Brydan & Sillars

[2021] FamCA 618

FAMILY COURT OF AUSTRALIA

Brydan & Sillars [2021] FamCA 618

File number(s):	BRC 6112 of 2020
Judgment of:	BAUMANN J
Date of judgment:	23 August 2021
Catchwords:	FAMILY LAW – CHILDREN – Where interim consent orders were previously made which provided for the father to complete drug and alcohol testing and the child to spend time with father supervised by contact centre – Where the father has failed to complete any drug and alcohol testing without any reasonable excuse – Where the contact centre has withdrawn their services for the family – Where the mother seeks the father complete the drug and alcohol testing and that child spend time with the father at an alternate contact centre – Where the father contends that he will complete the testing so ordered and that time should recommence at the paternal grandparents’ home supervised by a private supervisor for three months – Orders made for the father to complete drug and alcohol testing and that child spend supervised time with the father at the paternal grandparents’ residence supervised by a private supervisor
Legislation:	Family Law Act 1975 (Cth) s 60CC
Number of paragraphs:	18
Date of hearing:	19 August 2021
Place:	Brisbane
Counsel for the Applicant:	Mr G Shoebridge
Solicitor for the Applicant:	Hopgood Ganim Lawyers
Counsel for the Respondent:	Mr S Williams QC
Solicitor for the Respondent:	Barry Nilsson  Lawyers

ORDERS

BRC 6112 of 2020

BETWEEN:

MS BRYDAN

Applicant

AND:

MR SILLARS

Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	23 AUGUST 2021

THE COURT ORDERS:

1.That by 4.00pm on 24 August 2021, the father’s solicitor provide to the mother’s solicitor a minute of order consistent with the Reasons for Judgment delivered 23 August 2021.

2.That if the parties are unable to agree as to a supervisor, or are unable to agree on the form of order consistent with the Reasons for Judgment delivered 23 August 2021, then these proceedings be listed at 10.00am on Friday, 27 August 2021 in the Family Court of Australia at Brisbane.

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

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 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

BAUMANN J:

1. On 20 November 2020, Carew J made a number of orders in these proceedings (“the said interim consent orders”), however for context in respect of the interim parenting dispute that was argued before me on 19 August 2021, by consent it was ordered that:

   1.That within 7 days from the date of these Orders and on each  month thereafter until further Order of the Court, the Father make appointment and attend to submit to the following and provide each result to the Mother or her legal representatives within 24 hours of receiving the result:-

   (a)Urinalysis (under supervision and chain of custody) testing for alcohol and drugs;

   (b)Carbohydrate Deficient Transferrin (CDT) testing for alcohol and drugs; and

   (c)Hair follicle testing for alcohol and drugs.

   (“the testing”)

   2.That the testing be conducted at a laboratory/laboratories accredited by the National Association of Testing Authorities, Australia in accordance with the current Australian Standard for the collection and detection of drugs and alcohol abuse.

   3.That, for the purposes of the testing:-

   (a)the Father is required to maintain his head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this Order and the time of collection of hair;

   (b)each party or their legal representatives is at liberty to provide the facility with a copy of these Orders;

   (c)the testing may screen for alcohol EtG and drugs of abuse including amphetamine-type substances and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites; and

   (d)the cost of the testing is to be met by the Father.

   4.That, from the date of these, the Father is to spend supervised time with X each week through the private contact centre, K Contact Centre at Suburb B (the Contact Centre), with this arrangement occurring for 2 hours 2 times each week as agreed between the parties and the Contact Centre, and failing agreement, on Tuesdays and Thursdays, as follows:-

   (a)That within 7 days of these Orders, the parties shall do all acts and things and sign all documents necessary to register with the Contact Centre;

   (b)That Father and X be permitted to leave the Contact Centre without driving with the relevant employee of the Contact Centre; and

   (c)That the Father meet any costs associated with the Contact Centre supervising X’s time with the Father in accordance with these Orders.

   5.That notwithstanding the matters outlined at paragraph 4 above, the Father will spend time with X in the presence of the paternal grandparents or either of them, and in their home, two times, for two hours each, as agreed between the parties, between 23 December 2020 and 27 December 2020 and, otherwise, the time referred to in paragraphs 4 will continue uninterrupted.

   6.That X live with the Mother.

   7.That the Father have Facetime communication with X each day at 6:30pm with the Mother to call the Father's telephone via Facetime, other than the days the child spends time with the Father.

   8.That the parties communicate about the care and welfare of X by way of email or the Talking Parents communication portal iPhone app, except for in the case of a genuine emergency.

   9.That the parties participate and facilitate X and any relevant third parties, participating in interviews for the purposes of having a family report prepared pursuant to section 62G of the Family Law Act 1975, with the family report to be prepared by Mr C, with interviews to take place on 20 April 2021.

   10.That the Father pay the costs of the Family Report, with the Mother’s share to be paid from her property settlement.

   11.That pursuant to section 121 of the Family Law Act 1975, the parties are at liberty to provide the family report writer with all relevant material related to these proceedings including but not limited to Court documents filed by each party and subpoenaed documents.

2. When Mr Shoebridge of Counsel for the mother and Mr Williams of Queen’s Counsel for the father appeared before me, it was not controversial that since the said interim consent orders in November 2020 were made in respect of the parents’ only child, X born 2018 (hereafter called “X”), that the following relevant events occured:

   (a)The father has not undertaken the agreed substance testing set out at order 1.  At paragraph 20 of his affidavit filed 5 July 2021, the father says “I am yet to complete the drug and alcohol testing and there is no good excuse for my failure to do so”;

   (b)X spent two hours with the father at K Contact centre on 8 December 2020; 10 December 2020; 15 December 2020 and 17 December 2020.  The notes from K Contact centre were tendered before me and I have read them.  The visits on 8 and 10 December 2020 were positive, affectionate and otherwise unremarkable.  The visit on 15 December 2020 (supervised by “Ms D”) was an off-site visit.  The supervisor made extensive notes and the note, under the heading “To Action” included a comment “FA exhibite [sic] behaviour of concern during the visit”.  The visit on 17 December 2020 was not outside; was supervised by “Ms E” and raised no allegations of concern;

   (c)On 17 December 2020 K Contact centre emailed the father with regard to issues raised by “Ms D” to which the father responded.  In the absence of being able to test the evidence, all that can really be said with certainty about the dispute with K Contact centre is that they decided to withdraw their services for the family.  They are a private operation and are entitled to do so;

   (d)X spent time with the father and members of his family at the father’s parents’ home for two hours on 23 December 2020 and two and half hours on 24 December 2020.  The contact visit on 24 December 2020 was the last physical visit (save for the interaction for the family report interviews) between X and the father, and disputes have arisen between the parents as to why this occurred.  It appears at least the father’s failure to comply with illicit substance testing and the dispute at K Contact centre caused the mother concern – particularly in view of the father’s history of substance abuse;

   (e)Regrettably, this impasse meant that X spent no time on or around her birthday with her father and the father’s visit to the hospital on 24 May 2021 (when the child was hospitalised having a tonsillectomy performed) caused some friction between the adults (the mother, the father and the mother’s partner Mr F).  Again, without testing the evidence, it is not possible to determine how the tensions arose – however thankfully the child was still sedated and did not witness the adults’ behaviour;

   (f)On 20 April 2021, experienced social worker Mr C conducted interviews and observations of the parents and the child and also interviewed the mother’s partner Mr F and the father’s parents Mr G and Ms H.  He published his report on 28 May 2021 (“the family report”) filed in the Court and confirmed by his affidavit affirmed 15 June 2021.  I have read the family report;

   (g)At paragraph 183 of the family report, Mr C, based on the opinions expressed, made the following recommendation:

   183…

   a.X lives with the mother.

   b.The father has hair analysis testing, for the detection of alcohol and recreational drugs, each three months for at least two years, and he has CDT testing, for the detection of excessive alcohol consumption, monthly for twelve months.

   c.For three months, while drug-testing procedures commence, X has the scope to spend time with the father supervised at a contact centre on a fortnightly basis, during the day, if a contact centre is available.  X also has ongoing video call communication with him at least three times each week.

   d.After three months, X spends time with the father on alternate weekends, during the day and in the company of the paternal grandparents.  I suggest the time expands into overnight time over approximately six months, as follows:

   i.For two visits, for four hours on Saturday and Sunday,

   ii.For four visits, for six hours on Saturday and Sunday

   iii.For six visits from Saturday morning until Sunday morning (a 24-hour period),

   iv.Thereafter from Saturday morning until Sunday afternoon.

   e.If at any stage the father returns a test that indicates relapse to illicit drugs or excessive alcohol consumption, or does not comply with the testing procedures, X spends supervised time with him at a contact centre for a minimum of three months and continuing until he produces clear testing results. From there, X resumes time with the father as per the preceding arrangement, with drug and alcohol monitoring resetting for a further two years and one year.

   f.If, after two years, no concerns arise regarding the drug and alcohol test results or compliance, the parents consider a review of the arrangement through mediation or an updated assessment.

   g.In the absence of a review, I suggest X spends time with the father on alternate weekends from Friday to Sunday and has gradually expanding holiday time with him.

   h.The parents instigate measures designed to protect X as much as possible from conflict and mistrust, including:

   i.Undertakings not to speak unkindly about each other to or within hearing of X and to take steps to prevent others from doing so.

   ii.To continue to communicate in writing, preferably through a parenting server or App.

   iii.To undertake psycho-education on models of co-parenting communication, such as through a parenting orders program.

   i.The parents remain at liberty to deal independently with any of X’s service providers.

   (h)In 2021, the mother gave birth to a sibling for X, a little girl named Y.

   COMPETING PROPOSALS

3. The mother, in her case outline filed 13 August 2021, raised a preliminary issue that because of the father’s non-compliance with the Orders of Carew J, his application for a variation to the parenting Orders should be dismissed, but if not dismissed, then Facetime calls should be reduced to three times a week rather than every day.  The mother further proposed that the father must complete the ordered testing and all time should occur, in the interim, at the L Contact Centre at Suburb J.

4. The father’s position is he will comply with the Order for drug and alcohol testing and for a period of three months the child should spend time with the father:

   …on alternate weekends, under the supervision of a supervision service, nominated by the father, for two (2) visits for two (2) hours per visit, with such visits to occur at the paternal grandparents’ residence on a Saturday and Sunday.

5. Thereafter, following the completion of the three months, the father seeks orders that visits gradually increase over six months, reaching a level of each alternate weekend from 10.00am Saturday to 4.00pm Sunday, with all the visits over the period of six months being supervised by the paternal grandparents.

6. In support of the role to be undertaken, on the father’s proposals, by his parents, the paternal grandparents have signed undertakings that provide inter alia that they will supervise the time between X and her father, either with the other grandparent or separately and:

   …will terminate the time X spends with Mr Sillars and remove X in the event that Mr Sillars seeks, either physically or verbally to spend time with X away from my supervision or if I consider that Mr Sillars is adversely affected by drugs or alcohol.

   DISCUSSION

7. X should be spending time with her father, provided it is safe to do so. So much represents the basic presumption set out in s 60CC(2)(a) and (b). Sadly, if the father had complied with the Order for alcohol and drug testing to which he consented in November 2020, it may be that the parents would be making different submissions to the Court.

8. In view of the father’s past (and fairly recent) use of illicit substances, and in the absence of tested evidence of a suitable probative value from a health professional, the mother’s concerns about the father’s failure to undertake the drug testing when he agreed to do so, have a reasonable foundation.

9. However, accepting as I do that both parents believe it is in X’s best interest to have a meaningful relationship with the father, absence of physical time for now nearly eight months for a child so young, is contrary to her best interests.  It is not a simple exercise of blaming the father for his failures (as clearly that is where the blame lies) and damaging the child’s long term relationship with her father as a foreseeable, yet regrettable, consequence.

10. Even “clean” testing results will not necessarily bring future repeated testing requirements to an end, however I cannot ignore that the supervised visit records, coupled with the very positive observations made by Mr C of the interaction between X and her father on 20 April 2021, demonstrate the importance of X commencing safe time immediately.

11. It may take a long time before the mother ever feels a level of comfort that her three year child is not at risk if she had unsupervised time with her father, however any level of trust and confidence which the mother will be required to gain as the child gets older can only occur if the current uncertainties of the father’s past use of illicit substances and alcohol are to some extent ameliorated by compliance with drug testing Orders and satisfactory results.

12. Noting that this matter returns to my list on 22 October 2021 (when other issues of a financial nature may also need to be dealt with), and that the testing ordered by Carew J, if undertaken by the father immediately, is likely to enable results to be available by that date in October 2021, I regard it in the best interests of X that:

    (a)the father undertake, within 24 hours, a urine analysis for illicit substances with the results of the testing to be provided to the mother within 24 hours after receipt of the results.  I would anticipate such testing results would be available by Friday of this week;

    (b)provided the test result does not detect any illicit substances, then supervised time between the father and X can commence this weekend for two hours on either Saturday or Sunday at the home of the paternal grandparents, but supervised by a suitably independent supervisor, at the cost of the father.  The supervisor can have access to the family report by way of background;

    (c)the father shall provide to the mother, by 4.00pm Tuesday, 24 August 2021, details of the nominated supervisor, together with the details of the supervisor’s experience and qualifications.  The paternal grandparents shall be present (or one of them) for all visits to provide some additional support to the father and hopefully comfort to the mother;

    (d)on the next occasion in October 2021, when it is likely that the more focused hair follicle testing and Carbohydrate-Deficient Transferrin testing results are available, the Court will then consider dispensing with the need for a commercial supervisor and, subject to the evidence at that time, move to a regime similar to that proposed by the father; and

    (e)until the next date in October 2021 before me, the father will submit to random urinalysis at the request of the mother, to be made no more frequently than seven days apart.

13. Both parents shall have liberty to apply, and if the parties are unable to agree that the father’s nominated supervisor is suitable or are unable to agree on the form of order consistent with these Reasons (a draft of which shall be prepared by the solicitors for the father and submitted by 4.00pm tomorrow to the solicitors for the mother), then the matter will be listed before me at 10.00am on Friday, 27 August 2021.

14. I understand the mother holds some concerns about the father’s parents’ suitability for the role of supervisors, notwithstanding the undertakings, and I have read the remarks recorded by Mr C at paragraphs 80, 82, 91 and 95 which, if accurate, reflect either some lack of real awareness of their son’s previous drug use or minimisation of the risk.

15. However, there is no evidence from the mother that the paternal grandparents would stand mute and not intervene if their granddaughter is at risk on their watch and this has not happened in the past.  In any event, under the orders I propose, a suitably qualified (and aware) supervisor will be present until the testing order in November 2020, and again ordered, is complete.

16. It is not helpful to speculate what will happen again if the father fails to comply with the Court’s Order, or if he complies, a result indicating continued abuse of illicit substances or alcohol is revealed.

17. The ball firmly lies in the father’s court, but until a more natural environment can be considered safe by the Court (after testing), supervision is required.  In my assessment, conducting supervision in the way proposed by the father at the home of his parents is, if affordable as it is in this case, preferable to contact centre supervision.  It also allows the child to maintain her relationship with the paternal grandparents to some extent.  In this regard, I am not aware of any current domestic violence or protection issues, and changeovers at the home of the paternal grandparents could be facilitated by the mother and one of the paternal grandparents to reduce the prospect of an unpleasant exchange between the parents in the presence of the child – one of the advantages that, I accept, does flow from the use of a contact centre where parents are kept apart at changeovers.  There is a lack of evidence as to how quickly and how often, if time was to occur at the L Contact Centre, that can be achieved.  I expressed a preference for weekly time as opposed to fortnightly time for X.

1. The mother seeks to reduce the previously agreed regime for daily Facetime/telephone calls between X and her father.  I accept, with the birth of Y, the mother’s management of all her parenting responsibilities have greatly increased.  I am persuaded that with weekly physical time now occurring, telephone calls on Monday, Wednesday and Thursday (as suggested by Mr C) is appropriate.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       23 August 2021