Gadde and Gadde

[2016] FamCA 1162

FAMILY COURT OF AUSTRALIA

GADDE & GADDE [2016] FamCA 1162

FAMILY LAW – CHILDREN – PARENTING – Drug testing

Goode & Goode (2006) FLC 92-286
Eure& Tidwell (1995) FLC 92-622
FAI General Insurance & Southern Cross Exploration (1988) 165 CLR 268

APPLICANT: Ms Gadde

RESPONDENT: Mr Gadde

FILE NUMBER: SYC 417 of 2015

DATE DELIVERED: 22 December 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 22 December 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Middleton

SOLICITOR FOR THE RESPONDENT: Ms Ho

Orders

Accordingly, I make orders as follows.  It is ordered until further order that:

1. The previous orders regarding the father spending time with L are discharged.

2. Contingent upon his compliance with the drug-testing regime set out below, the father shall spend time with L as follows:

   (a)Each Sunday between 8.30 am and 5 pm.

   (b)The above Sunday time is suspended from 23 December 2016 to 18 January 2017.

   (c)Between 18 January 2017 and L’s return to school in 2017, the father may nominate a further three daytime periods of 8.30 am to 5 pm with L, to occur upon a day other than a Friday or a Saturday.

3. In order for the time with L to take place, the father is comply with the following drug-testing regime:

   (a)Upon a request being made by the mother in accordance with the below provisions, the father will undertake a supervised urine drug test in accordance with Australian Standards section 2NZS4308 at an accredited testing laboratory for the detection of all drugs in the father’s system, including cocaine or a metabolite of cocaine.

   (b)The father must conduct the testing by 3 pm on the day following his time with L.

   (c)The father must notify the mother in writing, which includes by means of text, immediately following the undertaking of the test, that he has undertaken the test, the place at which the test was undertaken, the organisation performing the test and the time at which the test was undertaken.

   (d)The father, at the time of taking the test, is to authorise in writing the organisation undertaking the test to provide the results of the test to the mother’s solicitor upon their request.

   (e)The mother may request the above urine testing on the following conditions:

   (i)The request is to be in writing, which includes by means of text.

   (ii)The mother may issue the direction for the undertaking of the testing at any point leading up to a time that the father is to spend with L but no later than 6 pm on a day that the father has spent time with L.

   (iii)The mother may request a test no more than two times in a calendar month.

4. Should the father fail to comply with these orders in respect of urine testing or should the testing produce a result positive for illicit substance, his time with L is suspended.

5. The father is hereby restrained from consuming an illicit substance during or for 24 hours before or after any periods of time he spends with L.

6. The parties have liberty to relist on 48 hours notice in the event that the father’s time with L.

7. Pursuant to section 65Y(2) of the Family Law Act 1975, the children G, born …2004, and L, born … 2009, are permitted to travel outside of the Commonwealth of Australia to Asia and New Zealand from 23 December 2016 to 18 January 2017.

8. The orders sought in the mother’s minute of orders filed 13 December 2016 and the father’s minute of orders handed up in court on 13 December 2016 are otherwise refused.

9. I discharge orders 2, 3 and 4 made by me on 15 August 2016.

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 417 of 2015

Ms Gadde

Applicant

And

Mr Gadde

Respondent

REASONS FOR JUDGMENT

1. This matter has come before me for orders governing time that L is to spend with his father.  At present, he is spending supervised time with his father.  Further, the matter before me relates to a proposed trip to commence tomorrow for the mother to take L and L’s sister overseas. 

2. The key issue in the matter is that the father at present has limited time with L.  The critical factor here relates to a history of cocaine use and orders that relate to testing for cocaine use.  Orders have previously been made by Stevenson J in 2015 and by myself in August 2016 dealing with testing regimes.  The testing regime was such as to permit the father to have time with L, and that was time with L that was not supervised.  At present, the time that was allowed that was subject to testing is not occurring. 

3. In particular, there are a number of issues to be dealt with:

   (a)   What testing has occurred;

   (b)   Whether testing ought to take place;

   (c)  Whether supervision is required;

   (d)  Whether and what time should be allowed for between L and his father; and

   (e)  The issues in relation to international travel

4. Before me, I had evidence from the single expert, Dr P, affidavits from each of the parties, including an additional affidavit from the mother dealing with a late change in her travel itinerary, affidavits from persons who have been involved in the time that L has spent with his father, and three witnesses dealing with the drug testing regime.

5. I was referred to a number of different aspects of Dr P’s report.  I note that, in referring to Dr P’s report, that I am dealing with interim proceedings and, as was set out in the case of Goode,[1] I need to be cautious before being drawn into the substantive case or matters of contention. 

   [1] Goode & Goode (2006) FLC 92-286.

6. The assertion was made for the father that, as Dr P was the single expert and the mother had not administered further questions to him and the mother had made no application to call a further expert in relation to what Dr P dealt with, that Dr P ought to be considered as unchallenged.  I consider that, at this stage, that submission was misplaced. 

7. I was given reference by each party to particular aspects of Dr P’s report and I have read those.  These include admissions by the father to some cocaine use, including recently before seeing Dr P.  There was an accepted issue of the underlying fact of high conflict.  Dr P thought that the conflict is impacting upon anxiety for L.  Dr P also said that he had observed no significant mental health issues for the parties. 

8. There was a concern raised, which has not yet been resolved, of the father being intemperate or lacking in self-restraint both in relation to how he conducts himself in front of the children or with the mother.  This was perhaps exemplified by the admitted incident of the physical removal of the mother from his house, although again I am not in a position to ascertain precisely how that took place.  The father urged me to take Dr P’s report as accepted.   I can therefore at least consider, from his perspective, that he does not regard the matters contained in Dr P’s report as being particularly contentious.  There is evidence from Dr P of L desiring a relationship with his father. 

9. There is evidence of L having a very strong attachment to the mother and to his sister, further, of L having a strong attachment to his father but an anxious relationship.  Dr P gave evidence of L feeling unsafe and neglected in the care of his father, requiring a greater child focus on the part of the father.  Again, this may be a matter that is contentious that will require resolution at the final trial of the matter.  Dr P also thought that the time that L spends with his father requires better structure and consistency.  It was suggested that Dr P was currently supportive of overnight time, that being two nights and more, but his report does not support that. 

10. At present, he does not recommend overnight time with L, but does recommend a progression towards two nights, and when considerably older, that there should be a progression further than that.  From his report, it can be seen that L’s anxiety is a significant issue.  Dr P dealt with the issue of the cocaine use by the father in the context of admissions of use by the father.  Dr P described it as recreational and thought that there was no evidence of dependence on the part of the father.  Again, this may be a contentious matter to be resolved at the final hearing. 

11. What seems to be less contentious is his assertion that cocaine should not be used at the time of the father spending time with L nor within 24 hours of that time.  Drilling down to the matters contained in Dr P’s report, it seems that it is important for L to be spending time with his father.  It seems non-contentious that there is a high degree of conflict between the parents – perhaps more contentious, the assertions of erratic behaviour on the part of the father both in his interactions with the mother and his interactions with L. 

12. There seems to be a clear issue to be resolved about L’s anxiety; this is potentially harmful for L, particularly harmful for L’s relationship with his father, as the anxiety seems to relate to that relationship.  There are contentious issues about cocaine use, but it seems clear that it at least should not be the case that it is used proximate to or during the time with L.  As I noted previously, there have been drug-testing regimes put in place by Stevenson J and myself.  Stevenson J did so on 23 November 2015 and did so by consent. 

13. At that time, she ordered regular daytime periods for L and his father.  There was overseas travel for the mother.  The time with the father was conditional upon him performing urine tests, to be requested no more than once monthly.  Should there be a positive result, suspension was to occur.  Stevenson J made provision for the matter to be relisted under such circumstances.  On 15 August this year, I discharged that particular regime for testing and replaced it with a different regime, although not a markedly different regime. 

14. This was done in order to ensure, under circumstances where there were issues about whether or not the father had been compliant with Stevenson J’s orders, that, provided he comply with my orders, his time seeing L would not be interrupted.  My orders provided that requests were to be made for him to engage in urinalysis no more than twice each month, but should the test be positive or should there be a failure to test, there would be a suspension and a relisting of the matter.  Some criticism of these orders was made by counsel for the father on the basis that they were self-executing orders.  The orders were certainly structured so that a condition precedent to the time continuing was that the testing take place. 

15. I was referred to a number of authorities, including Eure& Tidwell,[2] and FAI General Insurance & Southern Cross Exploration.[3]These cases dealt with self-executing orders but self-executing procedural orders.  Here, what is being dealt with is a condition precedent, which can be distinguished from the orders that were described in those other cases.  The condition precedent is attached to leave to relist.  To the extent that the above cases may have had application – and I am certainly not persuaded that they do – they are addressed by the fact that leave is granted to relist the matter. 

    [2] Eure& Tidwell (1995) FLC 92-622.

    [3] FAI General Insurance & Southern Cross Exploration (1988) 165 CLR 268.

16. Turning, then, to focus on the question of compliance with the August 2016 orders, the orders were made on 15 August.  The mother, in her affidavit, said that a request was made on 16 August, and the father concedes that that testing did not take place.  The mother, in her affidavit, said a second chance was given to the father to comply with testing on 19 August. Although late in advising that he had done so, the father complied with that request.  A third chance was given in circumstances where the mother was unaware that the father had complied with the second request.  The third chance constituted her second request for testing to be undertaken in August.  The second request was made on 23 August, and the father concedes that this was not complied with. 

17. On 9 September, the father sent results for 19 August and also for some testing he had undertaken off his own bat on 7 September.  A request was made on 12 September. The father apparently complied with that request on 14 September.  It is unclear whether he asserts that he complied with it on 14 September; if he had done so, that was not in compliance with the orders.  He undertook a further unrequested test on 6 October 2016.  The mother requested a further test on 10 October 2016; the father appears not to have complied with that, instead undertaking it on 14 October 2016. 

18. The mother requested testing on 2 November 2016: the father complied with that, undertaking testing on 3 November 2016, then completing another test on 10 November 2016 that was not the subject of a request.  He was requested again on 16 November 2016, but he did not provide the test.  He was requested again on 7 December 2016, but he did not provide that test.  Far from alleviating any concerns that I may have had in August about cocaine use, this history of noncompliance in the face of orders, which have resulted and were designed to result in him not spending time with L should he be noncompliant, highlights concerns as to his use of cocaine and its potential effects on his time with L.

19. Cocaine use has been deposed to as being significant by the mother as to the ending of the relationship. Once again, I expect that is a contentious matter.  The mother deposes to erratic and aggressive behaviour in respect of the father towards her and the children post-separation.  Again, I expect that is contentious, but it is significant when the evidence of Dr P focuses upon L’s anxiety and when the evidence of the effects of cocaine, as testified to by Dr HH at page 27 of 48, emphasises why this might be so.  It supports the findings that Dr P made that cocaine should not be used proximate to time with L.

20. In this context, including the context of significant noncompliance with the testing regime that was been ordered by me in August, given the conceded matter of prior use by the father, being a prior ongoing user of cocaine; given the contentious but concerning matter of erratic behaviour that raises an issue of risk to L of emotional harm, particularly emotional harm in relation to his relationship with his father; and given what is probably the non-contentious matter that no cocaine should be used when the father is with L, I consider that it is an appropriate safeguard that a testing regime be in place.

21. As to the testing regime, one matter of contest was whether the tests that had been undertaken were compliant with orders, both as to when they occurred and as to the standard that was administered.  Three witnesses gave evidence about the testing regime.  Dr HH had concerns as to whether or not the relevant Australian Standard was complied with.  Dr II testified that it had been complied with on all but one occasion.  It seems likely, from Dr II’s evidence, that the testing has generally been compliant with the Australian Standard. 

22. Dr JJ’s evidence focused mostly on the question of hair follicle testing that was sought by the wife, which related to a longitudinal testing of drug use.  Dr HH dealt with other matters, which were useful for determining the scope of testing for cocaine and its metabolites.  He recommended that the testing should be supervised (which I note is a component under the Australian Standard as spoken of by Dr II) that it should occur at less than or equal to 24 hours notice because of the life of metabolites, that it should be randomised and that any testing should attest to the fact that it is performed in accordance with the relevant Australian Standard.

23. Hence, in determining what testing regime should take place, it is key that the 24-hour period after which testing is ineffective should be taken into account, as should a degree of randomisation.  During the proceedings, the father raised a difficulty with attending an Australian-standards-compliant testing facility if he was required to undertake tests on the weekend.  A regime can be put in place that caters for this problem, directing testing to the time that he spends with L. 

24. I will make orders that will provide for him to have weekly time with L, which will occur each Sunday between 8.30 am and 5 pm.  The orders I will make will permit the mother to notify the father that a test is required, such notification being able to take place up until the 6 pm following the time that the father has spent with L.  He will then be compelled to complete a test, in what is less than the 24-hour period, by the following day.  There will be requirements for notification in writing and authorisation to the mother’s solicitors to have access to the testing and a liberty to relist.

25. While supervision was sought for the time that L spends with his father, the above regime gives sufficient protection, absent supervision, for what is quite limited time that the father will spend with L.  Accordingly, I do not propose to order supervision.  The nature of the problems that might occur between the father and L where it is daytime visiting do not call for supervision if there is sufficient other protection, which I regard the testing regime as giving.

26. The mother seeks overseas travel to take place between 23 December and 18 January that will involve travel between Sydney, Asia and New Zealand.  It will, I understand, involve two trips to Asia in that time.  The mother is already at liberty to travel to New Zealand, pursuant to the previous orders that I have made, without the father’s consent.  The trip appears to be designed to allow the children to spend time with the maternal family.  I note my comments in my previous judgment about international travel being a usual part of the existence of these parties. 

27. I note the father proposes international travel himself, although clearly that cannot occur within the regime that I have imposed.  There is no issue to suggest that there will be a failure of the mother to return, so I will grant permission for the trip to take place.  The major deficit in that trip taking place is the interference that it will have in the time that L spends with his father that will be occasioned by the period that he spends away.  To that end, following his return and before he returns to school, I will make provision for some make-up time to occur.

28. In relation to the question of hair follicle testing, that is not required, at this stage, to protect the relationship between L and the father.  I note that the question of hair follicle testing remains within the father’s hands.  Absence of the hair follicle testing could potentially result in a Jones & Dunkel inference being sought at the trial.  I cannot tell whether or not such an inference would be taken; that would be a matter for the trial.  I decline to order the counselling with Mr GG.  At the end of the proceedings, there was clear disagreement about whether or not L might take part in that counselling.  Absent that agreement, I do not intend to order that the counselling take place.  The orders otherwise sought in the parties’ minutes of orders are dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 22 December 2016.

Associate: 

Date:  16 February 2017