Gibson and Noon

Case •

[2016] FCCA 2336

•

19 September 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIBSON & NOON [2016] FCCA 2336
Catchwords:
FAMILY LAW – Interim parenting – significant independent evidence of Mother’s use of drugs – strong and clear views of older children that support evidence of Mother’s regular drug use – need for precautionary protective approach towards all children especially the younger two children.

Legislation:

Family Law Act 1975 (Cth), ss.60CC(2), 60CC(2A), 60CC(3)(a), (b), (d), (e), (f), (i), (k)

Cases cited:

Banks & Banks (2015) FLC 93-637

Crouper & Mitchell [2014] FamCAFC 246
McCall v Clark (2009) 41 Fam LR 483
Mazorski v Albright (2008) 37 Fam LR 518

Perry & Perry (2015) FLC 93-669

SPS & PLS (2008) 217 FLR 164; (2008) FLC 93-363

Vanzin & Vanzin [2014] FamCAFC 245
Applicant: MR GIBSON
Respondent: MS NOON
File Number: CAC 773 of 2016
Judgment of: Judge Neville
Hearing date: 13 July 2016
Date of Last Submission: 8 August 2016
Delivered at: Canberra
Oral reasons delivered on: 12 August 2016
Written reasons provided: 19 September 2016

REPRESENTATION

Solicitors for the Applicant:

Counsel for the Respondent:

Farrell Lusher Solicitors, Wagga Wagga

Mr K Pattenden
Solicitors for the Respondent: Friedlieb Byrne, Wagga Wagga
Solicitors for the Independent Children's Lawyer: Evans Family Lawyers

ORDERS

  1. The Father have sole parental responsibility for the children, W (born (omitted) 1999), X (born (omitted) 2003), Y (born (omitted) 2009) and Z (born (omitted) 2011) (“the children”).

  2. The children live with the Father.

  3. The Mother spend time with the children W and X according to their wishes.

  4. The Mother spend time with the children Y and Z as follows:

    (a)On a fortnightly basis under the supervision of the (omitted) Children's Contact Services as can be accommodated by that service.

  5. That, for the purposes of Orders 4(a), each of the parties will:

    (a)Contact the (omitted) Children's Contact Services within seven (7) days to arrange an appointment for assessment for suitability;

    (b)Attend the assessment;

    (c)Comply with any appointment made by the (omitted) Children's Contact Services;

    (d)Comply with all reasonable rules of the (omitted) Children's Contact Services;

    (e)Comply with all reasonable requests or directions of the staff of the (omitted) Children's Contact Services;

    (f)Pay their own fees nominated by the (omitted) Children's Contact Services.

  6. If the parties are accepted by (omitted) Children's Contact Services following intake procedure, then the Mother is to spend time with the children Y and Z as per Order 4(a) under the supervision of that service.

  7. The Mother’s time with the children Y and Z is to be implemented by the Father or his agent delivering the children to and collecting the children from the (omitted) Children's Contact Services at the start and end of the Mother’s time.

  8. If the (omitted) Children's Contact Services is unable or unwilling to provide supervision as set out above, then either party shall have liberty to restore the matter to the list on seven (7) days written notice to the other party and to the Court.

  9. The Mother is restrained from consuming illicit substances within twelve (12) hours of her spending time with the children or at any time during.

  10. The Father is restrained entirely from consuming illicit drugs.

  11. Both parties are to undergo random monthly drug screens by chain of custody urinalysis at their own expense as requested by the Independent Children’s Lawyer, with such tests to be undertaken within forty-eight (48) hours of receiving such a request, with results to be provided by the parties to the Independent Children’s Lawyer within seven days.

  12. The Independent Children’s Lawyer be at liberty to request the parties undertake chain of custody hair follicle drug screen on two occasions before final hearing of this matter, and if so requested, the following will apply:

    (a)The Mother and Father are restrained from cutting, dying or otherwise altering their hair in any way at any time between such request being received from the Independent Children’s Lawyer and submitting to hair follicle drug screen; and

    (b)Each party pay the cost of their respective chain of custody hair follicle drug screen.

  13. The Mother be at liberty to communicate with the Children by telephone between 5.00PM and 6.00PM on:

    (a)Each Monday and Thursday; and

    (b)Christmas Day and Easter Sunday; and

    (c)The day of W’s birthday, being (omitted); and

    (d)The day of X’s birthday, being (omitted); and

    (e)The day of Y’s birthday, being (omitted); and

    (f)The day of Z’s birthday, being (omitted).

  14. For the purposes of Order 13, above, the Mother will initiate the telephone call to the Father’s landline or mobile telephone and the Father will provide all such reasonable assistance to enable telephone communication to occur. Nothing in this Order requires the children W or X to participate in telephone communication with the Mother against their wishes.

  15. The Father will communicate with the Mother in relation to the children’s health and wellbeing, medical emergencies and treatment and will notify the Mother of any injuries or hospitalisation suffered by any child as soon as practicable and by any means necessary.

  16. Each parent will keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and will advise the other parent of any change to those details in writing within twenty-four (24) hours of such change occurring.

  17. Within fourteen (14) days of the date of these Orders, that is by close of business on 26 August 2016, the Father will provide to the children’s respective schools:

    (a)a copy of these Orders; and

    (b)an authority for the release of information to the Mother, including but not limited to, school reports, school photograph order forms.

  18. Within fourteen (14) days of the date of these Orders, that is by close of business on 26 August 2016, the Mother will attend drug and alcohol counselling, or obtain the relevant referral necessary to undertake such drug and alcohol counselling. The Mother will provide written evidence of her attendance and completion of any drug and alcohol counselling undertaken by her.

  19. Within fourteen (14) days of the date of these Orders, that is by close of business on 26 August 2016, the Mother and Father will enrol in a post-separation parenting program at Centacare in (omitted) and upon completion the parents will provide evidence of their completion of the post-separation parenting program.

  20. Pursuant to section 62G(2) of the Family Law Act 1975 (‘the Act’) the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in section 60CC of the Act as well as the issues in Order 23.

  21. The parties will do such things necessary to facilitate the preparation of the report including attending upon the Family Consultant as requested.

  22. The Court Expert will:

    (a)Investigate all matters relating the welfare, care and development of the Children;

    (b)Carry out an assessment of the parents;

    (c)Carry out such assessments of the Children as considered necessary;

    (d)Provide a report to the Court.

  23. The Court Expert prepare a report to consider the following issues:

    (a)The nature of the relationship between the Children and each of their parents;

    (b)The emotional attachment of each of the Children with each of their parents;

    (c)The likely effect, if any, of any change in the circumstances of the children X, Y and Z including the likely effect of them of any separation from either of their parents or from any other child or person with whom they have been living;

    (d)The attitude of each of the parents to the Children and to their responsibilities of parenthood including but not limited to their attitudes to:

    (i)Each other;

    (ii)Encouraging and facilitate time with the other parent and the Children’s relationship with the other party;

    (iii)Denigrating the other parent in front of the Children;

    (e)The capacity of each parent to provide for the Children’s emotional and intellectual needs;

    (f)The likely effect, if any, on the emotional and psychological needs of the children X, Y and Z if either of the proposals made by the Mother and the Father respectively were implemented;

    (g)Any aspect of psychological or psychiatric health of the Mother or Father which in the opinion of the expert may have an effect and what that effect may be;

    (h)The effect on the children X, Y and Z on each parent’s proposed living arrangements and any other arrangements open to the parents;

    (i)The likely effect and significance of any different capabilities and approaches to parenting of each of the Mother and Father for the interests of the Children;

    (j)The likely effect of separation of the children X, Y and Z from each of the Mother, the Father and any other child;

    (k)The nature of the relationship and emotional attachments between the Children;

    (l)Any views expressed by any child in relation to living arrangements and any factors which the Court Expert considers are relevant to the weight that ought to be given to those wishes, including:

    (i)The child’s respective age and maturity;

    (ii)The degree of appreciation by the child of the factors involved in the issue before the Court and their longer term implication;

    (iii)The strength and duration of their views;

    (iv)The extent to which those views are based on a choice that is well thought through and appropriate as distinct from peripheral matters;

    (v)The extent to which those views are the result of pressure on the child, or of the child and how far they reflect the child’s own choice;

    (vi)The likely impact on the child of any order contrary to their views;

    (vii)Any other issue that the Court Expert considers relevant.

  24. In preparing the report, the Court Expert have access to all material filed by the parties in these proceedings. Specifically, the Court Expert shall be provided with copies of the following documents:

    (a)Initiating Application of MR GIBSON filed 17 May 2016;

    (b)Affidavit of MR GIBSON filed 17 May 2016;

    (c)Notice of Risk of MR GIBSON filed 17 May 2016;

    (d)Response of MS NOON filed 14 June 2016;

    (e)Affidavit of MS NOON filed 14 June 2016;

    (f)Notice of Risk of MS NOON filed 14 June 2016;

    (g)Material obtained by way of Orders made pursuant to s.69ZW of the Family Law Act 1975, specifically that material provided by the New South Wales Department of Family and Community Services and the New South Wales Police Services;

    (h)Hair follicle drug screen results thus far obtained and provided by each of the Mother and Father and any further results obtained following requests made by the Independent Children’s Lawyer;

    (i)Memorandum of the Child Inclusive Conference dated 4 July 2016 and released by Orders dated 8 July 2016;

    (j)Any further material filed in this matter.

  25. The parents shall refrain from making critical or derogatory remarks about the other, or their family in the presence of or within the hearing of the Children and the parents shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other, or members of their family in the presence of or within the hearing of the child.

  26. The matter be listed for Final Hearing for 2 days commencing on 21 August 2017 at 10:00am in Wagga Wagga.

  27. Evidence in chief at the Hearing be by way of Affidavit. Oral evidence in chief will only be permitted by leave. Affidavits must comply with Divisions 2.1 and 15.4 of the Federal Circuit Court Rules 2001.

  28. The Applicant Father pay any hearing fee or seek a waiver of the fee by 7 August 2017.

  29. Each party file and serve by 31 July 2017:

    (a)one affidavit setting out any further evidence in chief;

    (b)one affidavit of each lay witness intended to be relied upon at trial; and

    (c)one updated financial statement.

  30. The parties cannot rely on any material filed after 31 July 2017 without the leave of the Court.

  31. Each party file and serve on all other parties and the Court by 14 August 2017 a case outline, setting out:

    (a)the final orders sought;

    (b)a summary of the issues in dispute;

    (c)a list of documents intended to be relied upon;

    (d)a list of authorities intended to be relied upon; and

    (e)a statement of asserted assets and liabilities.

  32. An editable Microsoft Word copy of the case outline must be emailed to [email protected] by close of business on 14 August 2017.

  33. The Independent Children’s Lawyer is to prepare a chronology, to be settled with the parties, by 14 August 2017.

  34. The parties are to notify any Family Consultant or other Court appointed expert required to give evidence at the trial a minimum of 6 weeks prior to trial.

  35. Subpoenas be returnable no later than 14 August 2017.

  36. The matter be listed for pre-hearing directions on 7 August 2017 at 9:15am in Canberra with the practitioners granted leave to attend by telephone on this occasion only.

THE COURT NOTES THAT:

  1. Failure to comply with hearing directions could result in Orders for costs (including personal costs Orders) and the possibility that the Court will not hear the matter on the scheduled dates; and

  2. Should the matter settle prior to the Final Hearing, or should the Final Hearing be listed to another date, the party who put any expert on notice must notify them that they are no longer required to give evidence, at the earliest possible time. Failure to do so may result in Orders for costs (including personal costs Orders) for hearing related expenses incurred by that expert;

  3. The practitioners have telephone leave and unless advised no later than 48 hours prior to the next Court event, Ms H will be contacted on (omitted) and Ms M will be contacted on (omitted);

  4. All parties must attend the Final Hearing in person.

IT IS NOTED that publication of this judgment under the pseudonym Gibson & Noon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 773 of 2016

MR GIBSON

Applicant

And

MS NOON

Respondent

REASONS FOR JUDGMENT

Introduction

  1. On 12th August 2016, I delivered abbreviated oral reasons and pronounced Orders in relation to the four children of the relationship, W (aged 17), X (aged 13), Y (aged coming up to 7 years) and Z (aged almost 5 years).  What follows are those reasons as revised from the transcript including the Orders sought by the parties and the Independent Children’s Lawyer (“ICL”) and their respective written submissions.

  2. As just noted, there are four children who are the subject of these proceedings.  The older two, W and X, currently reside with their Father.  It is agreed between the parties that they will spend time with their Mother according to their “wishes”.   In the light of their ages and their strongly held views (as well as the detail of those views), the Court agrees that this is appropriate.

  3. The basal issue before the Court relates to interim parenting orders in relation to Y, and Z, who currently live with their Mother.  This is in circumstances where the Court has before it (a) positive drug tests in relation to the Mother, (b) a negative drug screen for the Father dated 14th June 2016, and (c) following a child inclusive conference, a short report from Ms D, dated 4th July 2016.

Orders Sought

  1. The Father confirmed that, but for a few differences (noted below), he supported the Orders as sought by the ICL.  The additional or amending Orders sought by the Father were in the following terms (with reference being to the numbering in the ICL’s Minute of Orders Sought):

    11. That the mother undergo random monthly drug screens by chain of custody urinalysis at her own expense as requested by the Independent Children's Lawyer, with such tests to be undertaken within twenty four (24) hours of receiving such a request, with results to be provided to the parties within seven (7) days. 

    12. That the father undergo random drug screens by chain of custody urinalysis at his own expense as requested by the Independent Children's Lawyer, with such tests to be undertaken within twenty four (24) hours of receiving such a request, with results to be provided to the parties within seven (7) days.  Upon the father providing two (2) clean drug screens, this Order is otherwise discharged.

    13.  The Independent Children's Lawyer be at liberty to request the mother to undertake chain of custody hair follicle screening on two (2) occasions before the final hearing of this matter, and if so requested, the following will apply:-

    a) The mother is restrained from cutting, dying or otherwise altering her hair in any way at any time between such a request being received from the Independent Children's Lawyer and submitting to hair follicle drug screening; and

    b) The mother pay the cost of her chain of custody hair follicle drug screen.

  2. The Mother’s Orders sought were as follows:

    1)   That the parties equally share parental responsibility in relation to the children:

    i.W born (omitted) 1999;

    ii.X born (omitted) 2003;

    iii.Y born (omitted) 2009;

    iv.Z born (omitted) 2011.

    2)   That the parties are required to make all decisions about major long-term issues in relation to the children jointly.

    3)   That the parties are not required to consult each other when making decisions whilst the children are in their care under this order about issues that are not major long-term issues.

    4)   That W and X be able to make their own decisions regarding where they live and the time that they spend with the parties.

    5)   That Y and Z live with the mother.

    6)   That Y and Z spend time with the father as follows:

    i. For the first, second and third weekend of each month from after school or day care Friday until the commencement of school or day care on Monday;

    ii. by telephone each Tuesday and Thursday between 6pm and 6.30pm with the father to instigate such calls and the mother to provide the children with privacy;

    iii. for half of all the school term holidays as agreed but in the absence of agreement for the first half in even numbered years and the second half in odd numbered years;

    iv. from 12 noon Christmas Eve until 2pm Christmas Day in odd numbered years;

    v. from 2pm Christmas Day to 5pm Boxing Day in even  numbered years;

    vi. when Easter falls outside the gazetted school holiday period then:

    a)  from 5pm Maundy Thursday to 5pm Easter Saturday in odd years; and

    b)  from 5pm Easter Saturday to 5pm Easter Monday in even years.

    vii. for the Father's Day weekend from 5pm Saturday to the commencement of school or day care on Monday;

    viii. at such other times as agreed.

    7)   That the Father's time with the children will be suspended for the Mother's Day weekend in each year from 5pm Saturday to the commencement of school or day care on Monday.

    8)   That the parties both, at the request of the ICL, undertake random urinalysis drug testing within 48 hours of any request being received but limited to one test per month.

    9)   That the mother attend drug and alcohol counselling and provide written evidence of her enrolment and attendance at such counselling to the solicitors and to the ICL.

    10)    That the mother do all things necessary to arrange for Z and Y to be assessed and, if appropriate, referred to counselling in relation to their exposure to family violence.

    11)    That the parties enrol in and complete a post separation parenting programme at Centacare in (omitted) and provide evidence of enrolment and completion of the programme to the solicitors and to the ICL.

    12)    Orders consistent with proposed orders 16, 20 - 26 inclusive as set out in the ICL's minute of order.

  1. The ICL’s Orders sought were extensive.  They were in the following terms:

    1)   The Father have sole parental responsibility for the children

    W (born (omitted) 1999);

    X (born (omitted) 2003);

    Y (born (omitted) 2009); and

    Z (born (omitted) 2011)

    (“the Children”).

    2)   The Children live with the Father.

    3)   The Mother spend time with the children W and X according to their wishes.

    4)   The Mother spend time with the children Y and Z as follows:

    (a) On a fortnightly basis under the supervision of the (omitted) Children's Contact Services, as can be accommodated by that service.

    5)   That, for the purposes of Orders 4(a), each of the parties will:

    a)   Contact the (omitted) Children's Contact Services within seven (7) days to arrange an appointment for assessment for suitability;

    b)   Attend the assessment;

    c)    Comply with any appointment made by the (omitted) Children's Contact Services;

    d)   Comply with all reasonable rules of the (omitted) Children's Contact Services;

    e)    Comply with all reasonable requests or directions of the staff of the (omitted) Children's Contact Services;

    f)     Pay their own fees nominated by the (omitted) Children's Contact Services.

    6)   If the parties are accepted by (omitted) Children's Contact Services following intake procedure, then the Mother is to spend time with the children Y and Z as per Order 4(a) under the supervision of that service.

    7)   The Mother’s time with the children Y and Z is to be implemented by the Father or his agent delivering the children to and collecting the children from the (omitted) Children's Contact Services at the start and end of the Mother’s time.

    8)   If the (omitted) Children's Contact Services is unable or unwilling to provide supervision as set out above, then either party shall have liberty to restore the matter to the list on seven (7) days written notice to the other party and to the Court.

    9)   The Mother is restrained from consuming illicit substances within twelve (12) hours of her spending time with the children or at any time during.

    10)    The Father is restrained entirely from consuming illicit drugs.

    11)    Both parties are to undergo random monthly drug screens by chain of custody urinalysis at their own expense as requested by the Independent Children’s Lawyer, with such tests to be undertaken within twenty-four (48) [sic: 24] hours of receiving such a request, with results to be provided to the parties within seven days.

    12)    The Independent Children’s Lawyer be at liberty to request the parties undertake chain of custody hair follicle drug screen on two occasions before final hearing of this matter, and if so requested, the following will apply:

    a)   The Mother and Father are restrained from cutting, dying or otherwise altering their hair in any way at any time between such request being received from the Independent Children’s Lawyer and submitting to hair follicle drug screen; and

    b)   Each party pay the cost of their respective chain of custody hair follicle drug screen.

    13)    The Mother be at liberty to communicate with the Children by telephone between 5.00PM and 6.00PM on:

    a)   Each Monday and Thursday; and

    b)   Christmas Day and Easter Sunday; and

    c)    The day of W’s birthday, being (omitted); and

    d)   The day of X’s birthday, being (omitted); and

    e)    The day of Y’s birthday, being (omitted); and

    f)     The day of Z’s birthday, being (omitted).

    14)    For the purposes of Order 13, above, the Mother will initiate the telephone call to the Father’s landline or mobile telephone and the Father will provide all such reasonable assistance to enable telephone communication to occur. Nothing in this Order requires the children W or X to participate in telephone communication with the Mother against their wishes.

    15)    The Father will communicate with the Mother in relation to the Children’s health and wellbeing, medical emergencies and treatment, and will notify the Mother of any injuries or hospitalisation suffered by any child as soon as practicable and by any means necessary.

    16)    Each parent will keep the other informed of their current residential address, mobile and landline telephone numbers, and any available email addresses, and will advise the other parent of any change to those details in writing within twenty-four (24) hours of such change occurring.

    17)    Within fourteen (14) days of the date of these Orders, the Father will provide to the Children’s respective schools:

    a)   a copy of these Orders; and

    b)   an authority for the release of information to the Mother, including but not limited to, school reports, school photograph order forms.

    18)    Within fourteen (14) days of the date of these Orders, the Mother will attend drug and alcohol counselling, or obtain the relevant referral necessary to undertake such drug and alcohol counselling. The Mother will provide written evidence of her attendance and completion of any drug and alcohol counselling undertaken by her.

    19)    Within fourteen (14) days of the date of these Orders, the Mother and Father will enrol in a post-separation parenting program at Centacare in (omitted), and upon completion the parents will provide evidence of their completion of the post-separation parenting program.

    20) Pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised, for the purposes of of the preparation of a Family Report, such report to be released by a date to be advised.

    21)    The parties will do such things necessary to facilitate the preparation of the report, including attending upon the Court Expert as requested.

    22)    That the Court Expert:

    a)   Investigate all matters relating the welfare, care and development of the Children;

    b)   Carry out an assessment of the parents;

    c)    Carry out such assessments of the Children as considered necessary;

    d)   Provide a report to the Court.

    23)    That the Court Expert prepare a report to consider the following issues:

    a)   The nature of the relationship between the Children and each of their parents;

    b)   The emotional attachment of each of the Children with each of their parents;

    c)    The likely effect, if any, of any change in the circumstances of the children X, Y and Z including the likely effect of them of any separation from either of their parents, or from any other child or person with whom they have been living;

    d)   The attitude of each of the parents to the Children and to their responsibilities of parenthood, including but not limited to their attitudes to:

    i.Each other;

    ii.Encouraging and facilitate time with the other parent and the Children’s relationship with the other party;

    iii.Denigrating the other parent in front of the Children;

    e)    The capacity of each parent to provide for the Children’s emotional and intellectual needs;

    f)     The likely effect, if any, on the emotional and psychological needs of the children X, Y and Z if either of the proposals made by the Mother and the Father respectively were implemented;

    g)   Any aspect of psychological or psychiatric health of the Mother or Father which in the opinion of the expert may have an effect and what that effect may be;

    h)   The effect on the children X, Y and Z on each parent’s proposed living arrangements and any other arrangements open to the partents [sic: “parents”];

    i)     The likely effect and significance of any different capabilities and approaches to parenting of each of the Mother and Father for the interests of the Children;

    j)     The likely effect of separation of the children X, Y and Z from each of the Mother, the Father and any other child;

    k)    The nature of the relationship and emotional attachments between the Children;

    l)     Any views expressed by any child in relation to living arrangements and any factors which the Court Expert considers are relevant to the weight that ought to be given to those wishes, including:

    i.The child’s respective age and maturity;

    ii.The degree of appreciation by the child of the factors involved in the issue before the Court and their longer term implication;

    iii.The strength and duration of their views;

    iv.The extent to which those views are based on a choice that is well thought through and appropriate as distinct from peripheral matters;

    v.The extent to which those views are the result of pressure on the child, or of the child and how far they reflect the child’s own choice;

    vi.The likely impact on the child of any order contrary to their views;

    vii.Any other issue that the Court Expert considers relevant.

    24)    That, in preparing the report, the Court Expert have access to all material filed by the parties in these proceedings. Specifically, the Court Expert shall be provided with copies of the following documents:

    a)   Initiating Application of MR GIBSON filed 17 May 2016;

    b)   Affidavit of MR GIBSON filed 17 May 2016;

    c)    Notice of Risk of MR GIBSON filed 17 May 2016;

    d)   Response of MS NOON filed 14 June 2016;

    e)    Affidavit of MS NOON filed 14 June 2016;

    f)     Notice of Risk of MS NOON filed 14 June 2016;

    g) Material obtained by way of Orders made pursuant to s 69ZW of the Family Law Act 1975, specifically that material provided by the New South Wales Department of Family and Community Services and the New South Wales Police Services;

    h)   Hair follicle drug screen results thus far obtained and provided by each of the Mother and Father and any further results obtained following requests made by the Independent Children’s Lawyer;

    i)     Memorandum of the Child Inclusive Conference dated 4 July 2016 and released by Orders dated 8 July 2016;

    j)     Any further material filed in this matter.

    25)    The parents shall refrain from making critical or derogatory remarks about the other, or their family, in the presence of or within the hearing of the Children and the parents shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other, or members of their family, in the presence of or within the hearing of the child.

    26)    This matter be listed for final hearing of two days duration on dates to be advised by this Honourable Court.

The S.11F Report

  1. This Report from Ms D was released to the parties on 8th July 2016.  Because of its comprehensive nature, it is as well to set out the Report in its entirety but with certain emphases being added by the Court.  Also, on a basis similar to that outlined by Warnick J in SPS & PLS, the Report should be taken to be admitted into evidence.[1]  In terms, the Report provided as follows:[2]

    [1] See SPS & PLS (2008) FLC ¶93-363.

    [2] For ease of reference, the Court has added paragraph numbers to the Report rather than keeping the “bullets” that were in the original Report.  A copy of the Report with paragraphs numbers added will be made available to the parties and the ICL electronically.

    AGREEMENTS REACHED

    1)   The parents concur that W should continue to live with Mr Gibson and spend time and communicate with Ms Noon, according to W’s wishes.

    2)   In addition, Ms Noon accepts and understands that X currently has a strong preference to continue to live with Mr Gibson and she (Ms Noon) does not think that the child should be compelled to live with her.   However, Ms Noon is seeking to spend some structured time during the day with X, perhaps for an hour or two after school once a week (which could occur in a public setting, such as a coffee shop).

    3)   Ms Noon indicated that she is willing to submit to regular urinalysis drug screens (to demonstrate that she does not use crystal methamphetamine) and to attend drug and alcohol counselling to address issues surrounding her longstanding cannabis habit.

    ISSUES IN DISPUTE

    4)   Y’s and Z’s living arrangements, in the interim and over the longer term.  Mr Gibson is seeking that Y and Z live with him and spend time with Ms Noon during the week.  Mr Gibson proposed that Ms Noon care for Z during the day while he (Mr Gibson) attends work and that she come to his home in the mornings to get Y off to school and to collect Z. (Mr Gibson commences work at about 5.30am, or earlier).  Ms Noon is seeking that Y and Z continue to live with her and spend time with Mr Gibson for three out of four weekends and for dinner once each week.  Ms Noon said that she is unwilling to attend at Mr Gibson’s house.

    5)   Whether or not Ms Noon poses a risk to the children essentially in relation to drug usage, particularly in relation to crystal methamphetamine (“ice”) usage.  This relates to Mr Gibson’s allegation that Ms Noon commenced using crystal methamphetamine (in about April/May 2015) and that the mother’s alleged use of the substance led to her displaying angry and aggressive behaviours.  He said that Ms Noon’s alleged anger was initially directed mainly towards W, but there have since been incidents involving him and X.  Ms Noon said that she has used crystal methamphetamine on a recreational basis on about three occasions in the last six months.  Ms Noon and Mr Gibson both appear to concur that Ms Noon has a chronic cannabis habit. 

    RISK FACTORS

    Substance Usage:

    6)   As outlined above, the mother denies current use of crystal methamphetamine.  In relation to this, the mother has submitted to a hair follicle test which appears to indicate a clear result in one section of the hair sample and not in the other.  The results may need to be clarified for the Court’s benefit.  As stated, the mother is willing to submit to regular urinalysis drug screens.

    7)   As outlined above, the mother acknowledges a long standing cannabis habit.  The father said that the mother is very angry and irritable prior to her needing to use the drug and that she needs to use cannabis about every three to four hours.  The mother refutes this level of cannabis use.  As stated, the mother is willing to attend drug and alcohol counselling to help her to address the issue.

    8)   The father alleges that the mother drinks alcohol while driving, including when the children are in the car.  The mother refutes this.

    Family Violence and Child Abuse:

    9)   Disputed family violence issues involving each parent.  Critical incidents appear to have occurred leading up to/and around the time of the parents’ separation and since the parents’ separation. 

    10)    There is a 12 month family violence order protecting the mother from the father, which Ms Noon said was taken out by the police.  The mother alleged that the father has been physically violent towards her, on a few occasions.  She alleged that the father put his hand around her neck, pushed her over and twisted her finger, causing serious injury to her finger.  The father said that, in relation to the mother’s injury, he was trying to defend himself from the mother who was allegedly “attacking” him.  The mother also alleged that, on another occasion, the father tried to run her over in the driveway.   Ms Noon also alleged that, post separation, she suffered harassment from the father.  Reportedly, Mr Gibson was charged with common assault and breach of the family violence order and when the charges were heard he was found not guilty of all charges.

    11)    There is a current family violence order protecting X from the mother (issued in October 2015).  The father alleged that, in October 2015, when the mother was affected by crystal methamphetamine she was verbally and physically violent towards X.  He alleged that the mother “twisted” the child’s arm and pulled the child’s hair.  The mother refutes this.  She acknowledges that there was a verbal confrontation between her and X.  The mother said that she was highly stressed leading up to the parents’ separation related to personal issues involving her and the father.   The mother has been charged with breaching the order, which Ms Noon said that she is contesting.

    12)    The father alleged that the mother has been physically violent towards him.  This included an occasion when he alleged that Ms Noon physically “attacked” him, which he thinks occurred in the context of the mother using crystal methamphetamine. 

    13)    The father alleged that, prior to the parents’ separation, the mother continually verbally abused W, and on one occasion, punched him, which is the reason that W moved out of the former family home before the parents’ separation.   The father alleged that, on one occasion, post separation, the mother seriously verbally abused W.  The mother said that she and W have a long history of arguing between themselves but that, otherwise, over the years, they have shared a close bond.

    14)    Overall, the father alleged that, for years, the mother has been argumentative and easily aroused to anger.  However, the father alleges that the mother’s level of anger and mood swings severely elevated after she started using crystal methamphetamine.

    COPARENTING RELATIONSHIP

    15)    The parents were in a relationship for about 18 years and their separation is relatively recent. 

    16)    The co-parenting relationship and communication is damaged.  At this stage, the parents seem to be unable to be together without verbal disputes occurring.  In the waiting area of the Registry, Ms Noon was asked by a security officer to move away from Mr Gibson as she appeared to be making critical comments to the father.  Ms Noon said that she was referring to parenting issues associated with W.  She alleged that Mr Gibson was making signs to her (such as sniffing) and that he was purposefully tormenting her by suggesting that she was using drugs.  The children were all present. 

    17)    Mr Gibson alleged that Ms Noon “screams and yells” at him, in the presence of the children when changeovers occur at the mother’s house.  Ms Noon denies that she instigates the verbal family violence.  She alleged that the father routinely denigrates her at changeovers, for instance, calling her “an ice addict” or “druggo” and asking when she is having her “next hit”, in the children’s presence.  The father conceded that he has called the mother derogatory names at changeovers, on a few occasions, but he said that this was only after she was verbally abusive towards him.

    18)    The mother alleged that the father denigrates her to the children and that he is trying to align W and X with him, against her. 

    19)    There is also a financial dispute involving the parents, which appears to be causing angst, particularly for Ms Noon.

    20)    Mr Gibson said that, post separation, Ms Noon changed Y’s school, without his permission.  His clear preference is that Y be returned to his previous (omitted) school in (omitted). 

    THE CHILDREN W (aged 16 years), X (aged 13 years), Y (aged 6 years) and Z (aged 4 years)

    21)    Until around the time of the parents’ separation, Ms Noon provided the children’s primary care and Mr Gibson worked long hours in paid employment (apparently about 10 hour days).

    22)    W and X have lived with Mr Gibson since around the time of the parents’ separation (October 2015).  W had already moved out of the former family home and was living with the paternal grandmother prior to the parents’ separation, due to him having problems with his relationship with Ms Noon.

    23)   W and X were interviewed separately but they share a common view about the family situation.  They both presented as thoughtful and mature.  W and X reported that they are aware that their mother has a longstanding cannabis habit.  They each reported that, in spite of this, they received good quality care and attention from their mother.  They each said that, overall, they feel that their mother was a good mother to them.  From their joint perspectives, things started to deteriorate about several to 12 months ago, when they believe that their mother started to use crystal methamphetamine.  They reported that their mother suffered mood swings and was more inclined to be angry and aggressive. X reported that, just prior to the parents’ separation, she found two bags of “ice” in her mother’s suitcase.

    24)    W and X are clear that they love their mother but, at this stage, neither W nor X want to spend time with Ms Noon. 

    25)    X said that she would be concerned that, if she were to spend time with Ms Noon, her mother may become angry with her and yell at her.  X said that to avoid this she may spend time with Ms Noon for short periods in a public setting.  However, X stressed that she does not want to participate in any structured time arrangements until she sees that her mother is getting professional help to address drug use issues.  X’s views appear to be reasonable and based on her perceived experience of her family situation. 

    26)    When asked, neither W nor X were interested in attending counselling.

    27)    Y presented as an easy going and pleasant child.  When asked, he reported that, prior to his parents separation, Mr Gibson and Ms Noon “argued a lot”.  He said that this made him feel “sad”.  When asked about the current situation, Y said “Mum and Dad argue, but only when they meet up”. 

    28)    In relation to his living arrangements, Y reported that he lives with Ms Noon and spends weekends with Mr Gibson, but he did not indicate a clear understanding about why this is the case.  When asked, Y did not indicate having any concerns or worries in relationship [sic] to his time with either parent.

    29)    As stated, Z was not interviewed.  Mr Gibson commented that he has noted that Z presents as being angrier than was the case before the parents’ separation.

    FUTURE DIRECTIONS

    30)    The Court is likely to be assisted by regular urinalysis testing of the mother.  While this child inclusive conference can only offer preliminary assessment, if the results are positive in regards to crystal methamphetamine, it is suggested that the Court consider reviewing the current arrangements. 

    31)    It appears evident there have been ongoing verbal family violence incidents during changeovers, to which the children have been exposed, which is highly concerning.  Y and Z would likely benefit from structured arrangements where the parents do not come into direct contact at changeovers. This issue was discussed with the parents at the CIC.  Ms Noon and Mr Gibson appear to believe that if changeovers were to occur in a public place, ie at the IGA in (omitted) and McDonalds in (omitted), this would considerably reduce the likelihood of verbal family violence incidents.

    32)    That Ms Noon attend drug and alcohol counselling and that she provide written evidence of her attendance at drug and alcohol counselling.

    33)    That each parent complete a post separation parenting program, at Centacare in (omitted).

    34)    At this stage, the impression formed is that X would be willing to spend structured time with Ms Noon, if Ms Noon were to seek treatment in relation to her drug use, which appears reasonable.  It is also suggested that the parents be referred to the Family Relationship Centre in (omitted) to try to develop parenting arrangements particularly in relation to X spending time with Ms Noon. 

    35)    That Y and Z be referred to counselling, in relation to their exposure to family violence.

    36)    This matter may benefit from a drug and alcohol assessment of the mother completed by an expert.

    37)    A family report for defended hearing purposes.

    38)    Subpoenaed material, including police, child protection and school records.

Other Evidence

  1. For current purposes, it is important to record the following drug test results, and other records, which have been provided, thus far, to the Court:[3]

    (a)Hair Follicle Report by Mr G for Mr Gibson, dated 10th June 2016 (results – negative);

    (b)Hair Follicle Report by Mr G for Ms Noon, dated 27th June 2016 (results – positive);

    (c)annexing Affidavit of Mr E, filed 29th July 2016 commenting on the Mother’s drug tests;

    (d)Affidavit of the Mother’s solicitor, filed 5th August 2016, the Mother’s urine drug test results (dated 30th July 2016);

    (e)Letter from (omitted) Medical Centre (dated 28th July 2016);[4]

    (f)A first semester 2016 school report (Year 1) in relation to Y from (omitted) School.

    [3] Each of the drug test results listed should be taken to be admitted into evidence on the basis of the same principles set out earlier by Warnick J in SPS & PLS.

    [4] This letter has attached to it a Patient Assessment, which records, among other things, that the Mother’s attention/concentration is “poor”, her memory is “poor”, her insight is “other”, her mood is “variable”, her appetite is “variable”, her motivation/energy is “up and down”, and her anxiety symptoms are “other” (i.e. not “normal”).

The Father’s Written Submissions

  1. The Father’s submissions were in the following terms:

    1)   The issues for determination at the Interim Hearing are:-

    a)   Which parent the children shall live with; and

    b)   The time that the children shall spend with the other parent.

    2)   The father alleges at paragraphs 11, 15-23, 32 and 45 that the mother is/has been consuming illicit drugs, including marijuana and methamphetamines. At paragraph 27 of her Affidavit filed on 14 June 2016 the mother denies methamphetamine use.

    3)   The mother’s hair follicle testing results collected on 15 June 2016 indicate that she has consumed methamphetamines and marijuana in the six month period prior to the collection of the sample for testing.  In addition, the Child Inclusive Conference Memorandum to Court states that the mother admitted she had used crystal methamphetamine ‘on about three occasions in the last six months.’

    4)   In his Affidavit of 29 July 2016, Mr E, states at paragraph 11 that the mother’s hair follicle testing results suggest that the mother consumed methamphetamines in the three (3) month period prior to the testing being undertaken.  During that three (3) month period, the mother had the youngest two children, Z and Y, in her primary care, including a period between 10 April 2016 and 13 May 2016 where they did not spend time with their father. 

    5)   We do not know the amount or frequency of the mother’s consumption of illicit drugs. However, the mother’s denial in her Affidavit and her comments to the Family Consultant are in direct conflict with the results of her hair follicle testing.  This must call into question the veracity of any evidence given by the mother.  It is submitted that the best evidence regarding the mother’s drug use is that of the older children in their comments to the Family Consultant (Child Inclusive Memorandum to Court page 4)

    6)   The Child Inclusive Conference Memorandum to Court states that neither W nor X wish to spend time with their mother at this stage.  It appears that the parties are in agreement that W should continue to live with his father and spend time and communicate with the respondent mother in accordance with W’s wishes.

    7)   X indicated to the Family Consultant that she does not want to participate in any structured time arrangement with her mother until her mother obtains professional help to address her drug use issues.  An Interim Apprehended Violence Order (‘ADVO’) was made on 12 October 2015, naming X as the protected person and the mother as the defendant.  The mother was then charged with breaching the Interim ADVO protecting X.   The breach of ADVO was recently heard in the Tumut Local Court on 16 July 2016, however, at the time of preparing this document we do not know the outcome of these proceedings. 

    8)   The siblings have been separated since about October 2015, when W left the matrimonial residence. Given that W and X are currently residing with their father and it is likely that they will continue to do so (given their views and ages as outlined above), we submit that Z and Y should also reside with their father and with their elder siblings to promote important sibling relationships (s60CC(3)(d)(ii)).

    9)   The risk of harm to Z and Y in remaining in their mother’s care far outweighs, it is submitted, any effects on the children of separation from their mother.

    10)    The mother, through her drug use and violence perpetrated against X, has demonstrated that she [sic: does] not have sufficient capacity to provide for the needs of the children, including their emotional and intellectual needs. It is the father’s view that the children are at a significant and unacceptable risk of harm should they remain in their mother’s care.

The Mother’s Written Submissions

  1. The Mother submitted as follows (emphasis in original):

    Issues in dispute:

    A. Y and Z’s ('the boys') short term living arrangements

    B. The mother's drug usage and whether is poses a risk to the boys

    1)   The applicant father's interim proposal as outlined in his Initiating Application seeks orders that the four children of the relationship live with him and spend time with the respondent mother, subject to clean random drug screens, each alternate weekend and half of each of the school holidays.

    2)   It is submitted that this proposal is not a genuine proposal.

    3)   In his affidavit affirmed 8 May 2016 at paragraph 11 the father states that the mother 'consumed marijuana heavily.'  Although the amount of marijuana is disputed by the mother, she admits to the long term use of the drug.

    4)   In circumstances where the father acknowledges that the mother was 'happy and a nicer person to live with when she was using marijuana' and he 'observed her to function well with day to day life whilst consuming marijuana on a daily basis' the condition imposed on the mother to provide clean random drug screens before she is able to spend time with the children is disingenuous.

    5)   The father reported to Ms D, Family Consultant, that he 'works long hours in paid employment (apparently about 10 hour days)' (page 4 of the Family Consultant Memorandum to Court dated 8 July 2016).  In that document the father's proposal for Y and Z’s ('the boys') living arrangements differs to the proposal set out in his Initiating Application in that he proposes the boys live with him and spend time with the mother during the week.  This, he considered, would involve the mother going to the father's home at around 5am each weekday morning to 'get Y off to school and to collect Z.'

    6)   It is submitted that such a proposal is wholly inconsistent with the father's alleged concern for the safety of the boys whilst in the mother's care.

    7)   The mother says that prior to the commencement of the current proceedings the father had never previously raised concerns about the boys being in her care.  The parties attended mediation at the Family Relationship Centre in March 2016 and a parenting plan was agreed to that provided specifically for Z and Y to live with the mother and spend time with the father (para 48 of the mother's affidavit sworn 16 June 2016).  The mother states at paragraph 49 that 'At no time during that mediation did Mr Gibson raise concerns for the boys' safety or my capacity to properly care for them.'

    8)   There was considerable correspondence between the parties' respective solicitors between October 2015 and May 2016 when the father's application was filed and, it is submitted, there was no issue raised by the father in any of that correspondence about the boys' care whilst living with the mother.

    9)   Although the father alleges that the mother has been chronically abusing the drug ICE from as early as Easter (April) 2015, resulting in mood swings and alleged instances of violence, it should be noted that when the parties separated in September 2015 the father left the boys in the mother's care, despite being 'very concerned about their safety' in the mother's care because there was 'no room' and it was 'not practical' for the boys to live with him (para 28).  The father moved into a four bedroom home in December 2015 (para 35).

    10)    The mother acknowledges a chronic use of marijuana for the entirety of the relationship.  It is submitted, however, that there is no evidence that the marijuana use has had an adverse impact on the mother's parenting capacity. 

    11)    The father acknowledges in his affidavit at paragraph 11 that the mother's cannabis use did not impede on her capacity to parent. 

    12)    In the Family Consultant's Memorandum to Court both W and X were aware of their mother's 'longstanding cannabis habit' (page 4) but they still received 'good quality care and attention from their mother .... and feel that their mother was a good mother to them.'

    13)    The father's alleges that the mother became a heavy user of drugs, 'in particular ice' (para 45).   This allegation, it is submitted, is not supported by the hair follicle test results dated 24 June 2016 and the Court is referred to the affidavit of Mr E sworn 12 July 2016. 

    14)    In her affidavit sworn 14 June 2016 at paragraph 27 the mother denies using ICE as alleged by the father.  Whilst this was clearly incorrect given the hair follicle test results received, the mother denies that her use of ICE was as ongoing, chronic or as heavy as that alleged by the father.  It is submitted that this is supported by the test results received noting that Sample B provided by the mother tested negative for methamphetamines.

    15)    It is submitted on behalf of the mother that her use of ICE was of a recreational nature only and did not at any time impact on her capacity to parent the children.  She acknowledges the apparent dangers associated with ICE use and accepts that she would benefit from drug and alcohol counselling to address and take in hand the issues.

    16)    It is submitted that the mother is not a risk to the boys or their safety.  There is no evidence to establish that the boys are at an unacceptable risk of experiencing harm while living primarily with the mother.  There is no evidence to suggest that she lacks capacity to provide for the boys' emotional and intellectual well being and it is further submitted that she is able to provide the boys with a safe, stable and secure environment and capable of meeting their respective emotional and intellectual needs.

    17)    It is not disputed that the mother has been the primary carer for the children since birth.  We submit it is to the benefit of, and in the boys' best interests, to remain in the mother's primary care.

    18)    To further satisfy the Court, there is independent review of the boys' well being available through school and pre-school records.  The mother agrees to undergo regular drug screening and her proposal for the boys to spend time with their father provides for more time than is currently in place. 

    19)    The mother has so far complied with the recommendations of the Family Consultant in that she has made enquiries of and agrees to attend drug and alcohol counselling, a post separation parenting programme and has an appointment with a psychologist from which arrangements will be made for Z and Y to attend counselling if considered appropriate.

The ICL’s Written Submissions

  1. Like her Orders sought, the ICL’s written submissions were detailed, thus (emphasis in original):

    1)   This matter concerns the parenting of the parties’ four (4) children: W (aged 17), X (aged 13), Y (aged 6), and Z (aged 5). The parties also seek Orders with respect to property.

    2)   The (Applicant) Father seeks Orders on an interim and final basis that all children reside with him. The (Respondent) Mother seeks Orders on an interim and final basis that the children X, Y and Z reside with her, and W be at liberty to determine where he lives and the time he spends with the parties. The two younger children, Y and Z, currently reside with the mother.

    3)   The ICL has had the benefit of interviewing the four children of the relationship.

    4)   The Father asserts to having quit smoking marijuana about ‘two or three months ago’ following X and W coming to reside with him on a fulltime basis (at 12). The Father’s hair follicle analysis (31 May 2016) retuned a negative result for the range of drugs tested. 

    5)   The Father observed changes in the mother’s physical appearance and disposition, and witnessed the Mother verbally assault W and verbally and physically assault X. The Father observed the Mother associating with a reputed ICE user (the Father’s cousin). The child X showed the Father photographs of ICE found by her in the Mother’s suitcase and a bag of ICE she located in the console of the car (and attributed to the Mother). The Father believes the Mother is ‘heavily consuming drugs, in particular ICE’ (at 45).

    6)   There are questions of credibility with respect [sic: “to”] statements made by the Mother and her consumption of illicit substances. The Mother asserts that she does not smoke marijuana in front of the children (at 20). The Mother denies using a bag of ICE bought by her for the purpose of a school reunion in Melbourne (at 27).

    7)   On 15 June 2016, the Mother’s hair follicle specimen returned a positive result for Amphetamines and THC Metabolite. The Mother conceded to the Family Consultant (on 4 July 2016) having used crystal methamphetamine ‘on about three occasions in the last six months’, notwithstanding contrary statements made by her in her Affidavit.

    8)   The Mother attributes the Father as responsible for the difficulties in her relationship with W and X (at 64, 74). The Mother does not seem to demonstrate insight with respect [sic: “to”] her own conduct and how that impacts the children.

    9)   There are incidents of Family Violence resulting in two ADVO. The Father was charged and found not guilty of common assault and breach of the ADVO. On 29 July 2016, the ICL was notified that the Mother has recently appeared in the Tumut Local Court in relation to alleged breach of the ADVO.  

    10)    The Family Consultant’s records of statements and observations with respect the children W and X are consistent with statements made by them to and observations of the ICL. Both W and X report having seen the Mother smoke from a bong and being under the effects of ICE. The children reported that the Mother ‘goes off’’, ‘does stupid things … like beating her head on the ground’, ‘would be calm (when) on marijuana’, and would smoke marijuana ‘all day, including before school’, on occasion making the children late for school. The ICL was informed by the children that ‘when stoned (the Mother) was the nicest person going’ however notes the comment ‘it doesn’t make you feel good knowing you can only talk to your mum when she is stoned.’ The children Y and Z appear to have no awareness of the Mother’s drug issues and did not disclose any matter of risk to the ICL.

    11)    The Mother’s urinalysis results of 29 July 2016 demonstrate a positive test result for ‘Cannabinoids’ only.

    12)    Affidavit of Mr E, Laboratory Director of (omitted) Laboratories, confirms the Mother’s usage of Methamphetamine occurred within approximately 90 days of the date of collection of her hair sample, specifically 15 June 2016.[5]

    13)    Issues with respect to the Mother’s use of illicit substances, including habitual use of marijuana and ‘recreational’ use of methamphetamines (ICE), and extent thereof, create an unacceptable level of risk to the welfare of Y and Z. The ICL cannot support Y and Z remaining in the Mother’s care while these matters remain unresolved.

    15) The ICL submits that it is not in the best interests of the children X, Y and Z for them to spend unsupervised time with the Mother or to be in the Mother’s care. The ICL seeks Orders for the children Y and Z to be returned to the Father forthwith; for all children to live with the Father; and pending further Order, spend supervised time with the Mother at (omitted) Children's Contact Services.

    [5] Affidavit of Mr E sworn 12th July 2016.

Consideration & Disposition

  1. There is significant and on-going authority in relation to how a Court should consider the making of interim Orders.  Relatively recently, statements of principle and comment on the conduct of interim proceedings have been set out in cases such as Vanzin & Vanzin, Crouper & Mitchell, Banks & Banks, and Perry & Perry.[6]  From these cases, it is sufficient for current purposes to note the summary of principle from Banks & Banks.  At [23] and [24], the Full Court said:

    [6] Vanzin & Vanzin [2014] FamCAFC 245, Crouper & Mitchell [2014] FamCAFC 246, Banks & Banks (2015) FLC ¶93-637, and Perry & Perry (2015) FLC ¶93-669.

    [23] Given the appeal will be allowed on the basis of a miscarriage in the conduct of the hearing below, it will be instructive to set out what the Full Court said in Goode and Goode (2006) FLC 93-286 at 80,903 concerning the way in which an interim parenting application should be determined:

    [81] In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.

    [82] In an interim case that would involve the following:

    (a) identifying the competing proposals of the parties;

    (b) identifying the issues in dispute in the interim hearing;

    (c) identifying any agreed or uncontested relevant facts;

    (d) considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

    (e) deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

    (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

    (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;

    (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;

    (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;

    (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and

    (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

    [24] Subject to what has since been said in SCVG & KLD (2014) FLC 93-582, we adopt this citation from Goode. We note only that it is the making of an order for equal shared parental responsibility that triggers the requirement to consider making orders for equal time or substantial and significant time.

  1. I am also conscious of the instruction from Brown J in Mazorski v Albright, which has been cited with approval in various Full Court decisions not infrequently since.  Here I intend to refer to Brown J’s comments about the “twin pillars” of Part VII of the Family Law Act 1975 (“the Act”) and what is comprehended by a “meaningful relationship” between children and parents.[7]

    [7] Mazorski v Albright (2008) 37 Fam LR 518 at [3] – [6] and at [20] – [26]. The comments of Brown J have been cited with approval by the Full Court in, among other cases, McCall v Clark (2009) 41 Fam LR 483 at [121].

  2. I am also acutely conscious of the statutory requirement in s.60CC(2A) to give primacy to the protection of children from the relevant harm(s) identified in s.60CC(2); it is that primacy of protection from risk that informs the Court’s consideration of matters currently before it. Indeed, having regard to the admittedly untested but significant independent evidence (e.g. the drug tests before the Court), the residence and ‘time-with’ issues must, in my view, be seen through the statutory requirement of protection of the children above all else. The requirement of “protection” was addressed, it may be said (I hope fairly), somewhat tangentially by Counsel for the Mother. The specific section – s.60CC(2A) – was not however mentioned in his submissions.

  3. Counsel for the Mother focussed his oral submissions primarily on two matters: (a) the children had never suffered actual harm while in the Mother’s care,[8] and (b) the lack of plans or detail from the Father should all the children go into his care. I suggested to Counsel that his submissions sounded somewhat akin to a “plea in mitigation.” There was barely any attention given to the disturbing comments by X as recorded in the ICL’s submissions following her interviews with the children. Nor was there any relevant reference to the current ADVO in place that protects X from her Mother. Such omissions in relation to X’s comments, the relevance and significance of the ADVO and in the light of the adverse hair follicle test results were significant as well as unfortunate.

    [8] It was particularly in that context that he tendered the school report of Y, noted earlier in these reasons.

  4. I should also accent that the Family Consultant described the two older children as “thoughtful and mature”.  Accordingly, I am rather more disposed, even on an interim basis, to accept as very significant considerations their concerns and observations.[9]

    [9] In this regard see s.60CC(3)(a) and (b).

  5. As already noted, the Mother’s drug tests were commented upon in the affidavit of Mr E, filed 29th July 2016 and set out in the earlier Report by Mr G (dated 27th June 2016) which confirmed that the Mother tested positive for amphetamine use; an affidavit from the Mother’s solicitor of 5th August 2016 (also previously noted) confirmed the Mother having tested positive for cannabis.

  6. As is clear from the Orders sought set out earlier in these reasons in short both the Father and the ICL seek that all children live together with him.  Each of them contend that the risk to the younger children while-ever the Mother continues with her drug-taking, constitutes an unacceptable risk.  In my view, this risk arises not only in terms of the Mother’s parenting capacity but also in relation to exposing the children to drugs – which is exemplified by X finding a cache of drugs belonging to her Mother as well as drug paraphernalia.  Given also the young ages of Z and Y, there must remain (on the evidence available on an interim basis) a risk of the younger two children also being exposed to the same unacceptable risks of exposure to harms just noted.

  7. In these circumstances, it was contended that the Court should act protectively towards the younger children.  Such submissions were, of course, predicated upon the older two children continuing to live away from their Mother.

  8. The Mother’s submissions focussed essentially on two matters (noted earlier): (a) that the children had come to no harm while they were in the Mother’s care and while she was certainly using [at least] cannabis; and (b) the Father had not put any proposal or evidence to the Court in relation to the care of the children where he is in full-time employment.

  9. Given the adverse drug tests of the Mother, in my view, it is not to the point to submit that the children had not come in to harm while in her care.  Respectfully, that is somewhat akin to saying that an explosive device had not yet caused any harm.  The fact that such a device had not yet detonated does not provide comfort or extinguish the risk, nor does Counsel’s submission obviate the Court’s statutory, protective responsibility towards the children.

  10. Further, although the Mother has been the children’s primary carer, the risks to the children, in my view, outweigh the children remaining in her care on an interim basis.  Indeed, the risks are exacerbated by the Mother’s apparent disinclination to cease her drug-taking whilst the children are in her care.  And clearly the older two more worldly-experienced children have voted with their feet to remove themselves from their Mother’s care.

  11. In my view, the protective responsibilities of the Court require in particular the proper protection of Y and Z from the risk of physical and psychological harm.  And to return to the Mother’s submission that the children had not suffered any harm while in her care and implicitly while she was taking drugs, shows little insight into the risks of drug-taking and the impaired functioning such conduct has generally, including on responsible parenting.  X’s report to the ICL that “when stoned the Mother was the nicest person going” is already demonstrative of the psychological impact on the children.

  12. Further, the same comment by X reflects her relationship with her Mother.  In circumstances where the verbal and physical abuse by the Mother against X resulted in the NSW Police applying for an ADVO, the Court has no choice but to act protectively towards the younger children, Y and Z.

  13. On an interim basis, the Court is satisfied that in living with their Father, the children are shielded from the risky behaviour of the Mother.  Further, the current arrangement of living with the Father and spending limited time with the Mother will also hopefully offer her some respite and opportunity to seek the assistance that she appears to require to deal with her drug habit.  Indeed, the Mother’s recreational use of drugs – marijuana and ICE – demonstrates a lack of parental responsibility and appreciation of her parental role.  Certainly, it appears that the Mother’s drug use is a higher priority than her care of the children.  This is to be contrasted with the Father’s clear drug tests and his protective action in bringing these proceedings.

  14. For my part, in addition to what has already been said in these reasons, the submissions (written and oral) from the Father and the ICL should be accepted.  In the face of positive drug screens, the Court must act protectively towards the children.  In my view, the weight of (a) the detail in the s.11F Report, (b) the comments of the children (especially the older children W and X), and (c) the Mother’s positive drug screens, all point to the necessity of the Court to take a very precautionary, protective and watchful approach in relation to the parenting Orders on an interim basis.

  15. Further, in terms of other relevant considerations in Part VII of the Act, the separation of siblings is an important factor for the Court.[10]  Given how strongly and clearly W and X have outlined their positions with respect to spending time with their Mother – which the Mother seems to accept without too much demur – in my view it is highly desirable that all the children live together at the present time.

    [10] See s.60CC(3)(d).

  16. Issues of practicality do not, on the limited evidence before the Court, pose too many problems.[11]

    [11] See s.60CC(3)(e).

  17. The Orders as sought by the ICL are, in my view, in the children’s best interests.  They allow for the children to spend time with the Mother but to be in the Father’s primary care on an interim basis.  One might hope that the Mother is able to provide clear drug screens very soon in which eventuality the Court might reasonably expect that a further Application might be made to relax the supervision requirement.  We shall see.

  18. The does not suggest in all of this discussion that the Mother loves the children dearly, as do they of her (even allowing for the disruption in the relationship with the older two children).  One might hope that their love for their Mother is a significant impetus for her to obtain the relevant assistance she needs prior to any final hearing.

  19. As sought in the ICL’s Orders Sought, the matter is fixed for final hearing in Wagga on 21st and 22nd August 2017.  Likewise, also as sought there will be an Order for a s.62G report with a request that the interviews for it be conducted in Wagga Wagga.

  20. The Court so orders.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date:         19th September 2016


Key Legal Topics

Areas of Law

  • Family Law

  • Evidence

Legal Concepts

  • Natural Justice

  • Procedural Fairness

  • Remedies

  • Expert Evidence

  • Costs

  • Jurisdiction

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Vanzin & Vanzin [2014] FamCAFC 245
Crouper & Mitchell [2014] FamCAFC 246
KEDVES & SEGAL [2020] FCCA 67