CROSSMANN & PALMER

[2015] FCCA 3123

FEDERAL CIRCUIT COURT OF AUSTRALIA

CROSSMANN & PALMER [2015] FCCA 3123

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – best interests of the children – parental responsibility – equal shared parental responsibility – allegations of drug and alcohol abuse – whether drug testing required – whether evidence sufficient to require blood testing – CDT test – liver function test – equal shared care – whether equal shared care in the children’s best interests – substantial and significant time – principles for conducting child-related proceedings considered – principles for considering whether it is in a child’s best interests to spend equal time with each parent.

Legislation:

Family Law Act 1975 (Cth), ss.13C, 60B, 60CA, 60CC, 61DA, 62G, 65DAA, 67Q, 68L, 69ZN

Cases cited:
Cilento & Cilento (1980) 6 Fam LR 35; FLC 90-847 not followed
Cowling & Cowling [1998] FamCA 19; (1998) 22 Fam LR 776; FLC 92-801 not followed
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286 followed
McCall & Clark [2009] FamCAFC 92; (2009) 41 Fam LR 483; FLC 93-405
Palmer & Crossmann [2014] FCCA 2378
T & N [2001] FMCAfam 222 followed

Applicant: MR CROSSMANN

Respondent: MS PALMER

File Number: SYC 6195 of 2014

Judgment of: Judge Scarlett

Hearing date: 16 November 2015

Date of Last Submission: 16 November 2015

Delivered at: Sydney

Delivered on: 24 November 2015

REPRESENTATION

Solicitor for the Applicant: Mr Ndou

Solicitors for the Applicant: Lovemore Lawyers

Solicitor for the Respondent: Ms Meadth

Solicitors for the Respondent: Alexanders Lawyers

Solicitor for the Independent Children's Lawyer: Ms Shea

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

UNTIL FURTHER ORDER

1. All previous parenting Orders are discharged.

2. The Applicant and the Respondent are to have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2011.

3. The children X and Y are to live with the Mother.

4. The children are to spend time with the Father as follows:

   (a)Each Wednesday, commencing at 10:00am in the case of Y and from after school or 3:00pm in the case of X until 9:00am on Thursday; and

   (b)From and after the second Saturday after the date of these Orders and continuing on each alternate weekend thereafter from 10:00am on Saturday until the commencement of school or 9:00am as the case may be on Monday PROVIDED THAT from and after 1 March 2016 the children are to spend time with the father each alternate weekend from immediately after school or 3:00pm as the case may be on the Friday until the commencement of school or 9:00 am.

5. In addition to the times referred to in the immediately preceding Order, the children X and Y are to spend time with the Father on the following special occasions, namely:

   (a)From 3:00pm on Christmas Day until 5:00pm on Boxing Day in 2015 and all odd numbered years thereafter;

   (b)From 9:00am on Good Friday until 5:00 pm on Easter Saturday in 2016 and all even numbered years thereafter;

   (c)From 9:00am on Christmas Eve until 3:00 pm on Christmas Day in 2016 and all even numbered years thereafter;

   (d)From 5:00pm on Easter Saturday until 5:00 pm on Easter Monday in 2017 and all odd numbered years thereafter;

   (e)For a period of three (3) hours from immediately after school or 3:00pm as the case may be until 6:00 pm on each of the children’s birthdays; and

   (f)From 5:00pm on the day before Father’s Day until the commencement of school or 9:00am on the following Monday morning.

6. Notwithstanding the above Orders, the children X and Y to spend time with the mother from 5:00pm on the day before Mother’s Day until the commencement of school on the following Monday morning.

7. The Mother and Father must do all things to ensure that the children X and Y are to have telephone communication with the parent with whom they are not living or spending time between the hours of 6:00pm and 6:30pm each evening.

8. For the purposes of changeover where the children go from the care of one parent to the care of the other parent, unless otherwise agreed between the parents in writing, all changeovers will take place at the school attended by X or at the (omitted) Police Station.

9. Within forty-eight (48) hours of receiving a request from the Independent Children’s Lawyer the father is to submit to a supervised chain of custody urine analysis for alcohol and illicit drugs in accordance with the Australian/New Zealand Standard AS/NZS 4308:2008: Procedures for the specimen collection and the detection and quantitation of drugs of abuse in urine with the Independent Children’s Lawyer making no more than one (1) request per month.

10. The Father or his legal representative must provide the urine analysis results to the Independent Children’s Lawyer and to the mother’s legal representative within seven (7) days of receiving the results.

11. Each parent must keep the other parent informed as soon as is reasonably practicable of:

    (a)any serious injury sustained by either of the children;

    (b)any need for either of the children to attend a medical practitioner or a hospital for treatment;

    (c)any medication that has been prescribed for either of the children;

    (d)any social, school or religious function which the children or either of them are to attend; and

    (e)any other matter relevant to the children’s welfare.

12. Each parent must provide to the other parent all landline and mobile contact telephone numbers and residential, postal and email addresses, including contact details during holiday periods and notify the other parent in writing of any change in any of their contact details within twenty-four (24) hours of such change occurring.

13. Each parent must authorise any relevant health professional or school attended by either of the children or educational professional to provide the other parent with copies of reports and any other information and documentation relating to the health or education of the children or either of them.

14. Both parents are entitled to attend all events involving the children or either of them including but not limited to:

    (a)Sporting events;

    (b)Extra-curricular activities that allow for parental attendance;

    (c)School functions that allow for parental attendance and the parent who has the children in his or her care on the day of that activity will be responsible for the care and supervision of the children at the event and the children’s transportation to and from that event.

15. Apart from their attendance at any of the activities referred to in the immediately preceding Order the parents are otherwise restrained from attending at the school or schools attended by either of the children except in the case of emergency or changeover or by appointment or invitation.

16. The parents are restrained from approaching each other at any school functions except for the purposes of changeover or in the case of emergency.

17. Within three (3) months of the date of these Orders and in accordance with the provisions of section 13C of the Family Law Act 1975 the parents must:

    (a)Attend and complete an anger management program and a domestic violence program nominated by the Independent Children’s Lawyer;

    (b)Sign all such documents and do all such acts and things necessary to enrol in, undertake and successfully complete the anger management program and the domestic violence program;

    (c)Pay and otherwise be responsible for all costs if any associated with the anger management program and the domestic violence program; and

    (d)Provide appropriate certificates of completion to the other parent’s legal representative and the Independent Children’s Lawyer.

18. Both parents are restrained by injunction from:

    (a)Discussing these proceedings with either or both of the children, unless required by a Court Order to do so, or from showing to either or both of the children any documents relating to these proceedings, including reports and affidavits, or from discussing the contents of any such document with either or both of the children;

    (b)Passing messages to the other parent through either or both of the children;

    (c)Using any form of physical discipline on the children;

    (d)Making any critical, disrespectful, disparaging or derogatory remarks about the other parent or any member of the other parent’s family or household to either of the children or in the presence or hearing of either of the children or allowing any third party to do so, such injunction to include verbal, written or electronic means including email, text message, Facebook or any other form of social media;

    (e)Consuming alcohol to excess or administering to themselves any illicit drug at any time when either or both of the children are in their care or for twelve (12) hours beforehand; or

    (f)Showing to either or both of the children any video footage or photographs that they have taken of the other parent following separation, including but not limited to footage or photographs taken at changeover.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6195 of 2014

MR CROSSMANN

Applicant

And

MS PALMER

Respondent

REASONS FOR JUDGMENT

Application in a Case

1. This is an Application by the Father of two young children, X and Y, to vary earlier interim parenting Orders made on 10^th October 2014 (Palmer & Crossmann[1]). He seeks orders that the children should spend equal time with each parent. The Mother concedes that there is a case for an increase in the time that the children spend with their father but proposes an arrangement that falls far short of the equal time arrangement proposed by the Father.

   [1] [2014] FCCA 2378

2. The Independent Children’s Lawyer does not support the equal time arrangement proposed by the Father but would support the more modest proposals made by the Mother. Indeed, the orders suggested by the Mother are a modified version of a set of orders originally proposed by the Independent Children’s Lawyer.

3. It should not be thought, however, that the Court is bound to follow one set of proposed orders to the exclusion of the other. The duty of the Court is to regard the children’s best interests as the paramount consideration and make orders accordingly (see Family Law Act 1975 (Cth)).

Background

1. The Mother was born on (omitted) 1976 and is therefore 39 years of age. The Father was born on (omitted) 1979. He is 36 years of age.

2. The parties commenced living together on (omitted) 2008. They separated in February 2014.

3. There are two children of the relationship, a girl and a boy. The parties’ daughter X was born on (omitted) 2009. She is now 6 years old. Their son Y was born on (omitted) 2011. He has recently attained the age of 4 years.

4. The Mother is in employment as a (occupation omitted) in a (employer omitted) in Sydney. The Father has not been in employment since 2010. The parties’ evidence differs on the reasons for the father remaining out of the workforce. The Mother claims that he refused to work, but it is the Father’s case that the parties agreed that he should remain at home and be the children’s primary caregiver.

5. On separation, the children remained living with the Mother and spent time with their father by arrangement.

6. On 2^nd October 2014 the Mother brought an urgent Application for a Recovery Order and other parenting orders, deposing in her affidavit of that same date that the Father had unilaterally retained the children in his care the day before and had sent a text message saying that the children were to stay with him from then on. On 3^rd October 2014 the Court made an ex parte Recovery Order under the provisions of s. 67Q of the Family Law Act 1975.

7. On 10^th October 2014 the Court heard an Application for Interim parenting orders and made orders that same day (Palmer & Crossmann[2]). Those orders provided that, until further order:

   a)The parties were to have equal shared parental responsibility for the children;

   b)The children were to live with the Mother;

   c)From 10:00am to 4:00pm each Wednesday;

   d)Each alternate weekend from 9:00am on Saturday until 5:00pm on Sunday;

   e)From 2:00pm on Christmas Day until 5:00pm on Boxing Day; and

   f)At such other times as the parties should agree.

   [2] supra

8. An order was made appointing an Independent Children’s Lawyer under s.68L of the Family Law Act 1975.

9. A Family Report under the provisions of s.62G of the Act was ordered on 15^th December 2014.

10. The Father filed an Application in a Case on 22^nd April 2015, seeking to vary the interim parenting Orders.

11. The Family Report was released on 12^th May 2015.

12. On 11^th September 2015 the Father field an Amended Application in a Case, seeking an equal shared care arrangement on a week about basis.

13. The Mother filed a Response to an Application in a Case on 14^th September 2015, although it was expressed to be a Response to the earlier Application in a Case filed on 22^nd April 2015.

14. The Application for Interim Orders was listed for hearing on 16^th September 2015 but was not reached on that occasion. It was given priority on the next occasion, namely 16^th November 2015.

15. There are criminal charges against the Mother which were part-heard on 31^st August 2015 and adjourned to 14^th December at the Downing Centre Local Court.      

Evidence and Submissions

1. The Father is the Applicant in this Application, although he is the Respondent in the substantive proceeding. He relied on the following documents:

   a)His Amended Application in a Case filed on 11^th September 2015;

   b)His affidavit of 22^nd April 2015;

   c)His affidavit of 13^th February 2015; and

   d)His affidavit of 8^th October 2014.

2. It is well known that a party is entitled to rely on one affidavit per witness in interim hearings in the Sydney Registry, so the Father’s purported reliance on three affidavits will not be permitted. It is noted that he did not file an affidavit in support of his Amended Application in a Case of 11^th September 2015 and was prepared to rely on his affidavit of 22^nd April.

3. The Father’s solicitor, Mr Ndou, relied on a Minute of Order dated 16^th September 2015, the earlier hearing date. He also prepared an extensive Case Outline.

4. The Father also relied on two Urine Drug Screen reports dated 9^th April and 7^th November 2015, which showed that illicit drugs were not detected. Neither of those reports was said to comply with chain of custody requirements. 

5. The Mother relied on:

   a)Her Response to an Application in a Case;

   b)Her affidavit of 11^th September 2015; and

   c)An Amended Minute of Order originally prepared by the Independent Children’s Lawyer.

6. The Independent Children’s Lawyer supported the orders sought by the Mother.

7. The parties also relied on the Family Report.

8. It was submitted on behalf of the Father that:

   a)He is currently spending one day a week with Y and one day a fortnight with X;

   b)The Mother does not agree to the children’s time with the Father being increased[3];

   [3] Although the Mother’s Response sought a dismissal of the Father’s Application in a Case the Mother in fact argued that there was a case for the Father’s time with the children to increase.

   c)The minimal time the Father is spending with the children does not allow him to have a meaning involvement in their lives;

   d)There are criminal matters pending against the Mother as a result of domestic violence;

   e)The children were cared for by the Father prior to the parties’ separation;

   f)Section 69ZN of the Family Law Act 1975 sets out the principles for conducting child-related proceedings and the Court should consider the needs of the children and the impact of the proceedings on the children, including undue delay;

   g)The Court should not grant a further adjournment of the proceedings[4];

   [4] An adjournment was not sought.

   h)The Mother is constantly reducing the amount of time the children spend on the telephone with their father;

   i)There is a benefit to the children in having a meaningful relationship with each parent (s.60CC of the Family Law Act 1975, see also McCall & Clark[5]);

   [5] [2009] FamCAFC 92; 41 Fam LR 483; FLC 93-405

   j)The Mother’s allegations that the Father was violent to her during the relationship were not supported by evidence;

   k)The Mother applied for an Apprehended Violence Order against the father, but the Application was dismissed after a hearing on 14^th May 2014;

   l)The Mother made unsubstantiated allegations that the Father had sexually abused the child X;

   m)The Mother made allegations that the Father smoked marijuana during the relationship, but the Father’s evidence is that he experimented with marijuana when he was young but had abstained from using the drug years previously;

   n)The Father has raised serious concerns relating to the Mother’s parenting capacity and potential neglect of the children;

   o)The Father has raised serious concerns about the behaviour of the Mother’s boyfriend, one Mr K[6];

   [6] It is the mother’s case that this relationship is no longer current.

   p)The Father claims that the Mother has a tendency to denigrate him in the presence of the children;

   q)The Father has concerns about the Mother’s allegedly violent behaviour, citing the fact that she has been charged with assault on the paternal grandmother and there is an interim Apprehended Violence Order in place against her naming the grandmother as the protected person;

   r)The children are too young for any significant weight to be put on their wishes;

   s)The Father was always the primary carer of the children prior to the parents’ separation;

   t)The Father is currently not employed but still pays child support and contributes towards the children’s school fees and medical expenses;

   u)The children currently live with their mother but are not coping well with spending less than substantial and significant time with their father;

   v)The Father continues to live with his parents;

   w)Changeover can continue to occur at the front of (omitted) Police Station or at school or day care;

   x)Both parents are of (nationality omitted) background; the Father has concerns about the mother’s “sex lifestyle”;

   y)The Family report suggested that the Father interacted with the children with affection, as did the paternal grandmother.

9. In his oral submission to the Court, Mr Ndou stated that the Father’s position of equal shared care was recommended in the Family Report and the Mother has not been supportive of the Father’s time with the children.

10. Interestingly, Mr Ndou referred the Court to the decisions of the Full Court of the Family Court in Cilento & Cilento[7] and Cowling & Cowling[8], which, he suggested, were still useful in assisting the Court to decide interim parenting applications, as well as the more recent authority of Goode & Goode[9]. He submitted that the authorities show that there is no presumption in favour of the status quo.

    [7] (1980) 6 Fam LR 35; FLC 90-847

    [8] [1998] FamCA 19; (1998) 22 Fam LR 776; FLC 92-801

    [9] [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286

11. The Mother’s solicitor, Ms Meadth, submitted that the Court should give the two urine drug screen test results little weight because there was no proof that the samples were taken in accordance with chain of custody protocols.

12. The Court was referred to the Family Report at paragraph [33] where the child X is reported as feeling sad because she does not spend enough time with her father.

1. The Mother’s solicitor also submitted that the Mother had more often than not agreed to requests by the Father for a small increase in his time with the children. However, she submitted, the change proposed by the Father is a significant one. The children currently spend one night a fortnight with him.

2. Further, it was submitted, there is a high degree of conflict between the parties, as evidenced by changeovers taking place in front of the (omitted) Police Station. Again, there are continuous reports by the Father to the Police about the Mother.

3. The Father does not work and does not tell the Court how he intends to support the children financially if they were in his care for one week each fortnight.

4. There is also the question of practicability. The parties do not live close to each other. The Mother lives in a suburb to the (omitted) of the city of Sydney whilst the Father lives in a suburb to the (omitted) of the city. It has to be said that the parties do not really live a great distance apart from each other.

5. Ms Shea, for the Independent Children’s lawyer, submitted that, contrary to the Father’s claim, equal shared care is not supported by the writer of the Family Report, and referred the Court to paragraphs [46], [47], [49] and [50] of the Family Report.

6. Ms Shea also referred the Court to the decision of T & N[10], where Ryan FM[11] made an extensive analysis of cases where equal shared time between parents had been considered by Courts, not only in this country but in the United Kingdom and Canada. At paragraph [93] of the decision her Honour set out a list of principles to be considered by the Court in cases where a party seeks orders that share a child’s time equally between parents.

   [10] [2001] FMCAfam 222

   [11] As her Honour then was

7. The decision in T & N was not reported at the time but to my mind it remains, with respect, useful guide to a Court when considering such an application, notwithstanding the fact that the decision was handed down 14 years ago. If anything, it is more apt since section 65DAA of the Family Law Act 1975 was amended in 2010.

8. The principles to be considered are:

   a)The parties’ capacity to communicate on matters relevant to the child’s welfare;

   b)The physical proximity of the two households;

   c)Are the homes sufficiently proximate that the child can maintain their friendships in both homes?

   d)The prior history of caring for the child. Have the parties demonstrated that they can implement a 50-50 living arrangement without undermining the child’s adjustment?

   e)Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern;

   f)Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise;

   g)Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities;

   h)Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?

   i)Whether or not the parties respect the other party as a parent;

   j)The child’s wishes and the factors that influence those wishes; and

   k)Where siblings live[12].   

   [12] T & N (supra) at [93]

The Parties’ Proposals

1. The Father, in a Minute of Order, proposes that (in summary):

   a)The parties should have equal shared parental responsibility for the children;

   b)During the school term the children should live with each of the parents for 7 nights in each 14 day cycle with the mother from Wednesday afternoon until 6:00pm on Saturday, with the Father from 6:00pm on Saturday until after school on Wednesday, with the mother from after school on Wednesday until 10:00am on Sunday and then with the Father from Sunday morning until Wednesday afternoon;

   c)For half of the school holidays;

   d)With the Father on Father’s Day, the father’s birthday, the children’s birthdays, the paternal grandparents’ birthdays[13], alternating Christmas times;

   e)A similar arrangement for the Mother;

   f)Changeover at (omitted) Police Station at the commencement of the children’s time with the Father and at (omitted) Police Station at the conclusion of the Father’s time;

   g)Telephone contact;

   h)Other ancillary orders, including arrangements for international travel or for when either party proposes to take the children out of the Sydney metropolitan area for more than 24 hours.

   [13] The minute refers to the ‘Paternal Grandparent’s birthday’s” but it is presumes that this refers to the paternal grandparents’ birthdays.

2. The Mother seeks orders as proposed by the Independent Children’s Lawyer, with some slight modifications, that:

   a)The parents should have equal shared parental responsibility for the children;

   b)The children should live with the Mother;

   c)The children should spend time with the Father:

   i)Each Wednesday, with Y’s time commencing at 10:00am and X’s time commencing after school or 3:00pm, until 9:00am on Thursday;

   ii)Alternate weekends from 10:00am on Saturday until before school or 9:00am on Monday;

   d)Alternating arrangements for Easter and Christmas;

   e)Telephone communication each evening;

   f)Changeover at school or (omitted) Police Station at the commencement of the Father’s time and (omitted) Police Station at the conclusion of the Father’s time;

   g)The Father to undertake chain of custody urine drug screen to detect the presence of alcohol or illegal drugs as directed by the Independent Children’s Lawyer once a month;

   h)The Father to undertake blood testing for the purpose of a CDT test and a Liver Function test as directed by the Independent Children’s Lawyer once each month;

   i)Both parties to complete an anger management course and a domestic violence course within three months; and

   j)Other ancillary parenting orders.

Agreed or uncontested relevant facts

1. The children lived with the parents until separation. The Father did not work after 2010 but the Mother has been in full-time employment as a (occupation omitted) the whole time. The children have lived in the primary care of the Mother since the parties separated in February 2014.

The Relevant Law in regard to Parenting Applications

1. When the Court is considering making parenting orders, whether final orders or orders until further order, it must have regard to various sections of the Family Law Act 1975 that are to be found in Part VII of the Act, including sections 60B, 60CA, 60CC, 61DA and 65DAA.

2. All of these matters have been considered, so far as they are relevant. The matters covered by sections 60CC, 61DA and 65DAA will be discussed further.

Relevant matters in section 60CC of the Family Law Act

1. The Full Court of the Family Court in Goode & Goode[14] requires the Court at first instance to consider the matters in s.60CC that are relevant and, if possible, make findings about them, noting that:

   (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place)[15].

   [14] supra

   [15] (2006) 36 Fam LR 422 at 445 [82]

2. In this case, the issues mainly concern the two primary considerations in subsection 60CC(2), being on the one hand the benefit to the children of having a meaningful relationship with both of their parents and, on the other hand, the need to protect the children from physical or psychological harm from being exposed to abuse, neglect of family violence.

3. The children are spending most of their time with their mother and the Father claims that there limited time with him hinders their ability to obtain the benefit of a meaningful relationship with him. It is clear from the Family Report that X, at least, is expressing a need to spend more time with her father. The Family Consultant noted at paragraph [33] of the Family Report:

   She indicated that she loves both of her parents but, whereas she lives with “Mummy” “a lot”, she lives with “Daddy” “not much”. Indeed, the pervasive themes in her interview as they pertain to her family were: not having enough time with “Daddy” and how that makes her feel sad; and the parental conflict…

4. The Family Consultant also stated at [43]:

   X made it clear to the Family Consultant that the current parenting arrangements do not meet her needs in relation to her father, which, amongst other things, she also wanted her mother to know.

5. The other primary consideration, of course, is the need to protect the children from physical or psychological harm. The Mother claims that the Father has used excessive physical chastisement on the children. The Father denies this allegation. He claims that the children have told him that their mother hits them. It is not possible to make a factual finding about this issue in an interim hearing, where the evidence cannot be tested by cross-examination and there is no independent evidence. What is clear is that the children are well aware of the conflict between their parents and this has a negative effect on them. X, in particular, made comments to the Family Consultant about this issue:

   Indeed, the pervasive themes in her interview as they pertain to her family were:…the parental conflict, in which she included her parents fighting over her and Y, and its impact on her (pulling her apart – communicated to the Family Consultant by gesture). The parental conflict, she said, both worries and saddens her.[16]

   [16] Family Report page 16, paragraph [33]

6. I note that the Family Consultant recommended that, “where possible, person to person changeover should be avoided”.[17]

   [17] Ibid page 23 at [51]

7. The parents have each made allegations of sexual abuse against each other, but the evidence is not sufficient to make any finding that this has occurred.

Equal shared parental responsibility and section 61DA of the Act

1. The Court is required to decide whether the presumption in s. 61DA that equal shared parental responsibility is in the best interests of the children should apply. In this case, both parents seek such an order and I am satisfied that the order should be made.

Section 65DAA of the Family Law Act – equal shared care

1. The Father seeks an equal time arrangement, which the Mother opposes and the Independent Children’s Lawyer does not support. The Mother proposes, and the Independent Children’s Lawyer supports, orders increasing the amount of time that the children spend with their father from one night a fortnight to four.

2. The Court is required by s.65DAA(1) of the Act to consider whether the children’s spending equal time with each parent is both in their best interests and reasonably practicable.

3. There is clear evidence that the children, X in particular, wish to spend more time with their father than is currently the case. The Family Consultant makes this clear at paragraph [46] of the Family Report:

   Y, being younger, spent less time than X being primarily cared for by their father but, nevertheless, it would seem that both of the children, at the very least, need to be spending more time with their father than they currently do.

4. This much is clear, but it does not mean that it would be in the children’s best interests to go into an equal time arrangement. The Family Consultant does not recommend it, commenting merely that both of the children “could manage” a split week equal time arrangement. However, the Family Consultant goes on to caution:

   Whether this would be the best arrangement for them, given their parents’ problems with one another, is a different thing…[18]

   [18] Family Report page 22 at [46]

5. Looking at the considerations suggested in T & N, it would appear that there are a number of factors that would militate against such a significant change in parenting arrangements, at least on an interim basis. The parties’ capacity to communicate on matters relevant to the children’s welfare does not appear to be strong, and there has not been a prior history of the parents working together to implement a 50-50 living arrangement for the children. Again, the mutual accusations about the other parent’s capacity as a parent suggest that they do not have a great deal of respect for each other as a parent.

6. This is a case where there is a high degree of parental conflict, to the extent that both parents seek that changeovers which do not take place at X’s school should occur at Police Stations. How can it seriously be argued that an equal time split week arrangement is going to work for the best interests of the children? It should be noted that changeover at a Police Station is undesirable as a long term venue for changeover, even if the parties seek such an order as an interim measure.

7. In my view, the Court should consider the matters under s.65DA(2) of the Act, being whether it is in the children’s best interests and reasonably practicable for the children to spend substantial and significant time with each parent.

8. There is clear evidence from the Family Report that the children would benefit from spending more time with their father. The Family consultant recommends at paragraph [48] of the Family Report that “the children spend substantial and significant time with whichever parent they do not live with. Five nights a fortnight is suggested as a possibility.”

9. The Mother proposes four nights a fortnight at this stage, which appears to be a significant change that would benefit the children. As neither parent takes issue with the Family Report, quite the reverse, actually, they have referred to it with approval, it would seem too that an increase in the children’s time with their father to five nights a fortnight in the new year would be worth considering as being in the children’s best interests. It would be preferable to leave that transition until after X has settled into her second year of school. Y will not turn five until (omitted), so it is likely that he will start school in 2017.

10. It appears that an increase in the children’s time to five nights a fortnight could well commence from the beginning of March 2016, when X will be six and a half years old.

Orders that are in the children’s best interests

1. It is noted that the mother’s proposal, supported by the Independent Children’s Lawyer, does not encompass the children’s birthdays, which are in (omitted) and (omitted) respectively. Ideally, the Court would have made final orders before then, but the Court’s overwhelming workload and the backlog of cases to be heard, exacerbated by the fact that one vacancy in this Registry has remained unfilled since January this year and the Court has not been informed of any imminent appointment. It cannot be guaranteed that a final hearing can take place before November.

2. In my view, the children should spend a period of three hours with their father on each of their birthdays.

3. I note that the Mother seeks some rather draconian orders requiring the Father to undertake urine drug screens and blood tests to determine whether there are any traces of alcohol or illicit drugs in his system. True it is that the urine drug screen results that were tendered were not certified as being conducted under chain of custody protocols and they were undertaken some seven months apart. Accordingly, they should be given little weight.

4. The Mother seeks not only an order that the Father undertake urine drug screens but an order that the Father undertake blood testing not more than once a month for the purposes of a CDT test to be analysed using the HPLC analysis method and a Liver Function Test specifically measuring GGT and MCV levels as well as AST and ALT levels. Moreover, she seeks the appointment of a pathologist, one Dr C, as a Court expert under rule 15.09 of the Federal Circuit Court Rules 2001[19] to provide a report on the results of the blood testing.

   [19] Wrongly described as the Federal Magistrates Court Rules 2001 – the name was changed in April 2013

5. In my view the evidence is insufficient to justify orders requiring the Father to undertake these blood tests, which are invasive and not without expense. The strength of the evidence is that the Father conceded that he used marijuana when he was younger but denies that he does so now. The Mother suspects that the Father may be using other drugs but provides no hard evidence in support of that contention.

6. I am prepared to make an order for urine drug screens to be conducted no more frequently than once a month but I do not consider that the evidence justifies anything more serious than that. No party addressed the Court on the necessity for blood tests to be undertaken.

The future progress of this matter

1. These interim parenting Orders are intended to provide for the children’s needs to spend time with each of their parents and develop a meaningful relationship with each one of them until the parenting proceedings can be decided on a final basis. There is also a property claim to be decided. The parties have attended a conciliation conference with a Registrar but, regrettably, the property issues have not resolved.

2. It is likely that the parenting and property proceedings will require three hearing days on a final basis. The Court has no dates available in the near future so the matter will be placed in a callover list in February 2016.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  24 November 2015