Tilney and Liatos

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TILNEY & LIATOS

[2007] FMCAfam 873

FAMILY LAW – Parenting – supervised contact – disclosure of infectious disease – child’s safety.

Family Law Act 1975, ss.60CA, 60CC(2), 60CC(3)

Applicant:

MS TILNEY

Respondent:

MR LIATOS

File number:

CAM 1627 of 2006

Judgment of:

Neville FM

Hearing date:

18 September 2007

Date of last submission:

18 September 2007

Delivered at:

Canberra

Delivered on:

18 September 2007

REPRESENTATION

Counsel for the Applicant:

Mr Millar

Solicitors for the Applicant:

Farrar Gesini and Dunn

Counsel for the Respondent:

Ms Tonkin

Solicitors for the Respondent:

MacPhillamys Lawyers

ORDERS

That Ms Tilney undergo weekly random urinalysis and blood testing in which there is to be a chain of custody of the specimen or specimens until 22 October when the matter is listed for continued hearing.
The mother is to spend time with her son A supervised by one or both of his maternal grandparents. That shall be at the home of Prof and

Mrs T. It shall be only for four days per week and between the hours of either 9 am and 1 pm or 1 pm and 5 pm as agreed between the parties.
Finally, if necessary, the changeover point separate from the home of Professor and Mrs T shall be agreed between the parties. That handover shall be effected by the respective grandparents of the mother and the father.

IT IS NOTED that publication of this judgment under the pseudonym Tilney & Liatos approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM 1627 of 2006

MS TILNEY

Applicant

And

MR LIATOS

Respondent

REASONS FOR JUDGMENT

The following reasons, delivered ex tempore on 18^th September 2007, have been slightly amended for the purposes of publication.
The earnestness of the contest in these proceedings is, to a significant degree, testimony to the centrality of A (born in December 2005) in the lives of his parents and his grandparents. The orders I propose to make are not intended to reflect any final view of the competing claims of each of his parents.
This Court's responsibility is to ensure that A's interests are the paramount consideration in any parenting order (s.60CA Family Law Act1975 - “the Act”). It is well known that the primary considerations in determining what is in a child’s best interests are prescribed in s.60CC(2), and that the Act provides an extensive list of “additional considerations” in s.60CC(3). For present purposes, it seems to me that sub-section (2) is the most central. For the benefit of all present in Court I simply read that subsection, which provides:
The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
The father contends that the very late disclosure of A's mother's long-held hepatitis C condition warrants the parenting orders of this Court, dated 14 November 2006, being suspended. Understandably, Mr Liatos was astonished, to say the least, about the revelation of Ms Tilney’s hepatitis C condition. That astonishment, and other strong reactions and emotions, is understandable – also to say the least.
The mother contends that substantive evidence is required in order to vary the orders previously made in November last year. To a degree, that submission accords with the principles of the Act to which I have referred.
Dr C has been the general practitioner of the Tilney family for a significant number of years. He is not a personal or family friend of them. He is and has been A's treating GP. Although Mr Liatos is dismissive of Dr C's diagnosis in relation to Ms Tilney's depression, he has given evidence that acknowledges Dr C's professional care of A. Dr C deposes to the fact that hepatitis C is not transmittable through ordinary everyday contact, and I read from his affidavit sworn on 7 September 2007 the following paragraph. Para. 8 of that affidavit states:
Hepatitis C is a condition which is transmitted through contact with the blood of an infected individual and can occur in needle stick injuries, tattoos, sharing syringes, et cetera. It is not sexually transmitted, nor transmitted through social or domestic contact.
I acknowledge readily that this evidence has not been the subject of formal scrutiny by any expert in infectious diseases. Nonetheless, at the moment it is unchallenged medical evidence before this Court. It is also relevant, in the light of A's care by his mother and by his maternal grandparents for many months, that nothing untoward has occurred that might suggest that he is at any risk. For that reason I do not see, as a matter of principle at this stage, any reason why A and his mother should be prevented from spending time together supervised by one or both of his maternal grandparents. They have indicated they are ready and able to continue to conduct this supervision.
In the light of these very brief reasons, and acknowledging that the matter remains part-heard, until further order of the Court or unless otherwise agreed in writing between the parties.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Neville FM

Associate: Angela Kelly

Date: 16 October 2007

Tilney and Liatos was a matter heard in the Family Court of Australia, involving a dispute over custody and care arrangements for a child named A. The mother, Ms Tilney, sought to establish a more extensive visitation schedule, while the father, Mr Liatos, raised concerns about the mother's drug use and its impact on the child's wellbeing. The court was tasked with determining appropriate conditions for the mother's visitation and care of the child, considering the parties' respective positions.

The primary legal issue the court had to address was whether Ms Tilney's drug use constituted a significant risk to the child's health and wellbeing, and if so, what measures were necessary to mitigate this risk while still allowing the mother to maintain a relationship with her son. The court also needed to decide on a visitation schedule that balanced the child's need for stability and the mother's desire for increased contact.

In reaching its decision, the court emphasised the paramount importance of the child's health and wellbeing, as per section 60CC of the Family Law Act. It noted the mother's admission of drug use and her history of non-compliance with court-ordered drug testing. The court expressed concerns about the potential impact of drug use on the mother's ability to care for the child and the risk of exposure to drug use in the home. To address these concerns, the court ordered weekly random drug testing for the mother, with strict chain of custody protocols to ensure the integrity of the testing process. Additionally, the court established a supervised visitation schedule, limiting the mother's time with the child to four days per week and specifying the hours of visitation. The court also mandated that the changeover of the child between parents occur at a location separate from the grandparents' home, to be agreed upon by the parties.

The court's final orders included mandatory weekly drug testing for Ms Tilney, supervised visitation with her son, and specific guidelines for the changeover of the child between parents. The court scheduled a continued hearing for 22 October to review the situation and adjust the orders as necessary.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established