Cayson & Arvidis
[2023] FedCFamC2F 1258
•18 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cayson & Arvidis [2023] FedCFamC2F 1258
File number(s): MLC 4925 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 18 September 2023 Catchwords: FAMILY LAW – children live with father – father have sole parental responsibility – mother failed to attend supervised visits – mother failed to attend a psychologist – mother’s time with children suspended – mother failed to attend court – mother to undertake a hair follicle test – father application to proceed on an undefended basis Legislation: Family Law Act 1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 12 Date of hearing: 18 September 2023 Place: Melbourne Solicitor for the Applicant: James Brown And Associates The Respondent: No appearance Solicitor for the Applicant: Bowlen Dunstan and Associates Pty ORDERS
MLC 4925 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CAYSON
Applicant
AND: MS ARVIDIS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
18 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.Until further order, Mr Cayson born in 1987 (“the Father”) have Sole Parental Responsibility for X born in 2017 (“X”) and Y born in 2019 (“Y”) (“collectively the children”).
2.Until further order, the children live with the Father.
3.The Mothers time with the children pursuant to Order 8 of orders made 21 September 2022 be and is suspended, and the Orders of 16 June 2022 and 21 September 2022 are otherwise discharged.
4.The Mother forthwith do all things necessary to attend upon a psychologist, (“her psychologist”) pursuant to a mental health care plan referral from her general practitioner, for ongoing mental health assessment and treatment and the preparation of a report, in relation to the status of her mental health (“the report”), as follows:
(a)the Mother follow all lawful directions of her psychologist;
(b)the Mother be responsible for any out-of-pocket costs not covered by a mental health care plan, including the costs of appointments and the costs associated with her psychologist preparing the report, to be filed on Affidavit no less than 14 days prior to the Interim Defended hearing listed in Order 10 herein;
(c)the Mother provide her general practitioner and her psychologist with a copy of;
(i)the Psychiatric Assessment and Report of the Mother, prepared by Dr C, Consultant Psychiatrist dated 29 May 2022, annexed to her Affidavit signed and filed on 15 June 2022; and
(ii)the Department of Families, Fairness and Housing S69ZW Report dated April 2022, on the basis that these professionals are advised they must destroy these documents upon completion of their involvement.
1.The Mother and Father be restrained by Injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating each other, or any member of their immediate or extended family, to or in the presence and/or hearing of the children or either of them, either personally or through their servants and/or agents;
(b)denigrating each other not within the hearing or presence of the children, or either of them, either personally or through their servants and/or agents; and
(c)discussing any aspect of this current Court Proceeding within the hearing and/or presence of the children, or either of them, either personally or through their servants and/or agents.
2.The Mother and Father shall notify each other in the event the children or either of them suffer a serious injury and/or illness, as soon as possible after that serious injury and/or illness occurs.
3.In October 2023, the Mother shall undertake and complete a further Hair Follicle drug test (“a further hair follicle drug test”) and IT IS REQUESTED THAT Victoria Legal Aid fund the test, upon application being forthwith made by the Independent Children’s Lawyer for funding, in the sum of $385.00.
4.To give effect to Order 7 hereof, the following shall occur;
(a)the Mother shall make an appointment and attend for hair collection at Australian Workplace Drug Testing Services (“AWDTS”) (1300 378 483), for hair drug testing purposes;
(b)collection is to be conducted by a qualified and certified collector at AWDTS and Chain of Custody procedure is to be applied to the same;
(c)testing is to be conducted at an approve laboratory at AWDTS accredited to conduct hair testing to the recognised international standard by the relevant national accreditation body for that laboratory;
(d)either head or body hair may be collected for testing;
(e)the Mother is required to maintain her hair at a length not less than 4 centimetres; neither head or body hair is to be cut, bleached or dyed between the date of this order and the time of collection of the hair;
(f)each party or their legal representative is at liberty to provide AWDTS with a sealed copy of these orders;
(g)the hair drug testing at AWDTS may screen for drugs of abuse including amphetamine type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites; and
(h)the Mother is to advice the Father’s solicitor and the Independent Children’s Lawyer of the results of the testing immediately upon receipt of the same.
5.All extent applications are adjourned for the Final Hearing (“the final hearing”) on 16 November 2023.
6.In the event the Mother fails to complete the Hair Follicle Test as ordered and/or fails to attend court on 16 November 2023, the Father be at liberty to make an application to proceed this hearing on an undefended basis.
AND THE COURT NOTES THAT:
A.The children have spent 3 periods of time with the Mother, facilitated by the contact centre, in accordance with the 21 September 2022 substantive Interim Orders, on the following dates;
(i)7 May 2023;
(ii)21 May 2023; and
(iii)4 June 2023.
B.The following periods of time between the children and the Mother, scheduled to take place at the contact centre, in accordance with the 21 September 2022 substantive Interim Orders, have been cancelled, on the following dates:
(i)18 June 2023 – the Mother cancelled the visit on 18 June 2023, detailing that she was unwell;
(ii)2 July 2023 – D Contact Centre cancelled the visit, detailing staff shortages;
(iii)16 July 2023 – the Mother cancelled the visit on 15 July 2023, detailing that she was unwell;
(iv)30 July 2023 – the Mother cancelled the visit on 30 July 2023, detailing transport difficulties in attending for supervised time; and
(v)13 August 2023 – the contact centre attempted to contact the Mother on 13 August 2023, to confirm her attendance by text message, but received no response from the Mother.
C.The parties have received two separate supervised time progress reports from the contact centre dated 20 July 2023 and 13 September 2023, detailing the progress of supervised time, as specified in Notation A and B herein, which the Independent Children’s Lawyer has filed on affidavit on 15 September 2023.
D.The Independent Children’s Lawyer has on 15 September 2023 received email correspondence from the contact centre following his enquiry on 13 September 2023 with them in writing, confirming that they can and are prepared to facilitate the next further period of supervised time between the child and the Mother, (in the accordance with Order 8 of 21 September 2022 substantive Interim Orders) on Saturday, 7 October 2023, between 3.30pm and 5.30pm.
E.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
F.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
G.Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
H.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
I.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and passages of authorities added and an attempt has been made to make the orally delivered reasons easier to read but the substance is unchanged.
In the matter of Cayson & Arvidis, the matter comes before me again with the circumstances of the case conveniently set out in the outline of case of the Independent Children’s Lawyer.
1.The central issue in dispute for the purposes of the Interim Defended Hearing listed on 18 September 2023 relates to the further details of the spend time arrangements between children [X] born [in] 2017 ("[X]") and [Y] born [in] 2019 ("[Y]") (collectively "the children") and the Mother.
2.The children had previously not spent face-to-face time with the Mother since around May 2020, amid allegations made in relation to the Mother's illicit substance misuse issues and her ongoing mental health difficulties.
3.[Dr C], Consultant Psychiatrist, has prepared the Mother's Psychiatric Assessment and Report dated 29 May 2022, in accordance with Order 3 of the 28 January 2022 interim Orders, which report is annexed to her Affidavit signed on 15 June 2022. This report provides observations and recommendations in relation to the Mother's current mental health. At paragraph 4 of her 'Opinion and Recommendations', [Dr C] details; "On assessment today, there was no evidence to support a diagnosis of personality disorder ... [Ms Arvidis]' reported history suggest however that her personality difficulties are more likely secondary to her history of drug and alcohol use".
4.The children have recently spent to date 3 periods of professionally supervised time, facilitated by '[D Contact Centre]’, in accordance with Order 8 of the 21 September 2022 substantive interim Orders ("21 September 2022 Orders"), namely on 7 May 2023, 21 May 2023 and 4 June 2023, being the last period of supervised time. After this, time did not occur on 18 June 2023 (Mother cancelled due to being unwell), 16 July 2023 (Mother cancelled due to being unwell), 30 July 2023 (Mother cancelled citing transport difficulties in attending supervised time) and 13 August 2023 (Mother was uncontactable to confirm spend time arrangements). Additionally, on 2 July 2023 time did not take place in circumstances where '[D Contact Centre]' had staffing shortages.
5.Accordingly, only 3 out of a scheduled 8 periods of alternate week/alternate weekend time, facilitated by ‘[D Contact Centre]’, have taken place, since the making of the 21 September 2022 Orders, which stipulate a substantive report ought to be obtained, after 8 periods of time.
6.The Independent Children's Lawyer has liaised with ‘[D Contact Centre’] on 13 September 2023 and received confirmation from them on 15 September 2023, that they will next be able to facilitate supervised time between the children and the Mother, on Saturday, 7 October 2023, between 3.30pm and 5.30pm, being the 4th schedule of supervised time.
There was no appearances on behalf of the Mother this day. I am satisfied that she has notice of the proceedings. The Father attended and appeared by his Solicitor, and the Independent Children’s Lawyer appeared on his own behalf.
What needs to be understood is that the Father’s household has not only attempted to comply with those orders by attending the supervision centre on each and every occasion, but has endeavoured to prepare the children for such event.
The Independent Children’s Lawyer submitted that the existing orders should remain in place and continue but with the caveat of the Mother having provided a clean hair follicle test.
The Father sought similar orders but with the self-executing order that in an event the hair follicle test was either not completed or showed illicit drugs, that there be a self-executing order for final orders in the terms of his application.
I am not going to do entirely what either party appearing today seeks. I am troubled at the impact on the children of being expected to prepare for time with their Mother when she may or may not turn up.
I am not prepared to have supervised time continuing unless there is some reasonable certainty that the Mother will be able to comply with that order and be clean of drugs at the time and be of good mental health.
The order regarding the Mother’s attendance for mental health rehabilitation is as follows;
4. The Mother forthwith do all things necessary to attend upon a psychologist, (“her psychologist”) pursuant to a mental health care plan referral from her general practitioner, for ongoing mental health assessment and treatment and the preparation of a report, in relation to the status of her mental health (“the report”), as follows:
(a) the Mother follow all lawful directions of her psychologist;
(b) the Mother be responsible for any out-of-pocket costs not covered by a mental health care plan, including the costs of appointments and the costs associated with her psychologist preparing the report, to be filed on Affidavit no less than 14 days prior to the Interim Defended hearing listed in Order 10 herein;
(c)the Mother provide her general practitioner and her psychologist with a copy of;
(i)the Psychiatric Assessment and Report of the Mother, prepared by [Dr C], Consultant Psychiatrist dated 29 May 2022, annexed to her Affidavit signed and filed on 15 June 2022; and
(ii) the Department of Families, Fairness and Housing S69ZW Report dated April 2022, on the basis that these professionals are advised they must destroy these documents upon completion of their involvement.
There is no evidence the Mother has attended upon a psychologist.
I am satisfied that the Mother is on notice of this hearing and has had every opportunity to participate, and I am satisfied she has had every opportunity to participate in the supervised sessions with the boys. I do not have any explanation at the moment as to why she has not been able to facilitate that.
Hence as discussed today, I will discharge the order for supervised time. I will remake, as interim orders, the applicable orders so the parties have only one set of orders to keep track of. I expect the Independent Children’s Lawyer and the Father to do all things reasonably required to bring these orders to the Mother’s attention.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 2 October 2023
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