Harik & Harik
[2021] FedCFamC2F 479
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harik & Harik [2021] FedCFamC2F 479
File number(s): PAC 5985 of 2020 Judgment of: JUDGE NEWBRUN Date of judgment: 1 December 2021 Catchwords: FAMILY LAW – interim parenting - best interests of children - Orders made Legislation: Family Law Act 1975 (Cth), ss. 60B, 60CC, 60CA, 65Y (2), 65Z (2), 69ZL
Passports Act 2005 , s 11(1)(b)
Cases cited: 1 Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286
2 Marvel & Marvel (No 2) [2010] FamCAFC 101
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36
Division: Division 2 Family Law Number of paragraphs: 46 Date of last submission/s: 14 October 2021 Date of hearing: 14 October 2021 Place: Parramatta Solicitor for the Applicant: Ms Munk Solicitor for the Respondent: Ms Mahony ORDERS
PAC 5985 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HARIK
Applicant
AND: MR HARIK
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
1 DECEMBER 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The Father’s application for interim Orders sought in his Case Outline filed 13 October 2021 is dismissed.
2.That all previous parenting Orders are suspended.
3.That the parties shall have equal shared parental responsibility for the children, X born in 2012 and Y born in 2015 (“the children”).
4.That the children live with the Mother.
5.That the children live with the Mother except at times when they are spending time with the Father as specified below.
6.That the children spend supervised time with the Father through B Contact Centre (“the contact service”), with such supervised time to commence as soon as possible, on such days and times as the contact service has availability, for two (2) hours each week, for a period of at least 2 months.
7.That the Father shall meet any costs incurred in the provision of the supervised time including reports.
8.That the parties shall contact the contact service within 48 hours of these Orders for the purpose of commencing the required intake process and shall abide by all reasonable directions of the Contact Service.
9.That at the conclusion of the 2 months of contact as supervised by B Contact Centre or such other service as may be ordered, and provided the Father has undertaken and provided a clear drug and alcohol hair follicle test then the children shall spend supervised time with the Father as follows:
(a)That the time be supervised by the Father’s sister in law Ms C or an alternative supervisor as agreed to by the Mother for a period of at least 3 months.
(b)During the school term:
(i)From after school Wednesday until 5pm; and
(ii)From 10am Saturday to 1pm Saturday.
(c)During the school holidays:
(i)For a period of 4 hours on one (1) nominated week day as agreed between the parties; and
(ii)From 10am Saturday to 1pm Saturday.
(d)Each even numbered year 11am to 3pm Christmas Day.
(e)Each odd numbered year from 5pm to 9pm Christmas Day.
(f)Each even numbered year from 11am to 3pm Easter Sunday.
(g)Each odd numbered year from 5pm to 9pm Easter Sunday.
(h)On Father's Day from 10am to 2pm with the Father on Father's Day.
(i)On the children's birthdays as follows:
(i)If the birthday falls on a non-spend time weekday, then from after school to 5.00pm.
(ii)If the birthday falls on a non-spend weekend, then from 10.00am to 2.00pm on the children's birthday.
(j)At such other times as agreed between the parties in writing.
10.That upon the Father returning a further clear drug and alcohol hair follicle test result (such further test to be undertaken at least 3 months after the test in Order 9 above), and after the above supervised period of at least 3 months, the Father’s time in accordance with Order 9 (b)-(j) be unsupervised.
11.That during the currency of the above Orders:
(a)That the Father be restrained by injunction from consuming alcohol in the 12 hours prior to the children being in his care and at any time while the children are in his care.
(b)That the Father shall not consume illicit drugs or un-prescribed benzodiazepine during the time that he has the care of children or for a period 24 hours beforehand.
(c)That the Father shall ensure that the children are not in the presence of any other person who is affected by illicit drugs and/or adversely affected by alcohol.
(d)In relation to supervised time through B Contact Centre, that the Mother or the supervisor shall collect and return the children from the agreed contact location for the purpose of the contact time with the Father; or such other arrangements as may be arranged between the supervision service and the Mother.
(e)That for the purposes of the children spending time with the Father other than through B Contact Centre, the Mother is to deliver and collect the children to and from the Father or the supervisor or other agreed supervisor at a nominated park or another location as nominated by the Mother, at the commencement and conclusion of the children spending time with the Father.
(f)That the Father shall continue to consult his psychologist or psychiatrist and other health care professionals and follow all of their directions as to treatment.
(g)That the Father shall continue to attend upon his psychologist or psychiatrist on a regular basis engaging in such treatment as recommended by those health professionals for drug and alcohol issues.
12.That the Father will provide a contact number to the Mother during periods when the children spend time with the Father.
13.That the Father may contact the children via their iPad at 6pm each Monday, Wednesday and Friday evening for a period of 30 minutes.
14.That during the Father’s calls to the children:
(a)The Father shall not denigrate, chastise or be abusive towards the children or the Mother.
(b)The Father shall maintain polite and constructive communication throughout the duration of the call.
15.That the Father shall notify the Mother’s lawyers in writing as to the name and contact details of the above treating psychologist or psychiatrist. In the event that the Father shall change his treating psychologist or psychiatrist then he shall advise the Mother in writing within 7 days including as to the name and the contact details of the new treating psychologist or psychiatrist.
16.In relation to the above drug and alcohol hair follicle tests, referred to in the above Orders, the father shall make an appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or another authorised pathology service or laboratory (“pathology service”) 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 prior to the time of collection of hair;
(b)the Father is required to make an appointment with the pathology service for the purpose of providing a hair sample for hair drug and alcohol testing purposes;
(c)each party or their legal representatives is at liberty to provide the pathology service with a copy of these orders;
(d)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 the pathology service to provide the results of each test to both parties, the Father and the Mother, the Children’s lawyer (if applicable), and/or their legal representatives upon receipt of such test results;
(e)the hair drug and alcohol tests 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.
(f)the cost of the hair alcohol and drug tests are to be met by the Respondent Father.
17.That the parties be restrained by injunction from denigrating the other parent or members of the other parent's family to the children or in the presence of the children or at all.
18.That the parties shall use their best endeavours to ensure that no other person denigrates the other parent or members of the other parent's family to the children or in the presence of the children.
19.That the parties shall and are hereby restrained by injunction from discussing these proceedings with or in the presence of the children or show to the children any document connected with these proceedings.
20.Pursuant to Section 68L of the Family Law Act 1975 (Cth) the children X born in 2013 and Y born in 2015 shall be independently represented and the Court requests that the Legal Aid Commission provide that representation.
21.The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.
22.Leave to the parties and Independent Children’s Lawyer to issue more than five Subpoenas for production of documents.
23.Liberty to the parties and ICL to relist the proceedings on 7 days’ notice in the event of any significant problem arising relating to the implementation of the above Orders.
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 Harik & Harik has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
These are short form reasons pursuant to section 69ZL of the Family Law Act 1975 (“the Act”).
This interim hearing relates to the children X born in 2012 (now aged 9 years) and Y born in 2015 (now aged 6 years).
The Father seeks interim parenting orders as set out in his Case Outline filed 13 October 2021, inter alia, that the children live with the Mother; that the children spend time with the Father each Tuesday and Thursday from after school to 5pm and each Sunday from 12pm to 2pm, and at such other times as agreed between the parties; and that the Father be restrained from consuming illicit substances within 24 hours of spending time with the children or at such times that the children are in his care.
The Mother seeks interim parenting orders as set out in her proposed Minute of Order emailed to the Court on 15 October 2021, inter alia, that:
(a)the parties have equal shared parental responsibility for the children;
(b)that the children live with the Mother;
(c)that upon the Father returning a clear drug and alcohol hair follicle test result (in accordance with proposed Order 23), the children spend supervised time with the Father with B Contact Centre for 2 hours each week for a period of 6 months;
(d)that the Father’s time with the children be subject to certain specified conditions, including that he be restrained by injunction from consuming alcohol or illicit or unprescribed drugs during the time that the children are in his care or for a period of 24 hours beforehand;
(e)that at the conclusion of the 6 months of contact as supervised by B Contact Centre, and provided the Father has undertaken and provided clear drug and alcohol tests for a period of not less than 6 months from the date of these Orders and complied with the provisions of Order 9 (relating to the above certain specified conditions), then the children spend supervised time with the Father by the Father’s sister-in-law or an alternative supervisor as agreed to by the Mother;
(f)that upon the Father returning clear drug and alcohol test results for a period of no less than 6 consecutive months, then the Father’s time in accordance with Orders 10 be unsupervised.
The Father relied upon his Case Outline filed 13 October 2021, his Response filed 30 November 2020, and his Affidavit filed 11 October 2021.
The Mother relied upon her Case Outline filed 13 October 2021, her Affidavit filed 10 November 2020, her Initiating Application filed 10 November 2020, the Affidavit of the Father filed 11 October 2021, the Orders of Judge Riethmuller made on 10 August 2021, and her tender bundle of documents containing 48 pages plus a 1 page index.
The Father was born in 1985 and is now aged 36 years. The Mother was born in 1990, and is now aged 31 years. The Father works for his family business as a director. In the Mother’s Initiating Application filed 10 November 2020, she states that the husband’s usual occupation is construction worker. In that Application the Mother pleads that the parties commenced to live together in 2011 and separated in October 2017.
The parties entered into final consent parenting Orders on 16 October 2019 which provided, inter alia, that the parties have equal shared parental responsibility for the children; the children live with the Mother; the children spend time with the Father, failing agreement, during New South Wales school term periods, from after school Friday until 5 PM Sunday and continuing each alternate week, and on three afternoons each week from after school until 4 PM and failing agreement those afternoons be on Mondays, Tuesdays and Fridays. The Orders also provided for the Father to spend time with the children during the school holidays for significant block overnight periods.
The above Orders of 16 October 2019 provided certain without admission drug and alcohol restraints upon the Father in relation to him spending time with the children; for example, Order 20 of those Orders provided, inter alia, that for 24 hours immediately prior to the commencement of any time that the children are to spend with the Father, and for the duration of the time in which the children are in the Father’s care, the Father is restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of alcohol or any illegal drug or substance.
In the above Orders of 16 October 2019, Order 21 provided that, on a without admissions basis, the Father recommence and continue to consult a psychiatrist, in relation to his mental health for not less than 12 months from the date of the making of these orders (or such other period of time as recommended by the Psychiatrist) with the frequency of the sessions being as recommended by the psychiatrist. A Notation in those Orders (paragraph 23) provided:
It is noted, on a without admissions basis, that during the first 6 months of the Father’s attendances upon the psychiatrist, the parties agree that the Father is to discuss with the psychiatrist his mental health, the children’s emotional and relational vulnerabilities and the Father’s own personality functioning as it relates to parenting.
LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286.
In Marvel & Marvel (No 2) [2010] FamCAFC 101, 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.
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.
The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors”.
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
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.
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). In this context the Court refers to its discussion above in relation to Banks & Banks.
Under s 60CC(2A) of the Act, when the Court is applying the considerations under ss(2) of s60CC (being the meaningful relationship primary consideration and the need to protect primary consideration), the Court is to give greater weight to the need to protect primary consideration.
The children have a meaningful relationship with the Mother and will benefit from a continuance of those relationships.
The children have a meaningful relationship with the Father and will benefit from a continuance of those relationships provided it is safe for them, both physically and psychologically, to do so.
In relation to the need to protect primary consideration, the Court has a real concern that the Father:
(a)may be a regular user of cocaine, and may have a dependency upon cocaine and benzodiazepine;
(b)may abuse alcohol and have a gambling problem related to such alcohol use;
(c)may have untreated mental health issues including anxiety and depression;
(d)has a compliance issue with Court Orders;
(e)may have denigrated and abused the Mother in the presence of the children, and may have acted in a violent and antisocial manner in her near presence.
As to (a) above, the Father frankly acknowledges that he has been a recreational drug user and continues to recreationally use cocaine. He admits that he was aware of this Court’s Orders of 10 August 2021 whereby the Father was ordered to make an appointment for hair drug test within 72 hours and undertake the test by 31 August 2021; that he understands that his failure to undertake the hair drug test allowed the Court to draw an inference that he used illicit substances in the three months prior to 31 August 2021; and that he did not undertake the hair drug test because he had used illicit substances in the three months prior to 31 August 2021 and he knew that the test would come back with a positive result.
The medical discharge summary from the D Clinic, Department of Psychiatry, page 12 of the Mother’s tender bundle, refers to an admission on 15 November 2017 with a discharge date of 8 December 2017 from that clinic and referring to the Father’s principal diagnoses of, inter alia, cocaine and benzodiazepine addiction. The reported comorbidities of the Father includes cocaine addiction.
The GP report of 16 August 2019 from the E Medical Centre refers to the Father’s presenting problem for drug and alcohol, with the GP referring the Father “for 28 day program please”.
There is no up-to-date health professional evidence from the Father relating to the above cocaine and benzodiazepine issues.
As to (b) above, the Father has two convictions for driving whilst affected by alcohol (offence dates 28 March 2017 and 8 January 2019), and the above medical discharge summary refers to gambling secondary to ETOH, and a comorbidity of ETOH abuse. Again, the GP report of 16 August 2019 from the E Medical Centre refers to the Father’s presenting problem for drug and alcohol, with the GP referring the Father “for 28 day program please”.
The Mother alleges that the Father, for example in early September 2020, was intoxicated and attempted to break the Mother’s front door and fight with her current partner.
There is no up-to-date health professional evidence from the Father relating to the above alcohol issue.
As to (c) above, the Court notes the consent final parenting Orders of 16 October 2019 providing, on a without admissions basis, that the Father recommence and continue to consult a psychiatrist in relation to his mental health for not less than 12 months from the date of the making of the Orders with the frequency of the sessions being as recommended by the psychiatrist.
The above medical discharge summary refers to a principal diagnosis of, inter alia, Depression/anxiety. And the Court refers to the Mother’s allegations of anti-social behaviour by the Father post separation in 2020 which may be consistent with possible mental health issues in the Father.
There is no up-to-date health professional evidence from the Father relating to the above mental health issue.
As to (d) above, in this context, it is to be noted that the Father contends, in relation to the Mother’s concern that there is a significant risk that the Father may be adversely affected by illicit drugs when spending time with the children, that such alleged risk can be mitigated by the Court making a restraining order against the Father from consuming illicit substances within 24 hours of spending time with the children or at such times of the children are in his care.
However, on 26 January 2011 and 28 March 2017 he committed the offences of driving on road while license suspended.
Then on 20 August 2020 the Father was convicted of contravene prohibition/restriction in AVO (Domestic) and he was fined $500.
The Father was on conditional bail, such bail having been imposed upon him on 24 February 2021 by the Suburb F Local Court, in relation to allegations, investigated by the police, inter alia, that on 15 September 2020 he contravened prohibition/restriction in AVO (Domestic); in this regard the Court refers to the allegations referred to at pages 35, 36 and 37 of the Mother’s tender bundle. At the interim hearing, counsel for the Father informed the Court that these criminal proceedings were finalised on 11 June 2021, with the Father entering a guilty plea to sequences 3 and 4 in the charge sheet regarding the Mother’s partner, and a plea of guilty to contravene prohibition/restriction in AVO.
At pages 40 and 41 of the Mother’s tender bundle, there is an allegation by the police that the Father failed to attend Suburb F Police Station on 27 July 2020 as per his current bail conditions.
As to (e) above, an ADVO was made against the Father for the protection of the Mother on 30 July 2020. It was later varied with the order to extend to 4 March 2022.
Again, the Mother alleges that the Father, for example in early September 2020, was intoxicated and attempted to break the Mother’s front door and fight with her current partner.
The Father in his Affidavit filed 12 October 2021, in relation to the above concerns of the Court, alleges that the Mother has permitted him to have daytime time with the children on average 3 to 4 times per week during the past 3 months, usually in the presence of the Mother, and that on some occasions he has spent time with the children without the Mother being present and with the Mother’s endorsement. He alleges that such time was positively spent with the children. He alleges that he has never spent time with the children whilst under the influence of illicit drugs or alcohol, and he contends that the Mother has adduced no material to the contrary at least in relation to his time with the children during the past 3 months. The Father contends that the Mother’s documentary material relied upon indicates that she has been aware of the Father’s illicit drug use for a long time, yet the Mother has permitted him to spend unsupervised time with the children usually during the daytime. And he contends that should the Court make the interim injunction that he proposes, namely that he be restrained from consuming illicit substances within 24 hours of spending time with the children or at such times that the children are in his care, any risks of harm to the children through the Father potentially being adversely affected by illicit substances can be ameliorated.
On the other hand, as submitted by the Mother, the Mother alleges, in her Affidavit filed 10 November 2020, that there have been periods since about March 2020 when she has observed the Father to be well and not apparently experiencing any difficulties with drugs and/or alcohol and yet “more recently” she had observed the Father to exhibit behaviour that was “violent, erratic and would otherwise appear consistent with him being under the influence of drugs and alcohol”. In this latter context, the Mother alleges, for example, that on 29 April 2020 the Father exhibited adverse behaviour (for example, ringing the doorbell constantly, banging on the door, yelling, abusive erratic and aggressive behaviour towards the Mother in front of the children, and repeated shifting of the Father’s personality), at about 7 AM at the front of her residence, resulting in the Mother calling the police and the police arresting the Father. These allegations suggest that the Father may experience both periods of sobriety from illicit drugs and/or alcohol and later periods when he is adversely affected by illicit drugs and/or alcohol. The Court has concerns in relation to this possible variability of the Father’s adverse behaviour over a period of time in the context of the Mother’s allegations relating to the Father’s illicit drug and alcohol use.
In the view of the Court, there is a real risk of physical and/or psychological harm posed to the children in presently spending unsupervised time with the Father by reason of its concerns discussed above. In particular, there is a real risk of such harm posed to the children occurring if the Father spends time with them whilst adversely affected by illicit drugs, benzodiazapine or alcohol. The Court proposes the following suite of protective Orders so as to minimise and address the above risks of harm, which includes initial supervised time progressing to unsupervised time (provided clear drug and alcohol hair follicle tests can be provided by the Father; see below):
(a)the children spending supervised time with the Father through B Contact Centre for at least 2 months;
(b)upon the Father providing a clear drug and alcohol hair follicle test and after the conclusion of the above period of 2 months, the children spend supervised time with the Father for at least 3 months supervised by the Father’s sister-in-law or an alternative supervisor as agreed to by the Mother;
(c)upon the Father returning a further clear drug and alcohol hair follicle test (such further test to be undertaken at least 3 months after the test referred to above), and after the conclusion of the above supervised period of 3 months, then the Father’s time be unsupervised;
(d)the Court making restraining Orders against the Father relating to the consumption of illicit drugs, unprescribed benzodiazepine, and alcohol whilst the children are spending time with him;
(e)the Court making Orders that the Father continue to consult his psychologist or psychiatrist and other healthcare professionals and follow all their directions as to treatment;
(f)the Court making Orders that the Father continue to attend upon his psychologist or psychiatrist on a regular basis engaging in such treatment as recommended by those health professionals for drug and alcohol issues;
(g)the Court making non-denigration Orders, and Orders providing for non-discussion of these proceedings with the children, applicable to both parents.
Should the Court make the above proposed protective Orders, relating to the children spending time with the Father, together with the Mother’s proposed Orders relating to the Father contacting the children via their Ipad, there is a reasonable prospect that the children’s meaningful relationship with the Father can be maintained.
The Court has a concern, in relation to the proposed suite of interim parenting Orders proposed by the Mother, including in relation to the non-commencement of time between the children and the Father until a clear drug and alcohol hair follicle test result is provided by him, that should the Court make such Orders, that there is a significant risk that the children’s meaningful relationship with the Father will be detrimentally affected.
No party made any submission in relation to the so-called rule in Rice & Asplund; in any event, by reason of the matters discussed above, including the Court’s risk analysis discussion, there probably has been a significant change in circumstances since the Court’s final parenting Orders of 16 October 2019.
Equal time and substantial and significant time will not be in the best interests of the children at this interim stage having regard to the Court’s above Reasons, although they may be reasonably practicable.
Evaluating the above discussed relevant matters under section 60CC it will be in the best interests of the children to make the following interim parenting Orders:
1.The Father’s application for interim Orders sought in his Case Outline filed 13 October 2021 is dismissed.
2.That all previous parenting Orders are suspended.
3.That the parties shall have equal shared parental responsibility for the children, X born in 2012 and Y born in 2015 (“the children”).
4.That the children live with the Mother.
5.That the children live with the Mother except at times when they are spending time with the Father as specified below.
6.That the children spend supervised time with the Father through B Contact Centre (“the contact service”), with such supervised time to commence as soon as possible, on such days and times as the contact service has availability, for two (2) hours each week, for a period of at least 2 months.
7.That the Father shall meet any costs incurred in the provision of the supervised time including reports.
8.That the parties shall contact the contact service within 48 hours of these Orders for the purpose of commencing the required intake process and shall abide by all reasonable directions of the Contact Service.
9.That at the conclusion of the 2 months of contact as supervised by B Contact Centre or such other service as may be ordered, and provided the Father has undertaken and provided a clear drug and alcohol hair follicle test then the children shall spend supervised time with the Father as follows:
(a)That the time be supervised by the Father’s sister in law Ms C or an alternative supervisor as agreed to by the Mother for a period of at least 3 months.
(b)During the school term:
(i)From after school Wednesday until 5pm; and
(ii)From 10am Saturday to 1pm Saturday.
(c)During the school holidays:
(i)For a period of 4 hours on one (1) nominated week day as agreed between the parties; and
(ii)From 10am Saturday to 1pm Saturday.
(d)Each even numbered year 11am to 3pm Christmas Day.
(e)Each odd numbered year from 5pm to 9pm Christmas Day.
(f)Each even numbered year from 11am to 3pm Easter Sunday.
(g)Each odd numbered year from 5pm to 9pm Easter Sunday.
(h)On Father's Day from 10am to 2pm with the Father on Father's Day.
(i)On the children's birthdays as follows:
(i)If the birthday falls on a non-spend time weekday, then from after school to 5.00pm.
(ii)If the birthday falls on a non-spend weekend, then from 10.00am to 2.00pm on the children's birthday.
(j)At such other times as agreed between the parties in writing.
10.That upon the Father returning a further clear drug and alcohol hair follicle test result (such further test to be undertaken at least 3 months after the test in Order 9 above), and after the above supervised period of at least 3 months, the Father’s time in accordance with Order 9 (b)-(j) be unsupervised.
11.That during the currency of the above Orders:
(a)That the Father be restrained by injunction from consuming alcohol in the 12 hours prior to the children being in his care and at any time while the children are in his care.
(b)That the Father shall not consume illicit drugs or un-prescribed benzodiazepine during the time that he has the care of children or for a period 24 hours beforehand.
(c)That the Father shall ensure that the children are not in the presence of any other person who is affected by illicit drugs and/or adversely affected by alcohol.
(d)In relation to supervised time through B Contact Centre, that the Mother or the supervisor shall collect and return the children from the agreed contact location for the purpose of the contact time with the Father; or such other arrangements as may be arranged between the supervision service and the Mother.
(e)That for the purposes of the children spending time with the Father other than through B Contact Centre, the Mother is to deliver and collect the children to and from the Father or the supervisor or other agreed supervisor at a nominated park or another location as nominated by the Mother, at the commencement and conclusion of the children spending time with the Father.
(f)That the Father shall continue to consult his psychologist or psychiatrist and other health care professionals and follow all of their directions as to treatment.
(g)That the Father shall continue to attend upon his psychologist or psychiatrist on a regular basis engaging in such treatment as recommended by those health professionals for drug and alcohol issues.
12.That the Father will provide a contact number to the Mother during periods when the children spend time with the Father.
13.That the Father may contact the children via their iPad at 6pm each Monday, Wednesday and Friday evening for a period of 30 minutes.
14.That during the Father’s calls to the children:
(a)The Father shall not denigrate, chastise or be abusive towards the children or the Mother.
(b)The Father shall maintain polite and constructive communication throughout the duration of the call.
15.That the Father shall notify the Mother’s lawyers in writing as to the name and contact details of the above treating psychologist or psychiatrist. In the event that the Father shall change his treating psychologist or psychiatrist then he shall advise the Mother in writing within 7 days including as to the name and the contact details of the new treating psychologist or psychiatrist.
16.In relation to the above drug and alcohol hair follicle tests, referred to in the above Orders, the father shall make an appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or another authorised pathology service or laboratory (“pathology service”) 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 prior to the time of collection of hair;
(b)the Father is required to make an appointment with the pathology service for the purpose of providing a hair sample for hair drug and alcohol testing purposes;
(c)each party or their legal representatives is at liberty to provide the pathology service with a copy of these orders;
(d)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 the pathology service to provide the results of each test to both parties, the Father and the Mother, the Children’s lawyer (if applicable), and/or their legal representatives upon receipt of such test results;
(e)the hair drug and alcohol tests 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.
(f)the cost of the hair alcohol and drug tests are to be met by the Respondent Father.
17.That the parties be restrained by injunction from denigrating the other parent or members of the other parent's family to the children or in the presence of the children or at all.
18.That the parties shall use their best endeavours to ensure that no other person denigrates the other parent or members of the other parent's family to the children or in the presence of the children.
19.That the parties shall and are hereby restrained by injunction from discussing these proceedings with or in the presence of the children or show to the children any document connected with these proceedings.
20.Pursuant to Section 68L of the Family Law Act 1975 (Cth) the children X born in 2013 and Y born in 2015 shall be independently represented and the Court requests that the Legal Aid Commission provide that representation.
21.The solicitors for the parties are to forward copies of all applications, responses, affidavits and any other relevant documents to Legal Aid NSW for the attention and use of the Independent Children’s Lawyer when appointed.
22.Leave to the parties and Independent Children’s Lawyer to issue more than five Subpoenas for production of documents.
23.Liberty to the parties and ICL to relist the proceedings on 7 days’ notice in the event of any significant problem arising relating to the implementation of the above Orders.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 1 December 2021
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