LEMUS & LEMUS

[2019] FCCA 1449

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEMUS & LEMUS [2019] FCCA 1449

Catchwords:
FAMILY LAW – Parenting – interim hearing – whether the mother’s drug use poses an unacceptable risk of harm to the children – whether the children should live with the mother.  

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61C, 61DA, 62G, 65DAA, 68L

Cases cited:

Goode v Goode (2006) FLC 93-286

MRR v GR (2010) FLC 93-424

Applicant: MR LEMUS

Respondent: MS LEMUS

File Number: SYC 4531 of 2018

Judgment of: Judge Morley

Hearing date: 21 March 2019

Date of Last Submission: 21 March 2019

Delivered at: Sydney

Delivered on: 9 April 2019

REPRESENTATION

Counsel for the Applicant: Mr Guterres

Solicitors for the Applicant: Doolan Wagner Family Lawyers

Counsel for the Respondent: Ms Druitt

Solicitors for the Respondent: Anderson Boemi Lawyers

Solicitors for the Independent Children's Lawyer: Mr Wilkins of Phillip A Wilkins & Associates

ORDERS

1. That order 1 of the orders made on 4 October 2018 is vacated.

2. That each party is restrained from using illicit substances at all.

3. That in addition to the notification requirements in order 10, sub (b) of the orders made on 4 October 2018, the parties will themselves provide a copy of any such results to the other party’s legal representative and the Independent Children’s Lawyer within 48 hours of the tested party receiving those results.

4. That in the event that the mother undergoes a further hair-follicle test pursuant to order 9 of the orders made 4 October 2018 and that test produces a positive result for any of amphetamine, methamphetamines, cocaine metabolites, opiates, phencyclidine, or THC metabolites, then unless the mother provides to the father’s solicitors and to the Independent Children’s Lawyer within 48 hours of notifying her test results pursuant to order 3, a medical certificate from a registered medical practitioner that such positive result is in consequence only of her proper use of a prescription, then the following orders 5, 6, 7, 8,  will apply.

5. That in the event of the mother receiving a positive result under order 4, that within 72 hours of that result being received by the mother, the children, [X], born … 2006, [Y], born … 2008, and [Z], born … 2013 (collectively “the children”) will live with their father and will spend time with the mother as set out in order 6.

6. That in the event that the children live with their father, pursuant to order 5, they will spend time with their mother, until the mother produces a negative hair-follicle drug test result, as follows:

   (a)Each alternate Saturday and Sunday from 9 am until 6 pm on each day; 

   (b)With the mother to collect the children from outside the father’s residence at the commencement of time and the father to collect the children from outside the mother’s residence at the conclusion of time;  and

   (c)Such times to be supervised by one or both of the children’s maternal grandparents.

7. That in the event that order 6 operates, then once the mother produces a negative hair-follicle drug test result, the children will spend time with their mother:

   (a)During school term periods, in a fortnightly cycle:

   (i)In week 1 from after school Friday until before school Wednesday; 

   (ii)In week 2 from after school Monday until before school Wednesday; 

   (b)During school holiday periods, for the second half of any such school holiday period that commences in an odd-numbered year and the first half of any such school holiday period that commences in an even-numbered year, unless otherwise agreed in writing between the parents.

   (c)On Mother’s Day from 9 am to 6 pm, in the event that the children are not otherwise in her care on that day.

   (d)In odd years, being 2019 and each alternate year thereafter, from 5 pm on Christmas Day until 5 pm on 27 December and in even years commencing 2020 and each alternate year thereafter, from 5 pm on Christmas Eve until 5 pm on Christmas Day AND that the mother’s time with the children is suspended for the children to spend time with their father over the Christmas period from 5 pm on Christmas Day until 5 pm on 27 December in even-numbered years, being 2020 and each alternate year thereafter, and from 5 pm on Christmas Eve until 5 pm on Christmas Day on odd-numbered years, being 2019 and each alternate year thereafter.

8. That in the event that order 7 operates, then the children will live with their father, if not otherwise in his care, from 9 am until 6 pm on Father’s Day.

9. That the mother is restrained from:

   (a)Bringing the children into contact with the person known as Mr A, being the person referred to by the mother in paragraph 73 of her affidavit, affirmed 19 March 2019 and e-filed 20 March 2019;

   (b)Allowing that person, Mr A, to be present at her residence while the children are in her care; and

   (c)Taking the children to any place where she knows Mr A resides or works or is otherwise present.

10. That a hair-follicle drug test result relating to the mother’s hair will not be regarded as a negative hair-follicle test result, for the purposes of these orders made today, if it certified by the testing body that such a negative result reflects only a residue of the positive result set out in the hair 5 drug panel test result of the mother provided by … Laboratories for specimen ID …, reported 27 February 2019, and does not indicate any further use of the drugs screened for past 27 February 2019.

11. That the mother will continue therapy with her psychologist, Ms B, or such other therapist to whom Ms B refers the mother, until Ms B or such other therapist confirms in writing that no further therapy for the mother is recommended.

12. That the mother will continue her appointments with her psychiatrist, Dr C, or such other psychiatrist to whom Dr C refers the mother, until Dr C or such other psychiatrist confirms in writing that no further appointments for the mother are recommended.

13. That the mother will be compliant with all of her medication, as prescribed by all and any of her treating medical professionals.

14. That by 30 May 2019, the mother will provide to the father’s legal representatives and to the independent children’s lawyer a report on her current mental health condition from both her psychologist, Ms B, and her psychiatrist, Dr C.

15. That the mother submit herself to random chain of custody drug urinalysis testing within 24 hours of a request by the Independent Children’s Lawyer, with such testing to be requested no more than once each fortnight, and such testing to be undertaken at the mother’s cost.

AND THE COURT FURTHER ORDERS THAT:

1. The listing on 16 December 2019 be vacated.

2. All extant applications be adjourned to this Court on 3 February 2020 at 9:30am for directions (“the directions hearing”).

3. The Independent Children’s Lawyer have leave to relist the matter before the Court giving three (3) days’ notice to each of the parties and to the court of the issues on which the relisting is requested.

AND THE COURT NOTES THAT:

(a)These Orders were made following the delivery of ex tempore reasons today following the interim hearing on 21 March 2019. 

(b)A family report has been ordered.

(c)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4531 of 2018

MR LEMUS

Applicant

And

MS LEMUS

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings are parenting proceedings relating to the parenting arrangements for the children [X], born … 2006 and 12 years of age at the interim hearing; [Y], born … 2008 and 10 years of age at the interim hearing; and [Z], born … 2013 and six years of age at the interim hearing. 

2. The applicant father (“the father”) is Mr Lemus, born … 1979.  The respondent mother (“the mother”) is Ms Lemus, born … 1980. 

3. On the evidence before the Court on interim hearing, the parties commenced a relationship whilst at school together in … 1997, commenced cohabitation in about 2003 and married on … 2005. The parents separated on 22 July 2017, although under the same roof for a period of time until 29 October 2017, when the father vacated the former matrimonial home and the mother and the children continued to reside in the former matrimonial home.

Procedural History

1. These proceedings were commenced by the father filing an Initiating Application on 17 July 2018.  The mother filed her Response on 10 September 2018. 

2. The matter came before the Court for the first time on 7 August 2018 before Judge Boyle.  Both parties were represented.  Her Honour made orders, amongst other things, requiring the parties to attend a Child Dispute Conference in the Registry, and listed the matter for an interim hearing on 4 October 2018.

3. Other orders were made for filing of documents by the Respondent mother, and appointing an Independent Children’s Lawyer under section 68L of the Family Law Act 1975 (“the Act”) to represent the interests of the children in the proceedings.  Other orders made that day related to financial issues and are not germane to these reasons.

4. The mother filed an Amended Response to Initiating Application on 3 October 2018.  On 4 October 2018, Judge Boyle conducted an interim hearing in the matter and made extensive parenting orders, including that the children, [X], [Y] and [Z], live with their mother at all times other than when the orders provided they live with their father. 

5. Her Honour provided that the children live with their father during school terms, commencing first week of school term, from after school Friday to before school Monday in week 1, and from after school Wednesday to before school Friday in week 2, that time coming within the definition of substantial and significant time in the Act.

6. Her Honour made other orders for the time the children live with the father on special occasions, making provisions for Father’s Day, Mother’s Day and for the children to spend half of each school holiday with each of their parents. 

7. Changeover was to occur at the children’s school when the orders so provided, and at other times changeover by the father collecting the children from outside the mother’s residence at the start of his time and the mother collecting the children from outside the father’s residence at the conclusion of the children’s time with the father. I note that the order says the mother’s residence, but that is an obvious error.

8. There was definition of school holidays. 

9. Most particularly for the purpose of the interim hearing, her Honour then made orders that each party was restrained from denigrating the other party in the presence or hearing of the children or permitting any third person to do so, each party restrained from discussing the proceedings with the children, and each party was restrained from using illicit substances when the children are in their care and 24 hours prior. 

10. Her Honour made orders providing that the Independent Children’s Lawyer could make request that each of the parties or the particular party to whom the request is directed, within 48 hours of request, submit to a chain of custody hair follicle test for detection of illicit drugs/substances, including amphetamines, cannabis, opiates, cocaine and/or drugs of abuse, including prescription medication.  The orders went on to provide some detail of the requirements for the parties to submit to the hair follicle testing. 

11. At that time, her Honour made an order, being order 12 in those orders made on 4 October 2018, that the father not bring the children into contact with his partner, Ms D, nor her children, [E] and [F], during times the children are living with their father, save for when the children are attending school. 

12. On that occasion, her Honour also made a consent order providing that, within 48 hours of a request by the independent children’s lawyer, each party submit to a carbohydrate deficient transferrin test in relation to alcohol use and consequent orders for facilitating that testing. 

13. Her Honour then adjourned the matter to 18 December 2018 for further mention.

14. Subsequent to those orders of 4 October 2018, the father filed an Application in a Case seeking that order 12 made by her Honour on 4 October 2018 relating to the restraint on the father bringing the children into contact with his partner, Ms D, be vacated.  The mother filed a Response to that Application in a Case seeking that the Application in a Case be dismissed with costs.

15. On 18 December 2018, her Honour adjourned the matter to 15 February 2019 for interim hearing of that Application in a Case and Response to Application in a Case, and her Honour made an order for preparation of a Family Report pursuant to section 62G of the Act.

16. On 15 February 2019, her Honour made an order that order 12 of the orders made 4 October 2018 were discharged. 

17. The matter was placed in a call-over before Judge Boyle at 9.30 am on 16 December 2019 and at the present time the matter remains so listed. 

Background to These Proceedings

1. On 12 March 2019, the Applicant father filed an Application in a Case seeking an interim order that the children live with him and that they spend time with their mother, firstly, on certain conditions in relation to her asserted drug use, and thereafter spend time to a large extent mirroring the time that the father had been spending with the children. 

2. That Application was filed subsequent to both parties, at the request of the Independent Children’s Lawyer and pursuant to the relevant order made by her Honour on 4 October 2018, undergoing a chain of custody hair follicle drug testing procedure.  The results of those procedures are before the Court and, in particular, the results of the mother’s testing dated 27 February 2019 by … Laboratories indicated that the mother’s hair follicle specimen had tested positive for cocaine/metabolites, cocaine, benzoylecgonine and norcocaine.

3. The mother subsequently filed with the Court her Response to Application in a Case in which she sought that the children continued to reside with her pursuant to the orders made on 4 October 2018, subject to her submitting to weekly urinalysis tests under the Australia and New Zealand standard and a negative result being provided in relation to those tests.

4. In the event that a positive urinalysis test resulted, then the children live with the father and the mother spend time with them from after school Friday till before school Monday each alternate weekend, supervised by one of the maternal grandparents, and extending to 4 pm on Wednesday should such time form part of the school holiday period. 

The Evidence

1. In support of the father’s Application in a Case, the father relied on an Affidavit affirmed by him on 11 March 2019 and, at the interim hearing, he filed in Court an Affidavit affirmed by him on 21 March 2019. 

2. At interim hearing, the mother relied on her Affidavit affirmed 19 March 2019. 

3. Before the Court on interim hearing was a Child Dispute Conference Memorandum to Court prepared by Family Consultant Ms G and dated 14 September 2018 resulting from interviews conducted by Ms G on 14 September 2018. 

4. In the course of the interim hearing, documents were tendered by Counsel for the mother and became exhibit A1, being a medical certificate for the mother from Dr H dated 21 March 2019, and three purported test result documents from Suburb J Medical Centre in relation to “urine drug screen” for services provided on 8 March, 15 March and 20 March 2019. 

5. The documents from Suburb J Medical Centre were each tax invoices showing payment of a fee for testing but not indicating a result of such testing.  The medical certificate reads as follows:

   This is to certify that I have examined Ms Lemus on 21 Mar[ch] 2019.  Ms Lemus was chaperoned urinary drug screen today, which was negative for cocaine, amphetamine, methamphetamine, morphine, benzodiazepine and THC.

6. That medical certificate gives no indication of any “chaperoned urinary drug screen” being conducted under the applicable Australia New Zealand standard or, indeed, in what manner the test was undertaken and what standards were applied. 

7. In the father’s Affidavit affirmed by him on 11 March 2019, he gives some detail of the history of the relationship between the parties and, in paragraph 6 thereof, he refers to, and annexes, as Annexure A and Annexure B, the results of the hair follicle tests undergone by himself, being Annexure A. That test result indicates a negative result for amphetamine, methamphetamine, cocaine/metabolites, opiates, phencyclidine and THC metabolite. In Annexure B the mother’s result, as I have already mentioned, from the annexure to her affidavit, shows positive for the cocaine metabolites. 

8. In the father’s Affidavit he goes on, in paragraph 7 and thereafter, to give evidence of use of illicit drugs by both himself and the mother during the course of their relationship. 

9. In paragraph 8, the father gives detail of a purported conversation on 15 February 2019 between himself and the three children, in which a person referred to as “Mr A” is mentioned as interacting with the mother.

10. In paragraph 9, the father gives evidence that, during the parties’ cohabitive relationship, it was asserted to him by the mother that she had a cocaine dealer’s number whose name was Mr A. 

11. The father goes on in his evidence to indicate that, having received the mother’s hair follicle drug testing result sheets showing the positive reading for the cocaine/metabolites on Friday, 8 March 2019, he attended at the children’s school at about 1.30 pm and picked them up from school. This led to an SMS text message conversation between the parties which the father attaches as Annexure E to his Affidavit. 

12. The father indicates that the children stayed with him over the Friday night of 8 March 2019 and that, on the next day, 9 March 2019, the child [Y] attended a sleepover with one of his friends intending to have a sleepover for the Saturday night.  The arrangement was changed from a sleepover the Saturday night to [Y] staying there for a play date for a few hours.  The father deposes that, when he went to collect [Y] from the play date, he found that the mother had already collected [Y]. 

13. The father’s affidavit affirmed 21 March 2019 and filed in Court at the interim hearing, responds to certain matters deposed to by the mother in her Affidavit relied on in the interim hearing, principally going to deny matters related by the mother in conversations that she asserts she had with the children at various times after 8 March 2019.  In that affidavit, the father confirms that, on 11 March 2019, all three children were collected by the mother from school, that he was present at that time, and that:

    To avoid any unnecessary conflict, I left the school so that [X] would not be confused about who would be collecting him.

    The father is not explicit in that evidence but it is explicit in the mother’s evidence that [Y] had been in the mother’s principal care since Saturday, 9 March 2019 and that [X] and [Z] had been in the mother’s principal care since 11 March 2019. 

14. In the mother’s affidavit affirmed 19 March 2019, she also gives some history of the relationship.  She asserts in paragraph 14 thereof that:

    Prior to separation, I was the children’s primary carer.  In my absence, the children would be cared for by either my parents. 

15. On its literal interpretation, that would seem to say that at no time were the children cared for by their father.  The mother asserts in her affidavit that she is not currently in a relationship with anyone. 

1. At paragraph 26, the mother deposes that [X] has been diagnosed with level 1 Autism Spectrum Disorder, anxiety and possible ADHD.  The mother deposes [X] previously attended upon Dr K at Suburb L; however, of more recent times, he was to attend an appointment with Dr M on 7 May 2019.

2. The mother deposes that both [Y] and [Z] have appointments to be assisted by Mr N at the Child Psychology Centre at Suburb O.  The mother annexes to her affidavit as Annexures A and B, some email reports and a report by way of a letter dated 22 July 2018 by Mr N about his interaction with [X] and [Y]. 

3. The mother deposes that she is employed with Employer and has been in that employment for 13 years, and that she currently works four days a week between 7.30 am and 3.30 pm, and that when she is at work, her parents assist with the morning routine and school drop-off, and often assist her in the afternoons.

4. The mother further deposes, under a heading ‘My Mental Health & general health’, that, from 2011 to the time of affirming the affidavit, she frequently attended upon Ms B at … Psychology for treatment and review to assist her with previous diagnoses relating to obsessive compulsive disorder and depression.

5. The mother deposes that, in June 2017, she began to feel that she was not coping and obtained a referral to see a psychiatrist, Dr C. 

6. In paragraph 52, the mother deposes that she has:

   Scheduled an appointment to attend upon Dr C on 17 May 2019 which is the earliest available appointment

7. At paragraph 54, the mother deposes to an episode on 12 February 2019 when she began crying at work:

   I was feeling severely depressed

8. The mother received some assistance on that day from her manager at work and consulted her general practitioner.  The mother deposes that she has had counselling thereafter with Access EAP on 12 February 2019, a counselling service provided through her employment.  She indicates that she has continued fortnightly appointments with Ms B from Access EAP and she indicates that she has disclosed to Ms B her drug use. 

9. Under a heading ‘Mr Lemus’ Mental Health’, the mother gives some evidence in relation to her perception of the father’s mental health situation, but that is not a matter that will be taken up by me in these reasons and in making this decision, given that it is inherent in the orders sought by the mother that she does not perceive the father as being a risk to the children in the area of his mental health. 

10. Under the heading ‘History of Drug Use/Alcohol’, the mother gives detail of the drug use that she asserts was mutual between herself and the father during their relationship and, significantly, in paragraph 73 thereof, the mother deposes:

    Mr Lemus would often buy the cocaine from his employee, Mr P, or, if Mr P was unable to source cocaine, we would arrange to buy cocaine from a mutual acquaintance, Mr A.  Mr Lemus would always pay cash for the cocaine or give me the cash to pay Mr A

11. Paragraph 74, the mother deposes:

    Following our separation, as my financial means were limited and as I knew that I had to stop taking drugs to better my life and that of my children’s, I reduced my use of cocaine significantly

12. The mother then deposes that the last time she used cocaine was on 15 and 16 February 2019, following an attendance at this Court.  She deposes:

    The children were not in my care

13. The mother then deposes that, prior to that time, she used cocaine on 25 December 2018, whilst the children were in the father’s care.  She further deposes that, on 15 September 2018, following another attendance at this Court, she used cocaine whilst out at a social gathering.  She deposes that:

    The children were not present

14. The mother then refers to the orders made by Judge Boyle on 4 October 2018 and, in particular, the restraints that I have detailed earlier in these reasons relating to discussing the proceedings with the children, using illicit substances when the children are in parents’ care or 24 hours prior, and the order in relation to undergoing a hair follicle drug test within 48 hours of request by the Independent Children’s Lawyer.  The mother also refers to the carbohydrate deficient transferrin test and indicates that, to the date of affirming this Affidavit on 19 March 2019, she had not received a request to undergo that testing. 

15. The mother then concedes, as she has no option otherwise, that, on 22 February 2019, she submitted to the hair follicle test for the detection of illicit drugs/substances in accordance with the request made by the Independent Children’s Lawyer on 20 February 2019.  She attended the drug detection agency for that purpose and, as referred to earlier, she annexes a copy of the test results as Annexure C to her affidavit. 

16. In paragraph 87of her affidavit she says:

    Although I expected a positive reading, the result was confronting and made me realise that I needed help.

17. Then, in paragraph 88, the mother details certain steps that she deposes she has taken since receiving the positive test results. 

18. In the balance of the Affidavit, the mother deposes to the events that took place following the positive test results being made known to the father, including his collection of the children from school on 8 March 2019, her collection of [Y] in the afternoon of 9 March 2019, and her collection of the children from their respective schools on 11 March 2019. 

19. The mother then goes on to give evidence of conversations she asserts that she has had with the children since 11 March 2019, in which the children’s statements indicate that there has been a breach of the restraint order by the father.  

20. I note here that the mother’s evidence in paragraphs 92 to 98 of her affidavit dealing with conversations she asserts she has had with the children and statements made by them, whilst no doubt intended by the mother to reflect behaviour of the father in breach of the orders and not in the interests of the children, also reflects the effect upon these children of the mother’s relapse into drug use and that relapse coming to the children’s attention, however it so came, and the obvious emotional disturbance that that has caused to the children and, in particular, to [X] and [Y].  [Z] at six years of age is possibly not so aware, not so informed as to what it all means, and perhaps, not so disturbed as these paragraphs indicate [X] and [Y] are disturbed. 

21. Noting that an order was made by Judge Boyle on 18 December 2018 for preparation of a Family Report under section 62G, that report has not yet been prepared.

22. In relation to the credit of the parties, the interim hearing, as is the normal way, proceeded on the basis of the written materials and there is no necessity in terms of this matter to make comments or any findings in relation to credit of the parties in relation to the evidence they each give in their affidavit materials. 

The Applicable Law

1. In Goode & Goode,[1] the Full Court suggested in an interim application the Court adopt a certain framework, which is found in paragraphs 81 and 82 of that judgment in subparagraphs (a) to (k). I incorporate those paragraphs into these reasons:

   [1]Goode v Goode (2006) FLC 93-286.

   [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.

2. In the context of this interim hearing, there are any number of disputed facts. For instance, the material included by the mother in the final paragraphs of her Affidavit that I have referred to, being paragraphs 92 through to 98. That material is, in effect, denied by the father in his Affidavit affirmed 21 March 2019.

3. There are various other instances of disputed facts, but the principal facts giving rise to the issue in this interim proceeding are not disputed facts, being:

   a)That on about 20 February 2019, a request was made by the Independent Children’s Lawyer, pursuant to the orders made 4 October 2018, that each of the parties undergo a hair follicle drug test procedure;

   b)That the father’s test results showed negative in relation to the drugs for which he was tested;

   c)That the mother’s test results showed positive for the cocaine/metabolites referred to on her test result annexed to both parties’ Affidavit;

   d)That thereafter on 8 March 2019 the father collected the children early from school;

   e)That on 9 March 2019 the mother took [Y] back into her day-to-day care and he has so remained;

   f)That on 11 March 2019 the mother took [X] and [Z] back into her day-to-day care and they have so remained.

4. Accordingly, in this judgment, I do not need to traverse the various cases dealing with how a Court deals with disputed evidence in interim hearings and the difficulties that face a Court in those situations and how it should be approached.

5. Accordingly, I move on to the statutory pathway which the Full Court held in Goode & Goode should be followed by the Court on interim parenting hearings as well as final parenting hearings, starting with section 60B, which sets out the objects of part 7 of the Act relating to children and informs the process that the Court should adopt in approaching the making of parenting orders.

6. I incorporate section 60B into these reasons:

   (1)  The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a) to maintain a connection with that culture; and

   (b) to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii) to develop a positive appreciation of that culture.

   (4) An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.

7. Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child or children as the paramount consideration.

8. As has been held in several cases, including by the High Court, best interests of the child or children are the paramount consideration but not the only consideration.

9. Section 60CC of the Act provides that, in determining what is in the child’s best interest, the Court must consider the matters set out in subsections (2) and (3) thereof and, in particular, noting the weighting requirement in subsection (2A) applying to the primary considerations in subsection (2).

10. Importantly, in all parenting issues proceedings, interim or final, section 61DA provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child or children for the children’s parents to have equal shared parental responsibility for the children. When the Court is making an interim order, the presumption applies unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order.

11. In relation to these proceedings, as noted, Judge Boyle made fairly extensive parenting interim orders on 4 October 2018; however, they did not include an order in relation to parental responsibility. It is incumbent upon the Court to consider parental responsibility in all parenting proceedings because that is the requirement of section 61DA, whether or not it is an issue put in play by the parties.

12. The presumption under section 61DA applies unless certain exceptions are found, being a finding of family violence or a finding that there has been abuse of a child or children. In this matter, I do not propose to make any interim order relating to parental responsibility but, rather, to leave the parents in the situation in which they have been since the birth of each of the children, that is, that section 61C applies, pursuant to which the parents each have parental responsibility for the children. That is a different concept to the parents having equal shared parental responsibility.

13. I note that, when the matter was considered on an interim basis on 4 October 2018 by Judge Boyle, her Honour did not proceed to make an order disturbing the section 61C situation and I do not propose to do so now.

14. In that regard, and to deal with the section as I am required, I make a finding that, in these circumstances, it is not appropriate for the presumption to be applied when making these interim orders. 

15. That being the case, it is not necessary for me to go on and consider the matters referred to in section 65DAA of the Act, that is, to consider whether the children spending equal time with each of the parents would be in their best interest and to go through the triple consideration of issues required by that section pursuant to the High Court’s decision in MRR & GR[2] or, if I were to consider equal time and reject it, I do not need to go on and consider whether substantial and significant time with the parent with whom the children do not live the greater part of the time is appropriate under the triple consideration requirement, once again as set out by the High Court in MRR & GR. 

[2]MRR v GR (2010) FLC 93-424.

Primary Considerations

1. Accordingly, I turn to section 60CC and the matters detailed therein. In section 60CC subsection (2) the primary considerations are:

   a)The benefit to the children of having a meaningful relationship with both of their parents; and

   b)The need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. 

2. In this matter it is subsection (2)(b), the need to protect the children, which is really the point in issue between the parties consequent upon the mother’s relapse into drug use and possible effect that can have on the children if it continues, and what can be done to address any such risk. 

3. Considering, as I am required to do, firstly, the primary consideration in subsection (2)(a), the benefit to the children of having a meaningful relationship with both parents, it is inherent in not only the evidence filed by the parties for the interim hearing but also in the orders made by Judge Boyle on 4 October 2018 that each of these children does have a meaningful relationship with each of their parents. 

4. The orders made on 4 October 2018 provide for the children to live principally with the mother but to live with the father at other times, being each alternate week from after school Friday to before school Monday and, in the other week, from after school Wednesday to before school Friday. That meets the definition in the Act of substantial and significant time.

5. Turning to primary consideration (2)(b), the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, as I have already said, the issue is the mother’s relapse into drug use, the effect on the children of that relapse, and the effect on the children and the risk to the children of any continuation or recurrence of that relapse on the part of the mother. 

6. Accordingly, what the Court is dealing with in this interim hearing is a risk case.

7. In submissions to the Court on the interim hearing, Counsel for the father submitted that the risk to the children was in several respects, that the risk was an unacceptable risk and, in the counsel’s submission, the Court is unable to assess the extent of that unacceptable risk in the absence of a medical report in relation to the mother’s mental health and expert evidence as to the effect of the mother’s cocaine use on her mental health issues or on her current medication regime. 

8. Counsel for the father submitted that risk to the children is also found in the mother’s interaction, on the evidence, with the person ‘Mr A’, the mother conceding in her material that the person known as ‘Mr A’ has sold drugs to the parties and, by open interpretation of her wording in her Affidavit, to herself in the past, and that bringing the children into the presence of, into contact with, or taking them to premises occupied by a person who deals in drugs is inherently to place the children at risk. 

1. Counsel for the father conceded that, on the evidence, it could not be said as fact that the mother had breached the order made by her Honour on 4 October 2018, in that it could not be said that she had used illicit substances when the children were in her care or for 24 hours beforehand. Counsel submitted that there was an inference that, if the mother is prepared to buy drugs from the person ‘Mr A’ while the children are in her care, as deposed in the father’s affidavit dependent upon his conversations with the children, then there is an inference that can be drawn that she is prepared to use drugs whilst the children are in her care. 

2. Counsel for the father submitted that the mother’s re-engagement with her psychologist and her psychiatrist, as detailed by the mother in her Affidavit at paragraph 88, was reactive to being found out by the positive results in her hair follicle drug test results and was not action undertaken by the mother in self-realisation of her relapse into drug use but was, in his submission, in effect, a panic reaction to being found out by the test results. 

3. Counsel for the father made some extensive submissions in relation to issues surrounding the mother’s mental health, principally resting those submissions on a risk to the children in the mother’s full-time care consequent upon there being a cessation in the mother’s engagement with her health professionals, psychologist and psychiatrist until she re‑engaged by, in that counsel’s submission, reaction to the positive test results.

4. In submissions on behalf of the mother, Counsel, in addition to tendering the documents I referred to as Exhibit A1, made a very brief submission as to the nature of the risk involved in cocaine use as against use of other illegal substances of like nature, such as heroin or ice.

5. The Court is quick to say that such a submission does not carry any weight in alleviating the assertion of risk.  Use of illicit drugs whilst children are in care, or shortly before children come into care, would always, I would suggest, be seen as a risk factor relating to the care of children. 

6. The documents that were marked Exhibit A1, being the medical certificate dated 21 March 2019 and the three receipts for urine drug screening, do not assist the Court in any material way, being totally lacking in detail as to the manner in which the tests were applied, whether there was application of the Australia New Zealand standards and so forth.  It is unfortunate that, if the mother did undergo urine drug screen testing under the required standard with chain of custody on 8 March, 15 March and 21 March, that the results were not available to the Court. 

7. Counsel for the mother stressed that the mother had engaged with her health professionals, being her psychologist and her psychiatrist, and referred to the mother’s evidence in her Affidavit affirmed 19 March 2019, as to the appointments with those health professionals that the mother had coming up, but Counsel was not able to overcome the strong inference that the mother’s re-engagement with those health professionals was, as submitted by the father’s Counsel, reactive to the positive drug test. 

8. Counsel for the mother stressed that, on the totality of the evidence before the Court on the interim hearing, there was no evidence on which it could be said as a fact that the mother had breached order 8 of the orders made 4 October 2018 in relation to restraint from using illicit substances when the children are in her care, or 24 hours prior.

9. It remains a fact not in dispute that the mother has admitted to drug use over the preceding months, and including in February of 2019, deposing that such drug use has not been while the children are in her care, but, nevertheless, a relapse into drug use, if it is relapse, or a continuation of drug use by the mother, does present a risk to the children.  Bringing the children into contact with a person who, on the mother’s own evidence, has in the past been a supplier of illicit drugs to the parents does amount to an unacceptable risk to the children. 

10. Counsel for the mother asserted that any risks to the children found on the evidence can be managed by orders going to restraints on conduct and utilisation of the maternal grandparents as a safeguard. 

11. Submissions by the Independent Children’s Lawyer referred to the lack of detail contained in the document marked as Exhibit A1, purporting to be urinalysis drug testing for the mother.

12. The Independent Children’s lawyer indicated that, whilst he supported a change or suspension of the mother’s time with the children, or supervision thereof whilst she established that she was remaining free of use of illicit substances, he did not support the orders sought by the father in his Application in a Case that, on an interim basis and going forward, the children live with him and, after provision of negative drug-testing results, spend defined time with the mother.

13. The Independent Children’s Lawyer indicated that he did support the orders made 4 October 2018 continuing, subject to the mother being able to satisfy the father and the Independent Children’s Lawyer and, ultimately, the Court, on an ongoing basis that she is now remaining drug free. 

14. The Independent Children’s Lawyer submitted that there may be utility in an order for random urinalysis tests.  He submitted that there should be a restraint on the mother bringing the children into contact with the person known as ‘Mr A’ or taking the children to any premises where ‘Mr A’ is residing, or is present, or having ‘Mr A’ come to any premises where the mother is residing and caring for the children. 

15. Toward the end of the interim hearing, I asked Counsel for the mother if the mother would object to an order restraining her from bringing the children into contact with ‘Mr A’, or taking them to any premises where ‘Mr A’ is known to be present. Counsel for the mother indicated that the mother had no objection to such an order. Counsel for the mother also indicated that the mother would consent to the provision of a report in relation to her mental health condition by her treating psychologist, Ms B. 

16. Returning to section 60CC(2), the primary considerations, and principally, the need to protect the children from physical or psychological harm, which under subsection (2A) is to be given greater weight in consideration over the benefit to the children of having a meaningful relationship with both parents.

17. In this regard, the mother’s use of drugs was made an obvious and specific risk factor as seen in the orders made by Judge Boyle on 4 October 2018. It does present a risk to the children. 

18. When there is a risk, the Court must assess that risk to determine if it amounts to an unacceptable risk.  If it does amount to an unacceptable risk in the opinion of the Court, then the Court must decide if that unacceptable risk can be addressed by orders, or if it amounts to such an unacceptable risk as there must be a cessation of any contact between the parent presenting the risk and the children.  I hasten to say that, in this matter, it is not one where there is an unacceptable risk that amounts to a need to cease contact between a parent and the children.

19. In this matter, the Court assesses the risk as an unacceptable risk in circumstances of the mother using illicit drugs.  If the mother refrains from using illicit drugs, then that unacceptable risk is removed. 

20. At the moment, the Court cannot have any great confidence that the mother, on a long-term basis, will refrain from using illicit drugs.  At the time that she did relapse into drug use, on her own admissions in her Affidavit affirmed 19 March 2019, being, sequentially, 15 September 2018, following a Court event, 25 December 2018, being Christmas Day and whilst the children were in the father’s care, and 15 and 16 February 2019, surrounding a Court event, there is a significant risk that the mother will relapse and again abuse illicit drugs.

21. That unacceptable risk is ameliorated if the mother continues to engage, as she deposes she has re-engaged, with health professionals, being her psychologist, Ms B, and her psychiatrist, Dr C, and if the mother is subject to further random testing of both hair follicle and urinalysis to ascertain if she has relapsed and, once again, abused those drugs, whether or not the children are in her care at the time of use.

22. The Court considers that, with appropriate orders to address the unacceptable risk in that manner, it will be appropriate, on the ongoing interim basis, for the children to remain principally in the mother’s care as provided in the orders of 4 October 2018, subject to a complete change of live-with for the children in the event that the mother is shown to have relapsed into drug use on further random testing.

Additional Considerations

1. The Court is required to consider, in ascertaining what parenting orders are to be made in the best interests of the children, those additional considerations found in section 60CC(3) of the Act, and I turn to those considerations now.

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. The only assistance the Court has in relation to the children’s views is principally found in the Child Dispute Conference Memorandum to Court prepared by the Family Consultant, Ms G, and dated 14 September 2018 from interviews held that day.

2. At the time of that Child Dispute Conference Memorandum to Court, a live issue with at least some of the children was their engagement with the father’s new partner, Ms D.  That issue was the subject of one of the orders made by Judge Boyle on 4 October 2018 and that order was, as I have said, removed by Judge Boyle in the orders made on 15 February 2019. 

3. The material in relation to children’s wishes and preferences in that report was anecdotal from the parents, it being a Child Dispute Conference report, not a Child-Inclusive Conference report, and the evidence of the parties is no great assistance to the Court in determining what the children’s wishes may be at any particular time. 

4. In relation to [Z], his wishes would not be given any great weight by the Court, he being six years of age, which is still two years below what is known as the “cognitive age” for children, when they begin to make decisions based on primitive logic and reasoning, as opposed to instinctive. 

5. [Y] is 10 years of age and, therefore, still below the age where his wishes would be given great weight by the Court.

6. [X] is 12 years of age and, therefore, coming into the age range where his wishes would be given some weight by the Court.

7. In the context of these proceedings, where the issue is risk and where the children have, from the separation of the parties up until the present time, been principally in the care of their mother and have spent time with their father pursuant to the orders made 4 October 2018, I do not consider that the wishes of the children are going to have great weight in making the orders required to address the risk identified in these reasons. 

The nature of the relationship of the child with: (i) each of their parents; and (ii) other persons (including grandparents or other relative of the child)

1. I consider that I only need to note here that the children have not only a meaningful relationship with each of their parents but there is no indication in the evidence to show that the children have anything but a close and loving relationship with their parents.

2. This is subject to some statements attributed to the children of some dislike of spending time in their father’s home, particularly when the father’s new partner, Ms D, and her children, may have been present.

3. Once again, I do not consider that that element has any great weight in addressing the risk issues in this case.

The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child

1. I do not consider that this element is of great assistance or concern in the Court’s consideration of what is required to address the issue of risk in this case. 

The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

1. I do not consider this is of great weight in the considerations in addressing the risks issues in this case. 

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. In the event that the Court accedes to the orders sought by the father in his Application in a Case and orders that the children live with the father and spend defined time with the mother, then there would be a significant change in the children’s circumstances, in that, since the separation of the parties occurring in July 2017, some 20 months ago, the children have been in the principal care of the mother and have spent time with the father as arranged between the parties and then as defined following the orders of 4 October 2018.

2. The Court does not have the assistance of any report, or indeed evidence, that would provide an evidentiary basis to assess what the effect of that change would be on the children or any one of them.

3. It may be that the nature of the relationship between the children and their father is such that they could cope with such a change in circumstances, though the Court may suspect or infer, but cannot know, on evidence, that there may be a period of a feeling of loss and anxiety, particularly by the younger children, [Z] and [Y], if they go to live with their father pursuant to the orders he seeks, rather than with their mother. 

4. It is important to note that, on the evidence of the mother, not contested by the father so far as was open to him to know, that, on Saturday, 9 March this year, after the father had taken the children into his care the preceding day, [Y] is asserted to have contacted his mother while at the friend’s place for a play date and requested that she pick him up and, in effect, take him back into her care. 

5. That circumstance can be seen by a Court as an indicator, not only of a preference by [Y], though his wishes, as I have said, would not carry any great weight, but also that he prefers to be in the full-time care of his mother in circumstances where he possibly knew at that time that his father had collected he and his brothers from school with the intent that they would be in their father’s care.

6. On the basis of both the mother’s and the father’s evidence, the children knew that at least something had gone wrong in the mother’s life, probably knew that that something related to drug use, and despite that knowledge, on the mother’s evidence, [Y] has expressed through his actions a preference for being with her.

The Practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. This consideration is not germane to the issue in these interim proceedings.

The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

1. Under this consideration, it has to be commented that, though the mother gives evidence of the anxieties, pressures and stresses which, when coupled with her previously diagnosed and properly admitted mental health difficulties, led her to slide back into drug use on, she deposes, three occasions between September last year and February this year, though those reasons are expressed by the mother, they do not overcome her slide back into drug use being absolutely contrary to the best interests of the children and, in particular, to the best interests of the children when they were in her principal care on a day-to-day basis. 

2. Drugs are made illegal for reasons.  Those reasons can be various, including the physical and medical effects of those drugs to the detriment of users, but also the possible effect on other innocent third parties caused when persons misuse drugs and, under the influence of those drugs, interact with third persons.  In this particular case, we are talking about third persons who are the children, [X], [Y] and [Z]. 

3. The mother has shown a distinct lack of parenting ability in choosing to relapse into the crutch or prop of drug use to address her personal mental health and/or emotional difficulties and, in doing so, disregarding for that purpose what is in the best interests of the children. That reflects on the mother’s parenting capacity. The Court has to weigh that reflection on the mother’s parenting capacity with all of the other considerations, both the primary considerations and the additional considerations in section 60CC, in determining what is in the best interests of these children on the interim basis.

4. These proceedings have, it would be hoped, been a loud clanging warning to the mother of what can, and indeed, what must, happen if she again decides to choose self-medication with illegal drugs over what is obviously in the best interests of the children.  I express that warning in the starkest possible terms and, as the mother will eventually read, that warning is expressed in the nature of the orders that will be made in these reasons. 

The maturity, sex, lifestyle and background of the children and the parents. 

1. I do not consider that is of assistance in these circumstances.

2. Consideration (h) in relation to a child with Aboriginal or Torres Strait Islander background is not relevant in these proceedings.

Any family violence involving the child or a member of the child’s family; and whether a family violence order applies

1. Considerations (j) and (k) going to any family violence and any family violence order, whilst always important, and whilst family violence is one of the principal matters that the Court keeps in mind in all parenting proceedings, affecting as it does, right at the very start of consideration of parenting orders, whether or not the presumption of equal shared parental responsibility is to apply.

2. In these proceedings, it is the risk to the children of the mother’s use of illicit drugs that is the main issue and consideration of any allegations of family violence is not going to be a determining factor when weighing up all of the considerations in section 60CC.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. In this regard, I will not re-labour the point. 

2. The Court refers to the comments that I have made in relation to factor (f), dealing with the parenting capacity of the parties and the mother’s demonstration of her serious lack of parenting capacity on occasions when she decides to choose self-medication with illicit drugs over what is in the best interests of her children.

3. If the mother, once again, shows that lack of parenting capacity, shows that her attitude to the responsibilities of parenthood are such that she chooses the easy road to self-medication to address her problems over the best interests of the children, then, in those circumstances, the orders will trigger what one might refer to in these interim circumstances as the ultimate sanction without breaking the relationship between parent and child, that is, the children going to live with their father. 

Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. In this regard, the Court has given consideration to the possibility of further proceedings in the event that the mother once again is shown to have relapsed into drug use, and the orders that will be made at the end of these reasons seek to address the possibility of such a relapse and to prevent the need for further interim proceedings to address the risk inherent in such a relapse. 

2. In weighing all of the considerations in section 60CC, both the primary considerations and the additional considerations, and certainly in weighing those considerations in the context of there being an unacceptable risk to the children in circumstances of any continued use or abuse of illicit drugs by the mother, the Court considers that it is in the best interests of the children at the present time to remain in the principal care of the mother.

3. The mother is to be subject to certain restrictive orders on conduct and the mother is to be subject to orders relating to both random hair follicle testing and random urinalysis testing at the request of the Independent Children’s Lawyer.

4. It is in the best interests of the children to safeguard against the further emergence of unacceptable risk in the event that the mother does again relapse into drug use by providing what will happen in the event that the mother presents a positive result to any of the drugs the subject of the testing referred to above.

5. Accordingly, I make orders as set out at the start of this judgment.

I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge Morley

Date: 30 May 2019