Blair & Olson [2021] FCCA 1778 (29 June 2021)

Last Updated: 24 August 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

Blair & Olson [2021] FCCA 1778

File number(s):	DGC 3661 of 2016
Judgment of:	JUDGE BURCHARDT
Date of judgment:	29 June 2021
Catchwords:	FAMILY LAW – extempore ruling where father filed a notice of discontinuance
Legislation:	Federal Circuit Court Rules 2001
Number of paragraphs:	5
Date of last submission/s:	29 June 2021
Date of hearing:	29 June 2021
Place:	Dandenong
Counsel for the Applicant:	Mr Strong
Solicitor for the Applicant:	Victoria Legal Aid
The Respondent:	The Respondent did not appear
Advocate for the Independent Children's Lawyer:	Mr Bult
Solicitor for the Independent Children's Lawyer:	Bowlen Dunstan & Associates Pty

ORDERS

		DGC 3661 of 2016
BETWEEN:	MS BLAIR Applicant
AND:	MR OLSON Respondent

ORDER MADE BY:	JUDGE BURCHARDT
DATE OF ORDER:	29 JUNE 2021

THE COURT ORDERS THAT:

1. That the Mother has leave to proceed on an undefended basis.

2. That all previous Parenting Orders are discharged.

Parental Responsibility

3. That the Mother has sole parental responsibility for the children X born 2013 and Y born 2015.

Live with and communicate with arrangements

4. That the Children live with the Mother.

5. That the Children spend time with the Father as agreed by the Mother in writing.

6. That the Children communicate with the Father by FaceTime as agreed by the Mother in writing.

7. That the Paternal Grandmother, Ms A (the Paternal Grandmother), will supervise the Father’s time with the Children.

8. That the Father’s time with the Children pursuant to Order 5 be conditional upon the Children sleeping at the home of the Paternal Grandmother for any overnight time with the Father.

9. The Independent Children’s Lawyer be discharged.

Drug screen testing

10. When requested by the Mother, the Father will make an appointment and 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;
(b) 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;
(c) Each party or their legal representatives are at liberty to provide AWDTS with a copy of these orders;
(d) The Father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order also hereby authorising AWDTS or nominee to provide the results of the test to each parent (or their legal representative) upon receipt of such test results;
(e) The hair drug and alcohol test may screen for alcohol EtG and/or drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites;
(f) 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;
(g) The cost of the drug and alcohol testing is to be met by the Father; and
(h) The Father shall do all things necessary to ensure a copy of the results are provided to the solicitor for the Mother.

Contact Information

11. The Father will keep the Mother informed of his telephone number (including landline and mobile if applicable) and residential address and email and skype address if applicable.

12. The Mother will keep the Father informed of her telephone number (including landline and mobile if applicable) and email and skype address if applicable.

Issue of passport

13. The mother is authorised and permitted to apply for and receive an Australian passport for the children X born 2013 and Y born 2015 without first obtaining the written consent of the other parent.

14. The children X born 2013 and Y born 2015 be permitted to depart the Commonwealth of Australia.

Behaviour

15. The Mother and Father are restrained, and injunctions granted restraining the parties from:

(a) Denigrating the other party in the presence of the children or allowing any other person to do so; and
(b) Discussing these proceedings with or in the presence of the Children.

16. The Father will not drink alcohol to excess or use illegal drugs when the Children are in his care and he will ensure that the Children are not exposed to any person drinking alcohol to excess or using illegal drugs while in his care.

17. That communications between the Mother and Father will be:

(a) Carried out respectfully;
(b) In good faith;
(c) Child focused; and
(d) Non-derogatory.

THE COURT NOTES THAT:

1. 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 Attachment A and these particulars are included in these orders.

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 Blair & Olson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE BURCHARDT

1 The process, if you like, whereby this matter has come before the court bears attention. Up until 17 May 2021, this was a keenly contested matter. The court had made, I think, section 102NA orders to enable the cross-examination of the mother at the trial. But on that date, the father filed a notice of discontinuance. Since then, he has taken no part in the proceeding. Orders made on 30 May 2021 noted that the mother would seek to proceed on an undefended basis today if the father failed to appear or be represented, and he has not done so.

2 He has been forwarded a copy of the proposed orders, that the mother seeks. I accept there is a material difference in those orders from what was in the mother’s amended application, but it seems more probable to me than otherwise that the father is aware of the minutes of the orders sought, but, more particularly, is not minded to agitate this case, in any event. I point out, since the father has not attended Rule 16.05(2)(a) of the Federal Circuit Court Rules 2001 is available, should we be so advised, and that’s a bridge we will cross at that time.

3 The mother’s case is essentially based on the assertion that the father is a risk to the children because of his drug use, and she points also to the appalling history of family violence. Whatever nuanced position might be said to obtain in relation to drugs, that is not the case in relation to the family violence. In my view, the presumption as to be shared parental responsibility is clearly rebutted. In circumstances where the mother, who is the primary carer of the children, faces a history of that order it is entirely appropriate that there be an order for sole parental responsibility.

4 So far as the spend time regime is concerned I am told self-evidently without contradiction, that in effect the paternal grandmother supervises all the time anyway. The mother has acknowledged through her Counsel in her submissions that the children very much want to see their father. While I note the matter of concerns which Mr Bult referred in the court, the fact is that any qualifications as to the mother’s view of the father have simply not been tested, because the father elected not to prosecute his case. In these circumstances, and I accept Mr Bult’s position to find orders that are in the best interests of the children.

5 It is, in my view, appropriate to determine the matter today to remove the ongoing strain and stress of the proceedings, and that can only benefit the children. In the circumstances, I propose to make the orders sought by the mother, despite that they may not have quite reflected the way in which the family report wishes to proceed. They are, in my view, an inevitable corollary of the fact the father does not seem to wish to pursue his case.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt.

Associate:

Dated: 29 June 2021