Millson & Halbert
[2021] FedCFamC1F 94
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Millson & Halbert [2021] FedCFamC1F 94
File number(s): SYC 6260 of 2007 Judgment of: HARPER J Date of judgment: 1 October 2021 Catchwords: FAMILY LAW – PARENTING – Contravention – Whether the father established a reasonable excuse for his contravention – Where the mother has not provided evidence of drug testing despite consent – Reasonable excuse found.
PARENTING – Variation of Final Orders under s 70NBA of the Family Law Act 1975 – Where almost two years have passed since the Final Orders – Where the children are now aged 10 and 15 – Where the Final Orders have never operated as they should – Consideration of Court’s power to vary final parenting orders following a contravention – Focus to be on making orders to ensure future compliance, not wholesale restructuring –– Where the Court has no recent evidence as to the children’s views or needs – Orders made for a Child Impact Report and further mediation.
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 68ZT(1), 69ZT (2), 70NAA(1), 70NAE, 70NBA, 70NEB(1)(b), 70NFB(1)(c) Cases cited: Childers & Leslie (2008) 217 FLR 124; (2008) 39 Fam LR 379; (2008) FLC 93-356; [2008] FamCAFC 5
Dobbs & Brayson (2007) 215 FLR 30; (2007) FLC 93-346; [2007] FamCA 1261
In the Marriage of Zabaneh (1986) 11 Fam LR 167; (1986) FLC 91-766 at 75, 587
Irvin v Carr (2007) FLC 93-322; [2007] FamCA 492
Kardos & Harmon [2020] FamCA 328
Kelson & Dell [2020] FamCA 795
Masson & Parsons and Anor (No. 2) [2020] FamCA 585
May & Longley and Anor [2016] FamCAFC 184
McClintock & Levier (2009) FLC 93–401; 233 FLR 179; 41 Fam LR 245; [2009] FamCAFC 62
Millson & Halbert (No. 2) [2019] FamCA 869
Millson & Halbert [2021] FamCA 352
Pieper & Jesberg and Anor (No. 2) [2020] FamCA 749.
Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725
Sandler & Kerrington (2007) FLC 93–32; [2007] FamCA 479
Division: Division 1 First Instance Number of paragraphs: 76 Date of last submission/s: 3 September 2021 Date of hearing: On the papers Place: Sydney Counsel for the Applicant: Mr Blackah Solicitor for the Applicant: G & D Lawyers Solicitor for the Respondent: Solve Legal Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
SYC 6260 of 2007 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS HALBERT
Applicant
AND: MR MILLSON
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
1 OCTOBER 2021
THE COURT NOTES THAT:
A. The Respondent Father (“the father”) has established a reasonable excuse in respect of the one contravention upheld in the judgment dated 1 June 2021, and alleged in the Applicant Mother’s (“the mother”) Application – Contravention, filed on 23 October 2020.
B. The Court is satisfied that, in the best interests of the children the subject of the proceedings, it should exercise the discretion in s 70NBA of the Family Law Act 1975 (Cth) (“the Act”).
THE COURT ORDERS THAT:
1.The mother’s Application – Contravention filed on 23 October 2020 be dismissed.
Child Impact Report
2.Pursuant to s 62G of the Act, the parties and Y, born … 2006 and X, born … 2011 (“the children”) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (“the Court Child Expert”) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
(a)Part 1 of the event will occur by video, using Microsoft Teams, on 9 December 2021 with:
(i)the mother to attend at 9.00am; and
(ii)the father to attend at 10.30am.
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
(b)Part 2 of the event will occur in person at the Sydney Registry at 97-99 Goulburn Street, SYDNEY NSW 2000 on the morning of 13 December 2021. Specific details regarding the attendance of the parties and the children on this date will be provided to the parties in Part 1 of the event.
3.Each party will do all things necessary to ensure the children attend upon the Court Child Expert pursuant to s 62G(3A), unless otherwise determined by the Court Child Expert that s 62G(3B) applies.
4.The parties and the children shall continue to attend at such times, dates and places as the Court Child Expert may advise.
5.Not later than 4.00 pm on 8 October 2021, the parties must provide their contact telephone numbers and email addresses to …@fcfcoa.gov.au.
6.Pursuant to Order 2 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)any views expressed by the children and any matters (such as the children’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(d)the impact of the issues/dispute before the Court on the children;
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the children, with particular reference to the question of the children spending time with the mother, including the suitability of supervised time.
7.Upon completion, the Child Impact Report shall be provided to the Court for release to the parties, including by way of order made in Chambers.
8.The Court Child Expert will be at liberty to inspect any material filed by the parties, and otherwise the following:
(a)These orders and reasons for judgment;
(b)The orders and reasons for judgment dated 27 November 2019; and
(c)The orders and reasons for judgment dated 1 June 2021.
9.Within seven (7) days of the release of the Child Impact Report, the parties are to take all necessary steps to arrange to engage in mediation of any remaining parenting issues about which there is no agreement, with such mediation to take place by no later than 45 days thereafter.
Drug Testing
Urinalysis
10.The mother submit to urinalysis (under supervision and chain of custody) upon request by the Independent Children's Lawyer, with such urinalysis to be conducted in accordance with the Australian/New Zealand Standard 4308:2008 – Procedure for the collection, detection and quantitation of drugs of abuse in urine.
11.The Independent Children's Lawyer communicate any requests for urinalysis to the mother’s solicitor, or if unrepresented, the mother, in writing, with any test to be completed within 24 hours of receipt of such request, and be verified by a certificate which includes a temperature endorsement, and that
(a)The mother bear all costs for testing; and
(b)The results of the test be provided to the Independent Children’s Lawyer and the father’s lawyers, within 48 hours of their receipt.
Hair follicle analysis
12.The mother undertake a hair follicle analysis for drugs of abuse through ‘the Drug Detection Agency’ every three (3) months for a period of twelve (12) months from the date of these orders, with the first test to be undertaken and completed by no later than 19 November 2021, and that:
(a)The mother provide no less than three (3) centimetres of hair for such testing;
(b)The mother be restrained from taking any steps to interfere with the test result;
(c)The costs of the first two tests be shared equally between the mother and father, with the father to pay for the third and fourth tests; and
(d)The results of the test be provided to the Independent Children’s Lawyer and the father’s lawyers, within 48 hours of their receipt.
Other
13.The Independent Children’s Lawyer’s appointment shall continue for a further twelve months from the date of these orders, unless earlier discharged by the Court.
14.The Independent Children’s Lawyer has leave to relist the proceedings on seven (7) days’ notice.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Millson & Halbert has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).[1]
REASONS FOR JUDGMENT
HARPER J
INTRODUCTION
[1] Millson & Halbert
These proceedings are between the parents of Y born in 2006, and X born in 2011 (“the children”). The Applicant Mother is Ms Halbert (“the mother”). The Respondent Father is Mr Millson (“the father”).
This judgment comes following a judgment I delivered on 1 June 2021 concerning a contravention application filed on 23 October 2020 by the mother. In that judgment (“the June 2021 judgment”)[2], I considered allegations against the father of contravention of the Final Orders made on 27 November 2019 (“Final Orders”) in the final judgment delivered on the same date (“primary judgment”)[3].
[2] Millson & Halbert [2021] FamCA 352
[3] Millson & Halbert (No. 2) [2019] FamCA 869
This judgment should be read with the June 2021 judgment.
In the June 2021 judgment, I found the father had a case to answer in respect of Order 15(c) of the Final Orders, which specified that “the mother and father shall complete all necessary documentation and attend all appointments for the purpose of facilitation of time with the children.” This step in the final orders was intended to bring about supervised time between the children and the mother. As described in the June 2021 judgment, the father did not complete the necessary documentation to enable MM Contact Centre (“MM Contact Centre”) to begin supervision.
The father argued that his obligation to bring about supervised time was not triggered due to the mother’s failure to attend upon a treating psychiatrist. This psychiatrist was to provide a report addressing the mother’s compliance with the psychiatrist’s recommendations, following which the father’s obligation would be triggered. Although the mother attended upon Dr AA, who had been her treating psychiatrist for some time, the father argued that compliance could only be achieved by the mother obtaining a referral from her GP to a treating psychiatrist. I left the question of whether the father had a reasonable excuse for his contravention open for further determination.
Accordingly, I made the following orders in the June 2021 judgment:
1.By no later than close of registry filing on 21 June 2021:
(a) the Respondent Father file and serve any affidavit upon which he proposes to rely on the question of reasonable excuse;
(b) the parties have leave to file and serve any application for variation of the orders made on 27 November 2019, specifying the statutory basis for such variation, and the precise orders sought.
2.The proceedings be stood over to 23 June 2021 for mention
The purpose of Order 1(b) was to invite both parties to give consideration to making an application to vary the Final Orders under s 70NBA or other provision of the Family LawAct 1975 (Cth) (“the Act”), so that a fresh regime may be considered by the Court to enable the children to begin to spend time with their mother.
This judgment deals with the father's arguments of reasonable excuse. It also deals with the father’s Application in a Case filed on 21 June 2021, in which he seeks a variation of the Final Orders, and which was filed pursuant to Order 1(b). In summary, he proposes that the parties attend a Child Inclusive Conference, that supervised time begin with the mother if recommended by a Family Consultant, but prior to such time commencing and every three months thereafter, the mother undergo hair follicle testing and urinalysis.
The mother filed no application or affidavit in response to the father’s application for variation.
On 23 June 2021, the proceedings were before the Court for mention. All parties were represented. The mother advised the Court that the only likely outstanding issue in relation to the father's proposed variation of orders was the question of costs of hair follicle and urinalysis testing.
I ordered the father to file and serve written submissions concerning reasonable excuse by 7 July 2021, with the mother to respond by 21 July 2021.
The father filed written submissions in accordance with the Court's orders.
Subsequently, there was some confusion. This matter had been listed in a winter callover on 12 August 2021. On 5 August 2021, I made orders for the callover listing to be vacated. It appears that this did not occur. I intended to deliver judgment on 18 August 2021. However, unknown to me or the other parties, the mother’s solicitor attended the winter callover on 12 August 2021, and procured an extension of an additional four weeks to file written submissions, despite being the only party present at the callover and despite being already in default of the orders made on 23 June 2021.
The consequence of this turn of events has been further delay in delivery of judgment.
The mother filed written submissions on 25 August 2021, and the Independent Children’s Lawyer (“ICL”) filed submissions on 3 September 2021 regarding the variation of the Final Orders. The ICL did not participate in the contravention proceedings. However, the ICL made submissions concerning variation of the Final Orders under s 70NBA, to which I will return later in these reasons.
Accordingly, I have regard to the written submissions of the mother and father in determining whether the father had a reasonable excuse for his contravention, and to the mother, father, and ICL in determining whether the father’s application for a variation of the Final Orders should be granted.
REASONABLE EXCUSE FOR CONTRAVENTION
Applicable law
Section 70NAE of the Act outlines what amounts to a reasonable excuse for contravening an order affecting children. This contains a non-exhaustive list of circumstances. Section 70NAE(1) provides that: “The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in (2), (4), (5), (6) and (7)” (emphasis added).
Father’s submissions
The father does not contend that the circumstances of the contravention the subject of this judgment fall within any of those subsections. He submitted that the order contravened is not one dealing with whom a child lives with, spends time with, or communicates with. I accept this is correct. The mother did not seem to contend otherwise.
The father then referred to Childers & Leslie (2008) 217 FLR 124 (“Childers”), in which Warnick J said at [28]:
Moreover, the learned Magistrate may well have fallen into error by applying too loose a test of “reasonableness”. The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regard to the terms “reasonable grounds” and “reasonable excuse” in s 70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act. As Lindemayer J said of the term “any just cause” in In the Marriage of Lutzke (1979) 5 FamLR 553 at 559:
… However, the Act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “Palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.” (emphasis added)
Thus, it is settled in this Court that a reasonable excuse may be established by circumstances falling outside s 70NAE: Kardos & Harmon [2020] FamCA 328 at [58]. On the other hand, as the decision in Childers makes clear, the Court should not resort to some ill-defined concept of fairness or reasonableness.
The father also relied upon the following provisions of the Act:
(a)Section 60CA, which provides that “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.”
(b)Section 60CC(2), which provides that in determining a child’s best interests,
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
and
(c)Section 60CC(2A), which provides that: “In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
Accordingly, the father argued that he responded and acted protectively in accordance with a need to protect the child from harm. I infer that he argues that this forms one of his responsibilities as a parent, which the Court is required to consider in any parenting mater. He submitted that his conduct, by failing to complete the documentation for MM Contact Centre, was proactive to protect the children, and that this constitutes a reasonable excuse for the purposes of the Act.
In his affidavit affirmed on 21 June 2021, the father referred to evidence which came to light during the final hearing in July 2019 that the mother was in a relationship with a “Mr J.” Furthermore, a Risk of Harm Report was made to the Department of Communities and Justice which raised the possibility that the mother was using ice. The mother had also failed to undertake a hair follicle test as ordered by consent on 5 July 2019, and cut her hair very short in a deliberate attempt, according to the father, to circumvent this order: see primary judgment at [169] – [172]. The father stated that at the time of making his affidavit, he was yet to receive a drug test result from the mother.
In the primary judgment, I recorded that the evidence showed the interactions between the mother and Mr J over a number of years were marked by violence and alcohol abuse: primary judgment at [47] – [51]. There, I accepted expert evidence that the mother was susceptible to uncontained and highly dysregulated emotional responses: at [168]. Although I made no finding of actual drug abuse by the mother, I concluded that her failure to undergo a hair follicle test in accordance with consent orders demonstrated an uncontained and emotionally dysregulated psychology, because a more regulated emotional response would have been to ensure any concerns about drug use were put to rest by undertaking the necessary test: at [170]. At [225] of the primary judgment I held as follows:
This short history between 12 June and 31 July 2019 satisfies me that the mother was indeed repeating a pattern of taking steps to ensure the father did not spend time with the children. The children may have been ill on some of the occasions as alleged by the mother, but the further emails from Y, and the more general history of the mother’s conduct make it more probable than not that the children were put into a considerable state of anxiety by the dysregulated emotional state and behaviour of their mother and the conflict she has caused them by using them in her dealings with the father.
Despite his concerns about the mother in early February 2020, the evidence shows the father sought to comply with the Final Orders and commenced the intake process with MM Contact Centre. On 10 February 2020, the father received a form completed by the mother in which she proposed for supervised time to take place at her home. The father opposed this as the children had lived there during times the father had also lived there, and he feared this may trigger unhappy memories for them. Furthermore, the father expressed concerns that Mr J was also living with the mother and wanted “to avoid them having anything to do with him.”
The father was then contacted by Constable NN of Z Police Station on 24 February 2020. In his affidavit, the father deposes to a conversation with Constable NN in which he was told, amongst other things, that the mother was in no fit state to be looking after the children, and in no way ready to be able to spend any time caring for them. This led the father to issue a subpoena to NSW Police.
The father annexed to his affidavit inspection notes of documents produced on subpoena by NSW Police. These record an incident on 24 February 2020 involving the mother and Mr J. An argument took place between them, following which she ingested four Valium and went to bed. Mr J then attended the mother’s home at 9.00am the following day, taking her house and car keys, mobile phone, and $50. He returned at 4.00pm to return her phone. The mother also made an allegation that during a further argument, Mr J pulled a sliding door mirror off its hinge, which hit the mother on the head. As Police sighted no injuries and the mother’s story continually changed in the course of speaking with the Police, they deduced that she had taken Valium, fallen asleep for most of the night and, on the following day, had attempted to contact Mr J. The police also concluded that while the mother was seated on her bed, the mirror door came off its track and fell on her, after which she contacted triple 0 to make the allegation against Mr J.
It is concerning that the mother’s version of events in relation to 24 February 2020 is inconsistent with the subpoenaed documents. At [18] of her affidavit sworn 14 October 2020, she alleges that she had “a bout of fatigue as a result of my amnesia” and was “concussed.” The Police, however, described the mother as being in good health, coherent, declining an ambulance when offered, and with no injuries sighted. Furthermore, when asked how she was feeling, the mother replied that she was drowsy from taking the Valium.
The behaviour described at [27] and [28] bears a marked similarity to evidence of violent interactions between the mother and Mr J set out at [48] – [50] of the primary judgment, including the mother’s attempt to sanitize what took place.
The father’s solicitor’s notes also disclose an incident on 28 November 2019, just after the primary judgment was delivered, when Police attended the mother’s home to conduct a welfare check. They were unable to raise her despite prolonged knocking, therefore forcing them to enter the house through an open window where they located the mother asleep in the children’s bedroom.
The father was concerned that despite this contact, the psychiatrist engaged by the mother, Dr AA, made no mention of this incident.
The father also refers to a conversation with Ms N, a psychologist from ‘HH Group’ who is presently seeing the children. Subpoenaed material included an email sent from Ms N to the father on 24 February 2020, after he had informed her of the call from the Police.
That email states that “It appears the Constable was being very frank and clear with you that Ms Halbert is not in a fit state to be seeing the girls.” It is not the case, as the father submits, that Ms N’s advice was that the mother was not in a position to see the children. Rather, it appears from the wording of the email that she drew inferences from Constable NN’s perception of the situation, while appearing to favour his opinion herself.
Mother’s submissions
The mother submitted that the father has deliberately frustrated the orders made, and that they are against the recommendations of the ICL who is in favour of recommencing contact between the mother and the children.
In responding to the father’s submissions, the mother asserts that the father has relied on two unsworn statements from Constable NN and Ms N.
The mother criticises the father’s evidence about the information received from Constable NN and Ms N. She points out there was no sworn first-hand evidence from either. In respect of Constable NN, she argued that his opinion about the psychological state of the mother and her ability to participate in supervised visitation with the children was “not a valid basis for the Father to contravene the Orders in place”. I do not accept these contentions.
The mother also raises an objection to Ms N, as she is not the mother’s psychologist. In her written submissions, she contends “it is unclear as to why Ms N would make any such assertion as to the mental capacity of a party who is not her client, and why the Father would rely upon such an assertion.”
Division 12A of Part VII of the Act applies to this application. The father’s evidence of the statements from Constable NN and Ms N is admissible by reason of s 69ZT(1), and the Court may give it such weight (if any) as it thinks fit: s 69ZT(2).
It should also be emphasised the question is not really whether the evidence proves what Constable NN or Ms N told the father was true. Rather, the question is whether the father reasonably thought the information given by either of them was, or could be true, and alternatively, whether, as an expression of opinion, it should be given serious consideration by him as the father. I accept that the father’s response to what he heard was reasonable, especially when viewed against the history of the matter and the factual findings about the mother and Mr J in the primary judgment. To repeat, at [171] of the primary judgment, I found that the evidence raised a legitimate concern about possible illicit drug use by the mother, and her failure at that time to obtain a hair follicle test exacerbated that concern.
Furthermore, Ms N, as the children’s therapist, is a treating health professional with some knowledge of the background of the children. The father could, and did, reasonably take the view that she would have an understanding of the children’s past relationship with their mother and his concerns for their safety.
The mother submitted that the father should have brought the matter back before the court, rather than to “unilaterally make the decision to contravene Court orders.” I accept that this was certainly an option open to the father. Order 39 of the Final Orders specifically granted leave for either party or the ICL to relist the proceedings on seven days’ notice in respect of any application concerning implementation of the Final Orders. Likewise, the mother could also have taken this course in early 2020. However, failure to take that option does not necessarily mean the father’s contravention is without a reasonable excuse. It remains open for me to make a finding that the father acted reasonably based on the information known to him at the time of the contravention.
The mother relies on numerous statements by Dr AA, who believes her to be in a position to commence supervised contact. She submits that the father was unreasonable in relying on two non-parties’ assessments of the mother’s mental capacity, rather than her own psychiatrist.
It is true that in the June 2021 judgment, I found that the father was not entitled to determine whether Dr AA was a suitable treating psychiatrist of the mother. But the father had formed a view about the report of Dr AA based on his belief about the incident on 24 February 2020, coupled with the fact that Dr AA made no mention of any incident between the mother and Mr J on that date. In my view, the father reasonably formed a concern that the mother was not being honest with Dr AA. In light of that possibility, it was reasonable for the father to form the view, contrary to Dr AA, that the mother may pose a risk to the children which the orders for supervised contact, depending on its venue, may not adequately address.
Furthermore, the father refers to numerous other incidents and factors which support his case that his contravention was reasonable. These have been addressed above and include:
(a)The risk of triggering unhappy memories in the home which the mother proposed for contact to take place in;
(b)The mother’s failure to undertake a hair follicle test as ordered by consent on 5 July 2019, her subsequent cutting of her hair short to circumvent the order, and the fact that he has yet to receive a drug test result;
(c)The incident of 24 February 2020 between the mother and Mr J and the mother’s subsequent attempt to sanitize the situation; and
(d)An incident on 30 March 2020 where the mother texted a friend that she had taken 25 Valium tablets and to check on her the following day. Police attended the mother’s house and found the mother asleep in bed. She appeared drowsy, but denied taking any tablets. The mother was admitted to hospital voluntarily.
The mother, in her submissions, did not attempt to address any of these incidents nor raise an argument as to why I should find the father’s reliance upon them to be unreasonable.
Assessment of reasonable excuse for contravention
Objectively assessed, I am satisfied that the information available to the father between February and May 2020 raised a legitimate fear that the mother remained dysregulated in her behaviour, and may have been using illicit drugs. In particular, the possibility that the children may be exposed to Mr J, or conflict between the mother and Mr J, was a reasonable concern. These factors establish a reasonable excuse for his one contravention. I am satisfied the father acted in a proactive way to protect the children from the conduct of the mother, which was similar to the dysregulated behaviour which had been considered and discussed in the primary judgment.
VARIATION OF FINAL ORDERS
Having found the father had a reasonable excuse, the more pressing question is what now should be done. Almost two years have passed since the Final Orders were made. As I understand her evidence, the mother has not seen the children in that time. The world has been afflicted by the Covid-19 pandemic, which in NSW has caused serious disruption to normal patterns of life, and in particular placed restrictions on movement. It has disrupted numerous regimes for parenting ordered by this Court, despite steps to ameliorate this impact.
Submissions
The father, by his Application in a Case of 21 June 2021, seeks additional orders to the Final Order pursuant to s 70NBA of the Act. In summary, he seeks that:
(1)The parties to attend a Child Inclusive Conference;
(2)In the event the Family Consultant recommends time with the children, time will proceed according to Order 16 of the Final Orders (that being supervised for two hours each fortnight for three months, followed by a staggered increase);
(3)The mother undergo hair follicle testing every three months for a period of two years;
(4)The mother also undergo a chain of custody urinalysis test no earlier than three days before every third occasion of time spent with the child;
(5)The mother bear the costs of all testing; and
(6)Failure of any test will require the mother to provide two clean hair follicle tests, at least three months apart, before time may recommence.
The father otherwise does not seek to vary any of the Final Orders.
In his written submissions, the father states that he has reconsidered the matter further, and is now willing to pay for every third drug test, on the proviso that the mother has paid for the previous two tests, tested negative, and provided proof of payment. It is unclear whether his proposed contribution applies to the hair follicle testing, urinalysis, or both. Furthermore, he submits that all testing would cease after twelve months.
The mother did not file a response to the father’s Application in a Case. Her written submissions made only brief reference to it. Rather unhelpfully, she merely submitted that she opposes the father’s application, even though she is the parent who has claimed to be prejudiced by the father’s contravention. It is not clear which of the father’s proposed orders she objects to or why. She makes no proposal for a variation to the final orders to progress the proceedings. Rather, her submissions seem to assume that the Final Orders could simply be re-engaged and complied with. She nevertheless agrees to continue to submit to urinalysis at her own expense, and hair follicle testing on the condition that the father pay the costs in full.
The ICL submitted that there is no independent evidence before the court to indicate that the mother has abstained from any illicit drug use. This is concerning, bearing in mind that the mother came to the attention of the NSW Police as a result of the incident on 24 February 2020. The evidence about this incident raises an inference of possible drug use by the mother.
The ICL proposes that the children first meet with Ms N to discuss the reintroduction of time between them and the mother. Like the father, the ICL proposes that I make orders for what is now called a Child Impact Report, pursuant to s 62G of the Act. Following this report, an update from Ms N, and a clear drug test from the mother, the parties should then consider how best to manage the reintroduction of time.
Applicable law
The statutory basis for the father’s application is s 70NBA of the Act, which provides that:
(1) A court having jurisdiction under this Act may make an order varying a primary order if:
(a) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b) it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the court does not find that the person committed a contravention of the primary order; or
(ii) the court finds that the person committed a contravention of the primary order.
(2) If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a) the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post‑separation parenting program or a part of such a program;
(b) there was no post‑separation parenting program that the person who contravened the primary order could attend;
(c) because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court’s opinion, for the person to attend a post‑separation parenting program, or a part of such a program;
(d) the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3) This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
Subdivision F addresses contraventions made without a reasonable excuse. As I have already found, the father had a reasonable excuse for his contravention.
In Sandler & Kerrington (2007) FLC 93–32 (“Sandler”), Warnick J at [48] stated:
In my view, that a variation made pursuant to s 70NBA is to be approached no differently to any other application for parenting orders (except for the possible added considerations if ss (2) applies), is apparent from:
Section 60CA Child’s Interests Paramount Consideration in Making a Parenting Order
Section 60CC How a court determines what is in a child’s best interests
Section 61DA Presumption of Equal Shared Parental Responsibility when making parenting orders
Section 64B Meaning of Parenting Orders and related terms. Subsection (1) of s 64B provides:
(1) A parenting order is:
(a) an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b) an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
“Primary Order” as defined in s 4(1) “means an order under this Act affecting children and includes such order as varied”.
The Full Court approved this decision in Irvin v Carr (2007) FLC 93-322 at [68]. Sandler is often cited for the proposition that before the Court exercises the discretion in s 70NBA to vary final parenting orders, it should be satisfied that the principles articulated in Rice & Asplund (1978) 6 Fam LR 570 are satisfied (Sandler at [50]). That is, there must have been a change of circumstances sufficient to provoke a fresh enquiry into the parenting arrangements for the children: see also Kelson & Dell [2020] FamCA 795 at [44] and [45].
However, there is some controversy in the authorities. Strickland J, sitting as the Full Court, said in May & Longley and Anor [2016] FamCAFC 184 at [35] that:
…once a contravention application is before the court, the court’s discretion is at large, and an order may be made pursuant to s 70NBA irrespective of whether “new facts and circumstances” are present or not. Thus, if the evidence justified it, then it was open to his Honour to make the parenting orders proposed by the respondents, without first determining whether there were “new facts and circumstances” present as a precondition to making those orders.
Section 70NAA(1) of the Act provides that Division 13A, into which s 70NBA falls, “deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.” The Full Court in McClintock & Levier (2009) FLC 93–401 held at [233] that “The focus of a court therefore in dealing with a contravention application under Division 13A must be in making orders which will enforce future compliance with its orders.” This focus should therefore be one consideration which informs any exercise of the discretion in s 70NBA.
Furthermore, the authorities hold that there is a limit to the scope of the s 70NBA discretion. In Dobbs & Brayson (2007) 215 FLR 30 at [130], the Full Court (Finn, Boland and Warnick JJ) held that varying parenting orders pursuant to s 70NBA of the Act to incorporate definitive changes to the existing parenting orders, as opposed to one-off compensatory changes pursuant to s 70NEB(1)(b) or s 70NFB(1)(c) of the Act, requires a
…fulsome consideration of all of the relevant factors” including “all the relevant s 60CC factors and in particular the question of why, an order having been made, it was then appropriate that there be a “final change”.
Austin J in Masson & Parsons and Anor (No. 2) [2020] FamCA 585 at [32] accepted the submission that
at least implicitly, s 70NBA of the Act is reserved for use to ensure that operable orders are only discharged, varied or suspended so as to cure anomalies in the orders which are exposed by the parties’ contravention dispute – not to authorise the wholesale or profound restructure of long-standing parenting arrangements.
The considerations set out in s 60CC of the Act must be considered, provided that there is an indication that an order should be varied or discharged to better serve the best interests of the children: Pieper & Jesberg and Anor (No. 2) [2020] FamCA 749.
Accordingly, although s 70NBA gives the Court a discretion to vary parenting orders, this discretion is confined. The variations should be limited in that they should only attempt to cure the issues exposed by the contravention, there cannot be a usurping of the whole parenting regime, and the best interests of the child remain paramount. Before a wholesale or profound restructuring can take place, the Court should be satisfied that there has been a change of circumstances sufficient to provoke relitigation of the parenting issues between the parties. However, where, because of a contravention, final orders cannot simply operate according to their terms, but a variation which returns them to an operable state can be made, a variation is preferable unless the Court forms the view this would not be in the best interests of the children.
Discussion
Clearly, despite Final Orders being made in November 2019 for the mother to commence supervised time with the children, this has not occurred. The question is what now should be done by the Court. It equally clear that the Final Orders cannot now be fully implemented in their original form, in that the steps intended to bring about supervised, followed by unsupervised, time between the children and the mother have been disrupted by a number of factors. These are, namely, the father’s contravention, subversion by the elapse of time, and disruptions caused by the Covid-19 pandemic.
Even if it is not necessary to make such a finding, I should also state that I am satisfied that these factors constitute a change of circumstance sufficient to provoke at least a fresh enquiry.
The additional orders proposed by the father do not constitute a wholesale or profound restructuring of long-standing parenting arrangements. They are intended to bring about a situation which could enable the Final Orders stipulating time with the mother to be re-engaged. As pointed out, the mother made no suggestion, realistic or otherwise, to help bring about any resumption of time between her and the children. The mother, broadly speaking, simply seeks a re-engagement with the Final Orders.
I am not persuaded this is possible without some further orders. I accept the submission of the ICL that the length of time which has elapsed since the children last saw the mother makes it impossible for the Court to know what psychological impact an immediate resumption of time will have upon the children, even if this time was supervised. The passage of time since the children last saw their mother counsels against exposing the children to their mother in any abrupt or immediate manner.
Given the intention of the Final Orders, further orders that move the children to reintroduction of time with the mother are desirable. However, I do not see how this can be done without some better evidence. Although I am satisfied that the mother did obtain psychiatric assistance, in accordance with Order 8 of the Final Orders, the last known record of her seeing Dr AA was on 27 February 2020. I have not been provided any recent evidence as to whether or not the mother continues to engage with Dr AA, or any other form of psychiatric help.
Evatt CJ said in In the Marriage of Zabaneh (1986) 11 Fam LR 167; (1986) FLC 91-766 at 75, 587 (Fogarty and Renaud JJ agreeing) that “The issues involved in reconsidering access relate much more directly to the children and their needs, their own attitudes and wishes”. Given the length of time that has passed since the children have seen their mother and their older ages, the findings in the primary judgment about their needs, attitudes, and wishes should be reconsidered, or at least be considered with fresh evidence.
In the June 2021 judgment at [54], I stated that “I observe, without expressing a view, that it may be desirable for some further expert assessment involving the children, such as a Child Inclusive Conference.” After considering the evidence and submissions further, I am satisfied that some further expert assessment is necessary. In the circumstances, I am satisfied an order for a Child Impact Report is the best way to achieve this, despite any attendant delay. The current circumstances of Covid-19 mean that any meeting between the parties, children, and expert, would have to take place electronically. This actually may assist interviews to take place sooner rather than later. A Child Impact Report will also involve some assessment of the parents, which will be helpful particularly on the mother’s part.
There is also merit in the ICL’s suggestion that the views of the children be ascertained through a Child Impact Report and consultation with Ms N. This particularly so given Y is currently 15 years old, and X is about to turn 10 years old. I have no recent evidence as to the children’s views, and much has, or may have, changed since 2019. At the age of 15, supervised time would ordinarily be unusual, so evidence of Y’s views in particular, is important.
I am informed by the ICL that the children had a meeting scheduled with Ms N on 25 September 2021. I am persuaded that the children have a good relationship with Ms N, having considered the evidence in the father’s affidavit which shows that she has seen their progression as they settle into new routines. If the Court is required to undertake any further hearing of the matter, it would be desirable for evidence from Ms N to become available to the Court, although I will not make an order compelling this to happen.
I also accept that there should be updated testing of the mother for the use of illicit substances. Both parents suggest that the mother undertake urinalysis and hair follicle testing. The father suggests this should happen for a period of twelve months. The mother agrees to voluntary surveillance urinary testing at her own expense. She would also submit to hair follicle testing, if the father pays for it. The father has offered to pay for every third test.
Accordingly, I propose to make an order for the mother to undertake hair follicle testing and urinalysis. Urinalysis testing should take place upon request by the ICL for a period of twelve months, with the mother to bear the costs. The hair follicle tests should take place every three months for a period of twelve months, with the costs to be shared equally for two tests and the father to bear the costs of the third and fourth tests. I accept the father’s submission that the mother should be incentivised to abstain from drug use, and that her contributions towards payment mean she is more likely to abstain if she has an investment in the results of the tests.
I will also order the parties to undertake mediation once a Child Impact Report is available to them.
If the parties cannot resolve any further parenting disagreements once the contemplated further evidence is available, the Court will, if necessary, be able to make such orders as seem appropriate to refine or to re-engage the operation of the final orders. I realise the proposed orders will, in a practical sense, cause delay in implementing any further final orders. However, I see no alternative to this to ensure the best interests of the children, and it seems unavoidable, especially with the lengthy lockdown which will afflict NSW until mid-October 2021.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 30 September 2021
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