Valentine & Arnes
[2022] FedCFamC2F 1456
Federal Circuit and Family Court of Australia
(DIVISION 2)
Valentine & Arnes [2022] FedCFamC2F 1456
File number: MLC 8763 of 2022
Judgment of: JUDGE O'SHANNESSY Date of judgment: 5 September 2022 Catchwords: FAMILY LAW – child living with grandparents – drug use by a parent – who pays for a hair follicle test – restraint on attendance at child’s school – whether a parent should be notified of medical information for a child – restraint on denigration and family violence – what time the child spends with the Father. Legislation: Family Law Act 1975 (Cth) ss 60CC(2A), 69ZL. Division: Division 2 Family Law Number of paragraphs: 15 Date of hearing: 5 September 2022 Place: Town B (via Microsoft Teams) Counsel for the Applicant: Mr Radich Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondent: Ms Skinner Solicitor for the Respondent: Dawes & Vary Riordan ORDERS
MLC 8763 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR VALENTINE
ApplicantAND: MS ARNES
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
5 SEPTEMBER 2022
THE COURT ORDERS BY CONSENT THAT:
UNTIL FURTHER ORDER:
1.All previous parenting orders relating to the child X born in 2008 (“the child”), be hereby discharged.
2.That the Applicant and the Respondents have equal shared parental responsibility for the child until further order of the court.
3.The child live with the Respondents.
BY THE COURT IT IS ORDERED THAT:
4.The child spend time with the father:
(a)Each weekend on Saturday OR Sunday for four hours on the first two occasions, and then for six hours, (and failing agreement from 12 noon until 4:00pm on 10 September 2022); and
(b)With the maternal grandparents Mr C and Ms D to be in substantial attendance; and
(c)Changeover shall take place at E Contact Centre (and until E Contact Centre can accommodate changeover it shall take place at McDonald’s F Street, Town B); and
(d)As is otherwise agreed between the parties in writing.
5.For the purpose of facilitating changeover pursuant to order 4 herein, the parties forthwith do all acts and things as are necessary to enrol the child and the parties into E Contact Centre.
BY CONSENT THAT:
6.The child communicate with the father via telephone each Tuesday and Thursday between 6pm and 6.30pm with the father to initiate the calls to the child, and at such other times by telephone or text message in accordance with the child’s wishes.
7.On or before 14 October 2022, the father attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug and alcohol testing purposes. Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national 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 head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;
(b)Within seventy-two (72) hours of the date of these orders, the father is required to make an appointment with AWDTS by telephoning 1300 37 84 83 for the purpose of providing a hair sample for hair drug and testing purposes;
(c)Each party or their legal representatives is at liberty to provide AWDTS with a copy of these orders;
(d)The father is to attend at an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from the father at the nominated time on or before 14 October 2022 to undertake hair collection for hair drug testing purposes;
(e)The father is to provide the collector with photographic identification to be recorded before his hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of each test to all parties, being the father and the maternal grandparents, and/or their legal representatives upon receipt of such test results;
(f)The hair drug and alcohol test may screen for alcohol EtG and drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites
(g)AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised 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;
BY THE COURT IT IS ORDERED THAT:
(h)The cost of the first hair alcohol and drug test is to be met borne by the father and for this purpose Victoria Legal Aid is requested to fund the father’s expense of obtaining the hair follicle test, and in the event that Victoria Legal Aid cannot fund such testing that the respondents be responsible for the cost.
8.The father be restrained by injunction from attending within 100m of:
(a)G Street, Town H; and
(b)J School (“the child’s school”).
BY CONSENT THAT:
9.The child’s school be authorised to give all information and documentation about the child to all parties to the proceeding, including but not limited to the child’s progress, newsletters reports, photographs and details of any activities.
BY THE COURT IT IS ORDERED THAT:
10.Without admitting the necessity for such restraint:
(a)The parties and their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling or rebuking or otherwise denigrating the other parties or allowing any other person to do so in the presence or hearing of the child; and
(b)The Father and his servants and agents be and are hereby restrained by injunction from committing any act of family violence against or in the presence of the child or allowing the child to be exposed to family violence.
BY CONSENT THAT:
11.Each party be at liberty to provide a copy of these Orders to the child’s school.
12.Pursuant to section 62G of the Family Law Act 1975 (Cth), the parties and X born in 2008 (‘the child’) are directed to attend with a Court Child Expert (practicing under their appointment as a family consultant) nominated by the Court Children’s Service (the Court Child Expert) for the purposes of the preparation of a Child Impact Report at the dates and times below, or as otherwise directed by the Court Child Expert.
Part 1 of the event will occur by video, using Microsoft Teams, on 8 November 2022 with:
(a)the Applicant to attend at 9.00am; and
(b)the Respondent to attend at 10.30am.
Microsoft Teams links will be provided to the parties by the Court Child Expert prior to the event.
Part 2 of the event will occur in person at the Melbourne registry on the morning of 10 November 2022 Specific details regarding the attendance of the parties and the child on this date will be provided to the parties in Part 1 of the event.
13.Each party will do all things necessary to ensure the child attend upon the Court Child Expert pursuant to Section 62G(3A), unless otherwise determined by the Court Child Expert that Section 62G(3B) applies.
14.The parties and the child shall continue to attend at such times, dates and places as the Court Child Expert may advise.
15.Not later than 4.00 pm on 12 September 2022 the parties must provide their contact telephone numbers and email addresses to [email protected].
16.Pursuant to order 14 herein, the Court Child Expert shall provide a written report to the Court and the report shall deal with the following matters:
(a)any agreement reached between the parties;
(b)identification of key issues requiring resolution;
(c)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;
(d)the impact of the issues/dispute before the Court on the child.
(e)any other matters that the Court Child Expert considers important to the welfare or best interests of the child.
17.Upon completion, the Child Impact Report shall be provided to the registrar for release to the parties, including by way of order made in Chambers.
18.The Court Child Expert shall be at liberty to inspect any material filed by the parties, and any subpoenaed documents
19.All extant interim applications be adjourned for interim defended hearing in the Town B Sittings of the Federal Circuit and Family Court of Australia on 17 November 2022.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 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.
B.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.
C.Affected unrepresented parties may apply 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.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.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 Valentine & Arnes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
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’).
I am not going to repeat the law in regard to Part 7 of the Act, but I apply all of those provisions. It would appear to be common ground, but with qualifications, that there is a benefit for the child, aged 14 years, to have a relationship with her Father as well as her Maternal Grandparents. The Maternal Grandparents place greater weight on section 60CC(2A) of the Act, which is where I am to give greater weight to the need to protect a child from harm than the benefit of a relationship with a parent.
I place some weight on the Orders that were made in 2010 that provided the Father’s parents were present during time between the child and the Father, and supervising. It does not appear that the supervision occurred. Now the proposal is to be in substantial attendance. This is in one sense a continuation of what was Court ordered 12 years ago, notwithstanding there has been a large gap in the middle.
I am concerned about the child being placed in the middle between her father and anxious grandparents. That is to say, the grandparents have good reason to be anxious based on what they have been told by their daughter and what they understand.
I have a joint marked up minute about what the parties agree and disagree about.
Drug testing
I do place considerable weight on the detailed report of 30 June by Ms K, the clinical team leader involved in the family reunification for the Father with his partner and four year old son, and further the report of the same author of 9 August 2022. I will note that the Father has been involved with the Family Drug Treatment Court program since November of 2021, and he has completed 74 of 76 weekly urine analysis satisfactorily and continues to have weekly urine tests.
I note that the Respondents, the Maternal Grandparents, have some circumspection about those tests and seek a hair follicle test. From their point of view that has greater information and precision as to the risk. I will accept that and I note that the Father agrees to have a hair follicle test, notwithstanding he is having weekly urine tests as well. He consents to the test, but says he cannot pay for it. He says, “Let’s ask the taxpayer to pay in the first instance”, and that if it cannot, it should be paid for by the people who are asking for it to be done. I am not suggesting that the Maternal Grandparents are wealthy. However, the money spent on that hair follicle test, in my view, will save them a fortune on lawyers arguing about whether or not there is a risk. So I will make order 6(h) of the proposed joint minutes of the parties as set out in blue.
Restraint on Father’s Attendance at school
In regard to proposed order 7, I am sceptical that there is any reason whatsoever for the Father not to attend the child’s school. However, this being the first return and brought on urgently, I am not convinced that I need to enter into that until the next Circuit. By then I will have the benefit and assistance of the Child Impact Report, notwithstanding that the Father has told me today that he is capable of keeping the peace. I will make that order.
Notification of medical information
I am not going to make order number 9 in blue at all, in regard to the medical information. I accept what Mr Radich says, that in the short and medium-term it will assist the child that everyone knows what her medical circumstances are. However, on an emergency or pretty urgent hearing brought on at short notice I am not satisfied that it is necessary to make that order.
Restraint on denigration and family violence
In regard to proposed order 11, order 11(a) should be a joint order and applied to the parties and their servants and agents, rather than only the Father, given the high feelings and anxieties in the case there is a risk that the child will be exposed to opinions about the other side in either parties’ household.
I will make order 10(b) as relating only to the Father and his servants and agents, notwithstanding that as recently as last week the Intervention Order application was withdrawn.
Time SpenT
The major dispute in this matter is whether the Father should only see the child supervised at a contact centre. I am not persuaded that that restriction is necessarily in the child’s best interest. However, I am not persuaded that the matter should move to overnight time on an alternate weekend basis. I have not clarified this and I will with the parties.
My proposal is until the matter returns in November, the child should see her father each weekend on either Saturday or Sunday. The first two visits should be for four hours and thereafter it should be for six hours, and the issue of overnight time or whatever other orders should occur will be addressed in November with the assistance of the Child Impact Report. I have not inquired of the parties whether, in fact, each weekend is in fact possible. I understood that it is contemplated by order 4 and 5. That could well be each weekend. The Father was seeking alternate weekends.
I am going to order that the changeovers for this time be at the contact centre. Not the time, but the changeovers. Unless there’s a reason, I have not read anything about the child being allergic to ice cream or hamburgers. Until the contact centre is available, changeovers can be at a fast food restaurant in the region, and I think there’s more than one and it should be on the one that’s closest to Town L on the outskirts of Town B. Those are my reasons.
Post script: The parties confirmed each weekend time was available after reasons were provided and before the Orders were taken out.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 28 October 2022
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