FEDERAL CIRCUIT COURT OF AUSTRALIA
| DONNELLY & COLLINSON | [2018] FCCA 1774 |
| Catchwords: FAMILY LAW – Interim parenting – whether an unacceptable risk of harm to Children – supervised time ordered. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZT, 69ZV |
| Cases cited: Goode & Goode (2006) FLC 93-286 Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768 Vasser & Taylor-Black [2007] FamCA 547 W and W (abuse allegations: unacceptable risk) [2005] FamCA 892 WK v SR (1997) FLC 92-787 |
| Applicant: | MR DONNELLY |
| Respondent: | MS COLLINSON |
| File Number: | WOC 1191 of 2017 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 31 May 2018 |
| Date of Last Submission: | 31 May 2018 |
| Delivered at: | Wollongong |
| Delivered on: | 2 August 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Haille Paine Solicitors |
| Solicitors for the Respondent: | Bowral Legal |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Wollongong Family Law |
ORDERS
That the Children [X] (born 2012) and [Y] (born 2013) live with the Mother.
The Children will spend time with the Father at the CatholicCare Children’s Contact Centre at Suburb A (‘the contact centre’) as follows:-
(a)The visits will be supervised by staff at the contact centre;
(b)The visits will occur at such times and on such dates as are nominated by the contact centre;
(c)Subject to (d) below, the Father will pay for all costs associated with supervised contact (including but not limited to his own intake costs, the privately funded rate until such time as subsidised visits are available, and the subsidised rate thereafter);
(d)The Mother will pay for her own intake costs and the costs of the preparation of all contact reports.
(e)In the event concerns are raised by CatholicCare to the Independent Children’s Lawyer prior to the commencement of the supervised time, the Independent Children’s Lawyer will approach Chambers to seek an urgent relisting of the proceedings.
That, without admissions, each parent is restrained by injunction from:-
(a)speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Children; and/or
(b)discussing any legal proceedings between the parents or the parental relationship or the children’s future spending time arrangements in the presence or hearing of the Children or permitting any other person to do so.
That, without admissions, the Father is restrained by injunction from:-
(a)taking, consuming and/or being affected by any illicit substance while the Children are in his care; and/or
(b)consuming alcohol while the Children are in his care; and/or
(c)consuming alcohol twenty-four (24) hours prior to any period of time that the Children come into his care.
That Order 1 of the Interim Orders made on 16 March 2018 will continue until 30 June 2018, however, in the event the Father provides a further result which shows a creatinine level below 1.8mmol/L and/or a positive result, Order 1 will continue until such time as the Father provides two (2) consecutive…
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- AGLC
- Donnelly and Collinson [2018] FCCA 1774
- Case
- [2018] FCCA 1774
- Decision Date
CaseChat Overview and Summary
The court was required to determine the primary residence of the children, the nature and conditions of the father's contact with them, and to implement measures to safeguard the children from parental conflict and the father's potential substance and alcohol use. Further issues included the father's compliance with medical testing, the parents' communication protocols, and the involvement of the Independent Children's Lawyer. The court also considered the preparation of a Single Expert Report and the future conduct of the proceedings, including a final hearing.
The court ordered that the children live with the mother and that the father's time with the children be supervised at a contact centre, with the father bearing the associated costs. Injunctions were imposed on both parents restraining them from speaking negatively about each other in the children's presence and from discussing legal proceedings or their relationship in front of the children. The father was also specifically enjoined from taking illicit substances or consuming alcohol while the children were in his care, and for 24 hours prior to contact. The father was further ordered to undergo random Liver Function and CDT testing, with specific protocols for requesting and conducting such tests, and to pay for them. The mother was restrained from arranging counselling for the children without the father's written consent. Both parents were ordered to keep each other informed of significant matters concerning the children's welfare and to communicate via brief, factual SMS messages. The court also mandated participation in a post-separation parenting course and granted leave for the preparation of a Single Expert Report. The matter was adjourned for a final hearing.
Orders
Orders of the court
1.
That the Children [X] (born 2012) and [Y] (born 2013) live with the Mother.
2.
The Children will spend time with the Father at the CatholicCare Children’s Contact Centre at Suburb A (‘the contact centre’) as follows:-
(a) The visits will be supervised by staff at the contact centre;
(b) The visits will occur at such times and on such dates as are nominated by the contact centre;
(c) Subject to (d) below, the Father will pay for all costs associated with supervised contact (including but not limited to his own intake costs, the privately funded rate until such time as subsidised visits are available, and the subsidised rate thereafter);
(d) The Mother will pay for her own intake costs and the costs of the preparation of all contact reports.
(e) In the event concerns are raised by CatholicCare to the Independent Children’s Lawyer prior to the commencement of the supervised time, the Independent Children’s Lawyer will approach Chambers to seek an urgent relisting of the proceedings.
3.
That, without admissions, each parent is restrained by injunction from:-
(a) speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Children; and/or
(b) discussing any legal proceedings between the parents or the parental relationship or the children’s future spending time arrangements in the presence or hearing of the Children or permitting any other person to do so.
4.
That, without admissions, the Father is restrained by injunction from:-
(a) taking, consuming and/or being affected by any illicit substance while the Children are in his care; and/or
(b) consuming alcohol while the Children are in his care; and/or
(c) consuming alcohol twenty-four (24) hours prior to any period of time that the Children come into his care.
5.
That Order 1 of the Interim Orders made on 16 March 2018 will continue until 30 June 2018, however, in the event the Father provides a further result which shows a creatinine level below 1.8mmol/L and/or a positive result, Order 1 will continue until such time as the Father provides two (2) consecutive negative tests with creatinine levels above 1.8mmol/L.
6.
That the Father will undergo random Liver Function and Carbohydrate Deficient Transferrin (CDT) testing.
7.
That in order to facilitate Order 6 above:-
(a) The Independent Children’s Lawyer will send a request by no later than 12pm by email to the Father’s solicitor;
(b) Such requests will be sent no more frequently than once every two (2) calendar months;
(c) By no later than 6pm on the third business day following the request, the Father will attend on a medical practitioner to facilitate the testing, with the Liver Function test to specifically measure Gamma Glutamyl Transpeptidase (GGT), Mean Cell Volume (MCV), Aspartate Transaminase (AST), Alanine Transaminase (ALT) and Alkaline Phosphatase (ALP) levels;
(d) The Father is responsible for the cost of such testing;
(e) At the time of attending for the purpose of facilitating the testing, the Father shall:
(i) Provide the pathology centre and/or the medical practitioner with photographic identification confirming his identity as Mr Donnelly (born 1986); and
(ii) Obtain a receipt from the medical practitioner and/or pathology centre confirming receipt of a sealed copy of this Order and sighting of photographic identification of the Father confirming his identity;
(f) Once the results are released to the Father, he will ensure that a copy is forwarded to his solicitor no later than the next business day;
(g) The Father’s Solicitor is to forthwith forward a copy of the results to the Independent Children’s Lawyer and the Mother’s Solicitor.
8.
That the Mother is restrained by injunction from making arrangements for the Children to attend upon any counsellor, social worker, psychologist or psychiatrist without the written consent of the Father.
9.
That each parent will ensure that the other parent is kept informed of:-
(a) any serious medical problems or illnesses suffered by the Children;
(b) any medical emergencies involving the Children;
(c) any medication that has been prescribed for the children that needs to be taken during the time the Children are with the other parent;
(d) any specialist appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;
(e) any change to their mobile telephone number (with the other parent to be notified of any change within twenty-four (24) hours);
(f) any other matter relevant to the welfare of the Children.
10.
That, for the purpose of Order 9 above, the parents will communicate by SMS / text message and that each parent will ensure that this communication is brief, factual and limited to the relevant parenting issue only.
11.
That this Order operates as the authority of each parent to enable the Independent Children’s Lawyer to speak to the coordinator and staff at the CatholicCare Children’s Contact Centre and obtain any other relevant information.
12.
That each parent will enrol in and complete the first available Keeping Kids in Mind post separation parenting course at CatholicCare (or a similar parenting after separation program at Uniting or Relationships Australia).
13.
That leave is granted to the parties to file Consent Orders in Chambers regarding the preparation of a Single Expert Report to be prepared by Clinical / Forensic Psychologist with experience in risk assessment, sex offender assessment and treatment and violent offender assessment and treatment.
14.
The matter be adjourned to a date to be fixed.
15.
The matter is listed for a 4 day Final Hearing commencing on 5 August 2019 at 10:00am.
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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