Gray & Catlyn

[2020] FamCA 1130

FAMILY COURT OF AUSTRALIA

Gray & Catlyn [2020] FamCA 1130

File number(s):	PAC 378 of 2019
Judgment of:	CLEARY J
Date of judgment:	11 December 2020
Catchwords:	FAMILY LAW – adjournment – application by the Respondent father made on the last day of trial when evidence is complete arising from the implications of a Single Expert Report – Where parenting orders are being sought concerning two subject children – Where interim parenting orders are operative - Where the Applicant mother wishes to relocate permanently with the children – Where the father had been ordered by the Court to submit to hair strand testing for illicit drugs and also CDT testing in anticipation of the trial – Where the test produced a positive result for drugs – Where a Single Expert Report was commissioned that highlights  a history  of the  father’s drug use –  Where the question of how to interpret the results arose – Where the Single Expert Report has the potential to confirm the mother’s evidence about heavy drug use and to damage the credit of the father, depending on how the report is interpreted – Where draft orders were provided to the parties to consider the wording of an order and for the matter to be relisted on a date to be fixed to settle and make the orders.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	26
Date of hearing:	10 December 2020
Place:	Newcastle
Counsel for the Applicant:	Mr Boyd
Solicitor for the Applicant:	Bryant McKinnon Lawyers
Counsel for the Respondent:	Ms De Vere
Solicitor for the Respondent:	Ryan & Seton Lawyers
Counsel for the Independent Children's Lawyer:	Ms Carty
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

ORDERS

PAC378/2019

BETWEEN:

MS GRAY

Applicant

AND:

MR CATLYN

Respondent

INDEPENDENT CHILDREN'S LAWYER

Other

ORDER MADE BY:	CLEARY J
DATE OF ORDER:	11 DECEMBER 2020

THE COURT NOTES THAT:

(A)No orders made.

(B)The attached orders were provided in draft for consideration of the parties at 9.15 am on 11 December 2020.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

ORAL REASONS FOR JUDGMENT

CLEARY J

1. This is an application by the respondent father.  It was made on the morning of the last day of trial when evidence was complete.  The application arises from the implications of a single expert report. 

   BRIEF HISTORY

2. The applications before me over four days or three and a half days in November of this year are for parenting orders concerning two children, Y, aged 10 and X aged four and a half (“the children”).

3. These parties separated in October 2018.  For about three months after separation, the children spent time with the father as nominated by the mother, usually one day per fortnight.

4. In early January 2019, the mother concluded that the father had sexually abused X.  The allegation was reported to police and to the Department of Communities and Justice.  A provisional Apprehended Domestic Violence Order (“ADVO”) issued.  X was examined.  Both children, the parents and the maternal grandmother were interviewed.  The allegation was not substantiated.  The ADVO was revoked. 

5. On 25 January 2019 the mother, without notice to the father, moved with the children from the F Region to D City in northern New South Wales.  On that same day an application by the mother was filed in the Federal Circuit Court at Parramatta for parenting orders.  The associated Notice of Risk alleged sexual, physical and psychological abuse of the children by the father and neglect of their basic needs.

6. Thereafter the father had no face to face contact with the children other than in October 2019 in the context of an assessment by a Family Consultant.  There was some communication between the children and the father. 

7. On 20 December 2019 orders were made by a judge of this Court in Parramatta, pending further order.  Those are the current operative orders known as the “December 2019 orders”.  The matter was then transferred here to Newcastle.  The mother was required by those orders to return the children to living in F Region, which she did in December 2019.

8. Since that time the children have lived with the mother and spent time with the father each alternate weekend, half school holidays and spoken to him on FaceTime midweek.  There has been a year of those arrangements.  The orders have been complied with and undoubtedly have assisted in restoring and consolidating the relationship of the children with the father.  However, in light of the single expert report recently provided to the Court, there is a risk which has been highlighted, about the father’s drug use.

9. Twelve uneventful months may represent good parenting or simply good fortune.  That is the issue that has arisen.

10. This trial was listed for three and a half days commencing 3 November 2020.  On 25 September 2020, the father had been ordered by the Court to submit to hair strand testing for illicit drugs and also Carbohydrate-deficient transferrin (“CDT”) testing in anticipation of this trial.  The order was made over the objection of the father.

11. On 1 October 2020, the sample was provided and released by the laboratory on 17 October 2020.[1]

    [1] Exhibit 4.

12. The test was produced at trial in November.  There was a positive result for cocaine and marijuana.  The question of how to interpret those results came up at trial.  As a judge and a lawyer, I am not qualified to interpret drug tests.  What they mean about drug use by the father became an issue and was taken up by the parties.  A report by a single expert witness was commissioned.  Particular questions were asked and the responses provided in detail by the specialist toxicologist.

13. The overall conclusions of the toxicologist are as follows:[2]

    I have examined the material provided and conclude that

    ·Mr Catlyn has been a regular heavy user of cocaine.

    ·Mr Catlyn has been a regular user of a cannabis product containing THC in significant concentration, which could either be a prescribed product under the Special Access Scheme or illicit cannabis.

    [2] Affidavit of Single Expert Witness filed 8/12/2020, par 5 – Conclusions.

14. The issues then in this trial have been interwoven.  The mother’s evidence was of the father’s heavy drug use, which the father largely denied.  He conceded having been untruthful with the Family Consultant when he said he had not used illicit drugs for years.

15. The report has the potential to not only confirm the mother’s evidence about heavy drug use but to damage the credit of the father, depending on how the report is interpreted.

16. Unsurprisingly, the father wishes to be able to consider the implications of the report and to ask further questions clarifying the implications of the conclusions and perhaps to apply for the appointment of an adversarial expert.  I should say that as things stand, it is difficult for the Court to understand what a further drug test might deliver in terms of whether or not it reflects past use, chronic use or if there is a way of determining what level of drug use, if any, the father is currently participating in.

17. This application for adjournment was opposed by the mother on the basis that she had a legitimate expectation of the matter being resolved one way or the other.  The Independent Children’s Lawyer did not really support or oppose but having heard the possibility raised, perhaps of a change of circumstances until a further period of trial, put forward a helpful Minute of Order.  I accept the submission that there is, on behalf of the father, that it is unusual and disadvantageous to children to be moved on an interim basis with the prospect of having to be moved back.

18. This is especially so in this case, where the children were peremptorily moved by their mother and 12 months later brought back pursuant to Court orders.  And yet, the impact on the mother of another 12 months of uncertainty is likely to have, in my view, an adverse impact on the children.  They know their mother wants to go to D City and her evidence is, which I accept, that she is very much wanting to move back to D City.  She wants the support and assistance of her parents who live there.

19. Her parents are more than willing to provide the help that she would like.  There is a very real risk associated with what might be said in that household.  The mother and both her parents believe that the father abused the younger child.  They also believe that he is an incompetent, unsafe parent due to drug use, namely cocaine.  Despite that risk, I have made an order that the mother is free to move to D City for not less than 12 months.  That is, until the end of the school year in 2021. X, the younger child, is not due to start school until 2022. 

20. The orders that I have made provide for that 12 month period, provide for further drug testing by the father and if the test indicates that he is free of illicit substances that the orders made in December 2019 become operative again.  There is provision for the father to have supervised time until that negative test is produced.

21. There is also provision for the ICL to provide the single expert report of Mr G to the Family Consultant, who is available to give evidence on the next occasion and also, in due course, to provide the questions and answers administered to the single expert and any report prepared by an adversarial expert if one is commissioned. 

22. There are some provisions for extension of time and identification of time for those applications to be made.  It is also particularly important that the mother is conscious of the other orders made in December 2019 that continue to operate.

23. In particular, orders restraining herself and any other person from allowing the children to hear anything critical or insulting about the other parent and anything at all about this Court case. 

24. I will make orders accordingly.

25. I have, however, released the orders in draft form to enable the parties, particularly the lawyers for the father, to consider the wording of an order that the father undertake a testing and that provided there’s a test negative for illicit substances, time resumes.  They are critical orders but I just cannot be sure what the test will reveal in terms of past use and current use.

26. If no other order is suggested that will be more effective or more closely identified, I will add these words to that order, “or whichever other test establishes current drug use”.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the oral Reasons for Judgment of the Honourable Justice Cleary.

Associate:  

Dated:       11 December 2020

[DRAFT ORDERS]

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT NEWCASTLE  File No. (P)PAC378/2019

BETWEEN

MS GRAY   (Applicant)

AND

MR CATLYN   (Respondent)

AND

INDEPENDENT CHILDREN'S LAWYER

11 December 2020

Before The Honourable Justice CLEARY

UPON APPLICATION made to the Court

IT IS ORDERED THAT

(1)Further trial dates are allocated for 6 to 9 September 2021 inclusive NOTING applications for adjustment of interests in property will be heard at this time in addition to the parenting matter.

(2)The matter is listed for directions on Thursday 6 May 2021 at 9.30 am.

PENDING FURTHER ORDER, IT IS ORDERED THAT

Parenting

(3)Order (2) of the orders pending further order dated 20 December 2019 ("the December 2019 orders") is suspended.

(4)The mother may establish a residence for the children Y born … 2010 and X born … 2016 in D City and may live there until the conclusion of school Term 4 in 202 1.

(5)The mother shall advise the father of proposal date of departure for D City and shall make arrangements for the father to have access to the property including possession of all keys after her departure.

(6)Orders 5, 6 and 7 of the December 2019 orders are suspended until the father has complied with Orders 7 and 8 herein.

(7)The father shall submit to hair strand testing to detect the presence of illicit substances as soon as practicable but at any event on or before 8 January 2021 such test to be at the father's expense with the father to authorise and direct the testing laboratory in writing to provide to the mother and the Independent Children's Lawyer a copy of the test results within 7 days of preparation.

(8)In the event that the hair test results are negative to the presence of an illicit substance then time spent between the children and the father shall forthwith resume in accordance with Orders 5, 6 and 7 of the December 2019 orders.

(9)The father shall have supervised time with the children with the use of a contact service if available and if not, a contact centre fortnightly for the maximum daily period provided until there is a test result negative to illicit substances in accordance with Order 8 herein.

(10)The father shall comply with any request by the Independent Children's Lawyer for further drug testing prior to resumption of trial.

(11)The Independent Children's Lawyer shall provide to the Family Consultant:

a) The Affidavit of the single expert Mr G filed 8 December 2020;

b) The questions, if any, administered to the single expert by a party and the responses of the single expert;

c) Any report prepared by an adversarial expert.

(12)Time pursuant to Rule 15.65 is extended for the father to administer any questions he may have to the single expert [Mr G] arising from his report dated 30 November 2020 to Friday 22 January 2021.

(13)Any application for the appointment of an adversarial expert pursuant to Rule 15.49 is to be filed and served by Friday 12 March 2021.

THE COURT NOTES THAT

(A) The Family Consultant is available to give further evidence on the allocated dates 6 to 9 September 2021 and may be required for cross-examination.