Mosby and Hilbert (No. 2)

[2020] FamCA 375

FAMILY COURT OF AUSTRALIA

MOSBY & HILBERT (NO. 2) [2020] FamCA 375

FAMILY LAW – PARENTING – young child - interim parenting hearing requires adjournment for further evidence and investigations into alleged drug use, dishonesty and parental capacity.

FAMILY LAW – PARENTING – further s 11F parent and children’s assessment to be undertaken – where initial s11F assessment was by telephone only.

FAMILY LAW – PARENTING – substantial attendance and supervision of parents’ time with child pending further hearing considered but no variations ordered.

Family Law Act 1975 (Cth)

APPLICANT: Mr Mosby

RESPONDENT: Ms Hilbert

INDEPENDENT CHILDREN’S LAWYER: Ms Lonergan

FILE NUMBER: MLC 2740 of 2020

DATE DELIVERED: 20 April 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 20 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Renwick

SOLICITOR FOR THE APPLICANT: McCluskys Lawyers

COUNSEL FOR THE RESPONDENT: Ms Brookes

SOLICITOR FOR THE RESPONDENT: Leonard & Associates

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Jenkinson

INDEPENDENT

CHILDREN’S LAWYER

Victoria Legal Aid

Orders

1. This matter be adjourned for further hearing on 7 May 2020 at 12.00 noon NOTING THAT the matter may then be stood down until 2.15 pm for cross-examination of the family consultant (“the adjourned date”).

2. Pursuant to section 11F of the Family Law Act 1975 the parties to the proceedings attend an appointment with a family consultant of this Registry of the Court and for that purpose:-

   (a)       The father is to attend electronically by video link at Level 5 of this Registry of the Court at 9.00 am on 7 May 2020;

   (b)       The mother attend electronically by video link at 10.00 am on 7 May 2020;

   (c)       The sequence and organisation of interviews is a matter within the sole discretion of the family consultant;

   (d)       It is requested that the Family Consultant prepare a Children and Parents Issues Assessment and IT IS REQUESTED that Ms B, family consultant, be available electronically to provide an oral report and be available for cross-examination at 2.15 pm on the adjourned date.

3. For the purpose of the Children and Parents Issues Assessment in this matter the family consultant be and is hereby authorised to have reference to all documents filed in these proceedings as well as to any documents produced on subpoenae and released for inspection by all parties.

4. The hearing on the adjourned date be conducted by video using the Microsoft Teams platform so that no party, practitioner or witness are required to attend in person at this Registry of the Court.

5. The hearing on the adjourned date be conducted in closed court, I being satisfied that it is in the interests of justice to ensure that the hearing is not interrupted or required to be concluded prematurely due to activation of the COVID-19 protocol for face to face hearings (90 minute time limit) AND IT IS NOTED THAT the proceedings will be recorded by Auscript in the ordinary course.

6. IT IS DIRECTED that my Associate send to the practitioners for the parties the Guidelines for attendance of parties and witnesses at proceedings remotely.

7. The parents undergo random urine testing for detection of use by him or her of illicit substances, such testing to be requested by the independent children’s lawyer not more frequently than once a week until further order.

8. Each four months the independent children’s lawyer be and is hereby at liberty to require the parents, or either of them, to undergo a hair follicle test and the responsibility for payment of those tests be reserved to the hearing on 7 May 2002.

9. The issue of the commencement of the hair follicle testing order is a matter that is reserved to the adjourned date and in the meantime the injunctions contained in paragraph 17 of the Order made on 23 March 2020 continue in full force and effect.

10. Paragraph 5 of the Order made on 26 March 2020 continue in full force and effect. For the avoidance of doubt the child X … 2015 (“X” “the child”) may sleep overnight at the father’s residence at H Street, Suburb K providing that one of the paternal grandparents sleep at that residence overnight.

11. For the avoidance of doubt, the maternal grandparents are to ensure that the child observes all social distancing policies issued by the Victorian Government AND IT IS DIRECTED that my Associate send to the parties the “Stay at Home Directions” document from the Deputy Chief Health Officer (Communicable Disease) in accordance with emergency powers arising from declared state of emergency.

12. Until further order, neither parent is permitted to organise or enrol X to attend crèche or kindergarten.

13. If either of the paternal grandparents or the father are unable to care for X at any time he would ordinarily be in their care, the father contact the mother, through their respective solicitors, to provide reasonable notice that he will return X to the mother’s care for the period during which he or the paternal grandparents are unavailable.

14. On the adjourned date, the independent children’s lawyer provide a chronological description of each parent’s criminal history from documents produced by Victoria Police.

15. To the extent that the parties need permission to do so, they may each cause an unlimited number of subpoenas to produce documents to issue and be at liberty to provide the filed document to my Associate – email ... – to facilitate processing and inspection of such documents.

16. Pursuant to Sections 65DA(2) and 62B the particulars and 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.

IT IS DIRECTED:

1. That the case outline of the father be marked Exhibit “F1” and remain on the Court file.

2. My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties. 

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 as the adjourned returned date of an urgent application brought by the father in circumstances where the mother had, without notice and suddenly, left certain living arrangements and had gone to a place not known to the father taking the parties’ five year old child with her.  A recovery order was made and stayed and not executed because the mother handed the child over to the father at a pre-arranged destination before the activation of the recovery order.

2. A section 11F Parent and Child Issues Assessment was undertaken by Ms F, the Family Consultant, in the permanent employ of the Court. That assessment is dated 25 March 2020, is on the Court file and is common to the parties.

3. On 26 March 2020, the matter was heard by audio-visual link using the Microsoft Teams platform.  The mother did not attend but was accessible to give instructions by telephone.  Orders were made that X reside with both sets of grandparents rather than with the mother or father.  There was a brief adjournment during which time the parties would either undergo hair follicle testing or the results of hair follicle testing that the father had already undergone would become known.  I made clear that I did not expect that the child would be going to kindergarten.  I said – and I quote:[1]

   HER HONOUR: Can I indicate the following that might be of assistance to you. My expectation would be that kindergarten may no longer be operating if 20 schools have started holidays prematurely or early anyway. If I’m wrong and kindergarten is operating, I’m far from convinced that this child should be going. Right. And if any parent wants to place the child into kindergarten or childcare because they cannot otherwise care for the child, then I would want to know, and they’re unlikely to have to do that because the other party can probably care for the child. So I think that those questions probably – answers to that question – your question is probably not going to assist me.

   MS LEONARD: No.

   HER HONOUR: Because I don’t envisage X going back to childcare or kindergarten.

   MS LEONARD: All right. Thank you, your Honour. I take no issue with that.

   [1] Transcript in Confidence, 26 March 2020, p. 9, 19-34.

4. Since the last hearing, the mother has admitted that she lied to the Court on 26 March about her proposal to attend a hair follicle testing, that, given the opportunity to attend hair follicle testing the next day and still comply with the order that that be undertaken within 24 hours, she failed to do that, and that she continued to deceive her solicitor and, necessarily, the other parties in the proceedings until she was found out.  The mother deposes [4-12]:

   On 26 March 2020, during the Court proceedings, I told my lawyer that I had an appointment with AWDTS for a hair follicle test at 5.15pm that day.  My lawyer conveyed this to the Court.  This was not true.  I did not have an appointment for a hair follicle test.

   I am deeply sorry for lying to the Court.  It was a stupid this [sic] to do, and I am sincerely regretful that I mislead [sic] the Court in this way and it was not foreplanned.

   I continued to tell my lawyer that I had attended the appointment on 26 March 2020, until on 9 April 2020.  My lawyer only found out that this was untrue after having discussions with AWDST directly on 9 April 2020.  I understand that my lawyer immediately notified the other parties of this.

   I am deeply sorry.  I realise that it was a ridiculous lie, that I would never have gotten away with.

   After receiving the Orders of 23 March 2020 requiring the hair follicle test, I made an appointment with AWDTS to have the hair follicle test completed on 27 March 2020.  However, during the hearing on 26 March 2020, I just panicked upon realising Duromine would illicit a false positive for amphetamine.  Not only did I mislead the Court into thinking I had an appointment for a test that day, and I also did not attend my appointment on 27^th March 2020. 

   I had had an eating disorder for a long time.  On and off over the last 3 or so years I have been taking Duromine, which is a weight loss drug.  At the time of the Court hearing I had been taking Duromine regularly (about 40mg a day) since about December 2019.  Although it is a prescription medication, I did not have a current prescription for it, and I had obtained it online.

   I was terrified that I would not get X back, or that he would be taken away from me if the Duromine showed up in my system.  I understand that it can show up as amphetamine in a drug screen.  This is noted by my Doctor, Dr J, on the Urine drug screen completed by me on 9 April 2020.  Annexed hereto and marked F-1 is a copy of the Urine Drug Screen.

   I have no better explanation for my lie other than I simply panicked.  I was afraid a positive result would give substance to Mr Mosby’s accusation and therefore making any other false accusations by him look more possible.  After the 26^th March [sic], I could not think of a way to explain why I had not done the test, so I regrettably continue the lie. 

   I completed a Hair Follicle test on 16 April 2020...

5. On Thursday of this week, the mother rented or signed a lease on a flat in L Town.  The mother’s parents live in the M Town area.  The father and his parents live in Suburb K.  The mother has previously sought refuge in L Town and the maternal grandmother has identified that as the area in which her sister, the mother’s aunt, resides.  It is a most unusual choice of residence for the mother to have taken.  In her submissions and in response to a direct question by me, counsel for the mother said that she rented at L Town because it was cheaper than M Town.  That would not seem to be the only reason that would motivate the mother to rent at L Town. 

6. There have been significant events occur since 26 March and we still do not have the results of hair follicle testing for both parents.  Given that both parents are apparently dependent on illicit drugs, the results are pertinent.  I am satisfied that a further assessment by the Family Consultant is warranted in the context of the new information.  I note that the last assessment was only by telephone rather than audio-visually.  Also, on 26 March 2020, I do not recall seeing the mother by video-link.  I think that she was contactable for the purpose of giving instructions and it was anticipated that she would be available and be able to be seen by video-link but she was not.  Today, when the matter started, I understand that again the mother was initially not available but has made herself available and thereafter has participated fully in the audio-visual link for the purpose of this hearing. 

7. This matter will be adjourned to a date which will enable the parties to be seen by the family consultant. As for appointments for the s 11F assessment, 7 May 2020 is apparently convenient to the Court. The father should attend at 9 am. That will be by video-link and the mother should attend by video-link at 10 am. The Family Consultant will have the morning to consider her impressions of the parties. Both parties should have their parents available or, in the case of the father, the paternal grandmother to be seen by the family consultant if time permits. However, I make clear that this is not a priority; the main priority is for the Family Consultant to assess the parents. It will not be necessary for the child to be seen.

8. Between now and the adjourned date of 7 May, the Independent Children's Lawyer and the mother support a continuation of the status quo with there being no attendance by X at kindergarten and in the event that neither the father or his parents are available to care for X on any day, then X be delivered to or left in the care of members of the maternal family.  My impression is that between now and 7 May there will not be an occasion which falls within that category but I will make the Order in any event so that the fallback position or default position is clear. 

9. The principal application of the father as presented by Ms Renwick is that the current arrangement for substantial attendance by the maternal grandparents of the mother’s care of X is not sufficient and it should be supervision which would require the child to be present in the presence of one or other of the maternal grandparents at all times.  Ms Renwick points with some cogency to the deceptions by the mother in relation to very relevant matters to which the Court is concerned, in particular her drug use, and, inferentially, the impetuous and silly nature of the mother’s deceptions of the Court by which I mean that it was inevitable that she would be found out in relation to the drug testing. 

10. Ms Renwick makes a good case that the substantial attendance to date has not been sufficient to theoretically keep X protected from harm.  However, I am not, on the totality of the evidence, persuaded that I should alter the current arrangements in relation to substantial attendance by the maternal grandparents and make it supervision.  What I do require the Independent Children's Lawyer to do is to make clear to the maternal grandparents that the child must at all times observe the social distancing protocols, that is, there should be no catchups with friends in the park or to walk dogs in which the child participates. 

11. There is no need for the child to go to a storage facility where the mother will, presumably, be otherwise occupied and, if she isn't, she has no need or necessity to be at the storage facility per se. 

12. Ms Renwick also makes application for variation in the substantial attendance requirement as it pertains to her own client, the father.  She contends that it’s inconvenient for the paternal grandmother to attend at the father’s unit to sleep.  It was made clear on the last occasion, as I recollect, that it was open to the father to return to G Street which is only a few hundred metres away from the paternal grandparents’ home, to live, work or reside or sleep, and that the child could sleep there too provided that the grandmother was present overnight.

13. If the paternal grandmother does not want to sleep at G Street, which I understand is a comfortable residence, then the child will be required to sleep at the home of the maternal grandmother or wherever else she sleeps. 

14. For the avoidance of doubt, the Order about interim residence does not mean that each set of grandparents has to exercise that care contemporaneously.  It is sufficient if one of the paternal grandparents is present for substantial attendance. 

15. It is Ms Renwick’s application that the requirement for substantial attendance of the father’s care be watered down to merely require the maternal grandmother and grandfather, or either of them, to attend the father’s residence each day to check on X.  I will not grant that application at this time.  The mother has been spectacularly unwise in lying to the Court and to her solicitor.  One must question the prudence or impetuosity of the mother entering into a lease in L Town.  It is asserted that the mother has recently been charged with criminal offences referrable to recent criminal acts including theft from a service station and urinating in public.  However, the assessment of deficiencies in parental capacity is not a competition.  

16. Each parent must be assessed, vis a vis determining what orders are necessary to keep X safe for harm, against a standard which reasonable and proper and prior to considering how one parent performs against the other.  There is a much to be concerned about how the father presents himself as the parent to be preferred.  In his initial affidavit evidence he was very detailed about the mother’s faults, particularly about use of illicit drugs, but not frank about his own.  The extensive text messages annexed to the mother’s affidavit are emblematic of the father as an immature, volatile and occasionally nasty personality of labile emotions whereas, on my reading, the worst that can be said of the mother is that one must be concerned that she tolerated the father’s behaviour.

17. In short, the father will not be able to take the child to live at G Street by himself subject to being visited by the paternal grandparents between now and the adjourned date.

18. On the return date the care arrangements are likely to change providing that the Court is in a position to determine where X should reside for most of the time.  It will certainly be a matter of interest as to whether the Family Consultant considers it to be in the child’s best interest that his time be split more or less equally between the two households on a fortnightly basis or whether it is possible to identify a living arrangement which is most in X’s best interests which has him living predominantly with one parent, although that may be subject to conditions.  Equal shared care is frequently a panacea for parents but rarely a suitable arrangement for a child caught in a whirlwind of high parental conflict and questionable parental capacity, as is X.  If there is a clear way forward, it will probably be in X’s interests to have some normality in his life, an interim parenting arrangement which can last until a final hearing which should take place so that the parents know where X will go to school in 2021.   

1. I am satisfied that the Order that I make is in X’s interests.  For the time being, they do not represent a significant change for him.  The Order is quite restrictive on the parents.  The arrangement represents a change in their life as it was prior to mid-March when the proceedings were activated in this Court. 

2. The Independent Children's Lawyer’s application for drug screening is appropriate.  It will also be necessary for the Independent Children's Lawyer to be able to lead some evidence of how the various reports from the various testing for illicit substances is to be interpreted.  It is not for me as a Judge to have to interpret pathology results.  It is not for the independent children's lawyer to be able to interpret pathology results.  It may be that the Independent Children's Lawyer does some research and can set out for the practitioners for the parties precisely what she says that the results indicate and the extent to which they are consistent with the affidavit evidence of the person to whom the results relate, but at the end of the day, neither is she qualified to interpret the results.  If the Independent Children's Lawyer wants to pass on the findings of the pathologist to the practitioners for the parties, she will need to be giving the other parties to the proceedings adequate time in which to gather evidence to refute the accuracy of what she says, if they wish to do so. 

3. In terms of the parties’ criminal convictions, the parties asked to see the documents this morning.  I understand that they were emailed to the parties, that is, documents produced on subpoena relating to police records by approximately 8.30 a.m. this morning.  With customary aptitude and efficiency, Ms Renwick composed a helpful chronology of recent events at page 2 of her outline of case.  However, it would be better if that chronology could be checked for accuracy to make sure that the events did occur when described and to include the historical criminal activity of both; that is charges and/or convictions for both parents on a historical basis and not just confined to the last three years.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 20 April 2020.

Associate: 

Date:  18 May 2020