Mulally & Shiel
[2023] FedCFamC1F 302
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mulally & Shiel [2023] FedCFamC1F 302
File number(s): SYC 2346 of 2019 Judgment of: CAMPTON J Date of judgment: 24 April 2023 Catchwords: FAMILY LAW – INTERIM PARENTING – Where it is agreed between the parents and the Independent Children’s Lawyer that the existing interim orders should be varied pending the trial – Where the father has not spent time with the children for one year and nine months – Where the father has a history of illicit substance misuse – Where the father has been convicted of a family violence offence towards the mother – Where the parents and the Independent Children’s Lawyer agree that the father’s time with the children pending a trial will be professionally supervised – Where the key issues for determination are the terms and frequency of supervised time including whether the father’s time with the children should be suspended if the father fails to comply with a drug testing regime, or if he returns a test result that is positive for illicit substances – Terms of electronic communication between the father and the children – Terms of international travel with the mother. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA Cases cited: Blinko & Blinko [2015] FamCAFC 146
Deiter & Deiter [2011] FamCAFC 82
Division: Division 1 First Instance Number of paragraphs: 122 Date of hearing: 18 April 2023 Place: Sydney Counsel for the Applicant: Mr Richardson SC Solicitor for the Applicant: Mills Oakley Lawyers Counsel for the First Respondent: Mr Bunning Solicitor for the First Respondent: Pearson Emerson Family Lawyers The Second and Third Respondents: Did not participate Solicitor for the Independent Children’s Lawyer: Ms Tin, Legal Aid NSW ORDERS
SYC 2346 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MULALLY
Applicant
AND: MS SHIEL
First Respondent
MS SALZNER
Second Respondent
MR C MULALLY
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CAMPTON J
DATE OF ORDER:
24 April 2023
THE COURT ORDERS THAT:
1.All prior parenting orders in relation to X born 2014 and Y born 2018 (“the children”) be discharged.
AND PENDING FURTHER ORDER THAT:
Drug testing regime
2.Within three days of the date of these orders, the Independent Children’s Lawyer is to provide Australian Workplace Drug Testing Services (“AWDTS”) with a copy of these orders, copying in the legal representatives for the mother and father to any such correspondence.
Hair follicle testing
3.From the date of these orders, the father is restrained from:
(a)Cutting his either his head or body hair shorter than four (4) centimetres; and
(b)Dying or bleaching his head or body hair.
4.For the purpose of these orders, a “hair follicle test” means a broad screen hair follicle drug test (screening for all illicit drugs including but not limited to amphetamines and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites), conducted by AWDTS, or an AWDTS nominee accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory, and for which:
(a)A sample of 3.0 cm of undyed, unbleached head or body hair is collected for testing; and
(a)AWDTS (or its nominee) utilises the testing services of an appropriate laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body, with such selection to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with International Society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available.
5.The father is to undergo a hair follicle test that complies with Order 4 above:
(a)Within seven days of the date of these orders;
(b)In the week between 3 July 2023 – 7 July 2023;
(c)In the week between 2 October 2023 – 6 October 2023; and
(d)In the week between 8 January 2024 – 12 January 2024.
6.Within 48 hours of undertaking a hair follicle test pursuant to these orders, the father shall forward by email to the mother’s solicitors and the Independent Children’s Lawyer, documents verifying that he has undertaken the hair follicle test.
7.Within 48 hours of receiving the results of each hair follicle test undertaken by the father pursuant to these orders, the father shall forward such results to the mother’s solicitors and the Independent Children’s Lawyer by email.
8.The costs of the hair follicle tests undertaken by the father pursuant to these orders shall be met by the father.
Urinalysis testing
9.For the purpose of these orders, a “urinalysis test” means a supervised broad screen drug urinalysis test (screening for all illicit drugs including but not limited to amphetamines and metabolites, cannabis and metabolites, cocaine and metabolites, opioids and metabolites) conducted by AWDTS, and for which:
(a)Collection is conducted by a qualified and certified collector; and
(b)Chain-of-Custody procedures are applied to the sample.
10.The father is to undergo a urinalysis test that complies with Order 9:
(a)Within 72 hours of these orders; and
(b)Thereafter, on each Monday until the conclusion of the trial listed to commence on 26 February 2024, and if Monday is a public holiday, then on the first business day thereafter.
11.Within 48 hours of undertaking a urinalysis test pursuant to these orders, the father shall forward by email to the mother’s solicitors and the Independent Children’s Lawyer, documents verifying that he has undertaken the urinalysis test.
12.Within 48 hours of receiving the results of each urinalysis tests undertaken by the father pursuant to these orders, the father shall forward such results to the mother’s solicitors and Independent Children’s Lawyer by e mail.
13.The costs of the urinalysis tests undertaken by the father pursuant to these orders shall be met by the father.
Live with arrangements
14.The children shall live with the mother.
Time arrangements
15.The father’s time pursuant to Order 16 shall commence after:
(a)The father has provided the mother and the Independent Children’s Lawyer with four consecutive negative urinalysis tests pursuant to Order 10, and for which the father has complied with Orders 11 and 12 herein; and
(b)The father has provided the mother and the Independent Children’s Lawyer with a negative hair follicle test pursuant to Order 5, and for which the father has complied with Orders 6 and 7 herein.
16.Upon compliance with Order 15, the father shall spend time with the children on each alternate Sunday, for a period of four hours as agreed between the mother and father in writing, but failing agreement from 10.00 am to 2.00 pm.
17.For the purpose of Order 16:
(a)The father’s time is to be supervised by a professional supervision service as agreed between the mother and father in writing, but failing agreement by E Family Services;
(b)Changeover is to be facilitated by the professional supervision service engaged pursuant to Order 17(a) above, (and if they so elect, accompanied by the second and third respondents or Ms D), collecting and delivering the children to and from the mother’s home; and
(c)The father is to meet the costs of such supervision and the supervisor reports.
Suspension of the father’s time
18.The father’s time pursuant to Order 16 shall be immediately suspended upon any of the following occurring:
(a)The father returning a urinalysis test result that is positive for any illicit substance;
(b)The father returning a hair follicle test result that is positive for any illicit substance;
(c)The father failing to undertake a urinalysis test or a hair follicle test as he is required to do pursuant to these orders;
(d)The father receiving a custodial sentence in relation to any criminal conviction made against him.
Resumption of the father’s time
19.In the event the father’s time is suspended pursuant to Order 18(a)–(d) above, the father’s time is to recommence in accordance with Order 16 upon the father:
(a)Providing the mother and the Independent Children’s Lawyer with one clear hair follicle test that complies with Orders 4–8 above; and
(b)Providing the mother and the Independent Children’s Lawyer with four consecutive clear urinalysis tests that comply with Orders 9–13 above.
20.In the event the father’s time is suspended pursuant to Order 18(d), and he seeks to recommence spending time with the children prior to the trial currently listed to commence on 26 February 2024, the father shall, in addition to complying with Order 19, file and serve upon each other party and the Independent Children’s Lawyer, an affidavit disclosing full particulars of the convictions leading to his incarceration and the terms of any of his release from custody.
Electronic communication
21.That for the purpose of electronic communication between the father and the children, unless otherwise agreed in writing between the parents:
(a)Within seven days from the date of these orders the mother shall advise the father’s solicitors in writing as to a mobile telephone number and email or web account to be used by the father for such electronic communication; and
(b)As and from Wednesday, 3 May 2023, the father shall electronically communicate with each of the children by telephone or audio each Wednesday at such time as agreed between the parties in writing, but failing agreement between 5.30 pm and 6.30 pm, and upon the father providing to the mother and the ICL two consecutive negative urinalysis tests and one negative hair follicle test pursuant to these orders, that electronic communication shall take place by video call (including but not limited to face time, Microsoft Teams, Zoom or Whatsapp);
(c)The mother shall do all things as are necessary to facilitate such electronic communication and shall ensure the children are available to so electronically communicate with the father.
Passports and international travel
22.The father shall do all acts and things and sign all documents necessary within seven days of being requested by the mother to do so, to make an application to the Australian Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005), to the children to be issued with an Australian travel document.
23.In the event the father refuses or neglects to sign any document necessary to issue the children (or either of them) with an Australian travel document pursuant to these orders, such refusal will constitute sufficient special circumstances for the mother to seek that the Minister administering the Australian Passports Act 2005 give consideration to issuing an Australian travel document for each child pursuant to s 11(2)(a) of the Australian Passports Act 2005.
24.The children be permitted to travel with the mother outside of the Commonwealth of Australia as agreed between the parties in writing, but failing agreement, for a period of not greater than 14 days for the purpose of attending a wedding in Country F with the mother in mid-2023, provided that:
(a)The mother gives the father no less than thirty days’ written notice of her intention to travel, with such notice to include a list of the countries to be visited and the period of the proposed travel;
(b)Copies of the confirmed return airline tickets for the children.
25.The father’s time with the children pursuant to Order 16 shall be suspended for the purpose of the mother travelling internationally with the children pursuant to Order 24.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mulally & Shiel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION
Mr Mulally (“the father”), Ms Shiel (“the mother”) and the Independent Children’s Lawyer (“the ICL”) seek a variation of interim parenting orders in relation to the children:
(a)X, born 2014, currently aged eight; and
(b)Y, born 2018, currently aged five.
The father’s parents, Ms Salzner (“the paternal grandmother”) and Mr C Mulally (“the paternal grandfather”) are the second and third respondents to the proceedings. They did not participate in this current application.
The application for a variation of the existing parenting orders is made in circumstances where:
(a)Each of the parents and the ICL agree that there has been a significant change of circumstances since the existing interim parenting orders were made; and
(b)The substantive proceedings are listed for trial over five days commencing on 26 February 2024, and hence the period for which any interim parenting orders will be in place will be at least 10-months; and
(c)The single parenting expert, Dr B, has prepared two family reports, the first dated 6 November 2019 (“the first family report”) and the second dated 14 February 2022 (“the updating family report”). The opinions and conclusions recorded in the updating family report, relied upon by the parents and the ICL for the purpose of this determination, are grounded from information available to Dr B as at December 2021 and observations of the parents and the children at that time. A supplementary report will be prepared prior to the trial in February 2024, with attendances on Dr B being scheduled for September 2023; and
(d)Save for as part of the interview process with Dr B in December 2021, the children have spent no time with the father since mid-2021, being one year and nine months ago.
The father’s interim relief was contained in his Application in a Proceeding in 22 March 2023, and amended with leave by way of his Amended Minute of Order sought dated 18 April 2023 (Exhibit 1). It was further amended orally, without objection, during the hearing. The mother’s interim relief was contained in her Response to the father’s Application in a Proceeding filed on 13 April 2023. The ICL’s orders sought were identified in her Case Outline document filed 18 April 2023, which became Exhibit 6.
The current parenting regime comprises two sets of orders, the first made on 25 June 2020 (“the June 2020 orders”) and the second made on 16 November 2020 (“the November 2020 orders”).
For the reasons that follow, orders shall be made discharging all previous parenting orders, for the children continue to live with the mother, and upon the father producing one negative hair follicle drug test and four consecutive negative urinalysis drug tests, for him to recommence spending professionally supervised time with the children for four hours each alternate Sunday. A drug testing regime which is not dissimilar to that crafted by way of the June and November 2020 orders shall be ordered. In the event the father fails to comply with that drug testing regime or is incarcerated as a result of a criminal conviction, his time with the children shall be suspended, and will recommence on condition, including that he is able to again produce one negative hair follicle drug test and four negative urinalysis drug tests. Orders will be made for audio electronic communication to commence immediately, and for visual electronic communication to commence on the satisfaction of conditions.
Orders will be made facilitating the parents obtaining a passport for each of the children. Additional orders shall be made permitting the children to travel overseas with the mother as agreed between the parents and in the absence of agreement, for the children to travel with her for not more than 14 days to attend a wedding in Country F in mid-2023.
THE COMPETING PROPOSALS
By way of Exhibit 1, the father sought a reinstatement of his time with the children broadly in accordance with Order 3 of the June 2020 orders, such that he would spend professionally supervised time with X only on each Wednesday afternoon for two hours and both children on each Sunday for four hours. During the hearing the father sought that both periods of time be spent with both children together. All parties agreed that any spend time with orders should ensure that both children attend with the father on the times are ordered. He further seeks that Orders 2, 4 and 5 of the November 2020 orders be discharged. Those orders, which are recorded in full at [36] below, provide for the father’s time to be automatically suspended if he does not comply with the drug testing regime imposed by way of the June 2020 orders. He did not seek a discharge of the June 2020 drug testing orders themselves. He additionally seeks an order that the children communicate electronically with him by video call each week on Monday and Thursday evenings, and for the mother to pay his costs of the interlocutory application.
In support of his application, the father relied upon his affidavit filed on 22 March 2023 which included some 466 pages of annexures, which mostly comprised supervised visit report for the period from 12 June 2019 to 8 August 2021. He additionally relied upon a Case Outline document filed on 17 April 2023 (Exhibit 4).
The mother filed a Response to the father’s Application in a Proceeding on 13 April 2023. In that Response she seeks interim orders for a discharge of all prior parenting orders, that she have sole parental responsibility for the children and that the children live with her. It is her proposal that the father spend professionally supervised time with the children for three hours on the first Sunday of every third calendar month, conditional upon him complying with a drug testing regime which would see the father undertake weekly, broad-screen urinalysis test each Monday and one additional random test per month, as well as one hair follicle drug test each three months. She seeks an order that the father’s time with the children be immediately suspended on the failure to comply with the proposed drug testing regime or if a positive test is returned. As to electronic communication, the mother seeks that the father be permitted to communicate with the children by telephone call only (not video) on the first Sunday of each month that the children would not otherwise be spending time with the father pursuant to her proposed orders, and on the children’s birthdays and on Christmas day. She sought that such call be made to the maternal grandmother’s phone, rather than her own.
In support of her application, the mother relied upon her affidavit filed on 13 April 2023, and an affidavit of her mother (“the maternal grandmother”) also filed on 13 April 2023. She also relied upon a Case Outline document filed on 17 April 2023 (Exhibit 5) and a tender bundle comprising 66 pages of documents obtained on subpoena in these proceedings (Exhibit 7). The mother’s tender bundle included digital video and audio files produced on subpoena by the Police subsequent to the father being charged with a number of criminal offences occasioned upon his former girlfriend. Those digital files were unable to be opened by the Court. The father opposed the tender of those documents for the purposes of the interim parenting determination. In circumstances where they could not be opened by the Court they did not form part of the evidence.
The ICL’s proposal was that no interim order as to parental responsibility be made, and that the children should spend one period of professionally supervised time with the father each month. The ICL also sought that the commencement of the father’s time be conditional upon him complying with the mother’s proposed drug testing regime, and not commence until his current outstanding criminal charge was determined later in 2023.
The father also opposed the relief sought by the mother for an interim order for sole parental responsibility. The mother abandoned this relief during the course of the hearing.
Shortly prior to the hearing on 18 April 2023, the parents and the ICL sent by email to chambers a “Joint Minute of Order” marked as Exhibit 8. That Minute recorded an agreed position of the parties as to the directions to be made preparing the proceedings for trial in February 2024, and the terms of disputed travel orders proposed by each of the mother and father. By way of broad summary as to the travel dispute, each parent proposed that the children obtain an Australian Passport. The father proposed that any international travel of the children be restricted to the mother being permitted to take the children overseas to attend a wedding in mid-2023. He further sought that the mother provide him with particulars of any proposed travel, including a copy of the itinerary, locations to be visited, and details of their accommodation. The mother proposed that she be permitted to take the children overseas at any time provided that she gives the father 30 days’ written notice of her intention to travel and copies of the children’s return airline tickets. The ICL had no position as to the pre-conditions to be fulfilled as to the children’s international travel, but expressed her view that so long as the mother provides the father details as to when and where she intends to travel with the children, she should be permitted to do so.
The scope of the dispute
The parents disagreed as to the interpretation of the series of prior interim orders, each contending the others reading and understanding of them was incorrect, leading to further dispute and conflict between them. The parents and the ICL agreed that it would be preferable that the prior interim parenting orders to be discharged and that there be a single set of interim orders regulating parenting until the trial in February 2024.
For the purpose of this determination, each of the parents and the ICL adopted a position that the children would be exposed to an unacceptable risk of harm should they spend unsupervised time with the father. What was in contest was the categorisation and assessment of the extent of that harm and how that risk could be mitigated or ameliorated by protective orders to cause that risk to be acceptable.
Significantly, neither of the parents or the ICL contend the father should spend no time with the children pending the final hearing. There was no dispute as to the identity of the supervisor, nor that the costs associated with such supervision should be met by the father.
The parties agreed that they should facilitate the children obtaining Australian passports. They also agreed that the mother should be permitted to travel to Country F in mid-2023 with the children to attend a wedding for a period of not less than 14 days. The terms of that travel, and whether the mother should be able to travel outside of Australia with the children at other times without the father’s consent, was not agreed.
The scope of the current dispute between the parents was therefore as follows:
(a)The terms of any drug testing regime with which the father is to comply pending the trial;
(b)As to the father’s time with the children:
(i)The frequency and period of professionally supervised time to be spent by the father with the children;
(ii)When it should commence;
(iii)Whether it should be conditional on his compliance with a drug testing regime, and the results of that testing regime;
(c)Whether the mother should be permitted generally to travel with the children overseas and the specific terms of that travel;
(d)The nature and frequency of any electronic communication to occur between the father and the children.
RELEVANT BACKGROUND
The father was born in 1979 and is currently 44 years of age. The mother was born in 1987 and is currently 35 years of age.
The mother and father commenced a relationship in around 2012 and began living together in 2013. They separated in the shadow of an incident of family violence in early 2019, during which the father physically assaulted the mother. X was then four years old and Y had just turned one-year-old.
The mother gave some evidence that she was aware that the father used illicit drugs throughout the parents’ relationship (although it is unclear when it first came to her attention). She gives evidence of a general nature that the father was “addicted to opiate based pain medication” and used a number of illicit drugs.
It was the mother’s evidence that in early 2016, she found six packets of “white powder” which she now understands to have been an illicit drug, and other drug paraphernalia inside the father’s sunglasses case. She said that when she confronted the father about this, he conceded he had “a problem”, and that one month later, he was admitted to a rehabilitation centre. The mother contends that the father relapsed into regular drug misuse shortly after his return from rehabilitation, and sets out in her affidavit a chronology of that misuse. She said that the father used illicit drugs in the former family home, that he frequently did not come home and that he would become verbally abusive when she confronted him about his drug misuse.
The father does not give evidence of his historic drug use in his affidavit filed 22 March 2023, relied upon for the purpose of this Application in a Proceeding.
The incident in early 2019
The tone of the mother’s affidavit evidence is that in the months leading up to the parents’ separation the father’s drug use escalated. She said that in early 2019 the parents engaged in an altercation either while the father was affected by drugs, or shortly after he had been affected by drugs, and said that the father physically assaulted the mother. It was the mother’s affidavit evidence that the father “pushed [her] and punched [her] in the jaw, leaving bruising, and fractured [her] hand”. While the specifics of this incident will be a matter for trial, I am mindful that this was a serious incident of family violence to which the mother was subjected.
It was not controversial that in early 2019 a provisional Apprehended Domestic Violence Order (“ADVO”) was made against the father for the protection of the mother. A short time later, an interim ADVO was made against the father for the protection of the mother. Shortly after, a further interim ADVO was made against the father for the protection of the children. The father opposed the making of a final ADVO for the protection of the mother and children. Two final ADVOs were made in early 2020 for a period of two years, restricting the conduct of the father towards the mother and the children until early 2022. The terms of the first ADVO included that the father was restricted from contacting the mother except through her lawyer and restricted from being within 100 metres of the mother or her home or workplace. The second ADVO prevented the father from approaching or being in the presence of the children “for at least 12 hours after drinking alcohol or taking illicit drugs”.
The father was charged with a criminal offence arising from the incident in early 2019. The criminal proceedings were defended by the father. The mother deposed that she was cross-examined as part of this process by the father’s solicitor, which she described as a “particularly harrowing experience for [her], as a victim of [the father’s] violent behaviour”. He was found guilty of this offence in late 2019 following a hearing in the Local Court. The father sought to appeal the conviction to the District Court, and in mid-2020 that appeal was dismissed. He then sought to appeal the decision of the District Court to the New South Wales Court of Criminal Appeal. That appeal was dismissed in mid-2021.
Again, the father did not give evidence about this incident in his affidavit relied upon in support of this Application in a Proceeding (being that filed 22 March 2023).
The parenting proceedings
The father commenced these proceedings by filing an Initiating Application filed in the Family Circuit Court of Australia (as it was then) on 12 April 2019. That application was filed after the incident of family violence in early 2019, during which period he had not spent time with the children, and on the same day that the interim ADVO was made against the father in respect of the children.
One month after the father commenced these proceedings, he and the mother agreed to interim consent orders being made on 16 May 2019. Those orders provided for the children to live with the mother and spend professionally supervised time with the father during the week, and for the father to undergo regular urinalysis and hair follicle testing. The parents also agreed to engage Dr B as the single parenting expert to prepare a family report.
It was the mother’s evidence that the father did not comply with the interim consent orders as to drug testing. She contends that between the making of the interim consent orders and mid‑2019, the father continued to test positive for illicit drugs despite at that time representing that he was not consuming illicit drugs. It was the mother’s evidence that from mid-2019 the father agreed to suspend his time with the children, in circumstances of his non-compliance with the orders.
The parents and the children attended upon Dr B, who subsequently produced a family report on 6 November 2019 (“the first family report”), marked Exhibit 2. Dr B recommended at that time that the children continue to live with the mother, that the father commence spending professionally supervised time with the children and immediately comply with a drug testing regime. It was recommended that any progression of the father’s time be conditional on his abstinence from illicit drug use.
Subsequent to the release of the first family report, on 12 November 2019 a senior judicial registrar conducted an interim hearing. The mother made an application to reopen her case on 20 November 2019 seeking to adduce evidence as to the father’s guilty conviction in relation to the charge arising from the early 2019 incident. That application was granted. The senior judicial registrar subsequently made the June 2020 orders, which relevantly provided that:
3.Commencing subject to Order 8 herein [requiring the father to produce 10 clear urinalysis test results], the children spend time with the Applicant Father as follows:
3.1With [X] on each Wednesday afternoon from after school at 2.50pm to 5.30pm; and
3.2With[X] and [Y] on each Sunday from 8am to 12pm, subject to Order 5 below.
4.The changeover of the children from the mother’s care to the father’s care at the commencement of the time the children spend with the father pursuant to order 3 and from the father’s care to the mother’s care at the conclusion of such time (‘changeover’) shall be facilitated by the paternal grandparents, subject to Order 5 below.
5.For the purpose of Order 3 above, the [father’s] time shall be supervised by a supervisor as defined by paragraph 1.5 herein with the paternal grandparents to collect and deliver the children to the Respondent mother’s home, or school as appropriate, with the supervisor, with the costs associated with such supervisor to be borne by the Applicant Father.
6.On a without admissions basis, the Applicant Father shall undergo a supervised broad screen drug urinalysis test with Australian Workplace Drug Testing Services ("AWDTS") on the following conditions:
6.1Commencing from the date of these Orders until two (2) consecutive clear hair follicle test results are produced such tests shall be undertaken weekly on a Tuesday and a Thursday, with a further test to be taken at the direction of the Respondent Mother's solicitors on no more than two (2) occasions per month.
6.2For a period commencing from when the Applicant Father has produced two consecutive clear hair follicle test results and continuing until he has produced four (4) consecutive clear test results such tests shall be undertaken on each Monday with a further test to be taken at the direction of the Respondent Mother's solicitors on no more than one (1) occasion per month.
6.3The tests to be directed by the Respondent Mother's solicitors pursuant to Orders 4.1 and 4.2 above shall be requested in writing to the Applicant’s solicitors no less than 24 hours prior to the date of testing, and the test shall be booked by the Respondent Mother.
6.4Collection is to be conducted by a qualified and certified collector. Chain-of-Custody procedure is to be applied to the sample.
6.5The Applicant Father will authorise the clinic to provide directly to his solicitors the test results, with the test results to then be forwarded to the Respondent Mother’s solicitors within 48 hours of receipt of such results.
6.6The costs of the tests are to be borne by the Applicant Father.
7.The Applicant Father is to make an appointment and attend for hair collection at an AWDTS or nominee for hair drug testing purposes. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:
7.1The Applicant Father is required to maintain his head hair at a length of not less than four (4) centimetres, with neither head hair nor body hair is to be cut shorter than four (4) centimetres, bleached or dyed between the date of this order and the time of collection of hair;
…
7.8That the Applicant Father shall undertake such hair follicle testing on four (4) occasions, with the first to be undertaken pursuant to Order 5.2 above, and then on three (3) further occasions on three (3) monthly intervals.
The mother said that in late July or early August, she learnt inadvertently that the father had been arrested. She issued a subpoena to NSW Police, and from the material produced under that subpoena recorded that the father had been charged with further drug and violence related criminal offences.
In those circumstances, the mother filed an Application in a Proceeding on 19 October 2020 seeking a variation of the June 2020 orders.
The senior judicial registrar conducted a further interim hearing, and orders were made on 16 November 2020 varying the June 2020 orders, such that if the father did not comply with the drug testing regime therein or he tested positive to illicit drugs, his time with the children would be automatically suspended. The November 2020 orders were relevantly as follows:
1.Prior parenting orders made in this matter are suspended only to the extent necessary to give effect to the Orders made today.
2.The father’s time with the children… pursuant to the Orders made on 25 June 2020 (“the June Orders”) shall resume once the father provides four consecutive clear tests in accordance with the regime for urinalysis testing set out in the June Orders.
3.In the event that the father fails to undertake a test for urinalysis in accordance with the June Orders or a urinalysis test undertaken by the father provides a positive result for [an illicit drug], then the father’s time with the children shall further be suspended until such time as he is able to provide four consecutive clear test results.
4.The father shall continue to undertake the regime of hair drug testing in accordance with the June Orders and in the event that a drug test is missed, then the father’s time with the children shall be suspended until such time as he is able to take such test and provide a negative result.
5.In the event that a hair drug test taken by the father returns a positive result, leave is granted to the parties to approach the Chambers of the Senior Registrar to seek a re-listing of the matter on 48 hours’ notice.
The father’s compliance with the drug testing regime
It is not controversial that the father complied with Order 8 made on 25 June 2020, and provided 10 consecutive negative urinalysis tests after that date. Although it is not clear on the evidence, it seems that four of those tests were also undertaken pursuant to Order 2 made on 16 November 2020. As a result of that compliance the father’s time with the children recommenced on 29 November 2020. At that time, Order 6.1 made on 25 June 2020 was in force.
It is further uncontroversial that the father produced two consecutive negative hair follicle tests on 4 February 2021, and on 6 May 2021, which each returned negative results. Thereafter, Order 6.2 made on 25 June 2020 came into force requiring the father to undergo undertake a weekly urinalysis test on a Monday, and a further test at the request of the mother’s solicitor on no more than one occasion each month. He was also required to complete the two remaining hair follicle tests of the four required by way of Order 7.8 made on 26 June 2020.
The father last spent time with the children on 8 August 2021. His time was thereafter suspended in circumstances where:
(a)On 30 July 2021 the father underwent a hair follicle drug test which returned a positive result for illicit drugs;
(b)In mid-2021 the father was incarcerated. He was released shortly after. This was not disclosed to the mother until two weeks later;
(c)The father failed to undertake a urinalysis test on 2 August 2021 and on 9 August 2021.
Orders 3 and 4 made on 16 November 2020 required that before the father’s time with the children recommenced, he was required to produce four consecutive negative urinalysis tests “in accordance with the regime for urinalysis testing set out in the June Orders”. The mother says he has not done so. The father implicitly contends he has. His affidavit records a contention that:
59. Following the suspension of my time with the children in August 2021, I undertook urinalysis drug testing from 7 September 2021 to 2 December 2021 and was able to produce more than four (4) consecutive clear tests. On 11 October 2021, my solicitor caused a letter to be sent to [the mother’s] solicitors requesting for my time to be resumed based on me producing four (4) consecutive clear tests in accordance with Order 3 of the November 2020. Despite this, [the mother] did not agree for my time with the children to resume. I am able to produce these test results to the Court if necessary.
I accept the submission made by the mother that the inference of this paragraph of the father’s affidavit is that he was not using illicit substances during the identified period between 7 September 2021 to 2 December 2021. That inference does not accord comfortably with the police material contained in Exhibit 7 or the drug possession charges he received and to which pled guilty (see also [54 and 55] of these reasons).
In any event, the father’s time with the children has remained suspended since August 2021, in the following context:
(a)On 23 August 2021, the father undertook a voluntary hair follicle drug test which tested positive to illicit drugs;
(b)The father failed to undertake a hair follicle drug test on 30 October 2021, which the mother contended he was required to do so;
(c)The father had been charged with and engaged in further criminal proceedings; and
(d)Between 3 December 2021 and 23 January 2023, the father did not undertake a single hair follicle or urinalysis drug tests. During this period the father did not agitate to recommence time with the children and did not file a single document in these proceedings (save for costs notices).
The father’s further criminal proceedings
The mother’s tender bundle (Exhibit 7) comprised of a number of documents produced under subpoena to the NSW Police Force on subpoena, including a Criminal History – Bail Report which detailed a number of offences for which the father has been charged since 2019.
In late 2019 the father was arrested in relation to an alleged incident of family violence involving his then-girlfriend. The police report of the incident included in Exhibit 7 records the father as the victim of the report. It records that illicit drugs and drug paraphernalia were found in and seized from the father’s home. Although findings are not made in relation this incident at this interim stage of the proceedings, including as to whether the seized drugs belonged to the father, it is to be observed that the incident occurred less than two months after the father had assured Dr B in his interview for the first family report that he “had never used [a specific illicit substance]” (paragraph 150 of the first family report).
In late 2019, the father was stopped by police while driving and required to undertake a road side drug test (and later a secondary drug test), which returned a positive result for two illicit drugs. He was arrested and charged.
In early 2020, the father was again arrested and charged.
It was the mother’s evidence that none of the above incidents were disclosed. He evidence is that they only came to her attention upon the production of documents by NSW Police pursuant to a subpoena in August 2020. The father did not give evidence in relation to the above events or their circumstances in his affidavit filed 22 March 2023.
The father was arrested in mid-2021 in relation to an alleged incident of family violence involving his then-girlfriend. He was charged on that date with five criminal offences.
Also in mid-2021, an ADVO was issued against the father for the protection of his then-girlfriend. As recorded above, the father was incarcerated arising from these charges.
The father delayed in disclosing the fact of the charges and his incarceration to the mother and the ICL until 13 August 2021, after he had spent a period of supervised time with the children on 8 August 2021.
The NSW Police Fact Sheet obtained by the mother under subpoena and annexed to her affidavit records allegations that in the course of an argument in mid-2021, the father choked his then-girlfriend “until she fell unconscious”, before dragging her by her hair, punching her in her face, and threatening her with a knife.
The father denies the allegations underscoring the charges made in mid-2021. He had an opportunity to give the event context to what may be very serious allegations levelled against him in his affidavit filed 22 April 2023. He did not. His affidavit as to these events is restricted to the following:
75. I pled not guilty to the charges laid against me as set out in paragraph 71 and as such the matter was listed for Hearing on 1 November 2021.
76. At the Hearing on 1 November 2021, sequences 1 to 4 and the Apprehended Domestic Violence Order were all dismissed. Sequence 5 […] is listed for Hearing in the Local Court [in late] 2023.
(As per the original)
What the father neglected to disclose in his affidavit was that when the matter was listed for hearing in the Local Court in late 2021, the father’s former girlfriend did not appear to give evidence. The mother at paragraph 151 of her affidavit said that the charges were withdrawn and dismissed. The documents in Exhibit 7 record that the charges were withdrawn (as opposed to dismissed). Subject to the evidence at trial, it may not be the case that the father was found not guilty of the alleged offences after a defended hearing wherein the evidence was tested. The father’s construction of his affidavit is concerning and will be a matter for trial.
In late 2021 the father was arrested and charged with four further charges.
He said that he pled guilty to each of those four offences when the proceedings were listed for hearing in mid-2022, and that he received a fine. The mother said that the father did not disclose the above charges, and that she only became aware of them upon reading documents produced under a subpoena issued to the NSW Police in early 2022. The father also did not disclose the fact of these charges to Dr B when he was interviewed on 8 December 2021, in preparation for the updating report. His omission of this important circumstance to Dr B is also concerning. Subject to testing at trial, it may be that the father’s possible misrepresentation by omission will affect the integrity and reliability of other evidence lead on his behalf. This will no doubt be an issue explored for the purpose of the further report to be obtained from Dr B prior to the trial.
In early 2022, the father was again arrested and charged with five offences, as recorded at paragraph 79 of his affidavit filed 22 March 2023.
The father pled guilty to each of the charges, and one charge was withdrawn when the matter was heard in late 2022. It is unclear as to the quantity of the illegal substance alleged to have been in the possession of the father to ground the withdrawn supply charge. Again, this matter may be the subject exploration at trial. The father on that date was sentenced to a Conditional Release Order for a period and was fined.
Further to the matters raised at [40] and [41] above, the mother in her affidavit identified that:
124. While [the father] returned negative urinalysis drug tests during the period November 2020 to August 2021, in that same period he returned three separate hair follicle tests results which were positive for [illicit drugs]. As a result, I am concerned that [the father] is intentionally undertaking his urinalysis testing on days other than a Monday, to ensure that any drugs which he has used are out of his system and not detected by the time he takes his test. I have no confidence that [the father] will adhere to any drug testing regime in future, or that his adherence to any such drug testing regime would provide reliable drug test results.
The mother’s concern may find some support in the father’s own evidence. The father in his affidavit annexed a schedule of urinalysis test results indicating that he underwent a test weekly for the period 18 May 2021 until 30 July 2021, then twice weekly for the period 4 August 2021 to 2 December 2021. He conveys by way of the schedule an inference that the results referred to in his schedule were negative, although the results themselves were not in evidence. It may be that those negative test results were inconsistent with the matters identified at [42](a) and (b) (relating to the period around August and October 2021) and [54]–[55] (relating to the period around 10 November 2021) above. While this will be an issue for determination at trial, it remains at this time another aspect of concerning evidence.
The father’s criminal matters have now been concluded, save for one offence. That offence is listed to be heard in mid-2023.
THE LAW & DISCUSSION
In determining what orders should be made regulating the children’s parenting between now and the trial, the best interests of the children are the paramount concern (s 60CA of the Act).
What is in the best interests of the children is determined by reference to both the primary and additional considerations set out in s 60CC of the Act. That involves a balancing exercise of ensuring the children have the benefit of a meaningful relationship with both of their parents, while protecting them from harm of being subjected or exposed to abuse, neglect or family violence (s 60CC(2)). The later consideration attracts greater weight (s 60CC(2A)). It also requires a consideration of the factors set out at s 60CC(3), which include matters such as the children’s views and the likely effect of any change in circumstance on the children.
Importantly, this is an interim hearing procedure in which there is little or no testing of evidence. In that context, the Full Court in Goode and Goode (2006) FLC 93-286 cautioned that the Court should be circumspect in making findings on contentious facts. That is not to say evidence that is contested must simply be ignored. Credible evidence should instead attract appropriate weight.
Where contentious evidence involves questions as to risk, the Court should adopt a cautious approach to the making of orders, so as to appropriately address alleged risks. In making further interim orders as sought by all parties, regard is to be had to their likely duration and as to some disadvantages that may need to be endured by the children during their period (see Deiter & Deiter [2011] FamCAFC 82). As was implicitly agreed between the mother, father and the ICL in the conduct of the hearing, the presumption as of equal shared parental responsibility has no application in this matter, having regard to the father’s criminal conviction for a family violence offence involving the mother (s 61DA of the Act).
Consideration
The frequency of father’s time with the children pending the trial
The father submits that should the children not spend regular time with him prior to the trial in February 2024, there is a risk that they will lose the meaningful relationship they share with him as opined by Dr B in each of the first and updating family reports. I accept for the purpose of this interim determination that those reports and the volume of supervision reports exhibited by the father to his affidavit record that the father’s relationship with the children at the time the reports were made was both valuable and positive. The mother did not contest that the children’s relationship with the father was, as at December 2021, significant. Dr B recorded that:
36.…[the mother] acknowledged the children loved their dad and were overjoyed to see him. The supervision reports had always been extremely positive. He had also been reliable in attendance.
That said, the observations grounding the opinion of Dr B are now somewhat antique, in that some significant water has flowed under the bridge since December 2021 as recorded in these reasons. There is not objective evidence of the current terms of the relationship between the father and the children.
The father further submits that this risk is compounded should he not exercise time with the children on the conditions he seeks that a developing narrative and fear held by the children surrounding the father shall continue and be reinforced, such that he will become excluded from their life. He submitted that Dr B’s observation in the updating family report that “the children no longer used [Mulally] in their surname” was concerning, and that the children’s expressed reticence towards the father did not accord with the warm and comfortable nature of their interactions. He submitted that a reading of the updating family report demonstrated that the children’s excitement to see the father was evidence “albeit that the children seemed anxious to present that the relationship be seen in a different light”. He directed the Court’s attention to Dr B’s opinion in the updating family report, being:
108 Both children no longer used [Mulally] in their surname. They both identified as members of the [Shiel] family. The father was being gradually written out of their life story by their mother and maternal extended family given their view that he was a malignant influence. This was of concern.
At present, I accept on the expert evidence that there is a risk to the children that they will lose the benefit of a relationship with the father that was once meaningful. The current circumstances however are different from those that existed for each of the parents and children in December 2021. That is one reason why the expert evidence is to be updated later this year.
The impact on the mother’s capacity as the uncontested parent with whom the children will live on a final basis, should the father spend time with the children each weekend and during the week (as he seeks) must also be weighed. The mother’s affidavit gives evidence in the following terms:
120. I am horrified by the reports of [the father’s] violent behaviour, which reminds me of the injuries [the father] inflicted on me [in early] 2019 and the pain I experienced following that incident.
121. I fear that [the father] will act violently toward the children if he is under the influence of drugs or otherwise made angry, as he did to me when we were in a relationship and as he was charged with doing towards his then partner…
122. I am also concerned that [the father] has now shown a propensity to challenge authority figures by resisting his arrest by the police […] I am fearful that if [the father] was ever given a direction by someone supervising the children’s time with him, whether a professional supervisor or a family member, he would not follow their directions and would challenge the supervisor, potentially in a violent way, noting that [the father] is […] tall and muscular.
This evidence is consistent with what Dr B observed in the updating family report at paragraphs 31–35, and:
29. [The mother] identified that a lot had happened over the past two years since the initial assessment. She had expected that [the father] to demonstrate that he was a capable and responsible father. Instead, she alleged that he had perpetuated ongoing violence, manipulations, lies and non-compliance. It had been exhausting for her to continue to monitor his behaviour. She understood that [the father] had been jailed, had offences […] and had lied to the supervisors when unable to attend a visit due to his incarceration. She spoke of her distress on viewing the Police footage of his alleged assault of his subsequent partner… She had found this “horrifying” as it brought back her own experience of assault. She had felt petrified and retraumatised by this experience. She tearfully spoke of her uncertainty regarding the pathway forward given his drug use and anger. She questioned his parenting capacity. She had protected the children by suspending contact which precipitated abuse from his lawyers. She had found this extremely exhausting. Her primary motivation had been to keep the children safe as she could never forgive herself if something had happened to them.
…
37 When asked by the report writer for evidence that the children had been placed at risk due to contact with the father, [the mother] responded: “Luckily, there hasn’t been any incidents that the children have been placed at risk.” She then reiterated her extensive concerns regarding behaviour over the past two years; his assault of her […], the stressful Court process including the appeals, his ongoing drug use, the assault of his subsequent partner and her own experience.
…
39 She asserted that she was flexible regarding contact but remained convinced that [the father] could not stay clean and that his mental health was deteriorating. She considered him to be a wonderful actor and manipulator as she had previously fallen for his lies. She understood that he had a wonderful engagement and lovely connection with the children. Nonetheless, she disputed his proposal for increased future contact given that contact had repeatedly been suspended to date.
The accumulation of this evidence cannot be discounted at this interim stage of the litigation and attracts some weight. I further give weight to Dr B’s opinion that the mother’s exposure to the father’s conduct after separation “had been re-traumatising” and “amplified her lack of trust in the father”.
I further give weight to the mother’s evidence (subject to it being tested at trial) that Y was only one-year-old when the parents’ separated and has “never developed a strong bond”, such that she “does not understand who [the father] is and what his role in her life actually is”.
The parenting regime to be implemented is for the next 10 months. Having regard to the father not spending professionally supervised time with the children since 2021, I accept the mother’s case that an immediate reinstatement of time as he seeks may be experienced as confusing and overwhelming by the children. There is currently no expert evidence on that matter. A balanced, conservative approach is required to promote the children’s best interests
In my view, the mother’s proposal is in reality identification time spent. It is too limited to allow for the maintenance or the re-establishment a meaningful relationship between the children and the father.
The ICL expressed additional concern as to the absence of evidence from the parents as to how to safely implement a resumption of time between the father and the children to ensure there is no psychological risk of harm to them, and that neither had presented a plan for how to explain why the father had not spent time with them since 2021. Similarly, I place weight on her submission that “the resumption of time would need to be implemented and managed with extreme [caution]”. That said, neither the ICL nor the parents put forward a proposal as to how that should be done.
I am not satisfied it would be in the children’s best interests to immediately recommence spending time with the father at the frequency he seeks (being for two hours on Wednesday afternoon and four hours on Sunday morning). I give weight to the mother’s concern about the emotional and psychological impact on the children of them spending that frequency of time with the father, given his absence in their life for the last year and nine months. As recorded earlier in these reasons, that was the second period of absence after separation, the first being for one year and four months. From her perspective, the common factor triggering each period of absence was the father’s drug use and its multifaceted consequential impacts of his availability to the children.
The contact reports and family reports, although now outdated, record that the children enjoyed spending time with the father and derived benefit from that time. If the father is able to control his drug misuse and hence mitigate the risk to the children arising from that misuse, then the children should be permitted to continue benefit from time with the father regularly and frequently.
Adopting a conservative balance to all these factors, the father spending four hours with the children each alternate weekend is both conducive of the children enjoying a meaningful relationship with him and recognises that a cautious approach should be adopted in the context of these interim proceedings where there are issues as to risk and as to the impact of change on the children which remain unresolved. This is a reduction in the number of hours the father would spend with X each fortnight from that contained in the June 2020 orders, and a maintenance of the time he would have spent with Y. It is an increase in the amount of time proposed by both the mother once each three months and the ICL on a monthly basis pending trial.
Should the father’s time commence after the completion of his criminal proceedings?
The ICL identified a risk that the father may be incarcerated when his ongoing criminal proceedings reach a conclusion later this year. Implicitly, she contended that it may be in the children’s best interests for their time with the father to commence only if the father is found not guilty of the criminal offence for which he is charged, or is found guilty and receives a non‑custodial sentence. The ICL considered that the father’s time with the children should not commence until his criminal proceedings are finalised, in circumstances where she submitted the maximum sentence for the offence for which he is charged is a number of years’ incarceration. She said it would not be in the best interests of the children to commence spending time with their father after such a long period of absence, only for that time to be suspended if he is convicted and given a custodial sentence.
While I accept the father’s criminal convictions have compounded over the course of these proceedings, the ICL’s contention that the father may be incarcerated as a result of his current charge was speculative and not supported by evidence. The father has pled not guilty to the charge. In the circumstances, I am satisfied that the risk posed by the father’s possible incarceration cannot be established to the requisite degree on the available evidence. I will therefore not make this order sought by the ICL.
Should the father’s time be conditional on his compliance with a drug testing regime and his abstinence from illicit drugs?
It was the father’s submission, consistent with what was identified by the Full Court in Blinko & Blinko [2015] FamCAFC 146 at [27], that the objective of any protective conditions of time spent orders is to convert an unacceptable risk to one that is acceptable and is of benefit to the children. He contended that professional supervision, in and of itself, was a practical safeguard sufficient to mitigate risk and that a drug testing regime coupled with self-executing orders suspending supervised time should there be a failure to comply with that regime was not in reality a practical safeguard for the terms of time spent pending the trial. To buttress this contention, the father submitted that the 77 supervised contact reports recorded no evidence of risk during time spent, including of the father being intoxicated or behaving aggressively.
The father did not seek that the original drug testing regime by way of the June 2020 orders be discharged. At least implicitly, his case is that a drug testing regime by way of urinalysis and hair follicle testing promotes, on an interim basis, the best interest of the children. He says that time spent ought not to be conditional on testing being undertaken or on the results of the tests. He did not directly engage in his case as to the purpose and benefit of the continued testing regime.
The mother and ICL each submitted that the father’s time being conditional on his abstinence from drug use is in the children’s best interests.
The mother’s affidavit echoes a complete absence in confidence in both the father’s ability to abstain from using drugs, and in the capacity for supervision to mitigate a risk posed to the children in the event the father was to continue to use drugs in circumstances where she contends he “has now shown a propensity to challenge authority figures”. The tenor of the mother’s submission was that to view the father’s drug use as a stand-alone issue failed to recognise the close nexus that use had with issues of violence and with his absences in his capacity for two extended periods to date since separation to spend time with and parent the children.
Neither the mother nor the father sought to challenge the opinions of Dr B as contained in the first and updating family reports at this interim stage of the proceedings. They each submitted that, and I accept, that for the purpose of this interim determination, those as yet untested expert opinions should attract weight.
It is important to observe that Dr B’s reports took place and his recommendations were made in a context where:
(a)As to the first report, the father had not yet been convicted of an assault on the mother arising from the early 2019 incident; and
(b)The children had been spending time, albeit irregular, with the father in proximity to that report, whereas they have now not spent time with him for one year and nine months; and
(c)Immediately prior to each report, the father had undertaken some regime of drug testing – although his compliance with the specific terms of that regime was contested; and
(d)The father’s criminal history and his convictions was less significant than they are now; and
Save to say that he pled guilty to possession charges as outlined above, the father’s affidavit is completely silent as to his historical or current drug use. In his affidavit he had the opportunity to give clear and unequivocal evidence as to his drug use since separation, particularly in circumstances where it appears he may have (subject to the evidence at trial) misled Dr B as to his drug use at the time of his interviews for the updating family report (see [55] above).
The father made no explicit concession as to the need for supervision of his time with the children being a function of his drug misuse (whether historical or current). The father did not explicitly say that he is currently abstaining from illicit drugs. By annexing his schedule of urinalysis tests taken since January 2023 to his affidavit, the father implicitly contends that his drug use is not continuing. This stands in contrast with the inference available on his strident submissions that his time with the children should not be conditional on his compliance with a drug testing regime being that he will be unable to comply with such regime.
The father submitted that the suggestion touched upon by Dr B that the mother sought to impose “barriers” to the father’s time with the children was reflected in the “nature of the orders that the mother seeks as to testing”. The consideration of such “barriers” was at paragraph 140 of the first family report, wherein Dr B expressed his support for the father’s then proposal for ongoing time with the children and rejected the mother’s then-proposal as to a reduction in time. This submission cannot be supported having regard to the context in which Dr B made those comments:
140. The mother’s proposal for primary residence and supervised contact contingent upon confirmation of the father’s abstinence from [an illicit drug] is appropriate should her allegations be held to be factual by the Courts. Her proposal that supervised contact be recommenced is similarly supported. The proposed reduction in frequency and change of supervisory services would not be beneficial for the children. Her proposal that she screen all proposed individual supervisors would create additional barriers to the establishment and maintenance of regular contact with the father. [Her] concerns that the children would be placed at risk under the paternal grandparents supervision was viewed as unfounded. Once the father’s abstinence from [illicit drugs] is established and maintained, progression to unsupervised contact would be in the children’s best interests.
Self-evidently, Dr B’s recommendations made more than three years ago in 2019 were contingent on findings as to the veracity of the mother’s allegations against the father. While many of those allegations remain to be tested at the trial, a differing volume of objectively grounded documentary evidence as to the father’s criminal charges and convictions over the course of these proceedings is now part of the evidence. It provides an objective foundation, subject to further enquiry at trial, to support her contentions of unacceptable risk grounded from the father’s now long standing drug use, his propensity for violence when under the influence of illicit drugs and how his life choices in turn impact on his availability to be present in the children’s lives.
There is no evidence that the father has engaged with any professional supports to address his drug misuse since his release from the rehabilitation facility in 2016. The evidence does not disclose the father having been reflective on or having taken responsibility for his drug misuse.
There was an implication in the father’s submissions and in the manner in which his evidence was presented that the mother has unreasonably restricted his time with the children. For example, at paragraph 49 of his affidavit filed on 22 March 2023, the father deposes that the mother “has not promoted the children to have a relationship with [him] and has progressively excluded [him] from the children’s lives”. During submissions he drew the Court’s attention to paragraph 108 of the updating family report where Dr B opined that “the father was being gradually written out of their life story by their mother and maternal extended family”.
The issue as to the mother’s capacity to support the children’s relationship with the children is one that should be evaluated with the benefit of testing of the evidence at trial. That said, the father’s submissions failed to engage with the broader context in which his time with the children occurred or failed to occur. For example, the father’s affidavit did not explain why his time with the children did not occur between July 2019 and 29 November 2020. The mother said that such suspension of time occurred on the father’s agreement, and because he failed to comply with the drug testing regime then in place. Similarly, the father in his affidavit deposed that on “on 11 August 2021, [the mother] suspended [his] time with the children on the basis that [he] failed to undertake a urinalysis test”. He did not say that his time was suspended in the context of him testing positive to illicit drugs or of him being charged with serious family violence offences and being incarcerated. The father further did not engage with the period between December 2021 and the filing of this Application in a Proceeding on 22 March 2023 when he largely disengaged with the proceedings.
Whether the mother’s conduct during those identified periods amounted to an exclusion of the father from the children’s life will be a matter for determination at trial, as will the father’s capacity to take responsibility for his conduct and its consequences in the same identified periods.
In a not dissimilar vein, there is no evidence that the father has in any way engaged with the impact of his assault upon the mother and the children in early 2019. As part of his sentence received in relation to this incident, the father was required to “attend upon programs for anger management and domestic violence intervention as directed by Community Corrections”. There is no evidence before me that he has done so.
It is unclear whether the father continues to deny the mother’s allegations that he had been physically violent towards her. In his interview with Dr B for the purpose of the first family report, he “emphasised that [the mother] had broken her hand hitting him”, and denied that she had so acted in self-defence. At that point, the father had not yet been found guilty of the offence. The updating family report shed little light on the father’s perception of the incident, save that when asked about the mother’s lack of trust in him, the father commented that:
14.“I understand the reasons [the mother] has given.” He understood that she had been stressed by the proceedings related to the assault charges. He had been found guilty. [The father] commented that this must have been “a terrible set of circumstances for her.”
The father’s acknowledgement that the criminal proceedings must have been a “terrible set of circumstances” for the mother sits uncomfortably with him continuing to agitate an appeal of his conviction in the Court system for some two and a half years after the incident occurred.
On a consideration of all of the matters identified in these reasons, the father’s contention as to professional supervision of itself being sufficient to convert an unacceptable risk to a risk that is acceptable for the benefit of the children is a narrow perspective that fails to give sufficient consideration to the broader parenting landscape in this matter. Subject to findings at trial, the father’s life elections have resulted in extended periods of absence from the children’s lives, in he being incarcerated, and have impacted the mother’s current and future confidence in him being a benefit to the children going forward.
Hence, the risk to the children asserted to be posed by the father’s drug use is not of a physical nature alone. The risk is additionally of a psychological and emotional nature that is integrated with his drug use and his absences in capacity for behavioural control leading to incidents of violence. I place weight on the ICL’s submissions that if history is indicative of the future, the father’s life elections may cause him again to be absent from the children’s lives, whether that be by reason of possible future involvement with the police or as a product of being in an environment influenced by drugs. This submission is supported by the recommendations of the Dr B at paragraph 111 of the updating family report that the father “should comply with monitoring of his substance use”.
For those reasons, in the children’s best interests that the father’s time with the children be subject to him complying with a drug testing regime and returning negative test results as was the circumstance crafted by the June 2020 and November 2020 orders.
Terms of the drug testing regime
By way of the June 2020 orders, the father was initially to undertake two urinalysis drug tests per week (on a Tuesday and Thursday), for a period of at least three months. Thereafter, he was to undertake a weekly urinalysis drug test on a Monday and one additional test per month at the request of the mother, for a period of at least six months. He was also required to undertake four hair follicle tests in total (as recorded at [33] above).
At the hearing before me, the father sought (although his relief was amended orally), that a similar regime to that created under the June 2020 orders continue. He said that it would be appropriate that he undergo further hair follicle testing pending the trial although did not make submissions as to the frequency of that testing. The mother and ICL both sought that the father undergo urinalysis tests weekly until the final hearing, and one additional test per month at the request of the mother, together with hair follicle testing every three months.
The father makes complaint in his affidavit that the mother has misinterpreted the June 2020 orders as to the drug testing regime. His affidavit (at paragraph 63) also seems to reflect a misunderstanding of the June 2020 orders. Implicitly, the father contends that his time with the children has not resumed in 2023 notwithstanding that he has undertaken 13 urinalysis drug tests which each returned a negative result since 24 January 2023, in part because of this “misinterpretation” of the June 2020 orders.
The drug testing regime going forward must be clear and unequivocal, so that the parties are able to comply with its terms. For that reason, and observing that the parties’ proposals as to drug testing are not significantly different from one another, I shall make prescriptive orders so as to reduce any potential for difficulties in their interpretation such that:
(a)The father undergo weekly urinalysis tests on Mondays, starting within 72 hours after the delivery of these reasons (to allow for the ANZAC day holiday); and
(b)The father undergo one hair follicle test within seven days of these orders, and thereafter three further hair follicle tests in roughly three month intervals (I will prescribe a date range in which these tests are to be taken, for clarity), with the final hair follicle test to be taken so that its results are available for the trial; and
(c)Each time the father undertakes a drug test, he will be required to give the mother’s solicitor and the ICL written notice by e mail that he has done so; and
(d)The father’s time with the children shall not commence until he has provided one negative hair follicle test and four consecutive negative urinalysis test. This order envisages that if he complies with the regime, the father will be able to commence spending time with the children with about one month of the orders.
(e)The father’s time will be suspended if he returns either a positive urinalysis test, or a positive hair follicle test, if he does not undergo a test as he is required to, if he does not communicate to the mother and the ICL that he has undertaken the required test, or if he does not provide to the mother and the ICL a test result once it is received. His time will also be suspended if he is incarcerated upon the finalisation of his current criminal proceedings until he files an affidavit disclosing his convictions and the terms of his release. If such an affidavit is filed, either party can make such application as they are advised to vary the orders to be made herein.
(f)If the father’s time is suspended because of an issue with compliance with the drug testing regime or he returns a positive drug test result, then it will recommence when he provides the mother and the ICL with four negative urinalysis tests and one negative hair follicle test.
The additional benefit that may be gained from the proposed one additional urinalysis test per month at the request of the mother is not substantial, given that the father will undertake regular urinalysis and hair follicle testing. It is likely to give rise to further conflict in its communication, interpretation and implementation. Balancing those considerations, I will not make such an order.
It is appropriate that the urinalysis testing occur on a Monday, given the mother’s complaints recorded at [58] above. The father did not make a submission as to why the testing should take place on any other day.
The proposed regime is onerous and may be awkward. It will be in force for a comparatively short period of ten months. It is for the benefit of the children going forward that the regime is both clear, prescriptive and strict, having regard to what seems to be a history of non-compliance with testing regimes and so that what is required is unambiguous.
If there is a legitimate logistical reason why the father is unable to undertake a test, he has the capacity to make such application as he is advised with short notice to resume his time spent with the children. This procedural safeguard can operate for the benefit of each of the parties and the children.
On what terms and at what frequency should the father be permitted to communicate electronically with the children?
The parents and the ICL made brief submissions as to the terms upon which the father should be able to communicate electronically with the children. The ICL did not propose orders for such communication. The father said that it should occur twice per week, and the mother said it should occur monthly save for in the month she proposed the father was already spending time with the children.
In my view, both of those proposals are too extreme. I accept it would be a significant change for the children having not spent time with the father for approaching two years to immediately commence communicating with him twice weekly. That said, each parent gave evidence that the children having enjoyed previous phone communication with the father in a way that would appear to facilitate their meaningful relationship with him.
The mother gave evidence in her affidavit that she has facilitated telephone calls between the father and the children in February and March 2023. She did not say those calls were not in the interests of the children. In circumstances where the father might commence spending face-to-face time with the children in just over one month, it is appropriate for regular weekly audio telephone calls to commence as soon as is practicable.
The calls can occur each Wednesday, so that the father can engage with the children during the school week.
The mother said she has concerns as to privacy being the reason she sought that the father’s communication with the children not be by way of video call. The mother expressed that she experiences the father being visually present in her home as invasive. Having regard to the asserted history of family violence between the parents, I accept for the purpose of this determination that the mother’s perceived apprehension as to the father exhibiting control in this space is legitimate, when coupled with her evidence as to him repeatedly contacting her directly despite her expressed wishes.
Given the ages of the children and the length of time the father has been absent from their lives, I accept that it may be difficult for the father to keep them engaged over the telephone whereas that may be easier by way of a visual medium. It is also important that they are able to physically see the father, given the extended period in which they have not spent time with him, so that they can build a familiarity with him. An order will be made for video-calls to commence after the father has produced one clear hair follicle test and two clear urinalysis tests (being before face-to-face time commences).
So as to address the mother’s concerns as to privacy and family violence, orders will be made so that electronic communication can occur at a time when the children do not of necessity need to be at home (i.e. around bedtime or dinner) and the visual communication does not necessarily need to take place in the mother’s home. The mother will be required to provide the father with a telephone number or web-account details, which need not be her own, for the purpose of the audio and visual electronic communication. The father’s electronic communication with the children is to occur using that nominated number, account or web particulars and address only.
International travel
As recorded the parents each agree that the mother should be permitted to travel with the children to attend a wedding in Country F later this year. The mother seeks that she be permitted generally to travel internationally with the children. The father said such relief should not be granted in circumstances where there is an absence of evidence as to any additional proposed travel on behalf of the mother, and where in default of any order to the contrary, the parents each continue to exercise parental responsibility for the children.
The mother accepted that she had no specific proposal to travel with the children. That said, she contended that there was no evidence to cause concern that she would not return to Australia in a timely manner, and that in circumstances where she is the uncontested resident parent for the children, she should be permitted to travel with the children as she sees fit. She proposed to give the father notice of her intention to travel, and with a copy of any confirmed return flight tickets to Australia for the children.
The father consented to the mother travelling with the children to Country F later this year. There is no reason to suggest that he would not consent to further reasonable travel if it is proposed by the mother with adequate notice.
The father did not identify why he would need a copy of a travel itinerary for the children or details of their accommodation overseas and locations they are to visit. I give weight to the mother’s perceived apprehension of such level of detail being another process whereby the father is exhibiting control. A requirement for the mother to provide this level of detail does not appear to be necessary to progress the best interests of the children. No order shall be made mandating the provision of these particulars.
In addition to the wedding in Country F, the orders will provide a capacity for the mother and father to agree to further international travel with the children pending the trial. It is hoped that should such an opportunity arise, they will each be capable of acting in a child-focussed way to come to an arrangement that promotes the children’s best interests. They will have recourse to the Court if they are not able to do so.
CONCLUSION
The parents and the children are scheduled to attend upon Dr B on 19 September 2023 for the purpose of him preparing a further supplementary report prior to the trial. It will be a matter for the parents and the ICL as to whether they provide a copy of these reasons to Dr B before such attendance. If there is any dispute on this issue, they may each seek to make such application to the Court as they are advised.
For all of the above reasons, I make the orders set out at the forefront of this judgment.
I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 24 April 2023
0
2
0