Mosby and Hilbert

[2020] FamCA 257

FAMILY COURT OF AUSTRALIA

MOSBY & HILBERT [2020] FamCA 257

FAMILY LAW – PARENTING – urgent interim parenting arrangements where both parents have history of illicit drug use – protection against risk – where child to reside with grandparents.

APPLICANT: Mr Mosby

RESPONDENT: Ms Hilbert

INDEPENDENT CHILDREN’S LAWYER: Ms Lonergan

FILE NUMBER: MLC 2740 of 2020

DATE DELIVERED: 26 March 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 26 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Renwick

SOLICITOR FOR THE APPLICANT: McCluskys Lawyers

COUNSEL FOR THE RESPONDENT:	Ms Leonard
SOLICITOR FOR THE RESPONDENT:	Leonard & Associates

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Jenkinson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

IT IS ORDERED BY THE COURT THAT:

1. The matter be adjourned to 20 April 2020 at 10.00am.

2. My reasons for decision be transcribed.

3. The evidence of the Family Consultant be transcribed.

4. That the signed minute of consent orders as between the father and the Independent Children’s Lawyer as amended be marked Exhibit “A” and remain on the Court file.

IT IS FURTHER ORDERED BY THE COURT THAT UNTIL FURTHER ORDER:

1. The mother and father do all acts and things necessary to ensure that the child X born … 2015 (“the child”) live with his grandparents as follows:

   (a)       In Week 1:

   (i)With his paternal grandparents from 4pm Monday until 4pm Thursday (noting that 26 March 2020 is the Thursday of week 1); and

   (ii)With his maternal grandparents from 4pm Thursday until 4pm Monday (being the Monday of week 2).

   (b)       In Week 2:

   (i)With his paternal grandparents from 4pm Monday until 4pm Friday; and

   (ii)With his maternal grandparents from 4pm Friday until 4pm the following Monday (being the Monday of week 1); and

   (c)       Such further or other times as agreed between the paternal and maternal grandparents.

2. the child spend time with his father as agreed between the father and the paternal grandparents, with either or both of the paternal grandparents to be in substantial attendance during any periods of time that the child spends with his father.

3. the child spend time with his mother as agreed between the mother and the maternal grandparents, with either or both of the maternal grandparents to be in substantial attendance during any periods of time that the child spends with his mother.

4. In the event that the paternal grandparents become aware that the father has used illicit drugs (or prescription drugs other than as prescribed) or presents as drug affected:

   (a)       They immediately notify the maternal grandparents and the Independent Children’s Lawyer; and

   (b)       They immediately remove the child from having any contact with his father.

5. In the event that the maternal grandparents become aware that the mother has used illicit drugs (or prescription drugs other than as prescribed) or presents as drug affected:

   (a)       They immediately notify the paternal grandparents and the Independent Children’s Lawyer; and

   (b)       They immediately remove the child from having any contact with his m

6. For the purposes of changeover the maternal grandparents or their agents shall deliver the child to the home of the paternal grandparents at the commencement of the child’s time with his father, and the paternal grandparents or their agents shall deliver the child to the home of the maternal grandparents at the commencement of the child’s time with his mother, unless it is agreed otherwise between the paternal and maternal grandparents.

7. Each of the parents and grandparents use their best endeavours to facilitate the child communicating his other grandparents and parent via telephone or video chat at appropriate times.

8. Paragraph 17 of the Order dated 23 March 2020 remains in full force and effect, with the mother to undertake the test within 24 hours.

9. Each parent attend upon Ms D, psychologist, at a time nominated by the Independent Children’s Lawyer for the purposes of a psychological evaluation and drug and alcohol assessment and report to be filed in these proceedings, and for that purpose the Independent Children’s Lawyer provide a copy of the Issues Assessment of Family Consultant B to the nominated psychologist.

10. Each parent and grandparent be, and is hereby, restrained from:

    (a)       Physically disciplining the child;

    (b)       Denigrating the other parent, grandparents or members of their household in the presence or hearing of the child or allowing the child to remain in the presence or hearing of any third party who is engaging in such behaviour.

11. Each parent be, and is hereby, restrained from consuming, ingesting or otherwise consuming illicit drugs or prescription drugs other than as prescribed for 48 hours prior to any period of time that the child is due to spend with them, or during any periods of time that the child spends with them.

12. Each parent forthwith enrol in and as soon as practicable complete a post separation parenting course at an organisation nominated by that parent but approved by the Independent Children’s Lawyer and provide a certificate of completion to the other parent and the Independent Children’s Lawyer upon completion of the course.

13. The Independent Children’s Lawyer and each parent provide a copy of this Order to the grandparents.

AND THE COURT NOTES:

A.The Independent Children’s Lawyer has not sought that the parents undertake random supervised urine drug screens because of the practical difficulties in doing so during the COVID-19 pandemic, however reserves the right to seek such an order in the future upon receipt of the parent’s hair follicle test results.

B.The maternal and paternal grandparents are not parties to these proceedings, however have consented to these orders on an interim basis having consulted with the Independent Children’s Lawyer regarding their obligations under these orders.

C.In the event that any movement restrictions are put in place in relation to the COVID-19 pandemic the travel between the parties’ homes for the purposes of changeover shall be considered ‘essential travel’.

D.The parents agree that changeover this day will occur upon the mother having completed her hair follicle test, with the mother to advise the father of the time via SMS, with the changeover to occur at the paternal grandparents’ house unless the parents agree otherwise.

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 Mosby & Hilbert 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 2740 of 2020

MR MOSBY

Applicant

And

MS HILBERT

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. The matter comes before me on the adjourned date of the recovery order which is in relation to the child, who is five years old.  It is common ground that the mother and the father of the child have difficulties with consumption of illicit drugs or substances or have had in the past.  There is an informative and very helpful section 11F assessment that was done two days ago which sets out a number of concerns about the parenting by the child’s mother and father.  The issues are not confined to illicit drug use, but extend to family violence in the form of, but not confined to, intimidation, threats and coercive or controlling behaviour.

2. The matter has come on quite quickly and there are certain matters that it is agreed be done which have not yet been done.  For that purpose, I am going to adjourn the matter for 10 or so days and I just deliver these short-form reasons now to cover the care arrangements for the child in the interim. 

3. Whereas the only two applicants are the mother and the father, I am satisfied that the residential care of the child in the interim is best placed in the hands of the child’s grandparents; and it is from those respective homes that the mother and the father can spend time with the child.  That is, the father spends time with the child whilst the child resides with his parents and the mother spends time with the child whilst the child resides with her parents.  It does not mean to say that the grandparents need reside necessarily in their own home.  They may move into accommodation where the mother and – where their own child lives, but they will have all of the rights and responsibilities of resident parents. 

   RECORDED : NOT TRANSCRIBED

4. The matters that should be attended to prior to me making any interim orders which would govern the care of the child up until a prior hearing include the following:-

   a)The mother undertaking the hair follicle test for detection of the use by her of illicit drugs and receiving the results of that test and the test which – the same test which the father has taken; 

   b)It will enable the Independent Children’s Lawyer to serve a subpoena on Victoria Police for the criminal records of the mother and the father and also for the information and notebook entries in relation to an incident in early February 2020; 

   c)Both parties to file any further affidavit material upon which they seek to rely;

   d)For the grandparents, if they seek to remain involved as persons who – under whose care the child resides, to indicate what orders they would particularly seek. 

5. I do want to make it clear that I do not wish to impose an onerous situation on either set of grandparents, particularly in relation to payment of legal costs and the like.  The fact that the child is to reside with them is reflective of the fact that it appears that he will be safe when he does so and that the parent who is the child of the grandparents will be able to access the child to an extent which is implicitly safe for the child.

6. The matter which I am required to make a ruling on is the constellation of days.  The Independent Children’s Lawyer and the father seek orders in the terms of a minute which works on a 14 day cycle and divides exactly equally the amount of time that the child would spend with each side of his family.  The mother takes exception to this and seeks alternatively that there be a seven-day cycle wherein the mother has the child from Monday to Friday and where the father has the child from Friday afternoon until Monday.  That gives the father all of the weekend.  Her rationale for this is two-fold.  First of all, it is because the father works from home and it is said that he is assiduous about his job, ambitious and the inference is that he is going to devote a good part of his time to working from home.  The mother is concerned that the child might not so much be left unattended because that will be the responsibility of the paternal grandmother, but will have a sense that his father’s work is more important to his father than indeed, spending time with him.

7. I do not take that concern lightly, but the child is probably one of a number of children who are now going to be introduced at very close quarters to their parents working lives and responsibilities and are going to have to adjust to sharing parents in the household with their parents’ obligations to employment which brings in the household income.  I do not disregard that the child may well feel that the father is concentrating to a certain extent on his employment, but that would be the case in many households. 

8. I have some curiosity as to why the father does not seek any part of his time in the 14 day cycle over the weekends, but maybe that will become clearer later. 

9. The other aspect of the mother’s objection to the 14 day cycle proposed by the other parties is that the child should know on a daily basis and a predictable basis and a seven-day cyclical basis where he is going to be at any time.  To my mind, that is a concern which would be more appropriate if the child were twice his age.  I expect that most days are like other days, that all days are pretty much the same to a child of five in circumstances where the child is not attending day-care or kindergarten.  It is agreed that the child will not be attending either and in the circumstances, I do not think that it is necessary to the child’s ongoing best interests in an ongoing sense that he know where he will be every single day of the 14 day cycle until we return to Court.  In any event, he will be with the father  each Monday, each Tuesday, each Wednesday and each Thursday and then every second Friday, he will be with the maternal side of the family going backwards every Monday during the day, every Sunday, every Saturday, every Friday and each second Thursday.  I am against the mother’s alternative proposal and I will make orders in the terms of the minute of orders sought by the Independent Children’s Lawyer which is supported by the father.  In doing so, I have referred to the best interests of the child.  It has been my consideration to prioritise those best interests over the convenience of the parties.  The ambit of the decision which I’ve been required to make is confined, so I will not go into the considerations in relation to parental responsibility, noting that neither parent in this – at this point seeks an order for parental responsibility and therefore, they would each retain parental responsibility in accordance with the legislation.

10. I have not made any definitive findings of fact in coming to my conclusion.  I have, in the course of this hearing, made certain comments about the evidence and about matters which emerge from the evidence.  But being an interim hearing and there being no cross-examination, I have not made any final or binding determinations about what has in fact occurred.  By way of background however, it does appear to be common ground that the mother was the primary carer of the child up until early February 2020 when there was an incident and the father assumed care of the child, assisted by his parents, and the mother commenced to have the child on weekends under the “supervision” of her parents.

    What I would indicate to the parties and those who advise them is that it is something which has obviously come about as part of the post-separation conflict of the parties.  It does not, to my mind, constitute a status quo to which I would have very much regard in making orders going forward. 

    RECORDED : NOT TRANSCRIBED

11. I will adjourn the proceedings until 20 April. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett J delivered on 26 March 2020.

Associate: 

Date:  20 April 2020