Walton & Walton

[2020] FCCA 3482

FEDERAL CIRCUIT COURT OF AUSTRALIA

Walton & Walton [2020] FCCA 3482

File number(s):

WOC 554 of 2020

Judgment of:

JUDGE MONAHAN

Date of judgment:

23 December 2020

Catchwords:

FAMILY LAW – parenting – interim hearing – where parties agree to interim terms for the children to live with the mother and spend time unsupervised overnight time with the father – where Independent Children’s Lawyer opposes the proposed interim terms – where the Independent Children’s Lawyer raises concerns with respect to family violence – where Independent Children’s Lawyer seeks orders for the children to spend supervised time with the father and drug testing of the mother and father – where both parties have filed a Notice of Discontinuance just prior to judgment release – no parenting orders made  

Legislation:

Family Law Act 1975 (Cth), ss 60CA, 60CC, 61C, 61DA, 64B, 65D, 65DAA, 69ZL, 91B.

Evidence Act 1995 (Cth) s 140.

Federal Circuit Court Rules 2001 (Cth) rr 13.01, 13.02

Cases Cited: 

Johnson v Page (2007) FLC 93-344

Number of paragraphs:

59

Date of last submission/s:

17 December 2020

Date of hearing:

26 November 2020

Place:

Sydney

Solicitor for the First Applicant:

Ms Kuemmel

Solicitor for the First Respondent:

Ms McCrohon

Solicitor for the Independent Children's Lawyer:

Ms Temelkovska

ORDERS

WOC 554 of 2020
BETWEEN:	MR WALTON Applicant
AND:	MS WALTON Respondent

ORDER MADE BY:	JUDGE MONAHAN
DATE OF ORDER:	23 DECEMBER 2020

THE COURT ORDERS THAT:

1.The matter be adjourned for mention on 22 April 2021 at 2.00pm on the issue of costs before Registrar Whitten in the Wollongong Registry.

2.Paragraph 2 of the Orders made on 26 November 2020 for the listing of a Child Inclusive Conference be discharged.

3.Subject to the issue of costs, and noting the filing of Notice of Discontinuances by the Applicant on 16 December 2020 and the Respondent on 17 December 2020:

(a)the Independent Children’s Lawyer be discharged; and

(b)all extant applications be withdrawn and dismissed.

4.The Independent Children’s Lawyer have liberty to approach in the event that she does not seek costs or with any Minute of Consent Order that may resolve the issue of costs.

THE COURT DIRECTS THAT:

5.Chambers cause a copy of these Orders and the accompanying reasons to be sent to the Department of Communities and Justice for their information.

AND THE COURT NOTES THAT:

A.An interim hearing proceeded before the Court in the Sydney Registry on 26 November 2020.

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 under the pseudonym Walton & Walton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

1. These short form reasons are being delivered pursuant to section 69ZL of the Family Law Act 1975 (“the Act”) and are also provided to assist the parties to understand the Orders that the Court has made in this matter.

2. The parties, MR WALTON (“the father”) and MS WALTON (“mother”), are in dispute about parenting matters.

3. The relevant children of the relationship are X born 2014 (“X”) and Y born 2016 (“Y”) (collectively, “the children”).

4. In the substantive proceedings, and based upon their then current applications, the parties are in dispute as to whether the children should reside in an equal time arrangement or live with the mother and spend no time with the father. That said, the parties are in agreement in respect to interim parenting orders being made that would require the children to continue to live primarily with the mother and spend defined periods with the father (unless otherwise agreed) including  alternate weekends, school holidays and other special days.

5. There is an Independent Children’s Lawyer (“ICL”) appointed in this matter. The ICL opposes the interim orders proposed jointly by the parties. The ICL proposes inter alia that the children remain living with the mother and spend supervised time with the father.

6. The primary issue for determination in this interim decision is whether the children should spend overnight and block periods with the father (as the father and the mother propose) or whether the children should only spend supervised time with the father (as the ICL proposes). There is no dispute that the children should remain living with the mother on an interim basis.

7. An interim hearing proceeded before me on 26 November 2020 by videoconference due to the COVID-19 protocol. Ms Kuemmel appeared for the father, Ms McCrohon appeared for mother and Temelkovska of NSW Legal Aid appeared as the ICL.

8. Following the interim hearing, the Court reserved its decision. That said, during the reserved period, the father filed a Notice of Discontinuance on 16 December 2020 and the mother filed a Notice of Discontinuance on 17 December 2020. The following judgment reflects the Court’s reasons following the hearing of evidence and submissions on 26 November 2020.

   BACKGROUND

9. The father was born 1985 and is currently aged 35 years.

10. The mother was born 1988 and is currently aged 32 years.

11. The mother asserts that the parties commenced their relationship and 2005.  The parties married 2013. The mother gives evidence that the parties separated in September 2015 and again in September 2019 and, more recently, on 24 February 2020. The father gives evidence that although he left the former relationship home in February 2020, he asserts that separation occurred in late March 2020.

12. On 24 March 2020 there was an argument between the parents that warranted the intervention of the NSW police. A further argument between the parties occurred on 29 March 2020. This resulted in the NSW police applying for a provisional apprehended domestic violence order (“ADVO”) against the father for the mother’s protection.

13. During March 2020 that the mother asserts that Y made certain disclosures to the maternal grandfather of a sexual nature and relating to the father. It would appear that the maternal grandfather thereafter made a report to NSW police and a joint investigation with the Department of Justice and Communities occurred. On 6 April 2020 the child was interviewed by the joint child protection response team.  Following this interview the mother was advised that the child was too young and not able to identify anything that happened. 

14. The father commenced these proceedings with his initiating application filed on 15 May 2020.  The mother filed a response on 29 July 2020.

15. On 31 July 2020 the matter came before Judge Altobelli (as his Honour then was) and the Court made orders including:

    ·appointing an ICL;

    ·ordering supervised drug urine testing and hair drug testing of the parties; and

    ·ordering the parties to register with Family Service A and Family Service B in the event that the Court ordered the children to spend supervised time with the father.

16. On 3 August 2020 the parties undertook drug urine testing and the father’s results were positive for cannabis. The mother’s test was negative.  On 7 August 2020 the parties undertook hair drug testing.  While the mother’s results were negative for drugs and alcohol for the specified cut-offs, the father’s results were positive for a number of drugs including cocaine for the specified cut-offs and his results were also positive for alcohol consumption within the range of low to moderate consumption for the specified cut-off.

17. The matter came before me for interim hearing on 26 November 2020. Following the interim hearing, the Court reserved its decision in respect of the parenting dispute. As stated, shortly prior to the release of this decision, both parties separately filed a Notice of Discontinuance.  

    PROPOSALS

18. As stated, the mother and the father agreed on a proposed minute of orders that would inter alia enable the children to spend unsupervised overnight time with the father. A copy of their proposed minute is attached in Schedule 1 to these reasons.

19. The ICL proposes that the children spend supervised time with the father.  She also proposes that both parties continue urine drug testing and hair drug testing.  A copy of the ICL’s proposed minute is attached in Schedule 1 to these reasons.

20. During the course of submissions the father indicated that he did not oppose urine drug testing continuing.  The father does oppose hair drug testing continuing given the financial cost.  The father does not seek any drug screening of the mother.

    AGREEMENTS REACHED

21. Despite the disagreement over whether the children’s time with the father should be supervised and whether the father (in particular) should continue undertaking hair drug testing, the parties were able to agree on some outcomes as reflected in the following Orders made at the conclusion of the interim hearing:

    The Father is to submit to a supervised chain of custody urine test that is directly supervised at a laboratory that is accredited to conduct such testing in accordance with the Australian/NZ standard 4308:2008:Procedure for the collection, detection and quantitation of drugs of abuse in urine or any subsequent approved standard at a laboratory that is accredited to conduct such testing in accordance with this standard (‘accredited laboratory’) within 24 hours of receipt of a request by the Independent Children’s Lawyer (‘ICL’).

    The purpose of testing in Order 3 is to identify if the Father’s urine sample contains drugs of abuse to include but not be limited to amphetamines, cocaine, cannabis, benzodiazepines and opioids.

    The ICL is to communicate any request for urine testing required under Orders 3 and 4 by email to the Father’s Solicitor or to the Father directly if they become unrepresented; with such request to be made no more than once per calendar month.

    The Father is to provide a copy of these Orders and photographic identification to the accredited laboratory before undergoing urine testing in accordance with Orders 3 and 4.

    The Father consents to the ICL receiving a copy of their urine results in accordance with Orders 3 and 4 directly from the accredited laboratory and this Order operates as the authority of the Father to the accredited laboratory to provide to the ICL such information as she may seek.

    The Father is to arrange for the accredited laboratory to send a copy of his urine results directly to the ICL and he is to provide details of the ICL’s business address to the accredited laboratory.

    The Father is responsible for the costs of his urine testing.

    The Father is to also arrange for a copy of his urine results to be provided to the ICL and to the other party’s Solicitor (or the other party directly if unrepresented) within 48 hours of the urine results being received.

    The Father and Mother are to provide their residential address, email address and mobile phone number to the ICL and the other party’s Solicitor or to the party directly if they become unrepresented.

22. The Court also made orders for the parties to attend a Child Inclusive Conference in March next year.

    ISSUE TO DETERMINE

23. In this dispute, the Court is required to determine the following issues:

    ·whether the father presents as an unacceptable risk to the children, and,

    (a)if so, whether the children should spend supervised time with the father; and

    (b)if not, whether the children should spend time with the father in accordance with the joint minute of the mother and the father;

    ·whether the father should continue to undertaking drug hair testing (in addition to drug urine testing):

    ·whether the mother should continue undertaking drug urine testing and drug hair testing;

    ·the impact on these proceedings where both parties subsequently file a Notice of Discontinuance.

    EVIDENCE AND SUBMISSIONS

24. Both parties and the ICL asked the Court to read and consider various documents filed in these proceedings. Only the ICL provided the Court with a case outline document.

    Father

25. The father relied on the following documents at the interim hearing:

    ·Initiating Application filed 14 May 2020;

    ·Notice of Risk filed 14 May 2020;

    ·his Affidavit sworn on 12 May 2020 and filed 14 May 2020; and

    ·his Affidavit sworn and filed on 26 November 2020.

26. The father did not tender any documents.

    Mother

27. The mother relied on the following documents at the interim hearing:

    ·Response to Initiating Application filed 29 July 2020;

    ·Notice of Risk filed on 29 July 2020; and

    ·her Affidavit affirmed and filed on 29 July 2020.

28. The mother did not tender any documents.

    ICL

29. The ICL relied on and tendered an Electronic Tender Bundle comprising of:

    ·subpoena material produced by the (Department of Communities and Justice and NSW Police); and

    ·additional material from under the following categories (Family Services Australia, Psychology Assessment notes for the mother, Case notes for the mother, progress notes from Health service M, Patient medical records for the mother, patient summaries for the children, correspondence from Neurologist C, correspondence from Primary School D, correspondence from Day Care E and Urine and Hair Follicle Drug Testing results with respect to the mother and the father).

    RELEVANT LAW

30. Parenting proceedings are governed by the provisions of Part VII of the Act. Parenting orders are defined in section 64B of the Act, and deal with outcomes relevant to this decision, including the time and circumstances of a child spending time with the parent that the child does not primarily reside with. This includes issues such as whether a child’s time should be supervised, restricted to daytime periods only or include overnight time. The Court can also make orders conditional upon a certain event occurring such as clear drug screen test results.

31. The power to make a parenting order is found in section 65D(1) of the Act and the power to make a parenting order that “discharges, varies, suspends or revives some or all of an earlier parenting order” is found in section 65D(2) of the Act.

32. Parenting orders can also deal with the allocation of parental responsibility. In the absence of the Court making a parenting order, each parent of the child has parental responsibility for their child (see section 61C of the Act).

33. If the Court makes a parenting order, then it must also consider a rebuttable presumption that the parents have equal shared parental responsibility for their child (see section 61DA of the Act). I note that if the Court is making an interim parenting order, it is open to the Court to consider that it would not be appropriate for the presumption to be applied in the circumstances of the case (see section 61DA(3) of the Act).

34. If an order for equal shared parental responsibility is made by the Court, whether with the consent of the parties or otherwise, then section 65DAA is triggered. This requires the Court to consider whether there should be an order that the child lives in an equal time arrangement or otherwise spends substantial and significant time with the parent that the child does not ordinarily live with. Strictly speaking, that provision does not apply in this matter as the Court has not made an order for equal shared parental responsibility at this juncture of the proceedings.

35. Section 60CA of the Act makes it clear for the purposes of making a parenting order, the Court must regard the best interests of the child, or children in this case, as the paramount consideration. What is considered to be in the best interests of children in a parenting dispute depends on the particular circumstances in each case, as different circumstances require different outcomes. That all said, to determine the best interests of the children in this case, the Court is required to consider the statutory provisions in light of the available evidence, including, of course, the primary and secondary considerations in section 60CC of the Act.

36. I also note at this point of my reasons that pursuant to Rule 13.01 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”), a party may discontinue an application or response by filing a notice of discontinuance. Rule 13.01 states:

    (1) A party may discontinue an application or response by filing a notice of discontinuance in accordance with the approved form.

    (2) A notice of discontinuance may be filed:

    (a) at least 14 days before the day fixed for the final hearing of the application; or

    (b) with the leave of the Court or a Registrar, at a later time.

    (3) However, a party may not file a notice of discontinuance without the leave of the Court or a Registrar if:

    (a) in a proceeding under the Family Law Act:

    (i) the proceeding relates to the property of a party; and

    (ii) one of the parties dies before the proceeding is decided; or

    (b) the proceeding is a creditor's petition.

    (4) A party filing a notice of discontinuance must, as soon as practicable, serve a copy of the notice on each other party in the proceeding.

37. In this case, both parties have now filed a notice of discontinuance following the interim hearing and just prior to the release of this interim decision. It is uncontroversial that they are entitled to do so. That said, Rule 13.02(1) of the FCC Rules stipulates that “if a party discontinues an application, or part of an application, another party in the proceeding may apply for costs”. This would arguably include the ICL.

    DISCUSSION AND FINDINGS

38. The Court will now consider the issues in dispute.

    Whether the father presents as an unacceptable risk to the children

    Discussion

39. ‘Unacceptable risk’ is an evaluation of the nature and degree of the risk and whether, with or without safeguards, the risk is acceptable[1]. The decisive issue remains a determination of what is in best interests of a child. The onus of proof is the ordinary civil standard with reference, where relevant, to section 140 of the Evidence Act 1995 (Cth). That section states:

    (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

    (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

    (a) the nature of the cause of action or defence; and

    (b) the nature of the subject-matter of the proceeding; and

    (c) the gravity of the matters alleged.

    [1] For a discussion see Johnson v Page (2007) FLC 93-344; [2007] FamCA 1235 at [62] to [71] (noting that the Court refers to the article by Hon. John Fogarty AM “Unacceptable risk – A return to basics” (2006) 20 AJFL 249).

40. In this case, I note the following submissions of the ICL:

    14. The Mother makes serious allegations about family violence and drug and alcohol abuse by the Father and the Father’s immediate family.

    15. The Mother also alleges that the Father may pose an unacceptable

    16. The Mother makes allegations of family violence and other risks in her Notice of Risk.

    17. The Father does not make any allegations of risk in his Notice of Risk. The Father does however allege that the Mother’s behaviour has been ‘erratic’ at times.

    18. In accordance with Application filed by the Father on 15 May 2020, the ICL notes that the Father seeks Interim Orders for shared parental responsibility for the children. He also seeks orders for the children to primarily live with the Mother and to spend time with him from after school Thursday until before school Friday in week 1 and from after school Friday until before school Monday in week 2. He also seeks orders during holiday periods and on special occasions.

    19. In accordance with Response filed by the Mother on 29 July 2020, the ICL notes that the Mother seeks Interim Orders for the children to live with the Mother and for the children to spend no time with the Father. The Mother also seeks restraints preventing the Father from attending the Mother’s home, work and the children’s schools and from contacting the Mother by any means.

    ICL’s concerns

    20. To the extent that the ICL can indicate a preliminary position and noting that the evidence is yet to be tested, the ICL is concerned about the following matters:- a. that

    a. the Father may pose an unacceptable risk to the children;

    b. that the Father’s immediate family may pose an unacceptable risk to the children;

    c. that the Father has ongoing drug and alcohol misuse issues;

    d. that the Mother may have ongoing drug misuse issues;

    e. that if the Mother’s allegations about family violence are accepted, that the children may have been exposed to ongoing family violence where therapeutic intervention might be needed;

    f. that the children may be exposed to further conflict or family violence between the parents;

    g. That the Mother’s physical and mental health difficulties might be impacting on the Mother’s capacity to care for the children;

    h. that the Mother has allowed the children to spend unsupervised time with the Father even though she seeks interim orders for no time, and she makes very serious allegations about family violence and potentially even sexual abuse; and

    i. that the Mother and Father have reached an agreement that does not seem to address the risks and allegations in this matter.

    ICL position

    21. Again noting that the evidence is yet to be tested, the ICL considers that:

    a. a cautious approach is appropriate in this matter;

    b. that the children should spend supervised time with the Father on an interim basis;

    c. that both the Mother and Father should submit to further drug urine testing at the request of the ICL;

    d. that the Mother and Father should undertake hair drug testing at the request of the ICL;

    e. that the Father engages with appropriate services regarding his history with the Mother, his drug misuse and potential alcohol misuse;

    f. that the Mother engages with appropriate services regarding her history with the Father and her drug misuse; and

    g. that the Mother provides further information about her medical and mental health issues.

1. While the father denies the allegations relevant to family violence and the alleged sexual assault of Y, he acknowledges that he is used illicit substances as demonstrated by the recent drug testing results.  The father asked the Court to note that the ADVO application was withdrawn by the NSW police on 27 August 2020 (see Annexure ‘C’ to his affidavit filed 26 November 2020).  In addition, the father asks the Court to note that he has been spending unsupervised and overnight weekend time with the children since 11 September 2020.  The father has also completed the F  parenting course run by Family Service A and has indicated in his most recent affidavit (at paragraph 27) that he is agreeable to completing the G and H parenting courses.

2. As stated, the mother no longer opposes the children spending unsupervised overnight time with the father. The mother also confirmed to the Court that the NSW police withdrew the ADVO last August.

   Findings

3. This case is somewhat unusual in that, while the parents agree on interim parenting orders, the ICL opposes the children spending unsupervised time father. Adding to the complexity, both parties have now each filed a Notice of Discontinuance. As such the following findings reflect those that were made following the interim hearing and will not eventuate to the making of any parenting orders.  

4. The Court understands the ICL submissions given the available evidence.  That said, the parties now agree to the children spending unsupervised time with the father in circumstances where the ADVO was withdrawn and the investigation by the joint child protection response team has ended with no findings being made.

5. The father’s failed drug screens are of obvious concern.  Nevertheless, the father has agreed to ongoing drug screens (albeit urinalysis only) and a restraint against using illicit substances. 

6. Having considered the submissions in light of the available evidence and the relevant statutory pathway, the Court is not satisfied that there is an unacceptable risk in the child spending unsupervised time with the father particularly in circumstances where the mother no longer opposes unsupervised time and the father has agreed to a restraint against using illicit substances and there being ongoing drug screens.

7. It would be appropriate to suspend the children’s unsupervised time with the father in the event that he fails a further drug test.

8. That said, the concerns raised by the ICL would normally warrant an invitation to the NSW Department of Communities and Justice to consider intervening in these proceedings. Given the filing of Notices of Discontinuances by the parties that would now be inappropriate as the private law proceedings between the parties, subject to costs arguments, are withdrawn. Nevertheless, there would be merit in this case in the Court forwarding a copy of these reasons, and the relevant Orders, to the NSW Department of Communities and Justice for their information.

   Whether the father should undertake drug hair testing

9. While the father consents to ongoing urinalysis, he is opposed to ongoing hair testing given the expense.  In his most recent affidavit, the father gives evidence (at paragraph 23) that the cost of the drug hair drug test he took in August 2020 was $795. By way of comparison, the father also gives evidence that the cost of a urinalysis test was $139.95.

10. The ICL asked the Court to note that the recent urinalysis and hair testing produced positive results for drugs including cocaine and cannabis.  This is not disputed by the father.

11. Having considered the submissions in light of the available evidence, the Court is satisfied that the father should continue to undertake both urinalysis testing and hair testing. While the urinalysis testing will capture drugs like cannabis, other drugs such as cocaine may not be captured if consumed sometime well prior to the urinalysis test.  Hair drug testing is more likely to capture less recent consumption of illicit substances such as cocaine.  Given the father’s recent testing, a period of time will need to elapse before the next hair testing is administered. 

12. The Court finds accordingly. That said, no orders will be made to reflect this finding given the recent filing of Notices of Discontinuances by the parties.

    Whether the mother should undertake drug urine testing and drug hair testing

13. While the ICL proposed ongoing drug testing of the mother, this was not supported by the father.

14. As noted previously, no positive test results were recorded by the mother when she undertook urinalysis testing and hair testing last August.

15. Having considered the submissions in light of the available evidence, the Court is not satisfied there is any necessity for the mother to continue to be subjected to drug screen tests in circumstances where the father supports the children living with the mother and is not seeking that she be subjected to any drug screening.

16. The Court finds accordingly. 

    CONCLUSION

17. As stated, the father and mother have now each recently filed a Notice of Discontinuance following the Court reserving its decision. Given these events, the Court is unable to pronounce orders that are reflected from the Court’s findings. To assist the parties, the Court in this interim decision found that:

    ·First, on the available evidence, the father does not pose an unacceptable risk to the children;

    ·Second, it is in the children’s best interests to spend time with the father as proposed by the mother and the father;

    ·Third, the Court finds that the father should continue to be subjected to drug hair testing;

    ·Fourth, the Court is not satisfied as to the need for the mother to continue drug urinalysis testing and/or drug hair testing;

    ·Fifth, given the risk factors raised by the ICL the Court had the intention of making  an order requesting that the Department of Communities and Justice intervene in these proceedings, however, given the father and mother have both filed a Notice for Discontinuance, such order will not be made. Nevertheless, I find it appropriate that the Court forward a copy of these reasons, and the relevant Orders, to the NSW Department of Communities and Justice, for their information.

18. The Court will discharge the order for the listing of a Child Inclusive Conference and the matter will be listed for mention on 22 April 2021 before a Registrar to ascertain whether the ICL seeks any orders for costs. Subject to the issue of costs, the Independent Children’s Lawyer can be discharged with the thanks of the Court and all extant applications can be withdrawn and dismissed. In the event that the ICL does not seek costs, or there is consent to a Minute that resolves the issue of costs, the ICL can have leave to approach with the view to vacating the future mention date.

19. There will be Orders of the Court to reflect these reasons.  

I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Monahan.

Associate:

Dated: 23 December 2020

SCHEDULE 1

Proposed Minutes of Order

Father and Mother

Live and Spend Time With

6.That the children X, born 2014 and Y, born 2016 ("the children") live with the mother.

7.That the children spend time with the father as agreed m writing, and failing  agreement as follows:-

2.1Commencing 13 November 2020 and each alternate week thereafter from after school (or 2.50pm on non-school days) Friday until 2.00pm Sunday;

2.2During school holidays from 4.00pm Thursday until 8.00am Monday  with such time to coincide with when the children are in the father's care pursuant to Order 2.1 above;

2.3Easter Sunday from 3.00pm to 6.30pm;

2.4From 23 December at 10.00am to Christmas Eve 6.30pm;

2.5From 3.00pm to 7.00pm Christmas Day;

2.6In odd numbered years from 10.00am Boxing Day to 10.00am 27 December;

2.7In odd numbered years on New Years' Eve from 3.00pm to 10.00am New Years' Day;

2.8For Father's Day from 3.00pm the day before Father's Day to 6.30pm  Father's Day;

2.9In odd numbered years from the conclusion of school (or 2.50pm on non-school days) on the day prior to each of the children's birthdays until the commencement of school (or 8.00am on a non-school day) the following day;

2.10In even numbered years from the conclusion of school (or 2.50pm on non- school days) on the day of each of the children's  birthday  until  the commencement of school (or 8.00am on a non-school day) the following day;

2.11On any other occasion as agreed between the parties in writing (to include text message or email).

8.That in addition to living with the Mother pursuant to Order 1, above, the children shall spend time with the Mother on the following special occasions, and in the event that the Father's time with the children falls on such occasions, the Father's time shall be suspended:

3.1 From 9.00am Good Friday to 3.00pm Easter Sunday;

3.2 From 6.30pm Christmas Eve to 3.00pm Christmas Day;
3.3 In even numbered years from 7.00pm Christmas Day to 10.00am Boxing Day;

3.4 In even numbered years on New Years' Eve from 3.00pm to 10.00am New Years' Day;

3.5 On Australia Day from 3.00pm on 25 January to 3.30pm 26 January;

3.7   On Anzac Day from 3.00pm on 24 April to 3.30pm 25 April;

3.7 For Mother's Day from 3.00pm the day before Mother's Day to 6.30pm Mother's Day;

3.8   In even numbered years from the conclusion of school (or 2.50pm on non-school days) on the day prior to each of the children's birthdays until the commencement of school (or 8.00am on a non-school day) the following day;

3.9   In odd numbered years from the conclusion of school (or 2.50pm on non-school days) on the day of each of the children's birthday until the commencement of school (or 8.00am on a non-school day) the following day;

3.10 On any other occasion as agreed between the parties in writing (to include text message or email).

9.That in the event either parent is unable to care for the children during a period when the children are to be in their care pursuant to these orders then that parent shall provide the other parent the first option to care for the children in lieu.

Changeover

10.That changeover will occur at the children's school on school days, and on all other occasions at the mother's house at the commencement of the father's time with the children and at the father's home at the conclusion of the time.

Communication

11.That the parents are to communicate with each other via telephone, SMS or email for the purpose of implementing these Orders and the parents agree to limit their communications to discussing parenting matters for the children.

12.That the children have telephone, Skype and/or Facetime communication with each parent at 5.30pm and 7.00pm on each day they have not otherwise spent time with the other parent AND to facilitate the same:

(a)That parent shall telephone the parent in whose care the children are in;

(b)Each parent shall allow the children to communicate with the other parent without interruption, distraction and with privacy.

13.In addition to Order 7 above, that the children have telephone, Skype,  and/or FaceTime (or use through a similar video chat/electronic method), communication with each parent, during times that they are not with living with or spending time with that parent at all times as requested by the children and the other parent shall provide the children with privacy during such conversations.

14.That in the event of any emergency relating to the children, the parent who has the children in their care shall contact the other parent and notify the other parents immediately of the following:-

(a)The nature of the medical emergency or illness;

(b)The name, telephone number and address of any medical practitioner or health care professional who has provided treatment to the child;

(c)Diagnosis received;

(d)Prognosis;

(e)Treatment rendered.

Restraints

15.Without admissions, that both parents be restrained by injunction from:

10.1 Denigrating, belittling, name-calling or swearing at the children, the other parent or members of the other parent's family and/or household in the presence or hearing of the  children  or  over  the  phone  or  in  written  correspondence  to the children, and they shall both use their best endeavours to ensure that no other third party does so.

10.2 Consuming alcohol to excess such that their alcohol consumption would prohibit them from legally driving a car whilst the children are in their care;

10.3 Using illicit substances;

10.4 Physically disciplining the children in any manner.

NOTATION

A.   It is agreed that the father will be solely responsible for all education costs of the children.

ICL

Live with and spend time with arrangements

1.That the children X born 2014 and Y born 2016 (‘children’) live with the Mother.

2.That the children spend time with the Father for a minimum of 2 hours each week supervised by Family Service A (‘Family Service A’) located in Town I on such days and times as nominated by Family Service A.

3.To facilitate the Father spending time with the children pursuant to Order 2, the Mother and Father are to:

a.contact Family Service A at Town I Town I within 48 hours of the making of these Orders and make an application for Family Service A’s supervised children’s contact service;

b.provide all information and complete all necessary paperwork as may be required by Family Service A;

c.attend any intake or assessment appointments as may be requested by Family Service A on such days and times as nominated by Family Service A; and

d.comply with any other reasonable request or direction of Family Service A for the purpose of implementing these Orders.

4.To facilitate the Father spending time with the children pursuant to Order 2, the Mother is to:

a.ensure that the children attend any intake or assessment appointments as requested by Family Service A on such days as nominated by Family Service A (including on school days); and

b.ensure that the children attend on each occasion that the children are scheduled to spend supervised time with the Father as nominated by Family Service A.

5.The Father is to bear any costs of Family Service A’s supervised contact service (at the relevant concession or non-concession rate) and any costs for intake assessments or appointments attended by the children and the Mother and Father are to bear any costs associated with their initial intake assessments.

6.These Orders operate as the authorisation of both parents to Family Service A to provide the Independent Children’s Lawyer in these proceedings with any information about the parents’ engagement with their supervised contact service or the process of supervised time that the Independent Children’s Lawyer may require.

7.In the event that Family Service A cannot provide a supervised contact service to the parents and / or service is refused or sought to be varied, the Independent Children’s Lawyer has liberty to seek a re-list of this matter upon 7 days-notice to the other parties and to the Court.

8.That in the event that Family Service A is not able to offer the Father a place for supervised time within a two month period from the date of these Orders and the Father is placed on a waiting list, then the children are to spend supervised time with the Father through Family Service B until such time that Family Service A is able to offer the father a Supervised contact service.

9.That in the event that the Father’s time with children is to be supervised by Family Service B, the children are to spend each Saturday with the Father from 10:00am until 12:00pm at a venue agreed between the parents but failing agreement, as nominated by Family Service B.

10.The Father is to pay the cost of supervision in accordance with Order 9.

11.The Father and Mother are to comply with all reasonable rules and requests and directions of the staff of Family Service B for the purpose of supervised time in accordance with Order 9.

12.These Orders operate as authorisation of both parents to Family Service B to provide the Independent Children’s Lawyer in these proceedings with any information about the parents’ engagement with their supervised contact service or the process of supervised time that the Independent Children’s Lawyer may require.

13.That in the event that the Father and Mother reach a written agreement for the children to spend time with the Father in addition to any time occurring through Family Service A or Family Service B, this time is to be supervised by a person deemed suitable by the Court.

14.That in the event that the children’s time with the Father is to be supervised by a person deemed suitable by the Court, the children are to spend time with the Father as follows:

a.commencing on 28 November 2020, each Saturday from 10:00am until 5:00pm and each alternate week thereafter;

b.commencing on 12 December 2020, each Saturday and Sunday from 10:00am until 5:00pm and each alternate week thereafter;

c.from 10:00am until 6:30pm 24 December 2020 each year;

d.from 3:00pm until 7:00pm 25 December 2020 each year;

e.from 10:00am until 6:30pm 27 December 2020 each year;

f.from 10:00am until 6:30pm 1 January 2021 each year;

g.from 10:00am until 5:00pm on Father’s Day each year if the children are not already spending time with the Father pursuant to these Orders;

h.from 3:30pm until 6:30pm Easter Sunday each year if the children are not already spending time with the Father pursuant to these Orders; and

i.from 3:30pm until 6:30pm on each child’s birthday.

15.That in the event that the children spend time with the Father in accordance with Order 14, the Mother is to deliver the children to the nominated supervisor at an agreed location at the commencement of the Father’s time with the children and the Mother is to collected the children from the nominated supervisor at the conclusion of the Father’s time with the children.

16.The Father is restrained by injunction from being present during any occasion that the Mother delivers the children to the nominated supervisor or collects the children from the nominated supervisor.

Communication

17.That the children have either telephone, SKYPE or Facetime communication with the Father at 6:30pm each Monday and Thursday and the Mother is to facilitate this.

18.The Father and Mother are to keep each other advised of:

a.any significant medical problems, illness or injury suffered by the children whilst in their care;

b.any occasion that the children are hospitalised whilst in their care;

c.any treatment plan or regime recommended by the children’s treating medical professional;

d.any medication; including any prescribed dose that has been prescribed for the children which might need to be administered by the other parent; and

e.their contact telephone number and email address.

19.The Father and Mother are to communicate by SMS or email for the purpose of implementing these Orders and by telephone if it is an emergency.

20.The Mother is to provide the Father with full particulars of any medical practitioner, health service provider or institution attended by the children whilst in her care and each parent is authorised to liaise directly with any doctor, hospital or other medical professional treating the children to obtain information about the children’s health and the progress of any medical treatment the children may be receiving.

Chain of custody drug urine testing

21.The Father and Mother are to submit to a supervised chain of custody urine test that is directly supervised at a laboratory that is accredited to conduct such testing in accordance with the Australian/NZ standard 4308:2008:Procedure for the collection, detection and quantitation of drugs of abuse in urine or any subsequent approved standard at a laboratory that is accredited to conduct such testing in accordance with this standard (‘accredited laboratory’) within 24 hours of receipt of a request by the Independent Children’s Lawyer (‘ICL’).

22.The purpose of testing in Order 21 is to identify if the Father’s or Mother’s urine sample contains drugs of abuse to include but not be limited to amphetamines, cocaine, cannabis, benzodiazepines and opioids.

23.The ICL is to communicate any request for urine testing required under Orders 21 and 22 by email to the Father’s and Mother’s Solicitor or to the Father or Mother directly if they become unrepresented; with such request to be made no more than once per calendar month.

24.The Father and Mother are to provide a copy of these Orders and photographic identification to the accredited laboratory before undergoing urine testing in accordance with Orders 21 and 22.

25.The Father and Mother consent to the ICL receiving a copy of their urine results in accordance with Orders 21 and 22 directly from the accredited laboratory and this Order operates as the authority of the Father and Mother to the accredited laboratory to provide to the ICL such information as she may seek.

26.The Father and Mother are to arrange for the accredited laboratory to send a copy of their urine results directly to the ICL and the Father and Mother are to provide details of the ICL’s business address to the accredited laboratory.

27.The Father and Mother are responsible for the costs of their own urine testing.

28.The Father and Mother are to also arrange for a copy of their urine results to be provided to the ICL and to the other party’s Solicitor (or the other party directly if unrepresented) within 48 hours of the urine results being received.

29.The Father and Mother are to provide their residential address, email address and mobile phone number to the ICL and the other party’s Solicitor or to the party directly if they become unrepresented.

Orders for hair drug testing

30.The Father and Mother are to undergo hair drug testing for 3 cm hair for the purpose of testing drugs of abuse to include but not be limited to amphetamines, cocaine, cannabis, benzodiazepines and opioids within 14 days from a request made by the Independent Children’s Lawyer (‘ICL’) at J Pathology, Sydney or at another laboratory either directly accredited by the National Association of Testing Authorities (NATA) to conduct such testing in accordance with the current standard for the collection and detection of drugs of abuse (ISO/IEC 17025:2017 or ISO 15189:2012) (‘NATA accredited laboratory’) or, at a laboratory that sends hair samples to a NATA accredited laboratory for analysis (‘approved laboratory’).

31.The Father’s and Mother’s hair sample of 3cm in length is to be cut into three segments and each segment is to be analysed separately and results are to be provided for each segment of hair.

32.The ICL is to communicate any request for hair drug testing required under Order 30 by email or facsimile to the Father’s and Mother’s Solicitor or the Father and Mother directly if unrepresented.

33.The Father and Mother are to advise the ICL of the name and address of the NATA accredited laboratory or approved laboratory scheduled to do their hair drug test; together with the date hair testing is due to take place.

34.The Father and Mother are restrained from cutting their hair shorter than 3cm or from colouring their hair prior to hair drug testing in compliance with Order 30.

35.The Father and Mother are to provide the NATA accredited laboratory or the approved laboratory with a copy of these Orders and photographic identification before undergoing hair drug testing in compliance with Order 30.

36.The Father and Mother consent to the ICL receiving information about the conduct of their hair drug testing or their hair drug testing results in accordance with Order 30 directly from the NATA accredited laboratory or approved laboratory and this Order operates as the authority of the Father or Mother to the NATA accredited laboratory or approved laboratory to provide to the ICL such information as the ICL may seek.

37.The Father and Mother are to arrange for the NATA accredited laboratory or approved laboratory to provide a copy of their hair drug testing results directly to the ICL and the Father and Mother are to provide details of the ICL’s business address to the NATA accredited Laboratory or approved laboratory.

38.The Father and Mother are to also provide a copy of their hair drug test results to the ICL and to the other party’s Solicitor or to the other party directly if the other party becomes unrepresented within 48 hours of the results being received.

39.The Father and Mother are to pay for their own hair drug testing in compliance with Order 30.

40.If the Father becomes unrepresented, the Father is to provide his residential address, email address and mobile phone number to the ICL within 7 days of becoming unrepresented.  

41.If the Mother becomes unrepresented, the Mother is to provide her residential address, email address and mobile phone number to the ICL within 7 days of becoming unrepresented.  

Restraints

42.Pursuant to section 68B of the Act, each parent shall be hereby restrained by injunction from making any negative, critical, belittling and/or derogatory comments in relation to the other parent or members of the other parent's family or household (including, but not limited to, questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of any of the child or via written correspondence or on social media which may be viewed or accessed by any of the child.

Programs

43.That within 28 days of the date of these Orders the Father and Mother are to enrol in one of the following programs with Parenting Service K or another agency that offers these programs:

a.Parenting program L

b.Parenting program P;

c.Parenting program H

44.The Father and Mother are to provide the Independent Children’s Lawyer and the other party’s Solicitor or the other parent directly if unrepresented with a Certificate of Completion within 7 days of completing any of the programs in Order 43.