Dash & Golla

[2021] FCCA 1806

FEDERAL CIRCUIT COURT OF AUSTRALIA

Dash & Golla [2021] FCCA 1806

File number:

MLC 12715 of 2020

Judgment of:

JUDGE O'SHANNESSY

Date of judgment:

20 July 2021

Catchwords:

FAMILY LAW – Interim parenting – spend time arrangements – father’s time extended – mother’s urine test produced unreliable result – inference of not the mother’s urine – concessions of drug use – hair follicle test ordered.

Legislation:

Family Law Act 1975 (Cth) ss 11F

Evidence Act 1995 (Cth) ss 144

Number of paragraphs:

17

Date of hearing:

20 July 2021

Place:

Melbourne

Solicitor for the Applicant:

Hartleys Lawyers

Solicitor for the Respondent:

Brendan Rothschild Legal Group

ORDERS

MLC 12715 of 2020

BETWEEN:

MR DASH

Applicant

AND:

MS GOLLA

Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	20 JULY 2021

THE COURT ORDERS BY CONSENT THAT:

1.The Interim Orders dated 12 March 2021 be discharged.

THE COURT ORDERS THAT:

2.The Child, X born in 2017 ('the Child') spends time with the Father, MR DASH, ("the Father") on a two week cycle as follows:

(a)Week one - Commencing 24 July 2021

(i)Saturday from 9am until the commencement of kindergarten (or 9am if a non-school day) on Monday.

(ii)Tuesday from conclusion of kindergarten (or 3pm if a non-school day) until the commencement of kindergarten (or 9am if a non-school day) on Wednesday.

(iii)Thursday from the conclusion of kindergarten (or 3pm if a non-school day) to the commencement of kindergarten (or 9am if a non-school day) on Friday.

(b)Week two

(i)Tuesday from conclusion of kindergarten (or 3pm if a non-school day) until the commencement of kindergarten (or 9am if a non-school day) on Wednesday.

(ii)Thursday from the conclusion of kindergarten (or 3pm if a non-school day) to the commencement of kindergarten (or 9am if a non-school day) on Friday.

3.As of 12 November 2021, the Child spend time with the Father on a two-week cycle as follows as follows:

(a)Week one - Commencing 12 November 2021

(i)Friday from the conclusion of kindergarten (or 3pm if a non-school day) until the commencement of kindergarten (or 9am if a non-school day) on Monday.

(ii)Tuesday from conclusion of kindergarten (or 3pm if a non-school day) until the commencement of kindergarten (or 9am if a non-school day) on Wednesday.

(iii)Thursday from the conclusion of kindergarten (or 3pm if a non-school day) to the commencement of kindergarten (or 9am if a non-school day) on Friday.

(b)Week two:

(i)Tuesday from conclusion of kindergarten (or 3pm if a non-school day) until the commencement of kindergarten (or 9am if a non-school day) on Wednesday.

(ii)Thursday from the conclusion of kindergarten (or 3pm if a non-school day) to the commencement of kindergarten (or 9am if a non-school day) on Friday. 

THE COURT ORDERS BY CONSENT THAT:

4.For the purposes of changeover, if this does not occur at the Child's kindergarten, this shall occur at the agreed location along B Street, Suburb C.

5.In addition to the above, the Father communicate with the Child via Telephone on days the Child is not in his care for a period of not more 30 minutes, at a time agreed between the parties and failing agreement, the Father communicates with the Child between 6.00pm and 6.30pm with the Mother, MS GOLLA, ("the Mother") to do all necessary things to facilitate the call and the Father to message the Mother when ready to commence the call.

6.The parties keep the other advised of their current residential address and mobile telephone number and notify the other in writing no less than 7 days prior to any change of residential address and within 48 hours of any change of their mobile telephone number.

7.Each parent is authorised to obtain from the Child's school or kindergarten: all notices, letters, school reports, photographs (at the expense of that party) and invitations, and to attend parent teacher interviews and all other activities or events which parents usually attend and to attend to her for the purpose of collect and return the child pursuant to these orders.

8.Each parent is authorised to contact any medical, or other specialist practitioner, upon whom the Child attends to discuss any issues and recommendations for the treatment of the Child.

9.Each parent will contact the other immediately in case of an emergency involving the Child, and will notify the other parent as soon as practicable in the event of the Child suffering illness and/or requiring medical treatment.

10.Without admitting the necessity of such order, the parties, their servants and agents be and are hereby restrained by injunction from:

(a)denigrating each other and their families to or in the presence or hearing of the Child or any of them and permitting any other person to do so;

(b)passing messages through the Child to the other parent;

(c)discussing parenting issues and/or issues with or in the presence of the Child or any of them and permitting any other person to do so;

(d)exposing the Child to any conflict between the parties and their families and permitting any other person to do so; and

(e)from discussing the court proceedings including any ancillary proceedings with or in the presence or hearing of the Child or any of them and permitting any other person to do so.

11.The Father be and is restrained from caring for the child at or within his workshop (repairs workshop)

12.The Mother forthwith make an appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or a nominee ("the testing facility") for hair drug testing purposes. Collection be conducted by a qualified and certified collector. Chain-of- Custody procedure be applied to the sample. Testing be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:

(a)the Mother maintain her head and/or body hair at a length of not less than four centimetres and neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;

(b)the Mother submit to the collection of the hair sample as directed;

(c)the Mother provide the collector with photographic identification, which is to be recorded before each hair collection, with this order hereby authorising AWDTS or a nominee to provide the results of each test to both parties, their legal representatives upon receipt of such test results;

(d)the hair drug test may screen for drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drug specified in this order as required; and

(e)the Mother provide the testing facility with a copy of these orders and the Father is at liberty to do so;

(f)it is requested that Victoria Legal Aid fund one half (that being the Mother's half) of the costs associated with the hair follicle testing, and the Father to pay the outstanding amount;

(g)In the event that Victoria Legal Aid is unable to fund any part of the requested hair follicle test, then the Father will fund the total costs of testing. 

THE COURT ORDERS THAT:

13.Pursuant to section 68L(2) of the Family Law Act 1975 the child X born in 2017 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:

(a)Forthwith upon appointment by Victoria Legal Aid, the Independent Children's Lawyer file a Notice of Address for Service; and

(b)Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children's Lawyer copies of all relevant documents.

14.Pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child X born in 2017 attend upon a Family Consultant nominated by the Regional Coordinator of Child Dispute Services of the Federal Circuit Court of Australia (Melbourne Registry) for the purposes of the preparation of a Family Report to be given to the Court by 31 March 2022 AND THAT:

(a)The Family Report address the matters relevant to ss.60CC, 61DA and 65DAA of the Family Law Act 1975 and any other matters that the Family Consultant considers important to the welfare or best interests of the child.

(b)The parties comply with all reasonable directions of the Family Consultant.

(c)The Family Consultant have leave to inspect the subpoenaed material produced to the Court.

15.Leave is granted to each of the parties and the Independent Children's Lawyer to provide a copy of the Family Report to a convener of any legal dispute resolution conference.

16.The parties make application for (and Victoria Legal Aid be requested to arrange) a Victoria Legal Aid Family Dispute Resolution Service Conference prior to the Final Hearing.

17.The proceedings be adjourned to 22 September 2022 at 10:00am for Final Hearing (with an estimated hearing time of 2 days) at the Federal Circuit Court of Australia at Melbourne.

18.The matter may be listed for a compliance mention by telephone approximately 2 weeks prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.

19.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.

20.The Applicant file and serve any Amended Application and a trial affidavit and, if relevant, an updated Financial Statement, upon which he seeks to rely by no later than 56 days prior to the Final Hearing.

21.The Respondent file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which she seeks to rely by no later than 42 days prior to the Final Hearing.

22.The Independent Children's Lawyer file and serve any material on which they seek to rely by no later than 28 days prior to the Final Hearing.

23.Each of the parties be at liberty to file a short affidavit in reply by no later than 21 days prior to Final Hearing.

24.The parties be at liberty to rely upon any affidavit material previously filed in these proceedings and merely file an updating affidavit, provided that written notice is given to the other party at the same time as required for filing a trial affidavit provided above.

25.For final hearings, parties are directed to have multiple copies of the paginated documents they seek to tender or cross examine upon (a judge's working copy, a copy for each counsel and solicitor and a witness copy that will become the exhibit) and have a copy of documents available to witnesses including the witness' own.  Electronic court books are encouraged.

26.Each party file and serve a case outline by no later than 7 days prior to trial and provide a copy in Word format to: associate.judgeo'[email protected].

27.The Callover hearing listed on 3 August 2021 be vacated.

AND THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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.

B.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.

C.Affected unrepresented parties may apply 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.

D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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 Dash & Golla is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. In this matter, I have to determine the question of whether the court-ordered time for the parties’ child, X (“X”) now aged 4, should be extended or not.  The mother, Ms Golla (“the Mother”), seeks that the time that was ordered by the Court on 12 March 2021 remain the same.  The father, Mr Dash (“the Father”), seeks that that time be extended so that he may have a full weekend with X during his time.

2. The Father is aged 34 and works as a tradesman.  The Mother is aged 27 and is engaged in home duties looking after X.  The parties married in 2014 and separated in March 2020.  The Father issued proceedings on 19 November 2020, in circumstances where he was having difficulty arranging time to see X.  The parents had entered into a written parenting plan on 23 May 2020, but there was some controversy about that parenting plan.

3. Each of the parties alleged family violence and drug abuse against the other.  The Father alleged that the Mother’s allegations of family violence and the obtaining of an intervention order were motivated by the Mother’s anger at his application to Centrelink in regard to the child.  The text message exchange between the parties, exhibited to the Father’s affidavit at page 13 of 18 of his November 2020 affidavit, corroborates that account.

4. On 12 March 2021, orders were made effectively putting in place what the Father had alleged to be the agreed parenting plan.  The Father was to spend time with X each Sunday overnight until the Monday, each Tuesday from after kindergarten until the commencement of kindergarten the following day, and each Thursday overnight until the commencement of kindergarten on Friday.

5. On 12 March, the parties were also ordered to attend a section 11F Child Dispute Conference. The parties attended that on 12 July 2021 and, after interviewing the parties, the report writer recommended that the existing time remain the same. It is also important to note that the parties agreed that she should attend child care five days per week to assist with socialisation and learning English. Effectively, under that regime the Father spent one day of each weekend and three nights in each week, or six nights in each fortnight with the child. The details of the existing orders are as follows:

   THE COURT ORDERS THAT:

   1.        The Child lives with the Mother.

   2.        The Child spends time with the Father as follows:-

   a.Each Sunday from 9am until the commencement of kindergarten (or 9am if a non-school day) on Monday.

   b.Each Tuesday from conclusion of kindergarten (or 3pm if a non-school day) until the commencement of kindergarten (or 9am if a non-school day) on Wednesday.

   c.Each Thursday from the conclusion of kindergarten (or 3pm if a non-school day) to the commencement of kindergarten (or 9am if a non-school day) on Friday.

   d.        Such further and other times as agreed between the parties.

   …

   5. The Mother undertake a random supervised urine drug screen testing within 24 hours of this day …

   6. The Mother undertake a random supervised urine drug screen testing within 48 hours of a request being made in writing by the Father’s solicitor on or before 6 July 2021 …

   7. The Father undertake a random supervised urine drug screen testing within 24 hours this day …

   8. The Father undertake a random supervised urine drug screen testing within 48 hours of a request being made in writing by the Mother’s solicitor on or before 6 July 2021 …

   …

   15. Pursuant to section 68L(2) of the Family Law Act 1975 X born in 2017 by independently represented …

   …

   This day before me the Father sought orders as follows:

   2.        That the Child spends time with the Father on a two week cycle as follows:

   a.        Week one:

   i.Each Sunday from 9am until the commencement of kindergarten (or 9am if a non-school day) on Monday.

   ii.Each Tuesday from conclusion of kindergarten (or 3pm if a non-school day) until the commencement of kindergarten (or 9am if a non-school day) on Wednesday.

   iii.Each Thursday from the conclusion of kindergarten (or 3pm if a non-school day) to the commencement of kindergarten (or 9am if a non-school day) on Friday.

   b.        Week two:

   i.Each Saturday from 9am until the commencement of kindergarten (or 9am if a non-school day) on Monday.

   ii.Each Tuesday from conclusion of kindergarten (or 3pm if a non-school day) until the commencement of kindergarten (or 9am if a non-school day) on Wednesday.

   iii.Each Thursday from the conclusion of kindergarten (or 3pm if a non-school day) to the commencement of kindergarten (or 9am if a non-school day) on Friday

6. After discussion with me, the Father’s application changed to the effect that if he was to have a two-night alternate weekend, the Sunday night and Sunday day time in the other week should cease, and that the weekend should extend to three nights from Friday after kindergarten until Monday before kindergarten from later in the year.  The Mother opposes that extension of time and seeks to maintain the existing regime, which would mean that each and every weekend is shared between the parties.

7. The orders of 12 March 2021 also ordered supervised urine tests of both the Mother and the Father.  The Mother was ordered to undertake a supervised urine drug screen within 24 hours of the orders of 12 March, and a further drug screen to be undertaken within 48 hours of a request by the Father’s solicitor on or before 6 July 2021.  The Mother did not undertake a drug screen within 24 hours of the orders of 12 March, and undertook a test in April.  That test was clean of substance abuse.

8. The Father’s solicitor notified the Mother to undertake a drug test within 48 hours on 29 June 2021, hence, pursuant to the orders, that test should have been undertaken on or before Thursday 1 July 2021, or Friday 2 July 2021, at the latest, depending upon the time of the request.  Mr Rothschild, the Mother’s solicitor informed me that the Mother undertook a test on 7 July 2021, and that this was provided to the Father’s solicitors on the 13 July 2021.  Mr Rothschild told me, and I accept, that that test was clean of all substances.  The Father undertook the test required of him within 24 hours of the orders, and that test was clean of all substances.

9. In the orders sought on the morning of 20 July 2021, the Father pressed for a hair follicle test from the Mother.  The matter was unable to be completed this morning.  It was adjourned to 2.15pm.  In the morning I had pressed the Mother’s solicitor for a number of answers to the issue of the Mother’s compliance with the drug tests.  I raised with the Mother’s solicitor that the usual inference that is drawn from a drug test taken outside the time that it is ordered to be taken is that the test, if taken within the specified time frame, would have tested positive. However over the luncheon adjournment it would have been clear to everyone that a hair follicle test was looming, and that the Father was pressing that that test be taken forthwith.

1. When the matter resumed at 2.15pm, the Mother informed me that she would frequently partake of cannabis on a weekly basis, and had done so for some time.  Such a candid concession was very much to the Mother’s credit, and I thank her for that.  What also came with that frank concession was a promise to forthwith cease cannabis use.  I am prepared to place some weight on the Mother’s promise, notwithstanding the unfortunate circumstances.

2. As discussed with the Mother’s solicitor that cannabis use over the preceding weeks, not days, will be detected in a urine sample is common knowledge and is not a matter reasonably open to question (section 144 Evidence Act 1995 (Cth)). Those circumstances demonstrate the compelling inference that at least the urine provided on 6 July 2021 was not the Mother’s urine. In these circumstances I place some weight on the Mother’s promise to me this day, and I also have the impression (but this is not a finding) that the Mother had not appreciated the seriousness of the consequences of her continued regular cannabis abuse for orders being made as to the care of her child, X.

3. In those circumstances, there is no point to a hair follicle test in the immediate future as it is now known that the Mother has been using at least cannabis on a weekly basis for some time.  I propose to order that the hair follicle test be undertaken in or about the week of Monday, 18 November 2021 as I do not wish to set her up to fail that test, and this will give her an opportunity to prove to the Father and the Court that she has ceased using cannabis.  It goes without saying that a parent cannot properly care for a four year old child while regularly using illicit drugs, including cannabis.  The Father is prepared to undertake the cost of the test in the event that the Legal Aid Commission is not prepared to fund that test.

4. In terms of the dispute about the time, I take into account all of the evidence and affidavits of the parties, including the events and revelations of this day.  I take into account the Child Dispute Conference memorandum dated 13 July 2021.  I am required to take into account the best interests of X, and in determining those best interests I am to consider the benefit of X having a meaningful relationship with both of the child’s parents and the need to protect X from harm.  I also take into account that X is too young to express any wishes in this matter, and that X has been cared for all her life by her Mother, and that it is likely that X’s closest relationship will be with her Mother.

5. The parties agree that the existing time arrangement has progressed well for X, and from that I infer that X has a good relationship with her Father.  I take into account that the orders as now sought by the Father will be a small change to X’s living arrangements.  They will have the effect that the Father will spend an entire weekend with X, and that the Mother will have the entire following weekend with X uninterrupted by the Father’s time.  In addition, as each party seeks, X will spend each Tuesday and Thursday with the Father as provided in the existing orders.

6. In all the circumstances, in my view, it is appropriate that the Father’s time increase so that his next weekend is from Saturday at 9.00am until the commencement of kindergarten on the Monday, but the following weekend X will spend that entire weekend with the Mother.  From the next weekend in that alternate weekend rotation after 1 November 2021, the Father’s time shall extend from after kindergarten on the Friday until before school on the Monday.

7. I will also order that further holiday time for the Father be as agreed between the parties, but I expect that the Christmas holidays would be shared between the parties, and that on two occasions during the long summer holidays the child should spend an extension of that weekend time so that she is with the Father for five nights on each of those occasions, and, in the event the child commences school in 2022, I would expect that the Father’s weekend and Tuesday and Thursday time would cease during school term holidays, but X would spend one week of each of the school term holidays with her Father.

8. I have not heard submissions from the Father or the Mother in regard to those periods so I will not make those orders, but if the parties can’t agree the matter can be mentioned to me on short notice, but not before the parties have participated in FDRS facilitated by Victoria Legal Aid, or consultation with the Independent Children’s Lawyer.  I will fix the matter for Final Hearing for two days commencing on 22 September 2022, and I will order a family report to be released by the end of March 2022.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       5 August 2021