Palance and Marley (No 2)

[2020] FamCA 1036

FAMILY COURT OF AUSTRALIA

PALANCE & MARLEY (NO. 2) [2020] FamCA 1036

FAMILY LAW – CHILDREN – Suspension of Parenting Order

Family Law Act 1975 (Cth)

APPLICANT: Ms Palance

RESPONDENT: Mr Marley

INDEPENDENT CHILDREN’S LAWYER: Ms Jenkinson

FILE NUMBER: MLC 4289 of 2011

DATE DELIVERED: 7 October 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 7 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dunlop

SOLICITOR FOR THE APPLICANT: The Five

COUNSEL FOR THE RESPONDENT: Mr Trim

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Jenkinson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Altavilla Family Law

Orders

1. The parenting Order made on 3 April 2018 in so far as it provides for the child X born … 2007 to spend time and communicate with the father be and is hereby suspended. 

2. Until further order, X spend time with her father as follows:

   (a)       In the event that the father elects to do so, supervised by T Services on days and at times as agreed to between the parents and failing agreement as nominated by the professional supervisor with the costs of same to be borne by the father including the intake and report fees;

   (b)       Via video call each Monday and Thursday at 6pm, with the father to place the call to a device nominated by the mother with the mother to afford the child privacy.

   (c)       Such further or other times as may be agreed and confirmed in writing.

3. That prior to making any application to the Court for further time, including unsupervised time with X, the father provide two consecutive hair follicle tests that evidence a negative result for any illicit substances, and noting the following conditions

   (a)       The testing occur through Australian Workplace Drug Testing;

   (b)       The hair sample provided by the father be a minimum length of three centimetres on each occasion;

   (c)       The father provide the results to the mother and ICL forthwith upon receipt;

   (d)       The mother and ICL be authorised to verify the results with the testing service;

   (e)       The two tests occur not less than three months apart and not more than four months apart;

   (f)        The father bear the costs of the testing.

4. The father pay the mother’s costs thrown away on 3 September 2020 in the sum of $2138 within 7 days by payment into the mother’s bank account in respect of which the father acknowledges he has details.

5. The evidence of Ms B, Family Consultant, given this day be transcribed and when transcribed a copy be placed on the file and provided to the parties. 

6. The Independent Children’s Lawyer cause a copy of the transcript of the Family Consultant evidence given this day to be provided to X’s psychologist, Ms N of P Psychology in Suburb R.

7. In the event that a further parenting application is filed prior to 1 June 2023, the matter be referred to my Chambers immediately and a direction will be made seeking the reappointment of the Independent Children’s Lawyer prior to a first return date being allocated to the proceedings.

IT IS DIRECTED:

1. That my reasons for decision this day be transcribed and when settled remain on the Court file and be sent to the parties and the Independent Children’s Lawyer provide the reasons to X’s psychologist.

2. The minute of orders with tracked changes be marked Exhibit “A” and remain on the Court file.

IT IS FURTHER ORDERED THAT:

1. The appointment of the Independent Children’s Lawyer be discharged.

2. Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

3. All extant applications be dismissed and this matter be removed from the docket of the Honourable Justice Bennett.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Palance & Marley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4289 of 2011

MS PALANCE

Applicant

And

MR MARLEY

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me as an interim hearing. At the conclusion of the hearing, there was agreement that the interim orders which I make today, for the reasons given below, will finalise the matter for the time being and that the case will be removed from my docket.  Upon the father producing two clear hair follicle tests for detection of use by the father or illicit drugs, the father is at liberty to seek that time between himself and the parties’ child, X, be unsupervised.  All current applications stand dismissed.  The father will need to file an application initiating proceedings in which he specifies the orders he seeks for unsupervised time.  At that stage, consideration should be given to a request that the Independent Children’s Lawyer be re-appointed.

2. In April 2018, final parenting orders were made which provided that the mother have sole parental responsibility for X who was born in 2007 and is now 13 years of age.  The father was to have regular time with X each Saturday from 10 am to 6 pm and every second Tuesday from 3.30 pm for an evening meal.

3. In late 2019, difficulties arose which extended into 2020.  The difficulties included the father taking the child to a psychologist in Suburb S, without the consent or knowledge of the mother, for the purpose of obtaining evidence which he would use in proceedings to reverse the residential-care arrangements for X.  There then followed two occasions on which the father took the child to Victoria Police for the purpose of making statements against her mother.  The second occasion was in contravention of a specific Order made in this Court.  The father well-knew he was not permitted to take the child to the police.  It was poor conduct. 

4. There was a child-and-parent-issues assessment conducted by Ms B in July 2020 pursuant to s 11F of the Family Law Act 1975.  That report is dated 6 July 2020.  It is in evidence.  Ms B has been cross-examined.  It is a clear and helpful report, and Ms B reports X as being fortunately unscathed by the high degree of parental conflict and wanting to see her father.  X is described as bewildered about the circumstances of her attendance on Victoria Police.  X made clear to the Family Consultant that she was content and happy to be in the care of her mother.

5. The mother and X have now moved to reside in the home of the mother’s new partner.  The mother’s new partner, Mr F, is the mother’s employer and also the mother’s solicitor on the record in these proceedings.  In view of the positive report about the relationship between the child and the father, and giving the father the benefit of every doubt concerning the reason why he had not undergone appropriate drug testing as at the date of the assessment by the Family Consultant and the return of the matter to Court, time was permitted to continue face-to-face and unsupervised providing the father continue to reside in the paternal grandmother’s property. 

6. When the drug screens came in, the mother was clear of use for illicit drugs - the father was not.  The father had cut his hair so short that less than the recommended length of hair could be cut for the hair follicle testing.  However, the hair which was tested indicated a high use of illicit drugs including methamphetamine.  He did not undergo urine testing, as I recollect. 

7. On 3 September 2020, the matter was again before the Court.  The father had failed to file any material relevant to the drug testing.  He said he wanted an adjournment in order to have his solicitor appear in Court on his behalf.  He informed the Court that he had retained the services of a solicitor, although the Independent Children’s Lawyer, upon trying to check same, could not verify that.  I reserved the costs of that day vis-a-vis the mother, and today the father has agreed to pay those costs thrown away in the sum of approximately $2,100.

8. Significantly, the father was given the opportunity by the Order of 3 September 2020 to set-up commercially supervised time between himself and X.  He had to notify of the dates and times that he sought supervised time, and the mother was required to reply promptly.  He denied using methamphetamines.  He denied, specifically, any high use of methamphetamines and was, further, given the opportunity to put expert evidence before the Court to challenge that which had been adduced at that point by the Independent Children’s Lawyer.

9. The father was required to file and serve any response and file and serve evidence in support of orders he sought in that response.  The father has failed to do so.  The father has not returned to Court with the solicitors he said he had previously employed or retained.  He has Mr Trim who is of counsel and who has accepted a direct brief in this matter.

10. The mother’s application today is that time between X and the father be restricted to supervised time, the supervision to be by a commercial agency at the sole expense of the father. 

RECORDED  :  NOT TRANSCRIBED

1. In addition, the mother agrees to X having electronic communication with the father, by video call, twice a week at 6 pm on Monday and Thursday each week.  The cost of supervision by T Services is said to be $100 per hour, the regular time for supervised,  I am assuming, is somewhere in the vicinity of three hours inclusive of travelling time. 

2. The Independent Children’s Lawyer wholly supports the mother’s position in this interim proceeding. 

3. The father obtained leave to make an oral application for orders for alternate weekend time between Friday and Sunday and half the school holidays.  In closing submissions, Mr Trim sought orders that, between now and the father producing one single hair follicle test which is negative for use of illicit drugs, that the father have time with X supervised by the paternal grandmother. Furthermore, it was indicated that the father will not be taking up any time supervised by a commercial agency.

4. I heard, for the third occasion, from the Family Consultant and she was cross-examined.  Her evidence was cogent, it was considered and it was helpful.  She is sad for X that X has been let down by her father’s inactivity in these proceedings.  The father’s attitude being that he will not take-up supervised time to spend face-to-face with X confounds the Family Consultant. 

5. The Family Consultant is of the view that X will be sad and disillusioned at her father’s inactivity and lack of progress in this matter.  In this respect, the Family Consultant had no objection to me providing that a copy of the transcript of the Family Consultant’s evidence given this day be made available by the Independent Children’s Lawyer to the psychologist who the mother has arranged for X to see, which is Ms N in Suburb R.

6. The mother and the Independent Children’s Lawyer have presented a minute of order which I mark exhibit “M1” and direct remain on the Court file; it is their common position. 

7. As with all parenting matters, the paramount consideration is X’s best interests.  I arrive at determining what is in X’s best interests by two primary considerations, the first and most important of which is to keep X safe from physical or emotional harm, and the second being to make orders which will obtain for X the benefit of having a meaningful relationship with both parents. 

8. I am against the father’s case that he does not need supervision.  I am against the father’s case that supervision can be adequately supervised by the paternal grandmother - this is for a number of reasons.  It is admitted that on the last occasion, the Independent Children’s Lawyer had heard from the paternal grandmother and been informed that she would not be making herself available to supervise time between the father and X;  it is not a matter of her being unavailable, but of her not making herself available. 

9. Now the father proposes that she be the supervisor.  He does so without any evidence by way of affidavit, or otherwise, that she is prepared to be the supervisor.  The father lives on the same property as the paternal grandmother.  There is no explanation as to why there is no affidavit evidence today.  The father sought and obtained an adjournment of the hearing on 3 September 2020 so that his lawyers could prepare his case.  I infer that the father has had the opportunity to obtain such evidence, and the fact that he has not done so indicates that the paternal grandmother’s evidence would not assist his case.

10. The Independent Children’s Lawyer and the mother have objected to the paternal grandmother being the supervisor.  They say that she is not protective in as much as she has not previously acknowledged that the father and the father spending unsupervised time carries with it risks to X.  Notably, the father was living at the grandmother’s property when the father took the child unbeknownst to the mother to a psychologist and then on two occasions to Victoria Police.

11. Moreover, the grandmother does not acknowledge that the father has a problem with use of illicit drugs.  Apart from not being protective, the Court, and the Independent Children’s Lawyer, and the mother have difficulty putting the paternal grandmother in conflict with the father and that is potentially by requiring her to supervise time which he has previously indicated she does not wish to do.  I would have to be very cautious in taking any statement from the paternal grandmother now that she had changed her mind.

12. I am against the father’s case that supervision is not necessary given the age of X which is now 13 years.  The father presents by way of psychological manipulation of the child.  The physical risks to the child include the father being able to transport the child in a motor vehicle and taking the child to places such as a psychologist and Victoria Police.  Psychologically, it is the manipulation of the conversations to which the father has deposed in his earlier material, being affidavits sworn on 2 March 2020 and 24 June 2020, to the effect that the mother does not care for X, abuses X and the like.

13. These are reasons which satisfy me that professional supervision is needed and that a family member should not supervise time.  I am against the father’s case that there need be only one lot of hair follicle tests that indicate that the father has not been using illicit drugs.  A hair follicle test will, as I understand it, give an indication of what has been used in the previous three months.  It will be a challenge for the father to be able to produce one test, and if he does so, then he will be commended.  However, the circumstances of this case, and with his history of doing nothing proactive in relation to getting his time with X back on track, I am satisfied that two hair follicle tests, taken not less than three-months apart, are necessary before the father may make an application for a change in the arrangements for interim time between him and X. 

14. I am against the father’s application that I set out a self-executing regime of time which will lead to unsupervised alternate weekend time.  Quite frankly, the father has to learn to walk before he can run, and his performance in these proceedings to date has been less than impressive. 

15. I am not prepared to make a self‑executing order as sought by the father.  I have timetabled this matter on earlier occasions and the father has spectacularly failed to comply with obligations within any of the times set and sometimes at all (ie. supervised urine tests).  I also do not want to bring the mother or the Independent Children’s Lawyer back to Court to suspend or forestall the introduction of any unsupervised time unnecessarily where the father has given every indication that he does not comply with orders.  The ball will now be in the father’s court.  He will have to be proactive.  He will have to get the tests done by the nominated testing agency and come to Court with them in support of any further application which he makes.

16. I am against the father’s application that the testing agency be other than that elected by the mother and the Independent Children’s Lawyer.  Mr Trim has correctly stated that, on the last occasion, the father said that he thought that the testing had been unreliably performed, and he was not satisfied with the accuracy of the results.  The father was given an opportunity to file expert evidence in that respect; he has failed to do so. 

17. The testing will be done by the agency previously nominated. 

18. In the event that the father does satisfy the Independent Children’s Lawyer and the mother that there are clear hair follicle tests or if the mother is otherwise satisfied that the father is not using illicit substances and will not psychologically manipulate the child or physically put her in danger, the father and the other parties can prepare minutes of consent orders which I will make or at least consider making without the need for court appearances. 

19. I am not requiring everyone to come back before me on another date in the event that there was agreement.  In the event that there is not agreement, then they should be back before me anyway. 

20. The father’s application initiating these proceedings  seeks sole parental responsibility.  It seeks that X resides with him, and that the mother’s time with X be reserved pending the outcome of any recommendations made by the Court after a full investigation into the physical assault of X by the mother. Today, Mr Trim of counsel has informed the Court that his client does not proceed with the change-of-residence application.  I do not know what application he does proceed with, in as much as there is no other application.

21. The mother’s response appears to be in an application in a case filed on 18 June 2020, and in that application she seeks supervision of time between X and the father and prohibitions taking the child to psychologists or police stations. 

22. It seems to me that both applications now before the Court are outdated and that the proceedings could in fact be finalised today on the basis that there are interim orders only, and it will be for the parties to return the matter to Court.  I will, however, now take submissions as to why that would be an inappropriate course from the practitioners because I had not earlier done that.

RECORDED  :  NOT TRANSCRIBED

1. I have heard from counsel, and they do not raise any objection to the proceedings being finalised now.  I will, however, make a few orders in support of the father’s ability to return the matter.

ORDERS DELIVERED

1. This is the best outcome for X.  The best outcome would have been achievable only with the father’s cooperation and compliance with the previous orders of the Court. He should have been honest about his use of drugs and much less self –focussed and self-centered than he has been.  The best outcome would have involved the father having some empathy for X.  These are the least worst orders that can be made in the circumstances.  These orders are consistent with X’s best interests at this point in time in the circumstances which have unfolded.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett J delivered on 7 October 2020.

Associate: 

Date:  7 December 2020