Hartley & Hartley
[2021] FamCA 610
•19 August 2021
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 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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hartley & Hartley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION
This matter concerns an Application in a Case filed on 12 July 2021 for interim parenting orders in respect to the children, Child X (“Child X”) born 2017 and now aged 4 years, and Child Y (“Child Y”) born 2018 and aged two, at the time of hearing.
The Application is brought by the father, Mr Hartley (“the father”) in circumstances where he did not spend time with the children between February 2021 and July 2021. The children’s mother is Ms Hartley (“the mother”) which whom the children live.
Broadly, amongst other orders, the father seeks that the children spend time with him on three out of every four weekends each month, and commence spending overnight time with him for two nights on each of those occasions. The mother seeks that the children spend each alternate weekend with the father for one overnight only, and with additional time each Monday afternoon. The Independent Children’s Lawyer (“ICL”) contends that the children’s time with the father should occur on three out of every four weekends for one overnight each stay.
As proposed by the ICL, both parties agree, on a no admissions basis, to a rigorous drug testing regime consisting of hair follicle testing and urinalysis which would commence before the father commences spending time with the children overnight.
Due to the parties’ prior involvement with media organisations, as will be discussed below, the ICL seeks an order be made over and above that set out in s 121 of the Family Law Act 1975 (“the Act”) to restrain the parties from discussing their separation and family law proceedings with any media outlet. That proposed order is supported by the father and opposed by the mother.
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.
Both hold media profiles and there has been significant publication of each parties’ allegations in the media.
APPROACH OF THE COURT IN INTERIM PARENTING PROCEEDINGS
This Court has, on a number of occasions, acknowledged the difficulties of determining cases concerning a child in interim proceedings which are necessarily an abridged process where evidence cannot be tested.
In Goode and Goode (2006) FLC 93-286 (“Goode”) the Full Court set out a prescriptive approach that should be taken in considering an application for parenting orders on an interim basis. For reasons which I set out, in these interim proceedings I will not be making an order for equal shared parental responsibility and, in applying that guidance as set out by the full Court 80,903 [81]–[82], I will approach consideration of the parties respective contentions by;
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place).
The relevance of facts is to be determined by focussing upon the issues joined in the proceedings (Banks & Banks (2015) FLC 93-637 at 80,116, [48]–[50]).
IDENTIFYING THE COMPETING PROPOSALS OF THE PARTIES
The parties’ respective applications in the matter are set out immediately below.
Orders sought by the father
At the commencement of the hearing the father sought the following orders:
Previous Orders
1.That Orders 2 to 5, and 11 to 14, of the Orders dated 10 November 2021 in relation to the children, Child X (“Child X”) born 2017 and Child Y (“Child Y”) born 2018 (“the children”) be discharged and replaced with the following Orders.
2.IT IS NOTED the period referred to in these Orders as the “Sydney lockdown period” is the period during which NSW Public Health Orders related to the Covid- 19 pandemic mean that the children would be required to self isolate for 14 days following visiting … Sydney.
Live With and Spend Time With
3. That the children live with the mother.
During Sydney Lockdown
4.That the children spend time with the father between the date of these Orders and the conclusion of the current Sydney Lockdown, in Town E each weekend from 9:00am on Saturday until 5:00pm on Sunday with changeover to occur at the property that the father is renting for the purposes of time.
5.That Order 4 be suspended to allow the children to spend time with the mother on the first full calendar weekend of each month.
6That the mother pay 50% of the accommodation costs incurred by the Father renting the Property G or in the event that Property G is unavailable, a property of equivalent value in Region B.
After Sydney Lockdown
7.That the children spend time with the father as agreed between the parties and failing agreement, as follows:
7.1 During school terms:
7.1.1From the date of these orders for four (4) occasions (minus any periods of time pursuant to clause 4), from 9:00 am on Saturday, until 5:00 pm on Sunday each weekend with the first period commencing on the first Saturday following the date of these Orders.
7.1.2Thereafter until the date that Child X commences kindergarten, from 4:00 pm on Thursday, until 5:00 pm on Sunday each weekend.
7.1.3Upon Child X commencing kindergarten each alternate weekend from the conclusion of school Friday until 5:00pm Sunday.
7.1.4That Order 7.1.1 and 7.1.2 be suspended to allow the children to spend time with the mother on the first full calendar weekend of each month.
7.1.5Upon Child X commencing kindergarten until Child Y commences primary school, upon the father giving the mother not less than 14 days written notice, the children’s time with the father pursuant to Order 4.1.2 may be extended up to a 4 night block on condition that:
7.1.5.1This occurs on no more than 3 occasions per school term;
7.1.5.2If changeover is to occur on a school day, changeover will occur at the mother’s residence or Region B Botanic Gardens as nominated by the Mother in writing.
7.1.5.3If changeover is to occur on a non-school day, changeover will occur at the father’s residence.
7.1.6Upon Child Y commencing primary school, upon the father giving the mother not less than 14 days written notice, the children’s time with the father pursuant to Order 7.1.2 may be extended up to a 5 night block on condition that:
7.1.6.1This occurs on no more than 3 occasions per school term;
7.1.6.2If changeover is to occur on a school day, changeover will occur at the mother’s residence or Region B Botanic Gardens as nominated by the Mother in writing.
7.1.6.3If changeover is to occur on a non-school day, changeover will occur at the father’s residence.
7.2 During school holidays referable to the school Child X attends:
7.2.1During the short school holiday periods, for half of those periods being the first half in odd numbered years and the second half in even numbered years; and
7.2.2During the Christmas school holiday periods on a week about basis with the children to spend the first week with the father in odd numbered years and the second week in even numbered years.
8.That unless otherwise agreed or stated in the Order, changeover for the purposes of Order 7 be at the Father’s residence at the commencement of the period and at the mother’s residence or the carpark of Region B Botanic Gardens, as nominated in writing by the mother, at the conclusion of the period.
9.That in the event that the parties live within 25kms of each other, then during school terms, the children spend time with the father as follows:
9.1Until the date that Child Y commences primary school, from the conclusion of school on Thursday until the commencement of school on Monday each alternate week; and
9.2From the date that Child Y commences primary school, from the conclusion of school on Thursday until the commencement of school on Tuesday each alternate week.
Special occasions
10. That notwithstanding any other Order:
10.1The children shall spend time with the father on the following special occasions if the children are not already in the father’s care:
10.1.1From 4:00 pm on the Friday immediately preceding Father’s Day until 5:00pm Father’s Day;
10.1.2From 3:00pm on Christmas Eve until 10am Boxing Day in 2021 and each alternate year thereafter;
10.1.3From 10:00am 23 December to 3:00pm Christmas Eve in 2022 and each alternate year thereafter;
10.1.4For a period of four (4) hours on the children’s birthdays as agreed and failing agreement as follows:
10.1.5If the child’s birthday falls on a school day from the conclusion of school until 7:00pm;
10.1.6If the child’s birthday falls on a non-school day from 3:00pm until 7:00pm;
10.1.17 At any other time agreed between the parties.
10.2The children shall spend time with the mother on the following special occasions if the children are not already in the mother’s care:
10.2.1From 4:00 pm on the Friday immediately preceding Mother’s Day until 5:00pm Mother’s Day; and in the event that the time that the children spend with the mother pursuant to this clause falls on the father’s weekend with the children, the parties will agree for the children to spend either the weekend prior or the following weekend with the father.
10.2.2From 10am 23 December to 3pm Christmas Eve in 2021 and each alternate year thereafter;
10.2.3From 3:00pm on Christmas Eve until 10am Boxing Day in 2022 and each alternate year thereafter;
10.2.4For a period of four (4) hours on the children’s birthdays as agreed and failing agreement as follows:
10.2.5If the child’s birthday falls on a school day from the conclusion of school until 7:00pm;
10.2.6If the child’s birthday falls on a non-school day from 3:00pm until 7:00pm;
10.2.7 At any other time agreed between the parties.
11.That in the event that any of the above special occasions occur while the Sydney Lockdown is continuing, then such time is to occur in Town E.
Changeover
12For each changeover applicable to the special occasions listed above, unless otherwise agreed, changeover will occur at:
12.1 The Father’s residence if the children are in the father’s care; or
12.2The mother’s residence or Region B Botanic Gardens, to be nominated in writing by the mother, if the children are in the mother’s care.
Testing
13.Without admissions that the father undertake random supervised urine analysis in accordance with standard AS/NZS4308 at intervals of not more than monthly, at an accredited testing laboratory in accordance with chain of custody procedures for the detection of all drugs and alcohol including but not limited to cocaine, opiates and amphetamines within 24 hours of notification being made by the mother's solicitors in writing and the results of such testing shall be provided to the mother's solicitors within 24 hours of issue.
14.Without admissions that the mother undertake random supervised urine analysis in accordance with standard AS/NZS4308 at intervals of not more than monthly, at an accredited testing laboratory in accordance with chain of custody procedures for the detection of all drugs and alcohol including but not limited to cocaine, opiates and amphetamines within 24 hours of notification being made by the father’s solicitors in writing and the results of such testing shall be provided to the father's solicitors within 24 hours of issue.
15.Without admissions that every 3 months, the father submit himself to hair follicle testing at Brassats Group for the purposes of obtaining a drug and alcohol test using the Drug Detection Agency's standard 18-Panel Hair Drug Test and alcohol test with the results of such testing to be provided to the mother's solicitors within 7 days of receipt, and the father be responsible for the costs associated with such testing.
16.Without admissions that every 3 months, the mother submit herself to hair follicle testing at Brassats Group for the purposes of obtaining a drug and alcohol test using the Drug Detection Agency's standard 18-Panel Hair Drug Test and alcohol test with the results of such testing to be provided to the father’s solicitors within 7 days of receipt, and the mother be responsible for the costs associated with such testing.
17.That the father and mother be restrained from the date of this Order from cutting his or her hair or taking any action to cause his or her hair which is to be tested pursuant to Order 14 and 15 above, to be of a length shorter than 2cm.
18.That for the purpose of testing as referred to in order 14 and 15, such testing shall include tests for the detection of the following drugs:
18.1 Amphetamine, methamphetamine, MDMA, ecstasy;
18.2 cannabis and its metabolites;
18.3 cocaine and its metabolites; and
18.4 opiates and opioids;
19.That within 48 hours of the date of these Orders the Mother provide the hair follicle test result for the test undertaken as a result of the Orders dated 18 June 2021.
20.In the event that the Mother does not provide the test result pursuant to Order 18 above, the mother submit herself to hair follicle testing at Brassats Group for the purposes of obtaining a drug and alcohol test using the Drug Detection Agency's standard 18-Panel Hair Drug Test and alcohol test with the results of such testing to be provided to the father’s solicitors within 7 days of receipt, and the mother be responsible for the costs associated with such testing.
Restraints
21.The parties are restrained from consuming any prescription medication not prescribed to them whilst the children are in their care or for 12 hours prior the children coming into their care and will remove the children from any place where a third party is under the influence of illicit substances/prescription medication not prescribed to them.
22.Notwithstanding the provision of s121 of Family Law Act 1975 each party be hereby injuncted and restrained from negatively discussing, disseminating, providing information about, commenting on or publishing any negative aspect of the separation and/or family law proceedings or any issues arising therefrom, with any media outlet, journalist, media identity and/or on any social media platform, website, forum or publication.
23.That each parent be restrained by injunction from making any negative, critical, belittling or derogatory comments in relation to the other parent or members of the other parent’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of the child or via written correspondence or on social media, including but not limited to blogs, Instagram and/or Facebook which may be viewed or accessed by the child and each parent will use their best endeavours to ensure that no other person does so.
Costs
24.That the respondent mother pay the applicant father’s costs of and incidental to these proceedings.
(as per the original)
Orders sought by the mother
The mother seeks order in accordance with the Minute handed up during the hearing, as follows:
Orders:
1.Order 3 of the Orders made 10 November 2020 and Orders 4 and 6 of the Orders made 31 March 2020 ("the Orders) stands discharged.
2. That the children spend time with the father as follows:
2.1At times agreed between the parties in writing;
2.2On Father's Day Sunday from 9am to 4pm;
2.3On the Father's Birthday commencing 3pm the day prior to the father's birthday until 4pm on the Father's Birthday … (noting the mother travels to Town H on …);
2.4On each of the children's birthday for a period of three hours as agreed from 10am to 1pm if a non school day and if a school day from 3pm to 6pm;
2.5On 9am 3 January 2022 to 9am 4 January 2022(being additional time upon the mother's return from Town H).
2.6Each alternate weekend commencing Saturday 14 August 2021 at 2pm to 6pm and Sunday 9am to 4pm;
2.7Commencing Saturday 23 October 2021 from 12m Saturday to 4pm Sunday AND each alternate weekend thereafter.
2.8During the school term each Monday from 3pm (or after school if the children are at school or day care) to 6:30pm;
such time to take place in Region B unless otherwise agreed in writing and subject the provision of order 4.
3.The mother shall deliver the children from the father's rental property in Region B at the commencement of the father's time and at the conclusion of such time the father returns the children to the gate of the mother's residence save that where changeover can take place at J House;
4.That upon there being no COVID 19 restrictions that impact upon the movement of residents in the Greater Sydney area that the time provided for in order 27 shall take place in Sydney on one occasion per month with the mother to deliver the children to the father's residence, and the father to return to the children to the mother's parents' property on Saturday and on the Sunday shall return the children to the mother's residence in Region B delivering the children to the gate of her property .
5.The Father be permitted to Facetime the children at 4:30pm on Thursdays, Sundays and Tuesdays (in the event the children are not seeing their father on those days).
6.That notwithstanding any other order the children live with the mother and time with the father is suspended to give effect to this order:
6.1from 18 December 2021 to 2 January 2022 to permit the mother and the children to attend an annual holiday in Town H;
6.2from 8 February to 14 February 2022 for the purpose of celebrating [a] wedding.
6.3On Mother's Day Sunday;
6.4On the mother's birthday.
7. That without admissions neither party will:
7.1Consume illicit substances;
7.2Use prescription medication other than as prescribed by their treating medical practitioners.
8. The father's time pursuant to Order 2 is conditional upon the following:
8.1That within 24 hours of a request by the mother's solicitor in writing, the father shall do all acts and things and sign all documents necessary to submit to and undertake a random supervised urine analysis in accordance with standard AS/NZS4308 at an accredited testing laboratory in accordance with chain of custody procedures for the detection of all drugs and alcohol, including but not limited to cocaine, marijuana, opiates and amphetamines and the results of such testing shall be provided to the mother's solicitors within 24 hours of issue, the request by the mother's solicitors for such testing occur not more often than a fortnightly basis.
8.2That on 1 September 2021 the father shall submit to a chain of custody hair follicle testing at a Brassets Group facility for the purposes of obtaining a drug and alcohol test using the standard 5-Panel Hair Drug Test and alcohol test with the results of such testing to be provided to the mother's solicitors within 48 hours of receipt, and the father be responsible for the costs associated with such testing.
8.3Commencing 10 weeks from the test referred to in paragraph 8.2, and every ten weeks thereafter, the father shall submit to a chain of custody hair follicle testing at a Brassets Group facility for the purposes of obtaining a drug and alcohol test using the standard 5-Panel Hair Drug Test and alcohol test with the results of such testing to be provided to the mother's solicitors within 48 hours of receipt, and the father be responsible for the costs associated with such testing.
8.4That the father is restrained by way of injunction from cutting his hair so as to prevent there being sufficient hair to perform hair follicle testing in accordance with the above (3 centimetres or more).
9. Costs.
IT is noted:
A)It is noted that it is a K Family this year 2021, and the mother will agree to the children spending Christmas Day with the father in 2022.
Orders sought by the Independent Children’s Lawyer
As set out on page 6 of the ICL’s Case Outline Document, filed on 5 August 2021, the orders sought by the ICL are as follows:
1.That Order 3 of the Orders of 10 November 2020 be discharged.
2.That the children Child X born 2017 and Child Y born 2019 spend time with the father as follows:
a. From 14 August 2021 to 15 October 2021:-
i. Saturday 2:00pm to 6:00pm and
ii. Sunday 9:00am to 4:00pm
b.And for three weekends out of every four thereafter commencing on 22 October 2021 from 9 am on Saturday through to 4pm on Sunday.
c.On Father's Day, in the event that the children are not already spending time with the children, from 9:00am to 5:00pm
d.From 3:00pm 25 December 2021 to 5:00pm 26 December 2021;
e.On the father's birthday, …, if the children are not already spending time with the father, from 9:00am to 5:00pm.
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 order 2 (b), (c), (d) and (e) 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 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.
6.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).
7.To give effect to Order 6(a) herein:
a.the father shall make an appointment for hair drug testing with Australian Workplace Drug Testing Services by telephoning …;
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;
8.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).
9.To give effect to Order 8(a) herein:
a.the mother shall make an appointment for hair drug testing with Australian Workplace Drug Testing Services by telephoning …;
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;
10.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.
11.Notwithstanding the provision of s121 of Family Law Act 1975 each party be hereby injuncted and restrained from discussing, disseminating, providing information about, commenting or publishing on any aspect of the separation and/or family law proceedings or any issues arising therefrom, with any media outlet, journalist, media identity and/or on any social media platform, website, forum or publication.
12.Each parent be restrained by injunction from making any negative, critical, belittling or derogatory comments in relation to the other parent or members of the other parent's family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of the children or via written correspondence or on social media, including but not limited to biogs, lnstagram and/or Facebook which may be viewed or accessed by the child/ren and each parent will use their best endeavours to ensure that no other person does so.
Notation A
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.
ICL’S PROPOSED ORDERS AND (11) AND (12) RESERVED FOR SUBSEQUENT DETERMINATION
In the period after the hearing of this matter, the ICL filed an Application in a Case on 17 August 2021, for the purpose of considering whether, in light of public statements made by the father, the Court should re-visit the issue of restraining the parties from engaging in public comment regarding their separation. That Application will require the Court to consider whether leave should be given to re-open the evidence and then, if such leave is granted, to consider the parties’ respective submissions in respect to the significance of that evidence.
In my view it would not be in the best interests of the children for interim parenting orders in respect to the time they spend with their parents to be delayed until that issue is determined.
Accordingly I have decided to publish this decision which addresses the issues raised in the parties’ substantive applications, as part of the Application in a Case filed on 12 July 2021, other than the matters raised in the ICL’s proposed orders (11) and (12).
IDENTIFYING THE ISSUES IN DISPUTE IN THE INTERIM HEARING
The parties, through their lawyers, are to be commended for engaging in private discussions prior to the commencement of the proceedings with a view to narrowing the issues in dispute. As a result the father substantially agreed to the orders sought by the ICL save to the following extent, and the mother agreed to the children spending overnight time with the father from October 2021 amongst other orders.
The orders proposed by the ICL which were agreed to by the father include proposed order (1), and orders (3) through to (12) as well as the ICL’s proposed notation A.
In respect to order (2) as proposed by the ICL the father’s solicitor contended that the following amendments should be made:
2.That the children Child X born 2017 and Child Y born 2019 spend time with the father as follows:
a. From 14 August 2021 to 15 October 2021:-
i. Saturday 2:00pm to 6:00pm and
ii. Sunday 9:00am to 4:00pm
b.And for three weekends out of every four thereafter commencing on 22
OctoberSeptember 2021 from 9 am on Saturday through to 4pm on Sunday.bi. On and from the date of Child Y’s birthday [in] 2021 the time that the children spend with the father on weekends is to commence after school on Friday or 5pm on non-school days.
c.On Father's Day, in the event that the children are not already spending time with the children, from
9:00am5 pm on the day prior to Father’s Day to 5:00 pm on Father’s Day.d.On Mother’s Day, in the event that the children are not already spending time with the children, from 9:00am 5 pm on the day prior to Mother’s Day to 5:00 pm on Mother’s Day.
de. From 3:00pm2524 December 2021 to53:00pm 26 December 2021;ef. On the father's birthday, …, if the children are not already spending time with the father, from 5 pm on …9:00amto 5:00pm on ...g.On the mother’s birthday … if the children are not already spending time with the mother, from 5 pm on … to 5 pm on ….
Counsel for the mother advised the Court that the only real substantive issue between the orders proposed by the ICL and those pressed by the mother after the parties’ discussion, was in respect to proposed overnights with the father on three out of every four weekends a month, which the mother contended should instead occur on each alternative weekend. In addition, the mother sought the father’s time with the children on each of the weekends, should be limited to one overnight consistent with the ICL’s proposal.
By the mother’s proposal, to compensate the father for the loss of the additional weekend (as proposed by the ICL) the mother contended that orders (2.7) and (2.8) as provided in her proposed orders above, should apply such that, instead of the father having a third weekend with the children per month, the children would spend time with the father each Monday from 3pm (or after school if the children are at school or day care) to 6:30pm.
There was also disagreement between the parties in respect to which parent the children should spend Christmas with this year.
The mother also opposed any order restraining the parties from communicating with the media over and above those restraints already set out in s 121 of the Act.
To their credit, both parties agreed without admissions to the drug testing regime in the terms proposed by the ICL in the ICL’s Case Outline Document.
In summary, the parties identified the following matters as the key issues in dispute at this interim stage of proceedings:
(e)when the father’s overnight time with the children should commence, being September 2021 as sought by the father, or October 2021 as sought by the ICL and the mother;
(f)whether the father’s time with the children should occur on each three out of every four weekends as sought by the ICL and father, or every alternate weekend on the mother’s proposal and each Monday afternoon;
(g)whether the father’s overnight time should be limited to one overnight as sought by the ICL and mother, or two overnights each visit, as proposed by the father;
(h)broadly, when the children’s time with the respective parent would commence on special days, being the day of, as sought by the ICL and mother, or the day prior, to include one overnight, as sought by the father;
(i)whether there should be a restraint on the parties discussing their separation and family law proceedings with media organisations, over and above s 121 of the Act, as agreed by the ICL and father, but opposed by the mother; and
(j)with whom the children would Christmas 2021 and the period of that time.
IDENTIFYING ANY AGREED OR UNCONTESTED RELEVANT FACTS
As best as possible, in the context of these interim proceedings it appeared that the following facts, in addition to those facts set out above under background, were agreed or uncontested facts, relevant to the issues as identified by the parties above, in the subject Application in a Case.
On 31 March 2020, the parties entered into consent parenting orders which by way of summary provided that the father would spend time with the children:
a) Each Sunday from 10:30am to 4:30pm.
b) Each Monday and Tuesday from after day care or 3:00pm until 7:30pm.
In March 2020, the mother moved with the children to Region B with the father's consent. At that stage the move was contemplated to be for a six-week period. Subsequent to the mother moving to Region B the father commenced spending time with the children in Region B.
However the parties’ agreement in respect to parenting orders subsequently broke down.
On 24 September 2020, the father filed an Initiating Application for Interim and Final Parenting Orders.
On 10 November 2020, the matter came before Senior Registrar Campbell (as his Honour then was), and orders were made which, by way of summary, provided:
·that the children would continue to live with the mother in Region B and attend holidays with mother in Town H from 7 January to 27 January 2021;
·that the children would spend time with the father:
(i)from the date of the Orders until 7 January 2021:
(A)Each Sunday and Monday from 9:00am to 5:00pm and
(B)Each Tuesday from 9:00am to 12:00pm,
…
(ii)From 27 January until the further hearing of the matter:
(A)Each Sunday from 9:00am to 5:00pm.
(B)Each Monday from 9:00am to 5:00pm.
(C)Each Tuesday from 4:00pm to 7:00pm.
(D)For the father's birthday from 9:00am to 5:00pm, such time to take place in Region B, save for the first week in each calendar month where 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.
(iii)That the father would continue to meet with his psychiatrist.
(iv)That Dr L be appointed as the single expert in the matter.
(v)That each party would undertake Hair Drug Testing (HDT) with seven days of the orders, and random supervised urinalsysis on any day the ICL may advise the parties.
On 22 February 2021, while driving to the mother’s residence to meet with the children, the father was pulled over by police and charged with several driving offences which include a positive roadside drug test for an illicit substance.
Following the incident on 22 February 2021 the father’s time with the children was suspended by the mother.
In the period from 6 March 2021 until 2 April 2021, the father attended a detox and rehabilitation service in Region M in Queensland.
On 27–28 January 2021, the parties attended initial interviews with Dr L and on 9 April 2021 the parties participated in a second round of interviews with Dr L.
On 4 June 2021, the Court released Dr L’s Family Report to the parties.
On 18 June 2021, in addition to other orders, a Registrar of this Court ordered, by consent, that the parties would commence family counselling with Ms F, undertake hair follicle testing to identify any presence of drugs, and the parties would be restrained from negative communication about the other party in the presence of the children.
On 12 July 2021, the father filed an Application in a Case seeking orders that the children’s time with him be restored. On 5 August 2021, the mother filed an Amended Response to the father’s Application in a Case.
On 6 August 2021, the father’s Application for Interim Parenting Orders filed on 12 July 2021, that is the subject of this decision, came before me.
CONSIDERING THE MATTERS IN S 60CC THAT ARE RELEVANT
Section 60CC of the Act sets out relevant matters that the Court is to consider in determining what orders are in the best interests of the children. The section relevantly provides:
How a court determines what is in a child's best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b)the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) 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;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a 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;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(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;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)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
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(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:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.
Section 60CC to be considered in the context of the Objects of Part VII
Part VII of the Act sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B sets out the objects and principles of Part VII. Section 60B(1) provides the objectives of this Part of the Act are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Significantly in Masson v Parsons (2019) 368 ALR 583 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ gave emphasis to the fact that;
Subdivision B of Div 1 of Pt VII [of the Act], which is headed "[o]bject, principles and outline", provides, inter alia, in s 60B(1) that the objects of Pt VII include "ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child"
[Emphasis in original]
More generally, the Act makes clear under s 43(1)(c), that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (emphasis added).
Those rights include:
·The right “to know and be cared for by both their parents”(s 60B(2)(a) of the Act);
·The right “to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)” (s 60B(2)(b) of the Act); and
·The right to “maintain personal relations and direct contact with both parents on a regular basis” (s 60CC(3)(e) of the Act).
THE PARTIES’ RESPECTIVE CONTENTIONS
Submissions of the ICL
In circumstances where the parties substantially agreed with the orders proposed by the ICL it was further agreed that it was appropriate for counsel for the ICL to be the first to address the Court on the Application.
In the ICL’s Case Outline Document filed on 5 August 2021, the ICL contends as follows:
The father spent no time with the children from February 2021 through to July 2021 following his arrest for driving [and drug related offences].
The parties make competing allegations against one another in relation to drug usage; misuse of prescription medication; mental health issues and in the case of the mother against the father violence.
The children's time with the father has been significantly disrupted in the last 12 months due to their relocation from the Sydney Metropolitan Area; the father's positive drug screening; the father undergoing in-patient therapy; allegations of violence and lack of agreement between the parents as to a spend time regime.
The court has the benefit of a Single Expert report by Dr L released on 4 June 2021.
Dr L opines that "The children will benefit from having a meaningful relationship with each of their parents. They were identified to have a loving and engaged connection with both parents, who were highly motivated to maintain an active role in their care".
Significantly and despite the competing allegations between the parents Dr L opined that the " .. children were not identified to be at risk of physical, psychological and/or emotional harm in the care of either parent".
It is the position of the Independent Children's Lawyer that time between the father and the children must occur on an ongoing basis. While Dr L opines that each parent should spend substantial and significant time with the children it is submitted that this would be premature at this time.
The children's time with the father has been significantly disrupted since separation. Moving forward there are probable further disruptions due to the Covid- 19 pandemic and possible interruptions due to work commitments for each of the parents.
The father has in February 2021 been subjected to criminal charges arising from a failed roadside drug test. This led to a break in the father's time with the children from February to mid July 2021. The father, to his credit, entered a drug rehabilitation centre for one month. What is less clear is the ongoing management by the father of his use of recreational drugs. Given the children's young ages the father's use of recreational drugs continues to be a ongoing risk.
The mother has a history of misuse of prescription medication. This has been highlighted in Dr L's report at [252] and is supported by material contained the ICL tender bundle. It is submitted that if the mother is found to have a continuing misuse of prescription medication this would be a significant concern as to her capacity to care for the children.
Both parents have identified misuse by the other parent of recreational and prescription drugs. The Independent Children's Lawyer is seeking orders for regular drug testing both by way of urinalysis and hair follicle testing for each of the parents. It is submitted that while each parent denies that they have an ongoing dependence/difficulty with drug use, both parents have significant vulnerabilities in this area.
Notably the parents both hold media profiles and there has been significant publication of each parties allegations through the media. The Independent Children's Lawyer supports orders which limits the parties beyond the usual limits in s121 from engaging with media sources about the breakdown of the marriage or the competing allegations in this matter.
The Independent Children's Lawyer proposes that the father's time with the children progress to overnight time when firstly he has completed hair follicle testing and secondly he spends some consistent time with the children.
The Independent Children's Lawyer acknowledges that both parties raise significant allegations against one another, however, given the limitations of an interim hearing an approach which is conservative, yet child focussed is submitted to be appropriate in this matter.
(as per the original) (citations omitted)
In her oral submission, by way of summary, counsel for the ICL submitted as follows.
It should be of concern to the Court, that as contended by the ICL, the children's relationship with their father has been irregular and fragmented.
It was noted that that has occurred against a backdrop where the mother contends that the father has engaged in emotionally dysregulated behaviour as result of drug and alcohol addiction and absence from the family as a result of extramarital relationships and engaging in private activities.
It was noted that, comparatively, the father also contends that the mother has engaged in emotionally dysregulated behaviour primarily as result of what he contends is her addiction to prescription medication.
In expressing concern that the children’s time with the father has been fragmented, the ICL contended that neither parent could be held wholly responsible for the disruption in the children’s time with the father and, irrespective of that, it is important for the children’s time with the father to be on a regular basis and without further breaks to that time in future.
In that context the ICL expressed concern that, in a parent interview which occurred in March of this year, the mother advised a teacher that Child X had not seen her father for some time and that Child X had become “distant from the father.”
The ICL noted that the mother’s report to that effect was inconsistent with the observations made by Dr L, who, in his report notes that despite the fragmentation in time that the children have spent with the father, the children were happy to see their father on the occasions that they did see him.
The ICL expressed disappointment that the mother was not prepared to agree to order 11 as proposed by the ICL in the ICL’s Case Outline Document, which would restrain both parties from discussing any issue in connection with the parties’ separation and family law proceedings in the media.
The ICL noted that the proposed order in that respect was motivated by paragraphs 227–228 of the report of Dr L. In those paragraphs Dr L referred to the mother providing a 50 page statement which the mother had made to police regarding the father’s conduct, to the media. Counsel for the ICL submitted that it was a concern that the mother expressed knowledge of s 121 of the Act but didn’t agree to the proposed order (11) submitted by the ICL.
In submissions before me, the ICL expressed concern about further media publicity of the parents’ relationship and the allegations they respectively make against each other. The ICL contended that, in circumstances where both parents have public profiles, the children are potentially prejudiced by others becoming aware of their parents’ private lives. This would include, for example, the children’s friends, the parents of their friends, their teachers, and other persons with whom they associate.
Counsel for the ICL further expressed concerns about the potential for the father to have inappropriately disclosed information concerning the parties’ private affairs including their marital dispute and matters arising from their marital dispute to the media.
The ICL contended, that irrespective of what has occurred in the past, orders as sought by the ICL in terms of her proposed order (11) should be made to prevent such disclosure from occurring in the future. Proposed order (11), it was therefore submitted, was in the best interests of the children and would confirm the need for both parents to focus their priority on the children.
The ICL noted that a potential risk to the children in this matter is each parent’s history of substance abuse and, in that context, commended each party for agreeing to what was described as a thorough and assertive regime of drug testing. In the context of risk, the ICL contended that the children spending overnight time with the father should not commence until October 2021 in circumstances where the father will undergo a drug test prior to that time. This submission was supported by the mother.
The ICL noted that the parties’ engagement in family therapy with Ms F is encouraging and the therapy they are receiving from her presents the best prospects for the parties moving forward to develop appropriate child-focussed practices.
The ICL submitted that the ICL’s proposed order (2)(a), relating to the day-time periods the children would spend with the father between 14 August and 15 October 2021, prior to overnight time commencing on 15 October, was appropriate, as it would enable the father to re-establish spending time with the children on a regular basis, and also the father undergoing a hair follicle test, prior to commencement of overnight time.
The ICL contended that from the 22 October 2021 the father’s time with the children should extend to overnight time 3 weekends per month commencing at 9 am on Saturday, and extending to 4 pm on Sunday. In that context, the ICL submitted that the Court should have regard to the report of Dr L which calls for the time the children spend with the father to be meaningful and that it should be on a regular and consistent basis.
It was proposed by the ICL that the children spend three out of four weekends with the father as result of the distance that the father would be required to travel, from Sydney to Region B, which makes the father spending time with the children mid-week impracticable.
At paragraph 54 of his report Dr L notes the mother’s emotional presentation observing “She repeatedly apologised for her emotional response. She spoke about the stress of the current Court process.”
Stress and anxiety arising from family law proceedings is entirely understandable. That is a principle reason why the Court, consistent with the philosophy of s 12A of the Act, encourages parties and their legal representatives to focus upon attempting to resolve matters in dispute through Family Dispute Resolution. It is significant however, that Dr L did not record the mother stating that her emotionality was due to abuse at the hands of the husband although Dr L does record the mother as stating that “regular contact” with the father had “provoked anxiety” (paragraph 64, Single Expert Report).
Further there is no evidence that the mother’s anxiety had adversely impacted her day to day functioning. At paragraph 147 of his report Dr L recorded:
[Ms Hartley] stated that she was surprised by how emotional she had found the assessment. Her account had triggered her experience during the marriage, where she had felt constantly under scrutiny. This was a residual feeling from her relationship with [Mr Hartley]. She had worked through such experiences with mental health professionals. She denied that her current day-to-day life was affected as she was generally not triggered or teary.
Further Dr L referenced at paragraph 51, the mother undergoing psychiatric management as follows:
She had ongoing psychiatric management with Dr S. He had managed her medication and supported her through her trauma. He had assisted her to navigate dealing with her ex-husband.
At paragraph 211 of his report Dr L recorded “despite her evident distress, Ms Hartley stated that her mental state had been generally good”.
While those references are brief there is no suggestion that the mother in conjunction with professional assistance from Dr S was unable to manage her mental health challenges. Indeed the evidence is to the contrary with Dr L recording at paragraph 211, that the mother:
There had been recent events involving the ex-husband, which had been made public, which had required additional family support. She spoke enthusiastically about Dr S's ongoing support given her challenging circumstances. She had established a great little routine with Child X. She spoke of the peaceful life that she had established with her two beautiful children.
At paragraphs 296 to 298 of the Single Expert Report, Dr L expanded upon the mother’s mental health in respect to her use of prescription pain medication. While Dr L opined the mother had “evident longstanding excessive use of opiates”, Dr L concluded that there was no evidence that the mother’s parenting capacity had been impaired by such use.
In summary, there is no evidence that the mother’s parenting capacity has been adversely impacted by mental health issues. Further, while clearly an ongoing challenge for the mother, there is no evidence that the mother’s parenting capacity has been impacted by pain management issues.
I acknowledge that the opinion expressed by Professor P that the mother’s anxiety is related to the father’s conduct will be a significant issue to be determined at final hearing but even if it is accepted to be accurate, for the purpose of these interim proceedings, there is an absence of evidence that any such anxiety and/or the mother’s ability to cope with pain resulting from a back injury, has impacted or will impact upon the mother’s parenting capacity.
If evidence to that effect is subsequently presented by the mother, as noted in Keane at [84], the Court would be required to give consideration as to whether “steps can be taken to ameliorate or mitigate against that risk [being the impact of the mothers anxiety] such that the child can maintain a meaningful relationship with the other parent.”
The submissions by the ICL have, appropriately, in my view taken into consideration the mother’s valid concerns that, having regard to the father’s past conduct and indiscretions, he may struggle with the children spending time with him for a lengthy period of time. In that context the ICL has proposed that the children not spend overnight time with the father until October and, further, that the time that the children spend with the father be limited to one night and not two as proposed by the father. It will also provide some reassurance to the mother in circumstances where the father will undergo a hair follicle test before the commencement of overnight time, with a view to confirming that he has continued to abstain from the use of illicit substances. For reasons which I have explained I agree with the submissions of the ICL and the orders she has proposed.
DETERMINATION REGARDING EQUAL SHARED PARENTAL RESPONSIBILITY
In the context of these interim proceedings, I am not in a position to properly consider and make a determination as to whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies in the circumstances of this case. This is because there is a significant controversy between the parties as to whether the father has engaged in conduct which constitutes family violence.
In that respect section 61DA of the Act relevantly provides:
(1)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.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)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.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Family violence is defined in s 4AB(1) of the Act as follows:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
In these interim proceedings, it is not possible to make findings of fact in respect to the contentions of the parties, including most significantly whether the father engaged in conduct constituting family violence against the mother, that would displace the presumption that an order for equal shared parental responsibility should be made.
As an order for equal shared parental responsibility will not be made, the pathway set out in s 65DAA of the Act does not apply to the task before the Court. That is, the Court is not required to apply a presumption that, in those circumstances, the child should spend equal or substantial and significant time with each of the parties. The Court’s task will be on making parenting orders that it considers to be in the best interests of the child.
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.
I certify that the preceding two hundred and twenty-five (225) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland Associate:
Dated: 19 August 2021
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