Girard and Gladwyn

[2018] FCCA 3942

FEDERAL CIRCUIT COURT OF AUSTRALIA

GIRARD & GLADWYN [2018] FCCA 3942

Catchwords:
FAMILY LAW – Interim hearing – unilateral relocation – risk issues with respect to both parents’ drug use – hair follicle testing.

Applicant: MR GIRARD

Respondent: MS GLADWYN

File Number: MLC 12443 of 2018

Judgment of: Judge Harland

Hearing date: 17 December 2018

Date of Last Submission: 17 December 2018

Delivered at: Melbourne

Delivered on: 18 December 2018

REPRESENTATION

Counsel for the Applicant: Mr Combes

Solicitors for the Applicant: Alpass & Associates

Counsel for the Respondent: Mr Livingston

Solicitors for the Respondent: LP Alidenes & Company

Counsel for the Independent Children’s Lawyer Ms Papson

Solicitors for the Independent Children’s Lawyer Peter Lynch

ORDERS

1. The proceeding is adjourned for Interim Defended Hearing on 24 January 2019 at 9:30am.

2. All parties are to note and comply with Practice Direction No.2 of 2017 Interim Family Law Proceedings (from 1 January 2018) at >

   The child [X] born …2015 spend time with his parents as follows:

   (a)From this day until 12:00pm on 7 January 2019 with the mother;

   (b)From 12:00pm on 7 January 2019 until 12:00pm on 14 January 2019 with the father;

   (c)From 12:00pm on 14 January 2019 until 12:00pm on 21 January 2019 with the mother;

   (d)From 12:00pm on 21 January 2019 until the Interim Defended Hearing on 24 January 2019.

3. The Maternal Grandfather and the Paternal Grandmother shall be in substantial attendance whilst [X] is in his respective parent’s care.

4. Changeover shall be at the Town A McDonalds.

5. The parties shall have Facetime or skype each Tuesday, Thursday and Sunday with [X] whilst in the other’s care at 6:30pm.

6. The father shall have Facetime with [X] at 11am on 25 December 2018 and 5pm on 20 January 2019.

7. The father have sole occupation of Property D, provided he pay the mortgage and all outgoings when they fall due.

NOTATION

A.Parties must address the issue of whether the proceeding be transferred to Sydney on the next occasion.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 12443 of 2018

MR GIRARD

Applicant

And

MS GLADWYN

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is a troubling case which is about the risk that each of the parents pose to [X], born …2015.  The parties were in a relationship from 2013 to July 2014, living in Melbourne.  Since separation, the mother and [X] have been living with the paternal grandfather in Town B, New South Wales.  The mother went there by agreement for a couple of weeks when the parties were still in a relationship, but has remained there since separation.

3. She seeks to remain there on an interim and final basis and seeks that the father spend time with [X], initially, only in New South Wales.  The father seeks orders that the mother return [X] to Melbourne and that [X] live with him. Initially, his position was that the mother’s time should be supervised in Melbourne, but later his position was she should have daytime only in Melbourne.  His position, as of yesterday, was proposing that she have overnights and that that time could be in New South Wales.

4. The father commenced the proceedings on 26 October 2018.  He did not seek an order for an urgent return date.  He did not particularise either the final or interim orders sought with respect to either parenting or property.  This has caused difficulties in the matter and the mother points out that she was not aware that the father was seeking a recovery order on an interim basis until correspondence passed between the solicitors on 28 November 2018 in the context of the mother’s lawyers seeking leave to appear by telephone.  This was one of the reasons that led to the interim hearing being adjourned.

5. In his first affidavit, the father says that after the maternal grandmother’s sudden death in …2017 their relationship became more fraught and the relationship deteriorated.  Since that time, the mother has spent significant time with [X] and her family in New South Wales. 

6. Since the parties separated, and prior to the first return date, the father travelled to New South Wales and spent time with [X] in Melbourne by agreement from 29 August to 6 September 2018 and again from 27 September to 6 October 2018.

7. In the father’s first affidavit, he says that his mother is likely to move into his home in the near future.  He talks about extensive family support that he has to assist him with [X]’s care, but does not provide any information about his role in [X]’s care prior to the relationship breaking down.  The father is self-employed and works full time out of the parties’ home.

8. In that first affidavit, the father also says that the mother suffers from substance abuse issues and depression. He also says the paternal grandfather is in his late 60s and unable to provide much support.  He provides no further details than that. 

9. In his Notice of Risk, the father says that the mother has substance abuse issues and says that the mother’s sister has mental health issues.  Again, the Notice of Risk says no more than that and provides no particulars.  That defeats the purpose of requiring parties to file a Notice of Risk which identify issues sufficiently to highlight risks not only both to the Court and the other parties, but also to the child protection department.

10. The mother filed her response on 19 November 2018 seeking detailed interim and final parenting and property orders.  By including detailed orders sought the father knew the case that he had to meet, unlike the mother.  It is an all too common practice for solicitors to fail to particularise their client’s case when initiating proceedings.  Failure to do so means that neither the Court nor the respondent knows what is the applicant’s case.  Affidavits should be drafted with the orders sought in mind that the party seeks, so that the affidavit is focused and relevant.

11. In her first affidavit, the mother says that she suffers from depression and post-traumatic stress after witnessing her mother’s sudden death whilst they were driving in …2017.  She spent the next couple of months with [X] and her family in New South Wales, and she and her sister attended for counselling.  She says she sought assistance for her mental health issues and has been prescribed antidepressants and Valium.  She refers briefly to the daily tasks that she has carried out for [X] and says since [X] was born, she has not worked in paid employment.  The mother’s sister also filed a brief affidavit in which she denied the father’s allegations of her being violent towards him and having mental health issues.

12. One of the issues that is hotly contested between the parties in this case is what occurred on 3 October 2018, when the mother attended the home in Property D to collect her belongings.  There are several witnesses from both sides to the incident.  The parties give very opposing versions of that incident and lay blame at each other for who was at fault, both alleging that the incident was violent.  The police records have been subpoenaed.  I will not recount the competing versions of this incident. I cannot make findings about contested issues of fact on an interim basis.

13. The parties’ respective positions taken on the first return date before me, were in essence that the other party’s proposal or offer of accommodation for the other was not practicable because of the violent incident and the conflict between the parties.  The mother offered accommodation on her father’s property, and the father had offered the mother accommodation in the caravan on the parties’ property in Melbourne.  What is most troubling to the Court with respect to both parties’ initial affidavits is that neither party addresses their drug use.

14. In the subsequent material, the mother and maternal grandfather have been far more candid about these issues than the father and his supporting witnesses.  What concerns me about the father’s case is that not only did he make no mention of his own drug use in his first affidavit, but he also makes allegations against the mother in a drip-feed manner, with further allegations in each affidavit that he files when responding to her material.  The mother filed a further affidavit on 3 December 2018, where she stated that she only found out that the father was seeking a recovery order on 28 November 2018, as I have referred to above.

15. The mother admits that the parties used drugs together during their relationship.  The father swore a further affidavit the day before the first return date, where he alleges that in 2013 the mother told him she was addicted to heroin and that the maternal grandmother had arranged for her to be in rehab twice.  At [3] of his affidavit sworn 4 December 2018, he says that they both used ice once or twice a month until the mother fell pregnant and again in 2017 and 2018.  I note that both parties accuse the other of introducing drugs into their relationship.

16. In his affidavit sworn 4 December 2018, the father proposes that his neighbour, Ms K, his nephew’s partner, Ms L, and his mother can all assist with looking after [X] during the week, whilst he works.  He also mentions that his father and his wife could also assist and states that he wants the maternal grandfather to supervise the mother’s time.  The paternal grandmother also filed an affidavit, where she says that she saw the mother appeared to be drug affected and zoned out on many occasions.  She does not provide any particulars.  Nor does she provide any dates, and it is significant that she makes absolutely no reference to the father’s drug use.

17. Ms L also filed an affidavit, on the day before the first return date, in support of the father’s case, and she also says that she saw the mother use drugs and Valium in the past. Again, this affidavit does not provide any details or dates.  I heard argument on the first return date, where the father sought orders that [X] live with him on the condition that his mother stay in his home until the parties undergo hair follicle tests and the results are made available.  The father said he was concerned that the mother had returned to the environment in New South Wales where she had used heroin, and he proposed that the mother have limited supervised time in Melbourne until the test results were back.

18. When pressed, the father said he could offer the mother $100 a week to assist her with obtaining accommodation in Melbourne.  He said it was not practicable for him to move out of the former matrimonial home because that is where he runs his business.  The mother’s solicitor pointed out that the affidavits of the paternal grandmother and Ms L make no mention of the assistance that they can provide the father, and the mother alleges that [X] has not spent time with those family members without one of his parents present.

19. The mother’s solicitor further submitted that it was common ground that both parties use drugs and tendered a drug result for the mother, which was negative except for phentermine, which is listed as being a drug prescribed for her on the document tendered.  She also pointed to the fact that the father refers to numerous supports he has available to him to assist in the care of [X] but makes no mention of his involvement in [X]’s day-to-day care.  The mother would return to Melbourne if [X] is ordered to return, but she would not be able to support herself and was fearful of returning to an environment where the parties engaged in drug use.

20. The mother had not had the opportunity to respond the father’s further material, and that problem was compounded by the fact that the father had not particularised his case.  On that occasion, I made an order appointing an Independent Children’s Lawyer.  I ordered the parties to undergo hair follicle testing, which both parties agreed to, with an agency to be nominated by the Independent Children’s Lawyer.  In order to give effect to that order, I made orders restraining the parties from cutting, bleaching or colouring their hair, pending the hair samples being collected for the hair follicle test. In addition, made orders authorising the Independent Children’s Lawyer to request both parties to undergo random drug screens.

21. I also ordered that [X] spend time with the father in Melbourne and that, if the mother travelled to Melbourne ahead of the court date, he spend time with [X] from 14 December to 17 December 2018.  On 11 December 2018, the father filed an amended initiating application specifying the orders he sought.  His nephew, Mr M, also filed an affidavit in support of the father’s case.  On 13 December 2018, the father filed a further affidavit, claiming that the mother’s father is wealthy and that the great-paternal-grandmother is a multimillionaire.  He made more allegations about the mother’s drug use in response to her affidavit.

22. Concerningly, he says that when he collected [X] in September 2018 he noticed bright red needle-marks on the mother’s arm, which he says was consistent with recent drug use. He also says that in August 2018, that she said she returned to Town B “to be a user”.  I find it most concerning that the father provides this type of evidence in a drip-feed manner but also provides no explanation as to why he did not refer to these extremely serious allegations in his first affidavit and also provides no explanation as to why he did not take urgent action, given those concerns.

23. The mother filed a further affidavit on 13 December 2018, where she denied that she and the father saw the maternal grandmother on a weekly basis, and said it was every couple of months.  She denied the mother’s allegations about seeing her drug affected.  She denied ever using heroin and said she was prescribed Valium and antidepressants after her mother’s death.

24. She also says that when she met the father he referred to being in Country A and doing a lot of drugs there and coming back to Melbourne wanting a fresh start.  She says that they didn’t take drugs until he brought some ice home on her birthday.  She says they both used drugs until she fell pregnant, and says they both used drugs again after her mother died in 2017 and 2018.  She expresses concern about returning to Melbourne, where she feels she would be vulnerable, given that is where they had taken drugs.  She also said does not have family support in Melbourne. 

25. The maternal grandfather filed an affidavit in support of the mother.  In his affidavit, he provides details as to the mother’s drug use and the steps that he and the maternal grandmother took to address it.  He also refers to the financial support that he has provided to the parties during the relationship and continues to provide financial and practical support to the mother post the relationship.  He expresses concerns about the impact on the mother’s mental health if she returns to Melbourne without family support, and makes it clear that he has told the mother that he will not tolerate her using drugs if she lives in his house.  He also refers to the father’s drug use. 

26. It is significant that he addresses the issue of both parents’ drug use, whereas the paternal grandmother’s affidavit is utterly silent about this.  The Court does not know if this is because the paternal grandmother was unaware of it. 

27. The mother and the Independent Children’s Lawyer filed case outlines prior to the interim hearings.  The father handed a case outline up at the interim hearing on 17 December 2018.  The father’s counsel sought an adjournment pointing to the fact that the results of the hair follicle test were not yet available.  That, of course, was something that everybody knew on the last return date.  I was not prepared to adjourn the matter to January 2019 on that occasion.  What the father’s counsel did not say, and which was pointed out by the mother’s counsel later, is that the father had not undertaken the hair follicle test until that morning, in breach of the orders.

28. The mother’s counsel relied on a letter from the Independent Children’s Lawyer to the parties dated 9 December 2018 which was tendered, which was emailed to the parties’ lawyer and advised the parties of the testing agency he nominated and provided a list of locations in Melbourne and Sydney.  I note that the Independent Children’s Lawyer sent the letter just four days after being appointed.  The mother has complied with that order.

29. The father’s counsel indicated that the father would need to provide an affidavit explaining his failure to comply with that order, and made some reference to his solicitor.  It is most concerning, given the father was in Court with the same counsel on the last occasion and yesterday, and that it was his proposal that the parties undergo hair follicle testing, that he has failed to do so.  That, combined with his lack of candid disclosure, is of real concern.

30. After discussions, I have adjourned this case again to 24 January 2019 at 9.30am for further argument once the hair follicle tests are available, as that may well assist with respect to the future directions of this case, including whether [X] should live in New South Wales with his mother or in Melbourne pending further order, and whether or not the matter should be transferred to the Sydney registry. 

31. As I have indicated, there are risk issues concerning both parents in this case.  Both parents have family supports.  It is apparent from the evidence to date that the mother has been the parent who has been more involved with the day to day parenting of [X], given that she was not working outside of the home and the father was working full time.  [X] has spent significant time in both parents’ care in New South Wales and Melbourne respectively by agreement before the proceedings began, despite the risk issues each allege against the other.

32. In the circumstances, I am not satisfied that the father’s time should only take place in New South Wales.  Given the risk issues with respect to both parties, I do find that the maternal and paternal grandparents should be in substantial attendance when the parties have care of [X].  I am concerned about the amount of disruption to [X] and the amount of people that the father relies on to care for [X]. The mother is able to provide greater consistency.  I do not propose to make an order about parental responsibility at this stage, noting that each party seeks sole parental responsibility. 

33. I am going to order that the mother spend time with [X] from today until 7 January 2019, that [X] will then spend time with the father from 7 January to 14 January 2019, with the mother from 14 to 21 January 2019, and with the father to have time with [X] from 21 January 2019 until the matter returns in Court.

34. I should note that the father has an older child, aged seven, who has special needs.   The father points to the fact that he has responsibility for caring for her on alternate weekends and Tuesdays, as well as half holidays.  The mother’s counsel pointed out yesterday that there’s no affidavit from that child’s mother and that it is therefore unknown as to whether or not she is aware of the father’s drug use. 

35. I will also order that the party who does not have care of [X] have FaceTime or Skype with [X] three times a week and that the father will have FaceTime or Skype with [X] on Christmas Day.

36. I will make an order for the father to have sole occupation of the property, provided that he pay the mortgage rates and outgoings as and when they fall due.

1. I will make the above orders as orders of the Court.

2. With respect to the property issue, the father has lodged a caveat over the property, which is in the mother’s sole name, as has his solicitor.  The mother wants the caveats removed.   Counsel raised the issue about whether or not either of them, but particularly the father’s solicitor, has a caveatable interest.  The father’s counsel points to this as being a concern for the father that the mother might deal with the property.  I do think there is a real issue about whether or not there are caveatable interests in that property but don’t propose to deal with that issue today.  However, I am not prepared to make injunctions with respect to either party today.  There is no evidence suggesting a need for that.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 23 January 2019