Hartley & Hartley (No 2)
[2022] FedCFamC1F 714
Federal Circuit and Family Court of Australia
(DIVISION 1)
Hartley & Hartley (No 2) [2022] FedCFamC1F 714
File number(s): SYC 6780 of 2020 Judgment of: CHRISTIE J Date of judgment: 21 September 2022 Catchwords: FAMILY LAW – INTERIM PARENTING – Where the applicant father seeks an interim hearing on an urgent basis – Where the urgency contended is no time being spent with the children – Where the respondent mother alleges the father is a risk – Where the father has a history of illicit substance abuse – Where the father alleges the mother is in breach of court orders – Whether it is in the children’s best interests to vary the current arrangement. Legislation: Family Law Act 1975 (Cth) ss 60CC, 121 Division: Division 1 First Instance Number of paragraphs: 56 Date of hearing: 20 September 2022 Place: Sydney Counsel for the Applicant: Ms Treherne Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Mr Roberts Solicitor for the Respondent: Holmes Donnelly & Co Solicitors Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Independent Children's Lawyer: Crawford Ryan Lawyers Pty Ltd ORDERS
SYC 6780 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR HARTLEY
Applicant
AND: MS HARTLEY
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
21 SEPTEMBER 2022
THE COURT ORDERS THAT:
1.Order 3 of the Orders made 1 December 2021 be discharged.
2.The children spend time with the father as follows:-
(a)From 2.00 pm to 6.00 pm Saturday 22 October 2022 in Region B;
(b)From 10.00 am to 3.00 pm Sunday 23 October 2022 in Sydney;
(c)From 2.00 pm to 6.00 pm Saturday 12 November 2022 in Region B;
(d)From 10.00 am to 3.00 pm Sunday 13 November 2022 in Sydney;
(e)From 2.00 pm to 6.00 pm Saturday 3 December 2022 in Region B;
(f)From 10.00 am to 3.00 pm Sunday 4 December 2022 in Sydney;
(g)From 10.00 am to 4.00 pm Saturday 24 December 2022 in Sydney;
(h)From 10.00 am to 4.00 pm Monday 2 January 2022 in Sydney;
(i)From 10.00 am to 4.00 pm Tuesday 3 January 2023 in Region B;
(j)From 2.00 pm to 6.00 pm Saturday 28 January 2023 and each third Saturday thereafter in Region B;
(k)From 10.00 am to 4.00 pm Sunday 29 January 2023 and each third Sunday thereafter in Sydney;
(l)From 1 March 2023, on any weekend nominated by the father in writing provided:
(i)the father is in Sydney;
(ii)the time does not exceed two weekends in any calendar month; and
(iii)the father gives notice of the weekends (day, date, time) within seven days of receipt of his work roster;
(iv)the father is not working during the time he nominates;
(v)the time to take place in Sydney or if it occurs on both days of the weekend then on Sydney on the first day and Region B on the second day; and
(vi)the time start no earlier than 10.00 am and finish no later than 6.00 pm if in Region B and 4.00 pm if in Sydney.
(m)At such other times as agreed between the parties in writing.
3.Any time that the children spend with the father in accordance with these orders is to be under the supervision of T Agency or such other supervision agency as agreed between the parties in writing.
4.For the purposes of Order 3 both parties are to:-
(a)Within seven days of the date of these orders contact T Agency and complete any intake assessment or procedure required by that service;
(b)Comply with all reasonable requests and directions of the supervisor; and
(c)The father shall be solely responsible for all costs associated with T Agency supervising the time that the children spend with him.
5.If the father complies with Order 12(b) of the Orders made 19 August 2022 by providing two consecutive negative tests each for a period of three months, the time in Order 2(j), (k), (l) and (m) will thereafter be unsupervised.
6.The mother will deliver and collect the children for all time which is to take place in Sydney. The father will collect and deliver the children for all time which is to take place in Region B.
7.Order 13 of the Orders made 19 August 2022 be varied so as to require the father to maintain his head hair at a length not less than four centimetres and neither head nor body hair is to be cut less than four centimetres, bleached or dyed.
8.In lieu of Order 6 of the orders of 6 March 2020 the father have a video call with the children each week on a Monday and on a Wednesday at 6.00 pm to be facilitated by the mother dialling the father’s number and absenting herself to allow the children to communicate with the father.
9.Orders 12(b) and 14(b) of the orders made 19 August 2021 be discharged.
10.Each party is restrained from discussing, disseminating, providing negative information about, commenting negatively on, or publishing any statements about any issues arising from the family law proceedings, or any aspect of the party’s separation with any media outlet, journalist, media identity and/or any social media platform, website, forum or publication.
11.Each parent is restrained from publishing any negative or derogatory statements in relation to the other parent or any member of the other parent’s family or household to or in the presence or within hearing of the children.
12.Each parent be restrained from publishing negative or derogatory statements about the other parent on social media (which includes but is not limited to blogs, Instagram and/or Facebook) or in any media publication, website, forum or digital platform and each parent will use their best endeavours to ensure that no other person, including but not limited to journalists, social commentators, family members and/or friends, does so.
THE COURT NOTES THAT:
A.“Negative or derogatory statements” are taken to include statements which the reasonable person would conclude create a negative impression of the other party, expressly or impliedly from the statement made, having regard to all of the relevant circumstances in which that statement was made.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hartley & Hartley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an application by Mr Hartley (“the father”) for interim parenting orders in respect of the children: X (“X”) and Y (referred to by the parties as “Y”) (“the children”). X was born in 2017 and is five years old. Y was born in 2018 and is three years old (soon to turn four).
There are consent orders in place dated 1 December 2021. Both parties seek orders to depart from those consent orders.
The children are independently represented. The independent children’s lawyer (“the ICL”) seeks orders for professionally supervised time between the children and the father.
The application is being heard at a time when the children are not seeing or spending time with the father.
The scope of the dispute is:
(a)Should the time be professionally supervised?
(b)How frequently should the children spend time with the father?
(c)Where should the time take place?
(d)Should it graduate to include overnight time?
(e)What time (if any) should occur on holidays and special occasions?
(f)How often should video calls take place?
(g)Are more robust injunctions warranted?
Background
The background facts are set out in a judgment of the Deputy Chief Justice dated 19 August 2021 and are included in the bundle of documents relied upon by the ICL. I do not therefore seek to repeat that background here.
It is however relevant to consider what has occurred since the orders dated 19 August 2021 and the consent orders dated 1 December 2021 were made.
The orders of 19 August 2021 required the father to undertake drug testing as a condition of time occurring as provided for in those orders. Orders were made for periodic hair follicle testing and for random urinalysis.
In early 2022 the father undertook a urinalysis and tested negative for illicit substances.
In early 2022 the father commenced residing in City U for his employment. From early 2022 to the date on which the parties filed their affidavit evidence, the father has sent messages to Ms Hartley (“the mother”) seeking time. The mother declined to facilitate time between the children and the father where she has adopted the position that time (including supervised time) should not occur until the father produced further negative drug tests and/or explained his conduct.
The father accepts that he did not undertake drug tests after early 2022 and if he had done so he concedes that they would have yielded positive results.
The mother has undertaken hair follicle testing in early 2022 and mid-2022, the results of which indicated that the mother has not tested positive to illicit drugs.
The father undertook a hair follicle test in mid-2022, the test concerned a sample approximately 1.9 centimetres in length, which results were provided to the ICL and the mother on 19 August 2022.
While the mother’s application initially sought discharge of an existing order for equal shared parental responsibility that application was not pressed at hearing.
The mother sought orders about how the parties should communicate. No submissions were made by any party on this topic. I have, in those circumstances not made any order. The mother’s proposal is, on its face, reasonable and the parents are encouraged to reach agreement about this issue.
The Law
All applications for parenting orders, whether interim or final, fall to be determined having regard to the paramount consideration of the children’s best interests.
In order to reach a conclusion as to what order or orders will be in the best interests of the subject children, it is necessary to consider the matters set out in s 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”).
The exercise involves weighing the primary considerations. That is, the need to make orders which protect the children against risk of harm takes precedence over those designed to recognise the importance of the relationship between children and their parents.
An interim hearing is a curtailed exercise and the evidence of the parties is, as a general rule, untested.
The effect of an abridged hearing means that it will not always be possible to make findings of fact in respect of all relevant contested issues.
Where the contested issues involve questions of risk, it is necessary to approach the making of orders cautiously, with a view to the alleged risk issues and the manner in which such risks can be addressed (if at all).
Consideration
The uncontested facts in the matter would appear to be:
(a)The children should live with the mother; and
(b)The children should see and spend time with the father;
(c)The children have not spent time with the father since 15 December 2021;
(d)The father did not undertake drug tests as required by the interim orders.
At present there is a very real risk to the children that they will lose the benefit of a meaningful relationship with their father: s 60CC(2)(a) of the Act. The importance of a meaningful relationship with both parents is plain from the inclusion of this consideration as one of the two primary parenting considerations in the Act.
The mother’s application tacitly acknowledges that the children’s best interests will be promoted by them having the opportunity to continue and develop a meaningful relationship with their father.
It is anticipated that gaps in face to face time, given the ages of the children, will have an impact on the nature of the children’s relationship with the absent parent.
Dr L observed in his single expert report produced 27 May 2021 at [238]:
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.
It is plain from the T Agency reports that the children have enjoyed and, it is anticipated, they will enjoy time with the father.
It has to be acknowledged that since the single expert report was released, the father’s motivation to maintain an active role in the children’s care has been impacted upon by his inability to comply with orders which provided for drug testing.
As against the primary consideration, it is necessary to have regard to what, if any, risk issue present as a consequence of the evidence. It is fair to say that, notwithstanding serious issues in particular in respect of allegations of family violence and in respect of illicit drug use, Dr L formed the view that, in his opinion, the children were not identified to be at risk of physical, psychological and/or emotional harm in the care of either parent.
The risk to the children appears to arise significantly out of:
(a)conflict between their parents;
(b)the fact that this conflict is playing out in the public sphere;
(c)the fact that the inability to reach agreement has meant that the children were spending no time with their father;
(d)the question of whether or not unsupervised time would pose a risk due to either:
(i)continued drug use of the father; and/or
(ii)the father engaging in conduct which the mother describes as violent or coercive.
Because the father has been unwilling or unable to engage with the drug testing regime, a cautious approach at interim hearing requires that the orders which are made recognise potential risks which have not been the subject of findings in a final hearing where each of the parties may be subject to cross-examination.
The evidence of Ms V (“Ms V”), the father’s counsellor, is useful insofar as it tells the Court that the father engaged intensely with the counsellor earlier this year. It does not deal explicitly with her knowledge of the father’s substance use in 2022.
The father has not been engaging with Dr O but says he intends to do so in the future.
The father passed the hair follicle test in mid-2022 (which is unlikely, given the length of his hair, to be indicative of drug use in a period of any greater than about two months). The father has agreed to provide a further hair follicle test after return from the U.K. in late 2022.
It is important to understand that the report of Dr L took place in a context where it was an agreed fact that the father had been using illicit substances.
The father’s counsel placed emphasis on the fact that the father has passed the random urinalysis tests (as contained in exhibit 2). She submitted that he should be given a second chance. This approach skews the focus from the children to the father. The regime for drug testing was serving several functions:
(a)Protection of the children from exposure to events such as had occurred in early 2021 (when a random police drug test produced a positive result);
(b)Reassurance to the mother that the father was complying with court orders designed to protect their children; and
(c)Independent information for the Court about the existence of risk.
It was suggested that the father should not be punished for having “stumbled”. I agree. The focus is on the effect of the father’s conduct on the children. His failure to abide by the regime for testing, coupled with the mother’s unwillingness to facilitate supervised time or frequent regular video calls has resulted in a large gap where the children have not seen their father.
Moving forward, the function of the testing, while the proceedings remain interlocutory, is to manage risk with a view to balancing the two primary considerations.
Time should be reinstated and take place as regularly and frequently as is consistent with the father’s work commitments. In an ideal world the father’s proposal that the children attend his place of work would be highly appropriate. It would give the children access to family, friends and allow them to see the fruits of the father’s efforts. However, at this time the priority has to be on the children actually spending time with the father (as opposed to seeing him at work) and accordingly, I have made orders with a view to the children’s need for time and some measure of consistency and the realities of the father’s work roster.
The mother’s counsel submitted that the children should be able to participate in events and social activities in their local area. The orders I have made will ensure that the children are able to do so initially on a schedule of two out of three weekends and then on at least two weekends each month. This strikes a balance between two things which are important to the children.
The father’s counsel made submissions about special occasions. Such occasions are significant for children. However, given the need for supervision and the interim nature of these orders I am satisfied that the children will enjoy the opportunity to spend Christmas Eve with the father and Christmas Day with the mother. The parties have a final hearing scheduled before the end of next year (and indeed before the next Father’s Day). In the meantime I anticipate they will enjoy celebrating birthdays in reasonable proximity to the date on which they fall.
Supervision
The father seeks that his time be unsupervised.
The mother and the ICL seek orders which provide for professional supervision.
I will make an order for professional supervision. In determining that this is the most appropriate course I have had regard to:
(a)The father’s failure to engage in a regime of testing designed both to ameliorate risk and to reassure the mother;
(b)The scant evidence about the circumstances of the father’s drug use in 2022; and
(c)The scant evidence of the father’s engagement with services designed to assist him to address the risk of relapse. In that regard it is within his power alone to commit to re-engaging and in fact re-engage with Dr O.
It is necessary to take into account the practical realities for the children. The father is about to return to Sydney to live on a permanent basis and the mother and children live in Region B. It is necessary to strike a balance between practical issues, such as where time should take place and how much it will cost, and the need for children to see each of their parents in an environment which is comfortable and as natural as possible given the circumstances.
It has to be acknowledged that supervision of time imposes a cost impost and accordingly, it may be necessary that the time take place in a location which would not necessarily require the father to also pay for accommodation, since he will be required to meet the costs of supervision. For this reason the longer periods will take place in Sydney. That also has the advantage of permitting time between the children and the paternal family. While the orders for time are orders for time between the children and the father I see no difficulty, on the evidence, with a limited number of family members accompanying the father from time to time.
I have provided a mechanism for the time to become unsupervised. If the father had complied with the existing orders it would be unsupervised now. If the father does not comply with the orders for testing, or the tests return positive, time will continue supervised.
I indicated to the parties the advantage to the Court of there being an opportunity to move to unsupervised time ahead of any final hearing (provided risk issues were addressed). That remains the case.
Drug testing
The ICL seeks to discharge the orders for urinalysis. I will do so.
The mother agrees that she will continue to participate in the hair follicle testing under the existing regime. It is appropriate the father continue to do so also. Those orders remain.
Changeover
One of the practical issues which arises is the question of changeover when the parties do not live in close proximity. The distance is the same for the children – whoever is driving. It is appropriate that for the purpose of the time in Sydney the travel is undertaken by the mother. The father will do all of the driving for the time in Region B and the mother will do all of the driving for the time in Sydney. This arrangement means that the father will not be required to pay the costs of travel for the supervisor on the Sydney weekends.
Electronic communication
The children were said by their mother to enjoy FaceTime according to the evidence of Dr L. Notwithstanding this evidence, the father contends that he was unable to exercise his time under the order on 66 separate occasions. This figure may be in dispute but it is plain that time which was provided for in the Court orders did not occur. The mother unilaterally ceased facilitating FaceTime. She says she found it difficult to facilitate from time to time and invasive given the poor relationship between the parents. I am of the view that the children should have video calls with the father twice a week. I have formed that view because:
(a)They can only see him sporadically having regard to distance and work commitments;
(b)They are young and need to develop a close relationship with him to support the face to face time;
(c)There are no risk issues in this case which arise in the context of video time; and
(d)The mother can absent herself during the children’s electronic communication to address her concerns about her privacy. The father should not engage with the mother during these calls.
Injunction – speaking with the media
The mother resists the making of orders which would prevent her speaking to the media. She says she ought to be free to speak about the parties’ separation if she is asked. I disagree. McClelland DCJ made orders, the effect of which was to reinforce by way of injunction the protection usually provided by s 121 of the Act. After those orders were made there have been numerous media references to the parties – these are set out in the father’s material. One of them is said to be a quote from a 2022 episode of the mother’s podcast in which she said “I want my kids to hear their mum’s voice and she fought for our family”.
If this were an issue as between two adults and not a parenting application involving two small children the considerations may be different. The primary focus is on making orders in the best interests of these two children. That focus dictates adults, from time to time, having appropriate limits placed on their conduct.
Dr L said of the adults’ engagement with the media in this case: “The children’s needs have not been prioritised in this context”. I agree.
It was submitted on behalf of the mother that there is no particular distinction between the existing orders and the ones I am being asked to make by the father. There may not be but if there is no difference, there can be no prejudice. If they are more robust then I am convinced that further protections are of benefit to the children and I have not been told of a corresponding burden to the adults such that I would not exercise my discretion to make the orders as sought by the father.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 21 September 2022
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