Hackland & Dymott

[2021] FedCFamC2F 383

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Hackland & Dymott [2021] FedCFamC2F 383

File number:	MLC 3764 of 2021
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	8 November 2021
Catchwords:	FAMILY LAW – interim parenting – re-introduction of father to children – reportable counselling – hair follicle test – whether father should be provided with photographs of children – whether father should be permitted to send cards and gifts to children.
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 69ZL
Cases cited:	Re K [1997] FamCA 21
Division:	Division 2 Family Law
Number of paragraphs:	32
Date of hearing:	8 November 2021
Place:	Melbourne
Counsel for the Applicant:	Ms S Mansfield
Solicitor for the Applicant:	Wightons Lawyers
Counsel for the Respondent:	Ms V Theoharopoulou
Solicitor for the Respondent:	Carew Counsel Solicitors

ORDERS

MLC 3764 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR HACKLAND

Applicant

AND:

MS DYMOTT

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

8 NOVEMBER 2021

THE COURT ORDERS THAT:

BY CONSENT:

1.The Mother forthwith do all such acts and things required to facilitate the children X born in 2010 and Y born in 2012 ("the children") attending reportable counselling and the parties comply with all reasonable recommendations of the children's counsellor including in relation to the children's attendance.

2.The Mother and Father and Independent Children's Lawyer each be authorised to liaise with the children's counsellor, if invited to do so.

3.The Mother be authorised to provide a copy of the following to the children's counsellor:

(a)All documents filed by the Mother and Father in these proceedings;

(b)All orders made in these proceedings including these orders;

(c)The Child Inclusive Conference memorandum dated 4 November 2021; and

BY THE COURT:

(d)The Affidavit of Dr B filed 4 November 2021 enclosing her Psychosexual Risk Assessment dated 26 October 2021 noting that aspects of the report are controversial including the "bath" and/or "Mr Doodle" allegations. 

BY CONSENT:

4.Between 1 January 2022 and 14 January 2022 and 1 May 2022 and 14 May 2022, the Father undergo a hair follicle test for drug and alcohol through Australian Workplace Drug Testing Services ('AWDTS') and for the purposes of same:

(a)The Applicant Father is required to maintain his head or bead hair at a length of not less than four (4) centimetres;

(b)The Applicant Father is not to bleach or dye his hair or beard between the date of this Order and the time of collection of hair;

(c)The Respondent Mother or her legal representative is at liberty to provide AWDTS with a copy of these Orders;

(d)The Applicant Father is to provide the AWDTS collector with photographic identification to be recorded before each hair collection; and

(e)AWDTS and/or nominee is hereby authorised to provide the results of each test to both parties, the Applicant Father and the Respondent Mother, and/or their legal representatives upon receipt of such test results;

(f)The cost of the hair alcohol and drug testing is to be met by the Applicant Father.

5.The Father continue to attend upon his treating medical practitioners in relation to his mental health, and continue to comply with his medication as prescribed.

6.The Father seek a referral to and engage in counselling and/or psychological and/or psychiatric treatment as recommended by his medical practitioner, and follow all reasonable recommendations as to treatment.

7.The Father be authorised to provide to the counsellor/psychologist/psychiatrist that he attends in accordance with paragraph 6 herein and to his current Region C Health medical practitioner, copies of:

(a)these Orders;

(b)the Child Inclusive Conference Memorandum dated 4 November 2021 and

(c)the Affidavit of Dr B filed 4 November 2021 enclosing her Psychosexual Risk Assessment dated 26 October 2021. 

8.The parties each enrol in and complete a Triple-P Parenting Program or similar accredited program and provide proof of completion to the other party.

9.The Mother inform the Father through his solicitor, of any serious illness or injury suffered by the children.

BY THE COURT:

Appointment of Independent Children's Lawyer

10.Pursuant to section 68L(2) of the Family Law Act 1975 the children X born in 2010 and Y born in 2012 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.

Interim Defended Hearing

11.The matter be adjourned to 14 June 2022 at 9.30am for Interim Defended Hearing at the Federal Circuit and Family Court of Australia at Melbourne.

12.The parties are at liberty to file updating material to be relied upon at the interim defended hearing by 4.00pm on 7 June 2022.

Family Report

13.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and X born in 2010 and Y born in 2012 attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children's Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 4 November 2022 and that the family report address:

(a)any views expressed by the children and any matters (such as the children's maturity or level of understanding) that would affect the weight that the court should place on those views;

(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);

(c)the impact upon the children and upon the children's relationship with the Mother if the Court made orders as sought by the Father;

(d)the impact upon the children and upon children's relationship with the Father if the Court made orders as sought by the Mother;

(e)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the children.

14.Not later than 4.00 pm on 15 November 2021 the parties must provide their contact telephone numbers and email addresses to [email protected].

15.Each party will do all things necessary to ensure the children attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.

16.The parties and the children shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.

17.The Family Consultant shall be at liberty to inspect any material filed by the parties.

18.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.

Final Hearing:

19.The proceedings be adjourned to 30 January 2023 at 10.00am for Final Hearing (with an estimated hearing time of three (3) days) at the Federal Circuit and Family Court of Australia at Melbourne.

20.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.

21.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.

22.The Applicant Father 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 4.00pm, 56 days prior to the Final Hearing (5 December 2022).

23.The Respondent Mother 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 4.00pm, 42 days prior to the Final Hearing (19 December 2022).

24.Each of the parties be at liberty to file a short affidavit in reply by no later than 4.00pm, 14 days prior to Final Hearing (16 January 2023).

25.Each party file and serve a case outline no later than 4.00pm, 7 days prior to trial (23 January 2023) and provide a copy in Word format to the associate with the case outline to include:

(a)A list of the application/response and all affidavits to be relied upon including the dates of filing;

(b)A brief chronology of relevant events;

(c)A precise minute of the orders the party is seeking at the interim hearing; and

(d)A list of authorities to be relied upon, if any.

26.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 affidavit.

27.No later than 3 days prior to trial, the legal representatives (and the parties themselves if self represented) jointly prepare a trial plan outlining any witnesses for cross-examination and an indication of the time they anticipate required for cross-examination of each witness.

AND THE COURT NOTES THAT:

A.The purpose of the reportable counselling for the children includes:

(a)Such matters as are apparent to the counsellor as impacting on the welfare of the children; and

(b)To support the children in line with paragraph 40 of the Child Inclusive Conference memorandum dated 4 November 2021.

(c)To explore the possibility and options for the children's reintroduction to their Father in a supervised setting in the first instance, if appropriate, as well as dealing with their generalised anxieties.

B.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.

C.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.

D.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.

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

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

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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 by this Court under a pseudonym Hackland & Dymott has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are the settled short reasons pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’) on an interim matter and delivered ex tempore. The matters I have to determine are helpfully set out in Exhibit D 8.11.2021. The parties or the parents lived together from March 2006 until July 2013 or perhaps January 2014 and nothing turns on that. Following separation, Mr Hackland (‘the Father’) spent some time with the children, X who is now 11 and Y who is now eight (‘the children’). Ms Dymott (‘The Mother’) deposes that it was because of her fear of the Father that she permitted the children to spend time with him. The Mother alleges significant family violence and exposure of the children to family violence. In addition to that, it is common ground that the Father has, in the past, suffered what can sometimes be called a mental health breakdown or mental health problems and he has undertaken significant treatment for such circumstance.

2. The matter came before a Registrar on 15 June 2021 and the parties determined that the matter should be adjourned to this day with a report from a Dr B (‘Dr B’) a clinical psychologist who is an expert in this field and she has prepared a report headed psychosexual risk assessment report.  Depending whether your glass is half empty or half full, Dr B's report is positive or negative.  It highlights the difficulties, from a mental health perspective, that the Father has had to deal with for a considerable period of time and, essentially, does not recommend that the matter proceed with unsupervised time at this point and diagnoses the Father as having a substance abuse disorder: Amphetamine and cannabis in sustained remission, severe and she opines that:

   However, I am of the view he is at high risk of relapse given the stress of his current circumstances and the chronicity of his past use.

3. I add that substantive abuse is not the only issue concerning the Father as Dr B deals with the common ground of the other mental health issues that the Father has wrestled with. 

4. Exhibit B and Exhibit C are hair analysis drug tests and there are two tests.

5. One was undertaken by the Father on 19 June 2021 and that test was negative for all substances except cannabis but showed positive low to moderate alcohol consumption.  The cannabis reading was 46.3 which is significant as the screening cut off is 10 pg per 10 milligrams.  So that test is positive in the sense of showing an abstinence from matters that had previously wreaked havoc in the Father’s life including cocaine and amphetamines and showed a low to moderate alcohol consumption, which had also caused the Father a lot of problems.

6. It is common ground between counsel, although not stated in the report, that the likely period that that hair follicle test would cover of 19 June would be three months on the basis of the rule of thumb of 1 centimetre of hair covering a month of time.  The test undertaken by the Father on 4 October 2021 shows negative to all substances including cannabinoids for cannabis or marijuana.  The alcohol test showed that the alcohol consumption was low to moderate again but with a different reading and I will not speculate as to the consequences of that.

7. For the Mother, Ms Theoharopoulou has pointed me to the Father's observation to Dr B that he did not feel like he needed any therapy.  However, the order that is before me includes by consent order number 9 which is that the Father will seek a referral to and engage in counselling and/or psychological and/or psychiatric treatment as recommended by his medical practitioner and follow all reasonable recommendations as to treatment. 

8. Ms Theoharopoulou submits to me that there are not many positive signs in the circumstances that the Father has not yet undertaken or does not have evidence of undertaking counselling or therapy for substance abuse disorder when combined with the seriousness of his substance abuse disorder (now in remission) as described by Dr B.

9. These things, to some extent, depend upon whether your glass is half full or half empty.  Since about March 2021 until now, it is likely that, the Father has been abstinent from amphetamines and cocaine and since about July 2021 abstinent from all substances including cannabis.  He has continued a low to moderate alcohol consumption and he now having read of some disappointing observations by Dr B, he now himself, seeks an order that he be referred to and engage in counselling and/or psychological and psychiatric treatment, as recommended, which is a pretty open book.

10. The Father has also been in employment from time to time, is now living with his mother, though largely due to the financial circumstance of the cost of this litigation including the very significant cost of the therapy.  They are matters that indicate some very positive rehabilitation on the part of the Father.

11. The affidavit of the Mother describes serious family violence and being subjected to ongoing family violence and, on her account, threats that would or may have continued post-separation.  They are very serious matters.  In addition, I have the benefit of the section 11F child inclusive conference memorandum and that describes some anxieties of the children and, in particular, what can be called, (described at paragraph 34), the “bath” or “Mr Doodle” incident or, on the Mother's account in her affidavit, incidents plural.  That is denied by the Father, and that is acknowledged, but they are serious allegations.

12. The Mother presses that the matter be listed for final hearing with no further orders or opportunity for the parties to review the circumstances until final hearing.  The state of my list, from matters issued prior to the amalgamation of the two Courts, is such that I cannot list this matter for final hearing until January 2023.

13. The Father's case was that, as candidly and bluntly put by his counsel, Ms Mansfield, he has significant work to do but seeks, in the circumstances where he has not seen the children for two plus years, to have the opportunity to ventilate that possibility within about six months or so.  In an ideal world, I may be able to provide a final hearing within about six months or eight months or so and I note that the proceedings were issued in April 2021.

14. I also note that the parties had not previously sought that I set the matter down for final hearing but had sought to deal with the matter on an interim basis, including the provision of drug and alcohol testing results by hair follicle tests, the information of an independent assessment of the section 11F child inclusive conference memorandum as well as the referral to Dr B. 

15. The future directions from the section 11F report released on 4 November 2021 are as follows:

    In the absence of information to the contrary, the following future directions are provided to the Court for consideration

    38.      Mr Hackland’s spend time be reserved in the interim.

    39.That Mr Hackland continues to engage in counselling with his current service provider.

    40.That X and Y commence counselling to support them with the memories they have regarding their father’s alleged inappropriate behaviours and other assessed mental health concerns. 

    41.The Court may benefit from obtaining a psychological report to assess Mr Hackland’s functioning and safety of the children in relation to them spending time with the father.

    42.Should the psychological report support spend time between Mr Hackland and the children, consideration be given to the following steps:

    43.Psychological support and monitoring remain available for the children until such time that X and Y develop enough confidence before telephone calls or professionally supervised spend time is established with Mr Hackland.

    44.Consideration be given for the children commencing with telephone conversations with the father before a gradual introduction of professionally supervised spend time occurs.

    45.Should the children experience undue stress as assessed by the children’s psychologist or counsellor, consideration be given for spend time to be reserved.

    46.That the parties enrol and engage in a parenting program to enhance their skills to positively parent the children. An evidence based online service is: Triple P:

    47.This Memorandum to be made available to the professionals involved with the adults and children.

1. So the remaining issues are as follows.  Should there be a further interim hearing as pressed for by the Father and resisted by the Mother.

2. The Mother's affidavit and, indeed, paragraph 34 of the child inclusive memorandum asserts matters that can be described as allegations of child abuse.  I might add exposure of the children to family violence is also an allegation of exposing the children to family violence and that is an allegation of child abuse.  For those reasons, the matter falls within the first category of the decision of Re K [1997] FamCA 21 and it is appropriate and in the children's best interests that they have the assistance of an Independent Children's Lawyer. So that is the first issue in dispute.

3. The context to the next issue is that the parties sensibly have agreed that there be reportable counselling for the children to cover the matters precipitated or triggered by the matters described at paragraph 40 of the section 11F child inclusive conference memorandum and I quote as follows:

   40.That X and Y commence counselling to support them with the memories they have regarding their father's alleged inappropriate behaviours and other assessed mental health concerns.

4. The dispute was whether or not Dr B's report should be provided to the counsellor along with the materials it is agreed that would be provided, which is these orders, the child that I am going to make, the child inclusive memorandum of 4 November 2021, and the Mother's affidavit and the Father's affidavit.  I have determined that the child counsellor should be provided with that affidavit for the context.  But the order it should have attached to it at the end words noting that aspects of the report are controversial including the “bath” or “Mr Doodle” allegations described at 34 of the section 11F child inclusive memorandum and the Mother's affidavit. 

5. The next dispute between the parties relates to two matters that really run together: whether the Father should be provided with current photographs of the children in the circumstances where he has not seen them for two and a half years, and secondly, can the Father be permitted to send cards and gifts to the children.  Ms Mansfield makes the point powerfully, that it is clear from the section 11F child inclusive conference memorandum, the interviews being as recent as 28 October 2021, that the children do remember their Father or have a memory of their Father.  From that, Ms Mansfield raises what is the harm in the Father having a photograph of his children that he would very much wish to have?  Further, it is raised what is the harm in the Father being able to send letters, cards and gifts to the children for Christmas and birthdays on the basis the parties would seek guidance from the children's counsellor in providing same to the children?  And, of course, there is the obvious safeguard that the letters, cards and presents would not be delivered directly to the children but would go to them via the Mother and, alternatively, via the Independent Children’s Lawyer. 

6. In all of the circumstances of this case and the potential for anxiety in the Mother's home about contact with the Father when the counselling with the children is pursued, I do not propose to put those orders in place at this time.  The Father's time with the children including the telephone time, the letters, cards, presents;  the photographs;  the whether there is an automatic progression from telephone time to supervised time, all of those matters will be before me in June 2022.  So I do not propose to make those orders at the moment.

7. I should say the basis of not making those orders is not because I find there is unacceptable risk that somehow the letters would enable the Father to track down and identify or locate the children or their school or that he would send inappropriate letters, cards and presents to the children.  It is not on that basis.  I am concerned at the Mother's anxiety and potential anxiety in regard to those matters given what she is alleged to have experienced.  I note that paragraph 17 of the section 11F child inclusive conference memorandum indicates that she has never been diagnosed with a mental health issue but she has felt, at times, anxious about the children's safety and wellbeing.

8. There is another layer to this case and that is in the time since separation, the children have had little or no contact with their Father.  The Mother has re-partnered, has two other children and, unsurprisingly, the children, it is said by the Mother, have come to refer to her new partner and the Father of the other two children as ‘Dad’.  That is unsurprising in the circumstances when two of the four children of the household would refer to the Mother’s partner as ‘Dad’.  It is clear that the Mother, based on her statements, proposes that the Father not have any further involvement with the children's life at all.  That may or may not come to pass.  The Father's, what I will describe as, personal rehabilitation would contend against that.  But I am not determining that at this point.  It may be that I cannot determine that matter until final hearing.  On the Mother's case, the Father should not have time or contact with the children or the children be reminded of him other than in the counselling scenario.

9. So for all of those reasons, I will not determine the nature of the contact between the Father and the children at this time.  I acknowledge the likely profound disappointment to the Father of this ruling when he has invested considerable time, effort and money in seeking to reconnect to his children which, of course, is itself an indication of rehabilitation and care and concern for the children.  Although that would be likely to be experienced by the Mother to the opposite effect and that is the nature of the conflict in this situation.

10. The remaining dispute is the issue of whether the counselling that is agreed to happen should have a reference as to the purpose of it and it is asserted by the Father's counsel that the purpose of it should be to explore the possibility and options of the children's reintroduction to their Father in a supervised setting and sets out a form of words that is sought to be included.  The Mother seeks to have a different set of words and not including the possible reintroduction of the Father but limited to paragraph 40 of the child inclusive memorandum.  In my view, the issue of letters, cards and presents is not something that should be determined by the counsellor but I would expect that it is inevitable that such a matter would be raised in the counselling.

11. So to the extent that it is necessary to provide a notation in regard to the purpose of the counselling, I acknowledge there is substance in the Father's position that the purposes of the court ordered counselling should be stated.  However, I do not intend to put fences around the counsellor as to that therapy and for that purpose, to make that clear, the notation will read: 

    The purposes of the reportable counselling for the children includes:

    a.Such matters as are apparent to the counsellor as impacting on the welfare of the children; and

    b.To support the children in line with paragraph 40 of the Child Inclusive Conference memorandum dated 4 November 2021.

    c.To explore the possibility and options for the children’s reintroduction to their Father in a supervised setting in the first instance, if appropriate, as well as dealing with their generalised anxieties.

12. In other words, there is substance in both submissions about that counselling aspect. 

13. The orders must be in the children's best interests. I take into account all of Part VII of the Act but, in particular section 60CC(1) and (2) and (2A) which says that I must take into account the safety and protection of the children and give that greater weight when considering the benefit to them of having a relationship with their Father. I also take into account all of the matters described at section 60CC(3)(a) through to (m).

14. I also take into account that I have been told by the Father's counsel that he intends to undertake, voluntarily himself, two further hair follicle tests to demonstrate his abstinence from substance abuse.  I do not underestimate how difficult that can be for someone with a substance abuse problem to deal with that.  And for the Father's own sake, apart from the sake of his children and those caring for his children, wish him well with that endeavour.  On the face of it, there is some modest success so far and time will tell the extent of success with that.

15. I also want to thank the parents, both the Mother and the Father for both working out some, decisions themselves about the way forward in difficult times.  That shows some insight on both their parts in regard to the range of possibilities of what should happen in this litigation.  I have already expressed that, were it up to me, I would like to list the final hearing before January 2023 but I do not have those options.

16. And you should take it that, having read this material once, I do not expect it to be reproduced in the next interim affidavit.  On the return before me, I will be relying on the material already filed.  And hence, the parties are only expected to go to the trouble and expense of updating that material.  They do not have to file anything further.  For the benefit of the parties, that is so that when we come up for hearing, each of you knows what the other one has already said and that I have read. 

17. But it is really important and I would ask you both not to just leave it to your lawyers.  If there is something further important that you need to say, do not leave it to Friday 7 June.  Think about that in the couple of weeks beforehand to help your lawyers assist you.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       16 November 2021