Mendall and Calpin & Anor

[2020] FamCA 332

FAMILY COURT OF AUSTRALIA

MENDALL & CALPIN AND ANOR [2020] FamCA 332

FAMILY LAW – INTERIM – History of illicit drug use – Orders for mother to undergo fortnightly drug testing – Where the results are to be provided directly to the ICL from the testing facility – Orders for the children to spend alternate weekends with the mother, with the time to be supervised by family.

APPLICANT: Ms Mendall

1st RESPONDENT: Mr Calpin

2nd RESPONDENT: Ms B Mendall

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 7987 of 2016

DATE DELIVERED: 6 May 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 5 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Finch

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE 1ST RESPONDENT: Mr Schonell SC

SOLICITOR FOR THE 1ST RESPONDENT: York Law Family Law Specialists

SOLICITOR FOR THE 2ND RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Blackman

Orders

IT IS ORDERED PENDING FURTHER ORDER

1. That within 48 hours of a request by the Independent Children’s Lawyer (“ICL”), the mother shall undergo chain of custody drug screen analysis to the Australian NZ 4308:2008 standard and shall direct that the test results be provided by the tester to the ICL.

2. That subject to the ICL being satisfied that the mother has, in the fortnight prior to the commencement of time with the children, provided a negative test result, then the children shall spend time with the mother from noon on Saturday 16 May 2020 until 5.00pm on Sunday and on each alternate weekend thereafter.

3. That changeovers are to occur a McDonalds Restaurant at Suburb C.

4. That in the event that the ICL is not satisfied that the mother has provided a negative test result in the fortnight preceding any scheduled time with the children, the ICL shall notify the father that he is not required to deliver the children and notify the mother that the contact will not take place.

5. That the time the children spend with the mother shall be supervised by one of the maternal grandmother, Mr D or the mother’s brother Mr MendallMr Mendall.

6. That the father cause the children to telephone the mother at 6.30pm on Monday, Wednesday and Friday commencing immediately upon the making of these orders.

7. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these Orders.

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 Mendall & Calpin 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 SYDNEY

FILE NUMBER: SYC 7987 of 20016

Ms Mendall

Applicant

And

Mr Calpin

First Respondent

And

Ms B Mendall
Second Respondent

REASONS FOR JUDGMENT

1. Ms Mendall (“the mother”) and Mr Calpin (“the father”) are the parents of X aged seven years and Y aged four years.

2. The mother has two younger children, Z aged two years and W aged one year. Z’s father, Mr F, does not spend time with him or have any contact with the mother. W’s father, Mr G, sees W at the mother’s home in her presence or at Mr G’s parent’s home in their presence. Mr G has been convicted of offences related to methamphetamine.

3. The maternal grandmother, Ms B Mendall, is a party to the proceedings. She has provided supervision of the mother’s time with the children in the past and offers to continue to do so.

4. The mother, Z and W live in the home of the maternal grandmother and her partner, Mr D.

5. The application before the Court is the mother’s application for unsupervised time with the subject children in the period leading up to the final hearing which will commence on 19 June 2020.

6. In the substantive hearing, the mother seeks orders that the children live with her. The father proposes that they continue to live with him.

7. The Court was assisted by an Independent Children’s Lawyer (“ICL”) appointed for the children and by a report from a single expert, Dr H, who is a clinical psychologist. Although senior counsel for the father has indicated that there will be substantial challenges to Dr H’s conclusions about the mother and the maternal grandmother, I do not understand that his observations of, and conclusions about the relationship of the children with the mother are challenged.

8. Whilst, for the purposes of the present application, the focus will be on the mother’s drug use, in the substantive hearing the issue of the father’s substance abuse will also be explored.

HISTORY

1. Some background information is necessary to give context to the discussion which follows.

2. The parents separated finally in April 2016. It appears not to be controversial that both parents had problems with substance abuse while they were together. Both used methamphetamines and the mother asserts that the father also abused alcohol.

3. The children lived with the mother and spent time with the father every alternate weekend.

4. In March 2018 the mother attempted suicide. Thereafter the children lived with the father.

5. In April 2018, orders were made for the children to spend time with the mother, supervised by the maternal grandmother, on alternate weekends.

6. In December 2018, the mother’s brother Mr Mendall was added as a supervisor.

7. In February 2019, the maternal grandmother made an application for the children to live with her. That application was heard on 1 April 2019 and dismissed.

8. After W was born in 2019, the mother either continued or resumed use of methamphetamines.

9. The circumstances of that occurrence, and the extent to which the maternal grandmother was aware of it, will be issues at trial.

10. It is not, however, in dispute that on or around 21 July 2019, the mother told her brother Mr Mendall and the maternal grandmother that she was using methamphetamines.

11. In circumstances that will be fully explored at the final hearing, the mother was admitted to the mental health unit at J Hospital where she remained for about two weeks. She was then discharged and returned to her mother’s home where she stayed for about two weeks. On 2 September 2019, she entered a rehabilitation facility. According to the assessment dated 2 September 2019, conducted at the rehabilitation facility, the mother disclosed she was using methamphetamines daily for the past seven years up to the time she was admitted to hospital.

12. On 23 July 2019, the solicitor for the maternal grandmother wrote to the solicitor for the father and the ICL advising that the mother had admitted herself “into the detoxification unit at J Hospital” and would then enter a rehabilitation facility. The maternal grandmother proposed that the children spend time with her while the mother was not available. The father did not agree. It is the father’s case that the true circumstances of the mother’s admission were concealed from him.

13. The father became aware that Mr G had been charged with drug supply and firearms offences and that Mr G remained in regular contact with the mother.

14. The mother was discharged from the rehabilitation facility on 1 October 2019. Thereafter, the father would not accept the mother’s brother or the maternal grandmother as supervisors and the children have spent time with their mother, professionally supervised, for two hours. At the time of the interim hearing, supervisors’ reports were available for four sessions of contact. The reports give no cause for concern about the mother’s ability to care for the children or the warmth of affection between her and the children.

15. The father objects to any change in the current arrangements before the final hearing. It is, broadly, his case that the maternal grandmother and the mother’s brother cannot be relied on as supervisors and that the Court could have no confidence in the reliability of the urinalysis testing provided by the mother.

16. The father’s concerns are not without substance.

17. It is not in dispute that urinalysis test results relied upon by the mother in a hearing in the Federal Circuit Court, which took place in November 2018, were altered by the mother to suggest that the tests were negative when, in fact, they were positive for methamphetamines. Those tests related to the period from August to October 2018.

18. The mother wrote in a letter to the father’s solicitor dated 21 August 2019 that she had tested positive for methamphetamines on 12 May 2019 but had not provided the test results. Those results have still not been provided.

19. In a letter dated 1 May 2020, the maternal grandmother stated that she had randomly requested the mother to have urinalysis tests “all of which has come back negative”. The test results commissioned by the maternal grandmother were tendered in the father’s case. There were negative results on 19 February 2019, 11 April 2019 and 22 August 2019. The maternal grandmother gave no evidence in relation to the request for testing on 12 May 2019.

20. Why the maternal grandmother, having asked for the test, did not insist on the test results, will no doubt be explored at trial.

21. It is also a matter of concern that, although the mother in her trial affidavit, deposes to using methamphetamines from 2019 after W was born, this does not appear to have been noticed by the maternal grandmother.

22. The mother deposed that when, on 21 July 2019, she told the maternal grandmother and her brother that she was using methamphetamines, “They were shocked but explained that they had seen a noticeable change in me the last couple of months”. 

23. Whatever the maternal grandmother had observed did not cause her to ask the mother to be tested or to tell the father about her concerns.

24. In her trial affidavit, the maternal grandmother deposed:

    I Had [sic] noticed a change in her appearance and attitude and had been suspicious but as she cared for her children well and we never saw her doing anything out of the ordinary, we put it down to stress and anxiety.

25. From the assessment conducted at the rehabilitation facility, it would appear the mother was using methamphetamines daily during this period but concealed her use from the maternal grandmother.

26. Since the mother was discharged from the rehabilitation facility, the maternal grandmother has arranged for hair follicle testing at three monthly intervals.

27. Having regard to all of those matters, I accept that there is some basis for the father’s concerns about the grandmother’s ability to tell whether the mother has used methamphetamines and, consequently, the utility of her assurances that she would remove the children if the mother was affected by her use of drugs.

28. I accept the assessment of Dr H that it is not possible, at this early stage, to have any certainty or confidence that the mother will be able to maintain abstinence.

29. However, I also accept that the children want to see their mother and were saddened by her absence in their lives. Dr H observed a warm, loving and affectionate relationship between the children and their mother and their maternal grandmother.

30. I consider that, between now and the final hearing, the risks that the mother might use drugs and her use will not be noticed by the maternal grandmother, can be mitigated by a strict routine of testing and the orders will require the mother to undergo urinalysis testing, at the request of the ICL, once each fortnight before spending time with the children.

31. The time the children spend with the mother will be subject to supervision by one of the maternal grandmother, Mr D or the mother’s brother Mr Mendall.

32. Changeovers will occur at the McDonalds Family restaurant at Suburb C where the father will deliver the children at noon on Saturday 16 May and on each alternate Saturday thereafter. The mother will cause the children to be returned to the father at 5pm on Sunday.

33. The mother also seeks telephone contact with the children on Monday, Wednesday and Friday. No submissions in opposition to that proposal were directed by senior counsel for the father and I propose to make that order.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 6 May 2020.

Associate:

Date:  06/05/2020