Bardwell and Anor and Bardwell and Ors

[2020] FamCA 264

FAMILY COURT OF AUSTRALIA

BARDWELL AND ANOR & BARDWELL AND ORS [2020] FamCA 264

FAMILY LAW – PARENTING – unusual family constellation – where child’s stepfather tests positive for illicit drug use and father seeks a change in interim residence and parenting arrangements – where parties negotiate a partial interim resolution and the Court determines parenting regime to apply during Term Two and until final determination – further hair follicle testing to detect use of illicit substances.

Family Law Act 1975 (Cth)

APPLICANTS: Ms Bardwell and Mr A Bardwell

RESPONDENT: Mr B Bardwell

SECOND RESPONDENT: Ms Pauly

THIRD RESPONDENT: Mr Kelson

INDEPENDENT CHILDREN’S LAWYER Ms D Webb

FILE NUMBER: MLC 330 of 2018

DATE DELIVERED: 27 March 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 27 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Not Applicable

SOLICITOR FOR THE APPLICANTS: Community Legal Centre

COUNSEL FOR THE FIRST RESPONDENT: Ms Devine

SOLICITOR FOR THE FIRST RESPONDENT: Trapski Family Law

COUNSEL FOR THE SECOND 

RESPONDENT:

In Person

SOLICITOR FOR THE SECOND RESPONDENT: Not Applicable

COUNSEL FOR THE THIRD

RESPONDENT:

Ms Johnson

SOLICITOR FOR THE THIRD RESPONDENT: Wards Barristers & Solicitors Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Danielle Webb Lawyers

Orders

IT IS ORDERED THAT:

1. The final hearing of this matter set down for 29 June 2020 be vacated and in lieu thereof this matter proceed to final hearing before me on 6 June 2020 at 10.00 am. The final hearing be conducted exclusively by video-link to the Court and no one is required to attend the Melbourne Registry of the Family Court for the purpose of the final hearing.

2. To the extent that it is necessary, all parties have leave to cause subpoenas to produce documents and to give evidence to issue on an unlimited basis provided that inspection of all documents is completed by the end of May 2020 AND IT IS NOTED that the s 62G(2) report will be released on or before 25 May 2020.

3. The parenting arrangements for the child X born … 2015 be varied such that paragraph 3 (a) of the Order made on 19 February 2020 be varied so that X spend time with the first and second named applicant paternal grandparents and the first named respondent father on a two week rotation basis from mid-day on Thursday to mid-day on Tuesday, commencing on Thursday 16 April 2020. For the avoidance of doubt, paragraph 3 (b)(i) remains in full force and effect. For the further avoidance of doubt, the time provided for in paragraph 3(b)(ii) is vacated and will be replace with the regular parenting arrangement.

4. That the third named respondent step-father make appointment and attend for hair collection at a C Service Centre or nominee for hair drug 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 third named respondent is required to maintain his head hair at a length of not less than four (4) centimetres; neither head nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;

   (b)       Within seventy-two (72) hours of the date of these orders, the third named respondent is required to make an appointment with C Service by telephoning … for the purpose of providing a hair sample for hair drug purposes;

   (c)       Each party or their legal representatives is at liberty to provide C Service with a copy of these orders;

   (d)       The third named respondent is to attend at a C Service Centre or nominee and submit to the supervised collection of a hair sample from the third named respondent between 4 and 11 May 2020 for the purposes of undertaking a hair follicle test from the third named respondent;

   (e)       The third named respondent is to provide the collector with photographic identification to be recorded before the hair collection and authority, with this order also hereby authorising C Service or nominee to provide the results of each test to both parties and their legal representatives upon receipt of such test results;

   (f)        The hair drug may screened for alcohol, 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;

   (g)       C Service 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; C Service’ 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; and

   (h)       The cost of the hair drug test is to be met by the third named respondent.

5. That the mother keep my Chambers advised – email … – on a weekly basis of the success of her application pursuant to s 102NA for representation in these proceedings and any solicitor who is appointed to act for the mother promptly file and serve a Notice of Address for Service upon receiving instructions.

6. Until further order, the third respondent step-father be and is hereby restrained from ingesting or using illicit drugs or substances.

7. The interim applications be and are hereby otherwise dismissed.

8. Pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bardwell & Bardwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:      MLC 330 of 2018

MS BARDWELL AND MR A BARDWELL

Applicants

MR B BARDWELL

First Respondent

And

MS PAULY

Second Respondent

And

MR KELSON

Third Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. The matter comes before me on the urgent application issued by the father for a change in interim residence arrangements, following on the third named respondent having returned tests positive for the use by him of illicit substances.  In particular, methamphetamines and marijuana.  The hearing was conducted electronically.

2. The Court does not condone the use of illicit substances.  However, my view is that this is not an appropriate time or circumstance justifying an interim change of residence for X.  I will make orders, by consent, tightening restrictions on the third named respondent using illicit substances whilst he has care of X and, otherwise, bring the date for final hearing on sooner.  In the meantime, X will be spending increased time with the father and the paternal grandparents.

3. This matter has a detailed and unusual history.  The final hearing was scheduled for late June and can now be brought forward to mid-June 2020, having regard to the availability of the Family Report by 25 May 2020. 

4. The proceedings concern X, who is five years old.  For his entire life, X has lived as a member of the household of the third named respondent stepfather, including whilst the mother, was incarcerated for sexual offences.  The mother offended against the first respondent who is the father of X whilst he was a teenager.  The mother is now on parole and has returned to live with the stepfather and her children.  She is a registered sex offender.

5. Notably, the earliest years of X’s life were spent without the father knowing that X was his child.  X lived in the mother’s household where the third named respondent was deceived by the mother into believing that X was his biological child.  The children of the mother and the third named respondent did not know that X’s biological father was not their father.  They were acquainted with the father because he had been a long term and close friend of the mother’s daughter who is of similar age and went to school with the father.

6. The extant arrangements for X to spend time in the father’s household, and reflected in the Order of 19 February 2020, were put in place to ensure that X could continue to attend kindergarten as part of his normal routine.  Now, with the containment policies around COVID-19, kindergarten is no longer operating and/or it is not considered prudent for him to attend.  X is, in effect, on a period of extended school holidays. 

7. The school holiday provision in the Order made on the last occasion provided for one week during what would have been a two-week holiday. 

8. So the starting point for the discussions between the parties, at my instigation was whether the care arrangement for X should go to a week about regime, with X being in the household of his father and paternal grandparents one week, and then in the household of his mother and the third respondent step-father and their children, in the other week. 

9. X’s interests are represented by Ms Danielle Webb.

10. The parties have used the audio-visual technology well, and have been able to have discussions and negotiations.  They have reached an agreement that the order pertaining to school holiday time will obviously continue in full force and effect.  They are not in agreement but have clarified their respective positions about what happens after Easter or the commencement of Term Two.

11. The issue which I am required to decide is whether, after the school holiday period is notionally over, the parenting arrangement be a five-nine arrangement, in favour of the second and third respondents, or week about. The father and his parents seek a week about arrangement. The dispute is confined and I am not required to apply the presumption in s 61DA of the Family Law Act 1975 (Cth) at this point in time.

12. As with any parenting decision, I take into account as the paramount consideration, X’s best interests.  The foundation of  the Court’s consideration and determination of what is in his best interests are, first, what may be needed to protect X from family violence, physical or emotional abuse, and the benefit to X of him having a meaningful relationship with both parents. 

13. In this case, I am satisfied that there is ample justification vis a vis X’s interests to increase the time that X spends in the household of the paternal grandparents and his father gradually.  

14. Ms Devine for the father submits that there is no evidence of any adverse impact on X, in the event that he is taken from the home of the mother and his stepfather, and away from the children whom he perceives are his siblings.  I do not need expert evidence to tell me that a little boy that has been raised in a certain household will have formed attachments to members of that household which could be disrupted.  Accordingly, I do take into account that a week about arrangement being put in place from after Easter until the final determination, would be a very big change for X.  Such a change could leave him anxious and, rather than further assimilate X into his father’s environment, make him rejecting of it as he perceives that he misses the stepfather’s home.

15. I take into account that X has suffered a disruption in his relationship with the mother by virtue of her incarceration which ended later last year (although no one in the father’s camp seems to have been informed).  No matter how supportive the stepfather may have been of preserving X’s attachment to the mother whilst she was in prison, I expect that X will be vulnerable to losses or unexplained absences and, perhaps, acting in a compliant manner and not exhibiting any outward or telling signs of distress.

16. For the third respondent stepfather, Ms Johnson says that a five-nine arrangement is tolerable, but week about is too much, at this time.  There is some force in that submission, and that a five-nine arrangement will represent a satisfactory increase, as well as not being too onerous on X having regard to the impact on X of the change, and the capacity of the various people to care for him. 

17. I have no current concerns about the care of X and the care of the father and the paternal grandparents but the father’s proposal for an interim change to week about is, in my view, a bit too much for X at this juncture.

18. I’m going to increase the time X spends in the father’s household in line with that which is proposed by the third respondent stepfather.  That is, a five-nine arrangement after the conclusion of the forthcoming school holidays.  I do so being satisfied that an order in those terms is consistent with X’s best interests.

19. For the avoidance of doubt, even if the kindergarten which X attends, re-opens, I do not envisage him attending unless and until it is agreed by the mother and the father that it is safe for him to do so.  Accordingly, this Order will still apply and X will spend five out of each fourteen days with the father, notwithstanding that he might miss kindergarten in order to do so.

20. Finally, X should not be permitted to call the step-father “Dad”.  To do so contravenes a current Order.  I have said all I can say.  All parties should realise that his/her behaviours, including but not limited to compliance with Orders, will be the subject of scrutiny at the final hearing and that consequences for disregarding an Order can be serious and long lasting.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 27 March 2020.

Associate: 

Date:  22 April 2020