Hartley & Hartley

Case [2021] FamCA 610

FAMILY COURT OF AUSTRALIA

Hartley & Hartley [2021] FamCA 610

File number(s): SYC 6780 of 2020
Judgment of: MCCLELLAND DCJ
Date of judgment: 19 August 2021
Catchwords: FAMILY LAW – CHILDREN – INTERIM PARENTING APPLICATION – Where the father had not spent time with the children for period of approximately five months prior to the application – Where the father’s time has been irregular and intermittent since the parties’ separation – Where the children live with the mother – Where the mother contends use of drugs and family violence by the father poses risk of harm to the children – Where the father contends misuse of prescription medication by the mother, poses risk of harm to the children – Where the parties have significant media profiles and have engaged with the media about the other party and themselves – Where the parties agree to drug testing without admissions – Where both parties seek the children spend Christmas with them – Orders made for children to spend three out of every four weekends with the father near the mother’s residence – Children to live with the mother – Where the parties agree to comply with a drug testing regime
Legislation: Family Act 1975 (Cth) Pt VII, ss 4AB(1), 12A, 43, 60B, 60CA, 60CC, 61DA, 65DAA, 121.
Cases cited:

Banks & Banks (2015) FLC 93-637

Bieganski & Bieganski (1993) 16 Fam LR 353

Goode and Goode (2006) FLC 93-286

Keane & Keane [2021] FamCAFC 1

Marvel & Marvel (2010) 240 FLR 367

Masson v Parsons (2019) 368 ALR 583

Mazorski & Albright (2007) 37 Fam LR 518,

Sigley & Evor (2011) 44 Fam LR 439

SS & AH [2010] FamCAFC 13
Number of paragraphs: 225
Date of last submission/s: 6 August 2021
Date of hearing: 6 August 2021
Place: Sydney
Solicitor for the Applicant: Holmes Donnelly & Co Lawyers
Solicitor for the Respondent: Barkus Doolan
Counsel for the Respondent: Ms Lawson
Solicitor for the Independent Children's Lawyer: Crawford Ryan Lawyers Pty Ltd
Counsel for the Independent Children's Lawyer: Ms Lioumis

ORDERS

SYC 6780 of 2020
BETWEEN:

MR HARTLEY

Applicant
AND:

MS HARTLEY

Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

19 AUGUST 2021

THE COURT ORDERS THAT:

1.That Order (3.1) of the orders of 10 November 2020, as provided below, be discharged:

3.1 From 27 January 2021 to the further hearing of this matter:

3.1.1 each Sunday from 9.00 am to 5.00 pm;

3.1.2 each Monday from 9.00 am to 5.00 pm;

3.1.3 each Tuesday from 4.00 pm to 7.00 pm; and

3.1.4 on the Father’s birthday from 9.00 am to 5.00 pm.

such time to take place in Region B, save for the first week in each calendar month when such time will take place in Sydney with the children to be delivered to the father’s residence at Suburb C and returned to the mother at her parents’ apartment in Suburb D.

3.1 On Christmas Day from 4.00 pm to 7.00 pm with changeover to take place…

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Hartley & Hartley [2021] FamCA 610
Case
[2021] FamCA 610
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CaseChat Overview and Summary

In the matter of *Hartley & Hartley*, the father (Mr Hartley) and the mother (Ms Hartley) brought an interim parenting application before the Federal Circuit and Family Court of Australia. The dispute concerned arrangements for their two young children, Child X and Child Y, who lived with the mother. The father sought increased time with the children, particularly for Christmas, while the mother contended that the father's alleged drug use and history of family violence posed a risk of harm. The father, in turn, alleged the mother's misuse of prescription medication posed a risk. Both parties also had significant media profiles and had engaged with the media regarding their personal affairs.

The court was required to determine the interim parenting arrangements for the children, specifically addressing the children's time with each parent, including special days and Christmas. A key issue was the risk of harm to the children arising from the competing allegations of drug use and family violence made by each party. The court also considered the children's best interests in light of the parents' acrimonious relationship and their public profiles.

McClelland DCJ reasoned that the children's best interests would be served by spending regular, though not extended, periods with their father, while continuing to live with the mother. The court applied the principles of the *Family Law Act 1975* (Cth), particularly section 60CC, to assess the children's best interests. Given the serious allegations of drug use by both parties, the court deemed it necessary to implement a comprehensive drug testing regime for both the father and the mother, including hair follicle testing and random supervised urinalysis, to mitigate any potential risks to the children. The court also noted that judgment was reserved on the issue of restraining the parties from engaging with the media.

The court ordered that the children would live with the mother. The father was granted specific time with the children, commencing with weekend time and transitioning to three out of every four weekends. The orders also stipulated arrangements for special days, including Christmas, Father's Day, Mother's Day, and the children's birthdays, aiming to foster a meaningful relationship with both parents. The children's time with the father was made conditional upon compliance with the drug testing regime. Changeovers were to occur at a location nominated by the mother, with the option of a nominee's assistance, in light of the unresolved allegations of family violence.

Orders

Orders of the court

SYC 6780 of 2020

BETWEEN:

MR HARTLEY

Applicant

AND:

MS HARTLEY

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

19 AUGUST 2021

THE COURT ORDERS THAT:

1. That Order (3.1) of the orders of 10 November 2020, as provided below, be discharged:

3.1 From 27 January 2021 to the further hearing of this matter:

3.1.1 each Sunday from 9.00 am to 5.00 pm;

3.1.2 each Monday from 9.00 am to 5.00 pm;

3.1.3 each Tuesday from 4.00 pm to 7.00 pm; and

3.1.4 on the Father’s birthday from 9.00 am to 5.00 pm.

such time to take place in Region B, save for the first week in each calendar month when such time will take place in Sydney with the children to be delivered to the father’s residence at Suburb C and returned to the mother at her parents’ apartment in Suburb D.

3.1 On Christmas Day from 4.00 pm to 7.00 pm with changeover to take place at the mother’s residence in Region B.

2. That the children, Child X born 2017, and Child Y born 2019, (“the children”) spend time with the father as follows:

(a) From 21 August 2021 to 17 October 2021:

(i) Saturday 2:00pm to 6:00pm and

(ii) Sunday 9:00am to 4:00pm

(b) From 23 October 2021, for three weekends out of every four thereafter, commencing from 9 am on Saturday through to 4 pm on Sunday.

3. The children's time with the father in Order (2)(a) is to occur in or within 30 kilometres of Town E in Region B.

4. In the event that stay-at-home COVID restrictions in respect of the Sydney Metropolitan Area remain in place the children's time with the father will occur in or within 30 kilometres of Town E in Region B.

5. In the event that the stay-at-home COVID-19 restrictions are not in effect in the Sydney Metropolitan Area, and in order to implement all of the orders relating to the father spending time with the children, the father shall collect the children from the mother's residence, or such other place as agreed between the parties in writing, at the commencement of time and the mother, or her nominee, shall collect the children from the father's place of residence, or such other place as agreed between the parties in writing, at the conclusion of the children's time.

Special days and Christmas

6. That the children spend time with the father from 3:00 pm on 25 December 2021 to 5:00 pm on 26 December 2021, and every alternate year with the father thereafter;

7. On Father's Day, in the event that the children are not already spending time with the father , from 9:00 am to 5:00 pm;

8. On Mother's Day, in the event that the children are not already spending time with the mother, from 9:00 am to 5:00 pm

9. On the father's birthday, if the children are not already spending time with the father, from 9:00 am to 5:00 pm.

10. On the mother's birthday, if the children are not already spending time with the mother, from 9:00 am to 5:00 pm.

11. On each of the children's birthdays, if the children are not already spending time with the parent for a period of three hours as agreed, from 10 am to 1 pm if a non-school day and if a school day from end of school/preschool to 6 pm.

Testing

12. Pending further order the children’s time with the father in accordance with Order 2(b) is conditional upon the father:-

(a) Attending for chain of custody hair follicle undertake hair drug testing ('HDT') on or before 25 September 2021 and each three months thereafter as follows:

(i) the HDT shall be conducted by Australian Workplace Drug Testing Services ('AWDTS');

(ii) the required hair samples shall be collected at an AWDTS Clinic or by a nominee of AWDTS by a qualified and certified collector;

(iii) either the head or body hair may be collected for testing;

(iv) the father is to provide the collector with photographic identification to be recorded before each hair collection;

(v) chain of custody procedures are to be applied to the hair samples collected;

(vi) the HDT is to be conducted at an approved laboratory accredited by the relevant national accreditation body for that laboratory to conduct hair drug testing to the recognised international standard

(vii) the selection of laboratory by AWDTS is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory's compliance level with the International Society of Hair Testing (So HT) guidelines, cost and time required for results to be made available, and

(viii) the HDT shall screen for alcohol use.

(b) undertake random supervised urinalysis at the request of the Independent Children' Lawyer via the father's Solicitor with such request not to be made more than once every 4 weeks as follows:

(i) the urinalysis shall be conducted by The Drug Detection Agency (TDDA);

(ii) the required samples shall be collected by TDDA by a qualified and certified collector;

(iii) is to provide the collector with photographic identification to be recorded before each urinalysis sample;

(iv) chain of custody procedures are to be applied to the urinalysis sample collected;

(v) the urinalysis shall be conducted at an approved laboratory accredited by the relevant national accreditation body in accordance with Standards AS/NZS4308; and

(vi) the urinalysis shall screen for drugs of abuse including amphetamine type substances (and metabolites), cannabis (and metabolites), cocaine (and metabolites), and opioids (and metabolites).

13. To give effect to Order (10)(a) herein:

(a) the father shall make an appointment for hair drug testing with Australian Workplace Drug Testing Services by telephoning 1300 378 483;

(b) the father must maintain his head hair at a length not less than 2 centimetres and neither head nor body hair is to be cut less than 2 centimetres, bleached or dyed;

(c) the Independent Children's Lawyer is at liberty to provide AWDTS and TDDA with a copy of these Orders;

14. The children shall reside with the mother conditional upon the mother:

(a) Attending for a chain of custody hair follicle undertake hair drug testing ('HOT') on or before 1 October 2021 and each three months thereafter as follows:

(i) the HOT shall be conducted by Australian Workplace Drug Testing Services ('AWDTS');

(ii) the required hair samples shall be collected at an AWDTS Clinic or by a nominee of AWDTS by a qualified and certified collector;

(iii) either the head or body hair may be collected for testing;

(iv) the mother is to provide the collector with photographic identification to be recorded before each hair collection;

(v) chain of custody procedures are to be applied to the hair samples collected;

(vi) the HOT is to be conducted at an approved laboratory accredited by the relevant national accreditation body for that laboratory to conduct hair drug testing to the recognised international standard

(vii) the selection of laboratory by AWDTS is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory's compliance level with the International Society of Hair Testing (SoHT) guidelines, cost and time required for results to be made available, and

(viii) the HOT shall screen for alcohol use.

(b) undertake random supervised urinalysis at the request of the Independent Children' Lawyer via the mother's Solicitor with such request not to be made more than once every 4 weeks as follows:

(i) the urinalysis shall be conducted by The Drug Detection Agency(TODA);

(ii) the required samples shall be collected by TODA by a qualified and certified collector;

(iii) is to provide the collector with photographic identification to be recorded before each urinalysis sample;

(iv) chain of custody procedures are to be applied to the urinalysis sample collected;

(v) the urinalysis shall be conducted at an approved laboratory accredited by the relevant national accreditation body in accordance with Standards AS/NZS4308; and

(vi) the urinalysis shall screen for drugs of abuse including amphetamine type substances (and metabolites), cannabis (and metabolites), cocaine (and metabolites), and opioids (and metabolites).

15. To give effect to Order (12)(a) herein:

(a) the mother shall make an appointment for hair drug testing with Australian Workplace Drug Testing Services by telephoning 1300 378 483;

(b) the mother must maintain her head hair at a length not less than 2 centimetres and neither head nor body hair is to be cut less than 2 centimetres, bleached or dyed;

(c) the Independent Children's Lawyer is at liberty to provide AWDTS and TDDA with a copy of these Orders;

16. Australian Workplace Drug Testing Services and their nominees are hereby authorised and requested to provide the results of the foregoing HDT directly to:

(a) the Independent Children's Lawyer,

(b) the mother's legal representatives, and

(c) the father.

17. Judgment is reserved with respect to the issues raised in the Independent Children’s Lawyer’s proposed Orders (11) and (12), as contained in the Independent Children’s Lawyer’s Minute of Order, pending hearing of the Application in a Case filed on 17 August 2021.

THE COURT NOTES THAT:

A. The Court notes that the parties continue to undertake reportable family therapy with Ms F in accordance with the orders made on 18 June 2021.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (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.

Background

Background to the litigation

In this matter, I have determined the children’s best interests will be served by spending regular though not extended periods with their father, and living with the mother, in the manner proposed by the ICL. Further I am satisfied that, given the allegations made by both parties in relation to use of prescription or illicit drugs, an order to ensure the parties undergo regular drug testing will be in the children’s best interests. I have reserved judgment with respect to any order to restrain the parties from engaging with the media about their private affairs in the terms sought by the ICL. BACKGROUND The father was born in the United Kingdom in 1988 and is presently 32 years of age. The mother was born in 1989 and is 32 years of age. The parties commenced cohabitation in 2015 and were married in 2015. Child X was born in 2017 and Child Y in 2018 The parties separated on a final basis in October 2019. The father is a retired athlete who has undertaken various roles since his retirement. The mother is an online marketing professional. By consent, the parties reached agreement on the distribution of the parties’ property in March 2020. The parties acknowledge they had a strained relationship for some years prior to their final separation. Shortly after the birth of Child Y in 2018, it is acknowledged the parties had an initial period of separation. The father contends this was in late 2018 to early 2019, while the mother contends that she went to her parent’s home in Region B during that period, and returned to Sydney in early January 2019, upon which the separation occurred from January 2019 to March 2019. After the initial separation, the parties lived under the one roof but slept in separate bedrooms until October 2019, when they separated on a final basis. Since final separation, the children have lived with the mother, who is their primary carer, and spent irregular and intermittent time with the father and no overnight time with him. The parties, during their relationship, resided with the children in Sydney. Some time after separation the mother relocated to her parent’s home in Region B where the mother and children have resided since. The intermittent time the father has spent with the children has been due to several factors including the mother’s relocation to Region B, media reporting of the parties’ private affairs, the father’s travel and work commitments, the father’s conduct and the mother’s response to that conduct. Shortly after the parties’ final separation on 20 October 2019, the father was served with an Apprehended Personal Violence Order. The father was also charged … in relation to alleged events which occurred the day prior. The father was subsequently found guilty of the offence in early 2021, however the conviction was successfully overturned. It is common ground that the acrimonious relationship between the parties has continued in the period since. The parties make competing allegations against one another in relation to drug usage by the father; misuse of prescription medication by the mother; mental health issues by both parties and in the case of the mother, family violence against her by the father.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, the Court is “at large” to consider what arrangements will promote the best interests of the children having regard to s 60CC and the considerations contained therein. CONCLUSION For all these reasons as set out above I make the orders above in similar terms to those proposed by the ICL save to the extent that I have made orders for the children to spend some time with each parent on special days including the children’s birthdays and Christmas and to spend time with their mother on mother’s day and their mother’s birthday if they are not already; and spend time with their father on father’s day and their father’s birthday if they are not already. The orders I have made in that later respect draws upon orders proposed by both parties and seeks to achieve the balance where the children spending time with each parent on those special days is conducive to them having a meaningful relationship with both parents while taking a cautious approach in the context of these interim proceedings where there are issues of risk that need to be determined at final hearing as well as the issue of the extent of change for the children that I have referred to in the body of this decision Finally, also in the context of taking a cautious approach, in light of the unresolved issue concerning the mother’s allegations that she has been the victim of family violence I have specified that change-over is to occur at a location selected by the mother and, if the mother so chooses can take place with the assistance of her nominee.

Ratio Decidendi

Legal Principle Established

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