Merrick & Poulsen
[2021] FCCA 1112
•2 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Merrick & Poulsen [2021] FCCA 1112
File number(s): PAC 197 of 2018 Judgment of: JUDGE NEWBRUN Date of judgment: 2 June 2021 Catchwords: FAMILY LAW - Interim parenting - best interests of child - Orders made. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC Cases cited: Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCAFC 101
Eaby & Speelman [2015] FamCAFC 104
Banks & Banks [2015] FamCAFC 36
Number of paragraphs: 75 Date of last submission/s: 31 March 2021 Date of hearing: 31 March 2021 Place: Parramatta Solicitor for the Applicant: Mr Bainbridge Counsel for the Respondent: Mr Kovac Counsel for the Independent Children’s Lawyer Ms Weaver ORDERS
PAC 197 of 2018 BETWEEN: MR MERRICK
Applicant
AND: MS POULSEN
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
2 JUNE 2021
PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.The Court’s interim restraining Order against the Mother made on 18 February 2021 is discharged.
2.That all previous orders for the child X born 2012 (“X”) to spend time with the Mother are discharged.
3.That X will spend time with the Mother as follows:
(a)Until such time as a place is available for the family at the Contact Centre A, on the second Sunday of each month from 9am until 3pm in Sydney supervised by Contact Centre B, commencing Sunday 11 April 2021.
(b)Once a place is available for the family at the Contact Centre A, on a rotating fortnightly basis as follows:
(i)Once each four weeks, on a Sunday in Sydney from 9am until 3pm supervised by Contact Centre B;
(ii)Once each four weeks, on the weekend falling between the visits referred to in order 3.(b)(i), at Contact Centre A in Canberra on a Saturday for up to 4 hours, at times to be agreed between the Mother and the Contact Centre A staff;
(c)At other times as may be agreed between the parties.
4.To facilitate order 3:
(a)The parties will each within 7 days of the date of these orders do all such things as are necessary to enrol at the Contact Centre A for their “user pays” supervision service and to be placed on the waiting list for that service,
(b)The parties will each within 7 days do all such things as are necessary to re-engage with the Contact Centre B supervised contact service, to allow time with the Mother to recommence on 11 April 2021,
(c)The Mother is to be responsible for all costs involved in the provision of supervision of her time with X, other than any costs involved in transporting X to and from the contact venue, which are to be the Father’s responsibility.
5.All previous orders for telephone and electronic communication between X and the Mother are discharged.
6.The Mother shall be permitted to contact X via a Facetime call to the Father’s phone between 5:30 and 6pm each Tuesday and Thursday and each Saturday falling on a weekend when the Mother is not spending time with X, and the Father is to ensure X is available to take the Mother’s call, that the phone is handed to X when the Mother calls, and that X is allowed to speak to his Mother in private.
7.The parties are each permitted to:
(a)communicate directly with X’s school to obtain information about his progress and wellbeing,
(b)receive copies of all documents provided to parents by the school including newsletters, school reports and school photo order forms,
(c)attend all school events to which parents are invited, including assemblies, sporting events, performances and parent-teacher interviews,
(d)provide a copy of these orders to X’s school.
8.The Mother is restrained from collecting X from school at any time, without the prior written consent of the Father.
9.The Father is restrained from changing X’s school without the prior written consent of the Mother.
10.The parties are to communicate with each other by text message or email only, unless it is an emergency, and all such communication is to:
(a)Relate solely to the welfare and wellbeing of X,
(b)Be polite, respectful and businesslike in tone.
11.The parties are each to keep the other advised at all times of:
(a)Their current residential address,
(b)Their current mobile phone number,
(c)Their current email address.
12.That the Father and the Mother make appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug and alcohol testing purposes. 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 drug and alcohol 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 and the Mother, each is required to maintain his/her head hair at a length of not less than four (4) centimetres; the head hair is not to be cut, bleached or dyed between the date of this order and the time of collection of hair; unless at least 14 days prior written notice has been provided to the ICL and the other party of the intention to do so.
(b)Within seventy-two (72) hours of the date of these orders, the Father and the Mother, each is required to make an appointment with AWDTS by telephoning 1300 37 84 83 for the purpose of providing a hair sample for hair drug and alcohol testing purposes;
(c)Each party or their legal representatives is at liberty to provide AWDTS with a copy of these orders;
(d)The Father and the Mother, each is to attend at an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from the Father and the Mother at the earliest available appointment time within seven (7) days of receiving written notice to undertake hair collection for hair drug and alcohol testing purposes from the Independent Children’s Lawyer (ICL);
(e)The Father and the Mother each is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to both parties, the Father and the Mother, the ICL and their legal representatives upon receipt of such test results;
(f)The hair drug and alcohol test may screen for alcohol EtG and drugs of abuse including but not limited to amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drugs.
(g)AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available.
13.That the Mother shall within 48 hours notify and provide full particulars to the ICL and the solicitor for the Father in the event she is arrested, charged, served with an application under the Crimes (Domestic and Personal Violence) Act, or issued with a Court Attendance Notice.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Merrick & Poulsen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION
This interim hearing relates to the child X born 2012.
On 25 January 2018, by consent, interim orders were made, inter alia, that the child live with the Father; that the child spend time with the Mother on the first, third and fourth weekend of each month, from Friday 6 PM until Sunday 6 PM, and that such time be substantially supervised by a supervisor agreed by the parties and failing agreement by the maternal grandmother or one of the Mother’s siblings. Certain restraining orders were made against the parties including consuming alcohol when in the presence of the child and for 12 hours prior to changeover.
On 1 June 2018, by consent, interim orders were made, inter alia, that the child live with the Father; that the child spend time with the Mother on the first, third and fourth weekend of each month from 3 PM or after school on Friday to 9 AM or before school on Tuesday, and that such time be substantially supervised by a supervisor agreed by the parties and failing agreement, by the maternal grandmother or one of the Mother’s siblings, or the maternal grandfather, provided the maternal grandfather was not under the influence of alcohol. Certain restraining orders were made against the parties including in relation to alcohol and illicit substances.
On 6 September 2018, by consent, interim orders were made, inter alia, that the child spend time with the Mother, on a graduating basis culminating in fortnightly overnight time from Friday after school to 9 AM or before school Tuesday, conditional upon the Mother’s compliance with Order 4 providing for the Mother to conduct a breathalyser test using the Interlock – an electronic breath testing device, currently linked to her car’s ignition system on a certain basis. Order 5 provided, inter alia, that in the event that the Mother returns an alcohol reading pursuant to Order 4 of more than 0.00, or otherwise fails to comply with Order 4, that the child’s time with the Mother be suspended.
On 22 November 2019, by consent, interim orders were made, without admissions, inter alia, that the child spend time with the Mother under the supervision of Contact Centre B for Children every alternate Sunday from 9 AM until 3 PM.
The Mother’s last supervised time with the child was on 18 October 2020.
On 18 February 2021, the Court ordered, on an interim basis, that the Mother be restrained from approaching or removing the child from school.
PROPOSALS
The Father’s proposals are set out in his Application in a Case filed 12 February 2021; inter alia, he seeks orders that all previous parenting orders be discharged; the Father have sole parental responsibility for the child; subject to the Mother complying with certain proposed alcohol and drug testing demonstrating the Mother is abstinent from both illicit drugs and alcohol, the child spend time with the Mother at a supervised contact centre; and that the Mother undergo hair drug and alcohol testing.
The Mother’s proposals are set out in a proposed Minute of Interim Orders attached to her Case Outline filed 29 March 2021; inter alia, she seeks orders that the parties have equal shared parental responsibility for the child; the child live with the Father; the child spend daytime time with the Mother initially supervised for 12 weeks (in week 6 and 12 week; i.e. once in each 6 week period) by Contact Centre B for Children, and thereafter unsupervised time for 12 weeks during the daytime on each alternate Sunday, and thereafter unsupervised from after school/3 PM on Friday until 3 PM on Sunday in the first weekend of each six-week period and during school holidays on a shared basis with the Father.
The ICL sought orders set out in the ICL’s Case Outline dated 29 March 2021; inter alia, she sought orders that all previous orders for the child to spend time with the Mother be discharged; that the child spend time with the Mother supervised by Contact Centre B on a certain basis, and once a place is available for the family at the Contact Centre A in Canberra, that the child spend supervised time with the Mother on a certain specified basis at that contact centre and alternating with Contact Centre B.
MATERIAL RELIED UPON
The Mother relied upon the following documents:
(a)The Mother’s Affidavit filed 29 March 2021;
(b)The Affidavit of Ms A Poulsen filed 29 March 2021;
(c)Tender bundle of the Mother March 2021 (48 pages);
(d)The Mother’s Case Outline filed 29 March 2021;
(e)The Mother’s Application in a Case dated 29 March 2021.
The Father relied upon the following documents:
(a)The Father’s Case Outline filed 30 March 2021;
(b)The Father’s Application in a Case filed 12 February 2021;
(c)The Father’s Affidavit filed 11 February 2021;
(d)The Father’s tender bundle.
The ICL relied upon her Case Outline dated 29 March 2021, and her tender bundle March 2021.
The following exhibits were relied upon:
(a)Exhibit A: Father’s tender bundle;
(b)Exhibit B: Family Report dated 11 October 2019, and Child Dispute Conference Memorandum dated 11 April 2018;
(c)Exhibit C: Tender bundle of ICL.
AGREED FACTS UNLESS OTHERWISE STATED
The Mother was born 1988; she is now aged 33 years.
The Father was born 1984; he is currently 36 years.
The Mother is currently in a relationship with her partner, Mr C.
The Father alleges that he has been in a relationship with his wife Ms Merrick for 7 years and that they married 2018. They have a child, it is alleged, from their relationship namely D born 2015.
Between October 2018 to October 2020, the Mother was charged with a total of 6 breaches of her prohibition order for consuming alcohol in the presence of her partner, Mr C. The Mother states that she understands that her actions were not appropriate and she still holds herself accountable for the breaches. The Mother states she pleaded guilty. The Mother stated at her sentencing hearing that she requested to be sent to a rehabilitation facility as she was generally motivated to address her alcohol dependency issues. She asserts that she is currently on a Community Corrections Order good behaviour bond, which bond will end in about 13 months. The Mother does not dispute that she was imprisoned from the date of being charged by police on 20 October 2020, for “contravene prohibition/restriction in AVO (Domestic)”, until the date of her sentence on 13 November 2020 at the Town E Local Court.
During 2018, the Mother struggled to provide her drug and alcohol test results within the required timeframe. She alleges that this was primarily due to financial difficulties which prevented her from adhering to such timeframes.
On 8 February 2018, the Mother returned a positive CDT test result. She admitted herself into a rehabilitation program at Hospital F to address her alcohol dependency issues. She alleges that in about March 2018 she enrolled herself into Alcoholics Anonymous.
On 31 July 2018, the Mother returned a positive hair follicle alcohol test result. At the time the Mother was in denial of the severity of her alcohol addiction and had unenrolled from Alcoholics Anonymous. The Mother states that she had relapsed in late July 2018.
The Mother failed to provide a breathalyser test on one occasion on 26 October 2018 as she had consumed alcohol the night before.
In June 2019, the Mother began taking Antabuse as she realised that she had to do more to address her alcohol abuse. She stopped taking it in about October 2020. She alleges that currently her psychiatrist Dr G does not recommend her taking this medication.
On 30 August 2019, the Mother acknowledged to the family report writer that her drinking was problematic, and she told the family report writer that she had been abstinent since June 2019. She acknowledged to the family report writer a diagnosis of alcohol abuse and major depression in November 2017 by psychiatrist, Dr H. She told the family report writer that she understands that she is alcoholic and cannot drink.
The Mother alleges that she has obtained treatment for her alcohol dependency, as referred to, inter alia, in paragraphs 37-45 of her Affidavit filed 29 March 2021.
Since July 2019, the Mother alleges (paragraph 43 of her Affidavit filed 29 March 2021) that she has remained primarily sober although she has not been wholly successful in remaining sober. In the Mother’s Case Outline filed 29 March 2021, paragraph 93, she submits, inter alia, that she has maintained sobriety from alcohol consumption save for 2 periods of relapsing in late July 2018 and January 2021. In paragraph 96 of her said Case Outline she submits that she has maintained sobriety since about early 2021.
In paragraph 44 of the Mother’s Affidavit filed 29 March 2021, she alleges that on 20 January 2020, herself and her partner Mr C attended their first intake meeting for couples counselling with J Counsellors. The Mother alleges that this session forced her partner and herself to confront their alcohol abuse and mental health issues to create a more stable relationship. The Mother alleges that she continued to see her counsellor for around 7 months until they closed due to Covid 19. The Mother alleges that she will be looking for similar support services when she moves to Sydney in two weeks.
Pursuant to the Court’s Interim Orders of 22 November 2019, the Mother’s supervised time began on 1 December 2019. The Mother asserts that since late April 2020 she has seen the child 10 times at Contact Centre B. The last supervised visit was on 18 October 2020.
On 29 January 2021 the Mother attended the child’s school.
The Mother alleges in her Affidavit filed 29 March 2021 that she will be moving from Town K to Sydney in three weeks’ time for a work opportunity.
RELEVANT LEGAL PRINCIPLES
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects and principles of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context, the Court refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52. In that decision, the Full Court stated, inter alia, that (at paragraph 49), “It is also important to stress here that the requirement to “consider” each factor (under s60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582”. Further, it stated, at paragraph 50, “When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors”.
THE BEST INTERESTS OF THE CHILDREN
Section 60CC Considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
There is a significant suggestion, on the material before the Court, that the child has a meaningful relationship with both parents.
The child will benefit from the continuance of the above relationships provided it is safe for him to do so.
The child has not spent supervised time with the Mother since 18 October 2020. The child is presently aged 8 years, and will turn 9 years in 2021.
Should the child presently recommence spending supervised time with the Mother, as proposed by the ICL, including the ICL’s proposed Orders for FaceTime contact, and permission for both parties to attend all school events to which parents are invited, there is a significant prospect that the child’s meaningful relationship with the Mother can be maintained.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Mother agrees that the child should live with the Father on an interim basis; the Mother’s disputed allegations against the Father of alienation, adverse mental health and drug and alcohol abuse should be seen in this context at this interim stage. The Court observes that certain interim restraining orders against the parties remain in place.
The Mother alleges that since 22 October 2019 the Father has failed to comply with the majority of the ICL’s requests for drug and alcohol testing. The Court refers to the Mother’s allegations in this context under the heading in her Affidavit “Mr Merrick’s Drug and Alcohol Testing”. Again, the Court observes that the Mother now proposes interim parenting orders that the child live with the Father. Taking into account these allegations of the Mother against the Father, it will be in the best interests of the child that the Court make the Mother’s proposed Order 30 relating to drug and alcohol testing of both parties and providing for hair drug and alcohol testing.
In the view of the Court, there is an unacceptable risk of harm posed to the child in spending unsupervised time with the Mother at this interim stage. The Mother has a serious alcohol dependency problem for which she obtains treatment. There is a significant suggestion, on the material before the Court, that this problem is not yet adequately managed. There is a significant suggestion, on the material before the Court, that the Mother has previously acted violently when adversely affected by alcohol; the Court refers, in this context, to:
(a)the matters referred to under the heading “Agreed facts unless otherwise stated” above, including reference to the Mother’s alcohol relapse in January 2021,
(b)the Father’s allegations relating to the Mother’s behaviour set out in his Affidavit filed 11 February 2021 and also in his tender bundle, Exhibit A,
(c)the allegations against the Mother referred to in the ICL’s tender bundle, Exhibit C,
(d)the allegations against the Mother in the family report, including the allegations against the Mother under the heading “Risk Factors”.
The above referred unacceptable risk of harm posed to the child is the risk of the child potentially being exposed to neglect and/or being exposed to family violence should the Mother be adversely affected by alcohol if spending unsupervised time with the child.
The Court takes into account the comments of the family report writer in relation to the risks of harm posed to a child exposed to family violence and the increased possibility of neglectful parenting if alcohol is involved.
The above unacceptable risk of harm can be minimised by the Mother spending supervised time with the child. To the extent that it might be suggested that the family report writer’s recommendations in relation to the child spending time with the Mother are contrary to this view of unacceptable risk of harm, the Court would, respectfully, not accept such recommendations. The Court acknowledges that the family report remains untested at this interim stage.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The Court takes into account the child’s views in relation to the Mother expressed to the family report writer, including his statements that he was missing the Mother in circumstances where a period of time had elapsed since he had last seen her.
The Court takes into account the positive Contact Centre B contact report dated 18 October 2020 suggesting the child was delighted to spend time with the Mother and had missed the Mother.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussions above under the meaningful relationship primary consideration. The child also appears to have positive relationships with the Father’s wife, child D, and members of the Mother’s extended family.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
Both parties would appear to have taken such opportunities, however there is a significant suggestion, on the material before the Court, that the Mother, at times, by reason of her alcohol dependency problem and alleged related adverse behaviour, was unable to spend time with the child.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The parties would appear to have maintained the child whilst the child was in their respective care. The Mother has been unable to pay consistent child support to the Father in relation to the child and her child support payments are in significant arrears.
(d) 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; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussion above under the meaningful relationship primary consideration.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The Mother, prior to about 18 October 2020, was spending supervised time with the child in Sydney through Contact Centre B. She alleges that she is moving to Sydney from region L. The Father resides in Canberra with his wife and the child, having relocated there in about late 2019. Accordingly, there is a practical geographical issue affecting the child readily spending time with the Mother. There is a suggestion, on the material before the Court, that the child’s attentiveness in class may have been adversely affected by his regular car travel to Sydney from Canberra and return.
The Mother contends, inter alia, that the Father’s proposed alternate contact centre in Canberra would not be in the child’s best interests, and the Court refers to her submissions in this context. Again, she proposes some initial supervised time through Contact Centre B in Sydney.
In the view of the Court, the ICL’s proposed Orders 2 a. and b., relating to the child spending supervised time with the Mother, alternating between Sydney and Canberra at the times therein set out (Contact Centre B in Sydney, and Contact Centre A in Canberra), will lessen the burden upon the child of travelling to Sydney and return Canberra, and will enable the child to continue his previous positive time spent with the Mother through Contact Centre B in Sydney. In this context, also, the Court takes into account the Mother’s allegations relating to her financial position in relation to travel and supervised time.
(f) the capacity of:
i) each of the child’s parents; and
ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both parties would appear to have such capacities. However, the Court refers to its discussion above under the need to protect primary consideration in relation to the Mother, and the Court refers to the comments of the family report writer that both parties tended to minimise the impact that their drug and alcohol use may have had on the child, and on their other relationships, or the impact on the child of disruptions to his care arrangements.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The Court refers to its discussions above under the need to protect primary consideration.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Both parents would appear to have demonstrated appropriate attitudes towards the child and to their responsibilities of parenthood, subject to the Court’s discussion above under the need to protect primary consideration and under section 60CC(3)(f) above.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussion above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
The Court refers to the material before the Court suggesting that there have been AVOs in place protecting the Mother’s partner from the Mother. In this regard, the Court refers to its discussions above under the need to protect primary consideration.
(l) 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
These are interim proceedings.
m) Any other fact or circumstance that the Court thinks is relevant
The Father seeks the continuation of the Order made on 18 February 2021 that the Mother be restrained from approaching or removing the child from school.
The ICL seeks an interim restraining order against the Mother that she not collect the child from school at any time, without the prior written consent of the Father. The Mother agrees with that proposed Order.
The Court has had regard to the various file notes from the child’s school set out in the ICL’s tender bundle, Exhibit C, in relation to the Father’s allegations that the Mother sought to remove the child from his school on 29 January 2021 and at that time had allegedly sought to impersonate the Father’s wife. The Court has had regard to the Mother’s counter allegations in this context set out in her Affidavit filed 29 March 2021. As submitted by the ICL, the school file notes do not appear to suggest that the Mother was impersonating someone when she attended at the school on 29 January 2021. It is possible, without proceeding to make any finding of fact, that there was a misunderstanding by the school staff member as to exactly what the Mother was saying to her. In the view of the Court, the ICL’s proposed interim restraining order against the Mother that she not collect the child from school at any time, without the prior written consent of the Father, should minimise the risk of the Mother taking any steps to remove the child from his school.
The ICL, through her proposed Order 6, seeks an Order, inter alia, that the parties are each permitted to attend all school events to which parents are invited, including assemblies, sporting events, performances and parent teacher interviews. Taking into account the Court’s above proposed restraining order against the Mother that she not collect the child from school at any time without the prior written consent of the Father, it will be in the best interests of the child to make the ICL’s proposed Order 6 because it will assist the child in the maintenance of his meaningful relationship with the Mother (and the Father).
As to the ICL’s proposed Order 5, relating to FaceTime calls between the child and the Mother, such proposed order will be in the best interests of the child; such calls on each Tuesday and Thursday and each Saturday falling on a weekend when the Mother is not spending time with the child will enhance the prospect of such calls being facilitated.
The ICL’s proposed Order 8, seeking to restrain the Father from changing the child’s school without the prior written consent of the Mother will be an order in the best interests of the child; such proposed Order will provide stability for the child and lessen the risk of disruption in relation to the child spending time with the Mother.
The ICL’s proposed Order 9, relating to communication between the parties, will minimise the risk of conflict between them. The ICL’s proposed Order 10 will further enable the parties to reliably communicate with each other by appropriate methods, and maintain their relationships with the child.
By reason of the Mother’s breaches of Orders relating to her partner, and related sentences, including short incarceration in 2020, it will be in the best interests of the child to make the Father’s proposed Order 10.
PARENTAL RESPONSIBILITY
It will not be in the best interests of the child to make any express order relating to parental responsibility at this interim stage. The child is attending school in Canberra and he is in Year 3. He is living in the Father’s primary care in Canberra. There is no major decision looming for this child, on the material before the Court. The Court has made trial directions on 30 October 2020 and a compliance check and callover fixture has been appointed for 23 July 2021.
The Court refers to its discussions above under the need to protect primary consideration. An equal time regime or substantial and significant time between the child and the Father will not be in the best interests of the child. Such regime and time would appear, at this interim stage, and based on the material before the Court, not to be reasonably practicable with the Father living in Canberra and the Mother allegedly moving to Sydney from Town K.
SUMMARY
Evaluating the above discussed considerations under section 60 CC of the Act, it will be in the best interests of the children to make the following interim Orders:
1.The Court’s interim restraining Order against the Mother made on 18 February 2021 is discharged.
2.That all previous orders for the child X born 2012 (“X”) to spend time with the Mother are discharged.
3.That X will spend time with the Mother as follows:
(a)Until such time as a place is available for the family at the Contact Centre A, on the second Sunday of each month from 9am until 3pm in Sydney supervised by Contact Centre B, commencing Sunday 11 April 2021.
(b)Once a place is available for the family at the Contact Centre A, on a rotating fortnightly basis as follows:
(i)Once each four weeks, on a Sunday in Sydney from 9am until 3pm supervised by Contact Centre B;
(ii)Once each four weeks, on the weekend falling between the visits referred to in order 3.(b)(i), at Contact Centre A in Canberra on a Saturday for up to 4 hours, at times to be agreed between the Mother and the Contact Centre A staff;
(c)At other times as may be agreed between the parties.
4.To facilitate Order 3:
(a)The parties will each within 7 days of the date of these orders do all such things as are necessary to enrol at Contact Centre A for their “user pays” supervision service and to be placed on the waiting list for that service,
(b)The parties will each within 7 days do all such things as are necessary to re-engage with the Contact Centre B supervised contact service, to allow time with the Mother to recommence on 11 April 2021,
(c)The Mother is to be responsible for all costs involved in the provision of supervision of her time with X, other than any costs involved in transporting X to and from the contact venue, which are to be the Father’s responsibility.
5.All previous orders for telephone and electronic communication between X and the Mother are discharged.
6.The Mother shall be permitted to contact X via a Facetime call to the Father’s phone between 5:30 and 6pm each Tuesday and Thursday and each Saturday falling on a weekend when the Mother is not spending time with X, and the Father is to ensure X is available to take the Mother’s call, that the phone is handed to X when the Mother calls, and that X is allowed to speak to his Mother in private.
7.The parties are each permitted to:
(a)communicate directly with X’s school to obtain information about his progress and wellbeing,
(b)receive copies of all documents provided to parents by the school including newsletters, school reports and school photo order forms,
(c)attend all school events to which parents are invited, including assemblies, sporting events, performances and parent-teacher interviews,
(d)provide a copy of these orders to X’s school.
8.The Mother is restrained from collecting X from school at any time, without the prior written consent of the Father.
9.The Father is restrained from changing X’s school without the prior written consent of the Mother.
10.The parties are to communicate with each other by text message or email only, unless it is an emergency, and all such communication is to:
(a)Relate solely to the welfare and wellbeing of X,
(b)Be polite, respectful and businesslike in tone.
11.The parties are each to keep the other advised at all times of:
(a)Their current residential address,
(b)Their current mobile phone number,
(c)Their current email address.
12.That the Father and the Mother make appointment and attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug and alcohol testing purposes. 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 drug and alcohol 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 and the Mother, each is required to maintain his/her head hair at a length of not less than four (4) centimetres; the head hair is not to be cut, bleached or dyed between the date of this order and the time of collection of hair; unless at least 14 days prior written notice has been provided to the ICL and the other party of the intention to do so.
(b)Within seventy-two (72) hours of the date of these orders, the Father and the Mother, each is required to make an appointment with AWDTS by telephoning 1300 37 84 83 for the purpose of providing a hair sample for hair drug and alcohol testing purposes;
(c)Each party or their legal representatives is at liberty to provide AWDTS with a copy of these orders;
(d)The Father and the Mother, each is to attend at an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from the Father and the Mother at the earliest available appointment time within seven (7) days of receiving written notice to undertake hair collection for hair drug and alcohol testing purposes from the Independent Children’s Lawyer (ICL);
(e)The Father and the Mother each is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to both parties, the Father and the Mother, the ICL and their legal representatives upon receipt of such test results;
(f)The hair drug and alcohol test may screen for alcohol EtG and drugs of abuse including but not limited to amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other drugs.
(g)AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available.
13.That the Mother shall within 48 hours notify and provide full particulars to the ICL and the solicitor for the Father in the event she is arrested, charged, served with an application under the Crimes (Domestic and Personal Violence) Act, or issued with a Court Attendance Notice.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 2 June 2021
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Procedural Fairness
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Costs
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