Holt and Martin

[2016] FamCA 640

FAMILY COURT OF AUSTRALIA

HOLT & MARTIN [2016] FamCA 640

FAMILY LAW – Contravention of parenting order — application dismissed — variation of primary order

APPLICANT: Mr Holt

RESPONDENT: Ms Martin

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 548 of 2015

DATE DELIVERED: 8 July 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 8 July 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Holt in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Arnold

SOLICITOR FOR THE RESPONDENT: CRJ Law

Orders

IT IS ORDERED THAT

1.The Father’s Contravention Application filed on 10 June 2016 be and is hereby dismissed.

BY CONSENT IT IS ORDERED:

2.That the final parenting orders made in these proceedings on 12 May 2016 be varied as follows:-

a)      That sub-paragraph 3(a)(i) be discharged and the following substituted:

“Every second weekend from 3.30 pm on the Friday until 7.30 pm the following Sunday or 7.30 pm the following Monday, if Monday is a public holiday or pupil free day, with the mother, or her nominee, being responsible for delivering the children to the father’s residence at the commencement of time and the father, or his nominee, being responsible for delivering the children to the mother’s residence at the conclusion of time and commencing on Friday 15 July 2016”;

b)      That sub-paragraph 3(a)(ii) be discharged and the following substituted:

“For dinner every second Friday from after school (or 3.00 pm) until 7.00 pm with the father or his nominee being responsible for collecting the children from school at 3.00 pm and the mother or her nominee collecting the children from the father’s residence at the conclusion of this time and commencing on Friday 22 July 2016”;

c)      That paragraph 11 be discharged and the following substituted:

“That the mother and the father undertake a supervised drug urine screen within 48 hours of a request from the other party and for this purpose:

a.Any request be made in writing;

i.If by the mother then to the father’s email address: … (or such other email address as he may advise the mother in writing) AND CONTEMPORANEOUSLY by such text message to the father’s mobile phone; … (or such other mobile phone number as he may advise the mother in writing;

ii.If by the father then to the mother’s email address: … (or such other email address as she may advise the father in writing) AND CONTEMPORANEOUSLY by such text message to the mother’s mobile phone; … (or such other mobile phone number as she may advise the father in writing;

b.Such tests shall not be more frequent than one every 28 days; and

c.The party undertaking the test authorise and direct the testing laboratory t forthwith provide the results of the test directly to the requesting party at their email address in Order 11(a) herein.”

IT IS FURTHER ORDERED:

3.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS DIRECTED:

4.That my reasons for decision this day be transcribed and when settled a copy be placed on the Court file and provided to the parties.

5.The minute of orders be marked Exhibit “A” and remain on the Court file

AND IT IS NOTED for case management purposes that the Initiating Application of the Mother for a final alteration of property interests filed on 20 May 2016 is listed for a Conciliation Conference with a Registrar on 9 August 2016 at 11.00 am.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Holt & Martin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  DGC 548 of 2015

Mr Holt

Applicant

And

Ms Martin

Respondent

REASONS FOR JUDGMENT

Ex Tempore

1. This matter comes before me on the return date of the father’s contravention application filed on 15 June 2016 in which he alleges that on 30 May 2016, the respondent mother refused a random supervised drug screen and that on 31 May 2016, she failed to respond to an email message within 24 hours.

2. The applicant father appears on his own behalf today. He has sought advice from the duty lawyer, but not been able to locate a duty lawyer from whom to get advice. He has indicated that he is prepared to proceed with the matter nonetheless.

3. Mr Arnold, of counsel, appears on behalf of the mother, who is before the Court.

4. Mr Arnold indicated that the mother would deny the alleged contraventions. However, we did not get to the point of evidence because it was apparent from the primary order, which is that made by Judge Harland on 12 May 2016 in the Federal Circuit Court, that there was a fundamental difficulty with the enforcement of the order.

5. The order in question appears at paragraph 11 and, relevantly, it says that:

   Without admission by either party as to the necessity for same, each of the mother and father be at liberty to request random supervised drug screens from the other on one occasion during each period when the children are in their respective care pursuant to these orders, such requests to be no more frequent than once each 28 days and the screens be performed within 48 hours of the request and each party provide copies of the pathology reports as to the results of the screens to the other party forthwith upon receipt of same.

6. The difficulty of which I am satisfied is that, as currently drawn, paragraph 11 does not impose an obligation on a person who receives the request to actually undergo a drug screen. It is a flaw in drafting. It is unfortunate as it has led to this early contravention application just one month after the orders were made.

7. The father has otherwise indicated that he does not propose to proceed with the second alleged contravention, which is that the mother did not respond to an email or text message within 24 hours. This is, according to the father, because the response for which he was looking was, in fact, the provision of the supervised drug screen pathology report.

8. The parties have sensibly entered into minutes in order to tweak the final orders in these proceedings so that the orders are clearer, and ensure that paragraph 11 now imposes obligations on a person who receives a request for a supervised drug screen to actually undergo the supervised drug urine screen. Whilst there is no parenting orders application before the Court, I may vary the Order made on 12 May 2016 pursuant to s 70 NBA(1)(b)(i) of the Act and I do so.

9. I will dismiss the father’s application for contravention filed on 15 June 2016.

10. I note that no application for costs has been made by the respondent mother consequent to the dismissal of the contravention application which seems to me to be a reasonable position to have taken in the circumstances of the case.

11. I make the orders set out at the commencement of these reasons.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 8 July 2016.

Legal Associate:

Date: 8 August 2016