Ness & Firmin
[2021] FCCA 1669
•2 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ness & Firmin [2021] FCCA 1669
File number: AYC 144 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 2 July 2021 Catchwords: FAMILY LAW – interim parenting – absence of court orders – spend time arrangements for the children – hair follicle drug testing – strict requirements of identification – psychiatric assessments ordered Legislation: Family Law Act 1975 (Cth) Cases cited: Goode & Goode [2006] FLC ¶93-286.
Re F: Litigants In Person Guidelines (2001) FLC ¶93-072
Number of paragraphs: 58 Date of last submission: 2 July 2021 Date of hearing: 1-2 July 2021 Place: Melbourne Counsel for the Applicant: Ms R Dart Solicitor for the Applicant: Myers Family Lawyers The Respondent: Appeared In Person Solicitor for the Independent Children's Lawyer: Ms D Garwell of Robindale Legal ORDERS
AYC 144 of 2021 BETWEEN: MR NESS
Applicant
AND: MS FIRMIN
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
2 JULY 2021
Amended pursuant to rule 16.05(2)(e) of the Federal Circuit Court Rules 2001 on 7 July 2021
THE COURT ORDERS THAT:
1.The Mother, Ms Firmin ("the Mother'), do all acts and things to cause and direct that the children, X born 2010, Y born 2012, and Z born 2014 ("the children"), be delivered by 4:30pm this day to the office of the Independent Children's Lawyer (Robindale Legal) for a conference with the Independent Children's Lawyer.
2.The Father, Mr Ness ("The Father") to collect the children from the office of the Independent Children's Lawyer.
3.The children live with the Father.
4.The children spend time with the Mother as follows:
(a)Until the Mother produces a clean supervised hair follicle test, as defined herein, to the Independent Children's Lawyer and the Father's solicitors, commencing on Sunday 11 July 2021 each Sunday from 10:00am until 4:00pm and each Sunday thereafter at those times.
(b)After the Mother has provided the clean hair follicle test showing no use of illicit substances for a period of 30 days prior to that test, and commencing the weekend at the end of the week after the week that the test is provided to the Independent Children's Lawyer and the Father's solicitors then, as follows:
(i)During school term each alternate weekend from after school Thursday to before school the following Monday, or Tuesday if that Monday is a non-school day, and each alternate weekend thereafter at those times; and
(ii)During school term commencing in the week following the weekend time provided above, from after school Thursday to before school the following Friday morning and each alternate week thereafter at that time; and
(iii)For one week of each school term holiday and in default of agreement the first week; and
(iv)During the long summer holidays for one half of the holidays in one week blocks and in default of agreement the Mother have the first week from the conclusion of school and each alternate week thereafter, but the children to be returned to the Father's care two days prior to the commencement of the next school year; and
(v)On Christmas day if the children are not otherwise in her care from 4:00pm Christmas day today 4:00pm Boxing Day and if the children are not otherwise in the Father's care they be in his care from 4:00pm Christmas Eve until 4:00pm Christmas Day.
(vi)As otherwise agreed between the parents in writing or text message.
5.Changeover that is not to occur to and from school is to occur at Location A at the B City Shopping Centre.
6.For the purpose of these Orders a clean supervised hair follicle test, is as follows: the Mother shall as soon as practical, when she is confident the hair follicle test will be "clean" for the previous 30 days do all acts and things and sign all documents necessary to facilitate a supervised chain of custody hair follicle testing by AWDTS or their agent for testing relating to the previous 30 days as follows:
(a)provide a sample of hair preferably at least 3.9cm in length.
(b)The purpose of the hair follicle testing shall be to test for:
(i)Amphetamine, methamphetamine, MDMA, ecstasy;
(ii)Marijuana and its metabolites;
(iii)Cocaine and its metabolites;
(iv)Opiates.
7.To facilitate the Mother undertaking hair follicle testing in accordance with order 6 the Mother shall contact AWDTS or their agent to arrange a locality for the supervised hair follicle test to take place.
8.Until completion of the hair follicle testing the Mother shall refrain from taking any step which may interfere with the provision of hair samples or to interfere with the test results including taking any step to shave, cut, shorten, colour, bleach any scalp or body hair and the Mother shall be restrained from cutting their head and body hair shorter than 3.9cm in length.
9.The Mother is directed to provide a copy of these orders to the relevant testing facility.
10.The hair follicle testing described herein at paragraphs 6-9 is for the purpose of these orders the "clean supervised hair follicle test".
11.The children communicate with the Mother via Facetime (or similar) each Tuesday and Thursday between 6.30pm to 7:00pm with the Mother to initiate the call to the Father's mobile telephone number.
12.Each party is restrained from contacting, telephoning or text messaging the children or any of them during the time that that child will be in the care of the other parent pursuant to these orders.
13.The Mother be, and hereby is, restrained by injunction from:
(a)Consuming illicit drugs and/or alcohol whilst the children are in her care or within the 24 hours prior to the children entering into her care;
(b)Approaching, contacting or communicating with the children or any of them other than as permitted by these orders or agreed to by the parties in writing;
(c)Publishing, broadcasting or posting anything on any social media or internet site or other public forum concerning the father and/or these proceedings; and
(d)Presenting the children to any psychiatrist, psychologist and/or counsellor without the written consent of the father or Independent Children's Lawyer order of this Court, save for the court processes.
14.The parties be, and hereby are, restrained by injunction from:
(a)Discussing the proceedings or the spend time arrangements with the children;
(b)Criticising, denigrating or speaking negatively about other parent or their family members to or in the presence or hearing of the children.
15.Except in the case of an emergency, the parties are to communicate about the welfare of the children and children's arrangements by using the My Family Wizard App, text message or email.
16.The parties keep each other informed of:
(a)Their residential address, mobile number and email address and are to notify each other of any change to same within 24 hours of such same;
(b)Any serious health issue concerning the children or any of them, including any attendance by the children upon a medical specialist and/or hospital.
17.Both parents be at liberty to obtain from any school, medical practitioner or allied health professional attended by the children or any of them such information or documentation as each parent may request and that these orders serve as sufficient authority for such information to be provided.
18.Subject to any lawful direction of the school principle or delegate thereof, both parents are at liberty to attend any school, sport or extra-curricular activity for the children to which parents are generally invited save as provided in these orders and save that neither party is to approach or communicate with the other at such events.
(a)Subject to any lawful direction of the school principle or delegate thereof
(b)In the event of a school changeover the Father is not to attend the school 45 minutes before or after the Mother is expected or due to be there.
(c)The Mother is not to attend the school 45 minutes before and after the Father is expected or due to be there for collection or return of the children from and to school.
(d)The children's school be provided with a copy of these orders.
19.Within 75 days the Mother and the Father each attend upon Dr C, Psychiatrist, for a forensic psychiatric assessment and for this purpose:
(a)That within 7 days of these order, the Mother and Father contact Dr C's rooms to make an appointment for a psychiatric assessment;
(b)That the Mother and Father to provide written confirmation to the other/legal representative and the Independent Children's Lawyer once an appointment has been made;
(c)That the Independent Children's Lawyer forward to Dr C:
(i)A copy of these orders;
(ii)All documents produced under subpoena;
(iii)The section 67Z Response from the Department of Families, Fairness and Housing;
(iv)The report of Ms D;
(v)All affidavit material filed in these proceedings;
(vi)The hair follicle, CDT and liver function tests of the mother;
(vii)Such other documents as may be agreed between the parties in writing.
20.The Mother be responsible for the cost of Dr C's report concerning herself and the Father will be responsible for the cost of Dr C's report concerning himself and that in preparing his report, Dr C be requested to address:
(a)Whether the Mother and Father has a diagnosable mental health condition or personality disorder, and if so:
(i)
HerThe diagnosis;(ii)The manner and extent to which such diagnosis impacts the Mother's and Father's functioning; and
(iii)The implications (if any) with respect to the Mother's and Father's parenting capacity.
(b)The Mother's and Father's prognosis;
(c)Any recommendations for treatment or other interventions for the Mother and Father; and
(d)Any other matter which the expert considers relevant.
21.Pursuant to r. 15.09 of the Federal Circuit Court Rules 2001, Ms D be appointed as a single expert to undertake an assessment of the parties and each of the children and to prepare a report addressing:
(a)The benefit to the children of having a meaningful relationship with each of their parents;
(b)The willingness and capacity of each of the parents to foster and support a meaningful relationship between the children and the other parent in a way that is safe and promotes their best interests;
(c)An opinion as to whether the children or either of them have been, or are at risk of, being abused, neglected or exposed to family violence in the care of either parent;
(d)An opinion as to whether any risk issues identified in the assessment can be satisfactorily ameliorated and if so, how;
(e)Any views expressed by the children (or either of them) and any factors (such as the child's maturity or level of understanding) which the expert considers may inform the weight that the Court attaches to such views;
(f)The nature of the relationship between the children and each of their parents and any other significant person;
(g)The likely effect of any change to the children's circumstances, including the likely impact of any separation from either of their parents and other significant persons;
(h)The parenting capacity of each of the children's parents, including their capacity to provide for the needs of the children;
(i)An assessment into the attitude of both parents to the responsibilities of parenthood;
(j)Any other matter Dr C considers relevant.
22.In preparing her report, Ms D be requested to have regard to:
(a)All documents produced under subpoena;
(b)The section 67Z Response from the Department of Families, Fairness and Housing;
(c)All affidavit material filed in these proceedings;
(d)Hair follicle, CDT and liver function tests of each parent;
(e)The psychiatric assessment of the parents;
(f)Such other documents as may be agreed between the parties in writing.
23.The interviews for the purpose of this report occur after the completion and release of the psychiatric assessment of the Mother.
24.Within 60 days the Mother comply with the orders made on 25 May 2021 with respect to hair follicle testing (order 5) and liver function testing and CDT testing (order 6) and provide written notification to the Independent Children's Lawyer and the Father's legal representative of the date and location where such testing was undertaken within 24 hours of submitting such samples.
25.The Father have liberty to restore this matter to the list within 24 hours in the event that the Mother fails to return the children or any of them to the father in accordance with these orders by notifying my associate by email.
26.In the event:
(a)the Mother is unable to care for the children during her time provided for these orders, she notify the paternal grandmother and arrange to deliver the children to the care the paternal grandmother for the duration of the time she is unavailable to herself personally care for them.
(b)the Father or the paternal grandmother is unable to care for the children during his time provided for in these orders, and the Mother is available to care for them during that time, then the Father arrange to deliver the children to the care of the Mother for the duration of the time he or the paternal grandmother is unavailable to care for them.
27.Liberty is reserved for each party to apply to the Court at short notice in writing.
28.Transcript of the proceedings held on 1 July 2021 and 2 July 2021 be made available to the parties, Dr C and Ms D.
AND THE COURT NOTES THAT:
A.Dr C has indicated he has appointments available in September 2021.
B.Dr C had indicated the private fee for the assessment and report is $2,420 including GST per person.
C.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
D.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
E.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.
F.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 Ness & Firmin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
These are the settled ex tempore reasons. The question I must determine today is where the children X aged 11, Y aged 9 and Z aged 6 (‘the children’) should live. The Applicant Father is Mr Ness (‘the Father’) and the Respondent Mother is Ms Firmin (‘the Mother’). The third party to the proceedings is the Independent Children’s Lawyer.
I will tell the parties in broad compass my reasons now, rather than at the end of these reasons. These are brief ex tempore reasons in the circumstances that it is 3.00pm and I need to make orders that deal with the arrangements for the children this afternoon. I have determined that from 4.30pm this afternoon, with changeover to be at the office of the Independent Children's Lawyer, that the children should live with the Father.
The first order I will make is that the Mother do all acts and things to cause and direct that the children be delivered to the office of the Independent Children's Lawyer at 4.30pm this day for the purpose of a conference with the Independent Children's Lawyer.
Thereafter, until the Mother provides a hair follicle test covering a one-month period demonstrating that there is no illicit substance being used in that period, the Mother shall spend time with the children each Sunday from 10.00am until 4.00pm, commencing Sunday 11 July 2021, and each Sunday thereafter at those times. Changeover for those Sunday times will be at Location A at the B City Homemaker Centre.
After the Mother has provided the clean hair follicle test showing that for a period of 30 days, illicit substances have not been used in that time, thereafter, and commencing the weekend in the week after that information is provided. The Mother's weekend will be each alternate weekend commencing after school on Thursday until before school on Monday. In the week following that weekend, on Thursday from after school until before school Friday, and each week thereafter. For example, assuming the clean hair follicle test is provided on a Thursday, the Mother's weekend would start not that Thursday, but it would start the following Thursday.
The reason that I have staggered that arrangement is because it is uncertain when the Mother will be able to provide the 30-day clean hair follicle test, and I do not expect either the Mother or the Father to rearrange the children's lives and their own at such short notice. What that means is both the Mother and the Father and the children would have a week to contemplate and prepare for that change of arrangement. It is my hope that the Mother is able to provide that clean hair follicle test within a matter of days or weeks. It is my hope that my concern and circumspection about her drug use is wrong, and that she is able to demonstrate that to me and to the parties by providing a clean hair follicle test next week or the week after.
The other orders that I make is from the amended F1 document, being the orders sought by the Father.
In short compass, I note that I have taken into account all of the material filed by the parties, including the Notices of Child Abuse, Family Violence and Risk. In addition to that, I have taken into account the tendered documents including M2 tendered by the Mother. I do not have time this afternoon to discuss the weight to be given to the different parts of the evidence, but not all evidence is of the same weight, even though it is admissible.
I need to indicate at the start, given so much of the case has concentrated on the issue of hair follicle testing, that I do not find that the Mother intentionally did not comply with the testing regimes set out in the orders of 25 May 2021.
I am satisfied that she did attend on 7 June 2021 and provided a hair sample, but with a photograph of her passport rather than the passport. It transpires that a photograph of a passport is not sufficient photographic identification for the purposes of the testing facility. Those identification requirements are very strict. They require to identify and sight the actual photographic driver's license or the actual passport and not a mere photograph thereof.
The seriousness with which the testing facility takes that supervision and identification of the person providing the sample is to be commended and is of some comfort to the Court.
The matter was first heard by the Registrar on 25 May 2021. It was adjourned before me to 18 June 2021. On that day the Mother appeared self-represented and sought an (opposed) adjournment to allow time for her to read late filed material. The matter was then adjourned to 1 July 2021.
I also take into account the Court's exhibits which include the section 67Z response from the Department of Families, Fairness and Housing (‘DFFH’) or Child Protection dated 31 March 2021.
I will also order that there be a transcript of the proceedings of yesterday and today, and that will be provided to the parties, because there needs to be a record of the matters that I have been told about, and the manner in which I have been told. That arises in circumstances where much of what the Mother wished to say was not contained in affidavit and was contained in further submission to me.
Further, it is necessary to record the manner in which the other parties and the Court has learned that at the time of the hearing and at other significant times since these proceedings commenced, the children have not been in the direct care of the Mother but have been cared for by other persons including a ‘Mr E’.
Depending upon the definition of partner or boyfriend, Mr E may or may not be the Mother's partner, but it is clear that he has a significant relationship with the Mother and is significantly involved in the children's lives.
Upon my asking questions of the Mother, she told me that in fact, at the time of this hearing, she was in F City where she travelled for work and the children were in the care of Mr E in the B City region.
Little is known about Mr E. It is clear from the exhibits tendered to the Father’s affidavit that Mr E has chosen to celebrate a significant event with the Mother in or about August 2020 with a Super Crisp (beer), as it is known in Queensland. Such is the paucity of information about Mr E, that which beer he chooses to celebrate an event with notable. I only cite that to demonstrate how little is known about him.
It may well be, upon proper elaboration, he turns out to be an entirely appropriate person to be involved in these children's lives. But at the moment, I simply do not know anything about him. I place some weight on that. The child Y, at paragraph 59 of Ms D's report, spoke positive about her partner and the paternal grandmother, her Mother, and Mr E and various cousins. I will mention Mr E and others shortly. I have not restrained him from being involved in the children's lives.
In short parameter, I find that it is not disputed that from about April 2019 until about April 2020, the children lived approximately week about between the parents, albeit it appears that that was not tightly followed, in that at times, the Mother spent times in the company of the Father and the children at the former matrimonial home.
Thereafter, with the onset of the COVID-19 pandemic, it appears undisputed that from April 2020 until December 2020, the children lived predominantly in the care of the Father with the significant involvement of the Mother, until the Mother unilaterally removed the children from the care of the Father on or about 13 or 14 December 2020.
Thereafter, the children remained in the care of the Mother without the Father being able to see the children save for limited times.
The first letter of this litigation, a letter of 20 January 2021 to the Father from the Mother’s then solicitor included the following:
…
We confirm that prior to Christmas, our client contacted you and advised you that Y had taken a photo at your house. The photo contained a tin of money and plastic bag with a white substance in it. Subsequently, our client approached you and you had admitted that the white substance was a drug. Two issues of significant concern is that the children had access to the drug and that our client has significant concerns that you are partaking in the consumption of drugs. Since this date, our client advised you that she will not make the children available to you due to the risk of harm issues. Our client has not made the children available to you due to this issue. Our client confirms that from the original story that you had provided to her, you have since provided her with three (3) other accounts regarding the tin of money and powder.
Our client has made the children available to you via phone, however, she has recently terminated a phone call due to you discussing these issues with the children. It is highly in appropriate that the children are engaged in adult conversation. As such our client will continue to terminate phone calls if you do not take a child focus approach to your communication with the children.
Our client requires for you to spend further time with the children that you provide our office with a hair follicle test, which will indicate whether or not you are using illicit substances or not. Please attend to this within 72 hours of this correspondence. In circumstances where you do not provide our client with a clean hair follicle test, our client will not make the children available to you.
…
(emphasis added)
The responding letter of 3 February 2021 from the Father’s solicitor included the following:
We advise that we act on behalf of Mr Ness with respect to family law matters. We have been provided with a copy of your letter to our client directly dated 20 January 2021.
Our client instructs that the parties marriage unfortunately broke down and they separated in March 2019.
Our client instructs that initially after separation the children lived equally with the parties in a week about arrangement… your client then visited the children for short periods at his home until December 2020 at which point your client commenced having irregular overnight visits.
… the children were due to spend one overnight visit with your client on 14 December 2020 however your client subsequently refused to return the children to his care as previously agreed … your client also refused to allow him to see the children…
…
In circumstances where our client has been primary carer for the children up until recently, and the children are happy and settled in his care it is wholly inappropriate for your client to unilaterally change the arrangements for the children. Whilst your client makes vague allegations with respect to drug use, our client firmly disputes this…
…
To refute these allegations, our client instructs that he has undertaken a hair follicle test, and we now enclose negative hair follicle test dated 25 January 2021 showing negative results for all substances. We also enclose letter from TDDA dated 2 February 2021 with respect to this test. Clearly your client's allegation that our client uses illicit substances is baseless.
…
(emphasis added)
The hair follicle test result letter enclosed with the letter referred to above dated 2 February 2021 stated:
On 25th January 2021 at 2:12pm a hair sample was collected from the above-named donor. His identity was confirmed by his Victorian Driver's Licence (number omitted).
The supplied hair specimen was subsequently analysed for a range of drugs of abuse by Omega Laboratory. The results section of the attached report indicates a negative result for all drugs tested for.
What is significant is that when the Mother removed the children from the Father's care where they had been for some time, the Mother raised two issues: the first being that the children had access to a drug in the Father's home (and this related to the tin finding incident or allegation of October 2020) and that the Father was consuming illicit drugs.
The Father provided a specimen on 25 January at 2021 at 2.12pm and provided identification of his Victorian driver's license. That test was clean of illicit substances and was sent to the Mother's solicitors on 3 February 2021.
In the meantime, the Mother had permitted the Father to see the children over the weekend of 23 January 2021 but supervised by the paternal grandmother.
The correspondence of 3 February 2021 and 4 March 2021 was not responded to. This is astonishing, given that the ground for the withholding of the children was the allegation of drug use with a demand for a hair follicle test.
That test was provided on or about 3 February 2021. The children were able to spend some limited time with the paternal grandmother, but the next time the Father saw the children was over the 19 March 2021.
The Father filed proceedings on 23 March 2021, and at that time, he said he was concerned about issuing proceedings, because he was concerned that the children would be exposed to the Mother's anger due to him challenging her authority with the authority of the Court.
Following the issue of proceedings, the Father took it upon himself to attend upon the school on Friday 26 March to collect the children for a visit. This was a foolhardy expedition, notwithstanding how much he says he was concerned for the children.
The Mother attended. There was an unholy scene at the children's school, and the police were called and attended. Ultimately, the Father left.
The orders made by the Registrar on 25 May 2021 included the following:
THE COURT ORDERS THAT:
1.The matter be adjourned for interim defended hearing on 18 June 2021 at 10:00am.
2.No later than 4:30pm 16 June 2021 each party make file and serve any further affidavits on which they seek to rely at the interim defended hearing, and neither party be able to rely upon any affidavits filed after this time without leave of the Court.
3.Pursuant to section 68L(2) of the Family Law Act 1975 the children X born 2010, Y born 2012 and Z born 2014 be independently represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation and such arrangement be as soon as possible AND THAT:
(a)Forthwith upon appointment by Victoria Legal Aid, the Independent Children’s Lawyer file a Notice of Address for Service; and
(b)Upon notification of such appointment, the parties (by their solicitors if represented) shall provide to the Independent Children’s Lawyer copies of all relevant documents.
Private child-inclusive report
4.That pursuant to Rule 15.44 of the Family Law Rules 2004 the parties do all things necessary to enable the preparation of an urgent family report to be carried out by Ms D (“the Family Consultant”)...
…
Drug and alcohol testing
5.That within 14 days or sooner if practicable the mother undergo a hair follicle test for the detection of drugs for a six (6) month period with such test to be collected and conducted by Australian Workplace Drug Testing Service (AWDTS) or their agent including but not limited to The Drug Detection Agency (TDDA), for presence of Amphetamine, Methamphetamines, Cocaine/Metabolites, Opiates, Phencyclidine and THC Metabolite (“hair follicle testing”) and for this purpose pending provision of a sample by the mother for the purposes of such testing, the mother:
(a) must not cut her hair less than 8cm in length;
(b) must not dye or bleach her hair;
(c) must attend upon the authorised collection centre of the AWDTS;
(d) is responsible for payment of the test; and
(e)must authorise and request that a copy of the test results be sent by AWDTS to the solicitors for the father forthwith they become available.
6.That as soon as practicable at their own expense the parties each undertake a supervised Liver Function Test (LFT) and carbohydrate deficient transferrin (CDT) to screen for excessive use of alcohol (if any) and produce the results of such tests to the solicitor for the other party immediately after they become available and make them available to any Family Consultant.
BY CONSENT UNTIL FURTHER ORDER
Parenting
7.That the children, X born 2010, Y born 2012, and Z born 2014 (“the children”) live with and spend time with the parties as follows:
(a) with the father:
(i)from after school (or 3.30pm if a non-school day) on Friday 28 May 2021 until the commencement of school on Monday 31 May 2021 (or 9.00am if a non-school day);
(ii)from after school (or 3.30pm if a non-school day) on Friday 11 June 2021 until the commencement of school following the Queen’s birthday long weekend on Tuesday 15 June 2021 (or 9.00am if a non-school day);
(iii)each alternate week thereafter from Friday (or 3.30pm if a non-school day) until the commencement of school on Monday (or 9.00am if a non-school day);
(b) live with the mother at all other times; and
(c) at such other times as agreed in writing between the parties.
8.For the purposes of the father’s time pursuant to order 7 hereof, without admission as to the necessity for such an order, such time shall be supervised by the paternal grandmother.
…
AND THE COURT NOTES THAT:
A.The family consultant Ms D has availability to meet with the parties electronically on 27 May and with the children in Town G in person on 3 June 2021 AND such appointments have been booked AND the anticipated report release date would be 11 June 2021.
B.The father maintains that supervision of his time with the children is not necessary and these orders are made without prejudice to his application for unsupervised care of the children.
C.The Court will consider whether this matter ought to be transferred to the Family Court of Australia on the next occasion given the serious allegations of coercive violence.
…
A very close and affectionate relationship between the three children and both parents was observed by the family report writer, Ms D, in June 2021. I recite below some of the relevant sections of the report.
68.When the children were observed in the presence of each of their parents, they appeared to share a positive and warm relationship with each of their parents… Overall, the children engaged positively with their mother in this casual environment.
69.Similarly, the children engaged with their father in a positive manner as he focused on the emotional needs of the children. During the children's session with their father, they appeared less interested in the activities he brought for them and more interested in engaging directly with him. The children appeared to compete for his attentions, particularly Z and Y, who sought ongoing physical interactions with him. Mr Ness directed relevant questions towards the children, particularly X, regarding their experiences of their most recent remote learning. It was notable that the children's separation from their father was protracted as all three (3) children experienced difficulties separating from him and repeatedly returned for additional hugs. X, in particular, climbed up on her father in a 'Koala hug' and snuggled into her father's shoulder while he carried her around the room. As X is 11 years old and on the verge of adolescence, this vulnerable and affectionate gesture which is most common in toddlers was significant in highlighting the positive and affectionate relationship X shares with her father.
On 11 June 2021 was the next time the Father was due to have Court ordered time with the children. We learned yesterday in Court that on that day, the Mother was in F City working.
At the attendance at Location A for the children to be handed over, it is suggested that X refused to leave the car and locked the door. It was Mr E who attended to hand the children over. The two younger children went with the Father. X never left the car. It was asserted that she did not wish to come, and Mr E drove off with X in the car.
Whatever X had said to Mr E, that event is very concerning because of the quality of the relationship with her Father that was observed a few days earlier on 7 June 2021.
A similar event causes me to have real concern about the capacity of the Mother's household to promote the children’s relationship with the Father, and that is the event of 25 June 2021. Again, as we learned yesterday, a day when the Mother was in F City for work and where the children would otherwise have been in the care of Mr E.
That was a day of changeover for the children to spend the weekend with the Father, according to Court orders. Yet the principal of the school contacted the Independent Children’s Lawyer to advise that the two younger children had attended the principal's office that morning to advise that they did not wish to go with the Father.
I share the concern or the observation of Ms D in her report at paragraph 78 where she observes:
78.It is undeniable that the children have had an extremely disrupted year; not only have they had to endure the uncertainly of moving in and out of remote learning, they have also been withheld from their father and the paternal grandmother, who have been identified as significant relationships in their lives. This assessment suggests that the children enjoy a positive and affectionate relationship with both of their parents and that Ms Firmin's decision to withhold the children from their father has had a detrimental impact upon them. Consequently, this assessment suggests that in the interim, the children spend at least seven (7) nights a fortnight with their father until Ms Firmin's hair follicle test has been provided to the Court and the Court is able to gain some clarification regarding historical aspects of family violence during the relationship.
(emphasis added)
I am concerned primarily at the Mother's ability to promote the children's relationship with the Father and to protect them from her own anxieties and antipathy towards the Father.
I am also concerned about the uncertain nature of the Mother's drug use. It is axiomatic that if either parent is regularly consuming illicit drugs, that one way or another, this will impact upon the children's welfare and significantly.
I have contemplated whether Mr E should also provide a hair follicle test. I do not have authority over Mr E, and the state of that relationship is not clear to me. However, I would be concerned if the Court and the Independent Children’s Lawyer are not provided in the near future with a drug test by Mr E. That is a hair follicle test demonstrating abstinence from drugs for at least a month. However, I will not order that to be done. I will leave that to the Mother's common sense.
The other matter of concern is what I have described as the chaotic lifestyle of the Mother or of the Mother's household. It turns out that the Mother is not available to care for the children for days on end, and does not inform the Father or the Independent Children’s Lawyer.
It appears that the children missed a significant amount of school at the first half of this year when they were in the Mother's care.
I am concerned that the Mother is parenting in circumstances where she has recently lost her license, Medicare card, healthcare card and was unable to be contacted by her solicitor for the seven days prior to the hearing on 18 June 2021.
Overall, I have an impression, based on inferences from all of the evidence, of a degree of chaos in the Mother's care for the children. I accept that she loves them deeply and cares for them.
The degree of chaos or the inference of chaos that I draw is also from the Mother's presentation to me over yesterday and today. I also need to note that the Mother's proposal by the time of the hearing was that the existing orders would continue. That is, alternate weekends with the Father but not school holidays.
The Mother's case had been based upon the issue of the Father’s use of drugs at the time of its commencement. The Mother herself admitted to cocaine use in her affidavit filed 27 May 2021 (that is 2 days after being ordered to undertake a hair follicle test):
10.Initially after I had left relationship in 2019 after Mr Ness punched me in the face the paternal grandmother supervised the children’s time with Mr Ness. I had also left the relationship with the children in 2016 and tried multiple times to leave Mr Ness but it wasn’t until December 2020 I finally left with the children.
11.I admit that I tried cocaine. I say that I should not have used it. I was working 18 hour days and exhausted mentally, emotionally and financially was not in a great place. I was completely isolated. A mutual friend of Mr Ness’s who I trusted offered it to me and I didn’t say no. I ended our friendship in February 2021 and on 25 May 2021 I was granted a 2 year Intervention Order against her to stop her helping Mr Ness perpetrate family violence. I have a copy of the IVO if the court requires.
In answer to questions from me the Mother said that she stopped using cocaine in February 2021, that is two months after she removed the children from his care.
It is a significant part of the Mother's case that she has, over many years, been the victim of significant family violence at the hands of the Father, and that this has impacted upon her in a significant way.
The Mother has also asserted that she is the subject of abuse and coercive behaviour by the Father's conduct of these proceedings. I spent some time attempting to identify just what it was, but the long and the short of it comes down to the circumstance that it appears that the Father has the assistance of his family to fund his legal representation and that she does not and this is of itself abuse. The position that the Mother perceives the Father's father having in the community and the financial support that she perceives the Father is receiving from his parents is also she says a form of coercive, manipulative behaviour. I do not find that is so.
Goode & Goode [2006] FLC ¶93-286 at [81] and [82] states:
[81]In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
[82] In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Re F: Litigants In Person Guidelines (2001) FLC ¶93-072 at 253 provides:
253Finally, we think it useful to list the set of guidelines as altered by our consideration of them above.
1.A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
2.A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
3.A judge should explain to the litigant in person any procedures relevant to the litigation;
4.A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
5.If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
6.A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
7.If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
8.A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150);
9.Where the interests of justice and the circumstances of the case require it, a judge may:
•draw attention to the law applied by the Court in determining issues before it;
•question witnesses;
•identify applications or submissions which ought to be put to the Court;
•suggest procedural steps that may be taken by a party;
•clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
I primarily base my decision on what was the agreed, or not disputed, history of the children in the care of the Father (and/or the Father and his mother) until the Mother's unilateral removal. Further it is significant that whilst alleging abuse and manipulative behaviour at the hands of the Father, the Mother removed the children from the Father's care, refused to let him see them, and at that time, justified it on the base of the Father's drug abuse whilst at about that time, when the children were in her care, she now says she was abusing cocaine.
The manner in which the Mother conducted herself and this litigation is or could be characterised as highly manipulative. I do not find that the Mother has been the victim of the violence that she asserts. However, I do not find that she has not. I do not find that she has lied about the violence that she says she has been subjected to. I do not disregard the allegations.
However, for the current crisis, the determination of the allegations of family violence does not assist me. It is in the children’s best interests to have some stability in their parents' care in a drug-free environment and I note that the Father has now provided two hair follicle tests that demonstrate abstinence from substances over many, many months.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 28 July 2021
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