Randolph & Melides

[2022] FedCFamC2F 1455

Federal Circuit and Family Court of Australia

(DIVISION 2)

Randolph & Melides [2022] FedCFamC2F 1455

File number(s):	MLC 12992 of 2020
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	22 August 2022
Catchwords:	FAMILY LAW – sole parental responsibility – one parent is a high functioning heroin addict – benefit to the child of involvement in cultural heritage.
Legislation:	Family Law Act 1975 (Cth) ss 4, 65DAC, 69ZL.
Division:	Division 2 Family Law
Number of paragraphs:	19
Date of hearing:	22 August 2022
Place:	Melbourne
Counsel for the Applicant:	Mr J. Korke
Solicitor for the Applicant:	Lampe Family Lawyers
Counsel for the Respondent:	Mr G. Thistleton
Solicitor for the Respondent:	Marcou And Associates
Counsel for the Independent Children's Lawyer:	Mr P. O’Connell
Solicitor for the Independent Children's Lawyer:	Robert Halliday And Associates

ORDERS

MLC 12992 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS RANDOLPH Applicant
AND:	MR MELIDES Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE O'SHANNESSY
DATE OF ORDER:	22 AUGUST 2022

THE COURT ORDERS THAT:

1.The Applicant, Ms Randolph (‘the Mother’) have sole parental responsibility in regard to the child X born in 2014 (‘the child’ or ‘X’) in relation to the child’s education and health, and otherwise the Mother and Respondent Father, Mr Melides (‘the Father’) have equal shared parental responsibility.

2.Save in emergency, before the Mother makes any major long term decision regarding X’s education or health;

(a)the Mother inform the Father in a timely manner by text, email or writing (the parents are not expected to discuss the matter in person or by telephone) of the proposed decision; and

(b)in the event that the Father replies in a timely and respectful manner by text, email or writing without family violence, then the Mother consider such response; and

(c)make the decision and inform the Father of the decision made by text, email or in writing in a timely manner.

3.Any communication or consultation between the Mother and the Father about any issue is to be by text, email or in writing, in a respectful manner and without family violence.

BY CONSENT THE COURT ORDERS THAT:

4.The child live with the Mother.

5.Until the Father provides to the Mother one (1) clear hair follicle drug test from AWDTS pursuant to order 7, the Father spend time with the child:

(a)supervised by the Family Contact Service (“FCS”) on alternate Thursdays from 4:00 pm to 7:00 pm or otherwise as agreed , subject to such time being able to be accommodated by FCS;

(b)or if FCS is no longer able to provide supervision then supervised by the B Contact Centre;

(c)or if B Contact Centre is not available such other professional supervisor as agreed in writing; or

(d)such other supervisor as agreed in writing;

with the cost of supervision to be paid by the Father.

6.To give effect to order 5 above the Father shall make an appointment to attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or its nominee for hair drug test purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the 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 national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:

(a)The Father is required to maintain his head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair; 

(b)The Father is required to make an appointment with AWDTS by telephoning 1300 37 84 83 for the purpose of providing a hair sample for hair drug testing purposes;

(c)Each party or their legal representatives is at liberty to provide AWDTS with a copy of these orders;

(d)The Father 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 both parties and their legal representatives upon receipt of such test results.

7.Subject to:

(a)The Father providing a test that is clear of illicit substances complying with the requirements of order 6 above, the test to be conducted no earlier than 30 November 2022; and

(b)On each occasion of time spent the Father providing the results of a supervised urinary drug screen that is also clear of illicit substances conducted no more than three (3) days prior to the time to be spent:

The Father shall spend time with X each alternate Sunday from 11:00 am to 4:00 pm for a period of three (3) calendar months.

8.Subject to:

(a)The Father having complied with order 7 herein; and,

(b)The Father providing a test that is clear of illicit substances complying with the requirements in order 6 above, the test to be conducted no earlier than three (3) months after the test provided pursuant to order 7(a); and

(c)On each occasion of time spent the Father providing the results of supervised urinary drug screen that is also clear of illicit substances, conducted no more than three (3) days prior to the time to be spent; and,

(d)All overnight time to occur at the home of the paternal grandmother Ms C and the paternal grandmother to be present in the home overnight:

X shall spend time with the Father:

(e)Each alternate weekend from 6:00 pm Friday to 4:00 pm Sunday;

(f)From 3:00 pm Christmas Eve until 3:00 pm Christmas Day in even numbered years;

(g)From 3:00 pm Christmas Day until 3:00 pm Boxing Day in odd numbered years;

(h)On the Father’s Day weekend from 6:00 pm on the Friday preceding Father’s Day until 4:00 pm Father’s Day;

(i)Such other times as agreed.

9.Notwithstanding order 7 herein, the Mother is at liberty to travel to New Zealand with X during the 2022 Christmas period for two (2) weeks and the Father’s time shall be suspended to permit same.

10.The Father’s time spent with the child shall be suspended as follows:

(a)From 3:00 pm Christmas Eve until 3:00 pm Christmas Day in odd numbered years;

(b)From 3:00 pm Christmas Day until 3:00 pm Boxing Day in even numbered years;

(c)On the Mother’s Day weekend from 6:00pm on the Friday preceding Mother’s Day for the whole of the weekend.

11.If the Father fails or neglects to return a clear supervised hair follicle drug test result or any clear supervised urinary drug screen pursuant to order 7 or 8 herein, then the Father’s time with X shall revert to the time set out in order 5 herein (that is, time shall be professionally supervised) thereafter, and the time in orders 7 and 8 herein shall be suspended until the Father produces further clear hair follicle tests conducted at intervals of not less than three (3) months.

12.For the purposes of order 11: upon the Father producing two (2) clear hair follicle drug test results pursuant to order 11 the Father shall recommence spending time:

(a)In accordance with order 7 after the first clear hair follicle test pursuant to order 11; and,

(b)Order 8 after the second clear hair follicle test pursuant to order 11.

13.All changeovers pursuant to order 7 and 8 be as agreed and in default of agreement at the D Petrol Station, E Street, Suburb F.

14.The Father shall provide the results of hair follicle testing to the Mother by email and further shall request that the testing service also provide the test results to the Mother directly by email.

15.The Father shall provide the results of supervised urinary drug screens pursuant to orders 7 and 8 herein to the Mother by email not less than one (1) hour prior to changeover for each occasion of time-spend and further shall request that the testing service also provide the test results to the Mother directly by email.

16.The child shall communicate with the Father each Monday between 6:00pm to 6:30pm by video call or phone call, with the Father to place the call and the Mother to facilitate the child’s communication with the Father.

17.That the Father continue to attend upon Ms G of H Counselling Service for drug and alcohol counselling until such time as Ms G advises that such counselling is no longer required.

18.The Mother and Father keep each other advised of their current phone number and email address (and advise of any changes to same within 24 hours).

19.The Mother and Father shall strictly communicate about all aspects of the child’s care, welfare and development by email or text message and only at reasonable times of the day save in the case of any emergency when the Mother and Father shall communicate via telephone.

20.The Mother and Father notify each other of any serious medical injury, serious illness or hospital admission in respect of the child, as soon as practicable after serious medical injury, serious illness or hospital admission occurs and both parties are authorised to speak to any treating Medical Practitioner or Specialist in relation to that serious medical injury, serious illness or hospital admission and this Order shall serve as authority for same.

21.The Applicant Mother be at liberty to forward a copy of the Final Parenting Orders to the staff of any educational facility including the child’s school and medical professionals attended by the child.

22.The Father shall be at liberty to obtain from any educational facility which the child is enrolled at his expense any photographs, reports, newsletters, and information normally available to parents.

23.To give effect to the above the Mother shall keep the Father informed at all times of the child’s school (including Greek School) which the child is or will be attending.

24.The Mother and Father keep each other advised of the details of any extracurricular activities in which the child is enrolled.

25.The Mother and Father are hereby restrained from:

(a)Denigrating the other parent or any member of their immediate family in the presence or hearing of the child or either of them;

(b)Discussing any aspect of these family law proceedings within hearing or presence of the child;

(c)Exposing the child or either of them to family violence;

(d)Using corporal punishment on the child.

26.Pursuant to s.68P and s.68Q of the Family Law Act 1975 (Cth) (“the Act”) to the extent that these Orders are inconsistent with a Family Violence Order, these Orders shall prevail.

27.The Order appointing the Independent Children’s Lawyer be discharged

28.Pursuant to s.65DA(2) and s.62B of the Act 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 the Attachment and these particulars are included in these Orders.

AND THE COURT NOTES THAT:

A.Nothing in these Orders permits the Father to approach or attend at the child’s school or extracurricular activities when doing so would otherwise be prohibited by a Family Violence order.

B.The paternal grandmother, Ms C, was present in Court and told the Court she understood and agreed to order 8(d).

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 Randolph & Melides has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE O’SHANNESSY

1. These are the settled reasons of a judgment delivered ex tempore pursuant to section 69ZL of the Family Law Act 1975 (Cth) (‘the Act’).

2. The proceedings concern what time the Father, who is 59 years of age and a tradesman, will spend with his daughter, aged eight years.  The Mother is aged 42 and I believe is or has been, a factory worker. 

3. The Father has had a long-standing addiction or at least a profound attraction to heroin.  He appears to be in one of that quite small group of people who has abused heroin for a long period of time and still lives to tell the tale.  The great bulk of people who use heroin over a long period of time end up dead or incapacitated in some way.

4. The Father has managed to maintain employment and to maintain a close relationship with his daughter.  The parties separated in November or December of 2018 and for a time the Father spent regular time with his daughter. 

5. The Mother issued these proceedings on 27 November 2020.  Her concern then and remains that the Father continues to want to spend time with his daughter at the same time as he continues to use heroin.  The Father has told the world and me as the Judge that he can and will cease using heroin. He has been medicated with methadone and has long-term counselling in order to assist him to stop using heroin.  Despite that he has, at least on occasions, continued to use heroin to some extent. 

6. I have before me an abundance of observations of a very close and strong relationship between the child and her father and there is no evidence that the Father has been affected by heroin, or the lack of it (detoxifying) on any of those occasions.  However, the Father accepts that continued use of heroin is going to mean that his relationship with the child cannot proceed to unsupervised regular time.  The Mother’s position is that he should have that time provided she and the Court can be satisfied that the Father has stopped using heroin. 

7. As a Judge who has acted for literally hundreds of heroin users from about 1986 to about the mid-1990s, a great bulk of my clients died one way or another from heroin use.  Very few lived to 59 years old like the Father. 

8. One view is that if the Father keeps using heroin he is on borrowed time.  I have no doubt the Father has many friends and associates who have died of some complication of heroin use, overdose or other unfortunate aspect.  The unfortunate aspect of heroin use is that basically people are at a risk of going to sleep when they are affected, and when they are not affected by heroin they wish they were and that drives their behaviour.  It is a big problem.  The Father now accepts that and promises, effectively, by these orders that he will cease that use.  In that context the parties very sensibly came to, by negotiation, a long suite of orders of a pathway for the child to be able to have the joy in her life of having unsupervised time with her father. 

9. The thing that stands in the road of the child being able to have that joy is whether her father can cease using heroin altogether, as opposed to a bit now and then.  If he is able to do that then the child is going to have the joy that she wants so much in her life, which is to spend time with her father and his family because of her love and affection for him. 

   Sole parental responsibility

10. The parties disagree about the order in regard to parental responsibility.  In this case I do not apply the presumption that there should be an order for equal shared parental responsibility.  The father seeks that order on the merits of the case.  The mother seeks that there be an order for sole parental responsibility.  The presumption does not apply if there are reasonable grounds to believe that there has been family violence.  In this case there are not only reasonable grounds to believe there has been family violence, but there has been family violence.  The text messages of November 2019 of themselves are family violence.  Mr Korke, on behalf of the Mother, says that there should be an order for sole parental responsibility so that the Mother does not have the risk of having the Father communicate with her.  Though he did not use these words and his submissions were more elegant, Mr Korke argued that if the Father has an inch, given he has been twice found guilty of breaches of Intervention Orders, he will take a mile in terms of his communication.  He submitted that the Mother should not have the burden of putting up with that. 

11. The Father says that the concept or knowledge that he is the child’s father and the child’s heritage is very important to him and to the child.  He submits that it is necessary that he have equal shared parental responsibility to ensure that heritage and relationship building occurs so that he can play a greater role in the child’s life.  The Family Report at paragraph 78 states:

    [The Father]’s proposals seem to point to a need for him to remain involved by being informed about [the child]’s life events.  Given the ineffectiveness of the co-parenting arrangement over several years and the unlikelihood of any improvement it may be of benefit for [the child] that her primary parent make decisions.  This will assist to reduce parental conflict, any opportunity for a parent to undermine the other and for timely decisions to be made for [the child] without the risk of further parental disharmony.

12. I indicated to the Mother’s counsel that I was not convinced that the Mother would not keep the Father informed and consult with him. The Mother, present in Court, followed that discussion and was engaged when I raised the issue.  She nodded to me, making it clear that it was her intention to do so.  I infer from the conversation that had occurred with her counsel that the communication was to be courteous and that no family violence was involved. 

13. The suite of things involved in parental responsibility is very wide and set out in section 4 of the Act:

    "major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:

    (a)the child's education (both current and future); and

    (b)the child's religious and cultural upbringing; and

    (c)the child's health; and

    (d)the child's name; and

    (e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

    To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.

14. It was also clear in discussions that the only long-term decision that the parties can envisage at the moment arising within the terms of section 4 of the Act is the choice of high school for the child. That choice will likely be influenced by what was most convenient to the parent with whom the child was living most of the time, which would be the Mother.

1. The child’s life in recent times has been troubled by her father continuing to use heroin.  Continuing to use heroin has meant that the child is not able to spend the time with her father and she would like to.  The Father wants to spend a lot more time with the child and his persistence and determination to maintain a connection with the child is to be admired and is very much in her interests.  I take into account all of the parties’ evidence, including the Family Report

2. Balancing all of those matters, my determination is that the Mother should have sole parental responsibility for long-term issues relating to health and education. Otherwise, the parents will have equal shared parental responsibility for other matters including those listed in section 4 of the Act, which on the evidence are unlikely to ever arise and are a theoretical consideration.

3. The substance of that is the Father is to be kept informed of those major long-term issues, but not face-to-face.  I am not going to expect these parties to discuss matters that they disagree about face-to-face or by telephone.  I am aware of the recent improvement in relations whereby when the Father had a serious illness, and as a result of being admitted to hospital was unable to exercise time, the Mother arranged or cooperated with arrangements whereby the child was made available to see the Father other than in accordance with the prior Court Orders.  It is hoped that that type of sensible cooperation can continue, but on the evidence I am not going to expect or presume that the child will have the benefit of such smooth communications between her parents. 

4. I am alert to the Independent Children’s Lawyers position to not put anything in the Orders that could possibly lead to more arguments between these parents because there has been far too much already.  There is substance in that.  However, by restricting the consultation aspect to communications in text, email or writing, I have some confidence that will be able to be complied with without triggering further family violence or even simple rudeness between the parties.  It is very important to the child that her Father is significantly involved in her life and I find that that is in the child’s best interests.  Equal shared parental responsibility for religious and cultural upbringing will assist the child.  I might add there is no evidence that the parties will disagree about such matters.

5. These orders are not to be taking this family into where they once were, where parenting arrangements were negotiated face-to-face. That was a disaster. Hopefully, things will improve, but at the moment I am not satisfied that the parents would be able to do that other than by limited communication by text, writing or email, and that is, effectively, complying with section 65DAC of the Act. They are my reasons.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy.

Associate:

Dated:       28 October 2022