PELMORE & MICKELS

[2020] FCCA 3308

FEDERAL CIRCUIT COURT OF AUSTRALIA

PELMORE & MICKELS [2020] FCCA 3308

Catchwords:
FAMILY LAW – Parenting – interim parenting – child born by way of altruistic gestational surrogacy procedure – where the applicant father seeks that the respondent father’s time be supervised – where there are assertions of risk – where the Court is unable to make findings in relation to contested allegations of family violence on an interim basis – where the child has a close and loving relationship with each parent – where the respondent has taken a number of positive steps to address his drug use – order for equal time.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 61C, 65D, 65DAA

Cases cited:

M & M (1988) FLA 91-973

A & A & The Child Representative (1998) 22 FamLR 756

Goode v Goode (2006) FLC 93-286

Napier & Hepburn (2006) FLC 93-303

Johnson & Page (2007) FLC 93-344
Starr v Duggan [2009] FamCAFC 115

MRR v GR (2010) 240 CLR 461

SS & AH [2010] FamCAFC 13

Marvel v Marvel (2010) 240 FLR 367

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman [2015] FLC 93-654

Keats & Keats [2016] FamCAFC 156

Grella & Jamieson [2017] FamCAFC 21

Bondelmonte v Bondelmonte [2017] 259 CLR 662

Masson v Parsons & Anors [2019] HCA 2

Applicant: MR PELMORE

Respondent: MR MICKELS

File Number: SYC 1202 of 2020

Judgment of: Judge Morley

Hearing date: 8 May 2020

Date of Last Submission: 18 May 2020

Delivered at: Sydney

Delivered on: 17 November 2020

REPRESENTATION

Solicitors for the Applicant: Mr Jones of Adam Jones Solicitor

Solicitors for the Respondent: Ms Lama of Lama Family Lawyers

ORDERS

1. Order 8 of the interim orders made on 8 April 2020 is vacated.

PENDING FURTHER ORDER, THE COURT ORDERS THAT:

1. The child X born in 2017 will live with the Respondent as follows:

   (a)In week 1, from 10:00AM on Saturday to 10:00AM on Thursday; and

   (b)In week 2, from 10:00AM on Monday to 10:00AM on Wednesday.

2. That the child X live with Applicant at all other times.

3. That all of the time the child is in the Respondent’s care is to be supervised by on or other of the Respondent’s parents Mr B or Ms C, until the Respondent has provided to the Applicant a hair follicle testing result summary pursuant to the orders to be made today that indicates a negative result for all illicit drugs for which the Respondent’s hair sample is tested, such supervision to cease forthwith upon the receipt by the Applicant (either himself or through his solicitors) of such a clear result summary.

4. In the event that any hair follicle testing result summary shows a positive result for any of the illicit drugs for which the Respondent’s hair sample is tested, pursuant to these orders, then supervision for all the time during which the child is in the Respondent’s care must resume forthwith upon the said positive result summary coming to the Respondent’s notice, and that time should continue to be supervised until a further two (2) negative results as described in order 4 hereof is received by the Applicant or the Applicant’s solicitor, being tests being conducted pursuant to order 6 herein.

5. The Respondent must within 48 hours and each third month thereafter make an appointment and attend for hair collection on an Australian workplace drug testing service (herein referred to as ‘AWDTS’) clinic or other collection agency agreed upon with the Applicant, for hair follicle drug testing purposes, and

   (a)Collection is to be conducted by a qualified certified collector;

   (b)Chain of custody procedure is to be applied to the sample;

   (c)Either head or body hair may be collected for testing;

   (d)To give effect to this order:

   (i)The Respondent is required to maintain his head hair length of not less than 3.5cm with neither head hair nor body hair to be cut bleached or dyed between the date of this order and the time of collection of the first hair sample within 48 hours of this order;

   (ii)Each party or their legal rep is at liberty to provide AWDTS with a copy of these orders;

   (iii)The Respondent is to attend at an AWDTS clinic or other agreed service and submit to the supervised collection of hair sample within 48 hours of making these orders and each three months thereafter; and

   (iv)The Respondent is to provide the collector at the clinic with photograph identification to be recorded before each hair collection.

   (e)The hair drug test is to screen for drugs of abuse including but not limited to

   (i)Amphetamines;

   (ii)Methamphetamines;

   (iii)Cannabinoids;

   (iv)Cocaine;

   (v)Opioids; and

   (vi)Benzodiazepines.

   (f)AWDTS is to use the services of an appropriate laboratory accredited to conduct hair drug testing to the international standard ISO/IEC 17025.2005 by the relevant national accreditation body and AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance with the international society of hair testing guidelines, and the cost and time required for results to be made available.

6. The Respondent is to provide a copy of the results summary for each hair testing occasion to the Applicant or the Applicant’s solicitor within 24 hours of the Respondent receiving that result summary.

7. On a without admissions basis, the parties are restrained from using illicit drugs and any medicine legally obtained only on prescription without having such prescription for 48 hours prior to the child coming into their care and at all while the child is in their care.

8. On a without admissions basis, each party is restrained from consuming alcohol to the extent that it would be illegal for them to drive a sedan motor vehicle on a full licence in the state of New South Wales for a period of 24 hours prior to the child coming into their care, and at all while the child is in their care.

9. The Respondent must continue to attend upon his drug counsellor as recommended by his current drug counsellor.

10. Grant liberty to the Applicant and the Respondent to relist the matter for mention and further directions only on the giving of seven days notice to the other parties and to the Court in relation to the issues on which the matter is relisted.

THE COURT NOTES THAT:

1. Noting the impending holiday season, in the event that his Honour is not sitting and the liberty to relist is exercised, the moving party will be required to seek urgent relisting by filing an Application in a Case in the ordinary course.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1202 of 2020

MR PELMORE

Applicant

And

MR MICKELS

Respondent

REASONS FOR JUDGMENT

1. These are parenting proceedings between the applicant, Mr Pelmore (“the applicant”), and the respondent, Mr Mickels (“the respondent”) in relation to parenting issues for their much-loved child, X, born in 2017.  These reasons relate to an interim hearing that occurred on 18 May 2020.  These reasons have been too long delayed entirely at my fault, and for that I apologise to the parties, their legal representatives and to X.

2. At the time of the interim hearing, the applicant was 41 years of age and the respondent 31 years of age, and X had just turned three years of age.  The applicant and respondent were in a de facto relationship from 2009 until 1 January 2018 and during that time, as the result of an altruistic gestational surrogacy process through a person resident of City D, Country E, the applicant and respondent came to be the parents for the purpose of the Family Law Act 1975 (Cth) (“the Act”) and for practical purposes, within the meaning given to “parent” by the High Court of Australia in Masson v Parsons & Anor [2019] HCA 21. The applicant and respondent separated on 1 January 2018, and they have lived separate and apart since that time.

3. These proceedings were commenced on 24 February 2020 by the applicant filing an initiating application seeking interim and final parenting orders and final property settlement orders.  The respondent filed his response on 23 March 2020, seeking interim and final parenting orders and final property orders.  The matter had its first return date before me on 23 March 2020, at which time orders were made in relation to both parties undertaking a hair follicle test within 48 hours, undergoing urinalysis testing upon request, and the matter was adjourned to 18 May 2020.

4. On 1 April 2020, the applicant sought to relist the matter in relation to matters arising from the implementation of the orders made on 23 March 2020, and in particular in relation to the respondent’s response to the hair follicle testing order.  The matter was relisted on 8 April 2020, at which time it was confirmed for interim hearing on 8 May 2020, and an order was made requiring that all time to be spent by the respondent with X is to be supervised by either of the respondent’s parents.

5. A further order was made, that by 4 pm on 24 April 2020, the respondent was to attend a named facility to undergo a hair follicle testing procedure.  On 8 May 2020, the interim hearing proceeded, and was adjourned part-heard to 18 May 2020, at which time it was concluded and judgment reserved.

6. The material relied on at the interim hearing by the applicant is as follows:

   a)A case outline document prepared by the applicant’s solicitor/advocate, Mr Jones;

   b)An application in a case filed 28 April 2020;

   c)Notice of risk filed 24 February 2020;  and

   d)The affidavit of the applicant affirmed 22 April 2020 and filed 24 April 2020.

7. The material relied upon by the respondent on interim hearing was as follows:

   a)A case outline document prepared for the respondent by his solicitor/advocate, Ms Lama;

   b)Response to application in a case filed 4 May 2020;

   c)Notice of risk filed 23 March 2020;

   d)An affidavit of the respondent affirmed 4 May 2020 and filed that day;  and

   e)An affidavit of Ms C affirmed 4 May 2020 and filed that day.

8. The respondent has subsequently filed with the Court an affidavit affirmed 11 July 2020, filed 17 July 2020, but no application has been made by the respondent or by the applicant to reopen the evidence in relation to the interim hearing, and consequently the affidavit of the respondent affirmed 11 July 2020, filed 17 July 2020, has not formed part of the evidence in these proceedings.

9. In addition to the material filed by the parties and relied upon, various documents were tendered and admitted into evidence at the interim hearing, being:

   a)Exhibit A1 – documents produced on subpoena dated 9 March 2020 by F Medical Centre;

   b)Exhibit A2 – documents produced on subpoena dated 9 March 2020 by G Psychology;

   c)Exhibit A3 – 32-page bundle of screenshots of SMS communications between the parties;

   d)Exhibit A4 – CDT test results for the applicant dated 8 May 2020, prepared by Region H Pathology;

   e)Exhibit R1 – tender bundle for the respondent dated 8 May 2020;  and

   f)Exhibit R2 – CDT fact sheet prepared by NSW Health – Pathology.

10. In relation to this matter, I have read and considered carefully all of the contents of the material relied upon by each of the parties by way of their filed documents and by way of the exhibits.  I have refreshed my memory by listening to the audio recording of the submissions made on 18 May 2020 on behalf of the applicant, by his solicitor/advocate, Mr Jones, and on behalf of the respondent, by his solicitor/advocate, Ms Lama.  I have also considered the written submissions contained in the case outline documents for each party.

11. The orders sought by the applicant in these proceedings are in short summary form as follows:

    a)That X live with the applicant.

    b)That X spend time with the respondent in week 1, from 10 am on Monday until 10 am on Wednesday, and in week 2, from 4 pm on Friday until 10 am on Monday.

    c)That all time spent between the respondent and X be supervised by the respondent’s parents, Mr B and Ms C.

    d)That X have FaceTime communication with the parent he is not with at the time, during the period of about five minutes prior to X’s bedtime.

    e)That the respondent forthwith and then each three months, attend for a hair follicle test.

    f)That the respondent attend his current treating counsellor or a psychologist for drug counselling for no less than six months, and after six months, obtain a letter from that counsellor addressed to the applicant’s solicitors reporting on the progress of the respondent’s drug treatment.

12. In the interim hearing, the respondent sought orders, a short summary of which is as follows:

    a)That order 8 of the orders made on 8 April 2020 be discharged.  That was the order made on that day requiring that all time between X and the respondent be supervised by either of the respondent’s parents, whether it takes place at J Street, Suburb K, or away from that property.

    b)That the respondent spend time with X unsupervised in week 1, from 10 am Saturday until 10 am Thursday, and week 2, from 10 am Monday until 10 am on Wednesday.

    c)That the applicant be restrained from consuming alcohol at all whilst X is living with him.

    d)That the respondent be restrained from using illicit drugs at all while X is living with him.

    e)That for a period of three months, the applicant do a CDT test once per month at the applicant’s expense, and give the results to the respondent’s solicitors.

    f)That if the applicant’s CDT level is elevated, then all time that the applicant spends with X is to be supervised by an adult supervisor agreed between the parties, until the applicant provides a CDT result within the normal range.

    g)That for six months, the respondent, at his own expense, undertake a hair follicle test every three months for detection of illicit drugs, and provide the results to the applicant.

    h)That the respondent continue to attend his drug counsellor, as recommended by that counsellor.

    i)That if the respondent’s tests prove positive for illicit drugs, then all time to be spent by the respondent with X is to be supervised by the respondent’s mother or father until a hair follicle test shows he is free of all illicit drugs for a period of six months.

13. Each of the parties filed their notice of risk and relied on those notices of risk in the hearing.  The notice of risk filed for the applicant indicated a risk in relation to the respondent having X in his care by reason of the respondent’s misuse of drugs and alcohol, and in particular, a dependence on methamphetamines occurring from 2019.  The notice of risk filed by the respondent did not assert any risks.

14. As stated earlier, X was born to his parents, the applicant and the respondent, as a result of an altruistic gestational surrogacy procedure, and both of X’s fathers are on his birth certificate.  The applicant is biologically X’s natural father.  The surrogate mother, Ms L, was born in Country E in 1983 and is an Australian citizen.

15. It is asserted by the respondent that during the period of cohabitation of the parties before their separation, they had joint care of X and attended in equal part all of X’s needs.

16. In January 2018, the respondent informed the applicant that he no longer wished to continue in their de facto relationship, and that as at the start of the month, the relationship was, in his view, terminated.  On 4 February 2018, the respondent moved his possessions out of the applicant’s home and into a residence in Suburb M.  An arrangement was made between the parties at this time that they would share the care of X equally, on an equal time shared care basis.  The respondent asserts that the arrangement involved X being with him from 10 am Saturday until 10 am Thursday in week 1, and from 10 am Monday until 10 am Wednesday in week 2. 

17. From my memory, there is some divergence in the evidence of the parents in that regard with the respondent asserting that the commencing times were 9 am.  Nothing turns on that difference.

18. In February 2018, the respondent advised the applicant that the respondent had commenced a relationship with a person known as Mr N.  As at the time of the interim hearing in May 2020, it was the respondent’s evidence that he was not in a relationship at all.  The applicant in his evidence deposes that on 28 March 2018, he was advised by a person that they had seen the respondent and Mr N in the Region O area heavily affected by drugs.  I can give very little weight to that evidence.

19. On 6 June 2018, Mr N delivered X to his day care, and the applicant asserts that the child’s pram, clothing and jacket were left in an open area and became rain-soaked.  The respondent refers to that occasion and says that the pram and all of the prams for the children attending the day care centre were always left at the same spot, and that there were up to 15 prams on that spot at any given time.  Once again, nothing can turn on that divergence of evidence.

20. The applicant deposes that on 4 May 2019, the respondent told him that Mr N had been violent and that he had been smashing light bulbs in anger, and the respondent made a commitment to the applicant that he would not leave X in the care of Mr N.  In the respondent’s evidence, he asserts that X was not present on the occasion of 4 May 2019 when Mr N was exhibiting violent behaviour and anger. 

21. The strong inference from the respondent’s evidence is that he agrees that he made a commitment to the applicant that Mr N would not be involved in the care of X on any future occasion. The most significant evidence given by the applicant is that on 24 May 2019, he says the respondent advised him that the respondent was an injecting ice user and that he was using the drug, ice, about every second day when X was not in his care.  The applicant asserts the respondent also told him that he uses “GBH”. 

22. The applicant says that at about this time, he attended at the respondent’s place of residence and found it in a filthy state, with cigarette butts, ash and empty Viagra packets all over the floor.  In the respondent’s evidence, he refers to this assertion in relation to the condition of the respondent’s place of residence by the applicant, and said that there was mess, but that it was caused deliberately by the applicant. 

23. In paragraph 31 of his affidavit, the respondent admits that he was around this time injecting methamphetamines, having started that use in early 2019.  He deposes that he started treatment seeking a cure for his drug use in about July of 2019, with Dr P at the F Medical Centre, deposing that he consulted that doctor on 24 July 2019 and was referred by the doctor to G Psychologists of Sydney.

24. The respondent also asserts that in relation to having commenced misuse of illegal drugs and, in particular, methamphetamine, the drug, ice, that he also began consultations with a counsellor, Mr Q, and he was consulting on two occasions per month.  The applicant deposes that on 2 September 2019, the respondent’s father rang the applicant and advised him that the respondent had admitted to his father that he had injected ice over the previous weekend.

25. The applicant asserts that in November 2019, he discovered Viagra pills in a blister pack loose and free in the respondent’s bag which he says X could have found and taken, mistaking them for a candy.  The respondent in his evidence says that this incident did occur, that the Viagra was in blister packs which X could not open or pop, and that the bag had a zipper that X could not open, and that he had inadvertently put the Viagra blister pack into the bag.

26. The respondent deposes that on 5 December 2019, he suffered an anxiety attack and consulted Dr P, previously referred to, in relation to his anxiety.  The applicant asserts that on 21 January 2020, the respondent asked the applicant if he would attend with him as an accompanying support person at Narcotics Anonymous.  In the respondent’s evidence, he asserts that the request was the other way around, that the applicant asked the respondent if the applicant could accompany the respondent to the respondent’s Narcotics Anonymous meetings as a support person.

1. The applicant asserted through the submissions made on his behalf that the annexure 3 to his affidavit was corroborative evidence that the respondent had made this request of the applicant, but on a reading of that annexure in full, it does not provide corroborative evidence of that assertion.  However, once again, and as with quite a deal of the evidence presented in the matter, nothing turns on that disagreement on the evidence.  There is enough agreed evidence of a concerning nature to give rise to the risk concerns in the matter.

2. The respondent gives evidence that on 18 March 2020 he underwent a urinalysis test at Suburb R, and provided a copy of the results to the Court, but not to the applicant’s solicitors.  Any such testing was not done under conditions of what is known as random request.

3. In February 2020, these proceedings were commenced, and as I have already said on 23 March 2020, the matter came before the Court for first mention, and orders were made in relation to hair follicle and urinalysis testing. 

4. The applicant complied with those orders, and provided his sample for hair follicle testing on that day, 23 March 2020, and on return of the results, all results were negative for the illicit drugs tested for.  The results indicated a hair length sample provided of 3.81 centimetres, an adequate length for the aims of the testing procedure.  The respondent did not undergo a hair follicle test in accordance with those orders.  The respondent did not undergo a hair follicle test until 23 April 2020, when he provided a hair sample of 2.54 centimetres length, just adequate or perhaps slightly below adequate.  All tests proved negative for illicit substances tested for.

5. On 30 March 2020, as the respondent had not had his hair follicle testing in compliance with the orders made a week earlier, the applicant refused to hand over X to the respondent under the terms of their standing agreement.  The respondent asserts that his failure to undergo the test in the time required by the orders was due to matters arising from the then just starting COVID-19 emergency.  The impasse between the parents was resolved by the respondent signing an informal undertaking, that he would be supervised at all times that he had X in his care.

6. The respondent also advised the applicant that he had an appointment for a hair follicle test on 7 April 2020.  However, on that day, the respondent’s solicitors sent the applicant’s solicitors a letter asserting that the respondent had not been able to undergo a hair follicle test at that day as he could not give a sample of sufficient hair length.  As previously mentioned, the matter came back before the Court on 8 April 2020, and the order was made requiring that all time spent between the respondent and X be supervised by either of the respondent’s parents.

7. The arrangement that followed from this time was for X to be in the respondent’s care from either 9 or 10 am on Monday, to 9 or 10 am on Wednesday in week 1, and 9 or 10 am on Saturday until 9 or 10 am on Thursday in week 2, continuation of a shared care arrangement between the parties.

8. Evidence was given by the applicant in relation to his observations regarding the state of health of the respondent. Bearing in mind that these parties had been in a domestic relationship together for a period of eight-and-a-half years, from 2009 to 2018, the applicant was making deductions based upon the physical appearance, skin colour and so forth of the respondent.  The respondent indicates that any observed abnormalities were in consequence of him suffering from psoriasis which he asserts causes a poor skin tone, and on occasion, causes him to appear to be agitated. 

9. The applicant asserts that he only has a moderate weekly intake of alcoholic drink, which includes one or two standard drinks per day only, on one or two days per week.  The applicant deposes that he does not use illicit drugs at all.  The respondent asserts that he works full-time, and can work remotely, but if he has to work away from home, he can place X in day care.  The applicant indicates that he works principally as a salesperson and that most of his work is conducted by phone from home.

10. The applicant provides quite a bit of evidence in relation to the physical relationship between the parties during the period of their cohabitation. He makes assertions against the respondent that would amount to serious family violence between them, though the exact circumstances in which this asserted sexual violence occurred cannot be the subject of any findings, as it is not detailed by the respondent, nor can there be any findings as to whether or not the actions asserted to have been taken against the respondent by the applicant occurred or not because the evidence given is contested. On the interim basis, the Court does not have sufficient or any other evidence to assist in making a finding on the side of either party.  It is contested evidence because the applicant gives specific evidence that he has never had sex without the express consent of the other person. 

11. Further in the respondent’s evidence, he makes an assertion that the applicant used cocaine, marijuana and Psilocybin (Magic Mushrooms) during the relationship, but he does not give evidence with any specificity to back up those general claims.  He said that he is unaware if the applicant still uses those substances.  I cannot give that evidence any weight. 

12. The respondent asserts that during the relationship, the applicant drank “one to two bottles of alcohol per night”, but once again, the evidence does not rise to any weight because having made that assertion, and on the assumption (and I am not being in any way sarcastic or ironic, I am dealing with the evidence) that the one to two bottles of alcohol drunk per night was not liquid pure alcohol, without giving the nature of the bottles drunk, it does not assist the Court in any way.  It could have been one to two small bottles of low-alcohol beer, or it could have been one to two bottles of some far more potent alcoholic substance.  Accordingly, no weight can be given to that evidence.

13. The respondent relied on the affidavit of his mother, Ms C, dated 4 May 2020.  Ms C indicated that she is 61 years of age and that she provides care for X on Mondays and occasionally on other days, and that she has never been aware of her son, the respondent, being under the influence of drugs.  The respondent also proffered to the Court at the interim hearing an affidavit prepared by his solicitor, Ms Lama, and while the contents of that affidavit were proper, they went to the issue of the respondent’s asserted inability to undergo hair follicle testing in accordance with the orders made by the Court on 23 March 2020. Whilst I have taken that evidence into consideration, it does not further the matter beyond the evidence of the parties themselves and the admitted fact on the part of the respondent, that he did not undergo the hair follicle testing in compliance with that order and, in fact, did not undergo hair follicle testing by providing a sample until 23 April 2020.

14. In relation to the exhibits entered in the matter, exhibit A1 was material produced on subpoena by Dr P.  Quite a deal of reliance was placed on this material by the applicant in relation to the matter, in that the material revealed various sexually-transmitted illnesses affecting the respondent at various times.  In very short summary, and so as to indicate that the evidence relied on with some emphasis by the applicant has been considered, I note:

    a)The notes of 15 February 2019 in relation to prescription of penicillin for the respondent suffering from a syphilis infection;

    b)20 May 2019, the respondent consulted Dr P in relation to occasional anxiety;

    c)29 May 2019 the respondent reported a recent syphilis sexual contact.

15. On 24 July 2019, the respondent sought a mental health plan so that he could see someone about excessive drug use (recreational drug use), and his need to reduce that use, as it was “getting out of hand”.  That was the occasion of the referral to G Psychology and provision by the doctor to the respondent of a mental health treatment plan. 

16. On 14 August 2019, the respondent again consulted the doctor and indicated he required a PrEP prescription and a sexually-transmitted infections screening, the consultation indicating connection with a sexual partner in circumstances where he was not sure if sexually‑transmitted illness, including HIV, could have been passed onto him.  On 28 August 2019, the respondent consulted the doctor and indicated that he thought he may have been infected with syphilis, and requested treatment for other sexually-transmitted illnesses, gonorrhoea and chlamydia.

17. 13 September 2019 was when the respondent attended the doctor for the purpose of undergoing the urine drug test.  On 20 September 2019, the respondent again requested that he undergo a urinalysis drug screen.  On 4 November 2019, the respondent saw the doctor and requested a prescription for Modifinil to help him with methamphetamine addiction.  He asserted that he had been two weeks clean, but found it difficult.  He also requested an STI screening and prescription for PrEP. 

18. On 5 November 2019, the medical practice received the results of the respondent’s syphilis test, and noted that per treatment previously administered, the respondent had had a good response to treatment.  On 5 December 2019, the respondent consulted the doctor in relation to a mild anxiety attack caused by what he asserted were legal issues relating to his ex-partner.  On 10 January 2020, the respondent attended the doctor and notified that he had had sexual contact with someone who had syphilis, and requested a test. 

19. On 15 January 2020, the respondent attended the doctor, disclosing, that he had been informed that he had had sexual contact with someone suffering from gonorrhoea, and requested a test.  On 2 March 2020, the respondent attended the doctor and informed that he had had sexual contact with someone who he was advised was HIV-positive.  The exhibit also contains a copy of a letter dated 10 February 2020 from Mr Q, the therapist consulted by the respondent in relation to his drug misuse problems, addressed to Dr P, advising Dr P that the respondent had had ten sessions with Mr Q for substance abuse disorder, and that he, “had some lapses”.

20. Exhibit A2 was the material produced on subpoena by G Psychology and, in particular, a note on 6 August 2019 in relation to the respondent that:

    The weekend before last was the last time he used

    a reference to methamphetamine and/or GHB.

21. Exhibit A3 was the print of SMS messages between the applicant and the respondent.  As I have said, I have read and carefully considered all of that material, and it does not assist me in this matter.

22. Exhibit A4, the material from Region H Pathology Service, in relation to the applicant’s CDT test on 8 May 2020, showing a result of less than 2.2 per cent which is a result indicating non-alcohol abuse.

23. Exhibit R1 is the respondent’s tender bundle consisting, in part, of S Bank statements for the applicant’s account, and in the case outline document prepared for the respondent by his solicitor/advocate on page 8, there is a summary of the amounts relied upon as indicating that the applicant is an habitual user of large volumes of alcohol consequent upon the assertions that the bank statements show an inordinate expenditure.  There is no analysis of what the expenditures relate to – the expenditures could be sums of money spent on a large volume of alcohol, or they could be sums of money spent on a very small volume of alcohol, depending on the nature of the alcoholic drink bought, whether it is expensive wine, very expensive Scotch or cheap throw-away wines is not known.

24. I do not accept that the evidence presented in the exhibit R1, as referred to in the submissions made on behalf of the respondent, establishes that the applicant presents a risk to X by reason of abuse of alcohol.

25. Exhibit R2 is the CDT factsheet, and the only information there of any relevance is that regular heavy drinking is considered to be the consumption of six or more standard drinks on most days of the week for a period of two weeks.  It also indicates that CDT tests, as is well known to the Court, is not a test of perfect accuracy, but is known to give a range of false positives, as they are known.

26. Further in relation to the evidence in exhibit R1 and the submissions made on behalf of the respondent, I note that the applicant’s main occupation is working as a salesperson, and there is no evidence to indicate if any of the expenditures pointed to are in consequence of his line of work.

27. When the Court is considering parenting matters, the Court is required to follow what is known as the legislative pathway, as set out in the Act. What is required of the Court in following the legislative pathway was authoritatively stated by the High Court of Australia in MRR v GR (2010) 240 CLR 461, and had been commented upon with great authority by the Full Court of the Family Court of Australia in Goode v Goode (2006) FLC 93-286, and then again in Marvel v Marvel (2010) 240 FLR 367.

28. The Court must give attention to section 60B of the Act which sets out the objects of part VII of the Act that relate to parenting and children, and also sets out the principles that underlie those objects in this matter. I have considered those objects and the principles behind the objects.

29. Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. The child’s interests are not the only consideration. The parents and other persons, especially partners and extended families, are almost always relevant in the matter, but the child’s interests must always be the paramount consideration.

30. In determining what is in a child’s best interests, the Court must consider the matters set out as the primary considerations and additional considerations in section 60CC of the Act and make appropriate findings. Section 61DA provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply in circumstances where a parent has perpetrated family violence or abuse, and a presumption when applied may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child’s parents to have equal shared parental responsibility.

31. When the Court is considering parenting matters on an interim basis, as here, the presumption applies, unless the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making the order. Pursuant to section 65DAA of the Act, if the parenting order provides that a child’s parents are to have equal shared parental responsibility, then the Court must consider whether the child spending equal time with each parent would be in the best interests of the child, and consider whether the child spending equal time with each parent is reasonably practicable, and if both questions are answered ‘yes’, the Court must consider making an order to provide for the child to spend equal time with each of the parents.

32. If the Court does not make an order for the child to spend equal time, the Court must then go on to consider whether the child spending substantial and significant time with each of the parents is in the child’s best interests, and consider if such is reasonably practicable, and if the answer to both is ‘yes’, the Court must consider going on to make an order that the child spend substantial and significant time with each of the parents.

33. What is meant by ‘substantial and significant time’ is set out in subsection (3) of section 65DAA. If the Court does not make an order that the child spend equal time or substantial and significant time with each of the child’s parents, the Court must then go on to determine what parenting orders are proper to be made in the best interests of the child, as required by section 65D. As to what is proper, I note the comments of the Full Court of the Family Court of Australia in Grella & Jamieson [2017] FamCAFC 21, at paragraph 18:

    It is a discretionary judgment concerning parenting orders necessarily involves because of the focus upon the future, significant elements of value judgments, assumptions, necessarily uncertain predictions and intuition.

34. There is no requirement that the Court consider the question of the best interests of the child under section 60CC, the matters dealt with in section 61DA, as to parental responsibility, and in section 65DAA as to equal time or substantial and significant time, in any particular order, though in Starr v Duggan [2009] FamCAFC 115, the Full Court, at paragraph 38, suggested:

    The useful approach is to first make findings in relation to the considerations set out in section 60CC, so far as they are relevant, then to consider in the light of those findings under section 60CC, how or if and how an order is to be made relating to parental responsibility, and then to consider the matters under section 61DAA relating to equal time or substantial and significant time, and if neither is determined to be in the child’s best interests, to go on to determine what parenting orders are proper to be made in the child’s best interest.

35. That whole process involves a process of judicial discretion, and I am cognisant of what fell from the High Court of Australia in the joint judgment at paragraph 32 in Bondelmonte v Bondelmonte [2017] 259 CLR 662.

36. A detailed exposition of the treatment of risk in parenting matters can be found in the High Court’s decision in M & M (1988) FLC 91-973, and in the decisions of the Full Court of the Family Court of Australia thereafter in A & A & the Child Representative (1998) 22 Fam LR 259, particularly at paragraphs 3.23 to 3.25; Napier & Hepburn (2006) FLC 93-303; Johnson & Page [2007] FLC 93-344; Deiter & Dieter [2011] FamCAFC 82, particularly at paragraph 61; and Eaby & Speelman [2015] FLC 93-654, particularly at paragraph 19.

37. I bear in mind all of those decisions and what is said by both the High Court of Australia and the Full Court of the Family Court of Australia in relation to the Court’s process, in cases where risk is asserted of making findings as to whether or not there is a risk to the child, the subject of the proceedings, in relation to either parent.  If there is a risk, whether or not that risk is an unacceptable risk, and if it is found to be an unacceptable risk, whether or not orders can be made that mitigate that risk so as to render it safe for orders to be made for the child to continue a relationship with whichever or both parents in circumstances of a risk.

38. In these interim proceedings, as so often, where there is contested or conflicting evidence, the Court is rarely in a position to make a finding in relation to the truth, or otherwise, of either party’s assertions on a contested basis. Nevertheless, the Court must perform its function, and in the light of the evidence and bearing in mind that the best interests of X are the paramount consideration, the Court must go on to make what orders it determines to be proper and in X’s interest.  As the Full Court of the Family Court said it Keats & Keats [2016] FamCAFC 156 at paragraph 9, in respect of the conduct of interim proceedings:

    … the principles that emerge from the cases such as SS & AH [2010] FamCAFC 13 are namely that apart from relying upon the uncontroversial or agreed facts, the Judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.

1. I turn now to section 60CC and the primary considerations, which are the benefit to X of having a meaningful relationship with both of his parents, and any need to protect X from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. X has a meaningful relationship with both of his fathers. On the evidence, it is easy to find, based upon X having been in the joint care of the parties, with one very short hiatus, both before they separated and after separation, on an equal care basis, that X has a close and loving relationship with each of the parties.

2. The case is presented before the Court as a risk case.  It is presented before the Court as a risk case by the applicant consequent upon the respondent’s misuse of illegal drugs, and in particular, ice, whatever the drug, GDH, may be, and perhaps other amphetamine or methamphetamine substances. The respondent admits misuse of methamphetamines, and admits use of whatever the drug, GDH, may be.

3. The matter is presented before the Court by the applicant as a risk case, consequent upon what he asserts is social practice on the part of the respondent of conducting a sex life with random partners, a number of which have led to either a transmission of sexually-transmitted infection or have led the respondent to fear or suspect that such connection has caused sexually-transmitted infections.

4. The matter is also presented before the Court by the applicant as a risk case for X, consequent upon his assertion that premises occupied by the respondent from the time, I can infer, when he was pursuing a relationship of some nature with Mr N, asserted by the applicant to have been in a filthy and unsuitable condition.  Whether they were in that condition when X was there (if they were in that condition at all), is not open to any finding by the Court on the basis of the contested evidence. 

5. The matter is presented before the Court by the respondent as a risk case in his assertion that the applicant presents a risk to X by reason of what the respondent asserts is the applicant’s abuse of alcohol.  By inference, the matter is also presented before the Court as a risk case by the respondent by reason of what he asserts is the applicant’s sexual treatment of the respondent during their relationship, and the inference he raises therein that the respondent is not empathetic and not a person who concerns himself with the health, safety and comfort of others when pursuing his own wants and needs.

6. I can say shortly and deal with that, that that case is not made out.  I will also say – and shortly, that a case asserted by the respondent against the applicant in relation to misuse of alcohol is not made out on the evidence.

7. The case presented by the applicant that the respondent is a person who has of recent years engaged in misuse of illegal drugs, including the extremely dangerous drug, ice, which can present horrific dangers to a user and anyone coming into contact with him, from the time of a first use, is a use that is admitted by the respondent.  That does present a risk to X.  It presents a risk that gives rise to a need to protect X from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence in consequence of any affectation of the respondent by illegal drugs at any time when X is in his care.

8. However, on the evidence, the respondent has taken a number of positive steps to address his drug use, and particularly methamphetamine misuse problem, and orders can be made that appropriately mitigate the risk to X consequent upon the respondent’s issue with misuse of illegal drugs, so as to allow X to pursue his relationship with the respondent on a normal basis, despite the unacceptable risk to X presented by that misuse of illegal drugs by the respondent.

9. Those appropriate mitigating orders revolve around the respondent engaging in hair follicle testing on a regular basis, and provision by the respondent to the applicant of the results of those tests, and orders being made that provide consequences in the event of a test showing positive for misuse of drugs, that order being one that would result in the requirement that all time that the respondent spends with X be supervised by one or both of the respondent’s parents until such time as the respondent has provided sufficient further proof of being clean and clear of the use of illegal drugs.

10. I find that a case asserted by the applicant against the respondent of the respondent residing in premises that are unsuitable for the reception of X is not made out on the evidence. 

11. The risk asserted by the applicant against the respondent in relation to X being in the respondent’s care in consequence of the respondent engaging in sexual activity with random partners and thereby being exposed to, and on occasions infected with, sexually transmitted illnesses, is not a matter that presents immediate risk to X.  There are, in Australian society, many parents who live with HIV positive status, or hepatitis B, hepatitis C and other infectious illnesses who, day by day, effectively parent their children and present no risk to their children of transmission of those illnesses;  the transmission of those illnesses requiring certain circumstances to pass from affected person to unaffected person.

12. Though the evidence establishes quite clearly – and the evidence I refer to presented in the applicant’s case, is evidence provided by the respondent in relation to his consultations with Dr P – that the respondent does engage in random sexual acts with persons from whom he can and does receive infection, I also find on the evidence that there is no indication that there is any conduct on the part of the respondent that would present circumstances for the transmission of any of those illnesses to X.

13. Further to that, the evidence shows that conducting his social life in the manner in which he chooses – and he is entitled to choose without any judgment from this Court – also leads to the respondent making frequent and appropriate consultations with his medical advisors to address any issues arising therefrom.

14. Accordingly, in relation to the primary considerations, I find that, in relation to X being in the care of the respondent, there is a risk consequent upon the respondent’s use, at times in the past two years, of illegal drugs.  I find that such risk is of its nature, and particularly, when methamphetamine and ice is mentioned and raised as drugs used, an unacceptable risk to X, but I find that that unacceptable risk can be addressed by appropriate mitigating orders.

15. In relation to the additional considerations, X is three years of age; not old enough to be expressing views and wishes, and any views or wishes that he may express at that age, or indeed until he comes to the cognitive age for humans at about eight years of age, would not carry any weight with the Court, but if made would only be indicators that assist the Court with assessing the nature of the relationship of the child with a parent.

16. I have already made comments about the nature of the relationship of X with each of his parents, and it is inherent in the proposals of each of the parents that they, not so much concede, but they are in full knowledge of the close and loving relationship X has with each of the parents.  The duration of time to be spent by X with each parent on both proposals make it obvious that the nature of the relationship is accepted by each and needs to continue, subject to appropriate orders to address risk.

17. Another additional consideration of relevance is any likely effect of any change in X’s circumstances, including the likely effect on X of any separation from either of his parents.  In that regard, for all of his life, X has been used to being cared for, at first, by both of his fathers from his birth in 2017 until January 2018, and thereafter by each of his fathers on an equal time basis.  Any change in that arrangement may be unsettling for X, who is still in – though toward the upper end of – the age bracket where attachment is a very important part of his own personal and personality development.  Too much of a change in the ratio of care of X between his fathers can be destabilising to that process.

18. The proposal of the applicant that X be in the respondent’s care from Monday to Wednesday in one week, and from Friday to Monday in the next week – that is five nights out of 14 – is less than what X has been used to since the parties separated, but is still what would come within the definition of substantial and significant time for X with each of his parents.  That proposal by the applicant recognises – and appropriately recognises in a child focused manner – the nature and extent of the meaningful relationship between X and the respondent.

19. The same has to be said in relation to the proposal of the respondent as to the time X should be in his care, because the corollary is that he is in the applicant’s care for the rest of the time, which necessarily recognises the nature of the relationship between X and the applicant.

20. I find there is no evidence before me that gives rise to any necessity to consider any practical difficulty or expense in relation to X spending time with or communicating with either of his parents.

21. The question is raised by the applicant in relation to the respondent’s capacity to provide for the needs of X, including his emotional and intellectual needs, centring around his evidence in relation to the state in which, on one occasion, he found the premises occupied by the respondent, though I have already made comment in relation to that, and I find that that does not ground any finding against X continuing to spend time with the respondent on the equal care basis.

22. The matters raised in relation to risk by the applicant against the respondent, going to drugs and so forth of course, affect – and seriously affect – the respondent’s parenting capacity in any circumstance where he again makes use of those illicit drugs.  At this point in these reasons I will make it very plain that, if in the future there is evidence before the Court upon which the Court makes a finding that the respondent has slid back into drug use – occasional, habitual or in any manner, particularly abuse of methamphetamines – then the consequences for the relationship between X and the respondent, the consequences for the duration of time that X can spend in the respondent’s care, will be serious and probably damaging to their relationship, and, in that sense, would be nothing short of tragic.

23. The respondent stands suitably warned, and I hasten to say that that serious warning is in no way an assertion that the respondent has slid back into misuse of drugs or ever intends to, but in consequence of his own evidence, it is a warning that, in X’s best interests, needs to be delivered.

24. On the basis of the conflicting evidence of the parties in relation to the assertions of family violence, I find that in all the circumstances presented by the evidence, it is not reasonable, on this interim basis, to make a finding that there has been family violence between the parties. There is no evidence of there being now, or having been, any family violence order applying that affects either the parties or X.

25. After consideration of the primary and additional considerations, I find that it is in X’s best interests that he be given an opportunity to continue his meaningful relationship with each of his fathers, with his relationship with the respondent being subject to appropriate orders to mitigate what I have found to be an unacceptable risk posed to X in the respondent’s care in consequence of accepted evidence in relation to misuse of illicit drugs by the respondent.

26. From the time of X’s birth, and in consequence of the parties being X’s parents for the purposes of the Act, each has parental responsibility for X, pursuant to section 61C of the Act. The presumption in section 61DA that it is in X’s best interests that his parents have equal parental responsibility for him applies in these proceedings on the interim basis, and I have found there are no reasonable grounds to believe that a parent has engaged in abuse of X, or another child who is a member of the parent’s family, or family violence.

27. I find that it is appropriate in the circumstances of this matter for the presumption to apply at this interim stage, and in consequence I will make an order in pursuance of section 61DA that the parties have equal shared parental responsibility for X. As I will make that order, I am required to consider the matters in section 65DAA, and I have indicated what those considerations are. The orders proposed by the applicant in relation to the time to be spent between X and the respondent, amount to time within the definition of substantial and significant time. The time to be spent by each of the parties with X, pursuant to the orders proposed by the respondent, amounts to X spending equal time with each of his parents.

28. I find on the basis of all of the evidence, and given the course of care that has been conducted between the parties on a voluntary basis from their separation from the start of January 2018 through to the interim hearing, that it is in X’s best interests that he spend equal time with each of his parents. I also find that it is reasonably practicable for X to spend equal time with each of his parents in consequence of that having been the circumstance from January 2018 through to the interim hearing.

29. Accordingly I will make the orders as sought by the respondent in relation to X spending equal time with each of his parents, and those orders will be accompanied by appropriate orders mitigating the unacceptable risk I have already adverted to.  In the event that pursuant to orders, circumstances arise where the time between the respondent and X is required to be supervised, I find that X’s grandparents – being the respondent’s parents – are appropriate persons to either or both supervise that time.

30. In relation to matters raised as risk that I have found do not present a risk to X – in particular, I am referring to the respondent’s assertion against the applicant in relation to misuse of alcohol – I note that in the course of submissions made on behalf of the applicant by his solicitor advocate, Mr Jones, I inquired as to whether or not the applicant had anything to say against an order being made in the nature of a no affectation by alcohol so as to be over the .05 legal limit, in the parlance, while X is in his care. I was advised by Mr Jones that the applicant consents to such an order.  It is only on that basis that I will include that order on the interim basis, and that order will be applicable to both parties equally.

31. Accordingly, I make the following orders.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Morley

Associate:

Date: 10 December 2020