JUDD & JUDD
[2017] FamCA 785
•4 October 2017
FAMILY COURT OF AUSTRALIA
JUDD & JUDD
[2017] FamCA 785
FAMILY LAW – CHILDREN – Final proceedings – Where there is one child arising out of the parties’ four year marriage – Where the parties have a high conflict relationship – Where both parties have a history of illicit substance abuse – Where there is a risk that the parties may return to a use of illicit substances – Where the mother currently lives with the maternal grandparents and the father lives alone – unacceptable risk – Section 60CC considerations – Court finds that the presumption of equal shared parental responsibility shall not apply – Court finds the current parenting arrangements should continue until the child reaches school age – Orders made for the child’s time with the father to be increased in stages – Mitigation of risk – Where both parents are required to undertake drug testing – Where a positive test results in the child’s time with the positively tested parent being the subject of supervision pending further order of the Court.
Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 61DA, 65DAA
Bowers & Bowers [2017] FamCA 627
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) 41 Fam LR 483
Sigley v Evor (2011) 44 Fam LR 439
APPLICANT:
Mr Judd
RESPONDENT:
Ms Judd
Independent children’s lawyer:
Legal Aid New South Wales
FILE NUMBER:
PAC
1459
of
2016
DATE DELIVERED:
4 October 2017
PLACE DELIVERED:
Sydney
PLACE HEARD:
Sydney
JUDGMENT OF:
McClelland J
HEARING DATE:
6, 7, 8 , 9 March 2017 and 23, 24 May 2017
REPRESENTATION
COUNSEL FOR THE APPLICANT:
Mr Kearney SC
SOLICITOR FOR THE APPLICANT:
Doolan Wagner Family Lawyers
COUNSEL FOR THE RESPONDENT:
Mr Campton SC
SOLICiTOR FOR THE RESPONDENT:
Gordon & Barry Lawyers
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:
Ms Eldershaw
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:
Legal Aid New South Wales
Orders
THE COURT ORDERS ON A FINAL BASIS THAT:
Parental responsibility
(1) Other than in respect to education, the parents have equal shared parental responsibility for making decisions about major long term issues about the care, welfare and development of B born … 2015 ("the child").
(2) The mother shall consult with the father in relation to the child’s education and, acting in good faith, endeavour to reach agreement but should there be no agreement on any issue that pertains to the child’s education, the mother shall make the decision and shall advise the father of the decision made.
(3) The mother shall have sole responsibility for making decisions of a day-to-day nature for the child when the child is in her care.
(4) The father shall have sole responsibility for making decisions of a day-to-day nature for the child when the child is in his care.
Residence and 'spend time'
(5) The child shall live with the mother.
(6) Except as otherwise agreed between the parties in writing, the child shall spend time with the father as follows:
(a) In the period from the date of these orders until 3 July 2018:
(i) from 9.00am until 3.00pm each Sunday;
(ii) from 9.00am until 3.00pm each Tuesday;
(iii) from 4.00pm each Thursday until 10.00am each Friday;
(b) In the period from 3 July 2018 until 2019:
Week 1:
(i) From 9.00am until 5.00pm each Wednesday;
(ii) From 9.00am until 5.00pm each Friday;
Week 2:
(iii) From 9.00am until 5.00pm each Wednesday;
(iv) From 12.00pm Saturday until 9.00am on Monday morning;
(c) In the period from 2019 until 2020:
Week 1:
(i) From 9.00am Tuesday until 5.00pm each Thursday;
Week 2:
(ii) From 12.00pm Saturday until 9.00am each Monday.
(d) In the period from 2020 and beyond:
Week 1:
(i) From 9.00am Tuesday until 5.00pm each Thursday;
Week 2:
(ii) From 3.00pm Friday until 9.00am each Monday.
Short School Term holidays
(7) From Term 1 of 2020 during the short school term holiday period occurring at the end of Terms 1, 2 and 3, the child shall spend time with the parties as agreed between them in writing but failing agreement, in
(a) even numbered years - with the father for the first half and with the mother in the second half;
(b) in odd numbered years - with the mother in the first half and with the father in the second half.
Christmas School holidays
(8) Except as provided by any other order to the contrary, during the Christmas school holidays in 2020/21 and 2021/22, the child shall spend time with the parties as agreed between them in writing but failing agreement on a week about basis as follows:
(a) In even numbered years - with the father in the 1st, 3rd, 5th and 7th (or part thereof should it occur) week and otherwise with the mother;
(b) In odd numbered years - with the mother in the 1st, 3rd, 5th and 7th (or part thereof should it occur) week and otherwise with the father.
(9) Except as provided by any other order to the contrary and by reference to the interpretation provisions below, during the Christmas school holidays in 2022/23 and thereafter, the child shall spend time with the parties as agreed between them in writing but failing agreement:
(a) In even numbered years - with the father for the first half of the holiday period and otherwise with the mother; and
(b) In odd numbered years - with the mother for the first half of the holiday period and otherwise with the father.
Interpretation of orders
(10) In these Orders, "school day" means a day that the child is required to attend school in accordance with her school's calendar. "Non-school day" means a day that the child is not required to attend school in accordance with her school's calendar and, for abundant clarity, does not mean a day that the child is not attending school due to illness or for any other reason.
(11) For the purpose of implementing the school holiday arrangements:
(a) school holidays commence at 3.00pm on the last Friday of the school term;
(b) school holidays conclude at 9.00am on Monday of the first week of the next school term;
(c) the mid-point of the holiday periods occurring at the end of Terms 1, 2 and 3 shall be taken to be 5.00pm on the middle Saturday of the period;
(d) changeover during the Christmas school holiday periods in 2020/21 and 2021/22 shall occur on 5.00pm each Friday.
(e) changeover during the Christmas school holiday periods in 2022/23 and thereafter shall occur at 5.00pm on the first Friday after New Year’s Day, with such day being deemed to be the mid-point of the school holiday period.
Special occasions
(12) Despite any other order to the contrary, the child shall spend time with each of her parents on special occasions as follows:
(a) On the child's birthday, from 10.00am to 2.00pm with the parent with whom she is not otherwise living;
(b) With the mother on the mother's birthday (…) from after school to 7.00pm if it falls on a school day or from 9.00am to 7.00pm if the birthday falls on a non-school day;
(c) With the father on the father's birthday (…) from after school to 7.00pm if it falls on a school day or from 9.00am to 7.00pm if the birthday falls on a non-school day;
(d) With the mother from 9.00am to 7.00pm each Mother's Day;
(e) With the father from 9.00am to 7.00pm each Father's Day;
(f) In odd-numbered years, from:
(i) 3.00pm on Christmas Eve to 3.00pm on Christmas Day with the mother;
(ii) 3.00pm on Christmas Day to 3.00pm on Boxing Day with the father.
(g) In even-numbered years, from:
(i) 3.00pm on Christmas Eve to 3.00pm on Christmas Day with the father; and
(ii) 3.00pm on Christmas Day to 3.00pm on Boxing Day with the mother.
Changeover
(13) Except where changeover occurs through preschool, school or an extracurricular activity, or as otherwise agreed between the parties in writing (which may include SMS text):
(a) Other than for the purpose of Christmas Eve, Christmas Day and Boxing Day, the mother shall deliver the child to the father's residence at the commencement of the child's time with him, and the father shall return the child to the mother's residence at the conclusion of the time.
(b) For the purpose of effecting changeover on Christmas Eve, Christmas Day and Boxing Day:
(i) The mother shall be responsible for the child's transport on Christmas Eve and Boxing Day in odd-numbered years and on Christmas Day in even numbered years; and
(ii) The father shall be responsible for the child's transport on Christmas Day in odd-numbered years and on Christmas Eve and Boxing Day in even numbered years.
(14) Each party is restrained from filming, photographing or otherwise audio or video recording changeovers and must do all acts and things to prevent any other person from doing so.
Communication
(15) Each parent will facilitate all reasonable requests made by the child to communicate with the other parent by telephone at times when the child is in their care.
(16) In these orders, communication via SMS text message constitutes written communication.
Travel and passport
(17) Each party shall do all acts and things and sign all necessary documents to ensure that the child has a current Australian passport, with the cost of any passport renewal to be borne equally by the parties.
(18) Each party is permitted to travel with the child outside the Commonwealth of Australia at times when the child is in that party's care pursuant to these orders (or as otherwise agreed in writing between the parties) provided that:
(a) Such travel does not occur on days that the child is required to attend school, unless the other party and the school consents to the child being absent from school;
(b) The ultimate destination of travel is a country that is signatory to the Hague Convention (unless the other parent provides written consent to the child travelling to a non-signatory country);
(c) The travelling party gives the non-travelling party not less than 28 days’ notice of the intended travel together with:
(i) A copy of the child's return airline or voyage ticket;
(ii) A copy of the travel itinerary including the names and contact details of the accommodation in which the child will be staying; and
(iii) A telephone number on which the travelling parent can be contacted at all reasonable times while overseas.
(19) Subject to the next order, the child's passport shall remain in the custody of the mother.
(20) When the father is the travelling parent, the mother shall provide the child's passport to him as reasonably requested by him prior to the travel and he shall return the passport to the mother not less than 72 hours after the child's return to Australia.
(21) Each party is permitted to travel with the child outside the State of New South Wales at times when the child is in that party's care pursuant to these orders (or as otherwise agreed in writing between the parties) provided that:
(a) Such travel does not occur on days that the child is required to attend school, unless the other party and the school consents to the child being absent from school;
(b) The travelling party gives the non-travelling party not less than 72 hours’ notice of the intended travel together with:
(i) If air travel is involved, a copy of the child's return airline ticket;
(ii) A copy of the travel itinerary including the names and contact details of the accommodation in which the child will be staying; and
(iii) A telephone number on which the travelling parent can be contacted at all reasonable times while interstate.
(22) At times when the child is travelling, the travelling parent shall ensure that she makes telephone contact with the non-travelling parent each Wednesday and Sunday between 5.30pm and 6.00pm at the time that is local to the child.
Other matters
(23) Each parent is to ensure that the other parent is kept informed as soon as is reasonably practicable of:
(a) Any serious medical problems or illnesses suffered by the child, including the details of any hospital or medical centre to which she has been taken in the case of an emergency;
(b) Any medication that has been prescribed for the child that needs to be taken during the time she is in the care of the other parent;
(c) Any appointments with any specialist medical doctor, dentist or other health professional and the name and contact details of such professional;
(d) Unless the appointment was attended by both parents, the outcome of any attendance by the child on any medical or other health professional, including copies of any medical reports provided by that professional, within 3 days of receipt of such report;
(e) Any changes to their residential address and other contact details; and
(f) Any other matter relevant to the welfare of the child.
(24) Each of the parents are permitted to liaise directly with the child's day-care, preschool, school, sporting bodies and/or extra-curricular organisation to obtain any necessary information about her progress and that both parents are to do all things necessary to authorise the school, sporting bodies and/or other organisations to release such information as requested by the other parent to the extent permitted by law.
(25) Both parents shall authorise any day-care, preschool or school attended by the child to provide to both parents copies of her reports, newsletters, photograph order forms and invitations to attend any activities which parents are invited to attend AND for both parents to be named on all day care, preschool and school and extracurricular records as emergency contacts.
(26) Each parent shall do all acts and things to authorise any medical practitioner, dentist, counsellor or other health professional who treats the child to provide information to the other parent upon request by the other parent, to the extent permitted by law.
(27) Each parent is permitted to attend parent-teacher interviews, concerts, carnivals and other events involving the child at day-care, preschool or school, or in the context of extra-curricular activities to which parents are ordinarily invited, even if that event occurs at a time when the child is in the care of the other parent pursuant to these orders.
(28) Each party is restrained from criticising or denigrating the other parent or member of that parent's family or household in the presence or hearing of the child.
Abstinence from Alcohol and illicit substances
(29) Each party is restrained from consuming any form of illicit substance or prescription medicine that has not been prescribed to them by a qualified medical practitioner in the 72 hours prior to the child being in their care and at any time that the child is in their care.
(30) Each party is restrained from consuming alcohol to a level that causes them to exceed a blood alcohol reading greater than 0.05mmol/dL in the 24 hours prior to the child being in their care and at any time while the child is in their care.
Random Hair follicle Testing
(a) The father and mother shall forthwith upon a request being made by the other party, do all acts and things and sign all documents necessary to facilitate chain of custody hair follicle testing by Occupational Toxicology Services Pty Ltd (now known as Tox Logic) as follows:
2017
(b) Between 1 April and 8 April;
(c) Between 1 June and 8 June;
(d) Between 1 October and 8 October;
(e) Between 1 December and 8 December;
2018
(f) Between 1 April and 8 April;
(g) Between 1 June and 8 June;
(h) Between 1 October and 8 October;
(i) Between 1 December and 8 December;
2019
(j) Between 1 June and 8 June;
(k) Between 1 December and 8 December;
2020
(l) Between 1 May and 8 May;
(m) Between 1 November and 8 November;
with 4 cm of hair to be provided for the tests requested.
(31) The purpose of the hair follicle testing shall be to test for:
(a) Amphetamine, methamphetamine, MOMA, ecstasy;
(b) Marijuana and its metabolites;
(c) Cocaine and its metabolites; and
(d) Opiates.
(32) The father and mother shall each refrain from taking any step which may interfere with the provision of hair samples or to interfere with the test results including taking any step to shave, cut, shorten, colour, bleach any scalp or body hair and the mother and father shall each be restrained from cutting their head hair shorter than 4cm in length.
(33) Notwithstanding the preceding order, the mother is permitted to undertake a half head of foils/hair colouring, leaving the underneath unaffected each 8 weeks.
(34) For the purpose of these Orders, any request for hair follicle testing shall be made by way of SMS or email to the other party and shall be undertaken within 72 hours of the request being made.
(35) In the event that a party produces a hair follicle test result that is positive to an illicit substance, that party may at their own cost and request to undertake a second hair follicle test which result may be considered in any application to the Court for a stay or variation of these parenting orders.
(36) The mother and father shall pay their own costs of any hair follicle testing undertaken at the request of the other party.
Additional Random Testing
Urinalysis
(37) For a period of 12 months from the date of these orders, the father and mother shall within 24 hours of a request being made by the other party, such request being made on not more than one occasion every month, do all acts and things and sign all documents necessary to facilitate supervised and chain of custody urinalysis (per AS/NZS 4308:2008 Procedures for Specimen Collection and the Detection and Quantification of Drugs of Abuse in Urine) for the purpose of testing for:
(a) Amphetamine, methamphetamine, MOMA, ecstasy;
(b) Marijuana and its metabolites;
(c) Cocaine and its metabolites;
(d) Opiates.
Random Carbohydrate Deficient Transferrin (CDT) Testing
(38) For a period of 12 months from the date of these orders, the father and mother shall within 24 hours of a request being made by the other party, such request being made on not more than one occasion every month, do all acts and things and sign all documents necessary to facilitate and undergo a blood test to measure Carbohydrate Deficient Transferrin (CDT) levels in their blood and such testing shall be undertaken under chain of custody and each party shall, at the time of collection, provide photographic identification which shall be verified by the collection centre.
(39) The party requesting the other party to submit to Urinalysis or CDT testing shall pay for the cost of that test.
Provision of test results
(40) The parties shall direct and authorise Tox Logic and any other pathology service engaged by them to give effect to these orders to provide copies of test results forthwith upon such results becoming available to:
(a) the solicitor for the father, namely Doolan Wagner Family Lawyers; and
(b) the solicitor for the mother, namely Gordon & Barry Lawyers.
Consequences of a positive Drug test.
(41) In the event the mother or father fail to comply with the aforementioned requests and/or fail to provide a test result to the other party within 21 days of the request and/or return a result that is positive to an illicit substance, the mother or father shall have liberty to urgently re-list the matter and, pending that re-listing, there shall be a suspension or variation of the child's time with the mother or father such that her time with that parent will be supervised by an agreed supervisor.
AND THE COURT FURTHER ORDERS THAT:
(42) The parties have leave to provide written submissions to Chambers in relation to whether an order should be made for the parties to equally share the costs of the Independent Children’s Lawyer within 14 days of the date of these orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Judd & Judd 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 Sydney
FILE NUMBER: PAC 1459 of 2016
Mr Judd
Applicant
And
Ms Judd
Respondent
REASONS FOR JUDGMENT
Introduction
1. The task before the Court is to determine future parenting arrangements for a 2 and a half year old girl. The child was born in 2015. She is the daughter of Mr Judd born in 1981 and Ms Judd born in 1982. The parties were married in 2012 and separated in January 2016.
2. The child has lived with the mother since separation. For approximately 12 weeks after the parties separated, the child did not spend time with the father as result of the father’s disagreement with conditions proposed by the mother.
3. As a result of orders made by Registrar Campbell on 31 August 2016, since the first week of September 2016, the child has spent time with her father one night per week, on Thursday afternoon from 4.00pm to 10.00am on Friday, and then two individual days per week, on Tuesdays and Sundays, from 9.00am to 3.00pm.
4. Until 9 March 2017, orders were in place that required one of the father’s parents or his sister or any other prior agreed adult be present during the time that the child spent time with the father. The orders also required the mother to continue living with her parents during the time that the child was in her care.
5. By consent orders made on 9 March 2017, the parties agreed to remove those requirements. In giving brief reasons for judgment, approving the consent orders deleting those paragraphs, I expressed concern regarding the child being in the unsupervised care of either of the parents. This was because I have significant concerns regarding each parent’s history of drug use. As will be discussed, this, in my view, is a significant risk factor for the child.
6. In that respect, a significant challenge in this case has been determining the extent to which each of the parents has in the past used illicit substances and what impact it has had on the parties’ relationship, issues of family violence, the parties’ parenting capacity and their future ability to communicate with each other in the interests of the child. Regrettably, the task before the Court has not been assisted by the fact that both parents have given a false account of the extent of their prior drug use.
7. This litigation has occurred in the context of each of the parties’ parents, that is, the maternal and paternal grandparents, being heavily invested in each of the parties’ cases. Regrettably, this has resulted in the severing of what had been a previously close relationship between each of the families. Insofar as it is possible, it is important for each of the child’s grandparents to work together to ensure that the child is not adversely affected by the possibility that one or both of the parties will resume the use of illicit substances.
Background
8. The following chronology provides a background to the dispute between the parties.
9. In 1981 the father was born (now aged 36 years).
10. In 1982 the mother was born (now aged 34 years).
11. In 2000 the father sporadically consumed speed.
12. In 2005 the father was convicted for supply of dangerous drug. A conviction was recorded, with probation for 2 years on special conditions of undergoing medical, psychiatric and psychological treatment, to attend counselling or programs as recommended and not to leave Queensland without prior notice.
13. In 2007 the father applied for professional licence and failed a hair follicle drug test.
14. In June 2009 the father gave a false account of his drug use when undertaking a medical interview for the purpose of applying for a licence.
15. In November 2010 the mother commenced employment with Company C at Suburb D.
16. In May 2011 the parties commenced cohabitation in Sydney, the father having moved from Queensland. Both parties sporadically used recreational drugs together.
17. On 30 April 2012, as part of the process for applying for a licence, the father provided false information to an Addiction Psychologist regarding his drug use.
18. In mid-2012 the father placed an application on the mother’s phone that enabled him to track her communications.
19. Early in November 2012 the mother became aware of phone tracking software placed on her mobile phone by the father.
20. The parties married in late 2012.
21. On 16 August 2013 the father published a Facebook post commenting on drug use.
22. On 27 February 2014, after she returned home from an evening out, the father asked the mother to take off her underwear with a view to checking whether she had been unfaithful. On that same evening the mother discovered that her clothes had been strewn over the bedroom floor.
23. On 26 July 2014 the father published a Facebook post commenting on masturbating under the influence of drugs.
24. On 14 November 2014, the father found the mother’s old phone and looked at old messages contained on the phone. Subsequently, in 2014, the father called a person whose number had been recorded on the mother’s phone and impersonated the mother for the purpose of checking up on her.
25. In late 2014/ early 2015 the father established his business, E Pty Ltd.
26. In 2015 the child was born and the mother took 12 months maternity leave from her employment.
27. In June 2015 the parties moved into the former matrimonial home at Suburb G.
28. In August 2015 the child commenced at “F School" in Suburb G on Mondays. Also in August of 2015 the mother consumed ecstasy in the home whilst the child was at home.
29. In September 2015 the mother consumed cocaine.
30. On October 2015 the mother returned to work four days per week. The child was placed in daycare on Mondays and Fridays.
31. In the three month period between October 2015 and February 2016 the mother used “modafinil”.
32. In November 2015 the mother returned to working five days per week and the child was placed in daycare three days per week.
33. On 4 November 2015 the child commenced attending the H School at Suburb J on Wednesdays. The child continued attending F School two days per week. On 17 December 2015 the parents and the child travelled to Country K with the mother’s family. During the holiday, the father visited friends in the United States for three days.
34. On 4 January 2016 the child burned her hand on a heater.
35. In January 2016, during a trip to the United States, the father used a stimulant drug.
36. On 29 February 2016 the parties separated. The mother left the former matrimonial home with the child. The father did not see the child until 21 May 2016.
37. On 4 April 2016 the child commenced at the L Preschool at Suburb M. The father was not consulted about the enrolment. Also on 4 April 2016 the father filed Initiating Application for parenting and financial orders.
38. On 22 April 2016 the mother took the child to N Town where she sustained a greenstick fracture to her wrist. On 27 April 2016 the mother informed the father by email of the child’s fractured wrist.
39. In May 2016 the father cut his hair short prior to undertaking a hair follicle drug test.
40. On 22 May 2015 the child spent time with the father in the company of his parents. This is the first time that the child had seen her father since 29 February 2016.
41. On 22 May 2016 the child spent time with the father, in the company of the paternal grandparents. This was the first time the child saw her father since 29 February 2016.
42. On 24 May 2016 the results of the mother’s urinalysis test undertaken on 19 May 2016 were positive for opiates. The mother asserts this was due to taking a painkilling medication.
43. On 25 May 2016 the matter was listed for interim hearing before Senior Registrar Campbell. In summary, the orders made were:
1. the child live with the Father on one night each week from 4pm to 10am the following day and for two block periods of 6 hours, in the presence of either of the father’s parents. The choice of day and time is left up to the parties to settle and in the absence of agreement, each of the parties to prepare written submissions.
2. the child live with the mother when she is not otherwise living with or spending time with the father which is conditional upon the mother remaining living with her parents.
3. The parents submit to random urinalysis, Carbohydrate-Deficit Transferrin testing and Hair Follicle Testing upon the request of the other party’s lawyer.
4. The appointment of an Independent Children’s Lawyer.
44. During the period 25 May 2016 to 31 August 2016, the parties could not agree on the day and time that the child was to live with and spend time with the father.
45. On 3 June 2016, 8 June 2016, and 15 June 2016 the child spent time with the father.
46. From 15 June 2016 until the end of 2016 the parties used a “Communication Book” to communicate with each other.
47. On 19 June 2016 the child spent overnight time with the father. The father delivered the child to preschool on 20 June 2016. Events occurred on that day that resulted in a dispute between the father and the preschool.
48. On 29 July 2016, further interim orders were made that provided, in summary:
1. the child spend time with her father each Wednesday and Sunday from 10.00am until 4.00pm, with such time to be spent in the presence of the husband’s parents, his sister or any one of them.
2. That for the purpose of changeover on Wednesday and Sunday mornings, the mother facilitate changeover at the father’s residence and the father facilitate delivery of the child to the mother’s residence on Wednesday and Sunday afternoons.
3. Until 5.00pm on 31 August 2016, the child live with the mother, provided that she continue to reside with her parents.
49. From 29 July 2016 to 31 August 2016 the child spent time with the father each Wednesday and Sunday from 10.00am to 4.00pm in the presence of either one of his parents or his sister.
50. On 21 August 2016 there was an incident during changeover between the father, the mother and maternal grandfather regarding who was going to be in attendance when the child spent time with the father.
51. On 31 August 2016 orders were made by Registrar Campbell which provide the basis for current parenting arrangements. Those orders relevantly provide:
1. That the parties have equal shared parental responsibility for the child, [B], born on … 2015 [the child].
2. That the parties each have sole responsibility for making decisions about the day to day care, welfare and development of the child when in their respective care.
3. That the child live with and spend time with the Father each week as follows:
3.1 from 9am until 3pm each Sunday, commencing 4 September 2016;
3.2 from 9am until 3pm each Tuesday, commencing 6 September 2016;
3.3 from 4pm each Thursday until 10am each Friday, commencing 8 September 2016; and
3.4 at such other times as may be agreed between the parties in writing.
4. That the Father’s time with the child is conditional upon him having one of his parents or sister or any other prior agreed adult person with him during that time.
5. That save as other provided here, the child shall live with and spend time with the Mother which is conditional upon the mother continuing to live with her parents during the times that the child is in her care.
6. That notwithstanding any other Order to the contrary:
6.1 on the Father’s birthday, if the child is not otherwise in the Father’s care, the child will spend time with the Father as agreed, and failing agreement
6.1.1 From 3pm until 7.30pm if the day is a daycare day; or
6.1.2 From 9am until 5pm if the day is not a daycare day.
6.2 on the Mother’s birthday, if the child is not otherwise in the Mother’s care, the child will spend time with the Mother as agreed, and failing agreement:
6.2.1 From 3pm until 7.30pm if the day is a daycare day; or
6.2.2 From 9am until 5pm if the day is not a daycare day.
6.3 on the child’s birthday, the child will spend time with the parent who does not otherwise have the care with the child as agreed and failing agreement as follows:
6.3.1 From 3pm until 7.30pm if the day is a daycare day; or
6.3.2 From 9am until 5pm if the day is not a daycare day.
6.4 for the period from 10am 24 December until 8pm 26 December, the child will spend time with both parents, as agreed and failing agreement, as follows:
6.4.1 From 10am on 24 December until 3pm on 25 December with the Father in each year ending in an even number,
6.4.2 From 3pm on 25 December until 8pm on 26 December with the Mother in each year ending in an even number;
6.4.3 From 10am on 24 December until 3pm on 25 December with the Mother in each year ending in an odd number;
6.4.4 From 3pm on 25 December until 8pm on 26 December with the Father in each year ending in an odd number.
7. That each party is to notify the other party as soon as possible and, in any event, within twelve (12) hours of any serious injury or illness suffered by the child or her being hospitalised whilst in the care of that party.
8. That the parties do all acts and things necessary and provide all necessary authorities to schools, health service providers and the like so as to facilitate the free flow of all information in relation to the child to both parents.
9. That the parties keep each other informed of their respective telephone numbers, email addresses and home addresses and allow the child and the other party to communicate by telephone at all reasonable times.
10. That each party notify the other of the name of any general practitioner, paediatrician or other specialist who treats the child when the child is in that party’s care and provide to that person any authority necessary so that the other party can contact the person to obtain all information regarding the treatment and care of the child.
11. That each party must notify the other of the name and details of any childcare facility of which the child attends whilst in that party’s care and provide to that person any authority necessary so that the other party can contact the childcare facility to obtain all information regarding the care of the child.
12. That the Father and Mother shall forthwith upon a request being made by the other party’s lawyer, such request being made on not more than one occasion every two (2) month period, do all acts and things and sign all documents necessary to facilitate chain of custody hair follicle testing by Occupational Toxicology Services Pty Ltd, now known as Tox Logic [Tox Logic] for the purpose of testing for:
12.1 Amphetamine/Methamphetamines/Ecstasy;
12.2 Marijuana Metabolite;
12.3 Cocaine and Metabolites; and,
12.4 Opiates.
13. That for the purpose of Order 12, the Father and Mother shall complete all documents provided to them by Tox Logic, including documents identifying and verifying each party’s identity.
14. That the Father and Mother undertake to refrain from taking any step to interfere with the provision of hair samples or to interfere with the test results and including taking any step to shave, cut, shorten, colour or bleach any scalp or other bodily hair and the Father and Mother shall be restrained by injunction from cutting their hair shorter than four (4) centimetres in length.
15. That notwithstanding Order 14 and subject to any expert opinion that such action will diminish the efficacy of the testing required by these Orders, the Mother shall be entitled to undertake a half head of foils hair colouring, leaving the underneath unaffected each 8 weeks.
16. That the Father shall direct and authorise Tox Logic to provide to the solicitors for the Wife, Gordon & Barry Lawyers of … copies of all test results forthwith upon those results becoming available.
17. That the Mother shall direct and authorise Tox Logic to provide to the solicitors for the Father, Doolan Wagner Family Lawyers …, copies of all test results forthwith upon those results becoming available.
18. That each party shall meet, in the first instance, their own costs of the hair follicle testing undertaken pursuant to these Orders.
19. That the Father and Mother shall forthwith do all acts and things and sign all documents necessary to submit to urinalysis testing by Tox Logic.
20. That pending further Order and on no more than one (1) occasion each month upon the request of the Father’s solicitor, the Mother shall forthwith submit to urinalysis (under supervision and chain of custody) with such urinalysis to be conducted within twenty four (24) hours of the said request in accordance with the Australian/New Zealand 4304:2008:Procedures for Specimen and Collection and the Detection and Quantification of Drugs of Abuse in Urine including in relation to:
20.1 Amphetamine/Methamphetamines/Ecstasy;
20.2 Marijuana Metabolite;
20.3 Cocaine and Metabolites; and
20.4 Modafinil,
with the costs of such testing to be met by the Mother.
21. That pending further Order and on no more than one (1) occasion each month upon the request of the Mother’s solicitor, the Father shall forthwith submit to urinalysis (under supervision and chain of custody) with such urinalysis to be conducted within twenty four (24) hours of the said request in accordance with the Australian/New Zealand 4304:2008:Procedures for Specimen and Collection and the Detection and Quantification of Drugs of Abuse in Urine including in relation to:
21.1 Amphetamine/Methamphetamines/Ecstasy;
21.2 Marijuana Metabolite;
21.3 Cocaine and Metabolites;
21.4 Modafinil
with the costs of such testing to be met by the Father.
22. That each party do all acts and things and sign all necessary documents to make available to the other party’s solicitor the results of such urinalysis testing immediately upon same becoming available.
23. That the Father and Mother shall forthwith upon a request being made by the other party or the other party’s lawyer, such request being made on not more than one occasion each month, do all acts and things and sign all documents necessary to attend upon their general practitioner for a referral to Laverty Pathology and/or Douglass Hanly Moir Pathology for a blood test to measure Carbohydrate Deficient Transferrin [CDT] levels in their blood and such testing shall be undertaken under chain of custody and each party shall, at the time of collection, provide photo identification which shall be verified by the collection centre.
24. That the Father shall direct and authorise Laverty Pathology and/or Douglass Hanly Moir Pathology and his general practitioner to provide to the solicitors for the Mother, Gordon & Barry Lawyers …, copies of all test results arising from the testing in Order 23 herein forthwith upon those results becoming available.
25. That the Mother shall direct and authorise Laverty Pathology and/or Douglass Hanly Moir Pathology and her general practitioner to provide to the solicitors for the Father, Doolan Wagner Family Lawyers …, copies of all test results arising from the testing in Order 23 herein forthwith upon those results becoming available.
26. That each party shall meet, in the first instance, the costs of the CDT blood testing undertaken pursuant to these Orders.
27. That each of the parties shall otherwise authorise any service that they engage for the purpose of hair follicle testing, urinalysis testing and/or CDT testing to disclose to the other party the dates on which they have undertaken testing and the results of any tests undertaken and the parties or their legal representatives shall be at liberty to contact the service provider directly for this purpose.
28. That neither party shall denigrate the other party, their family or any other person with whom a party may live in a bone fide domestic relationship within the presence or hearing of the child, or allow the child to remain in the presence or hearing of any person who is denigrating either the party, their family or any other person with whom they may be living in a bone fide domestic relationship.
29. That each of the Mother and the Father forthwith provide to the other the details (including the full name, contact address and phone number) for all doctors, allied health care professionals and counsellors consulted from the period of 1 July 2014 to date.
52. On 22 September 2016 the father collected the child from the Suburb O L Preschool at approximately 3.55pm. The father, the paternal grandfather and the child were retained in the Director’s Office for a few minutes. This led to a heated exchange between the paternal grandfather and employees of the preschool. The father thereafter made a complaint to the Department of education
53. On 23 September 2016 L Preschool terminated the child’s enrolment.
54. On 10 October 2016 the child commenced at P Day Care Centre in the CBD. The father was not consulted about the enrolment.
55. In January 2017 the mother ceased working on Fridays. The mother states that this is so that she can stay home and care for the child.
56. On 2107 there was a dispute between the parties regarding the arrangements for the child to spend time with the father on her birthday. This resulted in the matter being reported to the police by the father.
57. In mid-January 2017 the paternal grandfather suffered an aneurism and was hospitalised.
58. On 22 January 2017 the father learnt that the mother’s parents were in Country K. The father did not return the child to the mother’s care. A passing police car was called for assistance to resolve the dispute.
59. On 2 2017 the father did not deliver the child to preschool.
60. On 24 January 2017 the mother’s lawyers wrote to the father’s lawyers outlining the return date of the mother’s parents. The father thereafter returned the child to the mother at 4.00pm.
61. On 8 February 2017 the mother sent an email to the father proposing private schools for the child.
62. On 6 March 2017 the matter was listed for hearing.
APPLICATIONS
The mother’s application
63. The final orders sought by the mother were set out in exhibit W7 and were as follows:
THE COURT NOTES:
1. The following definitions for the purpose of these Orders:
1.1 "Act" means Family Law Act 1975;
1.2 "[Ms Q]" means [Ms Q], formerly [Judd], born … 1984;
1.3 "[Mr R]" means [Mr R], born … 1955;
1.4 "[Ms R]" means [Ms R], born … 1955;
1.5 "[Mr S Judd]" means [Mr S Judd], born … 1950;
1.6 "Father" means [Mr Judd], born … 1981;
1.7 "[Ms T Judd]" means [Ms T Judd], born … 1950;
1.8 "Illicit substance" means any of the following:
1.8.1 Amphetamine;
1.8.2 Methamphetamine/Ecstasy;
1.8.3 Marijuana Metabolite; and/or
1.8.4 Cocaine and Metabolites;
1.9 "the child" means “the child B], born … 20I5;
1.10 "Mother" means [Ms Judd], born … 1982.
1.11"Parent or party" means the Husband and/or Wife.
THE COURT ORDERS:
2. the child shall live with the Mother.
3. Subject to Orders 4 and 5 hereof, the Mother and Father have equal shared parental responsibility for the child.
4. Parental responsibility shall be exercised in relation to medical decisions as follows:
4.1 Other than in the case of a medical emergency the Mother is to notify the Father in writing of any long term medical decision which she is intends to make, to provide the Father with the relevant information and to notify the Father of the details of any involved medical or related professional/s.
4.2 The Father is authorised to obtain information from the professional/s referred to in Order 4.1 hereof and to make his own appointments or enquiries with any such professional/s within 14 days of being notified by the Mother.
4.3 The Father shall, within 48 hours of attending the professional/s in accordance with Order 4.1, provide to the Mother his input in relation to the relevant issue and the Mother is then permitted to make the decision in relation to the child's medical treatment in collaboration with any relevant professional/s.
4.4 Failing the Father's compliance with Order 4.2 and or 4.3 the Mother may within 21 days of providing notification to the Father in accordance with Order 4.1 make long term medical decisions for the child;
5. Parental responsibility shall be exercised in relation to educational decisions as follows:
5.1 The Mother is to notify the Father in writing of any school at which she proposes to enrol the child, including providing the Father with the relevant information and to notify the Father of the details of the proposed enrolment date.
5.2 The Father is authorised to obtain information from the relevant school referred to in Order 5.1 and to make his own appointment with the said school, provided he does so within 28 days of being notified by the Mother pursuant to Order 5.1.
5.3 The Father shall, within 28 days of attending upon the school and or making enquiries of the school in accordance with Order 5.2, provide the Mother with his input in writing and the mother is then permitted to make the decision in relation to the child's enrolment.
5.4 Failing the Father's compliance with Orders 5.2 and or 5.3 the Mother may within 60 days of providing notification to the Father in accordance with Order 5.1 make decisions for the child's education.
6. the child shall spend time with the Father as follows:
Until 3 July 2019
6.1 For 2 periods each week and, failing agreement, on a 2 week cycle as follows:
Week 1:
6.1 1 From 9.00 am until 5.00 pm each Wednesday;
6.1.2 From 9.00 am until 5.00 pm each Friday;
Week 2:
6.1.3 From 9.00 am until 5.00 pm each Wednesday;
6.1.4 From 4pm Saturday until 4.00 pm Sunday.
6.2 For 3 periods of 2 nights as agreed by the parties and, failing agreement, in Week 2 of Order 6.1 from 4.00 pm on Friday until 4.00 pm on Sunday in April, July and October.
From 3 July 2019:
6.3 the child shall spend time with the Father as follows:
Week 1:
6.3.1 From 9.00 am until 5.00 pm each Wednesday;
6.3.2 From 9.00 until 5.00 pm each Friday;
Week 2:
6.3.3 From 9.00 am until 5.00 pm each Wednesday;
6.3.4 From 12pm Saturday until 9am on Monday morning.
Term 1, 2020
6.4 During school term commencing in the first week of Term 1 2020, the child shall spend time with the Father as follows:
6.4.1 Each Tuesday & Thursday from 3.00 pm until 7.00 pm;
6.4.2 Each alternate Saturday from 12.00 noon until 9am on Monday, with such time to commence from 3.00 pm each alternate Friday in the second week of Term 2 in that year;
6.4.3 For 3 nights in each of the end of term school holidays (other than Christmas) by agreement and, failing agreement:
6.4.3.1 in years ending in an odd number, for 4 days and 3 nights commencing at 11.00 am on the first Saturday of the holiday period and concluding at 11.00 am 4 days later;
6.4.3.2 in years ending in an even number, for 4 days and 3 nights commencing at 11.00 am on the second Saturday of the holiday period and concluding at 11.00 am 4 days later;
6.4.4 In the Christmas school holidays, week about as follows:
6.4.4.1 in years ending in an odd number commencing from 9.00 am on the first Saturday of the school holidays until 9:00 am the following Saturday; and
6.4.4.2 in years ending in an even number commencing from 9.00 am on the second Saturday of the school holidays until 9:00 am the following Saturday.
2022
6.5 Upon the child commencing Grade 2 or in 2022, whichever is the later, the child shall spend time with the Father during the school holidays periods as follows:
6.5. l in years ending in an odd number for 1 week commencing at 9.00 am on the first Saturday of the school holidays at the end of Terms l , 2 and 3 and concluding at 9.00 am on the second Saturday thereafter;
6.5.2 in years ending in an even number from 9.00 am on the second Saturday of the school holidays at the end of Terms 1, 2 and 3 and concluding at 9.00 am on the following Saturday;
6.5.3 In Christmas school holiday periods commencing in a year ending in an even number, for 3 weeks commencing at 9.00 am on the first Saturday of the school holiday period and concluding at 9.00 am on the fourth Saturday thereafter ;
6.5.4 In Christmas school holiday periods commencing in a year ending in an odd number for 3 weeks commencing at 9 am on the second Saturday in January.
Christmas Day
6.6 The time the child would spend with the parties but for this Order is suspended and the child shall spend time with the Mother and Father on Christmas Day as follows:
6.6.l in years ending in an even number, from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day with the Father and from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day with the Mother;
6.6.2 in years ending in an odd number, from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day with the Mother and from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day with the Father.
6.6.3 The parent receiving the child will collect the child from the other parent.
Special Occasions
7. The time the child shall spend time with the parties provided for by these Orders shall be suspended and the child shall spend time with the Mother and Father on special occasions as follows:
7.1 On the child's birthday where it occurs in years ending in an even number, from 3.00 pm on … until 3.00 pm on with the Father and from 3.00 pm on until 3.00 pm on … with the Mother;
7.2 On the child's birthday where it occurs in years ending in an odd number, from 3.00 pm on … until 3.00 pm on with the Mother and from 3.00 pm on until 3.00 pm on … with the Father.
7.3 On Mother's Day, the child shall spend time with the Mother from 5.00 pm on the Saturday immediately preceding Mother's Day until 5.00 pm on Mother's Day;
7.4 On Father's Day the child shall spend time with the Father from 5.00 pm on the Saturday immediately preceding Father's Day until 5.00 pm on Father's Day;
7.5 On the Mother's birthday if the child is not already spending time with the Mother, and the birthday falls on a weekend the child shall spend time with the Mother from 9.00 am until 5.00 pm and if the birthday falls on a weekday from 3pm or the conclusion of preschool or school until 7pm;
7.6 On the Father's birthday if the child is not already spending time with the Father and the birthday falls on a weekend the child shall spend time with the Father from 9.00 am until 5.00 pm and if the birthday falls on a weekday from 3pm or the conclusion of pre-school or school until 7pm.
Overseas Travel
8. Subject to these Orders from 2022 or otherwise by agreement the Mother and Father shall be permitted to take the child overseas during such periods as the child would ordinarily be spending time with that parent, provided such travel does not occur during days that the child is required to attend school and provided such travel is to a destination that is a signatory to the Hague Convention.
9. For the purpose of Order 8, the parent seeking to travel with the child shall provide to the other parent an itinerary, together with written details of the destination to which they are travelling with the child and the accommodation at which they are staying and contact details 28 days prior to the proposed departure date.
10. At times when the child is travelling, the travelling parent shall ensure that she makes telephone contact with the non-travelling parent each Wednesday and Saturday between 5.30 pm and 6.00 pm at the time that is local to the child.
Interstate Travel
11. In the event either party seeks to travel interstate with the child during the time the child would ordinarily be spending time with that party pursuant to these Orders, upon that party providing to the other party no less than 7 days notice of the intended travel including a copy of the itinerary the child shall be permitted to travel interstate with that party and provided such travel does not occur on a school day other than after school Friday.
Pick-ups and drop-offs
12. Subject to these Orders and unless a party is collecting the child from school/after school care or day care, the Mother shall deliver the child to the Father at the commencement of time spent and the Father shall deliver the child to the Mother at the conclusion of time spent.
Passport
13. The Mother shall be authorised by these Orders to do all acts and things and sign all documents necessary to apply for a passport for the child and including any renewal of a passport for the child.
14. [the child B] born … 2015 is permitted to travel internationally as provided by s11 (1) (b) (ii) at the Australian Passports Act 2005 and for this purpose the Mother is permitted to apply for an Australian passport for the said child [B] under the provisions of s11 (1) (b) (i) of the Australian Passports Act 2005.
15. Other than when [the child B] is travelling with the Father pursuant to these Orders, the passport of [the child B] shall remain in the possession of the Mother.
Random Drug Testing
16. The Mother and Father shall submit to random hair follicle testing to test for illicit substances as follows:
16.1 2017
16.1.1 Between 1 April and 8 April;
16.1.2 Between 1 June and 8 June;
16.1.3 Between 1 October and 8 October;
16.1.4 Between 1 December and 8 December;
16.2 2018
16.2.1 Between 1 April and 8 April;
16.2.2 Between 1 June and 8 June;
16.2.3 Between 1 October and 8 October;
16.2.4 Between 1 December and 8 December;
16.3 2019
16.3.l Between 1 June and 8 June;
16.3.2 Between 1 December and 8 December;
16.4 2020
16.4.1 Between 1 May and 8 May;
16.4.2 Between 1 November and 8 November;
with 4 cm of hair to be provided for the tests requested from 2017 to 2020 inclusive and 6 cm of hair to be provided for the tests requested from 2021 to 2027.
17. For the purpose of these Orders, any request for hair follicle testing shall be made by way of SMS or email to the other party and shall be undertaken within 72 hours of the request being made.
18. In the event the Mother or Father fail to comply with the aforementioned requests and/or fail to provide a test result to the other party within 21 days of the request and/or return a result that is positive to an illicit substance, the Mother or Father shall have liberty to urgently re-list the matter and, pending that re-listing, there shall be a suspension or variation of the child's time with the Mother or Father such that her time with that parent will be supervised by an agreed supervisor.
19. In the event that a party produces a Hair Follicle test result that is positive to an illicit substance that party may at their own cost and request undertake a second hair follicle test which result may be considered on any application to the Court made pursuant to Order 18 of these Orders.
20. The Mother and Father shall pay their own costs of any hair follicle testing undertaken at the request of the other party.
21. For the purpose of these Orders, the Mother and Father shall forthwith do all acts and things and sign all documents necessary to register with Tox Logic for the purpose of undertaking the hair follicle testing requested in accordance with these Orders.
Notation
A. Agreed supervisors shall mean and include [Mr S Judd], [Ms T Judd], [Ms Q], [Ms R] and or [Mr R].
B. For the purpose of these Orders unless specified otherwise, Week 1 commences on the first Monday following the date of the making of these Orders.
The father’s application
64. The final orders sought by the father were set out in exhibit H7 and were as follows:
Parental responsibility
1. That the parents have equal shared parental responsibility for making decisions about major long term issues about the care, welfare and development of [B] born … 2015 ("the child"), such decisions shall include issues of that nature about the child's:
(a) Current and future education (including any day care, preschool and school enrolment); and
(b) Religious and cultural upbringing; and
(c) Health; and
(d) Name; and
(e) Living arrangements if any change to those arrangements would make it significantly more difficult for her to spend time with a parent.
2. The mother shall have sole responsibility for making decision of a day-to-day nature for the child when the child is in her care.
3. The father shall have sole responsibility for making decisions of a day-to-day nature for [the child] when [the child] is in his care.
2017 to 1 July, 2019
4. From the date of these orders until and including 2 July 2018, the child shall:
(a) live with the mother, and
(b) except as otherwise agreed between the parties in writing, spend time with the father on the basis of a two-weekly cycle as follows:
(i) in Week 1:
(A) from 3pm Tuesday to 9am Thursday;
(B) from 9 am on Saturday to 5pm Sunday.
(ii) In Week 2:
(A) from 3pm Tuesday to 9am Thursday;
(c) spend such other time with the father as the parties may agree in writing.
5. From 3 July 2018 to the commencement of 1 July, 2019 [the child] shall:
(a) live with the mother; and
(b) except as otherwise agreed between the parties in writing, spend time with the father on the basis of a two-weekly cycle as follows:
(i) in Week 1:
(A) from 3pm Tuesday to 5pm on Wednesday;
(B) from 3pm Friday to 9am on Monday.
(ii) In Week 2:
(A) from 3pm Tuesday to 9am Thursday.
(c) spend such other time with the father as the parties may agree in writing.
1 July, 2019 to 1 January 2020
6. From 1 July, 2019 to the commencement of 1 January 2020, [the child] shall:
(a) live with the mother; and
(b) except as otherwise agreed between the parties in writing, spend time with the father on the basis of a two-weekly cycle as follows:
(i) in Week 1, from the conclusion of school on Thursday to 9am on
(ii) In Week 2, from the conclusion of school on Thursday to 9am Friday.
(c) spend such other time with the father as the parties may agree in writing.
From 1 January 2020 onwards
7. Commencing Term 1 of 2020 and thereafter, [the child] shall live with each parent on a week-about basis during school terms with changeover to occur through school on Mondays or 3 pm Mondays if Monday is not a school day.
Short School Term holidays
8. From Term 1 of 2020 during the short school term holidays period occurring at the end of Terms 1, 2 and 3, [the child] shall spend time with the parties as between them in writing but failing agreement, in
(a) even numbered years - with the father for the first half and with the mother in the second half;
(b) in odd numbered years -with the mother in the first half and with the father in the second half.
Christmas School holidays
9. Except as provided by any other order to the contrary, during the Christmas school holidays in 2020/21 and 2021/22, [the child] shall spend time with the parties as agreed between them in writing but failing agreement on a week about basis as follows:
(a) In even numbered years - with the father in the 1st, 3rd 5th and 7th (or part thereof should it occur) week and otherwise with the mother;
(b) In odd numbered years – with the mother in the 1st, 3rd, 5th and 7th (or part thereof should it occur) week and otherwise with the father.
10. Except as provided by any other order to the contrary and by reference to the interpretation provisions below, during the Christmas school holidays in 2022/23 and after that, the child shall spend time with the parties as agreed between them in writing but failing agreement:
(a) In even numbered years - with the father for the first half of the holiday period and otherwise with the mother; and
(b) In odd numbered years - with the mother for the first half of the holiday period and otherwise with the father
Interpretation of orders
11. In these Orders, “school day” means a day that the child is required to attend school in accordance with her school’s calendar. “Non-school day” means a day that the child is not required to attend school in accordance with her school’s calendar and, for abundant clarity, does not mean a day that the child is not attending school due to illness or for any other reason.
12. For the purpose of implementing the school holiday arrangements:
(a) school holidays commence at 3pm on the last Friday of the school term;
(b) school holidays conclude at 9am on Monday of the first week of the next school term;
(c) the mid-point of the holiday periods occurring at the end of Terms 1, 2 and 3 shall be taken to be 5pm on the middle Saturday of the period;
(d) changeover during the Christmas school holiday periods in 2020/21 and 2021/22 shall occur on 5pm each Friday.
(e) changeover during the Christmas school holiday periods in 2022/23 and thereafter shall occur at 5pm on the first Friday after New Years Day, with such day being deemed to be the mid-point of the school holiday period.
Special occasions
13. Despite any other order to the contrary, [the child] shall spend time with each of her parents on special occasions as follows:
(a) On [the child's] birthday, from 10am to 2pm with the parent with whom she does not otherwise wake up with;
(b) With the mother on the mother's birthday (…) from after school to 7pm if it falls on a school day or from 9am to 7pm if the birthday falls on a non-school day;
(c) With the father on the father's birthday (…) from after school to 7pm if it falls on a school day or from 9am to 7pm if the birthday falls on a non-school day;
(d) With the mother from 9am to 7pm each Mother's Day;
(e) With the father from 9am to 7pm each Father's Day;
(f) In odd-numbered years, spend from:
(i) 3pm on Christmas Eve to 3pm on Christmas Day with the mother;
(ii) 3pm on Christmas Day to 3pm on Boxing Day with the father.
(g) In even-numbered years, spend from:
(i) 3pm on Christmas Eve to 3pm on Christmas Day with the father;
(ii) 3pm on Christmas Day to 3pm on Boxing Day with the mother.
(h) In odd-numbered years spend from:
(i) 5pm Easter Thursday to 5pm Easter Saturday with the mother;
(ii) 5pm Easter Saturday to 5pm Easter Monday with the father;
(i) In even-numbered years spend from:
(i) 5pm Easter Thursday to 5pm Easter Saturday with the father;
(ii) 5pm Easter Saturday to 5pm Easter Monday with the mother;
Changeover
14. Except where changeover occurs through preschool, school or an extracurricular activity, or as otherwise agreed between the parties in writing (which may include SMS text):
(a) Other than for the purpose of Christmas Eve, Christmas Day and Boxing Day, the mother shall deliver the child to the father's residence at the commencement of [the child's] time with him, and the father shall return [the child] to the mother's residence at the conclusion of the time.
(b) For the purpose of effecting changeover on Christmas Eve, Christmas Day and Boxing Day:
(i) The mother shall be responsible for the child's transport on Christmas Eve and Boxing Day in odd-numbered years and on Christmas Day in even-numbered years; and
(ii) The father shall be responsible for the child's transport on Christmas Day in odd numbered years and on Christmas Eve and Boxing Day in even-numbered years.
15. Each party is restrained from filming, photographing or otherwise audio or video recording change-overs and must do all acts and things to prevent any other person from doing so
Communication
16. Each parent will facilitate all reasonable requests made by [the child] to communicate with the other parent by telephone at times when [the child] is in their care.
17. In these orders, communication via SMS text message constitutes written communication.
Travel and passport
18. Each party shall do all acts and things and sign all necessary documents to ensure that [the child] has a current Australian passport, with the cost of any passport renewal to be borne equally by the parties.
19. Each party is permitted to travel with [the child] outside the Commonwealth of Australia at times when [the child] is in that party's care pursuant to these orders (or as otherwise agreed in writing between the parties) provided that:
(a) Such travel does not occur on days that [the child] is required to attend school, unless the other party and the school consents to [the child] being absent from school;
(b) The ultimate destination of travel is a country that is signatory to the Hague Convention (unless the other parent provides written consent to [the child] travelling to a non-signatory country);
(c) The travelling party gives the non-travelling party, except in case of emergency (in which case such notice shall be as soon as reasonably practicable) not less than 28 day’s notice of the intended travel together with:
(i) a copy of [the child’s] return airline or voyage ticket;
(ii) A copy of the travel itinerary including the names and contact details of the accommodation in which [the child] will be staying;
(iii) A telephone number on which the travelling parent can be contacted at all reasonable times while overseas.
20. Subject to the next order, [the child's] passport shall remain in the custody of the mother.
21. When the father is the travelling parent, the mother shall provide [the child's] passport to him as reasonably requested by him prior to the travel and he shall return the passport to the mother not less than 72 hours after [the child's] return to Australia.
22. Each party is permitted to travel with the child outside the State of New South Wales at times when [the child] is in that party's care pursuant to these orders (or as otherwise agreed in writing between the parties) provided that:
(a) Such travel does not occur on days that [the child] is required to attend school, unless the other party and the school consents to [the child] being absent from school;
(b) The travelling party gives the non-travelling party not less than 72 hours' notice of the intended travel together with:
(i) If air travel is involved, a copy of [the child's] return airline ticket;
(ii) A copy of the travel itinerary including the names and contact details of the accommodation in which [the child] will be staying;
(iii) A telephone number on which the travelling parent can be contacted at all reasonable times while interstate.
23. At times when the child is travelling, the travelling parent shall ensure that she makes telephone contact with the non-travelling parent each Wednesday and Sunday between 5.30 and 6pm at the time that is local to the child.
Other matters
24. That each parent is to ensure that the other parent is kept informed as soon as is reasonably practicable of:
(a) Any serious medical problems or illnesses suffered by [the child], including the details of any hospital or medical centre to which she has been taken in the case of an emergency;
(b) Any medication that has been prescribed for [the child] that needs to be taken during the time she is in the care of the other parent;
(c) Any appointments with any specialist medical doctor, dentist or other health professional and the name and contact details of such professional;
(d) Unless the appointment was attended by both parents, the outcome of any attendance by [the child] on any medical or other health professional, including copies of any m reports provided by that professional, within 3 days of receipt of such report;
(e) Any changes to their residential address and other contact details
(f) Any other matter relevant to the welfare of [the child].
25. That each of the parent is permitted to liaise directly with [the child's] day-care, preschool, school, sporting bodies and/or extra-curricular organisation to obtain any necessary information about her progress and that both parents are to do all things necessary to authorise the school, sporting bodies and/or other organisations to release such information as requested by the other parent to the extent permitted by law.
26. That both parents shall authorities to any day-care, preschool or school attended by [the child] to provide to both parents copies of her reports, newsletters, photograph order forms and invitations to attend any activities which parents are invited to attend AND for both parents to be named on all day care, preschool and school and extracurricular records as emergency contacts.
27. Each parent shall do all acts and things to authorise any medical practitioner, dentist, counsellor or other health professional who treats [the child] to provide information to the other parent upon request by the other parent, to the extent permitted by law.
28. Each parent is permitted to attend parent-teacher interviews, concerts, carnivals and other events involving [the child] at day-care, preschool or school, or in the context of extra-curricular activities to which parents are ordinarily invited, even if that event occurs at a time when the child is in the care of the other parent pursuant to these orders.
29. Each party is restrained from criticising or denigrating the other parent or member of that parent's family or household in the presence or hearing of [the child].
Drug testing
30. Each party is restrained from consuming any form of illicit substance or prescription medicine which has not been prescribed to them by a qualified medical practitioner in the 72 hours prior to [the child] being in their care and at any time that [the child] is in their care.
31. Each party is restrained from consuming alcohol to a level that causes them to exceed a blood alcohol reading greater than 0.05mmol/dl in the 24 hours prior to the child being in their care and at any time while the child is in their care.
32. The Independent Children's Lawyer shall remain appointed to this matter for 12 months after the making of these Orders.
33. The father and mother shall forthwith upon a request being made by the Independent Children's Lawyer, such request being made on not more than one occasion every two months period, for a period of twelve (12) months following the making of these Orders, do all acts and things and sign all documents necessary to facilitate chain of custody hair follicle testing by Occupational Toxicology Services Pty Ltd (now known as Tox Logic) for the purpose of testing for:
(a) Amphetamine, methamphetamine, MOMA, ecstasy;
(b) Marijuana and its metabolites;
(c) Cocaine and its metabolites; and
(d) Opiates.
34. The father and mother shall each refrain from taking any step which may interfere with the provision of hair samples or to interfere with the test results including taking any step to shave, cut, shorten, colour, bleach any scalp or body hair and the mother and father shall each be restrained from cutting their head hair shorter than 4cm in length.
35. Notwithstanding the preceding order, the mother is permitted to undertake a half head of foils/hair colouring, leaving the underneath unaffected each 8 weeks.
36. The father and mother shall within 24 hours of a request being made by the Independent Children's Lawyer, such request being made on not more than one occasion every month, for a period of twelve (12) months following the making of these Orders do all acts and things and sign all documents necessary to facilitate supervised and chain of custody urinalysis (per AS/NZS 4308:2008 Procedures for Specimen Collection and the Detection and Quantification of Drugs of Abuse in Urine) for the purpose of testing for:
(a) Amphetamine, methamphetamine, MDMA, ecstasy;
(b) Marijuana and its metabolites;
(c) Cocaine and its metabolites;
(d) Opiates.
37. The father and mother shall within 24 hours of a request being made by the Independent Children's Lawyer, such request being made on not more than one occasion every month, for a period of twelve (12) months following the making of these Orders do all acts and things and sign all documents necessary to facilitate and undergo a blood test to measure Carbohydrate Deficient Transferrin (CDT) levels in their blood and such testing shall be undertaken under chain of custody and each party shall, at the time of collection, provide photographic identification which shall be verified by the collection centre.
38. The parties shall direct and authorise ToxLogic and any other pathology service engaged by them to give effect to these orders to provide copies of test results forthwith upon such results becoming available to:
(a) the Independent Children's Lawyer (Donna Smith, Family Law Litigation Section, …); and
(b) the solicitor for the father, namely Doolan Wagner Family Lawyers …; and
(c) the solicitor for the mother, namely Gordon & Barry Lawyers ….
39. The mother and father shall each be responsible for the cost of any drug testing undertaken by them pursuant to these orders.
40. The ICL has liberty to relist the matter by contacting the Associate of Justice McClelland on 24 hours' notice.
The Independent Children’s Lawyer’s proposed orders
65. The orders proposed by the Independent Children’s Lawyers (“ICL”) were set out in proposed minute of order dated 24 May 2017 (“Exhibit ICL 3") and were as follows:
Parental responsibility
1. The parents have equal shared parental responsibility for making decisions about major long term issues about the care, welfare and development of [B] born 2015 ("the child").
Residence and 'spend time'
2. the child shall live with the mother.
3. Except as otherwise agreed between the parties in writing, the child shall spend time with the father as follows:
(a) from the date of these orders until and including 2 January 2018, on the basis of the following two-week cycle:
(i) in Week 1:
(A) from 9am to 5pm on Tuesday;
(B) from 9 am on Saturday to 5pm Sunday.
(ii) In Week 2:
(A) from 3pm on Tuesday to 9am on Thursday ;
(b) from 2018 until and including 2 January 2019, on the basis of the following two-week cycle:
(i) in Week 1:
(A) from 9am to 5pm on Tuesday; and
(B) from 9am on Saturday to 9am on Monday.
(ii) In Week 2:
(A) from 3pm on Tuesday to 9am on Thursday.
(c) from 2019 until and including 2 January 2020, from 9am on Sunday to 9am on Wednesday in each week.
(d) from 2020 and thereafter on the basis of the following two-week cycle:
(i) In Week 1: from the conclusion of school on Thursday to the commencement of school on Monday (or if Monday is a non-school day, to 5pm on that day);
(ii) In Week 2: from the conclusion of school on Wednesday to the commencement of school on Friday.
Short School Term holidays
4. From Term 1 of 2020 during the short school term holidays period occurring at the end of Terms 1, 2 and 3, the child shall spend time with the parties as between them in writing but failing agreement, in
(a) even numbered years - with the father for the first half and with the mother in the second half;
(b) in odd numbered years - with the mother in the first half and with the father in the second half.
Christmas School holidays
5. Except as provided by any other order to the contrary, during the Christmas school holidays in 2020/21 and 2021/22, the child shall spend time with the parties as agreed between them in writing but failing agreement on a week about basis as follows:
(a) In even numbered years - with the father in the 1st , 3rd, 5th and 7th (or part thereof should it occur) week and otherwise with the mother;
(b) In odd numbered years -with the mother in the 1st , 3rd, 5th and 7th (or part thereof should it occur) week and otherwise with the father.
6. Except as provided by any other order to the contrary and by reference to the interpretation provisions below, during the Christmas school holidays in 2022/23 and after that, the child shall spend time with the parties as agreed between them in writing but failing agreement:
(a) In even numbered years - with the father for the first half of the holiday period and otherwise with the mother; and
(b) In odd numbered years - with the mother for the first half of the holiday period and otherwise with the father.
Interpretation of orders
7. In these Orders, "school day" means a day that the child is required to attend school in accordance with her school's calendar. "Non school day" means a day that the child is not required to attend school in accordance with her school's calendar and, for abundant clarity, does not mean a day that the child is not attending school due to illness or for any other reason.
8. For the purpose of implementing the school holiday arrangements:
(a) school holidays commence at 3pm on the last Friday of the school term;
(b) school holidays conclude at 9am on Monday of the first week of the next school term;
(c) the mid-point of the holiday periods occurring at the end of Terms 1, 2 and 3 shall be taken to be 5pm on the middle Saturday of the period;
(d) changeover during the Christmas school holiday periods in 2020/21 and 2021/22 shall occur on 5pm each Friday.
(e) changeover during the Christmas school holiday periods in 2022/23 and thereafter shall occur at 5pm on the first Friday after New Years Day, with such day being deemed to be the mid-point of the school holiday period.
Special occasions
9. Despite any other order to the contrary, the child shall spend time with each of her parents on special occasions as follows:
(a) On the child's birthday, from 10am to 2pm with the parent with whom she is not otherwise living;
(b) With the mother on the mother's birthday (…) from after school to 7pm if it falls on a school day or from 9am to 7pm if the birthday falls on a non-school day;
(c) With the father on the father's birthday (…) from after school to 7pm if it falls on a school day or from 9am to 7pm if the birthday falls on a non-school day;
(d) With the mother from 9am to 7pm each Mother's Day;
(e) With the father from 9am to 7pm each Father's Day;
(f) In odd-numbered years, spend from:
(i) 3pm on Christmas Eve to 3pm on Christmas Day with the mother;
(ii) 3pm on Christmas Day to 3pm on Boxing Day with the father.
(g) In even-numbered years, spend from:
(i) 3pm on Christmas Eve to 3pm on Christmas Day with the father;
(ii) 3pm on Christmas Day to 3pm on Boxing Day with the mother.
Changeover
10. Except where changeover occurs through preschool, school or an extracurricular activity, or as otherwise agreed between the parties in writing (which may include SMS text):
(a) Other than for the purpose of Christmas Eve, Christmas Day and Boxing Day, the mother shall deliver the child to the father's residence at the commencement of the child's time with him, and the father shall return the child to the mother's residence at the conclusion of the time.
(b) For the purpose of effecting changeover on Christmas Eve, Christmas Day and Boxing Day:
(i) The mother shall be responsible for the child's transport on Christmas Eve and Boxing Day in odd-numbered years and on Christmas Day in even numbered years; and
(ii) The father shall be responsible for the child's transport on Christmas Day in odd-numbered years and on Christmas Eve and Boxing Day in even numbered years.
11. Each party is restrained from filming, photographing or otherwise audio or video recording change-overs and must do all acts and things to prevent any other person from doing so.
Communication
12. Each parent will facilitate all reasonable requests made by the child to communicate with the other parent by telephone at times when the child is in their care.
13. In these orders, communication via SMS text message constitutes written communication.
Travel and passport
14. Each party shall do all acts and things and sign all necessary documents to ensure that the child has a current Australian passport, with the cost of any passport renewal to be borne equally by the parties.
15. Each party is permitted to travel with the child outside the Commonwealth of Australia at times when the child is in that party's care pursuant to these orders (or as otherwise agreed in writing between the parties) provided that:
(a) Such travel does not occur on days that the child is required to attend school, unless the other party and the school consents to the child being absent from school;
(b) The ultimate destination of travel is a country that is signatory to the Hague Convention (unless the other parent provides written consent to the child travelling to a non-signatory country);
(c) The travelling party gives the non-travelling party not less than 28 days notice of the intended travel together with:
(i) A copy of the child's return airline or voyage ticket;
235. I also accept the validity of the submission of the ICL that it was irresponsible of the mother not to have provided a complete history to Dr BB, who was a cardiologist to whom she had been referred during the course of her pregnancy, in June 2014, in respect to a possible heart murmur. Specifically, the mother understated the extent to which she had consumed alcohol and she did not advise Dr BB of her drug use.
Issues of family violence
Any family violence involving a child or a member of the child’s family
236. Section 60CC(3)(j) requires the Court to consider any family violence involving a child or a member of the child’s family.
237. I have dealt with the issue of family violence in determining that it is not appropriate for the Court to make an order for equal shared parental responsibility in this matter.
238. Dr X expressed the view that:
In the current situation the contested claims about domestic violence do raise concerns about the impact of shared care on the stability of routines for [the child], and capacity for cooperative parenting. Such concerns imply a need for caution in considering the proposals of the parents.
239. I have previously noted Dr X’s view that ongoing conflict between the parents and hostile interactions are likely to occur in the future. I agree that, insofar as it is practicable, any parenting arrangement should minimise the extent to which the parents come into contact with each other. Accordingly, where possible, the orders will provide for changeover to occur at preschool and school.
240. That arrangement is easier to achieve after the child commences school when the orders will provide for the child to stay with the father for one period of time each week and those changeovers will, during the school term, occur at the child’s school.
Whether any family violence order has or continues to apply
241. Section 60CC(3)(k) requires the Court to consider any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
242. There was a controversy between the parties as to whether the Court should have regard to this consideration and if so what evidence is admissible. In the circumstances I have found it unnecessary to give consideration to this matter.
Effect of change
243. Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
244. I have previously set out the child’s current living arrangements and the amount of time that she spends with the father.
245. The father proposes that the child’s time with him be increased to the point where there is an equal shared care arrangement between the parents. In that respect Dr X stated:
The desire of [Mr Judd] to have equal shared time with the child in the presence of high parental conflict is problematic. Generally speaking it is considered that high parental conflict is not conducive to a child being settled and developing well in equal shares contact. The parents are unable to resolve the conflict and I am not in support of the system that would allow for the child to have equal shared time particularly at her age in the context of such conflict.
246. Dr X has, in my view, accurately described the parties’ relationship as one involving high parental conflict. I accept his opinion that an arrangement whereby the child spends equal shared time with each of the parents would be inappropriate on the facts of this case.
Practical difficulty of implementation
247. Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
248. This is not a significant issue in this case as the parties live close by to each other. The evidence provided by the paternal grandfather is that he and his wife intend to move to Suburb CC which will be slightly closer to where the father resides. As noted, the mother intends to continue living with the maternal grandparents until the child reaches school age.
Avoiding further proceedings
249. Section 60CC(3)(l) requires the Court to consider 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.
250. The orders that I make for the parties to undergo a program of drug testing with a positive test resulting in the child’s time with the positively tested parent being the subject of supervision pending further order of the Court. This has the potential to result in further litigation.
251. Nevertheless, for reasons that I discuss below, on the facts of this case, that regime is necessary.
Other relevant matters
252. Section 60CC(3)(m) requires the Court to consider any other facts or circumstances the Court considers relevant.
253. In terms of other relevant matters, a Facebook post published by the Father on 16 August, 2013 raises a serious concern regarding the father’s attitude to taking illicit substances. In the course of quite a lengthy posting the father stated:
Hold the boss to ransom with the tape recording you got last night of him hitting you up for a root like the sneaky cheating cheapskate asshole he is, get your ass on a freedom bird to [Europe] and watch that weight fall off during your 4 week European discovery tour of this magical city and its cheap drugs, red light porn and the Heineken Museum tour – which you can enjoy in all its glory under the influence of a plethora of high quality substances of your liking or choice at a more than reasonable price, which will ensure that the only weight loss related barriers you’re going to hit on this diet regime is the rapidly dwindling buffet of mind altering party substances that you’re very much enjoying ina (sic) country where legality is no longer a case of being treated like a child and being able to make decisions and choices for yourself on what you do with your own body after facing the fact that alcohol is equally or far more damaging to your body and society today as the gram of pablo escobars vintage reserve you just rammed in your sinuses.
254. It is of note that, in answer to a question from senior counsel for the mother, the father denied that he was under the influence of drugs when he published that Facebook post and further asserted that he was not in Europe at the time.
255. A lengthy Facebook post by the father, dated 26 July 2014, included the following passages:
I’ve summarised the multi-hour marathon on masturbating session that some might know more commonly as the “Drug Wank”. Now, not even I can fully justify why exactly it is that there was a requirement for this to be analysed in such accuracy, but enjoy reading it you wankers!
So, the “Drug Wank” for a guy his high isn’t really about having an orgasm is getting it out of the way like it is when you’re sober. It basically goes like this…
You start using, get aroused, put on some porn and get so turned on that you don’t want to cum right away. You slow down a bit, watch more porn, watch different porn. The sensation starts to dull it and without seriously picking up the pace you are not going to orgasm. After enough time goes by while you are jerking it, the hot girl you were watching isn’t really enough to get you to finish so you turn to something kinkier. After a while you end up watching a donkey in a Superman cape slapping a chick in the face with his 3 foot dick and finally it is just kinky enough to make you want to finish.
256. The father acknowledged that the Facebook post published on 26 July 2014 was during the time that his wife was pregnant with the child. The father stated, however, that he did not publish it as his work but rather plagiarised the content from a comedian Jim Jefferies.
257. When asked by senior counsel for the mother whether he found the publication to be offensive the father stated “No, I don’t. Obviously that’s why I put it there”.
258. When further asked by senior counsel for the mother whether he found the Facebook Post “degrading of women” the father replied “No I don’t. It depends how you look at it. Some people look at one way. You know, some people find it funny, some people don’t”.
259. When asked to explain why he did not consider the Facebook post to be offensive he stated “I’ve just got a different sense of humour, I guess”.
260. In respect to a question from the ICL as to whether the Facebook posts reflected that the father doesn’t have a sufficiently developed or mature attitude towards women or females, Dr X replied as follows:
I already said earlier that the father holds a grudge. I think that he never really got over the occasion in – I think it was 2005 when he found a girlfriend with a – another man. He maintains quite negative attitudes towards the mother in regards to his belief about her sexual impropriety. I think he has a great deal of difficulty in his adjustment to and his attitudes towards women in general, but particularly people who form a relationship with him. But, I mean, perfectly honest, I mean, I imagine at least some of that is fuelled by the cocaine he was using at the time.
261. It is to be noted that the father denied using cocaine at the time he posted the Facebook post on 16 August 2013.
262. When specifically asked whether the Facebook post reflected on the father’s ability to care for a female child Dr X stated that he “really really thought about this” but concluded that the child has a “wonderful relationship” with both parents and that she is going to need both her parents and both her parents to be active and meaningful in her life”.
263. Dr X also expressed the hope that, over time, the father will mature and that “he will get his act together more”.
264. The fact that Dr X “really really” thought about the Facebook posts indicates that he had a level of concern about the conduct. Ultimately, however, Dr X dismissed the father’s conduct as a reflection of the father’s immaturity and that he largely dismissed the significance of the conduct as “a drug rant.” In that respect Dr X said:
My thought (sic) at the time was that it was pretty much a drug rant, it was disrespectful, it was in line with the kind of behaviour that he seems to have demonstrated particularly in the interview with me. I didn’t see anything more into it than that.
265. I do not accept Dr X’s essentially dismissive characterisation of the father’s conduct. As I will subsequently explain, the father’s conduct in publishing the Facebook posts and his failure to acknowledge their inappropriateness is a consideration that impacts upon my decision as to the amount of time that his daughter should spend with him. This concern, however, needs to be balanced against the advice of Dr X that the orders should provide for the child to continue to have good levels of involvement with other members of the paternal family.
Evaluation of section 60CC considerations and structure of orders
266. I have taken into account all of the section 60CC considerations to which I have referred. In terms of the orders that I make, the most significant considerations can be summarised as:
• The history of both parent’s substance abuse and the need to address the parties’ potential to recommence drug use.
• The history of domestic violence.
• The lack of trust between the parties.
• The level of conflict between the parties - past and continuing.
• The parties’ poor communication.
• The father’s tendency to hold a grudge.
• The father’s limited capacity to emotionally self-regulate including in respect to controlling his anger.
• The father’s tendency to be obsessive in pursuing a grievance.
• The immaturity of both parties, more so in the case of the father.
267. The considerations to which I have referred satisfy me that the child should live with the mother and spend time with the father. Both parties and the ICL were in agreement that the amount of time that the child spends with the father should be increased in stages. The considerations to which I have referred are relevant in determining how much time the child should spend with the father at each stage of the increase in time as well as the timing of those increases.
268. There is, with respect, substance in the submission of senior counsel for the father that the parties in this matter “are people who undoubtedly had a dysfunctional and problematic relationship that increasingly was attended by misbehaviour, to put it neutrally, between each of them up until the time of separation”.
269. There is also substance in the submission by senior counsel for the father that instances of controlling conduct engaged in by both parties constitutes family violence within the definition of section 4AB of the Act.
270. In that context, Dr X stated that both parties are controlling of the other and “contribute to high parental conflict”. I accept that to be the case.
271. However, it is unrealistic to dismiss or overlook the acts of family violence committed by the father as simply being part of a pattern of misbehaviour engaged in by each of the parties. While the acts of family violence engaged in by the father, to which I have referred, did not result in the mother sustaining physical injury, they nonetheless raise serious concerns regarding the extent to which the father was prepared to submit the mother to controlling and coercive behaviour that can reasonably be inferred to have been intended to threaten and intimidate her.
272. Further, it is not possible to simply dismiss the father’s conduct as inappropriate or misbehaviour that occurred during the course of the parties’ dysfunctional relationship when the parties lived living together. The clearest example that the father’s conduct presents as an ongoing concern is the manner in which he snatched the communication book from the mother when he was in Dr X’s waiting room at the conclusion of the parties’ interviews with Dr X. At the very time one would have thought that the father would have been inclined to put his best foot forward, he engaged in an aggressive act against the mother.
273. I note and accept the opinion of Dr X that the occurrence of family violence is likely to prolong post separation family conflict. I also note that, at paragraph 140 of his report, Dr X stated that “family violence is a strong mitigating factor against the presumption of shared care”.
274. Dr X noted that there is a dispute among social scientists “about the advisability of children spending block time (overnight) with each (separated) parent under the age of four in the situation of high parent conflict”. Dr X noted, however, that “for a significant minority of children, high parental conflict is associated with worse outcomes on overnight care under the age of four”.
275. Dr X acknowledged that while the child “possesses some characteristics that might likely protect her from the impacts of family conflict”, that it is “essentially unpredictable to indicate whether [the child] would be harmed by the high family conflict in the current situation if some version of shared care were instituted”. In a similar context, in his oral evidence, Dr X acknowledged that there is a “real unpredictability about all of the circumstances for [the child] in the dynamics presented to this court” in this case.
276. In the context of the conflict that exists between the parents, Dr X stated that the father presents with a “domineering manner” and has “long held obsessional suspicions” about the mother. Dr X further stated that the father “presents as a somewhat forceful man who has had a history of dysfunctional behaviour within his relationship”.
277. In terms of how the father’s presentation and attitude potentially impact upon parenting arrangements Dr X stated: “[Mr Judd’s] surly approach to his ex-partner is a problem that he needs to take responsibility for and manage”. Dr X further stated that “it represents a potential stumbling block to him obtaining the level of contact he wants and is in [the child’s] interest”.
278. Having regard to the opinion of Dr X, it is my view that, as result of the level of conflict in the context of the father’s aggressive presentation, it is not appropriate for there to be a shared care arrangement in this matter.
279. In considering this matter, I respectfully disagree with the submission made by senior counsel for the father that “this isn’t a risk case”. It most certainly is. The history of the parent’s use of illicit substances is a grave concern. That concern is magnified by the false evidence each of the parents has given to the Court, the single expert, medical practitioners, and to their parents. Dr X has expressed the view that it is probable each parent will resume using drugs after these proceedings are concluded. In summary, those facts point to a clear, present and future danger of the child being exposed to their parents drug use and hence an unacceptable risk of neglect as well as physical and psychological harm.
280. I do not accept the submission made on behalf of the father that that risk can be mitigated by a regime of drug testing alone. Clearly there will be a delay until the results of any drug test are available. In the meantime, the child will be exposed to the risks associated with being in the company of a parent who is using a drug which, on the basis of each party’s history, could include methamphetamine. This is in a context where, at approximately 2 and a half years of age, the child is not in a position to report inappropriate conduct on the part of each parent, nor is she capable of engaging in any self-protective strategies.
281. In that context, it is relevant that the father currently resides on his own and has no plans for another adult to live with him. The father’s parents visit from Queensland approximately every two weeks. The paternal grandmother acknowledges that visiting on a weekly basis is not feasible. In those circumstances, there is no other responsible adult living in the father’s household who can monitor whether the father resumes the consumption of illicit substances or detect any erratic behaviour arising from drug use.
282. This is in circumstances where the father is self-employed and the demands of his business as a snake catcher determine whether he comes into contact with contractors, who he engages to assist him during busier times or when he is unavailable.
283. I accept that the father receives at least fortnightly visits from his parents who currently reside in Queensland. I also accept that he has various friends who live in close proximity. However, the reality is that the father’s arrangements are not such that it is not necessary for him to regularly interact with other adults. This is a particular concern in the context of Dr X’s prediction that it is likely that the parties will resume the use of illicit substances. I agree it is likely that will occur.
284. This is a particular concern where due to her age the child is not in position to report irrational or erratic behaviour that may be associated with drug use.
285. In terms of risks associated with the mother resuming use of illicit substances it is relevant that the mother currently resides with her parents and intends to do so until the child reaches school age in 2020. In those circumstances, other than for periods when the paternal grandparents are away, there will be another responsible adult who is present in the household. I acknowledge the validity of concerns expressed by senior counsel for the father that the maternal grandparents do not realistically acknowledge the extent of their daughter’s drug use and the possibility of her re-engaging in that use. Nevertheless, on those occasions that they are present in the household they would be in a position to intervene in the event of the mother becoming incapable of properly caring for the child as result of drug use.
286. Accordingly, I am of the opinion that the current parenting arrangements whereby the child spends two separate daytime periods with the father but only one overnight visit should continue for a period of time.
287. In determining what that period should be, a relevant consideration is the fact that the orders will require the parents to undergo regular drug screening including random drug testing at the request of the other party.
288. Delaying transition to the second stage increase until the child reaches three and a half years of age will provide for a period of time during which both parents will undergo drug testing. In that respect, Dr X noted that if a person, who has previously consumed illicit substances, remains abstinent for a period of two years, then there is an increased possibility that that person will remain abstinent for a period of five years.
289. If the father’s evidence is accepted, that the last time he consumed an illicit substance was in early 2016, then it will be necessary to confirm that the husband remains abstinent until early 2018 in order to minimise the risk of the father taking illicit substances in the future.
290. Accordingly, it is my view that the existing parenting arrangements should continue until the child reaches the age of three and a half years of age which will be on 3 July 2018. This is also consistent with the period recommended by Dr X in his report as being the length of time before the child should progress to the second stage of parenting arrangements. I disagree with Dr X’s oral evidence that consideration could be given to bringing this period forward by six to 12 months. I am of that view because it would not provide a sufficient opportunity for each party to submit to the drug tests to which I have referred.
291. All parties agreed that there should be a further staged progression in the amount of time that the child spends with the father. In that respect Dr X stated that:
A parent does not need to have equal time to develop strong attachments. There is a need to consider a step up regime with the child, probably unfolding over the next four years until she is school ready.
292. In considering how that time should be structured and progressed, Dr X expressed the view that “children under the age of four should not go more than four days without spending time with one or the other parent”.
293. The challenge in respect to the second stage of progression is to minimise the frequency of changeover while, at the same time, ensuring that the child spends regular time with each of her parents. The orders I make will therefore provide for the second stage increase to occur when the child is three and a half years of age on 3 July 2018. That period will last until the child turns four years of age on 2019. During that period, the child will spend time with the father as follows: in week one from 9.00am until 5.00pm each Wednesday and from 9.00am until 5.00pm each Friday; and in week two, from 9.00am until 5.00pm each Wednesday and from 12.00pm Saturday until 9.00am on Monday morning.
294. The parties agreed that there should be a further increase in the amount of time that the child spends with the father when she reaches school age. Dr X was of the view that, at that point, an appropriate parenting arrangement would be one where she lives with the mother and spends six nights per fortnight with the father. Under cross-examination, Dr X conceded that his recommendation in that respect was based on his expectation that “in 18 months … these parties will be able to effectively communicate in relation to the sharing of parenting” of the child. This was in the context where he expected that both parents would also mature in the period.
295. With respect to Dr X, I do not share his optimism that the parties will be able to effectively communicate or sufficiently mature in the next 18 month period. In attempting to predict the future, one cannot ignore past conduct. The history of drug use by both parties is a major concern in that respect. The father’s past conduct is a particular concern. In that respect I refer to the following:
• The father supplying methamphetamine.
• The father’s failure, on two separate occasions, to disclose his history of drug use in the course of applying for a licence. This occurred even though his history of drug use was relevant to an important matter of public safety namely whether he obtained a licence.
• The father cut his hair short in May 2016 to avoid the detection of his use of a drug in January 2016. That drug was probably methamphetamine.
• The incidents of family violence to which I have referred.
• The publication of the inappropriate Facebook posts to which I have referred.
296. In respect to that last point, I respectfully agree with the submission of senior counsel for the mother that the Facebook post of August 2015, in particular, is “grossly disrespectful” of women and raises a question regarding the capacity of the father to emotionally regulate his conduct.
297. The orders will increase the amount of time that the child spends with the father. Of further relevance, in limiting the child’s time with the father to four nights per fortnight, is what Dr X referred to as the father’s pugnacious character trait. In that respect the evidence satisfies me that the father is as described by Dr X as “a domineering and hostile man”.
298. I further note the view of Dr X that:
In the current situation where there are high levels of anger, especially experienced by [Mr Judd] towards Mrs [Judd], concerns arise as to the impact of such anger on the relationship between the child and her parents once she gets old enough to discern it.
299. I have earlier noted my concern regarding the conduct of the father in Dr X’s waiting room in snatching the communication book from the mother. I agree with senior counsel for the father that there “there is no suggestion that this anger and hostility has subsided. There is no suggestion that the father has been able to engage in any process to modulate or regulate” his outward display of anger.
300. There is, in those circumstances, an unacceptable risk to the child. Dr X cautioned that if the child is exposed to the father’s anger it will have an adverse impact on the child:
Finally in respect to determining the amount of time that [the child] should spend with the father I have had regard to the fact that the parents’ current and future capacity to communicate with each other is poor.
301. Despite moments of cooperation as reflected in the communication book, the parties’ relationship can be characterised as one where there is a high level of conflict. Dr X expressed the view that in those circumstances “the likely shared care regime that is in [the child’s] interests [is] increasingly difficult”. I accept and agree with Dr X’s opinion in that respect.
302. Having regard to these matters, the orders that I make will provide for the child to spend five nights per fortnight with her father rather than six nights as recommended by Dr X. To avoid uncertainty as to the date of the commencement of school term in 2020, the proposal by the ICL for that final stage to occur on the child’s fifth birthday is sensible. At that time, the orders will provide for an increase in the amount of time that the child spends with the father to a cycle of five days per fortnight with a combination of Friday to Monday during one week and two midweek nights during the second week.
303. Both parties recognise the appropriateness of the child spending additional time with the other parent on special occasions. The parties’ proposed orders were not dissimilar. I have adopted the proposals of the ICL as reflecting the substance of each parties’ proposals in respect to special occasions.
304. In respect to school holiday time, Dr X was asked by the ICL whether he felt the child could cope with week-about time during the short school holidays from the time she starts school. Dr X replied that he was of the opinion that the child could probably cope with that arrangement.
305. In terms of the longer school holiday at Christmas time, the ICL agreed with the mother’s proposal that it would be appropriate for the child to spend a block period of time with each parent for the Christmas holidays commencing 2022/23. I accept that arrangement as being appropriate and, again, I have adopted the proposal by the ICL in respect to the child spending time with each parent during school holiday periods and for that time to increase to a longer a block period as the child matures.
306. Minimising the amount of time that the parents come into contact with each other will reduce the possibility of the child being exposed to the parental conflict. I therefore propose to make orders for changeover to occur at preschool and school wherever possible. Again, I have adopted the order proposed by the ICL in that respect.
307. As previously noted, both the paternal and maternal grandparents are heavily invested in each of their child’s cases. Regrettably, their involvement in interactions between the parties has not always been constructive. In fact there have been occasions where their actions have actually inflamed rather than reduced tensions. In that context, I agree with the restraints proposed by the ICL to restrain filming, photographing and otherwise recording changeovers and preventing, so far as possible, other persons from doing so.
308. The parties each proposed orders to enable the child to communicate with the other parent during those times that she was not in the care of that other parent. Once again I have adopted the order proposed by the ICL in that respect.
309. The parties were also in agreement that there should be provision for the parties to travel outside the State of New South Wales and the Commonwealth. The orders that they each proposed were not dissimilar and I have drawn from each of their proposals.
310. The parties were also in agreement that there should be arrangements in place to ensure the other parent is informed about matters relevant to the welfare of the child and for each parent to be able to participate in the child’s schooling and extra-curricular activities. The orders proposed by the ICL, in that respect, are comprehensive and I have again adopted the ICL’s proposal.
311. The parties were in agreement that the orders should include a non-denigration clause.
312. As I have previously noted, there is an unacceptable risk that the child will, in the future, be exposed to her parents’ drug use. In those circumstances, I am satisfied that a detailed and comprehensive regime for drug testing is necessary. That regime should remain in place until the end of the child’s first year of school.
313. The orders that I have made combine aspects of each party’s proposals such that they provide for a program of regular hair follicle testing until the end of 2020. As each party will be required to undertake a similar amount of testing, the orders will provide for each party to pay for their hair follicle test.
314. In light of the concern that I have that the child may be exposed to her parents’ drug use in a period of time between drug tests, I also propose to enable each party to request that the other party undertake a random urine analysis and/or CDT test. That arrangement should be in place for a period of 12 months. To avoid either party unreasonably exercising that right, I propose that the party making the request of the other party to attend a urinalysis or CDT test, to pay for that test.
315. There was disagreement between the parties as to whether any consequence should arise from a party receiving a positive drug test. The ICL raised a valid concern that an order providing for parenting orders to be stayed or varied in the event of such a positive test would be undesirable insofar as it would give rise to further proceedings. On the other hand, my concern about the prospect of each of the parties resuming use of illicit substances and the associated risk to the child as result of that occurring is such that, in my view, this matter should be bought back before the Court to facilitate the parenting arrangements being reviewed. While that occurs, the child will continue to spend time with each parent. However, the time with the parent who was subject to a positive test will be supervised pending appropriate consideration of all relevant circumstances.
Costs of the icl
316. In Bowers and Bowers I gave reasons as to why, in my view, there is a presumption that, where an ICL has been appointed to represent the interests of a child, the costs of the ICL should be met by the parties.
317. At the conclusion of the hearing of this matter I indicated that I would give each party 14 days to provide written submissions as to whether an order should be made for each of the parties to share the costs of ICL.
318. If, after having regard to my decision in Bowers and Bowers the parties wish to make such a submission, I invite them to do so within 14 days.
319. For all these reasons I make the orders as set out at the commencement of these Reasons for Judgment.
I certify that the preceding three hundred and nineteen (319) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 4 October 2017.
Associate:
Date: 4 October 2017
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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