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Should you risk being held in breach of court orders by self-isolating with your children for 14 days and insisting the other party do the same? Could that 14 days be extended on reasonable belief it was necessary ?

FAMILY LAW ACT 1975 - SECT 70NAE

                  4 (a)  the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
                     (b)  the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

                  5 (a)  the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
                     (b)  the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).



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  • Jacob Romano Although there are no determined cases yet, it may be possible for a parent who breaches orders to show that the circumstances relating to the coronavirus amounted to a reasonable excuse to breach the orders. This however will turn on the individual circumstances of the matter and what may be a reasonable excuse in one matter may not be such in another matter.
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    FLAST CASE BRIEF : MADDOX & NEMET [2019] FCCA 1078

    When communication breaks down and you can no longer effectively co-parent what do you expect the Court will do to solve the impasse?

    This case involved a dispute and the Court had to consider whether parents who cannot communicate ought to have equal shared parental responsibility for their almost 15-year-old daughter? 

    How much time the girl should spend with her father in circumstances where the parents neither like nor trust each other?

    HELD : 

    When I consider the evidence of the parties, which shows an inability to communicate in order to properly consult about major decisions to be made in relation to the Child’s welfare ...I find that it is not in the child’s best interests for her parents to have equal shared parental responsibility for her.

    The mother shall have sole parental responsibility for the child and the child shall live with the mother.

    When I consider all those issues, I find that it is in child’s best interests to spend substantial and significant time with her father[4], and I will therefore make orders that she spend time with him during school terms on each alternate weekend from the conclusion of school on Thursday to the commencement of school on Monday, or Tuesday if Monday is a non-school day.

    If you are having trouble communicating with your ex in co-parenting matters why not consider FLAST's moderated communications account.

    WHAT IS OUR MEDIATED COMMUNICATION MEMBERSHIP ACCOUNT?

    This new FLAST service is for those in relationship breakdowns with difficulty communicating.

    Instead of arguments, fights and emotions running wild, why not try a mediated communication membership?
    Through moderated and mediated communications, we will foster positive discussions in the best interests of the parties by promoting positive co-parenting communications and preventing emotionally charged conversations.

    With mediated communication membership accounts, we provide a communication system where you can send messages to each other and before it arrives to the other party the message is reviewed by our nationally accredited mediators, if it is moderated, it is returned to sender with a reframed alternative which conveys the same message in a more neutral way with reduced risk of ambiguity. Positive, Clear Communication is fostered.

    It is also ideal for parties who have already started a new relationship where there are some issues of trust in you and the ex. communicating, if helps foster that trust in new relationships as well if your new partner knows the communications are being moderated and a print out of the conversations is provided each month for your records.

    Click here to find out more about how Family Moderated Co-parenting Communications could help you. 

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    FLAST CASE BRIEF : AQUARO & AQUARO [2019] FCCA 1140


    This case involved and interim orders where the Court had to consider competing parenting proposals with both parents wanting  the Children live with them.


    There were allegations of alcohol abuse by the Mother along with mental illness.  The Court needed to consider the best interests of the Children and whether there was an unacceptable risk.  

    The most serious allegations against the mother was on 6 February 2019 when the Mother drove a car with the Children in it whilst intoxicated when collecting the Children from school. Later that day the Mother was taken to the Town E Hospital by her brother and the maternal grandmother and was found to have a blood alcohol concentration of 0.224.

    It was held that it is in Children’s best interests to live with the Father on an interim basis and if there was time with the mother that the mother first be subject to drug and alcohol testing 24 hours immediately prior to the commencement of any time spent with the Children and the Maternal Grandparents should be in substantial attendance of time spent between the Mother and Children.

    The Court made further orders that the mother have a psychiatric assessment and both parents undergo psychological counselling and a parenting course.  

    The father was also ordered to complete a Men’s Behaviour Change Course.

    Finally after considering all the relevant evidence and balancing the risk to the Children with the benefit of an ongoing relationship with their Mother and Father, the Court determined that for the interim the children should live with the father as a conservative and prudent measure for the interim.

    With the judge stating : "In my opinion it balances managing the possible risk of the Mother relapsing again into excessive alcohol consumption and protecting the Children. A line was drawn with the 6 February Incident when the Mother drove the Children whilst intoxicated. Not only did the Mother put herself and the Children at risk but other members of the community as well."

    To read the entire case click here [2019] FCCA 1140.




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    FLAST Case Brief : ANESTIS & KLEMM (No.2) [2018] FCCA 2622

    This interesting Family Law proceeding saw the Father subpoena the criminal records of the maternal grandfather and seek injunction against the mother due to her being a drug user,  the mother (and her father) objected to this on the grounds of relevance.

    The Court held that the mother do undergo supervised random urine analysis drug testing on no more than one occasion each month forthwith upon the request of the Independent Children’s Lawyer and do provide the results of same as soon as they become available and that such testing be collected in accordance with the chain of custody protocol specified in AS/NZ 4308:2008.

    That the mother be restrained and an injunction is granted restraining the mother from consuming illicit substances including cannabis or being under the influence of illicit substances while the child is in her care.

    In regards to the subpoena, Mr Anestis, who is the father of the respondent mother in these two cases has objected to a subpoena, or at least objected to the inspection and copying of a subpoena to the police about him.

    He says that it is fishing or it is oppressive and it is not relevant. The relevance is said to be that on the mother’s affidavit material, and indeed I think there are allegations from the father to a similar effect, the mother and the child spend time at the home of the maternal grandparents and in fact I was told from the bar table that she is in fact living with the maternal grandparents at the moment. 

    The Court responded by stating that Illicit drugs, and in particular, methamphetamine use, are central in this case, it would appear, and it occurs to me that it is highly relevant to know whether or not the maternal grandfather with whom the mother is presently living, is himself involved in more serious drugs than the relatively minor cannabis that he has referred to. I think to that extent the subpoena is relevant. I do not consider it is oppressive. In all the circumstances, I do not consider it fishing. I think there is some basis for the inquiry.

    The Court held that the objection to subpoena filed on 19 August 2018 in respect to the subpoena material produced by South Australia Police about the mother’s father, Mr Anestis, be dismissed.

    The third matter that the father relies on is the family report I have mentioned dated 31 July 2018 where the family consultant expresses the view that as long as the mother’s illicit drug use continues there is a potential risk of harm to [X].

    She recommends that the father have primary care of the child and that the mother spend time with the child under supervision. She said that should Ms Anestis return a negative hair follicle drug test then consideration should be made for removing her supervision requirements and increasing her time with [X]. Should she continue to return positive drug tests then her time with [X] may need to be re-evaluated.

    The mother has been subject to regular testing and has produced a negative test. The picture appears to be that, after a period of abstinence, the mother had relapsed into methamphetamine use. There is evidence that she had used methamphetamine at times in the past. It may be because of the potentially serious consequences that she was facing as a result of the positive test in March 2018 that she has been shocked into abstinence.

    It is on those bases that I have been asked to conclude that there is an unacceptable risk to [X] should she remain living with her mother and to make an order on an interim basis that she live with her father.

    To read the full case and how and why the Court reached this judgment click here [2018] FCCA 2622.

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    FLAST CASE BRIEF : COFFEY & TILLMAN [2019] FCCA 1118

    This was an unusual matter  involving two children (16yrs and 13yrs) with two unsuccessful attempts at Court ordered family therapy.

    Each child was aligned and living with one parent and refusing contact with the other parent.

    There was agreed sole parental responsibility for each child to the parent they live with and it was agreed each child may spend time with and communicate with the other parent if and as they wish.

    Where children are voluntarily spending time with each other and the father seeks a court order for a further attempt at family therapy, the father seeks an order requiring children to spend time together in line with time currently being spent.  The mother and ICL both opposed the Fathers suggestion at another attempt of family counselling and for the children to spend more time together. 

    The father’s proposed orders were not made, with the Court holding that while it would be desirable for the parents and children to voluntarily take part in family therapy, if one or both of the parents, or the children, are not committed to it then it will not work.

    If they are all committed an order is unnecessary.

    All an order will therefore do is create a potential avenue for the continuation, by way of contravention application, of these proceedings if further family therapy is not successful. That would not be in the best interests of the children.




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    FLAST CASE BRIEF : SYKES & GROFF & ORS [2019] FCCA 1079

    We often hear about cases involving drug and alcohol abuse along with domestic violence, this case examines such a scenario, where the  court had to consider whether a father ought to have unsupervised time with a young child when there are serious allegations of family violence and drug abuse and he has failed to provide drug screens.  

    It was held that the mother shall have sole parental responsibility for the child and the child live with the mother. 

    Conditions for father to see child :

    Within 72 hours of the date of these Orders, the Father shall make an appointment to attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee by telephoning 1300 37 84 83, and shall provide a hair sample (“the sample”) for drug testing purposes (“the drug test”), with collection to be conducted by a qualified and certified collector, and the drug test to screen for illicit substances for the 6 months prior to the provision of the sample.

    To give effect to the above, the Father shall maintain his head hair at a length of not less than four (4) centimetres and he is hereby restrained by injunction from cutting, bleaching or dyeing his hair, or allowing any other person to do so, between the date of this order and the time of collection of the sample.

    The drug 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 and any other drug specified in this order as required.

    Until the father has provided a hair follicle drug test that complies and which shows an absence of any illicit substance for the previous 6 months, the child shall spend time and communicate with the father as follows:

    (a) Provided that he has provided six consecutive urine drug screens within 24 hours of a request by the Independent Children’s Lawyer, showing no use of illicit substances, then from 9:00 a.m. until 1:00p.m. on Saturdays supervised by the paternal grandparents;

    (b) If the father has not complied, then for 2 hours in each alternate week supervised by a professional Child Contact Service or Centre at such times as might be accommodated by the Contact Service or Centre; and

    (c) at other times by agreement between the parties in writing.

    To find out why the Court made this decision and read more on this case click here [2019] FCCA 1079.

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