BAINE & PAGNI
[2019] FCCA 3412
•10 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAINE & PAGNI | [2019] FCCA 3412 |
| Catchwords: FAMILY LAW – Interim parenting hearing-best interests of child-orders made. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC |
| Cases cited: Goode & Goode (2006) FLC 93-286 |
| Applicant: | MR BAINE |
| Respondent: | MS PAGNI |
| File Number: | WOC 680 of 2018 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 21 November 2019 |
| Date of Last Submission: | 21 November 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 10 December 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Hartley |
| Solicitors for the Respondent: | Ms Shelly |
| Solicitors for the Independent Children's Lawyer: | Mr Naidovski |
ORDERS PENDING FURTHER ORDER
That the mother have sole parental responsibility for the child X born … 2014.
That the child live with the mother.
That the child spends no time with the father.
That within 42 days the Father is to undertake a hair follicle test and for the purpose of this test the Father:
(a)is to do all things and sign all documents necessary to make and attend at an appointment and submit to the supervised collection of a sample of his head and/or body hair for hair drug testing purposes (“the drug test”);
(b)is hereby restrained from bleaching or dyeing his hair prior to the time of collection of hair for the drug test and he shall comply with all recommendations of the employees during the drug test;
(c)that the hair sample collected from the Respondent Father be sufficient to cover at least three (3) months prior to sampling;
(d)That the drug test to screen for drugs of abuse including:
(i) Amphetamines (AMP)
(ii)Methamphetamines (mAMP)
(iii)Cocaine (COC)
(iv)Marijuana (THC)
(v)Phencyclidine (PCP)
(vi)Ecstasy (MDMA) or (Methylenedioxymethamphetamine)
(e)That the Father forward to the solicitors for the Mother and ICL, a copy of the test result within forty-eight (48) hours of the Father receiving same.
That pending further order, the Father shall, within 24 hours of a written request by the Mother’s solicitor, attend to provide a sample for forensic urinalysis testing with respect to the presence of drugs of abuse as set out in Order 4 (d)(i) to (vi) inclusive, and such sample shall be provided and testing shall occur in accordance with the appropriate Australian standard for supervised chain of custody testing and upon provision of a testing report arising from same, each parent shall cause and ensure that report to be provided to the Mother and her solicitor within 48 hours of its receipt.
For the purposes of facilitating Order 5 above, it is noted that:
(a)the Mother’s solicitor may not request more than one test per calendar month;
(b)The Father shall be responsible for all costs associated with such testing.
In the event that the testing report, as per Order 4 and/or Order 5, discloses a reportable quantity of any of the above substances, the Father shall:
(a)then continue to attend and provide a sample and cause such sample to be tested in accordance with the above order no less than each seven (7) days and until such time as a report is provided, which discloses no reportable quantity of any of the tested substances;
(b)within 21 days do all things necessary to book an appointment with a drug and alcohol counsellor and thereafter attend upon any and all appointments as arranged, follow all recommendations, directions and treatments given to him for as long as is deemed necessary by the counsellor, with the father to provide a report from his counsellor to the mother’s lawyer and ICL on 3 monthly intervals.
IT IS NOTED that publication of this judgment under the pseudonym Baine & Pagni is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
WOC 680 of 2018
| MR BAINE |
Applicant
And
| MS PAGNI |
Respondent
REASONS FOR JUDGMENT
These Reasons relate to an interim hearing held on 21 November 2019 relating to the child X born … 2014.
The father relied upon his Case Outline and the documents referred to on page 2 of that Case Outline. The Court notes that the father’s drug test performed on about 6 November 2019 was the last annexed document to his Affidavit.
The father’s proposed Minute of Order was attached to his Case Outline; he sought, inter alia, to spend unsupervised daytime initially with the child, progressing to one overnight visit every third Saturday.
The mother relied upon her Case Outline and the documents set out on page 2 of that Case Outline.
The ICL relied upon his Case Outline and tendered certain documents from sleeve number 7, Parramatta Local Court subpoenaed file: Exhibit A.
The mother’s proposed orders sought an order for sole parental responsibility for the child, that the child live with the mother and the father spend no time with the child.
The ICL’s proposed orders supported the mother’s proposed orders and also sought orders, inter alia, that the father undertake hair follicle testing, forensic urinalysis testing, and drug and alcohol counselling in the event that the father’s illicit drug testing discloses a reportable quantity of illicit drugs.
Legal principles
The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled: see Goode & Goode (2006) FLC 93-286.
In Marvel & Marvel [2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
[120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
[122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
[123] Later, at paragraph 100 their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said at [19]:
As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). In this context, the Court refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.
Agreed facts unless otherwise stated
The mother is aged 29 years and she is Aboriginal. The father is aged 38 years.
The parties commenced a relationship in … 2012 and separated in September 2015.
The mother asserts that the child has special needs being diagnosed with four limb post axial polydactyly, motor delays, severe allergies and social difficulties.
The father was convicted of an assault upon a former partner, which assault occurred in 2010, and was jailed for about 18 months in 2011. The police fact sheet relating to this conviction suggests a particularly serious assault upon the former partner. The father’s histories given to psychologist Mr A in about … 2013 states that he assaulted the former partner whilst high on cannabis and ecstasy.
The father was convicted of an assault upon the mother, which assault occurred in about … 2013, and he was jailed in relation to the assault from … 2015 until … 2016. The mother asserts that as a result of that assault she miscarried. The police facts sheet relating to this conviction suggests that the father pushed, kneed and punched the mother. On the other hand, the father in his Affidavit appears to refute any suggestion of an assault upon the mother (the Court also observes that in the father’s Case Outline he denies physically assaulting the mother, and states, “He explains away the time he spent in jail as breaches of AVO’s which were exaggerated by the mother”).
The mother asserts a final ADVO naming herself and the child as protected persons against the father was made final in February 2017.
The father asserts that he was released from jail in … 2016. Thereafter he asserts he spent time with the child commencing in February 2018 and ceasing in March 2018. He asserts that he then spent some time with the child, supervised by the mother in about December 2018. The mother asserts that the child’s time with the father ceased in February 2018. She asserts that the child’s time with the father in February 2018 was supervised by her.
The mother works full-time as a health care worker.
In about April 2019 the father tested positive for methamphetamines.
The father asserts that he has completed a Circle of Security parenting course since being released from prison. He asserts that he has completed a six week anger management course in August 2019.
The father asserts he has a new partner and they have a child and his new partner is pregnant again. He asserts his partner’s two children also live with them.
The father stated to Mr A, psychologist, (see his report dated 9 December 2013 in Exhibit A) in about June 2013 that he had been a regular user of amphetamine and methamphetamine (ice). The father acknowledged to the psychologist a significant history of substance abuse and high involvement in illicit drug usage. The psychologist stated that the father does have significant problems with addiction and this more than likely leads him to offend. The psychologist states, “Subsequently Mr Baine is a risk to the community if he is drug affected or drug seeking.”
The psychologist’s diagnosis is alcohol dependence, amphetamine dependence and cannabis dependence. He states his opinion that the father’s drug abuse is a vulnerability towards excessive worry as per generalised anxiety disorder, as well as problems with chronic back pain as per chronic pain disorder. He states that the father fulfils the criteria for substance induced psychotic disorder. The report refers to ongoing counselling for the father.
The psychologist states that in his opinion the assault on the mother (by the father) was due to a substance induced psychosis in the father. The psychologist concludes his report by stating, inter alia, that drug rehabilitation rather than incarceration is the key to future change in the father. He recommends weekly counselling for a period of 18 months to address the father’s mental state and drug and alcohol problems.
Best interests of child
Meaningful relationship primary consideration
It would appear that the child has a meaningful relationship with the mother and would benefit from a continuance of that relationship. The mother is the child’s primary carer.
It would appear that the child has spent quite limited time with the father since the father’s release from jail in … 2016. The material before the Court suggests that the child does not presently enjoy a meaningful relationship with the father by reason of not having spent regular time with him since about September 2015 (the Court acknowledging that the child spent time with the father in February/March 2018, and, according to the father, in December 2018).
The child may benefit from the development of a meaningful relationship with the father provided that it is safe for the child to spend time with the father.
Need to protect primary consideration
On the material before the Court, at this interim stage, there is an unacceptable risk of harm posed to the child in spending time with the father, whether unsupervised or supervised.
The material before the Court suggests that the father has historically ingested illicit drugs to a significant extent. The material before the Court suggests that the father’s assault upon the mother may well have been perpetrated at a time when the father was the subject of a substance induced psychosis. The father admits that he tested positive for methamphetamines in April 2019. There is no material before the Court to suggest any treatment for illicit drug use since April 2019. Nor is there any significant material before the Court relating to the father’s treatment for illicit drug use beyond the counselling that he had in 2013 with Mr A, psychologist, and was to have with this psychologist following the latter’s report of 9 December 2013. Since this time the father merely points to a negative chain of custody urine test carried out in early November 2019. Again, the report of Mr A suggests a diagnosis in the father of, inter alia, amphetamine dependence.
Further, the material before the Court, in particular the report of Mr A, suggests also that the father had a generalised anxiety disorder and chronic pain disorder, and there is no significant material before the Court to indicate whether such suggested disorders have been the subject of treatment.
Accordingly, were the child to spend unsupervised time with the father presently there is a significant risk that the child may be exposed to psychological if not physical harm at the instance of the father should the father be significantly affected by illicit drugs.
As to potential supervised time, noting that presently the child would appear to have no significant relationship with the father, and whilst the father’s illicit drug use remains untreated and his mental health status remains unclear, there is a risk of psychological harm to the child in beginning to spend supervised time with the father but with the real potential for such time to cease were the father to fail to demonstrate the taking of meaningful steps to address his illicit drug use and demonstrate adequate mental health.
The Court should state that in relation to the risk of harm to the child of suffering psychological harm, whether spending unsupervised or supervised time with the father, the Court takes into account that this child has special needs and is potentially quite vulnerable to psychological harm.
The father submitted that his material indicated that the mother does not seriously believe that the child is at risk of spending time with the father. In this regard, the father points to, inter alia, numerous text messages passing between the parties in at least 2018. The Court is not persuaded that its significant concerns are lessened by such material; the material is equivocal with the Court observing that at one point the mother states to the father that after three supervised afternoons (of visitation between the child and the father) that it had not restored the mother’s faith that the father was “a changed man yet.”
The father submitted that he was drug-free and indeed has a relationship with the child. Again, the Court refers to its discussions above; the Court has a concern that the father may well not be drug-free presently bearing in mind his positive methamphetamines test in April 2019 and the mere one negative urine test in early November 2019.
The Court gives significant weight to this need to protect primary consideration.
It will be in the best interests of the child for the father to be subject to the ICL’s proposed orders 4 to 7 relating to hair follicle testing, forensic urinalysis testing, with further forensic testing and drug and alcohol counselling, should a reportable quantity of illicit drugs be reported.
As to parental responsibility, it will be in the best interests of the child to make an order that the mother have sole parental responsibility for the child. The parties have no co-parenting relationship. The father has spent limited time with the child since December 2015. The mother asserts that she does not trust the father. There is no presumption of equal shared parental responsibility in view of the criminal conviction of the father in relation to the assault against the mother. This child is now aged five years. It will be in the best interests of the child at this interim stage that the mother have sole parental responsibility for major decisions to be made in relation to the child.
The above discussed matters are the significantly relevant considerations under section 60CC of the Act.
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the child to make the following orders:
(1)That the mother have sole parental responsibility for the child X born … 2014
(2)That the child live with the mother.
(3)That the child spends no time with the father.
(4)That within 42 days the Father is to undertake a hair follicle test and for the purpose of this test the Father:
a)is to do all things and sign all documents necessary to make and attend at an appointment and submit to the supervised collection of a sample of his head and/or body hair for hair drug testing purposes (“the drug test”);
b)is hereby restrained from bleaching or dyeing his hair prior to the time of collection of hair for the drug test and he shall comply with all recommendations of the employees during the drug test;
c)that the hair sample collected from the Respondent Father be sufficient to cover at least three (3) months prior to sampling;
d)That the drug test to screen for drugs of abuse including:
i)Amphetamines (AMP)
ii)Methamphetamines (mAMP)
iii)Cocaine (COC)
iv)Marijuana (THC)
v)Phencyclidine (PCP)
vi)Ecstasy (MDMA) or (Methylenedioxymethamphetamine)
e)That the Father forward to the solicitors for the Mother and ICL, a copy of the test result within forty-eight (48) hours of the Father receiving same.
(5)That Pending further order, the Father shall, within 24 hours of a written request by the Mother’s solicitor, attend to provide a sample for forensic urinalysis testing with respect to the presence of drugs of abuse as set out in Order 4 (d)(i) to (vi) inclusive, and such sample shall be provided and testing shall occur in accordance with the appropriate Australian standard for supervised chain of custody testing and upon provision of a testing report arising from same, each parent shall cause and ensure that report to be provided to the Mother and her solicitor within 48 hours of its receipt.
(6)For the purposes of facilitating Order 5 above, it is noted that:
a)the Mother’s solicitor may not request more than one test per calendar month;
b)The Father shall be responsible for all costs associated with such testing.
(7)In the event that the testing report as per Order 4 and/or Order 5 discloses a reportable quantity of any of the above substances, the Father shall:
a)then continue to attend and provide a sample and cause such sample to be tested in accordance with the above order no less than each seven (7) days and until such time as a report is provided which discloses no reportable quantity of any of the tested substances;
b)within 21 days do all things necessary to book an appointment with a drug and alcohol counsellor and thereafter attend upon any and all appointments as arranged, follow all recommendations, directions and treatments given to him for as long as is deemed necessary by the counsellor, with the father to provide a report from his counsellor to the mother’s lawyer and ICL on 3 monthly intervals.
I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Date: 10 December 2019
Key Legal Topics
Areas of Law
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Family Law
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