Spillett & Chambers
[2023] FedCFamC1F 243
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Spillett & Chambers [2023] FedCFamC1F 243
File number(s): BRC 2943 of 2019 Judgment of: CAREW J Date of judgment: 4 April 2023 Catchwords: FAMILY LAW – CHILDREN – Where matter stood down on first day of trial to allow parties to negotiate terms of settlement – Where both parents have an admitted history of illicit substance use and family violence towards each other – Where both parents have reflected on past behaviours and come to an agreement which focusses on the best interests of the children Legislation: Family Law Act 1975 (Cth) Number of paragraphs: 17 Date of hearing: 3 & 4 April 2023 Place: Brisbane Counsel for the Applicant: Mr S Hartwell Solicitor for the Applicant: Smithson Lawyers Counsel for the Respondent: Ms G Shepherd Solicitor for the Respondent: Tempest Legal Counsel for the Independent Children's Lawyer: Ms K Carmody Solicitor for the Independent Children's Lawyer: Legal Aid Queensland EX TEMPORE ORDER
BRC 2943 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SPILLETT
Applicant
AND: MS CHAMBERS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAREW J
DATE OF ORDER:
4 APRIL 2023
UPON THE UNDERTAKING of the mother, Ms Chambers to ensure that the children attend changeovers and spend time with the father in accordance with this Order
THE COURT ORDERS BY CONSENT:
Parental responsibility
1.That the Mother and the Father have equal shared parental responsibility for X born 2013 and Y born 2016 (the children).
Explanation of Orders
2.That the Mother do all things necessary to arrange for the children and the Mother to attend upon Ms B for the purpose of having this Order explained to them, such attendance to occur within 7 days of the date of this Order.
Therapeutic Assistance for the Children
3.That the Mother and Father do all things and sign all documents necessary to engage Ms C, Psychologist and Clinical Family Therapist, to have the children commence attending upon Ms C for non-reportable counselling (“the counselling”) on 22 May 2023 at 3:00pm.
4.That the Mother and Father each attend upon Ms C, either together or separately by no later than 6 weeks from the date of this Order, prior to the children’s attendance upon Ms C commencing, for the purposes of counselling with respect to paragraphs 8 and 9 of this Order with respect to co-parenting issues.
5.That the Mother and Father share equally the cost of the counselling.
6.That leave be granted and the parents are directed to provide Ms C with the following documents:
(a)Affidavit of Ms B filed 27 January 2023;
(b)A copy of this Order;
(c)The reasons for judgement given in relation to the making of this Order, delivered on 4 April 2023.
7.That the counselling with Ms C continue until such time as Ms C provides written notice that the parents and children no longer require her assistance.
Living arrangements for the Children
8.That from the date of this Order, the children live with the Mother and spend time with the Father as follows:
(a)From 4pm Friday 21 April 2023 to 5pm Sunday 23 April 2023 and each alternate weekend thereafter.
(b)From after school Wednesday 26 April 2023 to before school Friday 28 April 2023;
(c)From 4pm Friday 12 July 2023 to 5pm Sunday 19 July 2023.
(d)From after school Wednesday 26 July 2023 to before school Monday 31 July 2023;
9.That following the conclusion of time in accordance with paragraph 8(d) of this Order, the children commence living in a shared care, week about arrangement with each parent as follows:
(a)From 11 August 2023 for a period of seven days, after school Friday to before school Friday, with the Father and each alternate week thereafter;
(b)From 18 August 2023 for a period of seven days, after school Friday to before school Friday with the Mother and each alternate week thereafter.
Prerequisites in order for living with arrangements to continue
10.That for a period of twelve months from the date of this Order, both parents shall attend for a hair follicle test at their own expense to screen for all illicit substances on the following dates:
(a)1 July 2023;
(b)1 October 2023;
(c)1 January 2024; and
(d)1 April 2024.
11.That for a period from 1 July 2024 to 1 July 2026, both the Mother and Father be at liberty to request the other parent in writing to complete a hair follicle test to screen for all illicit substances with no more than two tests to be requested by each party in a twelve-month period.
12.That if such a test is requested pursuant to paragraph 11 of this Order, then the party obliged to undertake the test shall have the test undertaken within seven (7) days of the request. If the results show no illicit drug use, the requesting parent shall reimburse the other parent for the cost of the test within seven (7) days.
13.That in the event that either party returns a hair follicle test that is positive for illicit substances or if either party fails to have the test undertaken within seven (7) days of a request having been made, or as required by paragraph 10 of this Order, then the time spent by the children with the parent who returns a positive result will cease immediately and the children shall live with the other parent until the parent produces a hair follicle test that is negative for all illicit substances.
School holidays and Special Occasion time
14.The parties agree that once the time in paragraph 9 of this Order commences, the equal time living arrangement continues throughout all school holiday periods save for express provisions for Father’s Day, Mother’s Day, the children’s birthdays, parents’ birthdays, Christmas and Easter as set out below:
(a)For Father's Day, from 3:00pm the day prior to Father’s Day to 5.00pm on Father’s day with the Father;
(b)For Mother's Day, from 3pm the day prior to Mother’s day to 5.00pm on Mother’s day with the Mother;
(c)For Christmas:
(i)With the Mother 3.00pm Christmas Eve to 3.00pm Christmas Day in even numbered years and 3.00pm Christmas Day to 3.00pm Boxing Day in odd numbered years; and
(ii)With the Father 3.00pm Christmas Eve to 3.00pm Christmas Day in odd numbered years and 3.00pm Christmas Day to 3.00pm Boxing Day in even numbered years
(d)For Easter commencing 2024:
(i)With the Mother 2.00pm Good Friday to 2.00pm Easter Saturday in even numbered years and 2.00pm Easter Saturday to 2.00pm Easter Sunday in odd numbered years; and
(ii)With the Father 2.00pm Good Friday to 2.00pm Easter Saturday in odd years and 2.00pm Easter Saturday to 2.00pm Easter Sunday in even years.
(e)For the children's birthdays:
(i)If on a school day, on the children's birthday each year from after school or 3pm on their birthday until before school or 9:00am the day following their birthday with the parent they are not living with.
(ii)If not a school day, from after school or 3pm the day prior to their birthday until 12pm the day of their birthday with the parent they are not living with.
(f)For the parents’ birthdays, commencing 2023 for the Mother and commencing 2024 for the Father;
(i)If on a school day, on the parent’s birthday each year from after school or 3pm on their birthday until before school or 9:00am the day following their birthday with the parent they are not living with.
(ii)If not a school day, from after school or 3pm the day prior to their birthday until 12pm the day of their birthday with the parent they are not living with.
Telephone Communication
15.That the parents communicate with the children at any reasonable time when not in their care and the other parent shall:
(a)Ensure that the children have privacy during the conversation; and
(b)Permit the children to call the parent back as soon as practicable if they miss the call.
16.That the children shall be at liberty to communicate with either parent at any time that they should express a wish to do so and the parent with care of the children shall attempt to facilitate the children initiating such communication, and failing agreement make the children available for a phone call from 5:00pm to 5:30pm once per week.
17.That the Mother and Father shall:
(a)Keep the other parent informed at all times of their contact telephone numbers and their residential address;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children (at the requesting parent's cost);
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children's medical information to the other parent (at the requesting parent's cost);
(d)Immediately (or as soon as practicably possible) notify the other parent via telephone in the event that the children require significant medical or hospital treatment whilst in their care or any other emergency involving the children;
(e)Communicate matters related to the parenting of the children only via My Family Wizard App in relation to any matters that are not urgent.
Specific Issues
18.That for the purpose of giving effect to paragraphs 8 and 9 of this Order, the Mother and Father engage their own treating psychologist and attend on a bi-monthly basis, providing proof of such attendance to the other parent of same about the following issues:
(a)For the Father:
(i)Drug use; and
(ii)Appropriate methods of discipline for young children; and
(b)For the Mother:
(i)Drug use; and
(ii)Sharing any negative views of the Father with the children.
(iii)How to encourage the children to have a meaningful relationship with the Father and paternal family
(c)That leave is granted and the parents are directed to provide their counsellors with the following documents:
(i)Affidavit of Ms B filed on 27 January 2023;
(ii)These final orders; and
(iii)Any reasons for judgement made to support this final Order being made delivered on 4 April 2023.
19.That whilst the children spend time with the Father, the Father will take the children to all extra-curricular activities in which they are currently enrolled, including friends birthday parties, subject to the parents putting the details in the calendar of the My Family Wizard App at least 7 days in advance.
General Orders
20.That this Order be sufficient authority to enable each party (at their own expense) to:
(a)Obtain copies of all school reports, photographs and any other documents relevant to the children's schooling;
(b)Contact any medical practitioner or other allied health practitioner who is treating the children to release and provide to each parent any information or documents as that parent requests from time to time, with the cost of provision to be borne by the party requesting the information;
(c)Authorise both parents to attend school functions and extra-curricular activities to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews;
(d)The parties are to ensure their mobile phone numbers are provided to the children and that the children’s mobile phone numbers are provided to each parent; and
(e)That the parties ensure that they share with each other any passwords for the children’s social media accounts.
21.That during the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children;
(d)Not discuss adult issues with the children or involve the children in parental conflict.
(e)Both parents are restrained from any corporal punishment of the children.
22.That the Father be at liberty to provide a copy of this Order to the children’s schools.
23.That for the purpose of sub-paragraphs 8(a) of this Order, the Mother is to attend changeovers on the first seven occasions that the children spend time with the Father and unless otherwise agreed, those changeovers shall be at D Store at Suburb F (E Street, Suburb F) at 4pm.
24.That for the purposes of sub-paragraphs 8(b), 8(d), 8(c) and paragraph 9 of this Order, changeovers will occur at the children’s school.
25.In the event that the children are not attending school, changeover shall occur at such place as agreed between the parties and failing agreement, at D Store at Suburb F (E Street, Suburb F).
26.That in the event that either parent withholds the children or a child without reasonable excuse and in the event that the other parent wishes to bring a contravention application, that application will be filed within twenty-eight (28) days of the alleged contravention.
Travel
Within Australia
27.That should either parent wish to travel with the children more than 300km from the parent’s residential address but within Australia, they must provide to the other parent at least 5 days prior to any travel the following:
(a)a detailed copy of itinerary for the trip including the dates of travel, the addresses of each place where the children will be staying and a contact phone number;
(b)If the children will be travelling by plane, a copy of the return airflight ticket.
Overseas
28.That should either parent wish to travel with the children overseas they must provide to the other parent at least 3 months prior to any travel the following:
(a)A detailed copy of itinerary for the trip including the dates of travel, the addresses of each place where the children will be staying and a contact phone number;
(b)A copy of return airflight ticket for the children;
(c)Details of any internal flight tickets whilst travelling.
29.That unless otherwise agreed in writing by the parents, the travelling parent must:
(a)Ensure that the children contact the other parent at least once every second day during the travel;
(b)Ensure the children only travel to countries that are signatory to the Convention on the Civil Aspects of International Child Abduction (Hague Convention);
(c)Ensure the children do not travel to countries where there is a travel warning above level 1 (exercise normal precautions).
30.That both parents will do all things reasonably required to ensure the children hold a current passport upon being notified that a parent wishes to travel with the children overseas and the cost of such passport is to be shared equally.
31.That the children’s passports will be held by the Mother.
32.That upon the Father providing the items in paragraphs 27 and 28 of this Order, the Mother will release the children’s passport to the Father. At the conclusion of the Father’s travel, the Father will return the children’s passports to the Mother within 14 days of returning to Australia.
Dispute Resolution
33.That the process to be used for resolving disputes about the terms or interpretation of this Order only shall be as follows:
(a)The parents shall consult with a Family Dispute Resolution practitioner or Family Relationship Centre to assist with resolving any dispute or reaching agreement about changes to be made;
(b)They shall pay the costs of the Family Dispute Resolution Practitioner equally;
(c)In the event that they are unable for any reason to have an appointment with the Family Dispute Resolution practitioner and cannot agree on an alternative Family Dispute Resolution practitioner, the Father shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(d)The Mother shall choose one of the listed practitioners within seven (7) days of receipt of the list;
(e)If the Mother fails to choose then the Father may choose.
34.In the event of a breach of this Order the parties do not need to proceed with Dispute Resolution.
Sleeping Arrangements in the Father’s Home
35.That when the children are living with or spending time with the Father, the Father shall ensure that:
(a)the children have their own bedroom or bedrooms;
(b)they do not have to share their bed with any other person; and
(c)they are not required to give up their bed for any other person.
Miscellaneous
36.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
37.Any outstanding applications be otherwise dismissed.
NOTATION
A.That the Mother accepts that the children are not at unacceptable risk of sexual harm in the Father’s care.
B.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
C.The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.
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 the pseudonym Spillett & Chambers has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J:
Mr Spillett and Ms Chambers have two children: X, aged nine, nearly ten and Y, aged seven. The children live with their mother and have not seen their father since late 2021. Prior to this, the father had been spending regular time with the children including extended overnight periods.
The trial was due to commence yesterday but after negotiating all day the parties reached agreement and signed a minute of order late in the afternoon. On reflection, the parties required some further time to amend the proposed order and the matter was adjourned to today.
Both parents have an admitted history of illicit substance use, and family violence towards each other, and of exposing the children to their conflict. It seems both parents have reflected on their past behaviours and finally realise the impact of their behaviours on their children and commit to change for their children’s sakes. Given the admitted history of the parties, the independent children’s lawyer (“ICL”) identified risks posed to the children from both parents and was concerned to ensure sufficient safeguards for the children were included in any proposed order.
BRIEF BACKGROUND
The mother is 37 years of age and employed as a carer. She is completing tertiary studies. The father is 38 years of age and presently unemployed, although he lives in his own unencumbered home and expresses an intention to return to employment now that these proceedings have concluded.
The parents were together for 13 years, separating on a final basis in August 2017. As already noted, the mother and the father agree that their relationship was characterised by drug use and family violence inflicted by both of them against the other, with each contending the other was the main perpetrator. There is a current protection order in place naming the father as the respondent and the mother as the aggrieved. This order will remain in place until late 2026. The father has been convicted of breaching the previous protection order and spent time on remand in late 2021 in relation to those offences. The father was released upon conviction with no further time to be served.
Both parents admit using illicit drugs during the relationship. Both parents contend that they no longer use illicit substances, although they have both repeatedly failed to comply with requests by the ICL that they submit to drug testing. The most recent hair follicle test undertaken by the mother returned negative results for the drugs tested in May 2022. The most recent hair follicle test undertaken by the father returned negative results for the drugs tested in June 2022. Recent urine analysis for each party indicates no illicit substances detected as at 1 March 2023 for the mother and 23 March 2023 for the father.
The father’s case for trial was that the mother manipulated him into breaching the previous protection orders e.g. inviting him to her home to have sexual intercourse with her, and then reporting him. The father contended that the mother had sought to alienate the children from him, and had unjustifiably kept the children from him.
The mother’s case for trial was that the father was controlling and abusive, and addicted to illicit substances. The mother contends that she stopped time because of her concerns about the children’s safety after X told her the father had touched her on the bottom during the night when she was sharing a bed with him and that she was scared. The mother contends that her concerns were heightened because Y had told her day care worker in mid-2019 that the father had “licked her back bottom”. The mother concedes that the evidence, such as it is, could not support a finding that the father poses an unacceptable risk of future harm and accepts that her own compromised childhood experiences may have influenced the children. The mother has apparently been persuaded by a video, seen for the first time yesterday, that when the children told her they were scared of the father in late 2019, this was not true.
On 25 March 2022, an order was made for the father to spend two hours supervised time with the children each week at a contact centre. It is common ground that despite the mother turning up with the children on 17 occasions, the father has not spent any time with the children pursuant to that Order. The mother contends the children were too scared to see the father and she was not prepared to force the children to see the father. The supervisor’s notes indicate that the mother made no attempt to encourage the children to spend time with the father and this is now accepted by the mother. At the updated family report interviews on 1 December 2022, the children refused to see the father. The mother did not encourage the children to do so.
APPLICABLE LEGAL PRINCIPLES
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters to be considered when determining what parenting order is in the best interests of a child, in the particular circumstances of each case. However, s 60CC(5) provides that if the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection 60CC(2) or (3).
Section 60CG nevertheless imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
DISPOSITION
In this case, neither parent continues to contend that that the other parent poses an unacceptable risk of harm to the children despite their respective positions up to the date of trial. The parents agree that the children should initially remain living with the mother and should resume spending alternate weekends with the father, before moving to an equal time arrangement in August 2023.
The father accepts that it is necessary to continue to submit to drug testing and engage in counselling to address his issues raised by the mother, including concerns about his parenting raised by the mother.
The mother also accepts that it is necessary to continue to submit to drug testing and to engage in counselling to address her issues, including the impact of exposing the children to her negative views of the father. The mother is confident that the father would not act inappropriately in a sexual way with the children, and to be fair this seemed to be her position coming into the trial. The mother is also confident that the provisions of the proposed order will address her concerns about future risk.
The parties have agreed that the order should be explained to the children by the family report writer and the children will have the support of their own counsellor whom the parties have agreed to retain, with the first appointment being on 22 May 2023.
Despite their history, it seems each party has experienced something of an epiphany, now acknowledging the benefits they each bring to their children’s lives. With the inclusion of certain provisions in the proposed order that address the risks as previously identified, the ICL supports the proposed order.
With the matter being adjourned overnight, the parents have had plenty of time to consider their respective positions, and in the circumstances I propose to make the order agreed to by the parents and the ICL.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 4 April 2023
0
0
0