FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Roche & Donato (No 2) [2023] FedCFamC2F 1225
File number(s): ADC 3736 of 2021 Judgment of: JUDGE DICKSON Date of judgment: 25 September 2023 Catchwords: FAMILY LAW – PARENTING – final hearing – ten year old child – consideration of best interests of the child – parental responsibility – where both parties have a history of illicit substance abuse – where the mother was the primary caregiver up until 2018 – where the father is now the primary caregiver – where the child has allegedly been exposed to drug usage and potentially dangerous circumstances and dangerous individuals in the mother’s care – where the mother has been late to or failed to submit to requests for drug testing – orders made for the child to live with the father and spend supervised time with the mother moving to unsupervised time upon the mother returning a series of negative drug tests Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC and 61DA. Cases cited: Betros & Betros [2017] FamCAFC 90
Goode & Goode (2006) FLC 93–286
Division: Division 2 Family Law Number of paragraphs: 178 Date of last submission/s: 14 August 2023 Date of hearing: 16, 17, 18 and 24 May 2023, and 14 August 2023 Place: Adelaide Counsel for the Applicant: Mr Boehm Solicitor for the Applicant: Brite Legal Respondent: Self-Represented Counsel for the Independent Children's Lawyer: Ms Fuda Solicitor for the Independent Children's Lawyer: Ms Atchison ORDERS
ADC 3736 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ROCHE
Applicant
AND: MS DONATO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
25 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.All previous parenting orders are hereby discharged.
2.The father have sole parental responsibility for the child X born in 2012 ('the child') subject to paragraph 3 herein.
3.Before the father makes any long-term decision concerning the care, welfare and development of the child, he shall notify the mother by email of his proposal and give to her at least seven (7) days to respond, and shall consider the mother's views in relation to any decision that he may make for the child.
4.The child live with the father.
5.The child spend supervised time with the mother as follows:
(a)From 10:00am to 4:00pm commencing Saturday, 30 September 2023 and each alternate Saturday thereafter;
(b)From the conclusion of school (or 3:30pm if a non-school day) to 7:00pm Tuesday commencing Tuesday, 3 October 2023 and each intervening Tuesday thereafter;
(c)From 10:00am to 4:00pm on 25 December 2023 (Christmas Day); and
(d)At such other times as agreed in writing between the mother and the father.
6.All time spending as set out in paragraph 5 herein shall be supervised by Ms B, or such other supervisor as agreed between the mother and the father in writing or in default of agreement at the C Contact Service in City D (‘the Contact Service’).
7.The Independent Children’s Lawyer do forthwith…
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- Case
- [2023] FedCFamC2F 1225
- Decision Date
CaseChat Overview and Summary
The court examined the child's best interests, focusing on safety, stability, and emotional well-being. Given the history of substance abuse and the allegations of unsafe conditions, the court prioritised the child's immediate safety by awarding sole parental responsibility to Mr Roche. However, to ensure a balanced approach, the court allowed Ms Donato supervised visitation, which would transition to unsupervised visits contingent on her passing a series of drug tests. The detailed visitation schedule was designed to gradually increase the child's time with Ms Donato as she demonstrated sustained sobriety.
The court's decision emphasised the need for both parents to address their substance abuse issues and participate in behavioural change programs. The orders also included specific measures to ensure the child's safety during transitions and communications between parents. Both parents were required to maintain open communication through a co-parenting app and to refrain from any actions that could endanger the child. The court's comprehensive approach aimed to protect the child while encouraging a relationship with both parents as circumstances allowed.
Orders
Orders of the court
ADC 3736 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR ROCHE
Applicant
AND:
MS DONATO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
25 SEPTEMBER 2023
THE COURT ORDERS THAT:
1. All previous parenting orders are hereby discharged.
2. The father have sole parental responsibility for the child X born in 2012 ('the child') subject to paragraph 3 herein.
3. Before the father makes any long-term decision concerning the care, welfare and development of the child, he shall notify the mother by email of his proposal and give to her at least seven (7) days to respond, and shall consider the mother's views in relation to any decision that he may make for the child.
4. The child live with the father.
5. The child spend supervised time with the mother as follows:
(a) From 10:00am to 4:00pm commencing Saturday, 30 September 2023 and each alternate Saturday thereafter;
(b) From the conclusion of school (or 3:30pm if a non-school day) to 7:00pm Tuesday commencing Tuesday, 3 October 2023 and each intervening Tuesday thereafter;
(c) From 10:00am to 4:00pm on 25 December 2023 (Christmas Day); and
(d) At such other times as agreed in writing between the mother and the father.
6. All time spending as set out in paragraph 5 herein shall be supervised by Ms B, or such other supervisor as agreed between the mother and the father in writing or in default of agreement at the C Contact Service in City D (‘the Contact Service’).
7. The Independent Children’s Lawyer do forthwith facilitate the filing and service of an affidavit from the said Ms B which shall:
(a) Annex a copy of the Legal Services Commission of South Australia Brochure entitled ‘Should I supervise Contact?’; and
(b) Confirms that the said Ms B has read the brochure, understands her role and obligations as a supervisor and is prepared to undertake such a role.
8. On or before 20 December 2023 (but no earlier than 4 December 2023) being three months from the date of these Orders, the mother undergo drug testing pursuant to the hair follicle analysis process for the purpose of detecting any illegal drugs and/or substances and for the purpose of such testing the provision of the sample is to be personally supervised and observed by a qualified medical practitioner or an authorised delegate of Mobile Drug and DNA, in accordance with the chain of custody protocol specified in AS/NZ 4308:2001 with the mother to provide to the father the written results of such testing forthwith upon receipt of same with the costs of such testing to be the responsibility of both parties equally with the father to pay his half share to the testing agency and confirm same in writing to the mother.
9. ON CONDITION THAT the hair analysis testing pursuant to paragraph 8 herein is negative for illicit substances, then as and from the production of such test results to the father, the child spend supervised time with the mother:
(a) From 10:00am Saturday to 10:00am Sunday and each alternate weekend thereafter;
(b) From the conclusion of school (or 3:30pm if a non-school day) to 7:00pm Tuesday, and each intervening Tuesday thereafter;
(c) On Mother’s Day in the event that it does not coincide with a period of weekend time as provided for herein, from 10:00am to 5:00pm; and
(d) At such other times as agreed in writing between the mother and the father.
10. All time spending as set out in paragraph 9 herein shall be supervised by Ms B, or such other supervisor as agreed between the mother and the father in writing or in default of agreement at the Contact Service.
11. That the parties are at liberty to vary the dates and times of the supervised time spending as set out in paragraphs 5 and 9 herein to suit the availability of the supervisor Ms B or such other supervisor as the parties may agree in writing.
12. On or before 15 May 2024 (but no earlier than 1 May 2024) being five months since paragraph 8 herein, the mother undergo drug testing pursuant to the hair follicle analysis process for the purpose of detecting any illegal drugs and/or substances and for the purpose of such testing the provision of the sample is to be personally supervised and observed by a qualified medical practitioner or an authorised delegate of Mobile Drug and DNA, in accordance with the chain of custody protocol specified in AS/NZ 4308:2001 with the mother to provide to the father the written results of such testing forthwith upon receipt of same with the costs of such testing to be the responsibility of both parties equally with the father to pay his half share to the testing agency and confirm same in writing to the mother.
13. ON CONDITION THAT the hair analysis testing pursuant to paragraph 12 herein is negative for illicit substances, then as and from the production of such test results to the father, the child spend unsupervised time with the mother:
(a) From the conclusion of school (or 3:30pm if a non-school day) Friday to 6:00pm Sunday and each alternate weekend thereafter;
(b) From the conclusion of school (or 3:30pm if a non-school day) to 7:00pm on Tuesday and each intervening Tuesday thereafter;
(c) In the short school holidays, the time on Tuesdays be extended to commence at 10:00am and to conclude at 6:00pm;
(d) On the child’s birthday from 10:00am to 3:00pm; and
(e) At such other times as agreed between the parties in writing.
14. On or before 15 October 2024 (but no earlier than 1 October 2024) being five months from paragraph 12 herein, the mother undergo drug testing pursuant to the hair follicle analysis process for the purpose of detecting any illegal drugs and/or substances and for the purpose of such testing the provision of the sample is to be personally supervised and observed by a qualified medical practitioner or an authorised delegate of Mobile Drug and DNA, in accordance with the chain of custody protocol specified in AS/NZ 4308:2001 with the mother to provide to the father the written results of such testing forthwith upon receipt of same with the costs of such testing to be the responsibility of both parties equally with the father to pay his half share to the testing agency and confirm same in writing to the mother.
15. ON CONDITION THAT the hair analysis testing pursuant to paragraph 14 herein is negative for illicit substances, then as and from the production of such test results to the father, the child spend unsupervised time with the mother:
(a) During school terms from the conclusion of school Friday (or 3:30pm if a non‑school day) to the commencement of school Monday (or the commencement of school on a Tuesday in the event of a public holiday Monday), and each alternate weekend thereafter;
(b) During school terms from the conclusion of school (or 3:30pm if a non-school day) to 7:00pm on Wednesday and each alternate Wednesday thereafter;
(c) During the short school holidays, from the conclusion of school Friday (or 10:00am if a non-school day) to 5:00pm the following Wednesday in accordance with the usual rotation of time spending referred to in paragraph 15 (a) herein;
(d) During the Christmas school holidays from the conclusion of school Friday (or 10.00am if a non-school day) to 5:00pm the following Wednesday and each alternate week thereafter following the usual rotation of time spending referred to in paragraph 15(a) herein;
(e) For Christmas 2024, and each even year thereafter, from 2:00pm on 25 December 2024 to 2:00pm on 26 December 2024;
(f) For Christmas 2025, and each odd year thereafter, from 2:00pm on 24 December 2025 to 2:00pm on 25 December 2025;
(g) From the conclusion of school (or 3:30pm if a non-school day) on Maundy Thursday 2025, and each odd year thereafter, for five (5) consecutive nights thereafter and concluding at the commencement of school the following Tuesday (or 10:00am if a non-school day);
(h) On the child’s birthday, if not already in the mother’s care:
(i) If on a school day, from the conclusion of school to 7:00pm;
(ii) If on a weekend or non-school day, from 10:00am to 2:00pm; and
(i) At such other times as agreed between the parties in writing.
16. Notwithstanding any other order made herein, the child shall spend time with the father as follows:
(a) In 2024, and each even year thereafter, from 2:00pm on 24 December 2024 to 2:00pm on 25 December 2024;
(b) In 2025, and each odd year thereafter, from 2:00pm on 25 December 2025 to 2:00pm on 26 December 2025;
(c) From the conclusion of school (or 3:30pm if a non-school day) on Maundy Thursday 2024, and each even year thereafter, for five (5) consecutive nights thereafter and concluding at the commencement of school the following Tuesday (or 10:00am if a non-school day);
(d) On the child’s birthday, if not already in the father’s care:
(i) If on a school day, from the conclusion of school to 7:00pm;
(ii) If on a weekend or non-school day, from 10:00am to 2:00pm; and
(e) At such other times as agreed between the parties in writing.
17. In the event that the mother returns a hair follicle test as provided for herein positive for illicit substances, then all such time spending shall revert to the time set out in paragraph 5 herein and thereafter the progression of time and supervision (including the dispensing of the requirement for supervision) shall recommence in accordance with the timeframes as set out in paragraphs 8, 12 and 14 herein.
18. For the purpose of all hair follicle testing as provided for herein, the mother is restrained from shaving, bleaching or colouring her hair from the date of this order until the last such hair follicle test has been completed pursuant to paragraph 14 herein.
19. For the purpose of all hair follicle testing as provided for herein, the mother is required to maintain her head hair at a length of not less than five (5) centimetres from the date of this order until the last such hair follicle test has been completed pursuant to paragraph 14 herein.
20. Within ninety (90) days of the date hereof each of the parties do all necessary acts and sign all necessary documents to cause an Australian passport to issue for the child with such passport to be at the father's sole expense and to be held by the father.
21. In the event that the mother fails or refuses to execute any document necessary to obtain an Australian passport for the child, then the requirement for the mother's consent shall be dispensed with.
22. In the event it should prove necessary to do so and upon an affidavit of such refusal or neglect to execute any document necessary to obtain an Australian passport for the said child and pursuant to section 106A of the Family Law Act 1975 (Cth), a Judicial Registrar of this Honourable Court is hereby authorised to sign all such documents as shall be required.
23. The father shall provide the mother with no less than sixty (60) days advanced notice of any intended international travel for the child including provision of an itinerary and contact details, and that the father shall provide the mother with make-up time for such period foregone during any period of international travel within sixty (60) days upon his return to the Commonwealth of Australia on dates and times to be agreed between the parties in writing or in default of agreement as nominated by the mother.
24. The child do communicate with the mother by FaceTime as follows:
(a) On Monday and Thursday of each week at 6.00pm for a maximum of thirty (30) minutes for each such call; and
(b) To facilitate such FaceTime communication the mother shall telephone the child on the father’s mobile telephone and the father shall make the child available to receive each such call.
25. The father do complete the 'Kids Are First' program with E Centre and do provide proof of completion to the mother within fourteen (14) days of such completion.
26. The father do complete the 'Men's Behaviour Change' program (or such other like program if this is unavailable) with C Contact Service and do provide proof of completion to the mother within fourteen (14) days of such completion.
27. The father be restrained by way of injunction from consuming alcohol to excess during any period when the said child is in his care.
28. That the appointment of the Independent Children's Lawyer is hereby discharged upon the completion of paragraph 7 herein.
THE COURT FURTHER ORDERS BY CONSENT THAT:
29. Subject to any other Order herein, all handovers that do not occur at the child's school shall take place by the father delivering the child to and collecting the child from the mother's residence.
30. Each party inform the other and keep the other informed of their contact telephone number, residential address and any changes thereto within forty-eight (48) hours of any change.
31. Except as otherwise provided in these Orders, the parents shall communicate on all issues regarding the care, welfare, development, health, education, sporting activities, extra curricula activities and time spending arrangements via the co-parenting app, AppClose or such other co-parenting app as may be agreed between them from time to time.
32. Both parents are hereby authorized to obtain such information from the child's school as is usually provided to caregivers including but not limited to school reports, school newsletters and school photographs and to attend such events/functions to which caregivers are usually invited to attend including but not limited to school assemblies, school concerts, Sports Days and Parent/Teacher interviews.
33. Both parents are hereby authorized to provide information to, obtain information from and attend appointments with any GP, medical specialist, dental practitioner, allied health professional, psychologist, counsellor and/or therapist with whom the child may consult from time to time.
34. Both parents shall follow any recommendations of the child's s treating GP regarding accessing any mental health support including obtaining a GP Mental Health Care Plan.
35. The parties be restrained, and injunctions are hereby granted restraining each of them from:
(a) Abusing, denigrating, insulting, or rebuking the other, the other's partner or family members in the presence of or within the hearing of the child or allowing any other person to do so;
(b) Discussing these proceedings or any allegations in these proceedings in the presence of or within the hearing of the child or allowing any other person to do so;
(c) Posting any information on any social media platform regarding these proceedings, any allegations made in these proceedings, the other party, the other party's partner or allowing any other person to do so;
(d) Consuming illicit substances whilst the child are in his or her care or facilitating the child having contact with any person doing so;
(e) Knowingly bringing the child into contact with or leaving her in the care of any person who is under the influence of illicit substances or allowing any other person to do so;
(f) Having drug paraphernalia in their possession or home whilst the child are in his or her care or facilitating the child having contact with any person who is in possession of such items; and
(g) Allowing the child to travel in a vehicle with an unlicensed/disqualified driver.
36. The Mother be restrained and an injunction be granted restraining her from permitting the child to come into direct or indirect contact with Mr F.
37. That all extant applications are hereby dismissed as finalised.
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.
Background
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Evidence
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Decision
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