FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TILNEY & LIATOS (No.3) | [2007] FMCAfam 1016 |
| FAMILY LAW – Parenting – best interests of the child – disclosure of history of drug abuse and hepatitis C – substantial and significant time – presumption of equal shared parental responsibility. |
| Evidence Act1995 (Cth), ss.128, 132 Family Law Act 1975, Part VII, Division 1, Division 2, ss.60B, 60B (1)(a), (2)(a) – (e), 60CA, 60CC (1), (2), (2)(a), (3), (3)(b) – (d), (3)(f), (3)(i), (3)(l), (4), (4A), 61B, 61C, 61DA, 65DAA, 65DAA (2), 65DAC Federal Magistrates Court Rules 2001, Rule 15.09 |
| Cornwell v R [2007] HCA 12; (2007) 234 ALR 51 HG v The Queen (1999) 197 CLR 414 National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The `Ikarian Reefer’) [1993] 2 Lloyds Rep 68 Cross on Evidence (ed. J.D. Heydon) (Seventh Australian Edition) (Sydney: LexisNexis Butterworths, 2004) D. Edney & D. Deam, “Drug testing in family law,” (2006) 80 Law Institute Journal 48 J.D. Heydon, “Statutory Restrictions on the Privilege Against Self-Incrimination,” (1971) 87 Law Quarterly Review 214 Professor P. Parkinson, “Decision-making about the best interests of the child: The impact of the two tiers,” (2006) 20 Australian Journal of Family Law 179 |
| Applicant: | MS TILNEY |
| Respondent: | MR LIATOS |
| File Number: | CAM 1627 of 2006 |
| Judgment of: | Neville FM |
| Hearing dates: | 17, 18 September, 22 October, & 23 November 2007 |
| Date of Last Submission: | 23 November 2007 |
| Delivered at: | Canberra |
| Delivered on: | 21 December 2007 (Orders & Oral Reasons) 4 February 2008 (Written Reasons) |
REPRESENTATION
| Counsel for the Applicant: | Mr Millar |
| Solicitors for the Applicant: | Farrar Gesini & Dunn |
| Counsel for the Respondent: | Ms Tonkin |
| Solicitors for the Respondent: | Macphillamy's Lawyers |
ORDERS
Both parents will have equal shared parental responsibility for the child, A born in December 2005.
Subject to further Orders below, in the event that there are any positive drug tests for Ms Tilney, Order 1 and the presumption for equal shared parental responsibility will be revoked and or negatived.
A will continue to live with Mr Liatos.
A will spend time with Ms Tilney as follows:-
(a)For four days every week from 9:00am to 5:00pm, on days to be agreed between the parties, but failing agreement, on Monday through to Thursday;
(b)Each alternate weekend from 5:00pm Friday to 5:00pm Sunday;
(c)At other times as agreed between the parties; and
(d)All times that A spends with Ms Tilney for the next three years are to be supervised by one or both of Ms Tilney’s parents or by some other person mutually agreed between Ms Tilney and Mr Liatos.
For a period of three years from the date of these Orders, Ms Tilney will undergo twice weekly, random (chain of custody – supervised) urinalysis testing for amphetamines (or any illicit substance)…
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- AGLC
- Tilney and Liatos (No.3) [2007] FMCAfam 1016
- Case
- [2007] FMCAfam 1016
- Decision Date
CaseChat Overview and Summary
The central legal questions before the Court included whether Ms. Tilney's past drug use justified specific conditions on her visitation rights and whether the proposed supervised visitation and drug testing regime was appropriate and enforceable. The Court needed to balance the child's need for stability and the potential risks associated with Ms. Tilney's drug use, while also ensuring that the parenting arrangement was in the child's best interests.
The Court determined that both parents should have equal shared parental responsibility, but subject to stringent conditions due to Ms. Tilney's history of drug use. It was held that in the event of any positive drug tests, the presumption for equal shared parental responsibility would be revoked, and Mr. Liatos would assume sole parental responsibility. The child would primarily live with Mr. Liatos, with Ms. Tilney having supervised visitation rights. The Court detailed a comprehensive drug testing regime for Ms. Tilney, including random urinalysis and hair follicle tests, to monitor her drug use over several years. If Ms. Tilney's drug tests were positive, her visitation rights would be suspended until she could demonstrate three consecutive weeks of clean tests. The Court also outlined specific visitation schedules and conditions for special occasions and holidays.
In conclusion, the Court issued detailed orders that provided for a structured and supervised parenting arrangement, with significant emphasis on the child's safety and the need to address Ms. Tilney's drug use. The orders included provisions for drug testing, supervised visitation, and specific arrangements for the child's living situation and special occasions, with the overarching goal of ensuring the child's best interests were met.
Orders
Orders of the court
1.
Both parents will have equal shared parental responsibility for the child, A born in December 2005.
2.
Subject to further Orders below, in the event that there are any positive drug tests for Ms Tilney, Order 1 and the presumption for equal shared parental responsibility will be revoked and or negatived.
3.
A will continue to live with Mr Liatos.
4.
A will spend time with Ms Tilney as follows:-
(a) For four days every week from 9:00am to 5:00pm, on days to be agreed between the parties, but failing agreement, on Monday through to Thursday;
(b) Each alternate weekend from 5:00pm Friday to 5:00pm Sunday;
(c) At other times as agreed between the parties; and
(d) All times that A spends with Ms Tilney for the next three years are to be supervised by one or both of Ms Tilney’s parents or by some other person mutually agreed between Ms Tilney and Mr Liatos.
5.
For a period of three years from the date of these Orders, Ms Tilney will undergo twice weekly, random (chain of custody – supervised) urinalysis testing for amphetamines (or any illicit substance) as follows:-
(a) Mr Liatos will authorise his General Practitioner to nominate (without the mother’s prior agreement) the days that testing is to occur and Ms Tilney will undertake the testing by 5:00pm on the same day of the request.
(b) Ms Tilney will undertake the testing at A Pathology or another fully accredited laboratory in the Australian Capital Territory.
(c) Mr Liatos will direct his General Practitioner to notify Ms Tilney by telephone of the request by 10:00am on the day of the request.
(d) Both Ms Tilney’s and Mr Liatos’ General Practitioner will be entitled to receive a copy of the test results.
6.
If any of Ms Tilney’s urinalysis test results prove positive for amphetamines (or any illicit substance), the time she spends with A pursuant to Order 4 will be suspended immediately and will only resume when Ms Tilney provides three consecutive weeks of clean urinalysis tests.
7.
In addition to the above Orders, if there are two positive drug tests in one calendar year:
(a) Mr Liatos will assume sole parental responsibility for A until further order of the Court;
(b) Ms Tilney’s time with A will immediately, and until further order, be restricted to twice per week for four hours on each of those days; and
(c) She will immediately resume the random drug testing, which will continue for a further three years.
8.
In December each year for a period of three years, Ms Tilney will undergo hair follicle testing, the results of which will be made available to both Ms Tilney’s and Mr Liatos’ General Practitioners.
9.
Provided Ms Tilney’s drug tests have been clear for three years, A will at that time live with each of his parents on a week-about basis, as agreed between the parties, but failing agreement, the parent with whom A has not been living with during that week will collect him after school on Friday.
10.
Ms Tilney will undergo annual hair follicle testing in December each year for a further two years after the shared care arrangement commences, the results of which will be made available to both Ms Tilney’s and Mr Liatos’ General Practitioners.
11.
If the hair follicle testing pursuant to Order 8 proves positive for amphetamines (or any illicit substance) over the course of that calendar year, Ms Tilney’s time spent with A will revert back to the care arrangements in Orders 2 and 3, with the drug testing regime in Order 5 to be reinstated.
12.
Once A commences school, he will live with each of his parents for half of each school holiday period, as agreed between the parties, or failing agreement, with Ms Tilney for the first half of the holidays in even numbered years, and the second half of the holidays in odd numbered years.
13.
Notwithstanding these Orders, if Ms Tilney’s birthday or Mr Liatos’ birthday falls on a day when A would otherwise be living with the other parent, the parent with whom A is living will make A available to spend time with the other parent for three hours as agreed between the parties, but failing agreement, from 3:00pm to 6:00pm.
14.
On A’s birthday each year, the parent with whom A is living will make A available to spend time with the other parent for three hours as agreed between the parties, but failing agreement, from 3:00pm to 6:00pm.
15.
Notwithstanding these Orders, A will spend 10:00am to 5:00pm with Mr Liatos on Father’s Day, and 10:00am to 5:00pm with Ms Tilney on Mother’s Day.
16.
The parent with whom A is not otherwise living on Christmas Day will spend time with A as agreed between the parties, but failing agreement, from 3:00pm on Christmas Day until 3:00pm on Boxing Day.
17.
When A changes from one parent’s care to the other parent’s care, changeover will be as agreed between the parties, or failing agreement, the parent with whom the child has been living or spending time with will deliver A to the home of the other parent with whom A is about to spend time or live with.
18.
Neither party will change A’s place of residence from the A/Q area without first obtaining the written consent of the other party.
19.
A passport be issued for A and Mr Liatos be permitted to take A to Greece for a period of three weeks each year and Mr Liatos will ensure reasonable notice of A’s overseas travel and the itinerary shall be provided to Ms Tilney.
20.
Each parent will notify the other parent of any medical issues, illnesses, appointments and/or emergencies relating to A while he is in the other parent’s care, as soon as is reasonably practicable.
21.
A shall have a further Hepatitis C test within the next twelve months. The timing and circumstances of the testing are to be determined by agreement between Ms Tilney’s and Mr Liatos’ General Practitioners.
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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