Neate & Malin

[2021] FamCA 555

FAMILY COURT OF AUSTRALIA

Neate & Malin [2021] FamCA 555

File number(s):	SYC 5038 of 2015
Judgment of:	REES J
Date of judgment:	29 July 2021
Catchwords:	FAMILY LAW – CONTRAVENTION APPLICATION – Application and Response dismissed.
Number of paragraphs:	10
Date of hearing:	29 July 2021
Place:	Sydney
Solicitor for the Applicant:	Ms Lam, Christina Lam & Associates
Solicitor for the Respondent:	Ms Turnbull, Turnbull Law Pty Ltd

ORDERS

SYC 5038 of 2015

BETWEEN:

MS MALIN

Applicant

AND:

MS NEATE

Respondent

ORDER MADE BY:	REES J
DATE OF ORDER:	29 JULY 2021

THE COURT ORDERS:

1.That the Application – Contravention filed by the mother on 5 May 2021 is dismissed.

2.That the Response filed on 13 July 2021 is dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Neate & Malin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Rees J:

1. On 29 September 2020, I delivered reasons and made orders in contested proceedings relating to the parenting arrangements for Y who was born in 2015. The applicant in those proceedings was Ms Malin (“the applicant”) who is Y’s mother. The respondent was Ms Neate (“the respondent”) who is Y’s paternal grandmother and has cared for Y since he was six weeks old.

2. Relevantly, the following orders were made:

   (1)That all previous Orders in relation to the child Y born in 2015 be discharged.

   (2)      That Y live with the paternal grandmother.

   (3)      That the paternal grandmother have sole parental responsibility for Y.

   (4)That the father spend time with Y as agreed with the paternal grandmother and supervised by her or her nominee.

   (5)      That Y spend time with the mother:

   (a)For a period of one year from the date of these orders at a supervised contact centre for two hours on each alternate Saturday, then:

   (b)For four hours each alternate Sunday as agreed, in order to accommodate Y’s medication routine, and in the absence of agreement between 10am and 2pm.

   (6)That for the purpose of Order 5(b), for the first four periods of time, the paternal grandmother shall be present and in such proximity as she deems necessary and the visit will occur at a place agreed between the mother and the paternal grandmother. Thereafter, the mother will collect the child at the beginning of the period from the place nominated by the paternal grandmother and return him at the end of the period to the place nominated for return by the paternal grandmother.

   (7)That each of the paternal grandmother and the mother shall complete any intake procedure, interviews and documentation required by the contact centre from time to time.

   (8)That as soon as possible, and in any event within two months of the date of these orders the mother shall complete Chain of Custody hair follicle testing and provide a clear result to the paternal grandmother and the father as follows:

   (a)The testing is to be conducted by D Pathology and undertaken to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory;

   (b)The hair drug and alcohol test must screen for drugs of abuse including amphetamine-type substances and metabolites (including but not limited to methamphetamines), cannabis and metabolites, cocaine and metabolites and opioids and metabolites;

   (c)       The cost of the hair drug test is to be met by the mother.

   (9)That thereafter the mother undertake hair follicle testing every three months in accordance with Order 8 continuing after she starts having time with Y in accordance with Order (5)(b) for two testing periods.

   (10)That in the event that the mother fails to provide a hair follicle test as provided in these orders, or provides a result that is positive for prohibited substances, or fails to attend a contact visit without giving proper notice, the operation of these Orders is suspended.

   (11)That the mother communicate with Y by electronic means such as telephone, Skype or FaceTime once each week as agreed with the paternal grandmother.

   …

   (Emphasis added)

3. On 5 May 2021, the applicant filed an Application – Contravention, alleging that the respondent, without reasonable excuse, failed to comply with Order 5(a) on 9 January 2021 and each fortnight thereafter until and including 17 April 2021. She also alleges that the respondent failed to provide her with telephone or electronic contact pursuant to Order 11 from 8 January 2021 until 16 April 2021.

4. The orders required the mother to provide the hair follicle testing report by 29 November 2020.

5. The respondent reminded the mother on or around 20 October 2020 that the tests were to be provided by 29 November 2020.

6. It is her evidence that she did not commence the process until 26 November 2020 but the sample she gave on that day was not tested. She attended again on 29 December 2020 and made an appointment to give another sample.  She gave the second sample on 5 January 2021. The results of testing the second sample were given to the respondent on 21 January 2021.

7. The effect of Order 10 made on 29 September 2020 is that, when the mother failed to provide the hair follicle testing result by 29 November 2020, all orders for contact were suspended.

8. There were therefore no operative orders which provided for the applicant to have contact with Y, either at the contact centre, or electronically, after 29 November 2020.

9. The respondent has not contravened any operative order.

10. The application will be dismissed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.

Associate:

Dated:       29 July 2021