Garton & Dale
[2022] FedCFamC1F 522
Federal Circuit and Family Court of Australia
(DIVISION 1)
Garton & Dale [2022] FedCFamC1F 522
File number(s): MLC 11826 of 2020 Judgment of: WILSON J Date of judgment: 19 July 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – trial adjourned – father ordered to undertake a hair follicle test. Legislation: Family Law Act 1975 (Cth) s 66CC(3) Division: Division 1 First Instance Number of paragraphs: 21 Date of hearing: 19 July 2022 Place: Melbourne Counsel for the Applicant: Mr J. Werner Solicitor for the Applicant: Kelly & McHale Family Lawyers Counsel for the Respondent: Mr C. Dunlop Solicitor for the Respondent: Trapski Family Law Counsel for the Independent Children's Lawyer: Mr D. Robertson Solicitor for the Independent Children's Lawyer: Bowlen Dunstan And Associates Pty ORDERS
MLC 11826 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GARTON
Applicant
AND: MS DALE
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
WILSON J
DATE OF ORDER:
19 JULY 2022
ORDERS:
1.The final hearing of this proceeding is adjourned to 10:00am on 4 October 2022 with an estimated duration of four days.
2.On or before 4:00pm 22 July 2022 the parties must ensure all trial material is provided to the family consultant, Ms B.
3.On or before 4:00pm on 1 August 2022 the father must undertake a supervised hair follicle drug test (“the hair follicle testing”).
4.The hair follicle testing must –
(a)be conducted by a qualified and certified collection professional via C Services or Australian Workplace Drug Testing Service at the father’s nomination;
(b)comply with the chain of custody procedures to be applied to the sample;
(c)be conducted at an approved laboratory, accredited to conduct hair testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory;
(d)either head or body hair may be collected for testing and, if the length/amount of the hair permits, analyse for a period of 6 months prior to the testing occurs; and
(e)if the hair length does not permit testing for a 6-month period prior then for three months prior.
5.To facilitate the hair follicle testing –
(a)the father must not cut, bleach or dye his head or body hair or otherwise take any steps that may interfere with the testing procedure between the date of this order and the time of collection of hair;
(b)the father must provide the collector with photographic identification to be recorded before each hair collection; and
(c)the cost of the hair follicle drug test must be met by the father.
6.The father must provide a copy of the results to the other parties within 48 hours of receipt.
7.Costs are reserved.
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 Garton & Dale is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
The trial of this proceeding was listed to commence for four days starting today. Openings have not yet been undertaken. The morning has been spent discussing housekeeping issues, as sometimes pivotal considerations of conduct of the trial are euphemistically called.
In reality, after a discussion about the admissibility and use to which a recording of certain interactions at changeover were conducted, I stood the matter down to enable the parties to speak and have now been confronted with an application made by the respondent to adjourn.
The adjournment application is premised on circumstances that originated as recently as last week but which were set against a factual backdrop that historically goes back to 2020. It was said by the father that since 2 October 2020, he has not used the drug cannabis. He has gone on oath in his trial material to state that position. He now wishes to qualify that evidence. Mr Werner informed me that if leave were given, the father would enter the witness box to not only adopt his affidavit evidence but also to give viva voce evidence to the effect that the statement that he has not used cannabis since 2 October 2020 is not correct.
Mr Werner has invited me to receive that evidence and for the father to say that his use has been more recent, although there was no particular exposition of the amount, quantity or frequency of that use.
It turns out that something of a backstory emerged in respect of how the evidence that the father wishes to adduce came to pass. Counsel very candidly – for which I was grateful – explained to me that as between solicitors last Monday11 July 2022, the solicitors for the mother wrote to the father’s solicitors seeking that the father subject himself to a hair follicle test. The response was apparently equivocal because the response addressed everything but the request for the hair follicle testing.
Mr Dunlop today informed me that he wished to press the request for hair follicle testing and that such pressing was necessitated by his desire to test the father’s veracity when the father said that he had in more recent times used cannabis contrary to his earlier statement that since 2 October 2020 he had not. Mr Dunlop said that the hair follicle test to which he sought orders for the father to subject himself would go some way to illustrating the likely date on which cannabis had been used by the father, the frequency of it and possibly even the quantity and content of that use.
It turns out that as recently as yesterday during a conversation between Mr Werner and all other counsel, Mr Werner informed counsel that he would be seeking the leave that he asked for today. Mr Werner quite properly said that he was willing to concede that without a hair follicle test, the father would acknowledge that his statement made about non-use since October 2020 was false and that the evidence may well reveal use in the previous three months. Of course, hair follicle testing will be much more scientific than that concession.
The family consultant has proceeded in expressing opinions and recommendations on the basis that there has been no drug use since October 2020. In other words, the family consultant has taken the father’s evidence at his word as deposed to in his trial affidavit. The father, self-evidently, is recanting on that.
In debate with counsel, there was some discussion about whether other drugs were used including ice and some prescription drugs. The relevance of drug use goes to risks to which the child may be exposed while in the care of the father. The relevance of the evidence that the father now wishes to change goes to not only that but to the additional question of the father’s overall credibility and whether he can be accepted at his word when he deposes to certain matters concerning the child.
Of course, on an application such as this, I am highly circumscribed in making any findings of fact that could only be properly found after a trial, but also in making findings which will jeopardise ongoing relations between the parents in respect of the care of the child.
Mr Robertson, who appeared for the ICL, supported the concept of hair follicle testing, contending that it was relevant to a matter that fell for consideration in any relocation application of the sort that the mother presses.
Helpfully, and creatively, albeit a fraction unrealistically, Mr Werner suggested that the case should proceed, that the hair follicle testing should be conducted next week, by which time the evidence will be over, and that with the benefit of the scientific results obtained, submissions on the papers could be addressed that go to a limited issue, which Mr Werner said was of de minimis importance in the matters that fall for my consideration in this case.
In addition to those issues, the family consultant has provided information that any expression of opinion that will be given by the family consultant must await her consideration of the most recent tranche of affidavits and that she will not be in a position to do that today. I raised with counsel the desirability of having the totality of the evidence at each counsel’s fingertips before the case began, although Mr Werner was willing to proceed without that.
It seems to me that evidence of drug use by the father will be highly pertinent to one of the many considerations that I have to assess in this case namely risks to the child. Risk is squarely raised as a matter that has to be addressed even before the additional consideration set out in s 66CC(3) are engaged.
In my view, drug use, its frequency and its extent is a matter that bears upon a risk or potential risk to the child when in the care of the person who is alleged to be using drugs. I take the view that I need to see that evidence to form an overall picture of the best interests of the child and that to do otherwise would be foolhardy in the extreme.
The question then became whether and at what time that evidence should be obtained apropos the commencement of the trial. Had things gone according to Hoyle, this case would have commenced today, run its four days and had been concluded this week. Precisely when hair follicle testing can be organised and conducted with the results obtained remains to be seen, but I imagine it can be done with reasonable promptitude.
Parties should have an understanding of what the hair follicle testing results show. It may be as innocuous as Mr Werner says. On the other hand, it may not. It would be wrong to force the parties on without the totality of the evidence before them and I do not propose to do that.
The question then became whether to accede to the suggested adjournment. In my view, the adjournment should be granted but on a highly contained timeline. I will re-fix this case for four days commencing 4 October this year and in the meantime, make the appropriate order for the conducting of a hair follicle test.
A point that does concern me about the wisdom of proceeding in the manner suggested by Mr Werner was the fact that Mr Werner indicated he may well need to recast his overall case with the benefit of the further information that the adjournment will give. Whether that comes to pass remains to be seen but I would not wish to deny Mr Werner that opportunity and I do not regard it as an acceptable way to conduct a trial by beginning a case knowing that an issue such as hair follicle testing is yet to be undertaken, the results of which will be important and yet the case proceeds.
That opens itself to the possibility of the case itself being reopened, the calling of further contradictory evidence and the case being conducted on the wrong foot from the commencement. That is not the way I prefer to conduct trials.
Mr Werner expressed his understandable concerns about the possibility of costs. The question is finely pitched, and I do not have a particularly developed understanding of it. In those circumstances, I propose to reserve all parties’ costs for the issue to be determined on 4 October 2022.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 19 July 2022
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