Hurle & Greves
[2021] FedCFamC1F 119
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Hurle & Greves [2021] FedCFamC1F 119
File number(s): SYC 8458 of 2020 Judgment of: REES J Date of judgment: 11 October 2021 Catchwords: FAMILY LAW – PARENTING – Time the father is to spend with the child. Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 8 October 2021 Place: Sydney Counsel for the Applicant: Mr O’Reilly Solicitor for the Applicant: Watts McCray Counsel for the Respondent: Ms Kennedy Solicitor for the Respondent: The Norton Law Group Solicitor for the Independent Children's Lawyer: Ms Wilkins, Phillip A Wilkins & Associates ORDERS
SYC 8458 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HURLE
Applicant
AND: MR GREVES
Respondent
PHILLIP A WILKINS & ASSOCIATES
Independent Children’s Lawyer
ORDER MADE BY:
REES J
DATE OF ORDER:
11 OCTOBER 2021
THE COURT ORDERS:
1.That X spend time with the father:
(a)from the date of these Orders for a period of 6 hours each Saturday as agreed between the parties and failing agreement from 10 am to 4 pm.
(b)from the Saturday immediately following X's third birthday, and continuing each weekend, from 9 am to 6 pm on Saturday.
provided that in the event the father returns a positive hair follicle test result or CDT test result above the abnormal then the father's time shall not progress in accordance with Order 1(b).
2.That for the purpose of facilitating time in accordance with Order 1 above, changeover shall occur at B Shopping Centre Suburb C, in front of the Coles shop, or at the direction of the supervisor, with changeover for the first two sessions of contact to be facilitated through D Contact Service or any other professional supervision service agreed between the parties, with the costs of the service to be shared equally between the parties AND for the purpose of the parties engaging D Contact Service they will forthwith complete all necessary intake forms and pay intake fees.
3.That the parties forthwith attend upon a clinician at E Psychology that may be available and agreed between the parties in writing and the parties shall each pay one half of all costs associated with the counselling AND for the purpose of attending upon E Psychology the parties agree that the sessions occur by shuttle conference or as otherwise directed by the clinician NOTING that these orders do not bind the clinician as to the manner in which the clinician conducts the therapy.
IT IS ORDERED BY CONSENT PENDING FURTHER ORDER:
4.That the Mother's Application for Review be dismissed.
5.That the Orders dated 28 May 2021 be dismissed.
6.That X Lawson ("X") born … 2019 live with the Mother.
7.That, as previously ordered by Senior Registrar Hayward on 10 February 2021, the Mother is at liberty to provide a copy of these Court Orders to the school or day care that X may attend from time to time, and F Contact Service.
8.That, as previously ordered by Senior Registrar Hayward on 10 February 2021, each party be restrained from criticising or denigrating the other party or the other party's family in the presence or within the hearing of X.
9.That, as previously ordered by Senior Registrar Hayward on 10 February 2021, the Father be restrained from drinking for a period of 24 hours prior to the time he spends with the child AND whilst spending time with the child.
10.That, as previously ordered by Senior Registrar Hayward on 10 February 2021, the Father purchase and maintain to the prescribed standard, a breathalyser device and that he provide such device and undertake a test at the commencement of each occasion he spends with the child.
11.That, as previously ordered by Senior Registrar Hayward on 10 February 2021, in the event the Father registers a positive reading his time is not to occur on that occasion.
12.That, as previously ordered by Senior Registrar Hayward on 10 February 2021, the Father shall not gamble whilst he spends time with the child.
13.That, as previously ordered by Senior Registrar Hayward on 7 May 2021, every two months (commencing two months from the last CDT test undertaken by the Father), the Father will undertake a Chain of Custody CDT and provide the results to the mother's solicitors immediately upon receipt.
14.That, as previously ordered by Senior Registrar Hayward on 10 February 2021, without admissions, the mother is hereby restrained from:
(a)either directly or indirectly, publishing, distributing, disseminating or disclosing to any person, the public or any section of the public in any way or form (which includes mobile phone text, internet, email, Facebook, Twitter and other social networking sites):
(i)Photographs and/or images of the father that the mother obtained from the website " including but not limited to the photographs and/or images referred to in paragraphs [40] and [41] of the Applicants affidavit sworn 25 November 2020 ("Photographs");
(ii)Any information or documentation which would suggest or imply that the person in the photographs is the father.
other than:
A.as may be required by law;
B.to the mother's family lawyers for the purpose of obtaining legal advice in relation to these proceedings;
C.with leave and/or order of the Court; or
D.with the express written consent of the father.
15.That the parties shall within 7 days of these Orders submit to hair testing so as to provide a sample of not less than 4 centimetres to then be tested for the presence of alcohol and illicit drugs, and upon the conclusion of testing of that sample she shall ensure that a copy of the report so produced is provided to the other party and the ICL. To give effect to this order:
(a)The parties are required to maintain his head hair at a length of not less than four (4) centimetres, neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;
(b)Upon being requested to do so, an appointment is to be made with an accredited testing agency for the purpose of providing a hair sample for the hair alcohol and/or testing purposes;
(c)The parties and his/her legal representatives is at liberty to provide to the testing agency a copy of these orders;
(d)The parties are to attend the accredited testing agency and submit to the supervised collection of a hair sample;
(e)Written notice to undertake hair collection for hair drug and alcohol testing purposes may be sent to the parties via email address to their legal representative and shall be deemed to have been received by them at the date and time it is sent via email;
(f)The parties are to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising the accredited testing agency or nominee to provide the results of each test to them and the ICL and the other party's legal representatives upon receipt of such test results;
(g)The hair drug and alcohol test is to screen for alcohol EtG and drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites and opioids and metabolites;
(h)
The accredited testing agency is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025.2005 by the relevant
National Accreditation body, The accredited testing agency selection is to be based on the type of test require, the specific drug or drugs to be tested, the laboratory's compliance level with international Society of hair Testing (SoHT) guidelines, cost and time required for results to be made available.
16.That the father complete the "G Program" course and the "Triple P Parenting" course through H Family Service New South Wales as soon as reasonably practicable and in any event prior to 28 May 2022.
IT IS NOTED
17.That pursuant to s.62B and s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the Annexure and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Hurle & Greves has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Rees J:
Ms Hurle (“the mother”) and Mr Greves (“the father”) are the parents of X who was born in 2019. The parties separated on 28 December 2019.
On 10 February 2021, orders were made for the father to spend time with X for three hours each week with a professional supervisor. From 10 July 2021, the time was extended to six hours.
On 7 May 2021, a Senior Judicial Registrar discharged the supervision orders and made orders which provided for the father to have unsupervised time with X. The mother filed an application to review those orders and thus the matter comes before me as a hearing de novo.
The parties and the Independent Children’s Lawyer (“ICL”) were able to agree on a scheme of orders which provided for X to spend unsupervised time with the father but were unable to agree upon the following issues:
·How unsupervised time would progress.
·Should changeovers be supervised.
·Overseas travel.
These reasons, with one exception, address those areas of dispute.
Order 5. of the Minute proposed by both parties dealt with “sporting activities or extracurricular activities” for this two year old child. Since I was not referred to any such activities, I have declined to make that order.
Dr J, a child and family psychiatrist, was appointed as the single expert in this matter and has provided a report dated 2 September 2021. Dr J has also answered specific questions put to him on behalf of the mother.
Contrary to the provisions of the Rules, the father obtained and sought to rely upon an affidavit of another psychiatrist, Dr K. The mother then sought a report from yet another psychiatrist, Dr L.
There is no evidence of the amount that each of the parties was charged for the preparation of those reports. Neither sought the leave of the Court in relation to the evidence of the experts.
The provisions of the Rules, both as they were before September 2021 and after
September 2021, are clear in the following terms:
7.08 Appointing another expert witness
(1)If a single expert witness has been appointed to prepare a report or give evidence in relation to an issue, a party must not tender a report or adduce evidence from another expert witness on the same issue without the court’s permission.
(2)The court may allow a party to tender a report or adduce evidence from another expert witness on the same issue if it is satisfied that:
(a)there is a substantial body of opinion contrary to any opinion given by the single expert witness and the contrary opinion is or may be necessary for determining the issue; or
(b)another expert witness knows of matters, not known to the single expert witness, that may be necessary for determining the issue; or
(c)there is another special reason for adducing evidence from another expert witness.
Neither parent was permitted to rely on the adversarial reports.
HOW SHOULD UNSUPERVISED TIME PROGRESS
The mother proposed that the time initially, until 1 January 2022, be for three hours each week, increasing to six hours thereafter. Once X is three years old, the mother proposes that she spend time with the father each alternate weekend from 10am to 4pm on Saturday and Sunday.
The father proposed that, for the next three months, the time be six hours each Saturday and that from the time of X’s third birthday, it should progress to overnight time each weekend from midday Saturday until midday Sunday. It is not clear what the father proposed should occur after January 2022 and before 28 May 2022.
X is currently spending six hours each week with the father. The reports of the contact supervisors raise no concerns about the father’s ability to sooth and calm X, to care for her when she is unwell, to put her to bed and to wake her from her nap. Dr J described the relationship between X and the father as demonstrating a secure attachment. Other than the mother’s anxiety, there is no evidence which suggests that X’s time with the father should be reduced. The mother does not suggest that her anxiety is such that it will affect her capacity to parent and there is no evidence from any treating practitioner of the mother suggesting that her anxiety would have that effect.
X appears to be coping well with spending six hours with her father at present and that time will not be reduced.
I am not satisfied that it is appropriate, on the evidence available, to introduce overnight time when X is three. However, I accept that it would be appropriate to increase the time that X spends with the father after she is three.
The father seeks time every week, the mother prefers time to be fortnightly. Having regard to X’s age, it is preferable that when she turns three she spends time with the father each week and the time will be extended to commence at 9 am and end at 6 pm.
SHOULD CHANGEOVERS BE SUPERVISED
The parties have agreed that changeovers should occur in a shopping centre. The mother proposes that the changeover be supervised, presumably indefinitely. The father disputes the need for supervision.
Counsel for the mother submitted that allegations of family violence referred to in an affidavit sworn by the mother on 7 October 2021 at paragraphs 13 to 15 inclusive justify the imposition of supervision.
As to the incident on 7 March 2020, the mother’s account is disputed by the father and it is not possible to determine that factual dispute here. However, taking the mother’s account at its highest, the father wanted to take X for a drive, the mother formed the view that he had been drinking. She approached the father to take X from him and he pushed her. The mother does not suggest that she fell or that the push was forceful. The mother took X from the father and left.
I do not accept that the matters to which the mother deposes at paragraph 15, accepting for the purpose of this determination that they occurred as the mother alleges, constitute family violence such that they require the imposition of supervision.
There is no allegation of family violence made by the mother since the incident on 21 November 2020 where the mother refused to allow the father to push X’s pram and he spoke rudely to her saying, inter alia, “for fuck’s sake, you’ve cracked it”.
On behalf of the mother it was submitted that a supervisor should be present to administer the breath test that has been agreed as a precondition at the commencement of the visit. I do not accept that the mother is required to administer the test. The father will administer the test and show the mother the result.
However, I propose to adopt the compromise suggested by the ICL that for the first few occasions, a supervisor should be present.
The parties cannot agree about who should pay for the presence of the supervisor. Absent any cogent reasons advanced by either, they should share the cost equally.
OVERSEAS TRAVEL
The mother proposes that she be allowed to travel overseas with X for up to eight weeks, pending the determination of her application to relocate to Country M. She has no present proposal to travel.
The father opposes that application, of which he was given notice only after the hearing had commenced. Counsel for the father indicated that the application would be opposed on the basis that it would be inappropriate, at this time, to interrupt the weekly time that X spends with the father.
The ICL opposed the application.
I do not accept that it is X’s interests that, at the age of two or three, she not see her father for eight weeks and I do not propose to make orders allowing overseas travel.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 11 October 2021
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