Mason and Gilbert

[2018] FamCA 826

FAMILY COURT OF AUSTRALIA

MASON & GILBERT [2018] FamCA 826

FAMILY LAW – EVIDENCE – section 128 certificate where father declines to provide evidence without the protection of the certificate – where in the particular circumstances, the court needs the evidence so that the father can explain why the children have acted as they have and why he, if at all, has prejudiced their relationship with him – certificate should only be issued where evidence is compelled to be given – it is appropriate here to make an order for husband to comply with the filing affidavit.
FAMILY LAW – CHILDREN – Interim Parenting Orders – where it is alleged that the father has provided drugs to a 13-year-old – where the father says there is no risk or low risk – when the court considers that the risk is not appropriate and supervised time should occur until further order.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346

APPLICANT: Ms Mason

RESPONDENT: Mr Gilbert

INDEPENDENT CHILDREN’S LAWYER: Hartleys Lawyers

FILE NUMBER: MLC 10116 of 2007

DATE DELIVERED: 15 October 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Moisidis

SOLICITOR FOR THE APPLICANT:	Geelong Family Lawyers
COUNSEL FOR THE RESPONDENT:	Mr Werner

SOLICITOR FOR THE RESPONDENT: Meerkin & Apel Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Dosanjh

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Hartleys Lawyers

Orders

1. That a certificate is issued pursuant to section 128 of the Evidence Act 1995 (Cth) in respect of the evidence of Mr Gilbert contained in the affidavit sworn by him and filed with the Court on 10 October 2018 and to which a copy of the said certificate is attached.

2. That the father's time with the children X born … 2003 and Y born … 2005 under the orders made in 2012 is suspended until further order.

3. That the father spend time with the children under supervision at such times and in such places, as can be organised with the appropriate supervisor.

4. That any supervisor other than a Commonwealth Government certified contact Centre provide to the court a personal undertaking as to the supervision role under the orders before any such supervision commence. That the necessary undertaking be drawn by the Independent Children's Lawyer and relate not just to the provision of illicit substances, but also all discussions about relationships associated with drug usage including the relationship with each other parent.

5. That the father initiate electronic communication with the children on each Saturday from 10:00 am to 10:30 am and Mondays between 8:00 pm and 8:30 pm with the mother ensuring that the children are available at those times.

6. That all outstanding applications be otherwise adjourned to a date to be fixed and added to list of cases awaiting allocation to a judicial docket.

BY CONSENT OF ALL PARTIES:

1. That the father be restrained from exposing the children to any illicit substance whilst the children in his care.

2. That the fact that the father continued to attend upon Mr B for drug and alcohol counselling and follow the reasonable recommendations of that person. 

3. That the father undergo random supervised urine screens upon the request of the Independent Children's Lawyer within 24 hours of a request and provide the results of the same all parties.

4. Notwithstanding the intervention order, both parents be at liberty to attend any school or extra-curricular activities to which parents are ordinarily invited including, but not limited to, parent teacher interviews and sporting events. 

5. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

6. All interim applications are otherwise dismissed.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10116  of 2007

Ms Mason

Applicant

And

Mr Gilbert

Respondent

REASONS FOR JUDGMENT

1. Mr Gilbert (the father) seeks the resumption of his contact relationship with his two children aged 15 and 13.  Orders had been made by Bennett J on 22 August 2012.  Those orders provide for the father to have what might be described as standard time with the children.

2. Recently, allegations have arisen that the father had supplied marijuana to the older of the children. Because of the serious nature of that allegation, the father declined to file an affidavit without the protection of a certificate under the Evidence Act 1995 (Cth).

3. It is common ground that the conviction for an offence of that nature under state law exposes a person to serious penalties including imprisonment. 

4. In discussion with Mr Werner of counsel on behalf of the father, it became clear that the allegations had been made initially by the 15 year old to his school representative. The allegations were extensive and upon the mother (Ms Mason) becoming aware of them, litigation began which culminated in the father's time with the children being suspended. There is no doubt that the father has not acted appropriately but there is a difference between the courts focus of protection of the child along with the best interest’s principles and the States entitlement (if not obligation) to prosecute for a breach of its criminal laws.  The two do not sit comfortably together.

5. The father declined to say exactly what had occurred because of the probability of a prosecution.  However, he was under no compulsion to adopt the position he had; in reality, he was maintaining his legal privilege of silence.

6. In these cases, there is a temptation to adopt the view that if the father takes that position, the court should do the best it can with the available evidence. That might mean that the father's entitlement to parenting contact orders would be thwarted because the court might draw adverse inferences against him.  However, the dilemma lies in the fact that the court should only make a parenting order if it determines it to be in a child's best interests.  Here, that cannot be done when the court does not have all of the evidence that might be available.

7. The solution here lies in the court compelling the father to say what has occurred because, on all other indications, including from the children, there is a long-standing and strong relationship between the father and the children. That is not to say that it ought not change but the Court should have all of the evidence possibly available that will not only protect the children but also enable it to decide what is best for their futures.

8. Thus, it is important that the father tell the court exactly what did occur. That compulsion by order enables the Court to provide the protection to the father under s 128 of the Evidence Act 1995 (Cth) because he otherwise objects to providing the answers without the necessary protection.

9. In the circumstances, a certificate should issue in relation to the father's affidavit now to be provided.

10. Turning then to the interim parenting issue, the facts case can be succinctly set out below.  Final orders were made in 2012 under which the father had consistent contact with X and Y. It is uncontroversial that he has maintained that contact regime since 2012.  There is no dispute that there is a good relationship between he and the children.

11. Now before the court is an interim application by Ms Mason (the mother) filed on 25 July 2018 seeking that the father's time be at a contact service and that there be a raft of other orders made curtailing the relationship with the children. That is supported by the Independent children's lawyer.

12. By his response filed 1 October 2018, the father opposes the proposed course of the mother. He seeks unrestricted times save for agreeing to a variety of injunctions.  The issue is therefore of narrow compass but it revolves around the question of X having access to, or been provided with, illicit drugs by the father and whether the father’s proposal provides an unacceptable risk of harm to the children.

13. The evidence here must be cautiously approached because it has not been tested. This case was conducted in a busy duty list on submissions.

14. In Goode & Goode [2006] FamCA 1346, the Full Court set out the pathway to be followed in saying that the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and must have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

15. The Full Court went on to say:

    [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.

16. Since Goode (supra), s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) has been implemented which provides that a court may give reasons in short form for a decision it makes in relation to an interim parenting order. I intend to do that here.

17. In her evidence, the mother said that up until this year, the orders made in 2012 were “workable” and she had no significant concerns with respect to the care or welfare of the children. She said that on 25 May 2018 she was contacted by the school where X attends and was told that they had reason to believe that X would be supplied with drugs when he went to the home of his father. She then spoke to a leadership camp teacher who informed her that X had told him that his father had provided him with marijuana, nitrous oxide and mushrooms since January 2013. He told the teacher that he smoked marijuana with his father almost every second weekend after January 2017 and that over the Easter holiday when he was with his father, he smoked up to seven times per day.  The teacher also told her that X said that his father had given him 12 nitrous oxide bulbs and that Y was to be introduced to drugs on his 13th birthday.

18. The mother said that the teacher told him that X had indicated that both his father and his stepmother were supplying marijuana and that they also used it. He reported having an altered state of thoughts after using the nitrous oxide.

19. That brings in the evidence of Mr C from the children's school.  He was the person to whom the wife referred in the evidence just mentioned.  He said that on 22 May 2018 he spoke to X in a particular interview during which X described that he was using drugs such as marijuana.  X said that he had been supplied marijuana on a fortnightly basis since the start of his year eight at school when he was 13 years of age and he remembered collecting “magic mushrooms” with his father when he was eight years old.  Similar discussions took place about nitrous oxide use. X told Mr C that his father had purchased a pipe for him to smoke marijuana and he felt quite proud of it.

20. The father's position about that explosive discussion was that his son was “gilding the lily”. I returned to his version below. Mr C then said that he reported the discussion to the school principal and then made contact with a group involved in drug education.  He also contacted police to gain information on how best to proceed.  He had another discussion with X over 2 ½ hours to discuss what X had written in a form he gave him. X repeated much of what he had said previously.  However, he added that the effect of this drug usage was memory loss, paranoia and loss of consciousness.

21. Much of the focus of the present hearing was on the father's actions but the comment by X about his stepmother is equally concerning where she would have had responsibilities to assist the father as a person significant in the lives of the children. On the subject of the father's drug usage, which is admitted, the stepmother was silent.

22. Mr C said that he spoke to the Department of Health and Human Services and they were content with the mother’s actions in suspending the time between the children and the father. He also spoke to the mother who told him she was not aware that X had been using drugs or that his father had supplied them. 

23. To the extent that one might think this “gilding the lily” as counsel for the father described it, may have stopped after Mr C spoke to the mother, it did not. Mr C said that three days after the interview with X, the child returned from time with his father and exhibited behaviours of being withdrawn, distracted, showing lethargy and was hungry.  He asked X what was wrong and was told that he had been given a whole “joint” and that had taken place before returning to school and that his father had had one an hour before driving to the school activities.

24. As the term came to an end, X wrote a reflective piece wanting to “reduce the amount of chocolate cake” he consumed. When he was asked about what he was referring to, he said it was an alias that he and his friends used to conceal their discussions of the use of marijuana in public.

25. To reject a cautious approach to the parenting issue must mean that the court does not consider there is substance to the evidence of Mr C. Absent that evidence being tested, I could not reject it in circumstances where it is not suggested that the statements by X were not said but more concerning, it is not suggested that the observations of X were not troubling.

26. Remarkably, the mother's evidence was simply that she disagreed with the father supplying X with such substances and that she understood it was detrimental to X's health. I say remarkably because she gave no indication of what discussion she had with the children nor any observations of the type noticed by Mr C. If indeed this sort of drug usage had been extant as X had described it to Mr C, presumably there would have been some signs upon X being returned to his mother at the end of the weekend.  Whether the absence of that evidence was an oversight or not, I remain concerned.

27. The mother said that she telephoned a mother of a friend of X who told her that she had seen tall, green plants, with cannabis leaves growing, along the side of the father's house. This particular mother confirmed that she had reported her own son’s “disclosure” to the Department of Health and Human Services. 

28. The mother then said that as a result of what she was told by Mr C, she applied for an intervention order at the magistrates’ court naming the children as affected family members.  Some days later, she went back to the magistrates’ court where the father consented to the order without admission. That order allowed for the children to only communicate with the father every Saturday from 10:00 am to 10:30 am and on Monday from 8:30 pm to 9:00 pm by telephone and she was entitled to monitor the telephone conversations. 

29. The reaction of X was immediate. The mother said that approximately three hours after the intervention order hearing, X had been made aware of the order but that it did not come from her. She received an email from X which was scathing in its criticism of her about trying to stop the relationship with the father. X said “it's not even about the drugs anymore”. In other words, X seem to be suggesting that this was an excuse used by the mother to cease the relationship that X had with his father.

30. The mother was silent on the question of the nature of her relationship with X and Y subsequent to that email.  The evidence of the mother in relation to what it did not say was as concerning as the evidence of the father. 

31. The mother then sought orders for the father's time under the 2012 orders to be supervised.  That would obviously be subject to the intervention order but that shows that notwithstanding the restrictions imposed by the magistrates’ court, the father could do anything that was permitted by an order under the Family Law Act 1975 (Cth).

32. Initially it was submitted that the supervision was designed to protect the children against being given illicit substances but there must be wider considerations here including discussions about the seriousness of the drug usage, the involvement in the drug culture with its attendant risks of police involvement, the involvement of the criminal element in society but also, the impact of orders of that nature upon the relationship between the children and the mother. As such, this case is not simple. 

33. The father's evidence was that in about July 2017 X told him that he had been exposed to other teenagers using marijuana at his school, a skate park, and also by his older cousins who were nephews of the mother’s husband.  It is unclear what the father meant by the word “exposed”. The father said that he warned X about the harm in the use of marijuana but he believed it was a phase that X was going through and that he would grow out of it. The inference from that was that X was already using marijuana as early as July 2017.

1. Remarkably, being a parent also responsible for his children's health, as he had equal shared parental responsibility, the father did not contact the mother.  He said that in late December 2017 or early January 2018 when X was with him over the long summer holiday, the child asked could he have some of the father's marijuana. The father described himself as a light recreational smoker. He said he refused the request. Between January 2018 and April 2018, he noticed some of his marijuana was missing from a box in his bedroom and he suspected that X was taking some. He said he did not raise the subject with X. Why he did not raise the subject with X let alone the mother, is perplexing because during that period, he thought that X had taken marijuana from his house on at least six separate occasions.

2. That last piece of evidence links in my concerns as earlier expressed about the mother. If the marijuana was taken from the father's home, it presumably was used at times other than on the weekends with the father and therefore during periods of time when X was in his mother's care. If what Mr C observed as the physiological reactions of X to the use of marijuana, one might have expected that there would be some signs in X of having been at least smoking something. It will be remembered that the mother’s only evidence was that she was not aware of the father supplying substances. She was silent on the subject of what she knew about changes in X or indeed, of any discussions with him.

3. The father said that in relation to the specific evidence of Mr C, X had asked him to meet him and “bring” a “joint”. He then said that he initially refused but eventually relented and agreed to do so. He said he brought with him a small joint combined with peppermint tea. He said the joint was 95 per cent peppermint tea and 5 per cent marijuana. This was the “whole” joint that X told Mr C about and which Mr C expressed concern as a result of the physiological reactions that he observed.  Why the father relented was not said but he added that he appreciated it was wrong to assist X as he did and he regretted it. He had a “joint” is in his car and he allowed X to take it but curiously, he went in a different walking direction to X. That beggars belief.

4. That was particularly concerning because it occurred during the period of time that X was also discussing matters with the school.  X was quite open about this usage and whether he was “gilding the lily” or not, he presumably did not tell his father that he had spoken to Mr C. I am concerned that X was not embellishing or exaggerating the story but even if he was, there was certainly substance to the fact that he was using marijuana and Mr C observed the consequences.

5. Counsel for the father submitted that since the physical contact time had been terminated, he had undertaken supervised urine screens and those had all been “clean”. He said they had to count for something on the basis that the father had got the message.  He submitted that the Court had to take into account that the father also had two other children who were siblings of X and Y and they were being deprived of contact with their siblings. He pointed to the nature of the extant relationship since 2012 and the dedication of the father in driving from Suburb D to E Town as the mother refused to assist in any way in the travel.  It was uncontroversial that the father had a “solid” relationship with the children and there had now not been any physical contact for over four months.

6. Whilst the father did not deny the provision of marijuana on one occasion, he emphatically denied any suggestion about magic mushrooms or nitrous oxide bulbs.

7. Counsel submitted on behalf of the father that in terms of the test of unacceptable risk, the risk was low.

8. The mother’s application including at the interim level and indeed supported by the Independent Children's lawyer was that parental responsibility should vest solely in her. In this case it is not something that should be determined on submissions. The evidence needs to be tested having regard to the questions that I have raised about the mother’s involvement in all this. None of the matters in s 65DAC of the Act were canvassed, albeit I have already noted that the parental responsibility of both parents is limited, because they do not speak to each other.

9. With respect to the position of the Independent Children's Lawyer, her submissions did not advance matters much further. 

10. Of the issues that determine best interests here, the relevant factors are set out in s 60CC of the Act. It is important that the children have the benefit of a meaningful relationship with both parents. One must conclude at the moment that that relationship is strained but it is only a factor to be taken into consideration albeit is it is a primary consideration under the Act. It becomes less significant when one considers s 60CC(2)(b) of the Act which requires the court to consider the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Just how wide that definition is a matter of conjecture but I have no doubt that the physical harm arising from the drugs usage can clearly be seen in the observations of Mr C and X needs to be protected from that. He would certainly be protected from being provided with the drugs by the father if supervised but the evidence would tend to suggest that he is not necessarily getting it from his father alone. How his mother fits into the category of psychological harm as a consequence, particularly having regard to the contents of the text message that X sent her, I am unsure. In any event, s 60CC(2A) of the Act requires the court to give greater weight to the protection of the children than it does for them to have the benefit of a meaningful relationship if the two clash. They certainly do here.

11. Section 60CC(3)(a), (b), (d), (f), (i) and (k) of the Act are all additional considerations that need to be taken into account. There is no doubt that the children want to have a continuing relationship with their father as can be seen from the nature of the email that X sent to his mother. There is no doubt that they have a close relationship with their father but I am unsure of the nature of the relationship with their mother. It is important that the court contemplate how any changes to the extant orders would impact upon the children and here, there is a deafening silence. I do not know the nature of the conversations between the father and the children bearing in mind that the intervention order provided that the mother could monitor the calls.

12. The serious issue in this case is the question of the capacity of each of the parents to provide for the needs of the children including their emotional needs.  Each has a cloud over them having regard to the matters to which I have already referred.

13. A significant question that the Court must consider is the attitude to the responsibilities of parenthood. At its highest, the father says that he regrets what he did and that he is at least clean of drugs of late. It may be that it is a little too late for that sort of approach having regard to the fact that X seems to have involved himself in drug usage if he is to be believed in what he told Mr C.

14. I am very conscious that there is a family violence order here and the father agreed to it on the basis of a denial of wrongdoing. However, the facts now are much clearer and my only concern is whether or not the father is minimising his role in the dilemma. That cannot be determined without the evidence being comprehensively tested.  As such, the court must take a cautious approach. 

15. In my view, the balance of probabilities indicates that there is a risk here and that without the evidence being tested, the father's clean screens and the otherwise “solid relationship” do not assist me. Responsible parenting is much more than just giving up drugs. The siblings issue can be resolved as urged by the father pending trial by including those children and their mother in the supervised visits. I find the risk to these children of emotional and physical harm based on the father's proposal to be unacceptable. 

16. That finally leaves the concept of supervision.

17. The agreed “service” is apparently a private organisation. I know nothing of its structure. If the court takes supervision as seriously as I do, it is not appropriate to have an anonymous, privately paid, unstructured system put in place as part of the protection of the children. I intend to insist upon personal undertakings here to make clear what the supervisor is to be watchful for.  I expect the Independent Children's Lawyer to vet the “supervisor” to ensure, despite any such undertaking, that the person is appropriately qualified to take on what I consider to be an onerous responsibility. 

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 October 2018.

Acting Associate: 

Date:  15 October 2018