PALANCE & MARLEY

[2020] FamCA 1012

FAMILY COURT OF AUSTRALIA

PALANCE & MARLEY [2020] FamCA 1012

FAMILY LAW – PARENTING – where father fails to undergo supervised urine tests for detection of use of illicit drugs – where father denies drug use to Family Consultant but hair follicle test results indicate heavy drug use at relevant time – where father seeks adjournment to obtain legal advice – where adjournment granted and face to face time is suspended.

APPLICANT: Ms Palance

RESPONDENT: Mr Marley

INDEPENDENT CHILDREN’S LAWYER: Ms Altavilla

FILE NUMBER: MLC 4289 of 2011

DATE DELIVERED: 3 September 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 3 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Bowen

SOLICITOR FOR THE APPLICANT: Rose Lawyers & Conveyancers

COUNSEL FOR THE RESPONDENT: Mr Marley in person

SOLICITOR FOR THE RESPONDENT:

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Altavilla Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Noah Eidelson

Orders

1. This matter be adjourned to 7 October 2020 at 10.00 am for an interim defended hearing as to interim time between the father and the child X born … 2007 (“the child”) (“the adjourned date”).

2. Any party requiring the Family Consultant, Ms B, for cross-examination on the adjourned date notify the Director of Child Dispute Services – email ... – within 7 days.

3. By not later than Friday 18 September 2020 the father file and serve a response to the mother’s application in a case which sets out with specificity the orders he seeks for time between himself and the child X together with any affidavit material upon which he relies for the interim hearing. The affidavit material include details of the date on which he first retained those lawyers to act on his behalf in this proceeding.

4. By not later than Friday 18 September 2020 the mother and the father notify the Independent Children’s Lawyer in writing in the event that either requires that the result of the drug screens taken by the father to be verified and explained by an appropriately qualified person.  Absent notification, the results of the drug screens will be deemed to be as described by the Independent Children’s Lawyer this day without the need for further evidence.

5. The child’s entitlement to face to face time with the father, pursuant to the Order made in 2018, be and is hereby suspended until further order.

6. In the event that the father is able to make arrangements for professional supervision of his time with the child X between now and the adjourned date, he notify the practitioners for the mother and Independent Children’s Lawyer in writing proposing days and times and the mother and Independent Children’s Lawyer respond promptly as to whether the time can take place.

7. The mother’s costs of and incidental to this day be reserved to the adjourned date to be determined in light of events up until the adjourned date and the reason for the father’s application for an adjournment.

8. Within 7 days the wife’s practitioners for the mother notify the father in writing of the costs claimed for today, such costs to be drawn in accordance with Schedule 3 to the Family Law Rules 2004.

9. Pursuant to s.65DA(2) and s.62B of the Family Law Act 1975 (Cth) the particulars of 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 the parties adjust to and comply with an order are set out in the Attachment A hereto and these particulars are included in these orders.

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

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym 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 to determine what interim time the father ought to be spending with the parties’ only child, X, who is 13 years old. 

2. X lives in the primary care of her mother and has been seeing her father regularly.  The extant Order was made by Judge McGuire in 2018 pursuant to which X spends each Saturday with her father between 10.00am and 6.00pm.  There has been an interruption in those times this year by virtue of the father having, on two occasions, taken X to Victoria Police to make complaints about the mother’s care with a view to X being placed in his care, or the mother being charged.

3. The father alleges that the mother is physically violent to X and that X wants to live with him.  The mother asserts that the father has a problem with illicit drugs, an allegation which the father denied.

4. On 25 June 2020, I made orders that each of the mother and the father undergo hair follicle testing and urine testing to detect the use of illicit drugs.  The mother duly underwent both tests and her results were negative.  The father did not undergo either test by the time the matter came back before the court.  He said that he had misunderstood that he was to undergo both tests and thought he only had to undergo one, but he did not undergo that either.

5. On 20 July 2020, I extended the time in which the father had to comply with the order for hair follicle testing and urine testing.  He subsequently underwent the hair follicle testing.  It has come back indicating use, by the father, of methamphetamines, or ice, at “a very high level.”  Counsel for the Independent Children’s Lawyer, Mr Eidelson, said that the Independent Children’s Lawyer, Ms Angela Altavilla, had spoken to the head of C Company, Mr D, and received advice that the father’s hair was shorter than it should have been and that the length of the hair enabled them to test only for approximately one month.  That the results indicate heavy use between mid-May and mid-July.

6. That timeline of the father’s heavy drug use is significant. A section 11F parent and children’s issues assessment was undertaken by Ms B, Family Consultant, in July 2020.  The assessment is in evidence.  Ms B recites the father having denied taking illicit drugs, illicit substances, other than perhaps alcohol, in the past.  The results of the father’s hair follicle test are diametrically opposed to his statement to Ms B. 

7. To date the father has not undergone the supervised urine tests.  On 22 July 2020, the Independent Children’s Lawyer wrote to the father reminding him of his responsibility to undertake those tests.  On 24 July, the father responded to the Independent Children’s Lawyer saying that he would have the hair follicle test the following Monday and have the supervised urine test “tomorrow.” 

8. The Independent Children’s Lawyer wrote to the father on 29 July and on 6 August asking for results of the supervised urine testing but none were provided because the father had not undergone the test. 

9. Today the father told the Court that he had difficulty accessing a suitable pathologist during pandemic restrictions.  I am not satisfied that that is accurate.  I take judicial notice of the fact that pathology is one of the services that has continued during the pandemic.

10. The father is 38 years old; the mother is 39 years old.  The mother lives with her partner and X in Suburb H. The father lives in J Town with his parents, although the mother is somewhat sceptical about whether he is living with his parents full-time.  The mother and father commenced a relationship in 2002 and separated finally in 2011.  Since separation X has lived primarily with the mother.

11. As indicated, Ms Palance has sole parental responsibility pursuant to orders made by Judge McGuire in August 2018 and, apart from the weekly time on Saturdays, the father was entitled, pursuant to those orders, to have dinner each second Tuesday with X from 3.30 pm. 

12. The Family Consultant describes X as follows:  -

    13.      X (12 years, … months) was interviewed via video using Microsoft Teams due to the COVID-19 pandemic. She presented as an adolescent who seemed younger than her age. X appeared to struggle to follow the content of the interview at times and seemed to have difficulty grasping some concepts during the discussion. It was difficult to ascertain whether this was due to her level of anxiety at being interviewed or her learning and auditory processing issues. Despite this, she was a pleasant and cooperative adolescent who participated well during interview and seemed to be clear in her views. X was also introduced to the Independent Children’s Lawyer, Ms Altavilla during the meeting.

    14.      X is in grade 7 at G School. She stated that school is going “good” but that noted that she struggles significantly with maths. X stated that she is not receiving any outside help with maths at the moment. She otherwise believes that she is an average student and has a good group of friends with no issues amongst these friendships. X reported some confusion regarding how her auditory processing issue manifests for her and described her issues as “sometimes having trouble understanding what the teachers say when they are talking”.

    15.      X could not describe anything that she did not like about living at her mother’s house. She strongly denied that she was at risk of harm in the care of her mother and also she stated that she is not being physically punished. She spoke warmly about her time with her mother and expressed feeling very excited about the arrival of her new baby sibling and being a big sister.

    16.      X’s interview narrative provided strong evidence of her being very confused and conflicted by her situation. She appeared to be uncomfortable and somewhat distressed when discussing the recent situation whereby she was kept in her father’s care. She expressed uncertainty regarding this experience and stated that “all I wanted to do was have more time with my dad” and that she “didn’t know how to get it”. She provided information to suggest that her father took her to the Police station as a way to try and obtain more time together. She indicated that she did not feel comfortable talking to the Police about her mother and that it made her feel “sad”.

    17.      X also stated that her father told her that she can “just tell him to stop the court case and he will”. During the interview X spontaneously said “I’m going to tell him to stop the court case”. X spoke using the collective “we” when discussing her father’s plans to purchase a house in Suburb K and on other occasions. She stated that she had gone to look at some houses on the weekend with her father and appears to be of the view that he may be moving in the near future.

    18.      X reported that she is happy to be moving into Mr F’s house with her mother and that she prefers the area to Suburb L. She described that Mr F is very nice and kind to her and that she has her own bedroom at his house which she likes.

    19.      X’s preference is to remain living with her mother primarily and for her to spend each alternate weekend with her father from Friday after school to Sunday evening and every Tuesday night for dinner. X would also like to spend half school holidays with her father and stay overnight at his house on Christmas evening and return to her mother’s house in the morning on Boxing day.

13. The Family Consultant describes the risk factors in the following terms:

    20.      There are concerns raised by Ms Palance that Mr Marley may be using illicit substances due to his alleged avoidance with completing urine drug screens. Ms Palance also claimed that Mr Marley has mislead the court in regards to his drug screen results in previous family law proceedings therefore she has trust issues regarding his transparency with substances. She was not clear on what type of illicit substances Mr Marley may be using however, she indicated that it may be speed due to the fact that some of his back teeth are missing.

    21.      Mr Marley denied that he uses illicit substances and stated that he has participated in multiple drug screens in the past that have been clear. He is agreeable to further drug screens throughout this process, however he believes that they are unnecessary. Mr Marley claimed that both parties used recreational drugs during their relationship. In reflection, Mr Marley stated that he may have had an issue with alcohol in the past but has ceased drinking now.

    22.      Ms Palance claimed that Mr Marley displayed physically aggressive behaviours during their relationship when he punched a door which hit X in the face. She also alleged that during their relationship that Mr Marley was financially controlling and that he appeared to have a mood disorder.

    23.      Ms Palance claimed that Mr Marley is using the court system to continually harass her and believes this is an example of his ongoing controlling behaviour. Ms Palance reported that Mr Marley purchased a mobile phone for X and claims that he may use this phone to track her location.

    24.      Mr Marley also reported a history of family violence in the relationship with Ms Palance and alleged that she was verbally and physically abusive towards him “the family violence allegations (from X) are a mirror of what happened to me in the relationship”. He claimed that Ms Palance was physically abused by her mother as a child and he is concerned that she is parenting in a similar manner towards X.

    25.      Ms Palance’s main concern regarding Mr Marley’s relationship with X is the concern regarding his alleged alignment attempts. She reported that Mr Marley has “little chats” with X in relation to negative comments regarding herself. She reported that his behaviour in taking X to the Police station multiple times and to a psychologist to make reports during the ten days that he over held her was in an attempt to align her against Ms Palance. Ms Palance also claimed that Mr Marley shows court documents to X.

    26.      Mr Marley reported his main concern is in relation to Ms Palance’s parenting. He alleged that she uses physical punishment towards X such as pulling her hair and claimed that she verbally abuses her at times. He denied attempting to negatively influence X against her mother and stated that he took her to the Police station due to concern regarding her safety in the care of her mother. Mr Marley stated that he took X to the psychologist to ascertain how she was tracking emotionally.

14. The Family Consultant evaluates the matter in the following terms:-

    33.      This report concerns the parenting arrangements for X who is 12 years old, … months old. X lives primarily with mother and spends time with her father on Saturdays from 10am to 6pm and alternating Tuesdays for dinner. The parents are in dispute regarding X’s live with and spend time arrangements and parental responsibility.

    34.      In interview, X presented as an adolescent that appeared younger than her stated age. She also has some learning difficulties that appear to be impacting slightly on her confidence and make her more vulnerable overall. This means that she would be more suggestive and prone to parental influence.

    35.      X’s interview narrative suggested that she is caught in the middle of the parental conflict and is struggling with her loyalty to both parents. She appears to have a strong yearning for more time with her father and they seem to have a close relationship. However, the recent situation whereby Mr Marley appeared to orchestrate further time between them by bringing X to the Police station and psychologist seems to have had a negative impact on her emotional wellbeing. X appears to feel confused by this experience, her father’s intentions and the impact that this may have had on her relationship with her mother. This is the second time that Mr Marley appears to have exhibited this behaviour. The detrimental impact of this type of behaviour appears to present as the biggest risk to X at this time.

    36.      It appears that Mr Marley has enabled X to feel that she is in control of the legal proceedings which is also of concern. The content of X’s interview suggested that she believes it to be partly her decision to engage in legal proceedings and that she can stop proceedings at any time. This belief appears to be causing X intense conflict and distress.

    37.      X also appears to have a close relationship with her mother and suggested that she would like to remain living with her primarily and to spend overnight time with her father. She did not indicate that she would like to live with her father primarily or that she was at risk of harm in her mother’s care.

    38.      There was no concerning information provided by either parent to suggest that Mr Marley is using illicit substances. However, if both parents participate in drug screens as a result of these proceedings, this issue should be clarified.

    39.      The parents both view themselves as the superior parent to meet X’s needs primarily. There is poor communication between them and it is difficult to imagine that this may improve in the future given their long history of litigation. It is unfortunate that this situation has been ongoing for X and she would greatly benefit if the parents attempt to improve their communication to ensure that she is not kept from spending time with either parent again in the future.

15. And the Family Consultant makes the following recommendations entitled “Future Directions”:

    40.      X to remain living primarily with her mother.

    41.      Pending the outcome of recent drug screens, X to begin spending overnight time with her father each alternate weekend from Friday to Sunday. X could continue to meet her father for dinner each Tuesday evening. Overnight time to occur at Mr Marley’s parents house unless he is able to show proof to the mother of a residential address.

    42.      X to spend half school holidays with her father.

    43.      X to FaceTime with her mother at least once whilst in the care of her father.

    44.      Changeovers to be at school or in a public place.

    45.      Consideration for X to attend counselling that includes input from both parents.

    46.      A copy of this report to be given to the counsellor supporting X.

    47.      The parents to ensure that X is not exposed to any further parental conflict or shown court document. The parents to also ensure that they don’t denigrate each other in X’s presence.

16. Today Ms Bowen appears on behalf of the mother.  The mother participates in the hearing.  The father does not have representation.  He appears for himself.  Mr Eidelson appears for the Independent Children’s Lawyer, Ms Altavilla. 

17. The father seeks an adjournment of today’s hearing so that he can be represented at the time that interim time is determined.  Mr Eidelson has made inquiries of the lawyers who the father says he retained approximately a week ago and confirmed availability with this morning, M Lawyers.  Unfortunately no one from M Lawyers could be contacted to confirm that the father is a client and the time by which documents can be prepared on the father’s behalf.  Accordingly, I have made a generous allowance of two weeks to prepare documents and an adjourned hearing in approximately a month.

18. The issue is what happens between now and the interim hearing date.  The children and parents’ issues assessment describes X as being a child who particularly wants to spend more time than each Saturday with her father and yet the manner in which the father has run the case means that she will be spending much less time.  That will be, I anticipate, sad for her.  The Independent Children’s Lawyer has been in contact with the Family Consultant who says that having regard to the father’s positive testing for use of illicit substances, any time between X and the father should be supervised or subject to the substantial attendance of an adult and that the father should certainly not be in charge of a motor vehicle which transports X for the purpose of time.

1. The mother lives in Suburb H and the father lives in J Town, and there is approximately a half an hour car journey between them.  The Independent Children’s Lawyer’s recommendation is that time can proceed between the father and the child providing that it is professionally supervised.  Notably, the pandemic response has meant that contact centres are closed.  The father has not made any inquiries about professional supervision of his time with X.  He said that he was not even aware that such services existed until he heard of them in today’s hearing.

2. He does say that he can afford the $300 a week to have somewhere given for time with X.  I am estimating that that would be in the vicinity of two hours’ time on a weekend.  The mother has indicated, through Ms Bowen, that she is not adverse to that time taking place and she supports X being able to see her father providing that it is safe for X to do so.  I will make provision in the orders for the father to notify the Independent Children’s Lawyer, and the mother, in the event that he is able to arrange professional supervision and can spend time with X between now and the adjourned date.

3. The Independent Children’s Lawyer has been in contact with the paternal grandmother who confirms that the father is living at her residence in J Town.  The paternal grandmother is not in a position to supervise or be in substantial attendance during the father’s time with X.  She has commitments, including attending to her husband who is ill, and she cannot make herself available to drive.  Both the mother and the paternal grandmother acknowledge that the relationship between the two of them is not particularly good, although it remains the case that the mother would have been prepared to accept the paternal grandmother as a person to supervise the time or to be in substantial attendance during the time.

4. It goes without saying that there should be absolutely no repeat of X being taken to a police station or any other similar event. 

5. Consistently with the Independent Children’s Lawyer’s view, she wrote on 2 September 2020 to the mother and the father in the following terms, omitting formal and irrelevant parts:

   I refer to my email of yesterday advising of the Family Consultant’s recommendations, in light of the Hair Follicle Test Results.

   1.I confirm the ICL’s position is as follows:

   2.That all time X spends with her father be supervised

   3.The father not be permitted to drive a motor vehicle with the child as a passenger

   The father forthwith engage in drug and alcohol counselling

ORDERS DELIVERED

1. Counsel for the Independent Children’s Lawyer informs the Court that the Independent Children’s Lawyer will advise X of the outcome of these proceedings today.  Unfortunately it will be necessary in so doing to say that the adjournment was required because the father was yet to get lawyers and that the time that X has been spending with the father is currently suspended because of positive drug testing results.  Furthermore, that there is a possibility that there may be some supervised time between the father and X between now and the adjourned date.

ORDERS DELIVERED

1. The father has an entitlement to telephone communication with X each Thursday and that is not suspended.

I certify that the preceding twenty five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 3 September 2020

Associate: 

Date:  1 December 2020