FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tamblyn & Calandra [2023] FedCFamC2F 1018
File number(s): SYC 6350 of 2021 Judgment of: JUDGE MORLEY Date of judgment: 27 July 2023 Catchwords: FAMILY LAW – parenting – application for final orders – assessment of unacceptable risk – where Father seeks no overnight time between Mother and children – where Mother and ICL seek graduated overnight time regime paired with extensive suite of alcohol testing orders – where it is in the best interests of the children to spend graduated regime of time including overnight time with the Mother Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 68L, 117 Cases cited: A & A & The Child Representative [1998] FamCA 25
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Grella & Jamieson [2017] FamCAFC 21
Harridge and Anor & Harridge [2010] FamCA 445
Isles & Nelissen [2022] FedCFamC1A 97.
Johnson & Page [2007] FamCA 1235
M & M (1988) 166 CLR 69
Napier & Hepburn [2006] FamCA 1316
Division: Division 2 Family Law Number of paragraphs: 239 Date of hearing: 22 to 24 May 2023 Place: Sydney Counsel for the Applicant: Ms Dart Solicitor for the Applicant: De Saxe O’Neill Family Lawyers Counsel for the Respondent: Ms Petrie Solicitor for the Respondent: Court Legal Counsel for the Independent Children's Lawyer: Mr Maddox Solicitor for the Independent Children's Lawyer: Chidiac Legal Pty Ltd ORDERS
SYC 6350 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TAMBLYN
Applicant
AND: MR CALANDRA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE MORLEY
DATE OF ORDER:
27 JULY 2023
THE COURT ORDERS THAT:
1.That the parents have equal shared parental responsibility for the children X born in 2008 and Y born in 2014 (“the children”).
2.That the children live with their father.
3.That the children spend unsupervised time with their mother as follows:
(a)each Sunday from 10 AM until 5 PM, and each Thursday from the end of school until 8:15 PM for a period of one month from the date of these orders;
(b)thereafter, for a period of 3 months, from 6 PM on Saturday until 10 AM on Sunday each alternate weekend, and each Thursday from the end of school until 8:15 PM, in both school terms and school holidays;
(c)thereafter, for a further period of 3 months, from 10 AM on Saturday until 5 PM on Sunday each alternate weekend, and each Thursday from the end of school until 8:15 PM, in both school terms and school holidays;
(d)thereafter, for a further period of 3 months, from the end of school on Friday until 5 PM on Sunday each alternate weekend, and each Thursday from the end of school until 8.15 PM, in both school terms and school holidays;
(e)thereafter, from the end of school on Friday until the start of school on Monday each alternate weekend during school term time, and from after school on Thursday until before school…
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CaseChat Overview and Summary
The court examined the evidence and submissions from both parents, the Independent Children's Lawyer, and other relevant parties. It considered the welfare and best interests of the children as the paramount concern, weighing the arguments about the mother's alcohol consumption and its impact on her ability to care for the children. The court also reviewed the evidence regarding the mother's compliance with treatment and rehabilitation efforts. Ultimately, the court found that it was in the best interests of the children to have a graduated regime of time with their mother, subject to strict conditions to ensure their safety and well-being.
The court ordered equal shared parental responsibility for the children. It directed that the children live with their father but spend unsupervised time with their mother in a graduated manner, starting with limited periods and increasing over time. The court also imposed stringent alcohol and drug testing requirements on the mother, prohibiting her from consuming alcohol or taking prescription medicines not in compliance with a prescription before and during her time with the children. The court further ordered that the mother notify the father of any mental health issues or alcohol-related incidents and continue consulting with a consultant addiction specialist. The court made additional orders concerning communication between the parents, the children's access to their mobile phones, and the parents' obligations to facilitate the children's counselling and school activities.
The court's orders reflect a balanced approach that prioritises the children's best interests while addressing the concerns about the mother's alcohol use. The graduated time regime and strict conditions aim to ensure the children's safety while allowing them to maintain a relationship with their mother. The orders also seek to support the mother's efforts to address her alcohol dependency and ensure the children's continued access to both parents.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. That the parents have equal shared parental responsibility for the children X born in 2008 and Y born in 2014 (“the children”).
2. That the children live with their father.
3. That the children spend unsupervised time with their mother as follows:
(a) each Sunday from 10 AM until 5 PM, and each Thursday from the end of school until 8:15 PM for a period of one month from the date of these orders;
(b) thereafter, for a period of 3 months, from 6 PM on Saturday until 10 AM on Sunday each alternate weekend, and each Thursday from the end of school until 8:15 PM, in both school terms and school holidays;
(c) thereafter, for a further period of 3 months, from 10 AM on Saturday until 5 PM on Sunday each alternate weekend, and each Thursday from the end of school until 8:15 PM, in both school terms and school holidays;
(d) thereafter, for a further period of 3 months, from the end of school on Friday until 5 PM on Sunday each alternate weekend, and each Thursday from the end of school until 8.15 PM, in both school terms and school holidays;
(e) thereafter, from the end of school on Friday until the start of school on Monday each alternate weekend during school term time, and from after school on Thursday until before school on Friday each week during school term time;
(f) commencing from the school holidays at the end of Term 2 in 2024, for half of the school holidays at the end of Terms 1, 2 and 3, being for the first half of those school holidays commencing in even-numbered years and for the second half of those school holidays commencing in odd-numbered years, with changeover occurring at 5 PM on the middle Saturday of such school holiday; and
(g) commencing from the Christmas school holidays at the end of Term 4 in 2024, during the Christmas school holidays for each alternate week, with the mother to have the first week when such holidays commence in an even-numbered year and the father to have the first week when such holidays commence in an odd-numbered year, with changeovers to occur at 5 PM on the last day of each such week.
4. That notwithstanding any other order herein, the children shall be in their mother’s care as follows:
(a) on each of the children’s birthdays if the children are not otherwise spending time with their mother on that day, for a period of 4 hours as agreed between the parents and failing agreement from the end of school until 7:30 PM if a school day or from 2 PM until 6 PM if not a school day;
(b) on the mother’s birthday if the children are not otherwise spending time with their mother on that day, from 4 PM until 8 PM if a school day or from 9 AM until 1 PM if not a school day;
(c) on Mother’s Day from 9 AM until 5 PM;
(d) from 12 noon on Christmas Eve until 12 noon on Christmas Day in even-numbered years, and from 12 noon on Christmas Day until 12 noon on Boxing Day in odd-numbered years;
(e) from 12 noon on New Year’s Eve in even-numbered years until 12 noon on New Year’s Day, and from 12 noon on New Year’s Day in even-numbered years until 12 noon on 2 January;
(f) at Easter from 5 PM on Holy Thursday until 5 PM on Easter Saturday in even-numbered years, and from 5 PM on Easter Saturday until 5 PM on Easter Monday in odd-numbered years.
5. That notwithstanding any other order herein, the children shall be in their father’s care as follows:
(a) on each of the children’s birthdays if the children are not otherwise spending time with their father on that day, for a period of 4 hours as agreed between the parents and failing agreement from the end of school until 7:30 PM if a school day or from 2 PM until 6 PM if not a school day;
(b) on the father’s birthday if the children are not otherwise spending time with their father on that day, from 4 PM until 8 PM if a school day or from 9 AM until 1 PM if not a school day;
(c) on Father’s Day from 9 AM until 5 PM;
(d) from 12 noon on Christmas Eve until 12 noon on Christmas Day in odd-numbered years, and from 12 noon on Christmas Day until 12 noon on Boxing Day in even-numbered years;
(e) from 12 noon on New Year’s Eve in odd-numbered years until 12 noon on New Year’s Day, and from 12 noon on New Year’s Day in odd-numbered years until 12 noon on 2 January;
(f) at Easter from 5 PM on Holy Thursday until 5 PM on Easter Saturday in odd-numbered years, and from 5 PM on Easter Saturday until 5 PM on Easter Monday in even-numbered years.
6. That the mother is restrained from consuming alcohol for a period of 48 hours before the children, or either of them, come into her care, and the mothers further restrained from consuming alcohol whilst the children, or either of them, are in her care.
7. That the mother is restrained from taking any prescription medicines other than in compliance with the prescription for a period of 48 hours before the children, or either of them, come into her care, and the mother is further restrained from taking any prescription medicines other than in compliance with the prescription whilst the children, or either of them, are in her care.
8. That the mother shall;
(a) undertake a test for carbohydrate deficient transferrin (CDT) every 2 weeks until 31 December 2023, at the father’s expense, the first such test to occur within 4 days of the date of these orders, the mother to provide a copy of the result of the test to the father within 24 hours of its receipt by her;
(b) from 1 January 2024 until 31 December 2024 undertake a CDT test as requested by the father, but not on more than 6 occasions during that year, such request to be in writing by way of SMS to the mothers mobile telephone, and such request not be made at any time when the mother is travelling away from Sydney, with the mother to attend for such CDT test within 72 hours of her receipt of the request from the father, the father is to meet the costs of such testing, and the mother to provide a copy of the result of the test to the father within 24 hours of its receipt by her;
(c) until such time as Y commences her High School attendance, undertake a breathalyser test immediately (and not more than 15 minutes) prior to the commencement of her time with the children and shall immediately following the test result, text message and/or email the result to the father;
(d) undertake hair follicle testing in accordance with the Australian Standards AS/NZS4308:2008 and AS4760:2006 or any subsequent approved standard, at the father’s expense, for a period of 4 years from the date of these orders, in accordance with the following procedure:
(i) each three months, the mother shall contact the Drug Detection Agency to arrange for an appointment to submit to the collection of a hair sample sufficient to allow testing for the previous 3 month period;
(ii) for the purpose of hair follicle testing for the prescribed period, the mother shall not cut her hair shorter than 3 cm and not bleach, dye or treat her hair with any chemicals in any way;
(iii) the mother shall attend for the appointment referred to in (i) and submit to the hair strand collection;
(iv) each test shall be for the detection of opiates and prescription drugs and in relation to any use of alcohol;
(v) the mother shall direct the testing clinic to supply a copy of the test results to the father via email as soon as the results are available and otherwise within 3 days of the results becoming available after the test has been conducted.
9. That in the event that any of the tests referred to in order 8 produce a result that indicates the use of alcohol or of drugs other than on and in accordance with prescription by the mother, then all of the mother’s time with the children will be suspended until the mother provides to the father a CDT test result of less than 1.8% and a hair follicle test result negative for the use of drugs other than on and in accordance with prescription and showing that the mother has not used alcohol for a period of one month, and upon production of those test results the mother’s time with the children will resume in the manner in which it had been taking place under order 3 at the time of the suspension.
10. That within 7 days of the date of these orders, the father shall provide to the mother an email address for the purpose of receiving the test results referred to in order 8.
11. That in the event that the mother presents at a hospital in relation to a mental health issue and/or in relation to any consumption of alcohol, she is to notify the father in writing as soon as practicable and in any event prior to the children or either of them next coming into her care, and the mother is to provide to the father a copy of any discharge report within 7 days of receipt.
12. That as a condition of the mother spending unsupervised time with the children in accordance with these orders, the mother shall continue to consult with Dr B, consultant addiction specialist, as and when recommended by him, and follow all treatment directions made by him.
13. That any changeovers at the start or finish of the children’s time with their mother that do not occur at the children’s school or schools shall occur at the mother’s home.
14. That the parents shall communicate with each other via text messages or by use of the Our Family Wizard app, or any other agreed app, except in cases of emergency involving the children.
15. That the father shall, at his expense, provide and maintain a mobile telephone to each of the children to be in the possession of each child at the home of each parent, and each of the parents shall do all things necessary to ensure that the children’s mobile telephones remain charged, operational and accessible to the children at all reasonable times and, for the mother, at all times when the children or either of them are spending time in her care.
16. That each of the parents shall do all things necessary to enable each of the children to contact the other parent, including by use of that child’s mobile telephone, at all reasonable times.
17. That each parent may have telephone communication with the children on the children’s mobile telephones at any time between 7 PM and 7:45 PM every second day that the children are not spending time with that parent.
18. That the parents shall do all things necessary to enable the children to continue their counselling with Ms C or such other counsellor as may be nominated by Ms C if she is unavailable, until such time as Ms C or the other nominated counsellor advises that such counselling is no longer of benefit to the children or either of them.
19. That each of the parents is restrained from moving either the children from their current schools until 31 December 2025.
20. That each of the parents will notify the other parent of any change of residential address at least 7 days prior to such change occurring, and any change of contact details immediately upon such change occurring.
21. That the Independent Children’s Lawyer shall explain these orders to the children, after which the Independent Children’s Lawyer is discharged, and each of the parents shall do all things necessary to have the children available as and where and when required by the Independent Children’s Lawyer for this purpose.
22. That the mother is authorised to obtain from the children’s schools copies of the children’s school reports, school photos and such information as we may relate to the children’s progress and development.
23. That the mother is permitted to attend at all of the children’s school activities and extra-curricular activities to which parents are normally invited, and in the event that the mother does intend to attend any such school activities or extra-curricular activities then the mother shall notify the father no later than 24 hours prior to the event that she proposes to so attend.
24. That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household in the presence or hearing of either of the children.
25. That each of the parents is restrained from allowing either of the children to remain in the presence of, or within either of the children’s hearing of, any other person who is denigrating the other parent, any member of the other parent’s family or any member of the other parent’s household.
26. That each of the parents is restrained from discussing these proceedings with or in the presence of or within the hearing of either of the children and each the parents is further restrained from showing to either the children or allowing either of the children to have access to any of the documents filed in or in evidence in these proceedings.
27. Within 3 months, the Father pay a sum of $3898.50 as contribution toward the ICL’s costs of the proceedings, such payment to be made to the Legal Aid Commission of NSW.
28. The Mother pay the sum of $1500 as contribution toward the ICL’s costs of the proceedings, such payment to be made to the Legal Aid Commission within 9 months of today’s date.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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