FAMILY COURT OF AUSTRALIA
| DONNELLY & BRYSON AND ANOR | [2020] FamCA 929 |
| FAMILY LAW – Parental responsibility – time with parents – where the proceedings were previously adjourned when the Department decided to intervene – supervision by the Department – basis for order for supervision grounded in Family Law Act not state legislation – consent by Department to engage in some supervision - injunctions to support supervision - where interim orders had been made providing for two of the children to live with the Father, for supervised time with the Mother and regarding departmental interventions – where further interim orders had suspended the Mother’s time with the children – where the Mother disengaged part way through the resumed proceedings – where the Mother’s evidence was still relevant and used in proceedings – risk to the children posed by each of the parents – where there has been significant violence between the parties – where there is risk of neglect due to parental incapacity – where the Father has previously misled the Court regarding drug use but has recently complied with drug testing – where the Mother has not complied with drug testing or has provided diluted samples – where the older children have been exposed to and involved to some extent with illicit substances and sexual activity – where the Father has made progress regarding his ability to respond to and avoid using violence – where the Father has undergone anger management and parenting courses – where the Mother shows no signs of making progress regarding her violence or addiction issues – where the Mother’s evidence was confused – where there are questions about both parties’ credibility – where the Father appears to offer a more stable home environment than the Mother – where the Father has made efforts to engage the older two children with support services with some success – where the Mother’s home facilitates the children’s engagement with sexual activity, illicit substances and antisocial behaviour – where the Father appears more consistent in his parenting capacity and ability to manage the children – where the Father appears able to engage the younger two children in school – where there are some questions about the Father’s ability to be authoritative with the children – where the older two children are likely to continue moving between the parties’ houses but indicate some intention to live primarily with the Father – where there is a limited risk of the parties resuming a relationship – where it will be difficult to enforce orders relating to the older two children – where ongoing departmental supervision and involvement is warranted – where this involvement should extend for 12 months. |
| Family Law Act 1975 (Cth) ss 60B, 60CC, 65DAA, 65M, 68B, 69ZK Children and Young Persons (Care and Protection) Act 1998 (NSW) |
| Johnson v Page [2007] FamCA 1235 Jollie & Dysart [2014] FamCAFC 149 Marsden & Winch (No 3) (2007) FamCA 1364 Mazorski v Albright (2007)… |
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- AGLC
- Donnelly and Bryson & Anor [2020] FamCA 929
- Case
- [2020] FamCA 929
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were how to best promote the children's welfare and best interests, particularly in light of concerns regarding the mother's conduct. This included determining the appropriate level of parental responsibility for each parent, establishing a living arrangement for the children, and defining the nature and extent of contact between the children and the mother, including the necessity for supervision. The court also considered the need for injunctions to protect the children from specific risks and the exchange of essential information between the parents.
Gill J reasoned that the children should live with the father and that he should have sole parental responsibility. This decision was informed by the need to ensure the children's safety and well-being, necessitating supervised contact for the mother. The court imposed significant injunctions on both parents, particularly concerning the use of alcohol and illicit substances, and the prohibition of denigrating the other parent or discussing court proceedings in the children's presence. The orders also mandated engagement with various support services for the parents and children, including counselling and drug and alcohol services, and required compliance with directions from child welfare delegates.
Consequently, all previous parenting orders were discharged. The father was granted sole parental responsibility and the children were ordered to live with him. The mother's time with the children was to be supervised at a contact service, with specific conditions regarding notification and attendance. The court also made orders for communication, supervision by child welfare delegates, and various injunctions aimed at protecting the children. Further, the father was granted the right to remove the children from Australia, and leave was granted to share specific expert reports and affidavits with relevant professionals and courts. The court noted that the mother could apply to vary contact arrangements upon demonstrating significant steps to address her substance abuse.
Orders
Orders of the court
(1) All previous parenting Orders are discharged.
PARENTAL RESPONSIBILITY
(2) The Father, Mr Donnelly (“the father”) shall have sole parental responsibility for the children, W, born in 2004, X, born in 2005, Y, born in 2007 and Z, born in 2017 (collectively referred to as “the children”).
LIVE WITH
(3) The children shall live with the Father.
SPEND TIME WITH AND COMMUNICATION
(4) The Mother and the Father shall do all acts and sign all documents necessary to register with the H Region Children’s Contact Service (“the contact service”) within seven (7) days of the date of these Orders.
(5) The children shall spend supervised time with the Mother at the contact service at such times, on such dates and at such places, as may be facilitated and supervised by the operators of the contact service provided that, subject to the availability of the service, the frequency shall be no less than once per month and no more than once weekly, and for that purpose the following shall apply:
(i) The Mother shall notify the Father in writing forty-eight (48) hours prior to the scheduled time at the contact service of her intention to attend to spend time with the children.
(ii) Should the Mother fail to comply with Order 5(a), the Mother’s scheduled time with the children at the contact service shall be suspended.
(iii) The Father shall cause the delivery of the children to, and their collection from, the contact service at the commencement and conclusion of the children’s visits with the Mother.
(iv) The Mother and the Father shall pay any costs due to the contact service.
(v) The Mother and the Father shall comply with all reasonable requests and directions of the contact service.
(6) In the event that the Mother fails to attend for time as scheduled by the supervision centre on three consecutive occasions, then the obligation of the Father to provide the children pursuant to order 5 is thereby suspended.
(7) The Mother and the children shall communicate with each other by telephone or FaceTime at all reasonable times agreed between the Mother and the Father in writing.
SUPERVISION
(8) For a period of twelve months from the date of these Orders, each of the parents shall accept the supervision of a delegate of the Secretary and shall comply with all reasonable directions given by the delegate in relation to the care, welfare and development of the children, including directions given as to attendance at and engagement with services.
(9) For the duration of the supervision in the above order, the Mother and Father are directed by injunction to permit officers who are subject to the direction of a delegate of the Secretary to enter premises that the Mother or Father from time to time occupy for the purpose of seeing any of the children upon such officer making a reasonable request to enter the premises.
INJUNCTIONS AND RESTRAINTS
(10) The Mother and the Father are hereby restrained by injunction from:
(i) Consuming, ingesting, using or otherwise being under the influence of any illicit substance for twenty-four (24) hours prior to or during all time spent with the children;
(ii) From bringing the children into contact with any other person who is under the influence of illicit substances;
(iii) Abusing prescription or over-the-counter medication for twenty-four (24) hours prior to or during all time spent with the children;
(iv) From bringing the children into contact with any other person under the influence of the abuse of over the counter medication;
(v) Consuming alcohol beyond the legal driving limit of 0.05 per cent for forty-eight (48) hours prior to or during all time spent with the children;
(vi) From bringing the children into contact with any other person who is under the influence of alcohol so as to place that person beyond the legal driving limit of 0.05 per cent;
(vii) Insulting, belittling, degrading, rebuking, abusing or otherwise denigrating the other parent or a member of their immediate household in the presence or hearing of the children and from permitting any other person to do so;
(viii) Discussing any allegation made or evidence given in these proceedings to or in the presence of the children and from permitting another person to do so;
(ix) Physically disciplining or striking the children or allowing any other person to do so;
(x) Exposing the children to any form of domestic violence including verbal violence or using abusive language to, or within the hearing of the children; and
(xi) Bringing the children into contact with Mr D or allowing any other person to do so.
EXCHANGE OF INFORMATION
(11) The Mother and the Father shall notify each other as soon as reasonably practicable:
(i) By telephone, in the event that the children suffer a medical emergency; and
(ii) By text message, in the event of the children suffering any medical illness, accident or injury, if not an emergency.
(12) The Mother and the Father are hereby authorised to obtain from the children’s schools and/or childcare centres all notices, letters, school reports and invitations.
(13) The Mother and the Father shall advise each other of any change of telephone number or residential address within twenty-four (24) hours of such change occurring.
OTHER
(14) The Mother and the Father shall:
(i) Do all things necessary to engage and cooperate fully with B Group, the Department of Communities and Justice and any other support services for which the family is referred;
(ii) Do all things necessary to obtain referrals for any support services for the children recommended by the Department of Communities and Justice or B Group and to use their best endeavours to ensure that the children engage with the recommended support services;
(iii) Use all reasonable endeavours to ensure that the children attend school as required, including taking active steps to return a child to school in the event that a child returns to their care before the conclusion of school on a day the child is meant to attend school;
(iv) Do all things to ensure that Z attends childcare or a preschool program from January 2021 for a minimum of two days per week until he commences primary school;
(v) Do all things to ensure that W, X and Y attend on a psychologist pursuant to a GP Mental Health Plan as directed by the relevant psychologist for each child;
(vi) Do all things to ensure that W and X attend a relevant program or clinic or medical professional to address sexual health matters; and
(vii) Do all things to ensure that W and X attend drug and alcohol counselling.
(15) Pursuant to s 65Y of the Family Law Act 1975 (Cth), the Father shall be entitled to remove the children from the Commonwealth of Australia at such times, for such periods and for the purpose of travel to such destinations that the Father may determine from time to time.
(16) Leave is granted to the parties to furnish a copy of the single expert report of Dr C dated 6 January 2020 to any professional engaged to provide a therapeutic service to any party or the children.
(17) Leave is granted to any child welfare officer to provide a copy of the affidavit of Dr C filed 14 January 2020 and a copy of the transcript of her evidence given in these proceedings to any Court of a State or Territory exercising jurisdiction pursuant to a child welfare law of that State of Territory in proceedings relating to the children.
NOTATIONS
The Court notes that:
A. Order 2 above is intended to operate as vesting sole parental responsibility in the Father for the purpose of both the Family Law Act 1975 and s. 11 of the Australian Passports Act 2005.
B. The Mother shall be at liberty to bring a further application to the Court to vary the spend time arrangements for the children upon filing evidence capable of demonstrating that the Mother has taken steps as to significantly address her abuse of alcohol and illicit substances.
C. The Department of Communities and Justice intends to assist the Father to obtain priority social housing.
D. The Department of Communities and Justice intends to make further referrals for support services for the Father and the children should the Brighter Futures Early Intervention program fail to adequately meet their needs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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