Nete and McElloe

[2008] FamCA 300

FAMILY COURT OF AUSTRALIA

NETE & MCELLOE [2008] FamCA 300

FAMILY LAW – ORDERS—Variation—where parties previously entered into consent orders whereby the Father submits to drug testing of urine—where Mother now makes unilateral application that the Father instead submit to hair follicle testing—where insufficient evidence as to abuse of urine testing procedures—where no evidence as to superiority of hair follicle testing—application dismissed.
APPLICANT:	Ms Nete

RESPONDENT: Mr McElloe

FILE NUMBER: BRC 3714 of 2007

DATE DELIVERED: 18 January 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 14 January 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Linklater-Steele

SOLICITORS FOR THE APPLICANT: Holding Redlich Lawyers

COUNSEL FOR THE RESPONDENT: Mr McGregor

SOLICITORS FOR THE RESPONDENT: Jones McCarthy Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Ms Stark, Solicitor, Legal Aid

Orders

IT IS ORDERED THAT:

1. The Mother’s Application in Form 2 filed 10 January 2008 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Nete & McElloe is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC3714 of 2007

MS NETE

Applicant

And

MR MCELLOE

Respondent

REASONS FOR JUDGMENT

1. The litigants in this matter are the natural parents of a female child.  The child turned five not long before her parents were litigating this matter before me on Monday this week.

2. On 23 of November 2006 Jarrett FM in the Federal Magistrates Court at Brisbane made orders, the effect of which was that the father spend time with his daughter from 9.00 am Friday until 5.00 pm Sunday of each alternate weekend and from 2.00 pm on Wednesday until 9.00 am Thursday of every week.  As I understand the position, the father then was seeing his daughter four nights out of every 14.

3. The parties entered into consent orders on 5 September last year, a little over four months ago.  The minutes of agreement were that the father and the mother were to communicate with each other in relation to the child via e-mail, by telephone in the case of emergency.  That they refrain from communicating with each other unless the issue is related specifically to the child or property settlement issues.  They were each to attend a post-separation parenting course and provide a copy of proof of completion to the Independent Children’s Lawyer.

4. There were further provisions for the mother and father to refrain from using illicit substances and/or drinking alcohol to excess whilst the child is in their care and the mother and father were to undertake random urine and serum pathology tests within 48 hours of a request by the Independent Children’s Lawyer and provide copies of the results to the Independent Children’s lawyer within seven days.

5. The parties commenced cohabitation in December 2001.  They married in June 2003.  Separation was in May of 2006.  There was a brief period of about three weeks of reconciliation in October last year to which I shall make reference shortly.

6. The father filed a contravention application seeking that the applicant be dealt with for failing to comply with existing orders relating to the father spending time with his daughter.  Counsel for the father indicated at the commencement of the hearing that he did not intend to proceed with that application.

7. On 10 January this year the applicant mother filed an application in form 2 seeking orders that until further order the father spend time with his daughter on a supervised basis with the supervisor to be agreed between the husband and wife, at times to be agreed between the husband and wife and on such further or other terms as the husband and wife may agree and that each of the parties provide copies of any drug test results to the wife’s solicitors at the same time as such results are provided to the Independent Children’s Lawyer.

8. At the commencement of the hearing counsel for the wife indicated his client additionally sought an order that the husband submit to a hair follicle drug testing procedure.  I was informed his instructing solicitors had spoken to someone at the Victorian Institute of Forensic Medicine.

   RECORDED  :  NOT TRANSCRIBED

   Whether it was the cleaning lady who was spoken to, a receptionist or a pathologist was not made clear, at least on my recollection.  There was no evidence produced in any form on the matters raised.  I accept that no objection was taken by counsel for the husband to the making of this oral application or the placing of information before the Court from the Bar Table.  I was informed that the hair follicle test for drugs costs $495 and that the results would be available two to four weeks from the receipt of the sample. 

9. The Victorian Institute of Forensic Sciences dispatches a kit to the subject of the test who presumably takes it to a doctor who removes a hair follicle and returns it to the Institute properly sealed and labelled.  I was informed by counsel for the wife that the advantage of this test is that it can detect cocaine, and other drugs presumably, taken by the subject up to three months previously.

10. I was informed from the Bar Table in response to a question from myself that urine analysis, to which the parties consented in the orders a little over four months ago, will only detect the presence of cocaine taken in the previous seven days.  I note that at GDM3 (annexure 3 to the husband’s affidavit filed 26 November 2006) is a letter from the wife’s solicitors to the husband’s solicitors of 30 October.  The time at which a drug such as cocaine can be detected by urine analysis in that letter is said to be as little as one to three days.  I note also that in correspondence from the wife’s solicitors that in relation to the hair follicle testing it is said that the hair follicle testing can detect the presence of cocaine ranging for a period from seven days to 30 days.  It is, to my mind, a text book example of why Courts should rely on sworn evidence, particularly sworn evidence from experts, not statements made in correspondence by solicitors or statements made from the Bar Table.

11. I note that the Independent Children’s Lawyer has requested the husband via his solicitor to undergo urine analysis.  The dates of the request of the samples taken were as follows; this is for the husband only.  Sample requested 27 September, provided 1 October; 31 October requested, provided 2 November; 16 November requested, 16 November provided; 19 December 2007, 20 December 2007.  I note that that was an amended version of a table which had been handed up by the husband’s legal representatives in relation to a schedule which was subsequently amended by correspondence to my Chambers.

12. For the samples taken on 1 October and 2 November the pathology report indicates

    “low creatinine indicates diluted urine which may be due to clinical polyuria or dilution of the specimen.  False negative results may occur.”

    I note that the standard range for the urine creatinine is 4 to 24 and in the subject it was 2.7 micro millilitres per litre and in the subsequent test it was down to 1.9, well outside the range.

13. There was no attempt made to lead evidence as to the circumstances in which the tests were conducted or the circumstances whereby the sample may become diluted.  I note from Black’s Medical Dictionary 38^th Edition at page 411 polyuria is defined, means:

    “The passage of an amount of urine considerably in excess of the 1500 millilitres or thereabouts, which is the usual daily quantity.  It is a symptom of diabetes mellitus, diabetes insipidus, chronic renal failure and psychogenic polydipsia.”

14. I have had regard to the submissions made in relation to this issue.  I propose to dismiss the application for the husband to submit to hair follicle testing.  I note that the wife had agreed to pay for same. 

15. I note that the inconvenience to the husband in submitting to the test is marginal.  There was some inconvenience in having to attend for the test.  I would expect some very low level of discomfort in having a hair follicle removed.  However, balanced against this I take account of the following:

    (a)There is no evidence before the Court to verify claims made about the superiority of this form of testing.

    (b)All samples have been provided within a reasonable time by the husband.  The only criticism that could be made is that apparently two of the samples were diluted.  Even if I assume that those samples were diluted by deliberate and malicious conduct on the part of the husband there is nothing that can be done about that now.  The Court would be scathing if further samples were found to be diluted and an inquiry could be conducted at that time.  There is no evidence as to circumstances in which the tests were conducted to explain the dilution.  If, as claimed, a urine sample can detect the presence of cocaine taken in the previous seven days that would appear to be more than adequate.  Indeed, even from the letter from the solicitors the periods one to three days I note that the order provides for attendance within 48 hours and that is exactly what the husband has been doing.

16. The evidence of the husband’s consumption of drugs is to be found in a statutory declaration by Ms W of 6 January 2008.  She says in that statutory declaration that she had a conversation with the husband on 25 October 2007.  He stated during the conversation at that time:

    “I got rid of my mobile phone because I was taking drugs and by this time of day I would be calling people to try to get whatever I could get my hands on.”

    She said to him:

    “What coke?”

    He said:

    “Yeah, that, pills, speed, whatever I could get.”

    He further said he knew this had changed him as a person and made him behave the way he had in the last few months of their marriage.

17. The evidence from Ms W is untested at the present time, but in any event relates to admissions of taking drugs in the past around the time of the break-up of the relationship back in May 2006 presumably.

18. The wife herself makes no claims of having witnessed the husband take cocaine during periods of the relationship or, indeed, during the period of resumption of cohabitation for about three weeks in October 2007.  She says in paragraph 47 of her affidavit filed on 10 January 2008 that during the period of reconciliation the husband admitted to her that he had been using drugs.  There is no elaboration of what drugs he was using and when they were taken - details one might expect to be forthcoming in such an important allegation.

19. The wife refers to letters from her solicitors of 15 November 2007, which is GDF10 to the husband’s affidavit of 26 November 2007.  If the wife’s evidence is accepted it is evidence the husband may well have been using illicit drugs.  His behaviour has been such that it is consistent with somebody who has been using drugs.

20. The most important aspect I find on this separate issue is the fact that the parties with experienced legal representatives, entered into consent orders four months ago.  I am not satisfied any basis is made out for a unilateral application to change such orders.  I am of the view in the absence of evidence to the contrary the present testing procedures are adequate.  So on that basis I propose to dismiss the oral application made.

21. I turn to consider whether the husband’s times with his daughter should be supervised.  The material produced by the Independent Children’s Lawyer consists of three reports by Ms L, a social worker, one report of Dr D, a psychiatrist, and a report of Mr P, psychologist.  The wife disputes the opinions and conclusions expressed in Mr P’s report.  It is the most recent of all the reports having been recently released. 

22. The wife relies on a report of her counsellor, a Ms T, of 12  January 2008 annexed to an affidavit by Ms T sworn on the same day.  I shall have more to say about Ms T’s evidence in due course. 

23. At this stage I turn to consider Mr P’s report.  He is of the opinion that the wife’s personality revealed by psychological testing which was carried out by him is as set out in that document.  Suffice it to say paragraphs 20 to 27 of his assessment is far from flattering.

24. At paragraphs 28 to 30- - -

    RECORDED  :  NOT TRANSCRIBED

    - - -he makes these observations:

    “The overall results suggest that [the wife] appears to fit the following Axis 2 classifications best.  Narcissistic personality disorder with histrionic personality traits, paranoid personality features and schizoid personality features.  Axis 1 clinical syndromes is suggested by the client’s MCMI3 profile in the area of generalised anxiety disorder.  These disorders do not necessarily raise a concern for [the wife’s] ability to care and parent a young child.  Greater problems may be experienced in the co-parenting relationship and the results of the MCMI suggest that without psychological assistance, together with clear and unambiguous Court orders, conflict over [the child] and her living arrangements, including how much time she spends with others, may continue in the medium term.”

25. Ms T is a psychologist the wife has been seeing.  She has provided two reports, one on 16 April last year which has been marked as exhibit 2 and the report of 12 January this year, which is annexed to her affidavit, to which I have made reference.  In the first report under the heading “Opinions and Conclusions” she says as follows:

    “(1)It is my opinion based on presentation by [the wife], her reports about her marriage and the subsequent events, that [the husband] is using psychological and financial abuse against [the wife] and that this will continue until their financial affairs are settled.

    (2)It would appear that [the child]is having to negotiate the dynamic operating between her parents and between her father and Ms [Z] and if this was to continue it would not be in [the child’s] best interests.”

    And she goes on to recommend that the child receive assessment and treatment by an independent experienced child psychologist.  I note that she expressed these opinions without ever having seen the husband.

26. In her second report she has this to say, paragraph 3:

    “I have never at any time been concerned with [the wife’s] demonstrated characteristics or traits consistent with any Axis 2 diagnosis (personality disorders).”

27. 4.:

    “Based on 23 clinical interviews, numerous phone interviews and ongoing therapeutic relationship.  I assess that [the wife’s] current struggles and issues were attributable to her history, including two previous abusive relationships and her currently extremely stressful situation, that is separation, financial dispute, concerns over her daughter […], abusive and, at times, dangerous relationship with [the husband].  Therefore, I did not assess her as having an Axis 1 disorder but rather anxiety, depression and stress related to her current situation, that is Axis 4, psychosocial stressors.”

28. I am not making a final determination in this matter.  I have not heard from the respective psychologists, I have not heard from the other experts, I have not heard from the parties themselves in the sense of giving oral evidence and being cross-examined on same. 

29. However, on balance, for present purposes, I prefer the opinions as expressed in the report of Mr P.  My reasons are obvious.  He has seen both parties, Ms T has only seen one.  Mr P is objective in the sense he is not engaged by either party.  He has carried out psychological testing of both parties applying the same tests.  I find Mr P is a far more experienced psychologist.  At the time of her first report the letterhead reveals Ms T was a conditionally registered psychologist.  Her CV reveals she became a registered psychologist in 2005.  Mr P has been a registered psychologist since 1994.  He had four years as a family consultant employed by this Court.  He holds a masters degree from a prestigious Australian university.

30. I note of Ms T’s report that Dr D observes – Dr D is an extremely experienced psychiatrist – at page 12 of his report:

    “Ms [T’s] report has the usual biases inherent in a treating practitioner’s report in that she has only been privy to [the wife’s] side of the story.”

31. I turn to consider Ms L’s third report.  At paragraph 4.12 she says in her interview with the mother:

    “She spoke of being committed to ongoing counselling with psychologist Ms [T] which has assisted her considerably to deal with her poor relationship choices.  She spoke insightfully as to her contribution to failed relationships, in particular that with her former husband who was diagnosed, she said, with narcissistic personality disorder and was a physical abuser.”

32. It is not clear what diagnosis the applicant is referring to but I assume it does not relate to the respondent.  I would have thought the report of Mr P reached the conclusion it was the mother who had a narcissistic personality disorder. 

33. In paragraph 4.14 of Ms L’s report she notes Ms T had concluded that based on her reports the husband was a sociopath and that this concerned the mother greatly.

34. Ms T has not mentioned in her reports, describing the husband as a sociopath.  It may be that she said it verbally to the mother at one time during a counselling session, but I would have thought if she had made such a comment to the wife I would regard it as thoroughly unprofessional.  She has never seen the husband, she is only hearing one side of events.  It would be presumptuous on her part, if she ever did make such a statement, to describe the husband in such terms.

35. In the first report of Ms L of 21 November 2006, paragraph 7.4, Ms L reports in very positive terms of the child’s relationship with her father:

    “When [the child] realised that her father was present she went ahead of the report writer to retrieve him.  She excitably jumped into his lap and cuddled and kissed him when she saw him.”

36. I have considered the report of Dr D of 12 August last year.  I note his observations at page 16 where he says in the final sentence of the first paragraph on that page:

    “The evidence for abuse is scant, with one of the nannies apparently hearing one of [the child’s] allegations several days after the alleged abuse. There is no medical evidence or other collateral evidence of abuse.”

37. In the final paragraph, the final sentences, he says:

    “If [the wife] is unable to support the contact between her daughter and [the husband] then serious consideration would need to be given to a complete change of residence in favour of [the husband].  Both parents need to submit to random urine, drug and serum pathology tests to ensure their abstinence from drugs and excessive quantities of alcohol whilst they are caring for [the child].”

38. Combining the reports of Mr P and Dr D I am not prepared at this point in time to place a great deal of weight on the applicant’s allegations concerning the husband’s behaviour.  I do not find it necessary to canvass the various factors set out in section 60CC.  Orders were made in the Federal Magistrates Court as recently as 23 November 2006, about 15 months ago.  The husband does not seek to have those orders altered.  The wife seeks to have the father’s time with his daughter supervised.  I see no basis on the evidence presented for so ordering.

39. The most serious incident is the assault incident.  I will not make comments or observations on the assault incident as criminal charges are pending.  It is sufficient to note that the child was not present on that occasion.  I also note that the wife herself describes the incident as out of character on the part of the husband.

40. The most objective evidence in this matter is to be found in the five reports.  Nothing in any of those reports would lead me to be concerned in the event of the father continuing to have unsupervised time with his daughter as provided for in the current orders.

1. For the reasons given the wife’s application filed on 10 January 2008 is dismissed.

   RECORDED  :  NOT TRANSCRIBED

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  18 January 2008