Labeck and Calandros

[2020] FCCA 1378

FEDERAL CIRCUIT COURT OF AUSTRALIA

LABECK & CALANDROS [2020] FCCA 1378

Catchwords:
FAMILY LAW – Parenting – best interests of the child – whether previous consent order should be enforced to alter which party children live with –  where young children live with their mother and spend time with their father – where the mother has returned a positive result for methamphetamine – where it is alleged the mother has failed to comply with injunctive order – where the children appear strongly bonded to the mother – the consent order is not to be enforced but the children may transition to spending overnight time with the father.

Legislation:

Family Law Act 1975 (Cth), s.11F

Misuse of Drugs Act 1990 (NT), sch.1

Applicant: MR LABECK

Respondent: MS CALANDROS

File Number: DNC 115 of 2020

Judgment of: Judge Young

Hearing date: 12 May 2020

Date of Last Submission: 12 May 2020

Delivered at: Darwin

Delivered on: 12 May 2020

REPRESENTATION

Counsel for the Applicant: Ms V. Farmer

Solicitors for the Applicant: Withnalls Lawyers

Counsel for the Respondent: Ms S. Cooper

Solicitors for the Respondent: Maley Barristers & Solicitors

ORDERS

ORDERS UNTIL FURTHER ORDER:

1. That Order 12 of the Orders 12 March 2020 be varied in relation to the children X born in 2016 and Y born in 2017 (together “the children”) time spent with the Father as follows:

   (a)In each week commencing 14 May 2020, and for a period of six weeks:

   (i)From 12.00pm to the latest time for changeover at A Family Services (currently 4:30 pm) on Thursday; and

   (ii)From 9.00am to the latest time for changeover at A Family Services (currently 5.00pm) on Saturday.

   (b)Upon the children spending the bulk of the time with the Father in accordance with Order 12(a) herein, for a period of three months, the children’s time spent increase in each week as follows:

   (i)The Father spend time with X from after pre-school or 2.30pm to the latest time for changeover at A Family Services (currently 4:30 pm) each Wednesday, and the Father spend time with Y from 3 pm to the latest time for changeover at A Family Services each Wednesday (currently 4:30 pm); and

   (ii)From the latest time for changeover at A Family Services Friday (currently 4:30pm) to the latest time for changeover at A Family Services (currently 5.00pm) Saturday.3

   (c)Upon the children having spent the bulk of the time with the Father referred to at Order 12(b) herein the children’s time spent with the Father increase in each week as follows:

   (i)The Father spend time with X from after pre-school or 2.30pm each Wednesday to the latest time for changeover at A Family Services (currently 4:30 pm) Thursday, and the Father spend time with Y from 3pm to the latest time for changeover at A Family Services (currently 4:30 pm) Thursday; and

   (ii)From the latest time for changeover at A Family Services (currently 4:30 pm) Friday to the latest time for changeover at A Family Services (currently5.00pm) Saturday.

2. That Order 13 of the Orders 12 March 2020 be varied as follows:

   (a)That all changeovers occur at A Family Services except Wednesdays on commencement of time spent which shall occur at B School.

3. That the Mother shall within 24 hours of a written request made by the Father’s solicitors by email or text, book an appointment as soon as practicable to undertake a hair follicle test at Safe Work Laboratories for the purpose of testing and/or detecting illicit drugs or substances (“hair follicle testing”) and will notify the other party of the date the sample will be given.

4. For the purpose of Order 3:

   (a)The Mother shall provide a 3cm segment of hair to be tested and such sample will be taken from the Mother’s scalp by professional medical staff in accordance with the procedures of Safe Work Laboratories for the testing of illicit substances (drugs) and that such sample will be taken if possible with the Safe Work Laboratories within 12 hours of receipt, by the Mother, of the request from the Father;

   (b)The hair follicle testing will be done at Safe Work Laboratories, C Street, Suburb D, NT;

   (c)The Mother shall comply with all requirements and directives of the Safe Work Laboratories and/or its technicians for the purpose of the hair follicle testing procedure;

   (d)The Father shall pay for the cost of the hair follicle testing, and in the event there is a positive test for any illicit substances, the Mother shall reimburse the Father the costs of the test within fourteen days; and

   (e)That the Mother shall forthwith provide the test results to her solicitors within 24 hours of receipt of the test results by the Mother, who shall then forthwith email the Father via his solicitors, a hard copy of the test results from the hair follicle drug test.

   (f)That the Mother is hereby restrained by injunction from colouring, cutting, bleaching or straightening her hair before the segment of hair is taken.

5. That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the children X born in 2016 and Y born in 2017 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the children's interests.

6. That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

7. That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and / or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

8. That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

9. That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the children of the relationship X born in 2016 and Y born in 2017 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 30 October 2020.

10. That the family report to deal with the following matters:

    (a)any views expressed by the said child and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

    (b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

    (c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

11. That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

12. That the parties are to telephone the Case Coordinator Children Dispute Services on 1300 352 000 fourteen days prior to the date of the interview to confirm their attendance and in the event such confirmation is not received the interviews will be cancelled.

13. That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

14. That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

    (a)a Children’s Court;

    (b)a child protection authority;

    (c)a State or Territory legal aid authority; and

    (d)a convener of any legal dispute resolution conference.

NOTING:

A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C. In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 15 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

AND IT IS FURTHER ORDERED UNTIL FURTHER ORDER:

1. That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

2. That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

3. That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any material produced pursuant to subpoena and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served prior to the family report interviews as follows:

   (i)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

   (ii)annexing such material as is considered relevant, with

   (iii)the affidavit to be paginated, indexed and exhibits tagged.

4. That the matter be adjourned to the trial call-over list on 20 November 2020 at 9.30am for further directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 115 of 2020

MR LABECK

Applicant

And

MS CALANDROS

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

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 parenting matter concerning two children:  X who is four and Y who is two.  Consent orders were made on 12 March 2020 that the children live with their mother and spend time with their father from 9 am to 5 pm each Saturday.

3. There were some other orders as well relating to time.  There were orders for drug testing.  I see there is an error in order 19 of that date, it says:

   That for purpose of order 8 –

   it should be:

   That for the purpose of order 18 –

   and I will order that amended.  Order 18 was for hair follicle testing which was to take place within 24 hours of the order, or at least the appointment was to take place within 24 hours.

4. Further, there was order 21:

   That in the event the hair follicle test result provided by either party returns a positive result to illicit substances, the children shall live with the other party and spend supervised time with the party who gave the positive test result... 

5. As it has turned out, the mother has given a positive result for methamphetamine in a belated test, some weeks after she was ordered to undertake the test, in circumstances where an inference might be drawn, though I am not prepared to make the inference in the absence of a testing of all of the evidence, that she delayed the test in order to minimise the risk of a positive result.  In the event there was a positive result.

6. The other order was that by consent the mother be restrained from permitting the children to come into contact with a man called Mr E who has had some kind of relationship with the mother – it is unclear exactly the nature of the relationship.

7. There were also orders about enrolling in A Family Services for changeover of the children.  The mother did not enrol until about 22 April 2020 and after enrolment there have been difficulties with the children transitioning to the father at A Family Services.  The children have been reluctant to transition to him and there have been examples of the children showing anxiety at transition and refusing to leave their mother.

8. The father, not surprisingly in all of the circumstances, says that given the consent orders, given the positive test for methamphetamine, and given what he says is evidence that the mother has failed to comply with the injunctive order about not bringing the children into contact with Mr E, that there ought to be an order that the children live with him pursuant to the consent orders.  In other words, there simply be an order changing the residence of these two young children to live with the father.

9. The evidence about the drug test is unequivocal.  The mother says that she used methamphetamine on one occasion in February 2020 and she believes that resulted in a positive test.  Whether the mother is truthful in that, I do not know.  I have very grave suspicions about whether the mother is truthful about her methamphetamine use and, indeed, her affidavit material is highly unsatisfactory in relation to that issue.

10. In her first affidavit filed on 27 April 2020 she denies current drug use.  Bearing in mind this was an affidavit filed on 27 April 2020, sworn on 24 April 2020, in relation to drug use which the mother says now, post the positive test, was the result of an isolated episode of methamphetamine use in about February of this year, the mother states:

    I have used drugs recreationally in the past, including around the time of Mr Labeck and my father’s separation when I was very distressed by the separation. 

    I pause to add there that separation occurred around October or November 2019:

    When I did this I left the children to be cared for by my parents.  I regret using drugs at all and will not take drugs in the future.  I have recently undertaken a hair follicle drug test.

11. It seems clear that the evidence she had used drugs recreationally in the past, around about the time of her separation from her father in October or November, and the implication that there was no drug use since given she now says she used methamphetamine in February this year, is untruthful evidence.

12. Whether that indicates that the mother is dependent upon methamphetamine or a regular user, I cannot say.  I propose to make orders for regular drug testing of the mother from here on.  However, I am satisfied that her affidavit there is, in a material particular, false.

13. The mother also says that there were various reasons why she could not enrol at A Family Services to ensure that the children could begin spending time with the father immediately. Her explanations for that are unsatisfactory. She suggests in the most general way that it is related to the COVID-19 pandemic and A Family Services being unavailable. There is no evidence that is actually true. Indeed there is a remark in the s.11F memorandum that the family consultant had telephoned A Family Services and A Family Services had told the family consultant that they had continued to operate without interruption during the COVID-19 pandemic. Similarly her explanation about the very late hair sample taken in April some six weeks after the order is entirely unsatisfactory.

14. I have therefore approached the mother’s evidence with a great deal of circumspection and I am not satisfied at this stage that she is a truthful witness, apart from the positive finding I have made about her affidavit of 27 April.  However, I am not prepared to find that she is actually lying about other matters I just do not know.

15. It follows from all of this that there is evidence to suggest that the children may be at risk in their mother’s care, particularly if she is using or continuing to use methamphetamine.  I cannot make a positive finding about that but I have suspicions that she may not be truthful, but I do not know. 

16. The other factor is her relationship with Mr E.  There are notes and records produced by Territory Families that at around about 29 March 2020 there was a dispute between the mother and her sister, Ms F, and that Ms F went to the mother’s premises and found Mr E there.  This is recorded in the Territory Families notes and it appears likely that there is a complaint recorded, possibly from Ms F, though it is unclear.  The records do not say who the complainant was.

17. So the evidence of the breach of the undertaking in relation to Mr E is second-hand hearsay.  It is quite removed and there is no independent, objective or even reliable evidence.  I am not satisfied that the mother has breached that injunction.  I called the mother and she was cross-examined about Mr E and she was consistent in her denials that she had not breached the injunctive order.  She said she bumped into Mr E on one occasion by accident at the Suburb G supermarket some weeks ago.

18. She was adamant that she had no relationship with Mr E though she had apparently met him with the children for a meal on two occasions before the commencement of the proceedings and certainly before the injunctive order was made.

19. Again, the mother was not shaken in cross-examination in that assertion but given my general reservations about the mother’s credibility, I am reluctant to make a categorical finding that she was telling the truth about that.  I accept that there is no evidence that she was not telling the truth.

20. The concern about Mr E is that it appears from the Territory Families material that he was convicted of rape and gross indecency in 2009.  The circumstances have not been revealed in any of the material but the mere fact of the convictions, particularly convictions for rape and gross indecency, are concerning enough and the father would be entirely justified in having concerns about his children being around such a man.  I might say there is no evidence that the offences for which Mr E was convicted of related to children.

21. Another concerning aspect is that in the Territory Families material Mr E is described as the mother’s partner. The mother said that is simply wrong and it is not current information either.  Again, given my reservations about the mother’s credibility I approach all of that with a fair degree of circumspection.  I am not satisfied I can make any definitive finding about that.

22. To add to the concerns about Mr E it seems that in about March of this year he was arrested for possession of a traffickable quantity of a schedule 1 substance under the Misuse of Drugs Act (NT). Schedule 1 substances are generally the opiate family and the amphetamines, include methamphetamine. Schedule 1 does not include cannabis for example.

23. It appears that Mr E is a person of real concern should he be having anything to do with these children.  If I was satisfied that the mother in fact pursued a relationship with Mr E, that the children were coming into contact with Mr E on a regular basis and that the mother was deliberately bringing them into contact with Mr E, I would be much more inclined to make the order the father seeks placing the children with him, but I am not satisfied that that is the case.  I am not satisfied at this stage that the mother has a relationship with Mr E.

24. The mother said in fact that he is in prison at the moment, according to what she had heard.  She said she did not know that directly but she had heard from people that that was the case.  Again, I simply do not know. 

25. There is much in that background to raise very serious concerns about the mother’s parenting capacity.  The countervailing factors that I take into account are these: the Territory Families material refers to the mother attending at the Territory Families for an interview, the mother says that was in fact probably in about February of this year and she was observed with the children.  The children were well-cared for, they appeared to have a good relationship with their mother and there were no concerns raised by that observation of the mother and the children.

1. It appears the children are closely bonded to their mother.  That is also apparent from, I think, the difficulties at changeover at A Family Services.  Nevertheless, the mother’s evidence, her lack of frankness and her generally unsatisfactory explanations for her behaviour give rise to a serious concern.  The family consultant who interviewed the parents did not observe the children with either parent but she interviewed the parents and was of the view that the children should be commencing regular time with their father.  They have done so, subject to a matter that I will deal with in a moment, and she was of the view that over the next four months the children should be spending two overnights per week with the father.

2. She was of the view that if the mother tested positive for methamphetamines it would be necessary to significantly revise the children’s residential arrangements and consideration be given to the children living with Mr Labeck, the father.

3. I give great weight to those concerns.  However, despite the positive test for methamphetamine, I consider that order 21 of the consent orders made on 12 March 2020 ought not to be given effect on this occasion.

4. The reason for that is essentially that the children are very young.  I am satisfied that they appear to be strongly bonded with their mother and there is some evidence that the children are well-cared for by the mother.  The concern relates to her methamphetamine use, the level of that methamphetamine use and whether or not she has a relationship, which she vehemently denies, with Mr E, who appears to be a character with whom these children should not, under any circumstances, come into contact with.

5. So I do not propose to act on that consent order.  The issue that remains is about changeover.  There have been a number of attempts at changeover at A Family Services which have not gone well because the children have refused to leave their mother.  The precise reason for that is unclear but I consider that there ought to be continued efforts at making that work.  I think that is very much a matter for negotiation between the parents and A Family Services.  The father says that a third party should be involved and he points to a relative as a person who should be involved, but in the absence of some indication that that person is willing to be involved, I am not prepared to make such an order.

6. The present order provides for the children to spend Saturday 9 am to 5pm with the father.  For the reasons I have just described that has not worked but I think that there ought to be perseverance in that order, so I do not propose to vary that order at this stage.  It is also proposed that for a period, and there appears to be agreement about this, that the children should spend Thursday 12 am to 5 pm with the father and it appears to be broadly agreed that for six weeks, if the children successfully spend time with their father for the bulk of that period, then there ought to be a transition to one overnight a week.

7. It was proposed by the mother that be Friday to Saturday at 12 pm.  The father proposed Friday to Saturday at 5 pm.  He also proposed that it would be preferable to have that from Saturday to Sunday, but the mother objects to that on the basis that she attends a church service with her family.  I think that has been an issue that has been ventilated before, and that resulted in the Saturday 9 am to 5 pm order, so I am reluctant to do that.

8. I note that the family consultant makes a recommendation for a transition to two nights a week.  It occurs to me that ought to be incorporated in the various stages being proposed by the parties and in my view there ought to be a graduated process with a first stage of the children spending Saturday 9 am to 5 pm and Tuesday 12 pm to 5 pm with their father.  After a period of six weeks, if the children have spent the bulk of the time provided for in that order with their father, then a transition to one overnight from Friday 5 pm to Saturday 5 pm.

9. There is also agreement about a second day.  I could not get any real cooperative sense out of the parties on the day that might suit either of them, unfortunately, so I am left to try and work that out as best I can.

10. If Thursday was chosen and if that was to transition to a second night after a period that would be two nights in a row.  Given the very young age of the children I am reluctant to make that order.  I think it would be more desirable to have two separate nights in a week.  I propose for the second stage to make the order that the children spend time with their father from after X’s pre-school at 2.30 pm to whenever the latest A Family Services changeover time is.

11. Again, if the children have successfully spent the bulk of the time with their father pursuant to those orders after a period of a further three months, then the Wednesday time is to transition from Wednesday 2.30pm to 5 pm on Thursday.

12. All changeovers are at A Family Services apart from X, who will be collected on Wednesday from pre-school by the father.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate:

Date: 29 May 2020