Kirner and Forrester

[2018] FCCA 3916

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIRNER & FORRESTER [2018] FCCA 3916

Catchwords:
FAMILY LAW – Parenting – allegations of family violence – allegations of child sexual exploitation – contravention – deliberate and defiant breach of orders – suspension of time.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS KIRNER

Respondent: MR FORRESTER

File Number: DNC 123 of 2017

Judgment of: Judge Young

Hearing date: 14 December 2018

Date of Last Submission: 14 December 2018

Delivered at: Darwin

Delivered on: 14 December 2018

REPRESENTATION

Counsel for the Applicant: In person

Solicitors for the Applicant:

Counsel for the Respondent: In person

Solicitors for the Respondent:

Counsel for the Independent Childrens Lawyer: Ms Marris

Solicitors for the Independent Childrens Lawyer: Marris & Co Solicitors & Barristers

ORDERS

1. That within 21 days of this Order, the father do undergo a Hair Follicle Drug Analysis at the expense of the father, and file the results of the test under cover of an Affidavit upon receipt of same.

2. That the father make appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for the hair follicle test. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair follicle testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:

   (a)The father is required to maintain his head hair at a length of not less than three (3) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;

   (b)The father/ is to attend at …Collection Centre, Suburb A and submit to the supervised collection of a hair sample at the earliest available appointment time within seven (7) days of receiving written notice to undertake hair collection for hair drug testing purposes from the Independent children’s Lawyer;

   (c)That the cost of the hair follicle test is to be met by the father.

3. That the father provide a copy of the results of the hair follicle test to the mother and Independent Children’s Lawyer as soon as they become available.

4. That the father file and serve an affidavit annexing the results of the hair follicle test as soon as the results become available.

THAT ON THE MATTER RESUMING IN THE AFTERNOON

1. That the MS KIRNER be granted leave to proceed ex parte.

2. That a recovery order do issue authorising and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:

   (a)find and recover the said child [X] born …2012;

   (b)to stop and search any vehicle, vessel or aircraft; and

   (c)to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.

3. That the child is to be delivered to MS KIRNER (the mother) or to some other person(s) she nominates in writing to receive the child on her behalf at such place as the applicant mother and officers giving effect to the Recovery Order may agree.

4. That MR FORRESTER (the father) is prohibited from again removing or taking possession of the child.

5. That if MR FORRESTER again removes or takes possession of the child, he may be arrested without a warrant.

6. That the Recovery Order remains in force until the child is recovered pursuant to this order.

7. That until further order the child [X] born …2012 live with the mother.

8. That all existing orders for the child to spend time with the father be suspended including orders made earlier today.

9. That as a condition of any resumption of the child’s time with the father the father is to obtain a psychological assessment at his own expense with the psychologist to be nominated by the Independent Children’s Lawyer with the letter of instruction to be drafted by the Independent Children’s Lawyer.

10. That leave be granted for the Independent Children’s Lawyer to provide the psychologist with a copy of all court documents including the ex tempore reasons for judgment.

11. That the parties do all things necessary to enrol in and be accepted into the supervised time program at the CatholicCare NT.

12. That the application for contravention filed by the mother on 7 December 2018 be adjourned to 13 March 2019 at 10.00am.

13. That the applicant is to arrange service of a sealed copy of these orders upon the respondent as soon as practicable.

IT IS NOTED that publication of this judgment under the pseudonym Kirner & Forrester is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 123 of 2017

MS KIRNER

Applicant

And

MR FORRESTER

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an urgent application in respect of a child, [X], who is six and a half years old.  This matter has involved very serious allegations between the parties:  allegations of family violence and controlling behaviour by the mother against the father and the father making allegations that the child has been exposed to the risk of what he calls “sexual exploitation”.  That arises out of, as I understand it, the conviction of the maternal grandmother’s partner, Mr K, for possession of child pornography some time ago. 

3. On 2 December the father refused to return the child to the mother in conformity with orders.  He told me today that the reason was that the maternal grandmother was present in the mother’s home, consistently with what the mother has told me in her affidavit filed on 7 December. 

4. There is no suggestion that Mr K was present.  And, indeed, I have made an order that the mother is not to bring the child into contact with Mr K or permit that.  So the allegation that the father makes is a relatively new one, that the child is at risk if the maternal grandmother is present, even in the absence of Mr K. 

5. The father told me that he has made a notification to Territory Families.  There is no evidence of that being investigated.  Indeed, I would assume, on the basis of the information that the father has given me, that Territory Families would conclude that that information did not reach the threshold for investigation. 

6. In short, it appears to be a baseless and irrational allegation.  Nevertheless, it was repeated again today by the father.  His withholding of the child overnight and returning the child to school the next day was, in my view, a deliberate and defiant breach of orders.  And there was no rational justification for it, no reasonable justification for it. 

7. I have had concerns throughout this matter about the insight of the father into not only the needs of the child and the need to not expose the child to conflict but I have had other concerns about the insight of the father, given that I have spoken to him on other occasions about the importance of complying with Court orders.

8. The mother also raises a number of other concerns in her affidavit.  She seeks suspension of existing orders and orders for supervised time, including such things as the fact that the child appears pressured during telephone calls and is anxious and the father’s denigration of the grandmother.  I have little doubt, given his apparent belief that the grandmother is a risk to the child, that there is some truth in that.  She also complains about his failure to adequately deal with medication for eczema. 

9. I am not satisfied that I can draw any conclusions about those matters on what is an urgent interim hearing but given that the withholding of the child in breach of an order is not in contest and the reason offered by the father is, in my view, clearly unreasonable, I am prepared to act on the basis of that.

10. The other thing that concerns me is that there is evidence that from 5 June there was a request from the mother’s solicitors that the father undergo urinalysis and the father has failed to comply with the request under the order.  The order is a rather unusual one and, in my view, poorly drafted.  The particular paragraph that I consider is inadequately drafted, after referring to the need to have the testing within 48 hours of a request, says:

    …the father shall provide the pathologist with photographic identification, to be recorded before each test, and the laboratory is to provide the results of each test to the applicant’s lawyers and the respondent’s lawyers immediately upon its completion –

    “the applicant’s lawyers” being the mother’s lawyers and “the respondent’s lawyers” being the father’s lawyers. He is not now but was represented by Ms Bowen at one point.

11. The order in its terms did not require the father to provide the test results to the mother’s solicitors but simply authorised the pathologist to do that, a very unwieldy way of approaching things.  Nevertheless, the father has not provided copies of the results.  He says that he actually underwent the test result, and it was positive for cannabis. 

12. In the circumstances, he had a clear obligation, whether or not the order specifically required him to provide it, to provide the test result to the ICL and the mother’s lawyers.  He also had an obligation, arising out of the absolute duty of disclosure and frankness in a parenting matter, to provide a copy to the court.  That did not happen.  I am satisfied that the father’s failure to comply with that order again was deliberate and defiant. 

13. The father has confirmed that that test was positive for cannabis but the actual test result has not been provided, as far as I am aware, to the independent children's lawyer or the court or the mother.  I am satisfied that there ought to be a more detailed assessment of that issue. 

14. Of course, the suspension of time orders or these time orders are not intended to interfere with the preparation of the family assessment report, including interviews and observations. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 14 January 2019