Sherwin & Farley
[2022] FedCFamC2F 1737
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sherwin & Farley [2022] FedCFamC2F 1737
File number: MLC 9117 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 15 November 2022 Catchwords: FAMILY LAW – interim parenting orders – parenting arrangements over Christmas – mother travelling over Christmas – shared or alternate Christmas day. Legislation: Family Law Act 1975 (Cth) s 69ZL Division: Division 2 Family Law Number of paragraphs: 13 Date of hearing: 15 November 2022 Place: City D Counsel for the Applicant: Mr Carne Solicitor for the Applicant: Morrison and Sawers The Respondent: On his own behalf Solicitor for the Independent Children's Lawyer: Medson Legal ORDERS
MLC 9117 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SHERWIN
Applicant
AND: MR FARLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
15 NOVEMBER 2022
THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
1.Paragraphs 3, 4 and 5 of the Final Orders made on 16 August 2017 are hereby suspended.
2.The child, X born in 2015 (“X” or “the child”), live with the Mother.
3.Changeovers at school time shall occur at school, otherwise changeovers shall occur at KFC Town B.
4.X spend time with the Father:-
(a)each Saturday from 9.00am to 5.00pm;
(b)each Wednesday from after school until 6.30pm;
AND THE COURT ORDERS UNTIL FURTHER ORDER THAT:
(c)for Christmas from 3.00pm 22 December 2022 until 3.00pm 23 December 2022 PROVIDED THAT X spends the night at the home of the Paternal Aunt MS C or such other paternal family member as agreed by the Mother. IN THE EVENT that the Father is unable to provide an appropriate place for X to spend the night, then his time shall occur from 9.00am until 5.00pm on 22 December 2022;
(d)at such other times as agreed with the Mother in writing (including by text message).
AND THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
5.The Mother and the Father attend upon a psychologist as nominated by the Independent Children’s Lawyer, for the purpose of a psychological risk assessment at such date and time as directed by the Independent Children’s Lawyer, with the cost of the assessments and Report to be paid by the Mother and the Father AND IT IS REQUESTED that Victoria Legal Aid fund the Assessments on behalf of the Mother and the Father.
6.For the purposes of the risk assessments the parties provide to the psychologist preparing the report pursuant to these Orders copies of all documents filed on their behalf in this proceeding (save for financial statements).
7.For the purposes of the risk assessment the Mother and the Father provide to the psychologist preparing a report pursuant to these Orders an authority permitting the psychologist and their respective treating psychologist or counsellor to exchange relevant information regarding them.
8.For the purposes of the risk assessment, the Independent Children's Lawyer provide to the psychologist preparing a report pursuant to these Orders a copy of any report from the Department of Families Fairness & Housing.
9.The Independent Children's Lawyer shall be at liberty to photocopy (or otherwise duplicate) any subpoenaed material (save for any file produced by the Department of Families Fairness & Housing) and provide copies to the psychologist preparing a report pursuant to these Orders.
10.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 and alcohol 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) centimeters, 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 twenty-four (24) hours of written request being made by the Independent Children’s Lawyer, the Mother is required to make an appointment with AWDTS by telephoning 1300 37 84 83 for the purposes of providing a hair sample for hair drug and alcohol 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 Independent Children’s Lawyer) upon receipt of such results;
(f)the hair drug test may screen for alcohol, 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 Victoria Legal Aid fund the costs of that test.
11.The Mother submit herself every three months from the date of these Orders to hair follicle drug and alcohol testing in accordance with the Order immediately above and provide the results of such testing to solicitors for the Father and the Independent Children’s Lawyer, until such time as she provides test results clear of illicit substances and alcohol.
12.The Father 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 and alcohol 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 Father is required to maintain his hair length at a length not less than four (4) centimeters, 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 twenty-four (24) hours of written request being made by the Independent Children’s Lawyer, the Father is required to make an appointment with AWDTS by telephoning 1300 37 84 83 for the purposes of providing a hair sample for hair drug and alcohol testing purposes;
(c)the Father or his legal representatives are to provide AWDTS with a copy of these Orders;
(d)the Father is to attend an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from the Father at the earliest available time;
(e)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 the legal representatives for the Mother (and the Independent Children’s Lawyer) upon receipt of such results;
(f)the hair drug test may screen for alcohol, 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 Father AND IT IS REQUESTED that Victoria Legal Aid fund the costs of that test.
13.The Father submit himself every three months from the date of these Orders to hair follicle drug and alcohol testing in accordance with the Order immediately above and provide the results of such testing to solicitors for the Mother and the Independent Children’s Lawyer, until such time as he provides test results clear of illicit substances and alcohol.
14.The Independent Children’s Lawyer 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;
(b)Any Medical Practitioner and/or allied health professional attending upon any one or more of the children, the Mother or the Father;
(c)The Regional Director of the Department of Families Fairness & Housing; and
(d)The Manager and/or like Officer of any program and/or courses and/or process relevant to the implementation of paragraph 16 hereof.
AND THE COURT ORDERS THAT:
Filing Directions
15.By no later than 16 January 2023, the Father file and serve:
(a)Response to Initiating Application setting out the orders he seeks; and
(b)An affidavit setting out the facts, his side of the story and reasons why the orders he seeks should be made.
Final Hearing
16.The proceedings be adjourned to Tuesday 30 May at 10.00am for Final Hearing in the May 2023 City D Circuit sittings of the Federal Circuit and Family Court of Australia.
17.The matter may be listed for a compliance mention prior to the final hearing in the event that the compliance email check that the parties will be sent is not completed or if a party requests such compliance mention.
18.The party responsible for the payment of any fee including a setting down or hearing fee pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
19.The Applicant file and serve any Amended Application and a trial affidavit and, if relevant, an updated Financial Statement, upon which she/he seeks to rely by no later than 28 days prior to the Final Hearing.
20.The Respondent file and serve any Amended Response and a trial affidavit and, if relevant, an updated Financial Statement, upon which she/he seeks to rely by no later than 21 days prior to the Final Hearing and the obligation to file same applies whether or not the Applicant has filed trial material in accordance with the previous order.
21.The Independent Children's Lawyer file and serve any material on which they seek to rely by no later than 14 days prior to the Final Hearing.
22.Each of the parties be at liberty to file a short affidavit in reply by no later than 14 days prior to the Final Hearing.
23.Each party file and serve a case outline no later than 7 days prior to the Final Hearing and provide a copy in Word format to the associate with the case outline to include:
(a)A list of the application/response and all affidavits to be relied upon including the dates of filing;
(b)A brief chronology of relevant events;
(c)A precise minute of the orders the party is seeking; and
(d)A list of authorities to be relied upon, if any.
Section 102NA
24.It is declared that pursuant to section 102NA(1)(a), (b) and (c)(iii) of the Family Law Act 1975 (Cth), section 102NA(2) of the Act applies to any future cross-examination in these proceedings and the Father is banned from personally cross examining the Mother and IT IS REQUESTED THAT Victoria Legal Aid provide assistance to the Father under the cross-examination scheme.
25.Pursuant to order 23 hereof, the Father 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 to enable his/her legal representation at Final Hearing.
Section 69ZW
26.Pursuant 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:
(a)any notifications to DFFH of suspected abuse of the children X born in 2015 and Y born in 2021 (‘the children’) to whom the proceedings relate 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.
Family Report
27.Pursuant to s 62G(2) of the Family Law Act 1975 (Cth), the parties and the child attend upon a Court Child Expert (practicing under their appointment as a family consultant), or a Family Consultant appointed under Regulation 7, nominated by the Court Children’s Service (referred to as the Family Consultant) for the purposes of the preparation of a family report, such report to be released by 3 April 2023 and that the family report address:
(a)any views expressed by the child and any matters (such as the child’s maturity or level of understanding) that would affect the weight that the court should place on those views;
(b)the matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth);
(c)the impact upon the child and upon the child’s relationship with the Mother if the Court made orders as sought by the Father;
(d)the impact upon the child and upon child’s relationship with the Father if the Court made orders as sought by the Mother;
(e)any other matters that the Court Child Expert/Family Consultant considers important to the welfare or best interests of the child.
28.Not later than 4.00 pm on 23 November 2022 the parties must provide their contact telephone numbers and email addresses to [email protected].
29.Each party will do all things necessary to ensure the child attend upon to the Family Consultant pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
30.The parties and the child shall attend for interviews at such times, dates and places, and by such means as the Family Consultant may advise.
31.The Family Consultant shall be at liberty to inspect any material filed by the parties.
32.Leave is granted to each of the parties and the Independent Children’s Lawyer to provide a copy of the Family Report to a convener of any legal dispute resolution conference.
AND THE COURT NOTES THAT:-
A.It is requested that Victoria Legal Aid fund the costs of the Mother and Father’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.The relevant application referred to in order 24 hereof is available to the parties at 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.
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 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.
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.
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 Sherwin & Farley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
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 and repetition errors have been corrected, citations added and an attempt has been made to make the orally delivered reasons easier to read but the substance is unchanged.
The Mother is 26 years old and the Father is 34 years old. The parents commenced cohabitation in 2013 and separated in January 2016. There is one child of the relationship, X born in 2015 (‘the child’). The Mother issued these proceedings on 17 August 2022 seeking the discharge of previous final orders made in August 2017.
The parties have largely resolved their differences about what should happen for the time being for the living arrangements of the child. The parties agreed that the child should spend time with her Father twice a week every week and should otherwise live with the Mother for the time being.
This matter was listed for interim defended hearing yesterday (14 November 2022). The Father sought the opportunity to consult the duty lawyer and has done so, and the matter rolled over to today as a part of the City D Circuit sittings of this Court. The Mother is represented by Mr Carne of counsel, the Independent Children’s Lawyer (‘ICL’) Ms Medson appears in person and the Father has represented himself, and has with some X and courtesy advanced his case on the one point the parties disagree about.
The remaining issue in dispute is whether the child should spend time with the Mother to travel to another town over the Christmas Day period, or remain in the City D area. It is common ground that the child was unable to spend any time with her mother last Christmas. From the Father’s perspective he was driven to put that position in place because of his understanding of the consequences of intervention orders and allegations. I make no finding about whether that was correct or not, or was or was not the right thing to do, but that is fact that the child did not spend time with her Mother last Christmas.
This year the Mother has arranged to spend time with her family at Christmas in a town some 2¼ to 2½ hours’ drive away, depending on traffic, roads, floods and damage to roads (and much of the journey is done in 40kph chunks). She plans to travel the day before Christmas Day and return on Boxing Day. On the face of it, it is not highhanded or outrageous for the Mother to make those arrangements. On the other hand, it is not highhanded or outrageous for the Father to say he would prefer and seek what has been the usual (save for last year) pattern of what is called a shared Christmas Day.
Christmas Day is only 1/365 of the year, but the reality is for those of some religious persuasions (and of none at all in the secular world) Christmas Day is a day of great importance. These things frequently come down to the issue of whether a child will spend alternate Christmas Days with either parent, or shared Christmas Days with both parents. I am being asked to merely determine this for this Christmas Day, of the year 2022, not into the future.
I asked the Father about the stress of having to travel on Christmas Day and his evidence was that in the past he has done all the travel and rather than distress, the trips have been a joy. The child was excited by the prospect of the travel and Christmas and whatever gave the child joy gave him joy. Though that has only been given from the bar table, I am quite prepared to accept the reality of that today. I also shared with the Father my personal experience (of many years ago) of the shared Christmas day; being in two parts of the state on Christmas Day so that everyone got to see grandparents, grandchildren, siblings, etc. There were some real benefits to that arrangement, but there was also real stress. The Father does not find that travel stressful.
The crux of this case is that the Mother has made what will be ordinary, everyday, sensible arrangements. There is nothing in the Act that assists me to make this decision, save that I have got to make the order in the best interests of the child and give both parents and the ICL procedural fairness or the chance to air their point of view.
My decision in the end is that on this Christmas Day, I will accept the Mother's proposal for the alternate Christmas Day arrangements. The Father should have, in effect, a first crack at Christmas by having from 22 December to 23 December 2022. My view is that the child will enjoy the festivity and joy of Christmas complete with presents etc. with her Father, whether it is on 22 or 23 December as opposed to 25 December.
I understand and accept how important Christmas Day is to both parents. We can only have one day, the parents are going to be a fair distance apart and I am not prepared to compel the Mother to travel on this particular Christmas Day. What happens in the future will be determined separately at final hearing.
I will make the order as set out at paragraph 3(c).
I will add an order for a section 62G family report, and I am going to make section 102NA order in reliance upon section 102NA(1)(c)(iii). I am a bit parsimonious with 102NA orders because it is public funds and the taxpayer pays. I will make that 102NA order that means the Father is not permitted to personally cross examine the Mother and I will make an order requesting Victoria Legal Aid assist the Father under the section 102NA scheme.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 14 December 2022
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