Briggs and Gerber

[2017] FamCA 1126

FAMILY COURT OF AUSTRALIA

BRIGGS & GERBER [2017] FamCA 1126

FAMILY LAW – CHILDREN – Interim parenting – urgent application to suspend father’s time with children – order for supervised hair follicle testing – to be paid for by father – father’s time with children suspended until hair follicle testing returns negative result – matter already listed for trial for substantive parenting application

Family Law Act 1975 (Cth) s 60B, 60CA, 60CC, 69ZN(7), 97(3)

Family Law Rules 2004 (Cth)
Evidence Act 1995 (Cth) s 140

APPLICANT:

Ms Briggs

RESPONDENT: Mr Gerber

INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

FILE NUMBER: MLC 5891 of 2016

DATE DELIVERED: 4 December 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 4 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dowler

SOLICITOR FOR THE APPLICANT:	Vessali Legal
THE RESPONDENT:	In Person

COUNSEL FOR THE INDEPENDENT	Mr James
CHILDREN’S LAWYER:
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Victoria Legal Aid

Orders

1. Until further order, paragraph 2 of the orders made 16 February 2017 be suspended.

2. On or by 4 pm on 11 December 2017, the father undertake a supervised hair follicle test for the detection of illegal drugs with a laboratory approved by the Independent Children’s Lawyer at the father’s expense.

3. For the purposes of the hair follicle testing:

   (a)      the father provide at least three centimetres of hair for testing;

   (b)the father provide the independent children’s lawyer with the mother – and the mother’s solicitor with a copy of the results as soon as they are available.

4. In the event the results of the hair follicle testing is negative for the detection of illegal drugs, then the children, B and C, spend time with the father on each alternate Sunday from 9 am to 5 pm.

5. The mother’s Application in a Case filed 9 November 2017 and the father’s Response to the Application in a Case filed 30 November 2017 be otherwise dismissed.

6. Directions for trial as made earlier.

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 Briggs & Gerber 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 5891 of 2017

Ms Briggs

Applicant

And

Mr Gerber

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. The applicant mother brings an urgent Application in a Case filed 9 November 2017 to suspend the father’s time with the children ordered pursuant to interim orders made on 16 February 2017 by Senior Registrar FitzGibbon. 

2. Her application was supported by the Independent Children’s Lawyer who proposed that the father’s time with the children be suspended until such time as he had completed a supervised hair follicle test for the detection of illegal drugs with a laboratory approved by the Independent Children’s Lawyer at the father’s expense.

3. The Independent Children’s Lawyer proposed, ultimately with the support of the mother, that if the hair follicle testing is negative for the detection of illegal drugs, that the father spend time with the children each alternate Sunday between 9 am and 5 pm.  This represents a reduction in time from the orders that were made by the Senior Registrar. 

4. The father opposed the proposal of the Independent Children’s Lawyer which was ultimately supported by the mother.  Instead, he proposed to undergo three drug screenings and sought to maintain the interim orders made by the Senior Registrar.  However, he indicated that if an order was made by the Court, he would comply with an order for hair follicle testing for the detection of illegal drugs.

Background

1. There are two children of the relationship, B and C.  B is aged 14 years and C is aged 12 years. 

2. The parties were married in 2002,  separated in 2009 and were divorced on 16 August 2010.  The mother is the primary carer. 

3. Pursuant to paragraph 2 of the consent orders made by Senior Registrar FitzGibbon on 16 February 2017, the father has spent time with the children on alternate Saturdays from 2 pm to the commencement of school on Monday or 12 noon on Monday if the Monday is a non-school day.  His time with the children was increased from the June/July school holiday period in 2017.

4. The parties have competing applications for final parenting orders which are listed for trial on 21 May 2018.  A family report has been ordered for release by 20 April 2018. 

5. A number of issues are to be determined at trial which include whether it is in the best interests of the children to spend further time with the father;  whether the mother has alienated the children from the father;  whether the children are at risk in the care of the father for lengthy periods of time, including overnight;  and the capacity of the parents to protect the children from exposure to parental conflict and the views of the children. 

Evidence

1. The mother relied upon an affidavit filed 9 November 2017 and the father relied upon an affidavit filed 30 November 2017. 

2. The hearing proceeded by submissions only.

Standard of Proof

1. As to the standard of proof, when determining what orders the Court should make, the relevant standard of proof is the balance of probabilities under section 140 of the Evidence Act 1995 (Cth). There is untested evidence in this case.

Untested evidence of the mother

1. The mother’s case at trial includes that the father poses an unacceptable risk to the children because of illicit drug use and concerns that he may be dealing in illicit drugs.  Pursuant to interim orders, the father has been requested by the Independent Children’s Lawyer to undertake drug screens on 2 March 2017, 6 September 2017 and 16 October 2017.  There is no evidence that the father has complied with these requests.

2. The mother deposed to concerns which have arisen since 6 August 2017 and 16 September 2017 when C reported and photographed text messages which she had taken from the father’s mobile phone when it was unattended in the bathroom at his home. 

3. It is the mother’s case that these messages are consistent with the father “dealing in illicit drugs on a regular basis.”[1]

   [1] Affidavit of the mother filed 9 November 2017, par 22.

4. She deposed that the father’s messages were identified with a photograph of his stepdaughter, D.

Evidence of the father

1. In response to the mother’s affidavit material, the father deposed that the mother has made “malicious allegations” in reference to text messages obtained through C from a mobile phone which cannot be answered as he is not the owner of the phone.

2. The father relies on a forensic psychological report and psychosexual risk assessment completed by Dr E pursuant to interim Court orders and dated 10 November 2016.  This assessment refers to the father reporting no substance use of either drugs or alcohol in the past year, and to no drug and alcohol issues noted in referral information from the Department of Health and Human Services. 

3. I have read that report and it is not relied upon by the Independent Children’s Lawyer or the mother to suggest that the children are at risk of sexual abuse by the father under the current interim spend-time proposals. 

4. The father deposed to organising activities for the children during the school holidays, and the mother failing to provide B to spend time with him because he was playing with a friend.  The father deposed to the children wanting to spend time with him.

5. The father annexed to his affidavit material to confirm that he has completed a parenting orders program and another program entitled ‘Tuning in to Teens’, and these programs were recommended by the family consultant, Ms F, when she prepared a Memorandum on 25 October 2016. 

6. The father makes no reference to the reasons why he failed to produce drug screens in his affidavit material.  Annexed to his affidavit is a drug screen, which was illegible, that was not undertaken in response to the request from the Independent Children’s Lawyer. 

7. From the bar table, the father indicated that the telephone text messages which concerned the mother emanated from his wife’s mobile telephone.

The Relevant Law

1. These proceedings are brought under Part VII of the Family Law Act1975 (Cth) (“the Act”), and in making any parenting order, the child’s best interests are the paramount consideration mandated under section 60CA of the Act.

2. What orders are in the best interests of the child must be determined in way that is consistent with the objects and underlying principles set out in section 60B of the Act.

3. An interim hearing is necessarily truncated and the scope of the issues here are now narrower than those to be considered in determining final orders at trial.  An interim hearing occurs within an abridged process where the scope of the inquiry is necessarily significantly curtailed (Goode & Goode (2006) FLC 93-286) (“Goode & Goode”).  In an interim parenting hearing, orders are being considered for a period of time pending the matter being further returned to Court, and in this case, for a period of approximately six months  (Vanzin & Vanzin [2014] FamCAFC).

4. A mandatory principle requires the Court to conduct proceedings without undue delay and with as little formality and legal technicality and form as possible under section 69ZN(7) of the Act. Section 97(3) of the Act imposes an obligation to proceed without undue formality and to endeavour to ensure that the proceedings are not protracted.

5. In Goode & Goode, the Full Court at paragraph 68 said that where the Court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Full Court went on to point out that the Court also looks to the less contentious matters such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

6. At paragraph 72 of Goode & Goode, the Full Court referred to considerations of the status quo where there is a well-settled environment and stated that instead of simply preserving it, that unless there are protective or other significant best-interest concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the children.

7. However, at paragraph 73 of Goode & Goode, the Full Court stated:

   That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after consideration of the matters contained in section 60CC.

8. I have conducted the interim proceedings guided by the matters outlined by the Full Court at paragraph 82 of Goode & Goode. 

9. I have identified the proposals of the parties and the Independent Children’s Lawyer as previously outlined. 

10. The scope of the interim dispute is about whether the father’s time with the children pursuant to paragraph 2 of the interim orders made by the Senior Registrar should be suspended. 

Determining the child’s best interests

1. Section 60CC sets out the primary and additional considerations to which the Court must have regard in determining what orders are in the child’s best interests. 

Section 60CC(2) Primary Considerations

1. 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.

2. In applying the primary considerations, greater weight must be given to the need to protect the children from physical or psychological harm;  from being subjected to or exposed to abuse, neglect or family violence. 

3. The focus of the trial will be on these considerations.  And on an interim basis where risk is raised, I must place greater weight on the need to protect the children from psychological harm, from being subjected to illicit drug use by the father on the mother’s case. 

4. The father has failed, without any reasonable excuse, to comply with interim orders made for him to complete random drug testing.  His response to the mother’s affidavit material is less than satisfactory and he has provided no explanation for the text messages on his wife’s phone which would have been open to him.

5. On an interim basis, the fact that he has not been prepared to provide the drug screenings without any satisfactory explanation during those periods of time that I have previously referred to does not assist his case and is a cause of concern that if, indeed, he is using drugs, that the children will be put at risk.

6. I am satisfied that it is appropriate to accept the proposal of the Independent Children’s Lawyer in the best interests of the children on an interim basis having had regard to the seriousness of the allegations.  I have made this decision based on the father’s failure to comply with the orders of the Court rather than making any determination regarding the text messages, which is inappropriate at this interim hearing.  The father’s case will no doubt be assisted by negative drug screening results.

Section 60CC(3) Additional Considerations

1. I have also taken into account the additional considerations under section 60CC(3) of the Act.

Section 60CC(3)(a): any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The children are aged 14 and 12, but there is no admissible evidence of their views at this time.

Section 60CC(3)(b): the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child)

1. The children have been spending time with the father pursuant to interim parenting orders which increased the time after the most recent orders were made on 16 February 2017, but greater weight must be attached to the issues of risk at this stage.

Section 60CC(3)(c): the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child

1. The father’s opportunity to participate in making decisions about the major long-term issues in relation to the children has been interrupted as a result of the Children’s Court proceedings in respect of a child from a previous relationship. 

2. The Department of Health and Human Services in a response dated July 2016 indicated that there are no concerns for any risk to the children in the full-time care of the mother.

3. The father’s time with the children was suspended at that stage, with investigations ongoing regarding the child of the previous relationship.  The father began spending supervised time with the children pursuant to interim orders and that time was increased without the need of supervision by the Senior Registrar’s orders most recently made.  However, the notation in those orders clearly envisaged that the father would comply with the drug screening and that has not occurred. 

Section 60CC(3)(d): the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The children have been spending time with the father until November 2017 when the mother raised concerns about the father’s alleged drug use and involvement in drug dealing. 

Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

1. There is no practical difficulty and expense of the children spending time and communicating with the father which would substantially affect the children’s right to maintain personal relations and direct contact with him, having regard to the proposals here for the children to spend time with him after the drug testing is completed.

Section 60CC(3)(f): the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

1. The capacity of the father to provide for the needs of the children, including emotional and intellectual needs, will be an issue in the trial.  After being assessed by Dr E in November 2016, it was recommended that the father engage with a psychologist and dietician.  The father has not followed those recommendations at this stage, but he has indicated in Court he proposes to do so.

2. The father was also required by interim orders to provide urine samples for drug screening at the request of the Independent Children’s Lawyer and he has failed to do so on three occasions.

Section 60CC(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

1. The children have been embroiled in the parents’ conflict and are aware of the litigation.  The children have been so involved that they have forwarded messages from a mobile phone left in the bathroom of the father’s home to the mother which have caused her concern.  The father accepts that an inference might be drawn from these messages that they are relevant to drug dealing.  The father claims that the mobile phone belongs to his wife and therefore has no other explanation for the messages.

CONCLUSION

1. In conclusion, I am satisfied that after considering the primary and additional considerations under section 60CC that it is appropriate to accept the proposals of the Independent Children’s Lawyer, supported by the mother, which would provide for the father to continue to spend time with the children, provided he completes hair follicle testing which is negative for illicit drugs. 

2. I am satisfied that the proposal of the Independent Children’s Lawyer, supported by the mother, for the spend-time period to be each alternate Sunday from 9 am to 5 pm, is appropriate until such time as there can be a testing of the evidence by way of trial. 

3. I am not satisfied that it is in the best interests of the children for them to spend further time with the father on an interim basis.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 4 December 2017.

Associate: 

Date:  22 January 2018