Brydan & Sillars
[2021] FedCFamC1F 198
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Brydan & Sillars [2021] FedCFamC1F 198
File number(s): BRC 6112 of 2020 Judgment of: BAUMANN J Date of judgment: 16 November 2021 Catchwords: FAMILY LAW – PARENTING – Interim arrangements – balance of risks and need for continued supervised time Legislation: Family LawAct 1975 (Cth) s 60CC Cases cited: Brydan & Sillars [2021] FamCA 618 Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 3 November 2021 Place: Brisbane Counsel for the Applicant: Ms Vohra, SC Solicitor for the Applicant: HopgoodGanim Lawyers Counsel for the Respondent: Mr Williams, SC Solicitor for the Respondent: Barry Nilsson Lawyers ORDERS
BRC 6112 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS BRYDAN
Applicant
AND: MR SILLARS
Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
16 NOVEMBER 2021
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the child, X born 2018 (“the child”) shall spend time with the Father, supervised by Ms Z, or if she is unavailable, an independent supervisor agreed by the parents, as follows:
(a)between 2.30pm and 5.30pm each alternate Sunday;
(b)between 3.00pm and 5.30pm each alternate Thursday;
(c)with changeover to occur at the at the paternal grandparents’ residence; and
(d)at the cost of the father.
2.That within twenty-four (24) hours of the date of each written request being received by the father’s solicitors from the mother’s solicitors, each not less than fourteen (14) days apart, the father make an appointment and attend to submit to urinalysis (under supervision and chain of custody) testing for alcohol and drugs and, within twenty-four (24) hours of receiving the results, same be provided to the mother’s solicitors.
3.That from 15 November 2021, and on each second month thereafter, the father submit to hair follicle testing for drugs and alcohol between the 15th and 18th of the testing months and provide the results to the mother’s solicitors within twenty-four (24) hours of receipt and that for the purposes of this testing:
(a)The testing be conducted at a laboratory/laboratories accredited by the National Association of Testing Authorities, Australia in accordance with the current Australia Standard for the collection and detection of drugs and alcohol abuse;
(b)The father is required to maintain his head hair at a length of not less than four centimetres, neither head hair nor body hair is to be cut, bleached, dyed between the date of this order and the time of first collection of hair;
(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 be met by the father.
4.That the mother be at liberty to provide a copy of the Reasons for Judgment of the Honourable Justice Baumann dated 16 November 2021 to Ms Z and any other agreed supervisor.
5.That the father be at liberty to provide a copy of the Reasons for Judgment of the Honourable Justice Baumann dated 16 November 2021 to the paternal grandparents.
6.That these proceedings be adjourned for Case Management Hearing at 11.00am on 23 February 2022 in the Federal Circuit and Family Court of Australia Division 1 at Brisbane.
IT IS NOTED:
A.That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brydan & Sillars has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
In the midst of complex financial proceedings, the parents of X (“X”) (born in 2018), have also been in dispute about interim parenting arrangements.
As my Reasons delivered on 23 August 2021 identified (see Brydan & Sillars [2021] FamCA 618), the father’s time with X ceased after the father failed to comply with earlier orders made by the Honourable Justice Carew on 20 November 2020, in respect of agreed substance testing.
After consideration of a Family Report published by Mr C, and upon hearing further submissions, the Court made orders which prescribed for time between X and her father, which had ceased on 24 December 2020, to resume subject to strict conditions and supervision. The earlier Reasons set out the basis for such conditions, and do not need repeating.
The orders made on 27 August 2021, being Appendix One to these Reasons, have so far as time is concerned, been complied with and, even by agreement, slightly varied.
However, as was noted at paragraph 16 of the earlier Reasons, it was “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.”
I recorded the obvious “the ball firmly lies in the father’s court”. At the time of the last order, the father conceded he had not completed the drug and alcohol testing ordered by the Honourable Justice Carew, “and there is no good excuse for my failure to do so.” Despite strong submissions advanced by the mother’s counsel in August 2021, the said earlier orders were made and the evidence now produced, reveals that X has enjoyed her time with the father. The supervision undertaken by Ms Z between 5 September 2021 and 17 October 2021 (inclusive), a total of seven visits, is the subject of detailed notes attached to the affidavit of Ms Z filed on 2 November 2021.
Ms Z, a registered psychologist, opined, based on her observations and supervised time to date that:
(a)The father and grandparents “have demonstrated they are aware of and sensitive to X's emotional and developmental needs”;
(b)X has displayed “a cheerful and happy disposition throughout each supervision session and at no time has appeared distressed or anxious”; and
(c)X displays “a positive regard for her father and paternal grandparents and enjoys spending time with them” and X is beginning to see the father “as a trusted and holistic caregiver and is forming a positive attachment with him.”
The mother does not seek to challenge these positive observations and deposes to being genuinely pleased with the developing relationship. This evidence clearly reveals the benefit to the child of having a meaningful relationship with the father (s 60CC(2)(a) of the Family LawAct 1975 (Cth) (“the Act”)), and founds the basis for the father’s application to
(a)increase time; and
(b)vary the supervision conditions, in particular allowing the paternal grandparents to supervise on the Thursday afternoon.
The mother opposes, at this time, an increase in either frequency of time or the alterations of visits and strongly opposes the paternal grandparents being sole supervisors. The basis of her position is the events of the substance testing and, as senior counsel for the mother, Ms Vohra, articulated, a view that an increase in time (even with Ms Z supervising), will increase risk to the child in the father’s care. The mother rejects any suggestion that her position reflects an attempt to place hurdles in the pathway to a growing relationship between the child, X, and the father, but rather a fair assessment of the risk the father’s presents which cannot be satisfactorily ameliorated by the supervision conditions contended for the by the father. Mr Williams of senior counsel for the father contests the mother’s position.
It follows that a consideration of the testing undertaken by the father since the last orders is necessary.
SUBSTANCE TESTING
The orders of 27 August 2021 specified again, time limits and parameters for the father’s drug and alcohol testing. At paragraph 8 of the mother’s affidavit filed 18 October 2021, the mother sets out in tabular form, the dates the father was to submit to testing and when he did so. Whilst on one occasion (CDT testing on 30 August 2021), the father submitted to testing early, generally he was a couple of days late. In particular, the father was to submit to hair follicle testing by 3 September 2021, but did not do so, without adequate explanation, until 20 September 2021. The mother conceded she has received “some satisfactory urinalysis reports”, but at the time of her affidavit, was awaiting the longitudinal assessment which flows from a hair follicle test. Considering the father’s history of drug use and attempted rehabilitation, her concerns were reasonable.
The hair follicle was collected on 20 September 2021 and the results of the testing were recorded by the analyst, BB Clinic, on 2 October 2021, and detailed positive results for a cocaine screen and excessive alcohol consumption. As a result of this testing, the parties engaged, as single expert, Dr CC, a consulting pharmacologist and forensic toxicologist, who provided a report dated 2 November 2021, which further analysed the 2 October 2021 results. In his opinion:
(a)The time period represented by the hair sample (3.9 centimetres) approximates a period between early May 2021 to early September 2021;
(b)The cocaine concentration of 220ng/10mg in the father’s hair sample is “consistent with the regular, moderate to heavy use of cocaine during the time period”;
(c)The pattern of use by the father may have been consistent throughout the time period or alternatively, it is possible during the period there were periods of lighter or more frequent use and periods of little, if any use;
(d)A large proportion of this cocaine use by the father “also involved the coadministration of cocaine and alcohol”; and
(e)The provided hair Ethyl glucuronide (“E+G”) results of 177 pg/mg suggest “that in the three to four months prior to the collection of the hair sample on 20 September 2021, Mr Sillars was ingesting an average of 6 or more standard drinks daily.”
The results establish some concerning recent behaviours of the father which makes the continuation of supervision for a child of X’s age (with no capacity for self-protection) an imperative. It is highly concerning that the father has made no attempt in his evidence, to explain his use of both cocaine and alcohol over the last few months. It requires recording, that the father deliberately failed to comply with the testing regime ordered in November 2020 by the Honourable Justice Carew. If his actions in so doing, were to “clean up his act”, then it is obvious he failed to do so to date. Whilst it is so pleasing for the child, the father now acknowledges that further therapeutic support is necessary for him (and he says he has made further appointments with a suitable therapeutic professional), his recent conduct demonstrated by the hair follicle testing, exhibits a basis for the mother’s continuing articulated concerns.
WHAT IS IN X’S BEST INTERESTS FOR THE NEXT FEW MONTHS
Frankly, X was entitled to expect her father to try harder to deal with his addictions, at least to cocaine. If he had done so, the positive reunification observed by Ms Z would have likely lead to both increased time and a reduction in testing and supervision. The failures of the father to take the Court orders seriously and comply on time, pales somewhat when compared to his continued use of substances which are likely to impair his functioning. He, like the mother, have much to offer this little girl, but he is letting her down.
I have no doubt that she wants to spend more time with her father, and I infer, the paternal grandparents, who are also devoted to X. Mr C identified in his report, that the paternal grandparents did not have a realistic view of their sons past substance abuse. They are also likely to be dismayed that their son’s application to substantially increase time cannot be granted at this time.
It is likely that if Ms Z detected any behaviours of the father during supervised visits that suggested he was affected by alcohol or cocaine, that visit would have been controlled or ceased. I do not accept that longer time periods will, as counsel for the mother submits, place the child at a greater risk. I am satisfied, for the next few months until further testing is undertaken, that supervision by Ms Z is the best option. It is likely X is familiar with her now. I accept this is an expensive option for the father, but a better use of his available funds them the purchase of illicit substances.
The father’s initial affidavit contained a literary of complaints aimed towards the mother, demonstrating the father said, attempts by the mother to alienate the child. The father finds it difficult, when one reads his affidavit, to accept responsibility for his behaviour at this time, and hopefully therapeutic intervention will assist. Until the Court can be satisfied that the father has taken his substance abuse challenges seriously, the child X might be confronted with an interruption in the development of her relationship with the father, through his unavailability emotionally, and perhaps even physically. He has undertaken rehabilitation in the past, however the current results of testing raise some concerns about the enduring positive affect of that rehabilitation.
The mother, her husband and their child, Y, should be able to enjoy time with X over a weekend, uninterrupted by the need to return or remain in Brisbane for X to spend time with the father.
Considering all submissions and trying to balance the ongoing risks (ameliorated by the supervision of Ms Z) and the benefit for X of weekly time continuing, I make orders which appear at the commencement of these reasons, which in effect:
(a)Slightly increase the time X spends with the father on each alternate Sunday from 2.30pm to 5.30pm;
(b)Time is to be supervised by Ms Z, or if she is not available, by an independent supervisor agreed by the parents;
(c)Although changeovers will still occur at the paternal grandparents home, as current interim orders prescribe (unless otherwise agreed in writing), time is not required to take place only at the home of the grandparents. With the supervisor present, the father shall be entitled to take the child to a park or a shopping centre or outdoor area, so that the range of options for the child increases. I do not propose to order that the father be restrained from driving with the child in the car with him (noting a supervisor will be present);
(d)Each alternate Thursday, the child will spend time with the father, supervised again by Ms Z between 3.00pm and 5.30pm, a slight increase, or if Ms Z is not available, an agreed independent supervisor; and
(e)In view of the urine analysis results, I will reduce their frequency, as the father proposes, to not less than fourteen days apart. The hair follicle testing as proposed, every second month from 15 November 2021, to occur between the 15th and 18th of those months. On the basis that a hair sample of 3.9 centimetres provides a time period of around four months, some overlapping is likely to occur, however his is preferable to gaps occurring. Accordingly, with this small date adjustment, the father’s proposed orders 1 and 2 in the Outline of Case Document filed 21 October 2021 will be ordered.
In making these orders, I am aware of the evidence of Ms Z, that she can accommodate supervision on a Sunday, between 1.30pm and 5.30pm. I propose to order, as above, from 2.30pm to 5.30pm. I accept Thursdays may be problematic, however I regard ceasing visits at 6.30pm is too late for a child of X’s age. I would be happy for X to spend two and a half hours with the father each alternate Thursday, and whilst it is not optimal to change supervisors, noting that Ms Z would be available on particular Thursdays only from 4.30pm to 6.30pm, these difficulties do not persuade me to allow the paternal grandparents to supervise alone.
I will give leave for the mother to provide a copy of these Reasons to Ms Z and any other agreed supervisor. I will give leave to the father to provide a copy of these Reasons to his parents if he wishes to do so. At least, if he does so, they will have a clear understanding of why time has not increased at this time in the way their son, the father, had sought and they may also have hoped would occur.
The orders provide for a return to the Court, at the same time as the other applications, in late February 2022.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 16 November 2021
APPENDIX ONE
1.That Orders 1, 2, 3, 4, 5 and 7 of the orders made by the Honourable Justice Carew on 20 November 2020 be discharged.
2.That within 24 hours of the date of these orders, and within 24 hours of the date of each written request being received by the father’s solicitors from the mother’s solicitors, each not less than 7 days apart, the father make an appointment and attend to submit to urinalysis (under supervision and chain of custody) testing for alcohol and drugs, and, within 24 hours of receiving the results, same be provided to the mother’s solicitors.
3.That within 7 days of the date of these orders, the father make an appointment and attend to submit to the following and provide the results to the mother’s solicitors within 24 hours of receipt:
a.Carbohydrate Deficient Transferrin (CDT) testing for alcohol and drugs; and
b.Hair follicle testing for alcohol and drugs.
4.That the tests referred to in Orders 2 and 3 above are herein referred to as “the testing”.
5.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.
6.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 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 representative 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.
7.That until further order, the child, X born 2018 (“the child”) spend time with the father as agreed between the parties in writing and failing agreement:
a.For a period of two hours each week;
b.With such time to occur:
i.At the paternal grandparents’ residence between 3.30pm and 5.30pm each Sunday, subject to the availability of the supervisor, Ms Z, and otherwise between 3.30pm and 5.30pm each Thursday;
ii.Under the supervision of Ms Z, or other supervisor as agreed between the parties in writing,
iii.With the support of either one or both of the paternal grandparents, Mr G and/or Ms H;
iv.With the mother and/or the mother’s fiancé, Mr F, and the paternal grandmother and/or paternal grandfather to facilitate changeover outside of the paternal grandparents’ home, in the presence of the supervisor and in the absence of the father; and
v.At the cost of the father.
8.That in order for the time referred to in the Order 7 to commence, the father must provide to the mother the test results referred to in Order 2 herein, and those test results must not detect any illicit substances.
9.That for the purposes of the supervision referred to at Order 7 herein, the parties and/or their legal representatives are at liberty to provide to the supervisor the family report prepared by Mr C on 28 May 2021.
10.That the father have FaceTime communications with the child each Monday, Wednesday and Friday at 6.30pm, with the mother to call the father’s telephone via FaceTime at that time to initiate the call.
11.That whilst the child is in their care, each parent shall ensure that they do not denigrate or speak unkindly about the other parent or allow third parties to do so in the presence of the child or within the child’s earshot.
12.That these proceedings remain listed for Interim Hearing at 10.00am on 22 October 2021 in the Family Court of Australia at Brisbane.
13.That the costs of today be reserved.
IT IS NOTED:
A.That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.
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