Millson & Halbert

Case [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…

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Millson & Halbert [2021] FedCFamC1F 94
Case
[2021] FedCFamC1F 94
Decision Date

CaseChat Overview and Summary

The proceedings in the Family Court of Australia, Millson & Halbert, involved a contravention application filed by the mother against the father concerning the final orders made on 27 November 2019. The dispute centred on the father's failure to complete necessary documentation to facilitate supervised time between the children and the mother. The father argued that his obligation was not triggered due to the mother's failure to attend upon a specified treating psychiatrist. This case follows a previous judgment on 1 June 2021, where the court found that the father had a case to answer in respect of Order 15(c) of the Final Orders, which mandated the parents to complete all necessary documentation and attend appointments to facilitate time with the children.

The primary legal issues the court was required to decide were whether the father had a reasonable excuse for his non-compliance with the Final Orders and whether there were grounds to vary the Final Orders. The father argued that his obligation under the orders was contingent upon the mother attending upon a treating psychiatrist as per his instructions, not the psychiatrist she had been seeing for some time. Additionally, the father filed an application seeking a variation of the Final Orders, proposing a new regime for supervised time that included regular drug testing for the mother.

In its reasoning, the court considered the father's arguments for a reasonable excuse and the application for variation of the Final Orders. The court found that the father did not have a reasonable excuse for his non-compliance, as the orders did not specify that the mother had to attend upon a particular psychiatrist. Furthermore, the court noted that the mother had been seeing a psychiatrist for some time, and this should have been sufficient to trigger the father's obligations. Regarding the variation application, the court acknowledged the father's concerns but found that the proposed changes were not necessary at this stage. The court made orders inviting the parties to consider an application to vary the Final Orders, ensuring a fresh regime could be considered to facilitate the children's time with their mother.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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