Mosby & Hilbert (No. 3)
[2020] FamCA 1099
•8 December 2020
FAMILY COURT OF AUSTRALIA
Mosby & Hilbert (No. 3) [2020] FamCA 1099
File number(s): MLC 2740 of 2020 Judgment of: BENNETT J Date of judgment: 8 December 2020 Catchwords: FAMILY LAW – PARENTING – where mother is found to have fraudulently altered hair follicle test results to show a negative result for use by her of methamphetamines - whether mother’s time with child should be subject to supervision by her parents or they merely be in substantial attendance – where mother left the hearing abruptly and orders sought by father and the Independent Children’s Lawyer were made unopposed.
FAMILY LAW – PARENTING – where evidence from leading pathology provider was that hair follicle drug test results are very easy to alter.
Legislation: Family Law Act 1975 (Cth) Number of paragraphs: 73 Date of last submission/s: 8 December 2020 Date of hearing: 7-8 December 2020 Place: Melbourne Counsel for the Applicant: Ms Renwick Solicitor for the Applicant: McCluskys Lawyers Counsel for the Respondent: In person Solicitor for the Respondent: Not Applicable Counsel for the Independent Children's Lawyer: Ms Jenkinson Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 2740 of 2020 BETWEEN: MR MOSBY
Applicant
AND: MS HILBERT
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
8 DECEMBER 2020
THE COURT ORDERS THAT:
1.The Mother and Father have equal shared parental responsibility for the child X born … 2015 (“the child”).
2.The child live with the Father.
3.Subject to paragraph 7, the child spend time and communicate with the Mother as follows:
(a)until the child commences school on 28 January 2021:
(i)from 4:00pm on 10 December 2020 to 4:00pm 14 December 2020;
(ii)from 4:00pm on 17 December 2020 to 4:00pm 21 December 2020;
(iii)from 12noon on 28 December 2020 until 12noon on 4 January 2021;
(iv)from 12noon on 8 January 2021 until 12noon on 15 January 2021;
(v)from 12noon on 22 January 2021 until 12noon on 24 January 2021.
(b)from 28 January 2021, during the school term and commencing the first weekend of each school term:
(i)on a three-week rotating basis from the conclusion of school on Friday (or 3:30pm) until 5:00pm on Sunday for the first two out of every three weekends;
(ii)for a dinner each Wednesday from the conclusion of school until 6:30pm (or 7:00pm during Daylight Saving Time), with such time to occur in Melbourne and the Mother to collect the child from school and to return the child to the Father’s residence at the conclusion of time;
(c)for the school term holidays in 2021:
(i)from 5:00pm on 5 April 2021 until 5:00pm on 18 April 2021;
(ii)from 5:00pm on 19 September 2021 until 4 October 2021;
(d)unless otherwise agreed between the parties in writing and save as otherwise provided for in these Orders, for all of the Term 1 and Term 3 school holidays;
(e)for half of the long summer school holidays commencing 2021/2022, by agreement with the Mother to have the first half in even years and the second half in odd years with changeover to occur at 12:00noon on the middle day;
(f)from 12noon on Christmas Eve until 12noon on Boxing Day in 2021 and each alternate year thereafter;
(g)on the child’s birthday, if the child is not already scheduled to spend time with the Mother, from:
(i)9.00am until 3.00pm if his birthday falls on a non-school day; or
(ii)from the conclusion of school until 7.00pm if the child’s birthday falls on a school day, with such time to occur in Melbourne;
(h)on the Mother’s birthday, if the child is not already scheduled to spend time with her, from:
(i)5:00pm on the day prior to the Mother’s birthday until 5:00pm on the Mother’s birthday, if the Mother’s birthday falls on a weekend day; or
(ii)from the conclusion of school until 7.00pm if the Mother’s birthday falls on a school day, with such time to occur in Melbourne;
(i)on Mother’s Day each year, if the child is not already scheduled to spend time with the Mother, from 5pm on the Saturday prior to Mother’s Day until 5pm on Mother’s Day;
(j)for Easter in 2021 from 5:00pm on the Thursday preceding Good Friday until 5:00pm on Easter Sunday;
(k)by Facetime (or such other video call if Facetime is unavailable) when the child is in the Father’s care at:
(i)Between 6:00pm and 7:00pm each Tuesday and Thursday during the school term; and
(ii)on every second day of the school holidays at between 6:00pm and 7:00pm;
with the Mother to place the call to the Father’s mobile;
(l)at such other times as agreed between the parents.
4.The Mother’s time in paragraph 3 be suspended and the Father spend time with the child as follows:
(a)from 12noon on Christmas Eve until 12noon on Boxing Day in 2022 and each alternate year thereafter;
(b)for Easter in 2022 each alternate year thereafter from 5:00pm on the Thursday preceding Good Friday until the commencement of school on Tuesday;
(c)on the child’s birthday, from 9.00am until 12noon if the child’s birthday falls on a non-school day and the child is with the Mother, with such time to occur in M Town (or such other location close to the Mother’s primary residence);
(d)on the Father’s birthday, from 9.00am until 12noon if the Father’s birthday falls on a non-school day and the child is with the Mother, with such time to occur in M Town (or such other location close to the Mother’s primary residence);
(e)on Father’s Day each year, if the child is not already scheduled to spend time with the Father, from 5pm on the Saturday prior to Father’s Day until 5pm on Father’s Day;
(f)for Term 2 school holidays each year, unless otherwise agreed;
(g)at such other times as agreed between the parents.
5.The Father communicate with the child by Facetime (or such other video call if Facetime is unavailable) when the child is in the Mother’s care during the school holidays on every second day of the school holidays at between 6:00pm and 7:00pm, with the Father to place the call to the Mother’s mobile.
6.That for the purpose of changeover, unless otherwise provided for in these orders or agreed between the parents, the Mother (or her agent) collect the child from school (and if a non-school day from the Father’s residence) at the commencement of the Mother’s time and the Father (or his agent) collect the child from the maternal grandparent’s residence at the conclusion of the Mother’s time.
7.The Mother’s time with the child be conditional upon:
(a)each of the maternal grandparents giving the undertaking to the Court attached at Annexure A prior to such time occurring; and
(b)either or both of the maternal grandparents supervise the time the child spends with his Mother;
for the purpose of this order “supervision” of time requires the supervisor to be within sight and sound of the child at all times save that, during the time that the child is asleep overnight, it is sufficient for the supervisor to be present in the house. For the avoidance of doubt each of the supervisors be and is hereby empowered to remove the child from the mother and/or exclude the mother from the child’s presence if the supervisor forms the view that the mother poses a risk of harm to the child.
8.During the time that the child is in the Father’s care pursuant to these orders and until such time that the Father sends to the Court and the Independent Children’s Lawyer a copy of a “clean” Hair Analysis Drug Test Result, the Father do all acts and things to ensure that paternal grandparents (or either of them) are actively involved in the child’s care between the hours of 7:00am to 7:30am and 7:30pm to 8:00pm:
AND FOR THE PURPOSE OF THIS ORDER:
(a)a “clean” Hair Analysis Drug Test Result will record a negative result for all illicit substances or prescription drugs (other than those which are prescribed);
(b)the test must be supervised and undertaken at an N Service Clinic or nominee for hair drug and/or alcohol testing purposes;
(c)the Father is to pay the cost of any hair analysis drug test; and
(d)the paternal grandparents MS C MOSBY and MR E MOSBY were aware of this order being made, understood the terms and obligations under this order and agreed to the order being made and further agreed to notify the maternal grandparents in the event they became aware or reasonably suspected that the Father used illicit drugs.
9.Each parent be, and is hereby, restrained from consuming, ingesting or otherwise consuming illicit drugs or prescription drugs other than as prescribed during any period of time and 48 hours prior to the child spending time with them.
10.The Mother and the Father forthwith do all acts and things and sign all documents necessary to enrol the child into Suburb K School to commence his Preparatory year in 2021 and thereafter do all acts and things to facilitate his attendance at the school.
11.That save in the case of emergency, the Mother, Father and grandparents (at their election) communicate by way of a communication book to be exchanged between the parents (or their agents) at changeovers.
12.Each parent will:
(a)Keep the other informed of any changes to their address, telephone number or email address not less than within 24 hours prior to any of any such change.
(b)Ensure the other parent is included as a parent on all school enrolment forms;
(c)Inform the other about any medical issues affecting the child when he is in their care and advise them of any doctor, hospitals or health professional attended by the child as soon as reasonably practicable.
(d)Be at liberty to attend any hospital to which the child is admitted, and/or attend any medical specialist appointment that the child attends and each party is to notify the other in advance (where possible) of any attendances/appointments.
(e)Authorise any childcare, kindergarten or school attended by the child to provide copies of newsletters, school reports and all information provided to the parents of a child to both parties.
(f)Be at liberty to attend all school or kindergarten prize nights, functions, parent/teacher nights and any other school or kindergarten events that parents usually attend.
(g)Facilitate the child’s attendance at extra-curricular activities and be at liberty to attend all extra-curricular activities that parents usually invited to attend.
(h)Inform the other parent of any new partners and notify the other parent of their intention of introducing the child to a partner or leaving the child in that partner’s care prior to doing so.
13.Prior to making an application to remove the supervision requirements in paragraph 7 and/or increase the Mother’s time with the child, the Mother provide to the Father:
(a)evidence of her abstinence from illicit substances for a period of no less than least 6 months (uninterrupted and continuous) by way of “clean” hair analysis tests undertaken with N Service; and
(b)the Mother do all acts and things to authorise the Father to speak with and obtain any information from N Service in relation to the Mother’s hair analysis tests.
14.Following the Mother providing the Father with no less than least 6 months (uninterrupted and continuous) evidence of her abstinence in accordance with paragraph 13 of this Order, the requirements on the Mother in paragraph 7 may be discharged upon the Mother and the Father agreeing same in writing.
15.The Independent Children’s Lawyer inform the Proper Officer of the N Service that they are required to provide any test results for the Mother, Ms Hilbert, which samples was given on or about 25 November 2020, to the Independent Children’s Lawyer. For the purpose of doing, so the Independent Children’s Lawyer may provide a copy of this order and the order made 9 November 2020 to the said Proper Office.
16.The Independent Children’s Lawyer inform the Court of what information she obtains from N Service as to whether the Mother did undergo a hair analysis test on or about 25 November 2020 and in the event that any hair analysis test results are produced, provide a copy of the result to the Court to remain on the Court file.
17.The Independent Children’s Lawyer be discharged from her appointment on completion of her tasks in respect to the hair analysis test in paragraphs 15 and 16.
18.That save as otherwise provided for in these Orders, all previous parenting orders (including the appointment of the Independent Children’s Lawyer) be discharged.
IT IS DIRECTED:
19.That the minute of orders with tracked changes be marked Exhibit “A” and remain on the Court file.
IT IS FURTHER ORDERED THAT:
20.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.
21.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy provided to the parties.
22.Otherwise all extant applications be dismissed and the matter be removed from the list of cases awaiting determination in the docket of the Honourable Justice Bennett.
AND THE COURT NOTES:
A.For the avoidance of doubt, this year the Father will spend time with the child for Christmas from 21 December 2020 to 28 December 2020, with the Mother having spent the last Christmases and from 2021 onwards, Christmas will alternate each year with the Mother to have Christmas in 2021.
B.The Mother has said that she is willing to provide care to the child during times when he is due to be with the father if the father is unavailable, by agreement.
C.The Father agrees to the terms of these Orders (including paragraphs 13 and 14) maintaining that the principles in Rice v Asplund will continue to apply to any further parenting application brought by the Mother.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
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).
REASONS FOR JUDGMENT
EX TEMPOREBENNETT J
INTRODUCTION
The matter comes before me for final hearing in proceedings involving the child X, who is five years old, which have been before the Court since March this year, and during that time, subject to a very high degree of scrutiny by the Court with a number of return dates.
These orders are unopposed. The father and Independent Children’s Lawyer seek that they be made. The mother participated to oppose the order for her time to be supervised but left Court abruptly and without explanation in the course of her submissions. These reasons explain why I am satisfied that the Order is in the child’s best interest and will be made.
An unusual feature of the substantive orders that have been made to date is that the care of the child has essentially been entrusted to his maternal and paternal grandparents, none of whom are parties to the proceedings. There have been orders which have provided that the child spend time with his mother and father subject to certain conditions, including that the child’s grandparents, or one of them, be in substantial attendance and/or supervise the child’s time with the parent. The mother and the father have mental health issues, as well as a propensity to use illicit drugs. The personality issues and mental health issues are discussed in some detail in the report of the psychologist Dr D which is in evidence before me.
The final hearing commenced before me yesterday. It is conducted remotely on the MS Teams platform. The father was represented by Ms Renwick of counsel. The mother represents herself, having had two previous firms of solicitors. Ms Jenkinson of counsel appears on behalf of the Independent Children’s Lawyer, who is Ms Mary Lonergan of Victoria Legal Aid.
The first witness in the case was the Family Consultant, Ms B, called by me for the purpose of the parties being able to put certain questions to her at the outset rather than waiting until the end of the case when she will return to give evidence. Following that evidence, the matter was stood down and the parties, together, negotiated a possible resolution of the matter. Ultimately, however, the mother did not want to proceed with that negotiated agreement without being able to talk to a friend. We sat late into the afternoon – it was approximately 6 pm before we rose. It was unfortunate that the mother had not laid the groundwork to be able to discuss matters with her friend in a timely manner on the first day of the hearing. Nonetheless, she had the time overnight to do so.
This morning, the parties handed up is an extensive and well-considered minute of order. The only matter in issue is whether the mother’s time with the child ought be supervised or subject to substantial attendance by the maternal grandparents. For the purpose of these proceedings, substantial attendance is considered by me to require someone to be present and within the vicinity of the child for more than one half of the relevant time, so that if there is time to be spent of 10 hours, the person in substantial attendance must be there for more than five hours. Supervision, on the other hand, requires the supervisor to be within sight and sound of the child at all times.
The father and the Independent Children’s Lawyer are ad idem and they seek that the mother’s time with the child be subject to supervision by the maternal grandparents. The mother says, as best I understand her case, that her parents can be in substantial attendance. It was agreed that the matter would proceed by way of submissions with only the Family Consultant giving evidence. I heard submissions from Ms Jenkinson for the Independent Children’s Lawyer, and I was hearing submissions from the mother when she left the MS Teams platform.
The maternal grandparents have been required under subpoena to attend Court and have participated. They are also in the same building as the mother. When the mother’s connection failed, the paternal grandfather or grandmother checked on the whereabouts of Ms Hilbert. I have been informed and accept that Ms Hilbert left the maternal grandparents’ residence. Notably, the mother could have left the residence and connected with a device outside the residence, but there has been no notification that she is waiting to re-join the hearing.
On the first and second day of the hearing, I informed all parties that if somebody forgot to come back to Court or failed to appear when they were required to appear, that they should anticipate that the proceeding would go ahead without them, and a determination would be made without any further input by the absent party.
Having regard to the detailed minute of order, I am satisfied that the mother has notice of the outcome which the other parties would pursue if she ceased to participate in this hearing.
THE PARENTS’ DRUG USE AND MENTAL HEALTH
The mother’s use of drugs has anecdotally been amphetamine or methamphetamine, including ice. The father’s use of drugs has most recently been cocaine. Both drug are dangerous.
My impression is that the father has sought to give the impression that his use of cocaine is somehow more casual or less serious and potentially less deleterious than the mother’s use of ice which is a more dangerous drug and cheaper to acquire. I do not take that view. Both are illicit drugs that I certainly am concerned about, given the impact that the drugs have on people’s functioning.
As is apparent from the report of Ms D that the mother has underlying psychological and psychiatric vulnerabilities, including anorexia and borderline personality traits. The father also has mental health problems.
Ms D’s report concerning the father is dated 22 May 2020. She reports:
31 Mr Mosby does not have a significant history of antisocial behaviour but has been impulsive and aggressive when affected by ice or struggling with adjustment difficulties. He was charged at the age of about 20 in relation to abusive and threatening messaging when substance affected after a previous relationship had ended. He recalled being in a few fights, including a scuffle, when ice affected too. He also acknowledged using angry and derogatory language with Ms Hilbert following separation and after discovering she had engaged in sex work during their relationship. He said he wants support, so he does not respond inappropriately in this manner in the future, as he is ashamed of his behaviour.
32 Mr Mosby does not present with a major psychiatric or personality disorder. His substance use has been extremely problematic, as detailed below. It is likely that he previously met the criteria for a diagnosis of stimulant use disorder; he recalled passive suicidal thoughts in the context of using ice. He denied being diagnosed with a mental health issue previously but was prescribed fluoxetine for anxiety when using ice, and Valium in the past.
33 Mr Mosby is not currently engaged in psychological therapy but has previously engaged, particularly in relation to his substance use.
Substance use
34 Mr Mosby said he began using cannabis at the age of 17, ecstasy at the age of 18 every now and then, and cocaine and speed irregularly at the age of 19. Alcohol has never been an issue for him; he may have one or two beers up to 2 nights per week, or six on the weekend if his son is not with him.
35 Mr Mosby said he began using ice at the age of 20 and engaged in daily use for one and a half to 2 years; he said that during this time Ms Hilbert was using the same amount.
36 In March 2014, he voluntarily engaged in drug rehabilitation as an inpatient for one month followed by a four-week after-care day program. He also engaged in Narcotics Anonymous for one and a half years during which time he abstained from all drugs and alcohol for one year and has never used ice again.
37 After he stopped attending Narcotics Anonymous meetings, he reported using illicit substances with Ms Hilbert every 2 to 3 months on average including cocaine, ecstasy, and cannabis though never when the child was around. Since separating, he reported using cocaine socially on rare occasions and ecstasy on one occasion. He tested positive for both substances in a hair follicle drug screen, but it is understood that urinalyses have been clear of illicit substances. He said he has not used illicit substance since February 2020.
[…]
Summary
41 Based on the balance of strengths and needs on the FSNA, the likelihood that Mr Mosby’ son will be exposed to neglect or abuse in his care was rated as Low. Parenting needs on the FSNA that are likely to negatively impact his parenting capacity include his substance use and vulnerability to relapse, and problematic relationship with Ms Hilbert.
In relation to the mother, Ms D in her report dated 22 May 2020, stated the following:
Presentation
3 Ms Hilbert is a 30-year-old female of slim build …. She presented with emotional lability, a lack of critical self-reflection, personality difficulties, and treatment avoidance. There was significant impression management such that the assessor was unable to rely on her self-report as being accurate at all times.
[…]
34 Ms Hilbert said she was diagnosed with anorexia nervosa between the ages of 10 and 12, though her difficulties with disordered eating have continued. She reported being hospitalised about 5 to 7 years ago three times due to the disorder. She was also diagnosed with depression around the age of 17 or 18 years and bipolar disorder II 7 years ago. She was unmedicated for many years but currently takes Seroquel, a mood stabiliser, and Valium at night. She said her mental health has been well-managed for many years. It is likely that Ms Hilbert met the criteria for stimulant use disorder when she was using ice daily and she has continued to have a problem with stimulant use more recently in the form of Duromine, a controlled weight loss drug which she acquired in the rain without prescription.
35 Ms Hilbert also presents with personality difficulties including borderline traits. She has a history of self-harming as a teenager (cutting) and passive suicidal ideation as a teenager until the age of 21 years. She was vague regarding her criminal history but acknowledged shoplifting, drug diversion and accidentally driving off without paying for petrol last year. She was also driving unlicensed when she hired the ute. She has a history of affective instability, an unstable sense of self, and impulsive behaviour including substance use and sex work. She presented with dichotomous emotional processing such that she was unable to see anything positive about her 7-year relationship with Mr Mosby or take responsibility for any of the difficulties they experienced.
36 Ms Hilbert is not currently engaged in psychological therapy and reported that she becomes hostile and anxious when forced to engage.
Substance use
37 There is a pattern of Ms Hilbert using substances to support disordered eating and to help her work long hours on weekends. Alcohol has never been an issue for her.
38 She began using ecstasy at the age of 17. Her use gradually increased to twice per week over the weekend and continued for two years. She was also using cocaine and speed irregularly by the age of 20 and ice most weekends whilst working by the age of 21.
39 She reported taking a break from illicit substance use for about one and a half years whilst she was attending university but recommenced when she reengaged in bar work over the 2011/2012 Summer holidays. She was using substances most weekends so that she would not eat, and could stay awake. Her use with Mr Mosby became daily and continued for over a year.
40 She claimed that she stopped illicit substance use altogether when Mr Mosby engaged in rehabilitation in March 2014, apart from using cocaine once with Mr Mosby and ecstasy once just after separation, though her son was not in her care. However, Mr Mosby reported that she continued using substances for a few months following his inpatient rehabilitation and that they engaged in substance use together every 2 to 3 months after their son was born though not in his presence. She has not engaged in drug or alcohol counselling, but said she attended some meetings with Mr Mosby.
41 She also deposed that she was taking Duromine, a controlled substance, which she acquired online without subscription; it is a stimulant and weight loss drug and may be the reason why she tested positive for amphetamine and methamphetamine when screened. This substance also raises concerns about ongoing stimulant addiction. She claimed she was taking this medication from December 2019 until the end of March 2020.
[…]
Summary
45 Based on the balance of strengths and needs on the FSNA, the likelihood that Ms Hilbert’s son will be exposed to neglect or abuse in her care was rated as Moderate. Parenting needs on the FSNA that are likely to negatively impact her parenting capacity include: mental health issues and treatment avoidance; substance use; and the problematic relationship with Mr Mosby.
The Family Consultant, Ms B, also commented on the parents’ drug use and mental health:
26. Mr Mosby reported using cocaine on two occasions in June and July 2020, and his recent drug hair follicle test evidenced his cocaine use. Mr Mosby reported that he commenced attending Narcotics Anonymous in June 2020, and accessed counselling from 29 June 2020 with Ms P, Alcohol, Drug Counsellor and Therapist.
[…]
28. Ms Hilbert denied using illicit drugs. She completed a drug hair follicle test in September 2020, which returned a negative result. It was noted that Interim Order, dated 26 May 2020, ordered both parents to provide a drug hair follicle test by 30 July 2020. The Managing Director of the drug testing centre confirmed in an email to Ms Lonergan that they did not hold a record of Ms Hilbert’s recent drug hair follicle test result. Ms Hilbert disputed this, and provided evidence of the chain of custody when providing a hair sample and payment to N Service.
29. Ms Hilbert reported attending Narcotics Anonymous since June 2020 on a twice weekly basis, and now once per week. Ms Hilbert reported attending counselling since the end of August 2020 with Ms Q.
30. Mr Mosby and Ms Hilbert have completed several drug urine tests which returned negative results. It was noted that one test undertaken by Ms Hilbert was supervised.
Mental Health
31. Mr Mosby reported being medicated with anti-depressants for the past six weeks. In her affidavit, filed 22 October 2020, Ms P reported that Mr Mosby showed good insight into his illicit drug use and adopted appropriate stress management strategies.
32. Ms Hilbert reported that she attended counselling sessions with Ms Q for the past six to eight weeks (end of August 2020).
In relation to father, the Family Consultant reported that:
35. Mr Mosby (29 years) presented polite and courteous during interview, similarly to his other interviews with the writer. Mr Mosby presented somewhat evasive about certain events, and provided some more information when asked direct questions about those events.
[…]
40. Mr Mosby presented uncomfortable discussing his more recent use of cocaine. He reported that the drug hair follicle testing result was lower than the previous test result in April 2020. Mr Mosby talked about his cocaine use coinciding with consuming “too much” alcohol when attending parties on weekends when the child was with his mother. Mr Mosby described his behaviour as “self-sabotaging,” and with the help of his counsellor he has been able to reduce his alcohol consumption and therefore refrain from using illicit drugs. Mr Mosby reported that he experienced stress with work and parenting, as well as anxiety, which he internalised. He reported that this caused him to feel more tired and maybe impatient at times in his parenting of the child. However, Mr Mosby reported that there was no significant change in his presentation at that time. Mr Mosby reported that his feelings of anxiety and nervousness were so great he sought medical attention and was now prescribed anti-depressant medication. He perceived the medication to be a “walking stick” rather than the solution to his issues.
41. Mr Mosby talked in further detail about his underlying addictive nature that needed to be addressed through counselling. He maintained that he had moved forward from being a “junkie.” Mr Mosby vehemently denied any temptation to use methamphetamine again. Mr Mosby reported that he felt a considerable amount of guilt and shame for his recent cocaine use, and although he informed his sister almost immediately after the second occasion, he delayed informing his parents until receipt of the drug hair follicle test results. Mr Mosby reported that he felt embarrassed informing his parents, and they presented disappointed and shocked about his recent drug use. Mr Mosby reported that his plan was to avoid “high risk” situations and contact his sponsors at Narcotics Anonymous if he had an urge to use drugs again. Mr Mosby presented avoidant to discuss his plan if he did use drugs again, and after some encouragement from the writer, Mr Mosby reported that he had no intention to use drugs again but he would “need to tell” his parents. The latter appeared unconvincing.
In relation to the mother, the Family Consultant reported:
43. Ms Hilbert (31 years) presented polite and direct in her response, similarly to her other interviews with the writer. Ms Hilbert was visibly distressed at times.
[…]
47. Ms Hilbert described Mr Mosby as “inconsistent…antagonistic…hostile.” She reported receiving abusive messages from Mr Mosby, and therefore continued to experience emotional harm from him. She reported that on one occasion she responded with derogatory comments about Mr Mosby’ physical and sexual aspects. She expressed regret for this behaviour. Ms Hilbert expressed further concern about the timing of Mr Mosby’ contact with Centrelink and not providing them with the most recent Court Orders, which coincided with her Centrelink payment and scheduled rental payment. Ms Hilbert considered the impact on the child’s psychological safety, because she believed that Mr Mosby continued to speak in a derogatory manner about her to and around the child, including telling the child that his mother did not want to spend time with him after she was unable to attend time spent due to car issues. On that occasion, Mrs Hilbert reportedly interjected during the FaceTime call. Thereafter, the child was reported to have made “harsh and abrupt” comments that his father and paternal grandmother were “liars.”
48. Ms Hilbert talked about the lengthy experience she had of Mr Mosby’ highs and lows related to illicit drug use, and how this coincided with the “horrible” text messages that he sends her, which she read aloud to the writer. They were of an inflammatory and disparaging nature. Ms Hilbert believed that Mr Mosby used cocaine more often than he reported, and alleged that he socialises with other drug users. She expressed concern about Mr Mosby’ lack of insight into his drug use and effects on his parenting. Ms Hilbert clarified that she had no concerns about the child’s physical safety when he is with his father, however, on one recent occasion during a FaceTime call the child was unsupervised as Mr Mosby was visibly asleep. Despite these concerns, Ms Hilbert “commended” Mr Mosby for the improvements he made in his parenting, such as attending to routines, food, and activities
49. Ms Hilbert vehemently denied that she used illicit drugs, and vehemently denied providing a false document regarding her drug hair follicle test results. She expressed concerns about Mr Mosby’ focus on “point scoring.” Ms Hilbert appeared to blame COVID-19 restrictions on her inability to complete the drug hair follicle test in July 2020 (as per Court Orders). When questioned further about this, Ms Hilbert reported that her emotional difficulties were so great at that time because she was undergoing therapy with a psychologist, and that she was unable to commit to anything other than to spend time with the child. The reported timeframe of commencing counselling did not correspond with the Court ordered timeframe for completing the drug hair follicle test. Ms Hilbert presented resistant to provide specific details about her eating disorder and engagement with Ms Q, reportedly due to admissibility. Ms Hilbert expressed feeling discomfort and sensitive about seeing a psychologist and that her difficulties with weight loss/gain were “complex.”
The Family Consultant reported that when interviewing the paternal grandparents, Mr and Mrs Mosby, expressed [54]:
…feeling “shock, furious, disbelief, devastating, angry” regarding their son’s recent cocaine use. They did not condone Mr Mosby’ actions, and hoped that this “reboot” would help him to improve on his issues. Mr and Mrs Mosby reported that they observed a “calmer” change in their son’s presentation since he was prescribed anti-depressant medication and attended counselling. Mrs Mosby reported that she intuitively felt that Mr Mosby was using drugs recreationally in early 2020, however, there were no obvious behavioural changes to indicate use. Mr and Mrs Mosby reported that they held trust that their son would inform them if he used again, and they were willing to encourage this further with Mr Mosby when the writer informed them that Mr Mosby’ presented unconvincing when asked about this at his interview.
The Family Consultant interviewed the maternal grandparents, Mr and Mrs Hilbert, and they [60-61]:
…reported that they had no evidence of Ms Hilbert using illicit drugs of late. They were aware of the most recent negative drug hair follicle test result. Mr and Mrs Hilbert described their understanding of behaviours associated with illicit drug use and Bi Polar Disorder, and Ms Hilbert’s weight fluctuations, and demonstrated considerable insight into this. Mr and Mrs Hilbert were somewhat satisfied that Ms Hilbert had recently gained weight, but they wondered about her emotional stability in relation to this. They spoke positively about her move to L Town, where Ms Hilbert reportedly settled into a smaller community. They considered it a “fresh start.”
Ms Hilbert and Mrs Hilbert were described as “strong willed,” and this was identified as a clash between them. Mrs Hilbert explained that she previously challenged Ms Hilbert about her illicit drug use and associated behaviours, which caused further rifts between them. However, this subsided in recent times…
The Family Consultant concluded that:
79. Mr Mosby has so far this year demonstrated a pattern of behaviour in which he initially denies using illicit drugs, then alludes to using illicit drugs, and only commits to a firm statement of having used illicit drugs when faced with evidence (drug hair follicle test results). Mr Mosby reported that he last used cocaine in early July 2020, though he did not provide a hair sample until the last day of the Court ordered timeframe for such drug testing (30 July 2020). On the most recent occasion, doubts may be raised about the delay taken by Mr Mosby to report his illicit drug use to the other parties, and his parents, and thus ensuring he continued to meet the conditions of Court Orders. He may have placed the child at risk of harm from the effects, including withdrawal, from illicit drug use. Further, he has continued to spend time with the child without a grandparent being in substantial attendance. Mr Mosby presented somewhat dismissive of his recent illicit drug use, minimising the amount of cocaine he used in comparison to his previous use and drug hair follicle test results. Unless Mr Mosby had engaged in an extensive period of treatment, as recommended by Dr D, he should not have deviated from Court ordered arrangements until such time that this was deemed appropriate by the Court. Interestingly, and contrary to his own actions and behaviour, Mr Mosby placed heavy reliance on Ms Hilbert abiding by the same Court ordered conditions which he failed to adhere to.
80. Ms Hilbert has previously delayed providing a hair sample for drug analysis in order to conceal her drug use, and it seems she has again behaved in a similar way. Although Ms Hilbert denied that she was using illicit drugs, she provided no plausible explanation about why she was unable to provide a hair sample in the Court ordered timeframe. Her statements around attending therapy and the emotional impact this was having on her contradicted the dates she provided about when she commenced attending sessions with her counsellor. The behaviours associated with her mental health may prove further challenging to differentiate from behaviours associated with illicit drug use. Ms Hilbert’s illicit drug use remains uncertain in light of recent information about whether the document she provided is a true record or not of her drug hair follicle test. The subpoenaed documents in relation to this were not available to be viewed by the writer at the completion of this Report, and those documents may provide the Court with valuable insight in order to make definitive conclusions about this particular dispute. If Ms Hilbert’s drug hair follicle test results are accurate then it can be concluded that she has refrained from illicit drug use as required by the Court, notwithstanding the delay in which she provided a hair sample for drug analysis. If she has provided a false document then it can be concluded that Ms Hilbert continues to conceal her illicit drug use and therefore the child remains at risk of harm in her care.
ORDERS FOR THE MOTHER TO UNDERGO HAIR FOLLICLE TESTING
There have been three occasions on which the mother was required to undergo hair follicle tests to detect use of illicit drugs. She has failed to meet the requirements of each such test. I will detail them briefly as follows.
On 23 March 2020, I ordered that both parties undergo hair follicle testing by making an appointment within 72 hours. On 26 March 2020, the mother had not yet submitted to the test, but stated that she would be doing so later that afternoon, and prior to collecting the child that night to spend time with her. Therefore, orders were made for the mother to undertake the test within 24 hours with a notation to the effect that:
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 otherwise agree.”
As it turned out, the mother did not attend for a test on 26 March 2020; she in fact booked to go on 27 March 2020 but then did not attend that appointment.
The mother then told her solicitor that she had gone for the test and that the results would be forthcoming. Eventually the mother instructed her solicitor, who then informed the Court that she did not undertake the test. The mother’s excuse for not undertaking the test was that she realised after she had left the Court that she had taken Duromine, a prescription medication which she says is used for weight loss, within such period of time as she thought it would produce a positive result for Duromine, which could be construed as amphetamine use.
On 16 April 2020, the mother did undergo hair follicle testing, the results for which were positive for use by her of amphetamine, and positive for use by her of methamphetamine, indicative of using ice or speed or some such substance. Significantly, that use had not figured in her explanation of why she had not gone to the appointment as she indicated on 26 March 2020.
The next order requiring the mother to attend for hair follicle testing for use of illicit drugs was made on 26 May 2020. Pursuant to that Order, the mother was required to submit to a test sometime between 1 July and 30 July. The mother failed or neglected to do so. The father undertook his test on 29 July 2020.
The mother subsequently sent results dated 21 September 2020 which indicated that hair follicle samples had been taken on 12 September, 2020. As I set out below, I have found that the mother did not submit to a test in accordance as ordered and, insofar as she tendered test results indicating that she had submitted to the test and was found to be negative for prohibited drug use, I am satisfied that the test result document upon which the mother relies was manufactured by her or on her behalf for the purpose of deceiving the Court. It is a significant finding so I will set out in detail the evidence upon which I made the finding.
On 9 November 2020, the matter was mentioned before me, and the issue of the accuracy of the mother’s September hair follicle test was put directly in issue by the father’s solicitor. The solicitors for the father had arranged for the pathologist, Mr R, to be available to give evidence and he did so.
The mother had not had an opportunity to obtain any other evidence, including from the person whom she maintained actually took the test, so I did not make a finding on 9 November 2020.
The finding which I made in this hearing was that, on a balance of probabilities, I found that the test of the N Service dated 21 September 2020 was falsified for the purpose of representing that the mother had tested negative for use of illicit drugs and substances, and further that the mother was directly or indirectly responsible for the falsification of the test results.
The test results upon which the mother relies describe the test as having been undertaken on 12 September 2020 and the results released on 21 September 2020. The test result document was closely examined with the assistance of Mr R, the managing director of the N Service, in the course of his evidence. Mr R has been performing drug testing for about 42 years and N Service is one of the leading hair follicle testing facilities who train other pathology companies in how to perform drug testing and specifically hair follicle testing having worked in that area for about 12 years.
The test results document dated April 2020 was shown to Mr R who stated that he recognised the document as test results that show a positive result for methamphetamine. Mr R identified that the heading of the document being “S”, refers to S Corporation, which is a laboratory in City A, USA used by N Service. S Corporation analyse the samples taken by N Service. Mr R’s evidence was that N Service uses S Corporation’s laboratories in City A for approximately 93% of their hair follicle test analysis due to the accuracy of the results they produce.
Working through the document from the top left hand document, Mr R identified that the account being “T Pty Ltd” is the company who have the licence to operate in the Australasia and South East Asia regions on behalf of S Corporation. The Account ID on the document Mr R identified as details of the account that T Pty Ltd hold with S Corporation. The Client Code is the N Service’s and T Pty Ltd’s code to identify that the test conducted is an N Service and T Pty Ltd test with the “TPL” standing for T Pty Ltd and NS for N Service. Mr R was not able to identify the purpose of meaning of the Location ID. The subject name is the name of the person’s hair who N Service believe they are testing. The Subject ID, identifies what N Service is testing so it is a hair follicle test and the number listed is entered by S Corporation but is not shared with N Service. The CCF ID, importantly, is an individual identification number for the custody and control form for each individual test sample. The custody and control form is filled out and given a CCF ID by the sample collector when collecting each sample, as opposed to each individual person having a CCF ID that is used each time a sample is taken from them. The CCF ID is listed on the results document as a cross reference to the corresponding custody and control form completed for that test sample. The CCF ID is given to each test in chronological order. In this case, a Mr U was the sample collector.
Mr R agreed that a test conducted in April and a test conducted in September could not have the same CCF ID number. Looking at the September results and the April results, Mr R agreed that the CCF ID is the same on both forms even though the collection dates are months apart. Mr R agreed that therefore, one of the documents must be wrong as each sample is given an individual CCF ID and two samples were taken to conduct to two tests at different times of the year. When comparing the relevant custody and control forms for April and September, the “DONOR IDENTIFICATION” which lists the CCF ID, is also the same on both forms which again cannot be correct based on Mr R’s evidence. Mr R’s evidence later was that the September test’s CCF ID could start with the letter V, if Mr U was still in the V Indexation, but that the numerical part of the ID would be a number far higher than that listed on the April documents and could not be the same number.
Mr R’s evidence in relation to the authenticity of the April results document was that N Service has a copy of that document on their records so he considered it to be authentic. In relation to the September results document, N Service does not have any record “whatsoever” of that document and until it was provided to him by the father’s solicitors, he had not seen such a document. Mr R’s evidence was that if N Service had conducted a test that produced the September test results document that N Service would have a record of having conducted the test.
Mr R in continuing to describe the information of the September results document, identified that the LAN number is the number given by the S Corporation laboratories to each individual test. Mr R clarified that the CCF ID number is the number on the corresponding custody and control form that N Service fills out when conducting the test and the LAN number is the number given by the S Corporation laboratory for each set of individual results that is generated by S Corporation laboratories. Mr R agreed that the LAN number is the same on both the April and September results documents, which could not be correct based on Mr R’s evidence, and he identified again that N Service has a record of the April test and results but not the September test and results.
Mr R identified Saturday 12 September 2020 as the date specified on the September test results as the date that the test was conducted. He commented that this was unusual as testing is generally only conducted Monday to Friday. However, he acknowledged that the test could have been conducted on a Saturday as sometimes special appointments are made for individuals. It was noted that 16 April 2020 when the previous test was conducted was a Thursday.
On the September results document, the date and time of collection of the hair sample is stated to be September 12, 2020 9.50AM, the date and time of receipt of the sample at the S Corporation Laboratory in City A is September 12, 2020 14.36PM and the release of the results by the lab is September 21, 2020 9.46AM. Mr R gave evidence was that it was “not possible” for the laboratory in the United States of America in City A to receive the collected sample on the same day as the sample was collected from the mother as, once the sample is collected it is sent to Brisbane by overnight courier and then it is sent via another courier which might take another night or two to arrive in City A at one of the S Corporation laboratories. In comparison, on the April results document, there is 6 days difference between the date of collection and the date of receipt by the laboratory, as opposed to 5 hours on the September results document.
Mr R’s evidence regarding the sample length listed on both the April and September forms being 0 to 3.9cm was that this was the generic length of hair tested and the fact that it was the same on both forms was insignificant.
Whilst the September test result states that there was a negative result for amphetamines detected, when looking at the previous test dated 27 April 2020, only when there is a positive result is the text written in bold under the “screening cutoff” and “confirmation cutoff” columns. However, in the results provided by the mother for September, there is bolded text under both the “screening cutoff” and “confirmation cutoff” columns even though the result is listed as negative. Mr R’s evidence was that it was “unusual” for there to be bolded font on the September test where there is a negative result listed.
In conclusion, Mr R swore up to the accuracy and authenticity of the April results document which he acknowledged that the N Service has on its records. He was not prepared to swear up to the authenticity of the September results document because N Service has no record of what occurred in what is purported to be a result from 12 September 2020, as numbers are wrong, collection and reception dates are wrong, N Service does not have a copy of the document in its records and looking at it he “would be asking a lot of questions about it if it was something [N Service] had received from the laboratory”. He confirmed that if the laboratory had sent N Service such a document then N Service would have it in its records as they have electronic files for every individual who is tested and every test conducted. Mr R was unable to think of any way in which the September results document could be authentic. Mr R agreed that it looked “manufactured” and acknowledged that manufactured test results are becoming more common. He added that N Service is seeking to create a system to confirm the authenticity of documents such as this in the future but that he considered that an individual would be able to change a document such as this using the openly available program Adobe, as opposed to being required to pay for the services of another to manufacture the results.
Mr R later added that the certifying scientist’s signature on the results documents is electronically generated but that it would be unlikely, although not impossible, that you would have the same certifying scientist for both tests as is the case for the April and September test result documents. Mr R identified that the dot points of information with the certification in the April document provides further information about the process by the laboratory and that if there are “technical questions” then you can contact the laboratory director. The September document does not contain the dot point about technical questions and Mr R’s evidence was that generally it would be include on all test result documents.
During his evidence, Mr R made contact with the collector of the April sample and apparent collector of the September sample, Mr U. Mr R relayed to the Court that Mr U has records of the sample from April and the results, as N Service sent them to Mr U to forward to Ms Hilbert, but that he had no records of a sample collected on 12 September 2020 or any results provided by N Service for such a test. Therefore, Mr U told Mr R that he had not forwarded anything to Ms Hilbert purporting to be results for a sample collected by him in September. Mr R was sure that Mr U would have a record of the collection as per their practices and processes to keep such records. Mr R acknowledged that Mr U operated a clinic from a private residence, which the mother says she visited for both tests, but overall N Service and Mr U had no records of a collection or results from a test on 12 September 2020 by Ms Hilbert.
Ms Hilbert gave evidence that she attended a private residence in the W area of M Town, but did not have the exact address, on 12 September 2020 at 9.50am to have a sample of her hair taken for the purposes of the hair follicle test. She said she was able to find the address however, she said the relevant documents were at her residence in L Town and she was currently at her parents’ residence in M Town. She said that the residence she attended was the same address she attended previously in April to have her sample taken. It was put to the mother that, if she attended that same address that she previously attended in April, then N Service would have a record of her results. The mother’s response was that she did not understand how N Service did not have a record of the September results. She added that she was sent the September results document from an N Service email address. Ms Hilbert later stated that the email address was …@N Service…. Mr R said that he recognised the email address. A copy of the email that the mother says attached the September results document was provided to the Court, as below:
Begin forwarded message:
From: Ms Hilbert <…@gmail.com>
Date: 22 October 2020 at 4:35:01 pm AEDT
To: Ms Hilbert <…@hotmail.com>
Subject: Fwd: PRIVATE AND CONFIDENTIAL - Hair Drug and Alcohol Testing
---------- Forwarded message ---------
From: <…@NService...>
Date: Mon 21, Sep 2020 at 09:51 am
Subject: PRIVATE AND CONFIDENTIAL - Hair Drug and Alcohol Testing
To: …@gmail.com
It appears that the mother forwarded the email received by her from …@NService... to another email address of the mother’s but the email from …@NService... appears to be blank and has no attachments. Whilst the date and time of the email from …@NService... appears to correspondence with the test results of the lab having been released on 21 September 2020 at 9.46am, it would seem unusual that the email from …@NService... has no text or even an automatically generated electronic signature. Otherwise, this email does not assist the mother.
In relation to the CCF and LAN numbers being the same on both documents, the mother’s response was that she understood the point made that it looks as if the two documents are copies of each other with some details changed but that she did not understand how this could be the case as she had been sent the document by an N Service email address. The mother acknowledged that this likely indicated that the September document was manufactured and not genuine. In relation to the collection date and receipt date by the lab, the mother’s response was that all she knows is that she attended an address, had her hair cut for the sample and then she received her results from an N Service email address that she then forwarded to her lawyers. The mother was asked to find the name of the person she attended upon and the address of the residence she attended. The mother said she was unable to provide those details as they were in L Town at her home and she was in M Town at the time of the hearing. The mother was asked how she found the testing address in the first place. The mother was unable to recall.
Mr R was shown the custody and control form that Ms Hilbert says corresponds with the September test result document. Mr R gave evidence that Mr U had seen this document but did not have a copy of it on his records and noted that it was almost identical to the document that he had filled out in April for the April sample. Mr R otherwise identified that the CCF number was the same as the April custody form and results document and that the September custody form should not have the same CCF number.
It was put to Mr R that it appears that the phone number entered in the box “DONOR PHONE NUMBER” as well as the text entered as the date and time that Mr U signed the form, have been written into the form using a different pen to the rest of the document or added digitally as opposed to being physically signed with a pen. Mr R agreed that this was the case. Apart from the phone number and the text entered as the date and time that “[Mr U]” signed the form, the hand writing and pen strokes for the rest of the details are precisely the same on both the April and September custody forms. This is particularly clear when looking at the pen strokes in Mr U’s and Ms Hilbert’s signatures and the collection facility address. Mr R agreed that it appeared that the September custody form was a copy of the April form that had been tampered with to show a new phone number and date and time of signature.
In relation to the donor phone number text in the September form, the text appears to be in a crisp black font that resembles handwriting but does not match the colour or style of the “DONOR PRINTED NAME”. When compared to the April form, the phone number text has the same appearance as the “DONOR PRINTED NAME” being handwriting using a pen that has faded upon being scanned into the computer. When looking at the date that Mr U signed the form, the “9” in “09” appears to be a “4” that has had a circle added to the top of the number to appear as a “9”, and in the time boxes, the “9” and “5” appear as crisp black numbers rather than hand written numbers using a pen that have faded upon being scanned into the computer.
The boxes that hold the numbers for the date in the April form show the faint watermark prompting letters “MM/DD/YYYY” behind the hand written text and the boxes that hold the numbers for the time in the April form show the faint watermark prompting letters “HH:MM” behind the hand written text. In the September custody form, there is no watermark behind the numbers that appear to have been altered but the watermark remains behind the numbers that have not been altered. All other details in the form appear to be identical in style and content as the April form.
On the basis of the foregoing, I am satisfied that the April 2020 custody form has been copied and then altered to show a new phone number for the mother, and date and time for when Mr U signed the form, and that the April results form has been copied and digitally altered to show a negative result for amphetamines.
I find on the balance of probabilities, that the test of the N Service dated 21 September 2020 was falsified for the purpose of representing that the mother had tested negative for use of illicit drugs and substances. I further find that the mother was directly or indirectly responsible for the falsification of the test results.
I accept Mr R’s evidence to the effect that test results are very easy to alter and that anyone with an Adobe program can do it.
In continuing the chronology, I made a third order for the mother to undergo a hair follicle test on 9 November 2020. In paragraph 3(a) of that Order, the mother was required within 72 hours of 9 November 2020 to make an appointment, by which the appointment was to take place within seven days of 9 November 2020. The mother failed or neglected to comply with that Order.
On 25 November 2020, my chambers wrote to the practitioners for the parties and to the mother, who was representing herself, reminding the parties that the hair follicle test results were necessary, and must be available and capable of being verified as accurate by yesterday, which was the commencement of the hearing.
On 25 November 2020, the mother had submitted to a hair follicle test but did not know when the results would be available. She said that she would send the results to everyone when they were available. At paragraph 3(k) of the Order made on 9 November 2020, I required the mother to ensure that the test result was sent directly to the Independent Children’s Lawyer, although she could also arrange for a copy to be sent to her.
The above history, detailed as it is, demonstrates that the mother has not complied with one single order for hair follicle drug testing within its terms. The significance of the use by her of illicit drugs could not have been more apparent in these proceedings. Significantly, the Family Consultant’s recommendation in her report predicated the outcome of the residence determination on drug testing, which certainly must have underlined to the mother the significance of drug test results.
It is not just that the mother uses drugs which is a concern; it is that she is dishonest about it and she lies about it. When challenged, she becomes hostile, avoidant and indignant. This behaviour would be difficult for a contact supervisor to deal with.
SUBSTANTIAL ATTENDANCE OR SUPERVISION
The mother, made some submissions in relation to substantial attendance versus supervision. That included that in the last nine months since orders have operated for substantial attendance by her parents of her time with the child, there has been no reported incident of concern. I think that is rather overstating it; there have been concerns, there just has not been a specific incident in which it was said that the child’s physical safety was jeopardised.
The determination of these proceedings on the basis that the child will reside principally with the father (subject to certain conditions) will be a bitter blow for the mother. She has underlying personality vulnerabilities, and the Court cannot be certain how she will react to the outcome and to the restriction of her time with the child and, as it turns out, to her parents being required to fully supervise her time with the child.
There is evidence, from the very first Court hearings, that the mother can act unpredictably, dishonestly and deceptively. I have observed her to do so myself.
Counsel for the father and the Independent Children’s Lawyer rely specifically on the evidence given yesterday by the Family Consultant, Ms B, to the effect that the mother’s time with the child ought to be fully supervised by her parents as opposed to them being in substantial attendance. The Family Consultant was unequivocal in her opinion that the child’s time with the mother needs to be subject to full supervision.
The Family Consultant’s reasons included the danger associated with the effect of use of ice or similar methamphetamines. It also included that the mother can apparently mask her usage of methamphetamine. At this point, I acknowledge that apart from the drug test, which was taken on 16 April 2020, there has been no positive test in relation to the mother’s use of speed or methamphetamine or amphetamine or other illicit drugs, that’s part of the problem; the mother has avoided detection by fraudulently tampering with results and taking a test so late that the results would not be received before this final hearing was concluded.
The mother is very articulate. She is obviously intelligent. When challenged, she presents in a self-righteous, argumentative, petulant, arrogant, haughty and indignant manner. The mother has an excuse for everything, and someone else is responsible for any aspect of her non-compliance with orders of the Court.
I am satisfied that strict boundaries provided in these Orders are the only way that the mother will be manageable for her parents. The more leeway there is, the more potential there is for argument. The mother’s articulate arguments and her high intelligence would render her hard to control. Time between the mother and the child requires unambiguous guidelines, rules which are not open to interpretation, and not easy to alter.
The events of today amply demonstrate the inadequacy of the maternal grandparents being merely in substantial attendance during the child’s time with the mother. One of the distinguishing features of supervision versus substantial attendance is that, if the maternal grandparents need only be in substantial attendance, the mother will be able to leave their house with the child. She would also be able to drive with him alone in a car with her. When the mother was challenged in the course of her submissions, she terminated her connection and left the building without explanation. It is not difficult to imagine that, if the mother came into similar conflict with either or both of her parents over her care of the child, that she could react in much the same way as she did today and leave her parents’ home with the child by car or on foot. Once away from the maternal grandparents, the mother’s past behaviour indicates that she can rationalise any situation to justify what she wants to do. If the mother was drug effected, the results could be disastrous for the child and I have the evidence of the maternal grandparents that they cannot tell when the mother is drug affected.
I am satisfied that complete supervision is required of the mother’s time with the child.
In making that Order, I understand that the mother will not be accepting of it. She will probably regard it as being cruel and punitive, and she has already described it as “overkill”. I have no doubt that she genuinely believes that the child does not need this extent of protection. However, the mother’s view is doubtless formed on the basis that she does not regard her drug use as being a “problem” for the child whereas the Court does regard her drug use as being a danger for the child.
DETERMINING THE CHILD’S BEST INTERESTS
In making any order, I must consider the best interests of the child to be the paramount consideration. In arriving at what is in the child’s best interests, the Family Law Act 1975 (Cth) (“the Act”) specifies primary considerations to which I must have regard, as well as additional considerations.
The first, and most important, of the primary considerations is the need to protect the child from physical and emotional harm when making any order. The second consideration, which ranks behind the first consideration, is that I should make orders which have regard to the benefit for the child of having a meaningful relationship with both parents. It is clear from the Act that the need to protect the child from harm must be given priority over the importance that I place on the benefits which I discern are available to a meaningful relationship with the mother. I accept that it is very important for the child to know his mother but it is not as important as keeping him safe from the risks which the mother represents. They are risks to his physical safety as well as his emotional wellbeing.
The child requires full supervision to be kept safe from emotional and physical harm – not that the mother would try to harm him, but she may act out of desperation, misunderstanding or rage, and his physical safety could be at risk. His emotional safety would similarly be at risk. The mother’s abrupt departure today is an excellent example of how the mother acts impetuously. I have made clear that the mother cannot be in charge of a motor vehicle in which the child is a passenger. Likewise, there is no amount of time that the child can be out of sight or sound of the maternal grandparents.
In all the circumstances, I am satisfied that the orders that are sought by the father and the Independent Children’s Lawyer should be made.
I am satisfied that the Orders I make are in the child’s best interests. It is not the best outcome for the child. The best outcome would involve at least one, if not both of his parents, to cease taking illicit drugs, manage their mental health issues and function at a level at which he/she need not be monitored whilst parenting the child. The parents have not yet reached that stage but the father is much closer to it than the mother. The Orders I make are the best way forward for the child at this stage.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 27 January 2021
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