Kirner and Forrester (No.2)

[2018] FCCA 3944

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIRNER & FORRESTER (No.2) [2018] FCCA 3944

Catchwords:
FAMILY – Parenting – urgent application – where the father has withheld the child in breach of court orders – time suspended.

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: Ms Czislowski

Solicitors for the Applicant: Ward Keller

Counsel for the Respondent: No appearance

Counsel for the Independent Children’s Lawyer: Ms Marris

Solicitors for the Independent Children’s 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 Diagnostics 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 (No.2) 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 morning, I made orders suspending existing time orders and orders that the child [X], who is six, spend time with his father whilst supervised at Catholic Care.  The reason for that order was, in summary, that on 2 December the father withheld the child overnight in breach of orders, offering what I consider to be a quite unreasonable, if not irrational excuse, that the maternal grandmother posed a risk of sexually exploiting the child.  There is a background to that but I dealt with that this morning.

3. The other issue was the father’s failure to provide results of his drug tests or drug test requests from June.  He acknowledged that he’d received requests for drug tests.  He said that he had undertaken them and they were positive for cannabis, and for some reason that I didn’t understand, Mr Forrester said that he didn’t feel in the circumstances that he ought to hand over the test results to the ICL or the mother’s lawyers.

4. When I made those orders I had not realised that the child was in the father’s care at the time and I have been informed by Ms Czislowski, who is appearing on a duty basis for the mother, confirmed by Ms Marris the ICL, that after that order was made, the father returned to his place of work where the child had been left while the father came to court, and the father put the child in the car and drove off, so it was said, erratically.

5. Various attempts have been made to contact the father on a telephone number by the ICL and Ms Czislowski and I also had my deputy associate telephone the number for the father as well, and it was not answered.

6. The father gave me an undertaking this morning that he would abide by court orders, so I think there are some grave doubts about the father’s parenting capacity and, indeed, his psychological state.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 22 January 2019