FEDERAL CIRCUIT COURT OF AUSTRALIA
| TIMBERLAKE & JUDD | [2019] FCCA 3532 |
| Catchwords: FAMILY LAW – Parenting – high level of conflict between the parties and history of domestic violence – considerable distance between the parents’ residences – allegations of drug use, notably on the part of the Father – the Mother suffers significant mental health issues which are currently managed through medication and professional intervention – the Mother is supported both financially and emotionally by the Maternal Grandparents – Orders made for sole parental responsibility, the child to live with the Mother and Maternal Grandparents and spend graduated time with the Father subject to clean drug tests – no Order as to costs. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC(2); 60CC(3)(a)-(m), 65DAA |
| Cases cited: AMS v AIF (1999) CLR 160 Moose & Moose [2008] FLC 93-375 |
| Applicant: | MS TIMBERLAKE |
| Respondent: | MR JUDD |
| File Number: | CAC 1635 of 2017 |
| Judgment of: | Judge Neville |
| Hearing dates: | 15 & 16 May 2019 |
| Date of Last Submission: | 24 June 2019 |
| Delivered at: | Canberra |
| Delivered on: | 18 December 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Jeanine Lloyd & Associates |
| Solicitors for the Respondent: | Self-Represented |
| Solicitors for the Independent Children's Lawyer: | Legal Aid ACT |
ORDERS
All previous parenting Orders be discharged.
Subject to Order 3 of these Orders, the Applicant Mother have sole parental responsibility for the child [X] (born … 2016) (“the child”).
The Applicant Mother is to consult the Respondent Father regarding, and keep him properly informed of, all matters and decisions in relation to the major long-term issues (section 4 of the Family Law Act 1975) regarding the care of the child.
The child live with the Applicant Mother provided that:
(a)She remain living primarily with the maternal grandparents, Mr D and Ms C Timberlake until the child reaches the age of 8 years; and
(b)She follows all recommendations made by her treating health professionals in relation to her mental health diagnoses.
The child spend time with the Respondent Father as follows:
(a)On a supervised basis at the Supervision Centre B in Canberra on no less than one occasion per fortnight; and
(b)With the Respondent Father to meet all of the costs if either party elects to use the fee paying service.
To facilitate Order 5 above, both parties do all things necessary to undergo intake into Supervision Centre B including attending at intake interviews and each meeting the costs of their own intake interviews.
On production by the Respondent Father to the Applicant Mother of a clean/negative hair follicle test, the time spent by the child with the Respondent Father revert to the following:
(a)From 10:00am until 4:00pm each alternate Sunday;
(b)With changeovers to take place at the Town G near Canberra; and
(c)With the Respondent Father to inform the Applicant Mother in writing and prior to time commencing where he intends to take the child.
In relation to Order…
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- TIMBERLAKE & JUDD [2019] FCCA 3532
- Case
- [2019] FCCA 3532
- Decision Date
CaseChat Overview and Summary
The court was required to determine the most appropriate parenting arrangements for the child, taking into account the high level of conflict, the history of domestic violence, the Mother's mental health, the Father's alleged drug use, and the geographical separation of the parents. Key issues included the allocation of parental responsibility, the child's living arrangements, and the nature and extent of the Father's time with the child.
Judge Neville ordered that the Applicant Mother have sole parental responsibility, with the child to live with the Mother and Maternal Grandparents. The Mother was required to consult the Father on major long-term issues and remain living primarily with her parents until the child turned eight, and to follow all recommendations from her health professionals. The Father's time with the child was initially to be supervised at a designated centre, with graduated time to revert to unsupervised alternate Sundays conditional upon the Father producing clean hair follicle drug tests. The orders also included provisions for injunctions restraining derogatory remarks about the other parent and ensuring information sharing regarding the child's health and education.
Orders
Orders of the court
1.
All previous parenting Orders be discharged.
2.
Subject to Order 3 of these Orders, the Applicant Mother have sole parental responsibility for the child [X] (born … 2016) (“the child”).
3.
The Applicant Mother is to consult the Respondent Father regarding, and keep him properly informed of, all matters and decisions in relation to the major long-term issues (section 4 of the Family Law Act 1975) regarding the care of the child.
4.
The child live with the Applicant Mother provided that:
(a) She remain living primarily with the maternal grandparents, Mr D and Ms C Timberlake until the child reaches the age of 8 years; and
(b) She follows all recommendations made by her treating health professionals in relation to her mental health diagnoses.
5.
The child spend time with the Respondent Father as follows:
(a) On a supervised basis at the Supervision Centre B in Canberra on no less than one occasion per fortnight; and
(b) With the Respondent Father to meet all of the costs if either party elects to use the fee paying service.
6.
To facilitate Order 5 above, both parties do all things necessary to undergo intake into Supervision Centre B including attending at intake interviews and each meeting the costs of their own intake interviews.
7.
On production by the Respondent Father to the Applicant Mother of a clean/negative hair follicle test, the time spent by the child with the Respondent Father revert to the following:
(a) From 10:00am until 4:00pm each alternate Sunday;
(b) With changeovers to take place at the Town G near Canberra; and
(c) With the Respondent Father to inform the Applicant Mother in writing and prior to time commencing where he intends to take the child.
8.
In relation to Order 7 above, the hair follicle test is to undertaken by the Respondent Father on the following basis:
(a) Using The Drug Detection Agency (TDDA) or such other agency as is agreed between the parties in writing;
(b) Ensuring that the taking of the hair sample is done under supervision, with production of identification and with a chain of custody that remains intact;
(c) At the expense of the Respondent Father; and
(d) With the Respondent Father to authorise the testing facility to release a copy of the results to the Applicant Mother.
9.
On no more than two occasions per calendar year for the next 3 years, the Applicant Mother may request in writing via email to the Respondent Father’s current email address that he undertake a hair follicle test on the same conditions as set out in Order 8 above and with the hair sample to be collected within 10 days of the request being made by the Applicant Mother.
10.
In the event the Respondent Father fails to undertake the test as requested by the Applicant Mother pursuant to Order 9 above, or he produces a dirty/positive result, any time spent by the child with the Respondent Father reverts immediately to supervised time as set out in Order 5 above.
11.
In the event the Respondent Father’s time progresses to unsupervised time and any further issues occur at changeovers such that one party is concerned about the behavior of the other towards him or her or any agents conducting changeovers on behalf of him or her, that party is to:
(a) Provide the other with written notice of their concerns and their wish to invoke this order; and
(b) Forthwith both parties are to do all things necessary to do all things necessary to enrol into Supervision Centre B in Canberra with the parties to share the costs of changeovers equally.
12.
In the event Order 11 above is invoked, changeovers are to be conducted using Supervision Centre B until and unless the parties otherwise agree in writing or further order of the Court is made.
13.
Other than as is allowed by these Orders, the Respondent Father is restrained by injunction from removing or attempting to remove the child from the care of the Applicant Mother or any person or service (including schools and day cares) with whom the Applicant Mother places the child.
14.
Upon the child turning 5 years of age, the parties do all things necessary to arrange and attend at a Family Dispute Resolution Conference to discuss the Father’s time with the child progressing.
15.
All parties are restrained by injunction from making derogatory or inflammatory remarks about the other party or otherwise denigrating the other within earshot of the child, or allowing any other third party to do so.
16.
Each party shall keep the other informed of:
(a) The name and contact details for the child’s doctors, health care and any other treatment providers;
(b) Any medical condition, significant illness, medical emergency or other significant health condition suffered by the child;
(c) Any school, educational facility or extra-curricular activity provider for the child; and
(d) The address at which the child will reside when in their care and a contact telephone number and each party shall notify the other party at least 14 days of any change to such details.
17.
The Applicant Mother shall do all such things and sign all such documents so as to authorise the Respondent Father to:
(a) Receive all information from the child’s school to which parents are ordinarily entitled including but not limited to, their academic, sporting and social progress;
(b) Receive all information from the child’s school to which parents are ordinarily entitled as to events to which parents are entitled to attend to participate; and
(c) Receive any and all information to which parents are lawfully entitled from any doctor, hospital, therapist or other health professional who the child consults or by whom the child is treated.
18.
The Respondent Father be permitted to attend, any school, pre-school, co-curricular and/or extra-curricular activities to which parents are normally invited.
19.
The Orders herein are subject to any other agreement in writing between the parties.
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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