Chancellor & Bardin
[2023] FedCFamC1F 380
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Chancellor & Bardin [2023] FedCFamC1F 380
File number(s): BRC 17076 of 2021 Judgment of: HOGAN J Date of judgment: 9 May 2023 Catchwords: FAMILY LAW – CHILDREN – Where the parties reached final consent on the second day of trial – Where some of the orders that were agreed by the parents and supported by the Independent Children’s Lawyer were not considered to be in the child’s best interests – Where the child lives primarily with the mother – Where the child spends supervised time with the father until the father produces to the mother a copy of a report consequent upon hair follicle testing that establishes the absence of illicit substances whereupon the child will spend each alternate weekend with the father – Where the mother has sole parental responsibility exclusive of the issue of any changes in the child’s living arrangements that make it significantly more difficult for the child to spend time with the father. Legislation: Family Law Act 1975 (Cth) Division: First Instance Number of paragraphs: 21 Date of hearing: 8 & 9 May 2023 Place: Brisbane Counsel for the Applicant: Mr Casey Solicitor for the Applicant: Cornerstone Law Offices Respondent: Litigant in person Counsel for the Independent Children's Lawyer: Ms Murphy Solicitor for the Independent Children’s Lawyer Stewart Family Law ORDERS
BRC 17076 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CHANCELLOR
Applicant
AND: MR BARDIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOGAN J
DATE OF ORDER:
9 MAY 2023
IT IS ORDERED BY CONSENT BY WAY OF FINAL ORDER THAT:
1.All previous parenting orders and plans be discharged.
2.The child, X, born 2015, live with the mother.
3.The mother shall have sole parental responsibility in respect of all major long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)) in relation to the child but exclusive of the issue of any changes in the child’s living arrangements that make it significantly more difficult for the child to spend time with the father.
4.In the exercise of her sole parental responsibility, the mother shall:
(a)inform the father in writing (via email) about decisions to be made 21 days prior to making any decision; and
(b)seek a response from the father in writing about the decision to be made; and
(c)the father shall have seven (7) days to respond to the mother’s email correspondence; and
(d)the mother shall consider the father’s response and keep in mind the best interests of the child; and
(e)the mother shall inform the father in writing as to the decision she has made.
5.The child shall spend time with the father at all such times as may be agreed between the parents, and failing agreement no less than:
(a)commencing upon the making of these Orders:
(i)for two (2) hours each fortnight, with such time to occur on a weekend, supervised by a professional Contact Centre on such days and at such times as nominated by the Contact Centre; and
(ii)for the purpose of Clause 5(a) herein, the parties shall take all steps and sign all documents necessary to complete an intake/enrolment or continue their enrolment at B Contact Centre, Suburb C, or such other Contact Centre as may be agreed between the parties (the Contact Centre); and
(iii)the parties shall comply with all reasonable directions of the Contact Centre; and
(iv)the father shall bear responsibility for the costs associated with the supervised contact.
6.The father shall ensure the child has her own bedroom at his property.
Communication
7.The father shall be at liberty to contact the child on a telephone number provided by the mother each Tuesday and Thursday between 6:30 pm and 7:00 pm.
8.The father shall be at liberty to contact the child on a telephone number provided by the mother on the child’s birthday between 6:30 pm and 7:00 pm.
9.The father shall be at liberty to contact the child on a telephone number provided by the mother on Christmas Day between 6:30 pm and 7:00 pm.
Specific matters
10.The parents shall be restrained and an injunction issue restraining them from consuming illicit substances and prescription marijuana while the child is in their care.
11.The father shall comply with all reasonable directions of the counsellor or case manager at D Service in relation to such counselling, including in relation to his attendances upon their services.
12.The father shall be at liberty to provide to any counsellor he attends upon a copy of the Family Report of Ms E.
13.Within 14 days of the date of this Order, the father shall enrol in Parenting Orders Program (POP), and shall provide evidence of such enrolment to the mother.
14.The father shall forthwith complete the POP Program referred to at Order 13 herein, and shall provide the mother with documentary evidence of his completion of same.
15.On no more than one (1) occasion in the twelve (12) months immediately following the recommencement of the child’s unsupervised time with the father, the mother be at liberty to request the father undertake a hair follicle test for drugs, with the mother to bear the cost of same.
16.The father shall attend to the request referred to in Order 15 within three (3) days of such a request being made and shall produce the results to the mother immediately upon his receipt of same.
17.In the event the report prepared by the hair follicle test facility indicates that the test results are inconsistent with the father’s prescribed medication or there being illicit substances in his sample:
(a)the father’s time with the child shall revert back to that prescribed by Clause 5(a)(i) of these Orders until the father is able to produce a hair follicle test that complies; and
(b)the mother is at liberty to request a further hair follicle test from the father within 12 months of the father subsequently recommencing unsupervised time.
18.The parties are restrained and an injunction issue restraining them from allowing the child to be in the unsupervised care of Mr F (the paternal grandfather) for a period of two (2) years from the date of these Orders.
19.Within 28 days of the date of this Order, the mother shall enrol the child in protective behaviours counselling.
General clauses
20.The mother and the father shall:
(a)keep the other parent informed at all times of their residential address, email address, landline and mobile contact numbers; and
(b)keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide the other parent with information that they are lawfully able to provide about the child; and
(c)inform the other parent as soon as reasonably practicable of any serious medical conditions or serious injury suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent.
21.During the time the child is spending with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent; and
(b)speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the child.
22.By this Order any educational institution attended by the child, be it school, daycare facility or extracurricular provider, is hereby authorised to provide to each parent information and documents about the child’s attendance and progress including but not limited to notices, school reports, school photo order forms, newsletters, and progress reports at the requesting parent’s cost.
23.Each parent is at liberty to have a person other than themselves collect the child at the commencement of her time with that parent, or to return her to the other parent at the conclusion of such time, provided that:
(a)any such person is known to the child; and
(b)the parent having someone other than themselves attend the particular changeover informs the other parent, by a message sent no less than forty-eight (48) hours prior to the changeover, of the name and contact phone number of the person who shall attend at changeover on that parent’s behalf; and
(c)the parent having someone other than themselves attend the particular changeover provide the other parent, no less than forty-eight (48) hours prior to the changeover, with a photograph of the person attending at changeover on that parent’s behalf.
AND IT IS FURTHER ORDERED THAT:
24.Upon the father producing to the mother (at his cost) a copy of a report prepared by a hair follicle testing facility and provided that report indicates that his test results are consistent with his prescribed medication (including marijuana) and there being no illicit substances in his sample, the child shall spend time with the father:
(a)from the conclusion of school Friday (or 3.00 pm if not a school day) until 3.00 pm on Sunday afternoon, and each alternate weekend thereafter; and
(b)during school holidays, commencing during the April 2024 school holiday period: on a week about basis, with the child to spend the first week of school holidays with the father in even numbered years, and the first week of school holidays with the mother in odd numbered years.
25.For the purpose of Order 24:
(a)the father is to be responsible for collecting the child from her school at the commencement of time; and
(b)the mother is to be responsible for collecting the child from the father’s care at the Hungry Jack’s, Suburb G.
26.Within 24 hours of the date of this Order, the father shall engage with D Service for the purpose of undertaking drug and alcohol counselling to assist him to better understand his history of illicit substance use and consider any underlying factors that contributed to his use and shall provide evidence or notice of this engagement to the mother and the Independent Children’s Lawyer within a further 24 hours and every three (3) months thereafter.
27.The father shall continue to engage with the D Service counselling service for no less than 12 months from the date of this Order and thereafter for as long as that service indicates is advisable.
28.The original Minute of Order signed by the parties be placed and kept on the Court file.
29.The final hearing dates of 10 May 2023, 11 May 2023 and 12 May 2023 are vacated.
30.Save as is otherwise ordered herein, no party is permitted to use any documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
31.The Independent Children’s Lawyer is discharged following the provision by the father of the results of the hair follicle testing referred to in Order 24 and the lapsing of three (3) months from the date of this Order, whichever of those occurs last in time.
32.The Independent Children’s Lawyer has liberty to apply in relation to any issue of non-compliance by the father with:
(a)the requirements that he engage with D Service within 24 hours of today and provide proof of that engagement within a further 24 hours; and
(b)the requirement that he provide a report, three (3) months from today, confirming his ongoing engagement with D Service; and
(c)the requirement that he provide the Independent Children’s Lawyer and the mother with a report which will trigger the child’s time with him moving from supervised time to unsupervised time.
33.All outstanding applications are otherwise dismissed and removed from the list of cases requiring determination.
34.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
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 Chancellor & Bardin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOGAN J:
The parents in this matter have reached agreement about a number of orders that they seek be made on a final basis in relation to their daughter, X, who was born in 2015. Included within those orders is that X continue to live with her mother.
The orders also contain a raft of provisions that are intended to ensure that X is not put at risk if her time with her father occurs on an unsupervised basis. In particular, the orders address (and have the father address) the issue that has arisen in his past in relation to his use of illicit substances, including methamphetamine. It is clearly not in X’s best interests that she be in the care of a parent who is under the influence of, or recovering from the effects of consumption of, such a substance.
The parents agreed to orders being made in terms that required X’s time with her father to continue to occur on a supervised basis until two things happened: the first was that the father produced to the mother evidence he had completed 24 weeks of drug and alcohol counselling as provided for in the orders; the second was that he produce a report consequent upon hair follicle testing that indicated the absence of illicit substances and that the only thing tested positive for was medication which he had been prescribed to take.
Having heard the submissions made on behalf of the mother and the Independent Children’s Lawyer, as well as considering the submissions made by the father, I am not persuaded that it is in X’s best interests that orders be made in the way proposed by the parents and agreed to by them and supported by the Independent Children’s Lawyer in that respect.
Rather, I consider that the trigger for the movement of X’s time with her father from supervised to unsupervised should simply be the provision by the father of a report consequent upon hair follicle testing that establishes the absence of illicit substances.
I have arrived at that determination for these reasons.
I intend to make an order, consistent with the orders sought by the parents, that the father engage with a service known as D Service within 24 hours of the date of the making of the orders. The purpose of that is to provide him with support and counselling in relation to drug and alcohol consumption so as to assist him to better understand his history of illicit substance use and to consider any underlying factors that have contributed to that history of use. He will be required to provide to the mother and the Independent Children’s Lawyer proof of that engagement within a further 24 hours. The orders agreed between the parents also provide that the father comply with all reasonable directions of the counsellor or case manager at that service and that he continue to engage with the service for as long as the service indicates is advisable.
Having regard to the submissions made by Counsel for the Independent Children’s Lawyer and Counsel for the mother in particular, I think it appropriate and proper and in X’s best interests that the terms of Clause 13 are amended to require the father to engage with the D Service counselling service for no less than 12 months from the date of the order and, thereafter, for as long as the service indicates is advisable.
Noting the submissions made by Mr Casey on behalf of the mother about the importance of the mother being provided with support and some, I think, to use his word, comfort in her appreciation of the obligations cast upon the father, the father will also be required to ensure that, every three months, he obtain proof from D Service and provide that to the mother – the proof being of his engagement and continued engagement with the service. He will be required to provide a copy of that proof to the Independent Children’s Lawyer following the expiration of the first three-month period from the date of making this order. He will be required to provide proof to the mother every three months thereafter for the period of the 12 months that he is required to participate with that service. In that way, the mother will have proof, every three months, of the father’s continued engagement with the service.
In addition, the orders agreed by the parents provide that the mother has the opportunity, on no more than one occasion in the 12 months immediately following the recommencement of X’s unsupervised time with the father, to request that the father undertake a hair follicle test at her cost. He is required, by the orders sought to be made, to attend within three days of the request for the purpose of that testing and to, thereafter, provide the results to the mother upon receiving the same. The parents have agreed to, and the Independent Children’s Lawyer joins in supporting, an order being made in terms that, in the event that the results of such a report indicate that the results are inconsistent with the father’s prescribed medication or demonstrate the presence of illicit substances, then X’s time with her father will revert back to occurring on the basis of two hours each fortnight at a Contact Centre.
Nothing could be clearer, if orders are made to reflect those aspects of the orders proposed by the parents and the Independent Children’s Lawyer, that the father, alone, is responsible, via the decisions he gets to make in the future about taking or refraining from taking illicit substances, for X’s time with him and how that shall occur.
I am not persuaded that it is necessary, though, to make an order that X’s unsupervised time with her father await the father’s completion of 24 weeks of drug and alcohol counselling. In arriving at that decision, I, of course, acknowledge the importance and the primary consideration of ensuring that X is not placed at a risk of suffering harm. It is clear, from my comments to Mr Bardin, that he, alone, is responsible for this; it is also clear that the mother’s concerns about placing their daughter into his care in circumstances where she is worried that he might be under the influence of illicit substances, or recovering from the effects of illicit substances, is something that is warranted.
However, as Mr Casey, I think, quite properly submitted, the reality of all counselling is that it is dependent upon the information provided by the person who is participating in it. I do not see, therefore, that requiring the movement of X’s time with the father from unsupervised to supervised to await the completion of 24 weeks of drug and alcohol counselling is a necessary trigger.
Rather, it seems to me, the most important thing is the provision of a negative test result. If that takes the father six months, then that will be the consequence for X’s time with him.
Also, he will be required, as I have said, to: immediately engage with the counselling service; produce evidence that he has done so; and provide the mother with evidence of his continued participation in that supportive service over a period of 12 months. In that way, the mother will gain, I hope, to the extent that it is possible, evidence of the father’s continued engagement in the counselling service, together with the knowledge that X’s time with him will not occur on an unsupervised basis until he provides the first clear hair follicle test, following which the period of 12 months (during which she can request a second test) will start to run. So it will be, therefore, within her provenance to request the father to provide a second sample for hair follicle testing at any time within 12 months thereafter.
For those reasons then, I am not persuaded to make orders in terms that take up completely that proffered by the parents with the support of the Independent Children’s Lawyer. Instead, I intend to make an order that instead of Clause 5(b) will read as follows:
Upon the father producing to the mother a copy of the report prepared by the hair follicle testing facility, pursuant to these orders, and provided that report indicates that his test results are consistent with his prescribed medication and there being no illicit substances in his sample,
and thereafter, to the end of that paragraph.
They are the reasons I intend to deliver in support of my determination that, in relation to that aspect of the final orders sought by the parents, those are the terms in which such an order should be made.
Balance of proposed Minute of Orders sought
Having regard to the submissions made by Counsel for the Independent Children’s Lawyer and Counsel for the mother, in particular, and having regard to the evidence before me, I am persuaded that, subject to the amendments I have raised and about which I have given short reasons, the orders, as agreed to by X’s parents and as supported by the Independent Children’s Lawyer, are orders which are in the child’s best interests.
I intend, therefore, to make an order in the terms of the proposed Minute of Order, subject to the amendments I have outlined during the course of my discourse with the parties and their legal representatives this morning.
I do not intend, at this stage, to make an order that the Independent Children’s Lawyer is now excused. Instead, the order will be that the Independent Children’s Lawyer will be excused following the provision, by the father, of the results of the hair follicle testing referred to order 5(b) of the proposed Minute of Order and the lapsing of three months from the date of this order, whichever of those occurs last in time. The orders will also, insofar as 5(b) is concerned, include, therefore, a requirement that the father produce, to not only the mother but also the Independent Children’s Lawyer, a copy of that report – that being the trigger for the movement of X’s time with him from occurring on a supervised basis to occurring on an unsupervised basis.
In that way, the Independent Children’s Lawyer will be present, in essence, to have some oversight of the father’s compliance with the order. In the event, therefore, I will give to the Independent Children’s Lawyer liberty to apply in relation to any issue of non-compliance by the father with the requirements that he engage with D Service within 24 hours of today and provide proof of that engagement within a further 24 hours and the requirement that he provide a report three months from today, confirming his ongoing engagement with D Service; also, as I say, the report, which will be the trigger to move X’s time from supervised to unsupervised time.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 16 May 2023
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