Phut and Tang

[2017] FamCA 385

FAMILY COURT OF AUSTRALIA

PHUT & TANG [2017] FamCA 385

FAMILY LAW – CHILDREN – Interim parenting-Best interests-where the mother’s drug use has not been addressed-where the mother’s recent drug test results have returned positive for illicit substances-where the mother lacks insight into the possible effects of her drug use on the children-where the mother’s parenting capacity and ability to respond to the children’s emotional, intellectual and schooling needs are at issue- where the mother has failed to attend family therapy-where the children have expressed a wish to live with the father-change in the children’s circumstances-whether the children should spend equal time with the parents-where the orders provide for the children to spend significant time with the mother-where the orders provide for the children’s time with the mother to be supervised by either the children’s maternal or paternal grandmother if the mother’s drug test results are positive for illicit substances

Family Law Act 1975 (Cth)
Banks & Banks (2015) FLC 93-637 Goode & Goode (2006) FLC 93-286
APPLICANT:	Mr Phut

RESPONDENT: Ms Tang

FILE NUMBER: MLC 2445 of 2016

DATE DELIVERED: 1 June 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 25 May 2017 & 1 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Wilson

SOLICITOR FOR THE APPLICANT: Carew Counsel Solicitors

COUNSEL FOR THE RESPONDENT: Ms Hession

SOLICITOR FOR THE RESPONDENT: Lander and Rogers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mansfield

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Victoria Legal Aid

Orders

IT IS ORDERED THAT:

1. Paragraph 2 of the orders made 20 April 2016 be discharged as and from the commencement of school on Wednesday 14 June 2017.

2. Paragraph 7 of the orders made 19 October 2016 be forthwith discharged.

IT IS ORDERED BY CONSENT THAT:

1. The mother undergo hair follicle toxicology testing by the Victorian Institute of Forensic Medicine, such testing to take place on 28 June 2017 and the last Wednesday of each alternate month thereafter, with the testing to be at the mother’s expense and the results of those tests to be forthwith provided to the solicitors for the father and the Independent Children’s Lawyer.

2. The mother undergo random urine drug screens as directed by the Independent Children’s Lawyer within 24 hours of receiving a request in writing to do so, such testing to be at the mother’s expense and the results of those tests to be forthwith provided to the solicitors for the father and the Independent Children’s Lawyer with the first test to be requested by 30 June 2017 and at least monthly thereafter.    

IT IS ORDERED THAT:

1. Until further order the children B born … 2005 and C born … 2007 (“the children”) live with the father.

2. Until further order the children spend time and communicate with the mother as follows:

   (a)during the school term each alternate weekend from after school Friday to 6.00 pm Sunday commencing 23 June 2017 and each alternate week thereafter;

   (b)from after school to 7.00 pm Tuesday commencing Tuesday 20 June 2017 and each alternate week thereafter.

3. Until further order the time the children spend with the mother pursuant to paragraph 2 and 3 of the orders made 20 April 2016 and paragraph 6 of these orders be supervised by either of the children’s paternal or maternal grandmother save and except that in the event  that both the hair follicle toxicology test undertaken by the mother on 28 June 2017 and the random urine drug screen requested by the Independent Children’s Lawyer prior to 30 June 2017 are negative for any illicit drugs, the time the mother spends with the children shall thereafter be unsupervised time.

4. In the event that the results of any further hair follicle toxicology test undertaken by the mother pursuant to paragraph 3 of these orders or any random urine drug screens requested by the Independent Children’s Lawyer are positive for any illicit drugs, the children’s time with the mother shall thereafter be supervised by either of the children’s paternal or maternal grandmother until further order.

5. The father’s Application in a Case filed 5 May 2017 and the mother’s Response to an Application in a Case filed 18 May 2017 be otherwise dismissed and removed from the list of cases awaiting hearing.

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 Phut & Tang 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 2445  of 2016

Mr Phut

Applicant

And

Ms Tang

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This matter first came before me in a call over of cases awaiting final hearing on 1 May 2017. On that date, albeit that the matter was set down for a final hearing, the father indicated his intention to seek interim parenting orders based upon the recommendations of Ms D in the family report dated 20 April 2017. On that basis, I made orders for the father to file an Application in a Case and any affidavits in support of that application, for the mother to file her Response to that Application in a Case and any affidavits in reply and listed the matter for hearing in the Senior Registrar’s Duty List on 25 May 2017.  The Senior Registrar was unavailable to hear that matter and it was listed for hearing before me.

2. The father in this case is aged 46 years. He is a health professional in both private practice and as a consultant. The mother is aged 42 years and is a businesswoman.  The parties were married in 2004 and separated in January 2016.

3. The parties have two children, B born in 2005 (age 11) and C born in 2007 (age 10) who are currently in year six and year four respectively at E School.

4. The father commenced proceedings in March 2016 deposing at that time to his concerns with respect to the mother’s care of the children. The father summarised those concerns in his affidavit filed 5 May 2017 as follows:

   a)   The mother’s connections with associates involved in criminal activities;

   b)     The mother’s excessive socialising which included illicit drug taking and excessive drinking;

   c)     The mother’s inappropriate disciplining and name calling of the children; and

   d)     The mother’s physical aggression towards him in front of the children, which he says resulted in a Family Violence Intervention Order in his favour.

5. Although there is now little interaction or communication between the parties, the father’s concerns, in particular his concerns about the mother’s use of illicit drugs, remain a feature of this case and are reflected in the orders that have been made in the course of these proceedings. Although the mother alleges and the father concedes that he has in the past used illicit drugs, it is not the mother’s case that he is currently doing so and her complaint appears to be that his attitude to her drug use is in those circumstances, somewhat hypocritical.   

6. On 20 April 2016 interim orders were made by consent which included, inter alia, an order that the father and the mother have equal shared parental responsibility and that the children spend four nights per week with the father and three nights per week with the mother. It is the father’s case that the arrangement by which the mother’s time would commence at 10.00 am each Sunday was his way of ensuring that the children were not in her care on a Saturday night when he perceived there to be a greater likelihood of her being under the influence of illicit drugs.

7. The orders also provided as follows:

   8.The parents and each of them be in substantial attendance when the children are in their care.

   9.That the Wife be and is hereby restrained from being under the influence of and consuming alcohol to excess or any illicit substances during periods that the children spend with her.

   10. That within seven days the parties both undertake hair follicle testing for illicit substances at a venue agreed between the parties’ solicitors with the costs of the testing to be borne by the husband in the first instance and the ultimate responsibility to be determined by the Trial Judge.

   11.Pending the taking of a sample of hair for the purpose of Order 10, the parties be and are each hereby restrained from cutting or dying their hair or any part of it.

8. The parties also agreed to attend upon Ms D for the purposes of her preparing a family report.

9. In October 2016, following the release of Ms D’s first family report and the father having tested negative to the use of any illicit substances, the mother consented to an order requiring her to undergo a further hair follicle toxicology test at the Victorian Institute of Forensic Medicine on 30 January 2017 and at three monthly intervals thereafter. It was further ordered by consent that the wife be restrained from cutting her hair shorter than four centimetres from the scalp, dying or bleaching any part of her hair.

10. The mother does not dispute that she has returned a positive result for illicit drugs on each occasion she has been tested.

11. The mother also does not take issue with the evidence that notwithstanding the orders made in both April and October 2016, when she attended the Victorian Institute of Forensic Medicine in January 2017, the length of her hair was less than one and a half centimetres. It is the father’s case that the mother cut her hair in order to avoid the detection of illicit drugs. Whether or not that was the case, the test on this occasion was in any event positive for Cocaine, Benzoylecgonine, Cocaethylene, Norcocaine and Ecgonine Methyl Ester.

12. An updated family report was ordered by consent by Registrar Field on 1 March 2017. It was submitted by counsel for the mother that Ms D would not have known that there was going to be a final hearing when she completed her most recent report. Although I am not certain exactly what point counsel for the mother was making, it is in any event clear from Ms D’s family report that her understanding was that she was preparing her report to assist the Court in determining final parenting orders.   

13. The most recent hair follicle toxicology test was conducted on 26 April 2017. The mother tested positive for Cocaine, Norcocaine, Benzoylecgonine, Cocaethylene, Ecgonine Methyl Ester and Dextromethorphan and as submitted by counsel for the father, at significantly higher levels than those detected in January 2017.

14. Although Ms D has stated that the mother’s illicit drug use and its associated risks remain central to the case, she has also expressed concern about the mother’s parenting capacity and the mother’s ability to respond to the children’s needs. Ms D also referred in some detail to the children’s wishes, which she said need to be considered.

Legal Principles

Conduct of interim parenting proceedings

1. In this case the Court is being asked to make interim parenting orders. The paramount consideration when making a parenting order is the best interests of the child or children the subject of the proceedings (s 60CA of the Family Law Act 1975 (Cth) (“the Act”). In Goode & Goode (2006) FLC 93-286 at paragraph 82 (“Goode”) the Full Court set out the legislative pathway to be followed in cases such as this one.

16.The Full Court in Goode also observed at paragraph 68 as follows:

…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

1. Later cases have echoed the sentiment in Goode and addressed the nature of the Court’s process when making parenting orders on an interim basis. In Banks & Banks (2015) FLC 93-637 at paragraphs 48-50 the Full Court noted that

   …By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.

   …there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93–582.

   When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

2. Consistent with the authorities, I propose to focus my determination in this case on the considerations in s 60CC that are most relevant to determining the best interests of the children, prior to the final hearing in October 2017. Significantly in this case, although these are interim proceedings, there is a family report prepared for the purposes of the Court making final orders and the factual issues at least with respect to the mother’s positive drug test results are not in dispute and the need for her to cease her drug use is not in dispute.  

Parties’ Proposals

1. In his Application in a Case filed 5 May 2017, the father sought the discharge of paragraph 2 of the orders made 20 April 2016, which put in place the current regime of time with the children and that in lieu thereof, the children live with him and spend time and communicate with the mother each alternate weekend during school term from after school Friday to 6:00 pm Sunday and that paragraph 7 of the orders made 19 October 2016 be varied so as to require the mother to undertake hair follicle toxicology testing each alternate month, instead of every three months. He also sought an order that the mother be responsible for the cost of that drug testing.

2. The father did not seek to discharge paragraph 3 of the orders made 20 April 2016 which provided for the children to spend half of the school holidays with each parent.

3. At the hearing before me on 25 May 2017 the father sought an order that the mother undergo the next hair follicle toxicology test at the end of June 2017 and a random urine drug screen to be requested by the Independent Children’s Lawyer before the end of June 2017. It was the father’s case that in circumstances where the mother’s instructions to her counsel were that she had last used drugs in March of this year, the children could spend unsupervised time with her until the conclusion of term 2, but that from the conclusion of term 2 onwards, the children should not spend any unsupervised time with the mother until the results of both the hair follicle toxicology test and any random urine drug screen requested by the Independent Children’s Lawyer were negative for any illicit drug. This would, on his case, capture the upcoming school holidays. If the mother continues to test positive for any illicit drugs, either through the hair follicle toxicology test or a random urine drug screen, or if after returning a negative result thereafter tests positive for illicit drug use, the father proposes that the mother’s time with the children be supervised by either the paternal or the maternal grandmother to be the supervisor.

4. In the mother’s Response to an Application in a Case, she sought that the father’s Application in a Case be dismissed. The mother’s case was that the existing parenting arrangements continue in accordance with paragraphs 2 and 3 of the interim consent orders made 20 April 2016 and that it is premature for parenting arrangements to be altered now, in circumstances where there is a private mediation scheduled for 5 June 2017 and a final hearing fixed in October 2017. The mother was otherwise prepared to consent to an order requiring hair follicle toxicology testing each alternate month with those tests to be at her expense and random urine drug screens at the request of the Independent Children’s Lawyer. It was the mother’s case that if the Court deemed it necessary, she would try and make arrangements for either the paternal or maternal grandmother to be in substantial attendance during the time the children were in her care.  

5. The Independent Children’s Lawyer supported the father’s proposal for the reduction of the children’s time with the mother. However, the position of the Independent Children’s Lawyer was that it would be sufficient for either the paternal or maternal grandmother to be in substantial attendance rather than to require them to supervise the children’s time with the mother

Discussion

The mother’s drug use

1. Although I had some difficulty understanding the basis of the submissions made by counsel for the Independent Children’s Lawyer with respect to the risk to the children in this case, the tenor of the submissions of both counsel for the mother and the Independent Children’s Lawyer was that there was no evidence of any harm having been caused to the children in the mother’s care to date and that therefore, there was no unacceptable risk of harm to the children in her care.  While Ms D did concede that it might be that the mother’s drug use poses little risk to the children, in my view that statement must be considered in context. Ms D said as follows in her April 2017 family report at paragraphs 59 to 61:

   It may well be that [Ms Tang’s] drug use poses little risk to her parenting and the children but her inconsistent account and puerile responses create uncertainty about her capacity to accurately assess her behaviour, the impact of the drug use and her parenting. There is doubt about the after effects of the drug and her ability to be fully present and responsive to the children after drug use. It is not possible to gauge the frequency or amount of drug use. Her admission to drug use is inescapable (yet still defended) in light of the drug testing but otherwise her account of her lifestyle, drug use and parenting cannot be relied upon.

   In any event, [Ms Tang] seems to place her pleasure-seeking needs before those of the children. She indicated last year at the time of the first family report, her intention to cease drug use explaining her social life was a means of escaping an unhappy home situation. While she insists she is able to stop using anytime, there is little to suggest she has any intention of ceasing cocaine use.

   [Ms Tang] seems unconcerned and has little understanding of the possible impact of drug use on her parenting and possible risk to the children. She simply states there is no problem. It may be there is little risk but as a single parent, [Ms Tang] needs to be aware she is alone and solely responsible for the children’s care at all times they are with her. If she is under the influence, she may not be able to respond appropriately and effectively to the children especially in an emergency. [Mr Phut’s] claim and concern she is asleep before the children’s bedtime on Sunday may have substance. The children’s reports of her angry responses may be a result of drug use but there is no acknowledgement by [Ms Tang] of the inherent risk of drug use even to her own health…

1. As submitted by counsel for the father, the mother in her affidavit, consistent with what she told Ms D, sought to minimise the extent of her drug use and its possible impact upon her and/or the children, but did not otherwise take issue, in any real sense, with Ms D’s family report. To the contrary she deposed that she was “determined to immediately cease all drug use” and said that she “...now fully understand[s] the seriousness of my behaviour and am committed to doing whatever is required for the children’s best interests, which is my absolute priority.” I have a number of concerns about the mother’s evidence.

2. It was clear from Ms D’s first family report that the mother’s drug use was of significant concern to her so much so that it was her recommendation at that time that the children share their time with each parent provided that the mother undertake not to consume drugs or bring the children into contact with anyone with a known criminal history. Given that earlier report, the fact that the mother now deposes that she fully understands the seriousness of her behaviour does not leave me with much confidence that she does in fact appreciate the risk her behaviour may present for the children.

3. The mother’s evidence that she is determined to immediately cease all drug use is also of significant concern in circumstances where she had instructed her counsel that she had last used drugs in March 2017 and that her next drug test will be negative for any illicit substance. The parties attended upon Ms D on 28 March 2017 and there is no suggestion either by Ms D in her report or the mother in her evidence that she told Ms D that she had already stopped using drugs. The mother was unable to say on what date in March 2017 she last used drugs, but even giving her the benefit of the doubt and assuming that it was after she attended her appointment with Ms D, this would not explain why she did not depose in her affidavit that she had already stopped using drugs.

4. Finally I note that Ms D in her most recent report urged the mother to seek professional support by way of a qualified drug counsellor so as to address her drug use and as she pointed out, the use of illicit drugs on her behaviour and performance “may not be as innocuous as she believes”. Ms D went on to say that the mother “...seems to lack the insight or appreciation of how her drug use not only impacts her behaviour but the children’s experience of her. Without professional support the possibility of successful rehabilitation will be low.” Notwithstanding the clear and strong recommendations in Ms D’s family report and although that report was dated 20 April 2017, at the hearing before me on 25 May 2017, the mother had not sought or engaged with any professional support.

5. Ms D concluded in summary at paragraph 63 that the mother’s “...illicit drug use has not been sufficiently addressed to confidently recommend a maintenance of shared care”. Ms D not only recommended that given the mother’s “...reluctance to cease drug use, time with the children needs to be limited” but also unequivocally opined that the “...children’s time with their Mother should be conditional on her not consuming drugs.”

6. In my view, it does not follow that because the father’s criticisms of the mother’s care of the children in the context of her ongoing drug use are general in nature, rather than identifying a specific occasion or occasions where the children have been caused some harm as a direct result of the mother’s drug use, that there is no risk.

7. Counsel for the mother also submitted that the Court should not accede to the father’s application for supervised time in circumstances where the proceedings have been on foot for 15 months and he has not previously sought any orders making the children’s time with the mother conditional upon the mother being able to demonstrate that she is drug free.

8. Counsel for the Independent Children’s Lawyer similarly referred to the fact that the father has not previously put his case on the basis of the children’s time with the mother being conditional upon her being able to demonstrate that she is drug free. Whilst the way in which the father has conducted his case might be an indicator of his level of concern, it is ultimately the children’s best interests which are the paramount consideration and ultimately the Court is not bound by either party’s proposal in determining those best interests. 

9. I am not satisfied on the evidence before me that the mother has addressed her drug use. In those circumstances, although I do not propose to make the children’s time with the mother conditional upon her establishing that she is drug free, I am satisfied that I should, having regard to Ms D’s family report, adopt a cautious approach and subject to there being evidence that the mother is drug free, the time she spends with the children should be supervised. In these circumstances, I do not accept counsel for the father’s submissions that the children should spend unsupervised time with the mother pending the completion of her next hair follicle toxicology test on the basis of the mother’s assertions that she has been drug free since March of this year. To allow unsupervised time with the children, would in my view, ignore the evidence of the mother’s ongoing drug use and the issues associated with it. 

10. I am also not satisfied that it would be in the children’s best interests to continue the current regime of time with the mother, even if that time is to be supervised time, pending either the mediation scheduled for early June 2017 or the final hearing of this matter in October 2017. To do so would, in my view, not only ignore the issues associated with the mother’s ongoing drug use but also the concerns with respect to her parenting generally.

The mother’s parenting capacity and responsiveness to the children’s needs

1. Ms D referred in some detail in her updated family report to what she said the children perceived to be the difficulty the mother had in gauging their needs and her responsiveness to those needs. She described the children’s relationship with the mother, contrary to the mother’s description of a harmonious and happy household, as “fraught with a level of tension, conflict and emotional insecurity”. Ms D also raised concerns about the mother’s capacity to support the children’s intellectual and schooling needs in circumstances where the children reported feeling stressed with their mother, who fails to prioritise and offers little support with their homework. 

2. Ms D also referred to the children’s concerns about the mother’s attitude towards their relationship with the father, in particular to the mother not allowing them to contact the father when they are in her care. Ms D observed that

   [w]hile [the children] can enjoy their time with their Mother, living with her creates a level of anxiety and distress for them and her inability to prioritise their needs and share in their lives is beginning to impact on their perception of and relationship with her.

3. In contrast, Ms D observed that while the children see each of their parents as important and significant in their lives and there are some rewarding aspects of their relationship with the mother,

   their Father provides them with a strong sense of safety, security and stability. It appears he is organised and responsive to the children which reinforces their confidence in him. The children rely on and trust him. Whilst the children love their mother they perceive her as unreliable and not as responsive to their needs particularly [B] who is a conscientious girl and prioritises work and responsibility very much like her father with whom she appears to have a close emotional bond.

4. I am satisfied that the level of stability the father provides for the children and his commitment to their needs is likely to be of even greater significance given C’s particular needs. The father deposed in relation to this issue as follows:

   I have also recently had an appointment with the Speech Pathologist, [Ms F] regarding C. There are significant concerns regarding her literacy and concentration which were raised and will need consistent assistance with homework from the Speech therapist as well as from school. This is with a background of her having auditory processing disorder and inattentive attention deficit disorder (ADD). These learning difficulties are significantly impacting both on her academic studies and her socialising at school.

5. Not only does the mother not take issue with the father’s evidence in relation to this issue, she also does not take issue with his evidence as to her failure to actively take an interest in the children’s schooling, attend school events generally or in particular those events identified by the father during the second half of 2016. Although the father concedes that the mother has started to make more of an effort to attend school events, he questions whether, given the history, this is likely to last. 

The mother’s failure to attend family therapy

1. The father is also critical of the mother’s failure to attend upon Ms G for family therapy as agreed. He deposes to having attended upon Ms G on at least seven occasions and that it was his belief that the mother had only attended on one occasion. The mother for her part did not dispute that she had not attended upon Ms G as agreed. However she told Ms D that

   she was unable to continue with [Ms G] because she had financial difficulties. She explains she went to her GP for a Mental Health Plan but he was away for several months and by the time she was able to see him again she says ‘I didn’t think I needed it’ because she is ‘doing OK now’.

   She also said that she did not consider that it was necessary to attend upon Ms G “until her lawyer explained the necessity which appears to have been different from what she understood was the purpose of the counselling.” In my view, the mother’s explanations (assuming that they are accurately reported by Ms D) and the fact that the mother does not take issue with either the father’s evidence or Ms D’s family report in relation to this issue, raises more questions than they answer. 

Children’s Wishes

1. Ms D reported that the children had “expressed a clear wish to live with their Father.” She described the children as “unguarded in interview, their responses seemed to be their own without undue influence of either parent” and she concluded that “in the context of the information provided, their wishes need to be considered and given weight.” Whilst the children’s wishes are just one of the matters the Court must consider, when viewed in the context of the secure and close relationship the children have with the father and in circumstances where, as reported by Ms D “...they have confidence in him and rely on him for all of their emotional and physical needs”, I am satisfied their wishes should be afforded significant weight.   

What orders would be in the children’s best interests?

1. I am satisfied that in all of the circumstances, having had regard to the evidence as to the mother’s ongoing illicit drug use, her inability to prioritise the children’s needs and make child focussed decisions, the children’s emotional and physical reliance upon the father and their wishes, that the time the children spend with the mother should be reduced as proposed by the father. However,  I am also satisfied that an order for some mid-week time in the alternate week would also be in their best interests and would be likely to reduce any possible negative impact that there might be upon the children as a result of them spending less time with the mother.

2. Each of the parties have already made arrangements for the children for the next two weekends and in those circumstances agreed that if orders were to be made reducing the children’s time with the mother, the current regime should continue until the conclusion of the children’s time with the mother on 14 June 2017. I propose to order accordingly.   

3. As previously referred to in these reasons, I am satisfied that it is in the children’s best interests for the time they spend with the mother to be supervised and I am satisfied that although the current regime is to remain in force until 14 June 2017 the supervision of the children’s time with the mother should commence immediately. In the event that the results of the drug tests the mother will be taking prior to the end of June 2017 are negative for any illicit drug, as she says they will be, the orders will provide that the mother spend unsupervised time with the children. Any further positive test will require a return to supervised time until further order.

Changes in the children’s circumstances and whether the children should spend equal time with their parents

1. Pursuant to the orders made 20 April 2016, the parties have equal shared parental responsibility for the children. On that basis, I am required to consider whether it would be in the children’s best interests and reasonably practical for the children to spend equal time and if not equal, substantial time with each of their parents. The previous orders provided for the children to spend substantial time with the mother. Although the interim orders I propose to make will reduce the time the children spend with the mother, I am satisfied those orders will still allow the children to spend significant, if not substantial, time with the mother. The time the children spend with the mother will include days that fall on weekends and holidays and mid-week time, and will allow the mother to be involved in the children’s daily routine. I am not satisfied that continuing the existing regime of time would be in the children’s best interests at this time.  

Conclusion

1. In all of the circumstances, I propose to accede to the father’s application and vary the arrangements for the children’s time with the mother and will include an order for random urine drug screens as proposed by the Independent Children’s Lawyer. 

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 1 June 2017.

Associate: 

Date:  1 June 2017