Osika & Girard
[2024] FedCFamC2F 544
•22 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Osika & Girard [2024] FedCFamC2F 544
File number(s): MLC 383 of 2019 Judgment of: JUDGE O'SHANNESSY Date of judgment: 22 April 2024 Catchwords: FAMILY LAW – Parenting – Application for further adjournment of final hearing granted – Joinder of second respondent at late notice – Procedural fairness to newly joined second respondent – Mother unrepresented – Section 102NA order previously made – No application made to section 102NA scheme – Section 102NA clunky – Where Legal Aid funding for Father may run out – Request for Father’s Legal Aid representation to remain same from ordinary Legal Aid to 102NA scheme – Father permitted to relocate Legislation: Family Law Act 1975 (Cth) s 102NA Division: Division 2 Family Law Number of paragraphs: 35 Date of hearing: 22 April 2024 Place: Melbourne Counsel for the Applicant: Mr Foo Solicitor for the Applicant: Morrison and Sawers Lawyers The First Respondent: In Person The Second Respondent In Person Counsel for the Independent Children's Lawyer: Mr Nicholson Solicitor for the Independent Children's Lawyer: Medson Legal Pty Ltd ORDERS
MLC 383 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR OSIKA
Applicant
AND: MS GIRARD
First Respondent
MS LAURENT
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
22 APRIL 2024
THE COURT ORDERS THAT:
1.The Final Hearing listed for 23 and 24 April 2024 be and is vacated.
2.The matter be listed for Final Hearing before his Honour Judge O’Shannessy on 14 October 2024 at 10.00 am at the Federal Circuit and Family Court of Australia at Melbourne (for an estimated 4 days).
3.Pursuant to Rule 3.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, MS LAURENT born in 2002, be and is added to these proceedings (MLC383/2019) as the second respondent.
4.A copy of the response from the Department of Families, Fairness and housing (‘DFFH’) pursuant to the section 69ZW and 91B Orders dated 18 March 2024 (exhibited in these proceedings as ‘C1’) and the Family Report dated 31 August 2023 be made available to Ms Laurent and to the first respondent mother, MS GIRARD (‘the Mother’), by the Independent Children’s Lawyer (‘ICL’) emailing those documents to them as soon as practical.
5.Any party to these proceedings be and is restrained from using any document or information obtained in these proceedings for any purpose save for these proceedings.
6.Until such time as the Mother is able to obtain legal representation, her address for service shall be her email address […].
7.All parties be and are permitted to rely on material previously provided, and any additional material is to be filed:
(a)by the applicant father, MR OSIKA (‘the Father’), no later than 56 days prior to Final Hearing; and
(b)by any other party to these proceedings no later than 28 days prior to Final Hearing.
8.The parties’ costs of this hearing (counsel for the Father having sought costs be thrown away) be and are reserved until Final Hearing.
Interim Parenting Orders
UNTIL FURTHER ORDER:
THE COURT ORDERS BY CONSENT THAT:
9.All extant parenting orders for the children, X born in 2010 and Y born in 2012, be and are dismissed.
AND THE COURT ORDERS THAT:
X
10.X live with the Father.
11.The Father be and is permitted to relocate X’s primary residence to within 110 kilometres of the Suburb C Post Office.
AND THE COURT ORDERS BY CONSENT THAT:
12.The Father have sole parental responsibility for X for matters relating to education (to facilitate quick, efficient enrolment of X in a new school), and otherwise the parents have equal shared parental responsibility for X, provided that:
(a)the Mother, Ms Laurent and the ICL are kept informed by the Father of all developments regarding X’s schooling; and
(b)the Mother, Ms Laurent and the ICL are authorised to have access to any information regarding X’s education that is usually available to parents.
AND THE COURT ORDERS THAT:
13.X spend time with Ms Laurent and Y:
(a)for one night (they having not spent time for a long time) from 6.00 pm on Saturday 4 May 2024 until 6.00 pm on Sunday 5 May 2024;
(b)every fourth weekend (commencing Friday 31 May 2024) from 6.00 pm Friday until 6.00 pm Sunday; and
(c)subject to Ms Laurent confirming her availability to facilitate same, the first week of the school holidays commencing at midday on the first Saturday and concluding at midday on the middle Saturday;
and unless otherwise agreed between the Father and Ms Laurent, the Father shall deliver X to the home of Ms Laurent at the commencement of time and collect X from the home of Ms Laurent at the conclusion of time.
AND THE COURT ORDERS BY CONSENT THAT:
14.X shall spend time and communicate with the Mother in accordance with her wishes.
15.The Father do all acts and things necessary to ensure that X attends school on each day that she is required to attend school, unless X has a medical certificate excusing her attendance.
16.The ICL be and is authorised to communicate with such school as is attended by X either by telephone, in writing, or by personal attendance, in respect to X’s progress at school and to obtain from the school:
(a)copies of all school reports in relation to X; and
(b)copies of all attendance records in relation to X.
AND THE COURT ORDERS THAT:
Y
17.Y live with Ms Laurent.
AND THE COURT ORDERS BY CONSENT THAT:
18.The Mother and Ms Laurent have equal shared parental responsibility for Y for matters relating to education, and otherwise the parents and Ms Laurent have equal shared parental responsibility for Y, provided that:
(a)The Father and the ICL are kept informed by the Mother and Ms Laurent of all developments regarding Y’s schooling; and
(b)The Father and the ICL are authorised to have access to any information regarding Y’s education that is usually available to parents.
Injunctions
19.For 24 hours immediately prior to the children spending time with the Mother, and during all such time, the Mother be restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of any legal or illegal drug or substance, save and except for:
(a)any legal medication prescribed by a registered medical practitioner and taken or used by the Mother strictly in accordance with such prescription;
(b)any over the counter legal medication or pharmaceutical substance ordinarily sold in major supermarkets, or taken by the Mother strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
20.The Father and the Mother, their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of their household in the presence or hearing of the children or either of them or from permitting any other person so to do; and
(b)using physical discipline on the children or any of them.
21.The Mother make an appointment and attend for hair collection at an Australian Workplace Drug Testing Service (“AWDTS”) Clinic or nominee for hair drug testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-custody procedure is to be applied to the hair sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this Order:
(a)the Mother is required to maintain her hair length at a length not less than four (4) centimetres, neither head hair or body hair is to be cut, bleached or dyed between the date of this Order and the time of collection of hair;
(b)within seventy-two (72) hours of a written request by email from the ICL, the Mother is required to make an appointment with AWDTS for the purposes of providing a hair sample for hair drug testing purposes;
(c)the Mother or her legal representatives are to provide AWDTS with a copy of these Orders;
(d)the Mother is to attend an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from the Mother at the earliest available time;
(e)the Mother is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this Order also hereby authorising AWDTS or nominee to provide the results of each test to the legal representatives for the Father and the ICL upon receipt of such results;
(f)the hair drug test may screen for drugs of abuse including amphetamine-type substances such as methamphetamine and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites and any other illicit drug;
(g)AWDTS is required to utilize the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognized International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with International Society of Hair Testing (SoHT) guidelines, cost and time required for results to be made available; and
(h)The cost of the hair drug test is to be met by the Mother AND IT IS REQUESTED that Legal Aid fund the reports for each parent and that the ICL apply to Victoria Legal Aid to obtain funding for the purposes of paying for the Report on behalf of the Mother and to enable the ICL to so apply, the Mother shall provide to the ICL, within seven days of the date hereof:
(i)a completed Victoria Legal Aid Financial Statement;
(ii)last three months bank statements for all bank accounts;
(iii)copy of her Centrelink Income Statements; and
(iv)copy of her last three payslips (if applicable).
22.The ICL, the Father, Mother and Ms Laurent shall be at liberty to provide a copy of these Orders to any one or more of the following:
(a)The Principal or delegate of the Principal of the school attended from time to time by either or both of the children;
(b)Any Medical Practitioner and/or allied health professional attending upon any one or more of the children, or any other child of either parent;
(c)The Regional Director of the Department of Families Fairness & Housing.
AND THE COURT ORDERS THAT:
23.The Father, the Mother and Ms Laurent attend family therapy, and do all acts and things to cause X and Y to attend family therapy as directed by the Family Therapist.
(a)the Family Therapist be as identified and nominated by the ICL;
(b)the ICL be and is permitted to provide such documents to the Therapist as she sees appropriate; and
(c)IT IS REQUESTED THAT the Family Therapist be at public expense.
AND THE COURT NOTES THAT:
A.It is requested that Victoria Legal Aid fund the costs of the Mother’s hair follicle test provided for in these orders in circumstances where the Court, the ICL and the parents agree that neither blood nor urine testing would provide adequate longitudinal evidence to show whether or not illicit substances have been used by the parents.
B.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 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.
C.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.
D.Affected unrepresented parties may apply to the court and then 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.
E.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
F.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
G.The Court was advised there are extant orders pursuant to section 102NA of the Family Law Act 1975 preventing personal cross examination of the Mother by the Father and of the Father by the Mother.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR EX TEMPORE JUDGMENT
These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’). These reasons were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected, citations and/or passages of authorities and evidence added, and an attempt has been made to make the orally delivered reasons easier to read, but the substance is unchanged.
Background
The matter of Osika & Girard comes before me for a Final Hearing on 22 April 2024. This is the fourth final hearing in these children's lives. The last Final Orders were made in August 2021, but those Orders ceased to function, as contemplated by them, by early 2022.
It is common ground that the applicant father, Mr Osika (‘the Father’) is the parent of Y and X. Y is 11 years old and X is 13 years old. In recent times, the family lived in the Town D area. The first respondent mother of Y and X, Ms Girard (’the Mother’), then moved to the nearby town of Town E. For some time since 2002, Y has lived with her mother, and X has lived with her father.
It is common ground that the Father is not the biological father of Y but is registered as her parent on the birth certificate and has the benefit of Court Orders whereby he has been a parent at all material times. The relationship between the parents has completely broken down and was unable to be put back together despite an order for family therapy. Further, the relationship between X and her mother has broken down entirely, and Y's relationship with her Father has broken down entirely.
These proceedings
Back on 3 October 2023, the matter was again fixed for final hearing to proceed on 5 February 2024. On 3 October 2023 all parties were represented. Subsequent to that, the Mother became unrepresented and acted on her own behalf. In the process of preparing his trial affidavit for the 5 February 2024 Hearing, the Father became concerned about the welfare of Y, and the matter was brought on urgently to deal with a concern about Y's welfare. It turned out that Y was temporarily or permanently living with her older sibling, Ms Laurent, who was living with her partner and working in City F. At that time (early 2024) the Mother was working in Town E (several hours’ travel away).
The Orders I made on 18 January 2024 were as follows:
THE COURT ORDERS THAT:
1.The Final Hearing listed for 5 February 2024 (for an estimated 3 days) be and is vacated.
2.The matter be adjourned for Final Hearing on 22 April 2024 at 10.00am (for an estimated 3 days) at the Federal Circuit and Family Court of Australia.
102NA
3.It is declared that pursuant to section 102NA(1)(a), (b) and (c)(i),(ii),(iii), of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and [Ms Girard] (‘The Mother’) and [Mr Osika] (‘the Father’) must not cross examine the other personally.
4.IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Mother under the Commonwealth Family Violence and Cross Examination of Parties Scheme
5.For the purpose of order 3 hereof, the Mother do all acts and things necessary to make an application to Victoria Legal Aid for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme (102NA) to enable her legal representation at Final Hearing.
6.IT IS REQUESTED that Victoria Legal Aid process the Mother’s section 102NA Victorian Legal Aid application as a matter of urgency and IT IS REQUESTED that, if practical, [G Law Firm] (who previously represented the Mother) be appointed to represent the Mother under the above scheme.
91B
7.Pursuant to section 91B of the Family Law Act 1975 it is requested that the Department of Families, Fairness and Housing (DFFH) intervene in these proceedings.
8.Upon request from DFFH the Court provide copies of all documentation relevant to the proceedings before the Court to enable it to consider the request to intervene in these proceedings.
9.IT IS REQUESTED that DFFH file and serve any documents it intends to rely upon by no later than 15 March 2024.
69ZW
10Pursuant to section 69ZW of the Family Law Act 1975 is it requested the Department of Families, Fairness and Housing (“DFFH”) provide to the Court the following documents and information by no later than 15 March 2024:
(a)any notifications to DFFH of suspected abuse of the children [X] aged 13 and [Y] aged 11 to whom the proceedings relate to or of suspected family violence affecting the children including but not limited to any intake reports;
(b)any assessments of DFFH of investigations into notifications of that kind or the findings or outcomes of these investigations including but not limited to copies of investigation and assessment outcomes, any grounds of substantiations, case plans and case closure summaries;
(c)any reports commissioned by DFFH in the course of investigating a notification, including but not limited to any reports prepared for proceedings in the Children’s Court; and
(d)in the event that DFFH have an ongoing investigation in relation to the children to whom the proceedings relate, any recommendations for the future arrangements of the children taking into account the orders sought by the parties in these proceedings.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
11The parents be and are restrained by injunction from involving the children in the Court proceedings, save for:
(a)The Father is permitted to advise [X] that it has been agreed in Court proceedings this day that the Mother will not attend her school prior to the Final Hearing. and;
(b)The Mother is permitted to advise [Y] that it has been agreed in Court proceedings this day that the Father will not attend her school prior to the Final Hearing.
Trial Material
12The Father be and is permitted to rely upon his affidavits of 15 January 2024 and 17 January 2024 at the Final Hearing.
13The Applicant be granted leave to file and serve any necessary updating affidavit upon which he seeks to rely upon by no later than 26 February 2024.
14The Respondent file and serve any Amended Response and a trial affidavit upon which she seeks to rely by no later than 25 March 2024.
The Father was permitted to rely on the material that he had already filed in compliance with the previous trial directions.
The Father has, for some 18 months or so, wanted to relocate from Town D where he lives with X – and prior to that, with X and Y – to the Suburb C area. The Mother opposed that at all material times. That was to be a significant issue in the 5 February 2024 Hearing.
Shortly after the 18 January 2024 mention, the Mother ended, or endured the end of, her relationship with her previous partner and she alleges significant and substantial family violence in that relationship. The Mother then moved to City F, nearby to where Ms Laurent, her older daughter, lived.
The Father was not consulted at all about the change of residence for Y in those circumstances. That is seriously ironic when one parent had managed to actively oppose the other one moving, but then round about the time of the trial that would have had that question answered, unilaterally moved herself. Notwithstanding that she moved for good reason, it is a curiosity of this case that it is only this day that the opposition to the Father being able to live in the area where he wants to live has been relinquished.
Application for adjournment
An application for adjournment of this Final Hearing was made by the Mother this day. The adjournment application was opposed by the Father.
Joinder of Ms Laurent
The Independent Children’s Lawyer (‘the ICL’) has pressed that Ms Laurent, the sibling of X and Y, should be joined as a party to these proceedings and that Y should live with Ms Laurent on an interim basis. Fortunately, and courteously, Ms Laurent came on board for this Hearing via electronic means. She recently contracted covid and so sensibly proposed that she appear by video link rather than attending the Courtroom, and I'm grateful to her for that common sense. Ms Laurent has not had the opportunity to read important documents in the case, in particular the recent Family Report the recent Child Impact Report and/or exhibit ‘C1’, being the report sought from Child Protection pursuant to section 69ZW of the Act. The ICL supports the application for adjournment, though with regret, and with the equivalent of hands tied, supports that adjournment as a matter of procedural fairness to Ms Laurent, but also out of caution as to the welfare of Y and X.
102NA order
The Mother then has not made application to the cross-examination scheme for representation and relies upon that circumstance to justify a further adjournment. I place very little weight on the fact that the Mother has not applied to Legal Aid pursuant to the section 102NA cross examination scheme. The section 102NA Order was made on 18 January 2024, and 18 February came and went without that application being made, 18 March came and went without that application being made, and 18 April came and went without that application being made. Notwithstanding the very serious imposition a 102NA order would make upon the Mother’s ability to conduct her own case in these very important proceedings, the failure to make the application would carry little weight with me in the circumstances.
The provisions of section 102NA of the Act are very clunky, and it happens not infrequently in this Court that a section 102NA application to the Legal Aid office administering the scheme is:
·unable to be made; or
·simply not made; or
·made and then a lawyer is not appointed; or
·made and then a lawyer is appointed, but the lawyer appointed and the litigant fall out or disagree about the case.
That means that frequently, or at least not infrequently, an unrepresented litigant appears before me when they had hoped to have a lawyer.
The further clunkiness of the scheme is that if the essential three limbs of the trunk of section 102NA are made out, there is no discretion of the Judge as to the circumstances, and there is no consultation or taking into account the views of the individual person who is alleged to have suffered family violence. It is assumed that they would be incapable of fairly representing themselves, and in many cases that would be true, but I am not satisfied of that at all. Nonetheless, that is the law, and it will be followed. For those reasons I place little weight on the Mother being unrepresented this day.
In all of those circumstances, for me to attempt to have this matter proceed to final hearing rather than acquiesce in the adjournment application seems bloody-minded, though tempting.
Further considerations regarding adjournment
The further matter that powerfully contends for the adjournment is that Ms Laurent has generously come into this at a very late point and has not been able to read all the material and, indeed, the rules of the Court. Being a litigant in person would mean she would only be able to read all the material were she to attend the Melbourne Registry, provided she had the time and capacity to do so.
I am troubled by the effect of those arrangements being that they better suit people who dwell in the capital city where the Registry is, but seriously disadvantage those who dwell outside.
I also take into account in that adjournment application that I am troubled that the Father’s grant of Legal Aid may run out while these matters are continuing along. In the event he becomes unrepresented, he would be in the position that he would not be able to cross-examine the Mother and, for her protection and his, I have made the relevant section 102NA Orders. So, hopefully without too much loss of synchromesh in the gearbox as gears change, the Father can move from being aided by lawyers under the ordinary Legal Aid scheme to the 102NA scheme, and hopefully with the same lawyers to continue his representation. I would ask the relevant administrator of the 102NA scheme to seriously contemplate, if practical and within the funding guidelines, that the Father be able to continue with his existing legal representation under the 102NA scheme.
The other matter that I take into account is that it is proposed that Y will live with Ms Laurent until further order and spend time with her mother each alternate weekend. That order, I am told, will be at least not opposed by the Mother and her courage in consenting to that order needs to be acknowledged and is considerable.
However, that means I have a whole new landscape of potential arrangements for Y and X to spend time together. If those orders come to pass – and they may or may not yet, because I have not decided on them, but no one is opposing that particular order – it will mean that the burden and responsibility of attempting to negotiate time for Y and X to spend together will no longer be in the hands of the Father and the Mother, but will be in the hands of the Father and Ms Laurent. Whether that is going to mean that things remain as difficult for Y and X or whether that somehow assists the matter move forward, it is too early to tell, but it is a serious matter that would, of itself, contend against final orders being made today or tomorrow.
In those circumstances, the application for the adjournment must be granted.
Interim orders[1]
[1] The second reasons delivered later in the same day.
In the matter of Osika & Girard & Laurent, these are the second reasons I have delivered this day. The first were in regard to an adjournment. I granted the vacation of the trial and the adjournment of the matter until 14 October 2024, which is the next available slot for a four-day matter before me. The matter had previously been booked in for three days when there were only three parties and there are now four. I refer to and incorporate the reasons and the background given in the adjournment reasons into these reasons.
At very short notice and generously, the sister of Y and X, Ms Laurent, has consented to be a party and consented to Y living with her. In those circumstances, there are still disputes between the parties as to parental responsibility in the meantime. The ICL has proposed Interim Orders that include: [2]
[2] Exhibit ‘C2’.
UNTIL FURTHER ORDER
Parental Responsibility
3.The Applicant Father and the First Respondent Mother have equal shared parental responsibility for the child [X] born [in] 2010 (“[X]”).
4.The First Respondent Mother and the Second Respondent have equal share parental responsibility for the child [Y] born [in] 2012 (“[Y]”).
Live With and Spend Time Arrangements for [X]
5.[X] live with the Applicant Father.
6.The Father be permitted to relocate [X]’s primary residence to within [35] kilometres of [Suburb C] Post Office.
7.[X] spend time with the Second Respondent:-
a.every fourth weekend (to coincide with [Y] being in the care of the Second Respondent) from 6.00pm Friday until 6.00pm Sunday; and
b.subject to the Second Respondent confirming her availability to facilitate same, the first week of the school holidays commencing at midday on the first Saturday and concluding at midday on the middle Saturday;
and unless otherwise agreed between the Applicant Father and the Second Respondent, the Applicant Father shall deliver [X] to the home of the Second Respondent at the commencement of time and collect [X] from the home of the Second Respondent at the conclusion of time.
8.[X] shall spend time and communicate with the First Respondent Mother in accordance with her wishes.
Live With and Spend Time Arrangements for [Y]
9.[Y] live with the Second Respondent.
10.[Y] spend time and communicate with the Applicant Father in accordance with her wishes.
11.[Y] spend time with the First Respondent Mother each alternate weekend from after school Friday until 5.00pm Sunday.
[X]’s School Attendance
12.The Applicant Father and the First Respondent Mother do all acts and things to enrol the [X] at [J School, H Street, Suburb C].
13.The Applicant Father shall ensure that [X] attends school on each day that she is required to attend school, unless [X] has a medical certificate excusing her attendance.
14.These Orders HEREBY AUTHORISE the Independent Children’s Lawyer to communicate with [J School] either by telephone, in writing or by personal attendance, in respect to [X]’s progress at [J School] and to obtain from [J School], or such other school as [X] attends from time to time:
a. copies of all school reports in relation to [X]; and
b. copies of all attendance records in relation to [X].
Injunctions
15.For 24 hours immediately prior to the children spending time with the First Respondent Mother and during all such time, the First Respondent Mother be restrained by injunction from ingesting, consuming or using, or otherwise being under the influence of any legal or illegal drug or substance, save and except for:
a.any legal medication prescribed by a registered medical practitioner and taken or used by the First Respondent Mother strictly in accordance with such prescription;
b.any over the counter legal medication or pharmaceutical substance ordinarily sold in major supermarkets, or taken by the First Respondent Mother strictly in accordance with the directions appearing on such medication or pharmaceutical substance.
16.The Applicant Father and the First Respondent Mother, their servants and agents be and are hereby restrained by injunction from:
a.abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of their household in the presence or hearing of the children or either of them or from permitting any other person so to do; and
b.using physical discipline on the children or any of them.
17.The First Respondent Mother make an appointment and attend for hair collection at an Australian Workplace Drug Testing Service (“AWDTS”) Clinic or nominee for hair drug testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-custody procedure is to be applied to the hair sample. …
…
In regard to paragraph 3 of the Orders proposed by the ICL, I am satisfied that the order should be that the Father have sole parental responsibility for matters of education relating to X (to facilitate quick efficient enrolment of X in a new school), and otherwise the Father and the Mother have equal shared parental responsibility for X, but provided that Ms Laurent and Ms Girard are kept informed of all developments of X's schooling and are authorised along with the ICL to obtain any information that parents usually obtain from any school X attends.
The same will apply in regard to order 4. Ms Laurent should have sole parental responsibility for matters relating to the education of Y, provided the Mother and the Father are kept informed and at liberty to obtain any information that parents usually obtain. It will be the same order for Y and X. I want the Mother to know about X's schooling, and I want the Father to be able to obtain information about Y’s schooling, but not to attend school.
Father relocating
The Father has long wanted to move from the Town D area to the Suburb C area. Over the 18 months or so since he has wanted to do that, rental accommodation has become more difficult to obtain, not less. He has learned this day that there is no longer opposition to him relocating, though there is a concern that he not move too far away from where Y now lives.
Early this year, Y moved to live with her mother in the City F area, but without the Mother consulting the Father. Without examining it thoroughly, this being an interim hearing, it appears there was good reason for the Mother to move from Town E to the City F area where Ms Laurent lives.
Had the Father not been proposing to move at all, the parties would have then been separated by something in the order of more than 250 kilometres. The distance from Suburb C to City F is over 100 kilometres and the Father says, because of the difficulties of finding accommodation and schools, that he should be limited to moving up to a further 110 kilometres away – that is a total of over 200 kilometres. That is still about two-thirds of the distance between Town D and City F. So, I am satisfied, this being an interim hearing, and because it is acquiesced in by the Father, that I should make a limitation on where he should live.
I am not satisfied that there is any good reason why it should be 35 kilometres or 40 kilometres as opposed to 110 kilometres. I am partly informed of that decision because of the controversy over paragraph 7 of the ICL’s Proposed Orders where the other parties seek that the Father do the travel to make sure that Y spends time with X each four-weekly period. Save that the order will be on the first occasion that Y and X spend time together (they not having spent time together for a long time) for one night overnight, the Father is going to be responsible for the travel both ways of getting X to and from City F.
I am not satisfied that he will unnecessarily or without good reason extend that travel time when at least, at this stage, he is going to be doing the travel. I am also not satisfied that it will be more difficult to travel, including by public transport, from the general area where he proposes to move to than it would have been had he just remained in Town D. Hence the end of the controversy about where he lives will be within 110 kilometres of the Suburb C Post Office, not 35.
X’s schooling
The next controversy relates to the school issue. There is an existing Order that each of the parties are to ensure the children attend school. I accept the Father's submission and the acquiescence of the ICL that it is no longer practical to nominate a particular school for X, though he had contemplated that school at one point in time. But I do accept on this Interim Hearing that it is in X's interest that I make an order in the terms of paragraph 13 of the ICL’s Proposed Orders.
It will be a matter of evidence on the Final Hearing as to the school attendance and whatever other difficulties that may or may not occur, and order 14 of the ICL’s Proposed Orders is not a controversy.
Family therapy
I will make an order for the parties to attend family therapy. That family therapy will have to be at public expense as these parties cannot afford family therapy – which can run to thousands of dollars, though it is a good investment. And it is hoped that the ICL can actually find a family therapist who will be prepared to do it in this difficult case and circumstances.
I am satisfied that those orders are in the best interest of Y and X.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 1 May 2024
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