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…
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CaseChat Overview and Summary
The court was required to determine the primary residence of the children, the specific terms and conditions for the children spending time with the Mother, and the interim arrangements for communication and contact. Crucially, the court needed to address the Mother's compliance with drug testing requirements as a prerequisite for increased time with the children, and to establish a framework for ongoing assessment of the parents and children's welfare.
O'Shannessy J made orders that the children live with the Father. The Mother's time with the children was made conditional upon her producing a clean supervised hair follicle test demonstrating no illicit substance use for the preceding 30 days. The orders detailed a phased approach to the Mother's time with the children, commencing with supervised day visits and progressing to more extensive overnight and holiday arrangements upon successful completion of the hair follicle testing. The court also mandated supervised communication between the Mother and children via Facetime, and imposed injunctions on both parents regarding communication, criticism of each other, and the consumption of illicit drugs and alcohol by the Mother. Furthermore, the court ordered forensic psychiatric assessments of both parents by Dr C and an assessment by Ms D, a single expert, to report on various aspects of the children's welfare and the parents' capacities.
The court ordered that the Mother deliver the children to the Independent Children's Lawyer by 4:30 pm on the day of the order for a conference, after which the Father was to collect them. The orders also included provisions for communication, parental conduct, and the exchange of information regarding the children's health and schooling. The parties were directed to attend psychiatric assessments and to cooperate with the single expert assessment. The court also noted the availability and costs associated with the psychiatric assessments.
Orders
Orders of the court
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) Her The 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.
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