GLADWIN & GLADWIN

[2018] FCCA 3773

FEDERAL CIRCUIT COURT OF AUSTRALIA

GLADWIN & GLADWIN [2018] FCCA 3773

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 65D

Cases cited:

Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCA 240
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks (2015) FamCAFC 36

Applicant: MR GLADWIN

Respondent: MS GLADWIN

File Number: PAC 2293 of 2018

Judgment of: Judge Newbrun

Hearing date: 26 November 2018

Date of Last Submission: 26 November 2018

Delivered at: Parramatta

Delivered on: 20 December 2018

REPRESENTATION

Solicitors for the Applicant: Mr O’Sullivan of O’Sullivan Legal

Counsel for the Respondent: Mr Harper

Solicitors for the Respondent: Keypoint Law

Independent Children’s Lawyer: Ms Newland of JLM Family Lawyers Pty Ltd

ORDERS PENDING FURTHER ORDER

1. By consent, the parties shall have equal shared parental responsibility for the child [X] born …2017 (“the child”).

2. The child shall live with the mother.

3. The child shall spend supervised time with the father as follows, at Children in Focus:

   (a)For a period of one month, on two occasions each week for a period of one hour each time;

   (b)For a period of two months, on two occasions each week for a period of two hours each time;

   (c)For a period of three months, on two occasions each week for a period of three hours each time.

4. To facilitate the above supervised time between the child and the father, each parent must:

   (a)Contact Children in Focus within seven days of the date of these Orders to arrange the first possible intake to occur;

   (b)Comply with all policies and procedures and all reasonable requests of Children in Focus;

   (c)If, following intake, Children in Focus is unable or unwilling to provide supervision as set out above, then the Independent Children’s Lawyer shall have liberty to restore the matter to the list on seven days’ written notice to the parties and the Court.

   (d)Pay half the fees nominated by Children in Focus for the provision of that service.

5. That the father forthwith take all necessary steps to enrol in and complete a parenting course (related to the needs of young children and to post separation parenting skills) as agreed between the parties, but failing agreement to be the Triple P Program.

6. That the father forthwith take all necessary steps to enrol in and complete and anger management course as agreed between the parties, but failing agreement to be Choosing Change.

7. That the father shall submit to random supervised urine analysis within 48 hours of receiving written request from the Independent Children’s Lawyer, with such requests to be no more than once per month and to facilitate this Order:

   (a)Such urine analysis shall be conducted in accordance with the Australian/New Zealand standard 4308:2008: Procedure for the collection, detection and quantitation of drugs of abuse in urine;

   (b)The father shall provide a copy of the results of such testing to the mother’s lawyer and the Independent Children’s Lawyer within seven days of receipt of same.

8. That the father make appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug and alcohol testing purposes.  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 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 father is required to maintain his head hair at a length of not less than four (4) centimetres; 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)Each party or their legal representatives is at liberty to provide AWDTS with a copy of these Orders;

   (c)The father is to attend at an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from the father at the earliest available appointment time within seven (7) days of receiving written request to undertake hair collection for hair drug testing purposes from the Independent Children’s Lawyer;

   (d)Written notice to undertake hair collection for hair drug testing purposes may be sent to the father care of the email address of the father’s lawyers (or father if acting in person) and shall be deemed to have been received by the father at the date and time it is sent via email;

   (e)The father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this Order also hereby authorising AWDTS or nominee to provide the results of each test to both parties, the father and the mother, the Independent Children’s Lawyer (if applicable), and their legal representatives upon receipt of such test results;

   (f)The hair drug and/or alcohol test may screen for alcohol EtG and 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;

   (g)AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available;

   (h)The cost of the hair alcohol and drug tests is to be met by the father.

9. That in relation to the hair alcohol and drug test pursuant to Order 8:

   (a)The father is only required to submit to hair alcohol and/or drug testing not more frequently than once per six (6) calendar months;

   (b)If the father does not produce a satisfactory hair alcohol and drug test results, then the father’s time with [X] is suspended until the father produces a satisfactory hair alcohol and drug test result;

   (c)Upon the father producing a satisfactory hair alcohol and drug test result, the father’s time with [X] pursuant to Order 3 herein recommences.

10. That in the event that:

    (a)A hair alcohol and drug test result of the father detects a substance referred to in Order 8(f) other than a lawfully obtained current prescription or over-the-counter medication; or

    (b)The father fails to provide a hair sample in accordance with these Orders within the timeframe provided for in these Orders; or

    (c)The father’s hair is not maintained as referred to in Order 8(a);

    then the father’s time with [X] shall be suspended.

11. That the father be restrained from consuming any alcohol or non-prescription drugs during and for a period of 48 hours prior to the father’s supervised time with [X].

12. That if [X] becomes distressed during his supervised time with the father, the father shall immediately contact the mother.

13. That the parties shall keep the other party informed at all times of his/her residential address and contact details, including landline, email address and mobile numbers.

14. That the parties shall keep the other informed of:

    (a)[X]’s health and any health issues as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken except in cases of emergency (with the party in whose care [X] is at the relevant time to inform the other party as soon as possible).

    (b)The names and addresses of any treating medical or other allied health practitioner who treat [X].

15. That each of the mother and the father are hereby restrained by injunction from:

    (a)Denigrating or insulting the other party or members of the other party’s family or friends or culture in [X]’s presence or hearing or permitting any other person to do so.

    (b)Discussing any aspect of their relationship with [X] or in his presence or hearing or permitting any third person to do so.

    (c)Using swear words in [X]’s presence or hearing or permitting any other person to do so.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2293 of 2018

MR GLADWIN

Applicant

And

MS GLADWIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to the child [X] born …2017. 

Proposals

1. The mother’s interim parenting proposals are set out in her Response filed 22 June 2018, in which she seeks interim Orders that the father’s time with the child be supervised.

2. The Independent Children’s Lawyer’s (“ICL’s”) proposals are set out in her Minute of Order attached to her Case Outline dated 23 November 2018.  Inter alia, the ICL, in effect, sought an interim parenting Order that the child, for a total initial period of four months, spend supervised time with the father on a certain basis, including two visits each week during this four month period, and thereafter unsupervised time.

3. The father adopted the ICL’s proposals above.  He also sought an interim Order for equal shared parental responsibility, and sought to spend time with the child on specific occasions (as per proposed interim Order 3 in his Initiating Application filed 24 May 2018).

Material relied upon

1. The mother relied upon the documents referred to in her case outline:

   a)Response to Initiating Application filed 22 June 2018;

   b)Notice of Risk filed 22 June 2018;

   c)Affidavit of Ms Gladwin filed 22 June 2018;

   d)Affidavit of Ms G filed 25 June 2018.

2. The father relied upon the documents referred to in his case outline, together with a further Affidavit filed 5 September 2018:

   a)Initiating Application filed 24 May 2018;

   b)Affidavits of Mr Gladwin filed 24 May 2018, 26 June 2018 and 5 September 2018.

3. The following exhibits were relied upon:

   a)Urinalysis test results of the father (Exhibit A);

   b)Parenting After Separation course certificate (Exhibit B);

   c)Hair follicle testing policy/guidelines (Exhibit C);

   d)Letter to Dr H dated 29 August 2018 (Exhibit D);

   e)Text messages from the father (Exhibit E). 

Agreed facts unless otherwise stated

1. The Court refers to the ICL’s helpful chronology set out in her case outline.

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel [2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

3. Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:

   As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52.

5. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.

6. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

7. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

8. When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).

9. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

10. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.

11. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The best interests of the children

Section 60CC considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration

1. The child has a meaningful relationship with the mother and would benefit from a continuance of that relationship. 

2. The child has spent limited time with the father since birth and is yet to develop a meaningful relationship with him.

3. The child may well benefit from developing a meaningful relationship with the father provided that it is safe for the child to spend time with him.

4. Should the Court order, inter alia, that the children begin to spend supervised time with the father on two occasions each week with the length of visits increasing in a graduated manner, then there is a real prospect that the child’s meaningful relationship with the father can begin to develop in a positive way.

5. The Court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

1. There is an unacceptable risk of the child being exposed to abuse, neglect or family violence if spending unsupervised time with the father. 

2. On the material before the Court, the Court has concerns in relation to the father’s parenting capacity for this very young child.  It has concerns in relation to the father’s use of illicit drugs and alcohol.  It has concerns in relation to the father’s ability to control his anger.

3. In this context, the Court takes into account:

   a)Whilst the father completed the RelationSpace online program in August 2018 (see Annexure A to his Affidavit filed 5 September 2018), he is yet to complete a parenting course such as the Triple P Program, referred to in paragraph 17 of the mother’s Affidavit filed 22 June 2018 (being a program that the mother had researched), which program, inter alia, focuses on parents of children aged infant to twelve years.  (The Court notes that the Triple P program was referred to by the mother in her Response filed 22 June 2018, at proposed interim Order 5).

   b)The child appears to be developing well in the mother’s primary care.

   c)The mother alleges, giving significant particularity in her Affidavit, that the father has been verbally abusive and aggressive towards her.  She alleges, again giving significant particularity, that the father has been prone to anger, including in relation to the mother’s request that the father feed the child at a certain hour.  The mother alleges that the father has difficulty managing his anger, and makes assertions as to the father’s unwillingness to engage in constructive conversation with her, instead verbally abusing her.  In relation to certain allegations in this context, the father’s denials do not appear to be uniformly categorical.

   d)The mother alleges that during the first stages of the child’s life, the father did not actively assist with the care of the baby.  This allegation is denied by the father.  The mother asserts that she offered the father books and pamphlets for him to educate himself on how to care for a baby, but the father refused.

   e)The mother alleges, and the father denies, that the father dropped the child into a pram from an approximate height of 40 centimetres, causing the child to start to cry.  This occurred when the child was only seven weeks old and did not have the ability to fully control or support his head and neck, according to the mother.  On another occasion the mother alleges, and the father denies, that the father forcefully thrust the child forward without supporting the child’s head and neck (see paragraph 37 of the mother’s Affidavit).  The Court takes into account the maternal grandmother’s allegations in paragraph 27 of her Affidavit, inter alia, that the father, when the child was young, did not accept advice on how to handle the baby.  The Court takes into account the other allegations of the maternal grandmother in her Affidavit.

   f)The mother asserts and alleges that the father has been unable to settle the child.

   g)The mother asserts and alleges, denied by the father, that between April 2017 and mid-August 2017 the father saw the child on about five or six occasions.

   h)The mother asserts that the father’s last contact with the child was in about mid-August 2017.

   i)In the Counselling document dated 31 October 2017 headed “Support Letter”, reference is made to the couples counselling attended by the parties.  The mother had requested this letter.  The author of the letter, a clinical social worker, referred to presenting issues being communication difficulties between the parties, and discussions during the second session about the father getting frustrated and having difficulty settling the child.  It was noted by the author of the letter that after two sessions the father refused to attend the counselling.  The Court takes into account the contents of this letter, whilst noting that it is not yet tested.  The Court has not overlooked the father’s response to this letter that in his view the counsellor is biased towards the mother.

   j)The mother alleges that during the parties’ relationship the father drank alcohol to excess.  She states that when he did so he would become aggressive and angry with the mother.  She refers to the father’s usage of cocaine on several occasions during the relationship.  The father denies such allegations.  He concedes that the parties often drank substantial amounts of alcohol together before the child’s birth.  He also alleges the mother was a willing party to illicit drug use.  The mother alleges that she often saw the father drinking alcohol to excess and taking cocaine at the same time (this allegation is not expressly denied by the father).  She alleges that she also found packets of white powder “in the apartment and in his clothing from time to time”.

   k)The mother refers to her usage of illicit drugs on very few occasions and at the encouragement of the father.  She asserts that she has not taken any illicit drugs since about March 2016.

   l)The Court has not overlooked the father’s assertions as to his ability to care for a young child (see paragraph 55 of his Affidavit filed 26 June 2018), but nevertheless the Court’s concerns as to the father’s parenting capacity of this child remain.

   m)Again, the Court has concerns in relation to the father’s alleged use of illicit drugs.  The hair strand analysis conducted in late May 2018 by the father does not appear to have been chain of custody. 

   n)The mother had sought in her Response that the father undertake and submit to a random CDT test to detect excessive alcohol use.  This required a blood test by the father.  The father chose to do a hair follicle test.  The father alleges that he has an aversion to blood and medical procedures in general (in this context, the Court notes Exhibit D which refers to the father’s request to undertake sedation or general anaesthetic in the context of dental treatment).  The hair sample test was undertaken in the second half of August 2018 and produced a negative result.  It was chain of custody intact.  The mother submits that the test result is of no utility because of the father’s assertion that he has being dyeing his hair since the age of sixteen.  In this context the mother refers to Exhibit C (a document of the Society of Hair Testing) in which, inter alia, it is stated that “the concentration of EtG and FAEEs in hair can be influenced by cosmetic treatments and thermal hair straightening tools”.  On the other hand, the father’s material (Annexure H referred to in paragraph 15 of his Affidavit filed 26 June 2018) states, inter alia:

   Forensic laboratory methods used to detect drugs in hair samples are very effective and cannot be significantly alerted with the use of hair dyes, bleaching, hair treatments or special shampoos. 

   o)The mother submits that there is no evidence before the Court that the relevant testing authority for the father’s hair sample test in August 2018 was aware of the father’s past use of hair dyes.  The Court cannot resolve this apparent conflict between the parties’ respective evidence in this context, but nevertheless the Court has some concern about the reliability of the father’s hair sample test in August 2018.

   p)The Court takes into account, in this context of the allegations made of the father’s illicit drug use, the fact that the urinalysis test request made by the ICL on 13 September 2018 was only addressed by the father undertaking testing outside the required 24 hours, although this lateness may have been attributable to his solicitors.

1. In the view of the Court, the aforesaid unacceptable risk to the child of being exposed to abuse neglect or family violence can be addressed and minimised by the child spending supervised time with the father over the course of the next six months on two occasions each week, with such weekly time graduating from an initial one hour visit to later visits of three hours.

2. Further, during the six month period, to address and minimise the above risks referred to by the Court, the father should enrol in and complete the mother’s proposed anger management course (the fees are $20 per week), the Triple P Program course (the course is free), be subject to the random supervised urine analysis tests as requested by the ICL, and participate in hair collection analysis tests, again at the instance of the ICL.  The Court is of the view that the above supervision requirement should be reviewed by the Court after about six months, at which time the father will have spent regular supervised time with the child, completed the above courses and undertaken such tests.

3. The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) - additional considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. Not applicable.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The Court refers to its discussion above under the meaningful relationship primary consideration.  It appears that the child has positive relationships with the maternal grandparents.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

1. The mother would appear to have taken up such opportunities.  It would appear that by reason of the mother’s concerns in relation to the father, and her actions in this context, the father was unable to so participate in relation to such decisions, to spend time with the child and to communicate with the child.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. The father asserts that he has being paying about $35 a month in child support.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. Should the child spend supervised time with the father, the child’s meaningful relationship with the mother should not be detrimentally affected.

(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. Not applicable.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. Not applicable.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

1. Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. The parties are in significant dispute as to numerous matters touching upon parenting capacity, including alleged risk issues; the Court refers to its discussion above under the need to protect primary consideration. 

(j) Any family violence involving the child or a member of the child's family

1. The parties are in significant dispute as to family violence allegations.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the court in, or in proceedings for, the order; any other relevant matter

1. Not applicable.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. These are interim proceedings.

m) Any other fact or circumstance that the Court thinks is relevant

1. Not applicable.

Parental responsibility

1. The parties agree to an interim Order for equal shared parental responsibility.  Having regard to the matters discussed under the above need to protect primary consideration, it would not be in the best interests of the child to spend equal time or substantial and significant time with the father at this interim stage.

Summary

1. Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following interim Orders:

   (1)   By consent, the parties shall have equal shared parental responsibility for the child [X] born …2017 (“the child”).

   (2)     The child shall live with the mother.

   (3)     The child shall spend supervised time with the father as follows, at Children in Focus:

   (a)     For a period of one month, on two occasions each week for a period of one hour each time;

   (b)     For a period of two months, on two occasions each week for a period of two hours each time;

   (c) For a period of three months, on two occasions each week for a period of three hours each time.

   (4)     To facilitate the above supervised time between the child and the father, each parent must:

   (a)     Contact Children in Focus within seven days of the date of these Orders to arrange the first possible intake to occur;

   (b)     Comply with all policies and procedures and all reasonable requests of Children in Focus;

   (c) If, following intake, Children in Focus is unable or unwilling to provide supervision as set out above, then the Independent Children’s Lawyer shall have liberty to restore the matter to the list on seven days’ written notice to the parties and the Court.

   (d)     Pay half the fees nominated by Children in Focus for the provision of that service.

   (5)     That the father forthwith take all necessary steps to enrol in and complete a parenting course (related to the needs of young children and to post separation parenting skills) as agreed between the parties, but failing agreement to be the Triple P Program.

   (6)     That the father forthwith take all necessary steps to enrol in and complete and anger management course as agreed between the parties, but failing agreement to be Choosing Change.

   (7)     That the father shall submit to random supervised urine analysis within 48 hours of receiving written request from the Independent Children’s Lawyer, with such requests to be no more than once per month and to facilitate this Order:

   (a)     Such urine analysis shall be conducted in accordance with the Australian/New Zealand standard 4308:2008: Procedure for the collection, detection and quantitation of drugs of abuse in urine;

   (b)     The father shall provide a copy of the results of such testing to the mother’s lawyer and the Independent Children’s Lawyer within seven days of receipt of same.

   (8)     That the father make appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug and alcohol testing purposes.  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 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 father is required to maintain his head hair at a length of not less than four (4) centimetres; 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)     Each party or their legal representatives is at liberty to provide AWDTS with a copy of these Orders;

   (c) The father is to attend at an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from the father at the earliest available appointment time within seven (7) days of receiving written request to undertake hair collection for hair drug testing purposes from the Independent Children’s Lawyer;

   (d)     Written notice to undertake hair collection for hair drug testing purposes may be sent to the father care of the email address of the father’s lawyers (or father if acting in person) and shall be deemed to have been received by the father at the date and time it is sent via email;

   (e) The father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this Order also hereby authorising AWDTS or nominee to provide the results of each test to both parties, the father and the mother, the Independent Children’s Lawyer (if applicable), and their legal representatives upon receipt of such test results;

   (f)     The hair drug and/or alcohol test may screen for alcohol EtG and 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;

   (g)     AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available;

   (h)     The cost of the hair alcohol and drug tests is to be met by the father.

   (9)That in relation to the hair alcohol and drug test pursuant to Order 8:

   (a)     The father is only required to submit to hair alcohol and/or drug testing not more frequently than once per six (6) calendar months;

   (b)     If the father does not produce a satisfactory hair alcohol and drug test results, then the father’s time with [X] is suspended until the father produces a satisfactory hair alcohol and drug test result;

   (c) Upon the father producing a satisfactory hair alcohol and drug test result, the father’s time with [X] pursuant to Order 3 herein recommences.

   (10)   That in the event that:

   (a)     A hair alcohol and drug test result of the father detects a substance referred to in Order 8(f) other than a lawfully obtained current prescription or over-the-counter medication; or

   (b)     The father fails to provide a hair sample in accordance with these Orders within the timeframe provided for in these Orders; or

   (c) The father’s hair is not maintained as referred to in Order 8(a);

   then the father’s time with [X] shall be suspended.

   (11)   That the father be restrained from consuming any alcohol or non-prescription drugs during and for a period of 48 hours prior to the father’s supervised time with [X].

   (12)   That if [X] becomes distressed during his supervised time with the father, the father shall immediately contact the mother.

   (13)   That the parties shall keep the other party informed at all times of his/her residential address and contact details, including landline, email address and mobile numbers.

   (14)   That the parties shall keep the other informed of:

   (a)     [X]’s health and any health issues as well as any procedures or operations to be undertaken prior to those procedures or operations being undertaken except in cases of emergency (with the party in whose care [X] is at the relevant time to inform the other party as soon as possible).

   (b)     The names and addresses of any treating medical or other allied health practitioner who treat [X].

   (15)   That each of the mother and the father are hereby restrained by injunction from:

   (a)     Denigrating or insulting the other party or members of the other party’s family or friends or culture in [X]’s presence or hearing or permitting any other person to do so.

   (b)     Discussing any aspect of their relationship with [X] or in his presence or hearing or permitting any third person to do so.

   (c) Using swear words in [X]’s presence or hearing or permitting any other person to do so.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 18 December 2018