Donnelly and Bryson (No 2)

[2020] FamCA 103

FAMILY COURT OF AUSTRALIA

DONNELLY & BRYSON (NO. 2) [2020] FamCA 103

FAMILY LAW – CHILDREN – final hearing – whether state welfare authority will intervene in proceedings – welfare authority indicates that it will intervene – consent position to adjourn the proceedings based on a re-invitation of the Department to intervene – interim living arrangements for children – likelihood of children’s compliance with orders – no order made for living arrangement of eldest children – orders for engagement with support for the parties and the children.

Family Law Act 1975 (Cth)

APPLICANT: Mr Donnelly

RESPONDENT: Ms Bryson

INDEPENDENT CHILDREN’S LAWYER: Mrs A Evans

FILE NUMBER: CAC 1351 of 2019

DATE DELIVERED: 13 February 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 13 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Haddock

SOLICITOR FOR THE APPLICANT: KPW Lawyers

COUNSEL FOR THE RESPONDENT: Dr S Leslie

SOLICITOR FOR THE RESPONDENT: Barker & Barker

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr G Stagg

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Evans Family Lawyers

Orders

That until further Order:

Live with and spend time with arrangements

1. For six months from the date of these Orders Y and Z will spend time with each parent as agreed in writing between the parties, but failing agreement:

   (a)       Y and Z will live with their Father;

   (b)       Y and Z will spend time with their Mother as follows:

   (i)Each week from after school or 3 pm until 5 pm on Tuesday, Thursday and Saturday;

   (c)The parties may not enter into an agreement in writing that provides for Y and Z to spend overnight time with their Mother without further order of the Court.

2. For the purpose of Order 1 handover will occur at Y’s school or another agreed public place, where possible the parties are to ensure that changeover is facilitated by a third party rather than attending in person or at a contact centre changeover facility if available.

3. After these Orders have been in operation for three months the matter will be relisted for a procedural hearing to determine, inter alia, the current position of the Department of Communities and Justice and any changes to the arrangements for the children.

4. Both parties are to do all things necessary to engage and cooperate fully with B Group, the Department of Communities and Justice NSW or any other support services for which the family obtains a referral.

5. The parties will do all things necessary to obtain referrals for any support services for the children recommended by B Group or the Department of Communities and Justice NSW, and to use their best endeavours to ensure that the children engage with the recommended support services.

6. The Mother will engage fully in a program of drug and alcohol counselling and shall:-

   (a)Attend the program from time to time as directed by the program;

   (b)Engage in all activities and sessions directed by the program; and

   (c)Provide any evidence of completion upon completion to the Independent Children’s Lawyer and the solicitors for the Father.

7. The Father will engage fully in a program of anger and behaviour management counselling and shall: -

   (a)Attend the program from time to time as directed by the program;

   (b)Engage in all activities and sessions directed by the program; and

   (c)Provide any evidence of completion upon completion to the Independent Children’s Lawyer and the solicitors for the Mother.

8. That each party will engage with a psychologist to obtain a report in relation to:

   (a)Their mental health, including, but not limited to, any current diagnoses of mental health issues, a review of any historical diagnoses, and recommendations for any ongoing treatment plans for any issues identified.

Restraints

1. Both parties be hereby restrained by injunction from:

   (a)Abusing prescription medication or from bringing the children into contact with any other person who does so;

   (b)Consuming illicit substances or from bringing the children into contact with any other person who does so;

   (c)Consuming alcohol beyond the legal driving limit of .05 per cent for 48 hours prior to and during all time spent with the children and from bringing the children into contact with any other person who has done so;

   (d)Physically disciplining the children or allowing any other person to do so;

   (e)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 or any of them, or from permitting any other person to do so;

   (f)From bringing the children into contact with Mr D;

   (g)From relocating the residence of the children from the E Region area without permission in writing of the other parent.

Other

1. That both parents shall: -

   (a)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;

   (b)Will ensure they keep the other informed as soon as practicable, and not more than 48 hours after of any medical appointment that they take any of the children to;

   (c)Notify the other forthwith of any emergency situation involving any of the children;

   (d)Do all things to ensure that that they obtain a GP mental health plan for W, X, and Y to engage with a psychologist;

   (e)Do all things to ensure that W, Y, and X attend upon a psychologist pursuant to a GP Mental Health Plan as directed by the relevant psychologist for each child;

   (f)Do all things to ensure that W and X attend a relevant program or clinic or medical professional to address sexual health matters; and

   (g)Do all things to ensure that W and X attend drug and alcohol counselling.

2. That the ICL is hereby requested to explain these Orders to the children as soon as practicable and the parties shall do all things necessary to facilitate an appointment between the children and the ICL.

3. Subject to obtaining Legal Aid funding, the parents will each make an appointment and attend for a hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair and/or alcohol testing purpose.  Collection is to be conducted by a qualified and certified collector. Chain of custody procedure is to be applied to the sample, testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International standards ISO/IEC 17025:2005 by the relevant national accreditation laboratory for that authority. Either hair or body sample may be collected for the testing. Such testing is to occur within 14 days of a request from the Independent Children’s Lawyer.

4. That the Mother is to ensure that W resides in the house with her and not in the caravan during periods that W lives with the Mother.

5. The proceedings are relisted for directions on 27 February 2020 at 4 pm and the parties are given liberty to appear by telephone on that occasion.

6. Any party is at liberty to relist this matter on 24 hours’ notice.

7. Previous parenting orders are discharged.

IT IS FURTHER ORDERED, IN CHAMBERS

1. Pursuant to s 91B of the Family Law Act 1975 (Cth) the Director-General of the Department of Communities and Justice, NSW is requested to intervene in the proceedings in relation to the children:

   (a)       W, born … 2004;

   (b)       X, born … 2005;

   (c)       Y, born … 2007; and

   (d)       Z, born ... 2017.

2. The orders for the parents to engage in particular activities are subject to the availability of that activity, funding for that activity or the granting of a particular referral.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Donnelly & Bryson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1351 OF 2019

Mr Donnelly

Applicant

And

Ms Bryson

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter, the evidence to be conducted at the Final Hearing has been completed.  At various stages during the proceedings the question has been raised of whether or not the Department of Community and Justice, New South Wales, should be re-invited to intervene in the proceedings.  They were previously invited to intervene in the proceedings but declined to do so.  A determination was made by me that that matter would be reconsidered on determination of the factual issues that had been raised.  That reconsideration has been overtaken by two events. 

2. Firstly, I am advised by counsel for the Independent Children's Lawyer that he has been informed by the Department that they now intend to intervene. 

3. Secondly, the parties have come to a consent position to adjourn the proceedings based on a re-invitation of the Department to intervene.

4. The adjournment sought by the parties is supported by a significant number of consent terms that deal with the arrangements for each of the four children the subject of these proceedings.  Whether those consent terms should be made is to be determined by whether or not they are in the best interests of each of the children. 

5. The key and dominant consideration in this case at present is one of the primary considerations, that being the need to protect the children from harm occasioned by abuse, neglect or exposure to family violence. 

6. At present findings have not been made as to the precise nature of that risk.  However, there is evidence that points to each party being a genuine source of risk, although in differing respects. 

7. The evidence of the Single Expert pointed to the necessity of the involvement of the Department of Communities and Justice (“the Department”) despite the fact that they had previously refused.  That was on the basis that the assessment of the Single Expert is that neither parent was able to adequately parent each of the children without an exposure of those children to abuse, neglect or exposure to family violence.

8. Absent the involvement of the Department the choice remained for the Court one between the two parents.  As has been observed, the Department now intends to seek to join the proceedings and permission will be given for them to do so on their appearance.

9. The Consent Orders proposed by the parties put into place whatever conceivable protections are able to be identified at this stage in the proceedings that might go towards an amelioration of the risk to the children.  The Orders will cause the parents to pursue various supports for themselves and for each child.  The supports that they are pursuing, in particular for each child, are in the realms identified by the evidence generally and by Dr C. 

10. The Orders do not provide for where the eldest of the two children will live.  Although that is an unusual position, it is one that is justified in the evidence that has come before the Court on the Final Hearing to date.  The evidence seems crystal-clear and uncontroversial that the eldest two children will, in colloquial terms, vote with their feet if they are placed with the Father pursuant to orders.  They may remain there for a time but will then, it appears, be likely to move to their Mother’s if they become dissatisfied with arrangements in the Father's household.  Similarly, should they become dissatisfied with arrangements in the Mother's household they are likely to move to the Father's household. 

11. Dr C's view, which is not without merit, is that even if they were placed by the Department of Community and Justice that it would be likely that they will be non-compliant with any placement, hence orders as to where they live are at the moment futile.

12. Notwithstanding that, the parties have agreed to a suite of other arrangements which are very much to the best interests of the two eldest children, including taking steps to assist the two eldest children to reintegrate with school, to be properly supported and educated in respect of sexual issues and to receive other forms of support. 

13. The Orders also provide that the youngest two children will, as a default arrangement, live with the Father.  It appears likely, without a full sifting of the evidence, that he is the most likely of the two parents to provide consistent care with limited risk to those two children.  While the Orders provided that the arrangements for the youngest two children will be as agreed between the parties but failing agreement with the Father, a further order will be made that prohibits an agreement being reached that sees the two youngest children staying overnight with their Mother absent further order of the Court.  The arrangements put forward by each of the parties are not bullet-proof in the protection of the children but they represent, to the credit of each of the parents, the best set of arrangements to support the children, pending a determination of the Department's involvement and what it is that that may change in the proceedings.  It may conceivably change the supports and facilities that are available.  It may conceivably change the position away from a choice merely between the two parents in the proceedings. 

14. Further modification will be made to the consent terms put forward by the parents, such that the steps that they are required to take will be made subject to availability, funding or referral, as to otherwise impose the obligations upon them may see obligations imposed upon them where it is not clear that they will be able to comply.  The matter will be relisted shortly for the Department to commence its intervention.  The parties will be at liberty, any of them individually, to relist the matter on 24 hours’ notice.

15. As noted these arrangements are not bullet-proof but they form the best case scenario for the protection of the children. 

16. It is noted that despite the fact that the Father has a shaved head in these proceedings he raises no impediment to his compliance with the requirement in these orders that he comply with hair follicle testing.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 13 February 2020.

Associate: 

Date:  24 February 2020