson & Fuller

[2021] FCCA 1999

FEDERAL CIRCUIT COURT OF AUSTRALIA

Branson & Fuller [2021] FCCA 1999

File number(s):	DUC 172 of 2020
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	30 August 2021
Catchwords:	FAMILY LAW – interim parenting – assessment of risks – family violence – illicit substance use – best interest of the children
Legislation:	Family Law Act 1975 (Cth), ss 68B, 68C, 69ZL
Cases cited:	Goode v Goode [2006] FamCA 1346 Keats & Keats [2016] FamCAFC 156
Number of paragraphs:	23
Date of hearing:	28 July 2021 and 24 August 2021
Place:	Parramatta
Appearing for the Applicant:	Mr Johnson
Solicitor for the Applicant:	Paul Johnson Solicitor
Appearing for the Respondent:	Mr Pigott and the Respondent in person
Solicitor for the Respondent:	Legal Aid Dubbo
Appearing for the Independent Children's Lawyer:	Ms McKay and Ms Osborne
Solicitor for the Independent Children's Lawyer:	Osborne Legal

ORDERS

DUC 172 of 2020

BETWEEN:

MR BRANSON

Applicant

AND:

MS FULLER

Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	30 AUGUST 2021

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1.All prior parenting Orders be suspended.

2.The children X born in 2009, Y born in 2010 and Z born in 2013 (“the children”) shall live with the father.

3.For the purposes of order 2 above, the mother shall deliver the children to the father at the Town B Police Station at 10am on 31 August 2021.

4.The father will do all acts and things and sign all documents necessary to enrol the children in school in Town C to commence classes on Monday 6 September 2021.

5.The children shall spend time with the mother as follows:-

(a)Commencing 10 September 2021, continuing on each alternate Friday during school terms, from 6pm Friday until 6pm Sunday; and

(b)For half of each school holiday period, being the first half in even numbered years and the second half in odd numbered years.

6.Changeover shall occur at McDonald’s on J Street in Town B at the commencement of each time period and at the Town C Police Station in Town C at the conclusion of each time period.

7.In addition to the time that the children will spend time with each of the parties as set out in Orders 2 & 5, on the following occasions of special significance the child shall spend time with the parties as follows:

(a)The mother and the father will each be entitled to spend 4 hours with the children on their own birthday(s) at a time to be agreed between the parties, but failing agreement from 3:00pm until 7:00pm;

(b)The parent with whom the children are not ordinarily spending time with on each child’s birthday shall spend time with the children from 3:00pm to 7:00pm unless otherwise agreed;

(c)The children will spend time with the father on the Father’s Day weekend on the same times as set out at Order 5a) and if this was not the father’s usual weekend with the children, it will be spent in lieu of the following weekend;

(d)The children will spend time with the mother on the Mother’s Day weekend and if this was not the mother’s usual weekend with the children, it will be spent in lieu of the following weekend;

(e)The parties will both be entitled to attend all events, involving the children including but not limited to: -

(i)Sporting fixtures;

(ii)Extracurricular activities that allow for parental attendance;

(iii)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.

8.The parties will ensure that each parent is listed on the children’s school enrolment form as a parent and emergency contact.

9.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.

10.Each parent notify the other in writing of any changes to contact/residential details at least 2 weeks prior to any such change occurring.

11.Each parent notify the other if any of the children receive medical attention or is seriously injured or requires hospitalisation or in the event of an emergency, as soon as is practicably possible after such event.

12.For the purpose of communication of information between the parties, the mother and father shall:

(i)communicate by telephone in an emergency situation;

(ii)communicate by text message or email about day to day matters including arrangements for each party to spend time with the children or all other matters relating to the parenting of the children.

13.These Orders are sufficient authority for each parent to contact and speak to each child’s treating health care professionals and obtain medical information, reports and the like regarding the children.

14.The parents are to use their best endeavours to ensure that the children attend school on each day of required attendance, unless their absence is explained by a medical certificate from their general practitioner.

15.Each of the mother and the father are restrained from the following conduct:-

(a)Denigrating 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;

(b)Discussing these proceedings with the children or within their hearing;

(c)Permitting or allowing the children to see any documentation produced in relation to these proceedings;

(d)Consuming alcohol during any period that the children are in their care or within 12 hours of the children coming into their care;  and

(e)Using illicit drugs during any period that the children are in their care or within 12 hours of the children coming into their care.

16.Mr Branson is, pursuant to s.68B of the Family Law Act1975 (Cth), for the personal protection of Ms Fuller, injuncted and restrained from;

(a)Entering or remaining in the place of residence of Ms Fuller; and

(b)Stalking, threatening, harassing, assaulting or denigrating Ms Fuller.

17.Within 14 days of a request from the Independent Children’s Lawyer each of the mother and the father shall each submit to a hair follicle illicit test to detect the presence of illicit substances through the Drug Detection Agency and the results are to be forwarded to the other party and the Independent Children’s Lawyer upon receipt and provided further that such drug testing shall not be requested more frequently than 3 monthly.

18.The mother and the father are each restrained from cutting their hair shorter than 3 centimetres in length whilst any drug testing order is current.

19.Within 7 days of receiving a request from the Independent Children’s Lawyer to provide a further CDT test, the mother and/or the father shall submit to further CDT testing and shall provide a copy of the results to the Independent Children’s Lawyer upon receipt and provided further that such screening shall not be requested more frequently than monthly.

20.The father shall attend a complete the Manning Up course run by D Group and shall provide evidence of his enrolment in such course within 28 days from the date of these Orders.

21.The first half of a school holiday period shall commence at 6pm on the last day of required attendance and shall end at 12noon on the day closest to the midpoint having regard to the total number of nights (“the midpoint”) and the second half shall commence at 12noon on the day closest to the midpoint and shall conclude at 6pm on the day prior to the first day of required attendance in the new school term.

22.In the event that a school holiday period has an uneven number of nights, the additional night will be with the mother.

23.The parties and the Independent Children’s Lawyer are granted liberty to have the matter restored to the list on 24 hours’ notice.

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 under the pseudonym Branson & Fuller is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE OBRADOVIC:

1. These are short form reasons pursuant to s.69ZL of the Family Law Act 1975 (Cth).

2. Before the Court is an interim application filed by the father on 6 April 2021 seeking an order that the children live with him. In his supporting affidavit the father alleges that the mother poses as an unacceptable risk to the children due to her consumption of illicit substances and lifestyle choices.

3. The father has maintained these concerns since the commencement of these proceedings.

4. The substantive proceedings were commenced by the father on 2 May 2020 seeking orders that he have sole parental responsibility of X born in 2009, Y born in 2021 and Z born in 2013 (“the children”), that the children live with him and that the children spend time with the mother from 10am to 4pm on each alternate Saturday, with such time to be conditional on the mother undergoing drug and alcohol counselling.

5. In her response filed 16 September 2020 the mother seeks orders that the she have sole parental responsibility, that the children live with her and that the father spends supervised time with the children for two hours each fortnight.

6. The matter was listed for Interim Hearing on 28 January 2021 before Judge Dunkley. The mother did not appear on that occasion and orders were made by consent between the Independent Children’s Lawyer and the father, on an undefended basis against the mother. The orders provided that the children live with the mother and that the father spend time with the children on alternate weekends, initially during the day and then progressing to overnight time.

7. An application in a case was filed on 6 April 2021, and listed for hearing on 28 July 2021. The matter was adjourned part-heard to enable the mother to undergo drug testing and provide the results to the Court. At the commencement of the second day of hearing, the mother’s solicitor sought and was granted leave to withdraw. The mother thereafter represented herself.

   Relevant Legal Principles

8. The principles in respect of interim hearings are well known, including that the legislative pathway must at all times be followed (Goode v Goode [2006] FamCA 1346). Interim hearings are curtailed by the absence of cross-examination and testing of evidence in general, and the Court is often in a position where it is unable to make findings of fact. Even in such constrained circumstances, the Court is still required to determine the applications before it.

9. In terms of a risk assessment, the Court is to determine that issue by weighing the probabilities of competing claims and the likely impact on the child in the event that a controversial assertion is acted upon or rejected (Keats & Keats [2016] FamCAFC 156).

   Uncontested Facts

10. There are a few agreed and/or uncontested facts between the parties, as far as relevant they are as follows:

    a.The parties commenced a relationship in 2001.

    b.The mother gave birth to the parties’ first child, Mr E, in 2002. Mr E is 19 years old and not the subject to these proceedings.

    c.X was born in 2009.

    d.Y was born in 2010.

    e.Z was born in 2013.

    f.In 2016 the parties and their children moved from the Region F to Town C.

    g.The parties married in 2017.

    h.In July 2018 the parties separated after the father assaulted the mother, including choking her. The father was arrested and then granted bail to attend residential rehabilitation at G Centre. The father received a 12 month custodial sentence and an apprehended domestic violence order was in place until January 2021. The father has not come to the attention of the police for any adverse reason since his release from custody in December 2019.

    i.After the assault, the mother and the children spent time with the maternal grandparents in Suburb H before moving to Town B.

    j.Until August 2018 the mother had no offences recorded on her criminal history. In August 2018 the mother was charged with a mid-range drink driving offence and in October 2019 the mother was charged with a high-range drink driving offence. The mother has also been convicted of 2 counts of malicious damage, 1 count of stalk/intimidate and 1 count of common assault since separation in July 2018. There have been no further offences of the mother after September 2019.

    k.In 2019 the Department of Communities and Justice (“DCJ”) inspected the mother’s household. There was no intervention as a result of the inspection.

    l.In 2021 following further reports of drug use and inadequate care, the DCJ and the police inspected the mother’s household. Neither the DCJ nor the police raised safety concerns for the children.

    m.The Children have spent block periods with their father since April 2021. Such time was not in accordance with the Orders made by the Court but rather via some arrangement between the parents.

    Determination

11. Some of the very concerning features of this case, are the significant violence which the father had perpetrated upon the mother and in general his violent and antisocial behaviour, as well as past alcohol and drug use. The other very concerning features are the mother’s drug and alcohol use, and her antisocial behaviour. The children are at significant risks in both households and it is the unfortunate task of this Court to have to determine the least-worst option for them.

12. The children have until early 2021, spent very little time with the father and the mother has been their primary carer. There is a suggestion in the father’s care that the children were living with their grandparents for significant periods of time and that the mother was not their primary carer, particularly in the past two years. Between July 2018 and April 2021, the children had not lived in the same household as the father. Since April 2021, the children have lived between the parents and there has been some tug-of-war between the parents as to where the children will be staying.

13. On 1 April 2021, the father provided a hair follicle drug test result clear of all illicit substances. On 29 June 2021, the father provided a carbon deficit transferrin (“CDT”) test result with a reading of 1.2. These test results indicate that at the relevant time the tests were conducted, drug and alcohol consumption were not an issue for the father.

14. In her material, the mother made concession as to drug use. At the time that the interim hearing commenced in July 2021, the mother had not yet undertaken hair follicle drug testing or CDT testing. During the adjourned period, the mother did undertake both hair follicle drug testing and CDT testing. She had also undertaken urine drug testing in June 2021.

15. The result of the drug tests were tendered by the Independent Children’s Lawyer and marked as exhibits 1-3. While no drug besides Creatinine was detected in the urine analysis test, the mother’s hair follicle test results show positive readings for Amphetamines and Methamphetamines. The CDT test result showed a reading of 1.6 (which is the acceptable range).

16. On 24 August 2021, at the interim hearing, the mother informed the Court that she did not expect for the drug test to come back positive, and but for the positive test, she would not have disclosed her most recent drug taking to the Court. The mother further submitted that she had used drugs on the one occasion during the mid-year school holidays, and essentially that it was a one-off event and that she does not use drugs regularly.

17. The children have had a number of changes to their schooling, and more concerningly there have been many absent days in 2020 and in 2021. These days have been missed for various reasons, including because the children were staying with the father at his home which is too distant from the children’s school to make daily attendance practical.

18. If the children reside with the father, they will be returning to a school they had previously attended. Both parents however, appear on the evidence, to have limited capacity to ensure that the children meet their educational needs.

19. As noted earlier, one of the major risks to the children arises out of the father’s violent behaviour towards the mother. In July 2018, the father assaulted the mother, including choking her, and as a result received a custodial sentence. An apprehended domestic violence order was in place until January 2021. There is a significant risk to the children arising out of the exposure to family violence and the impact this might have on their long term development.

20. The father has provided evidence of completing the EQUIPS program and he has complied with drug testing orders. He has not come to the attention of the police for any adverse reasons since his release from custody in December 2019. The mother has agreed to the children spending significant block periods of time with the father in 2021, and as such, it is inferred that she does not consider the children to be at an unacceptable risk of harm if spending time with the father, such inference is relevant as to the mother’s capacity to foster a relationship between the children and the father, to protect the children from harm and meet their needs. The mother says that she is frightened of the father. The mother also says that the father is undermining of her parenting with the children.

21. The Independent Children’s Lawyer (“ICL”) supports orders for the children to live with the father and spend alternate weekends and half school holidays with the mother. The ICL submits that there are risks in both households, but that the father has to date, provided more independent evidence that the risk factors have been or are being addressed. The Court accepts the submission of the ICL based on the evidence before the Court.

22. In all of the circumstances, it is presently in the children’s best interest that they live with the father and spend time with the mother each alternate weekend and for half the school holidays. While such an arrangement will still see them exposed to risks in both households, there will be a number of protective orders put in place, the least of which is an order requiring the children to attend school every day unless such an absence is due to a medical condition, supported by a medical certificate. Attendance by these children at school will be a significant protective factor for them, as will a requirement for the parents to continue to be subjected to random drug and alcohol testing on an ongoing basis.

23. For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:  

Dated:       30 August 2021