RAEBURN & RAEBURN

[2020] FCCA 1112

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAEBURN & RAEBURN [2020]FCCA 1112

Catchwords:
FAMILY LAW – Interim parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 121, 60B, 60CA
Evidence Act 1995 (Cth), s.136

Banks & Banks [2015] FamCAFC 36
Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCA 240
Eaby & Speelman [2015] FamCAFC 104; (2015) FLC ¶93-654

Applicant: MS RAEBURN

Respondent: MR RAEBURN

File Number: SYC 3560 of 2019

Judgment of: Judge Newbrun

Hearing dates: 26 March 2020

Date of Last Submission: 26 March 2020

Delivered at: Parramatta

Delivered on: 8 April 2020

REPRESENTATION

Solicitors for the Applicant: Mr Frakes of Watts Mccray (NSW) Pty Ltd

Solicitors for the Respondent:	Ms Blake of Blumberg Family Lawyers
Counsel for the Respondent	Ms C Petrie
Solicitors for the Independent Children’s Lawyer	John Spence & Associates
Counsel for the Independent Children’s Lawyer	Mr Maddox of Counsel

PENDING FURTHER ORDER THE COURT ORDERS:

1. That all previous parenting orders regarding the children X born in 2007 and Y born in 2011 (“the Children”), be discharged.

2. That the children X (born in 2007) age 12 and Y (born in 2011) age 8 ("the children") live with the mother.

3. That the children spend time with the father as agreed between the parties or as follows:

   (a)Each Saturday from 9am to 8pm.

   (b)Upon completion by the father of three consecutive clean chain of custody drug screens, from 27 June 2020 each Friday from afterschool, or 3pm in the event that the children are not at school, until 8pm Saturday.

4. That the time that the father spends with the children in accordance with Order 3 shall be supervised at all times by either the paternal grandmother Ms A and/or the paternal grandfather Mr B or such other person as agreed between the parties in writing.*

5. For the purpose of Order 3, changeover shall be affected as agreed or by the person/s providing the supervision collecting the children from, and returning the children to the mother's residence.

6. That upon completion of further three consecutive clean chain of custody drug screens, from 27 September 2020 the children spend time with the father as agreed between the parties or as follows:

   (a)Week 1: from afterschool Friday to before school Monday, or 3pm Friday to 9am Monday in the event that the children are not at school; and

   (b)Week 2: from after school Wednesday to before school Thursday, or 3pm Wednesday to 9am Thursday in the event that the children are not at school.

7. That upon completion of a further three consecutive clean chain of custody drug screens from 18 December 2020 the children live with each of the parties in a week about with the changeover time to be Sundays at 6pm.

8. That the father shall be at liberty to communicate with the children, when they are not in his care, by telephone including Facetime each Sunday and Tuesday nights between 6.30pm and 7.30pm.

9. That the father shall do all things necessary to ensure the return of the children to the mother's home at the conclusion of the father's time.

10. That in the event of childhood illness or emergency the parent with whom the child or children are with, contact the other parent forthwith to inform them.

11. That each of the parties, their servants and agents be hereby restrained by injunction from:

    (a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and

    (b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, or any of them, and from permitting any other person to do so.

12. That both parents be permitted to liaise directly with the children's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children's progress.

13. That each party is at liberty to attend at the said children's school for the purposes of any function or activity normally attended by parents.

14. That in the event that the results of the tests set out in orders for hair testing or urinalysis set out below test positive for any illicit substance, the father’s time with the children is suspended.

15. That the ICL have liberty to relist the matter on 7 days notice to the parties.

16. The Father is restrained by injunction from consuming any illegal drugs, or non-prescription drugs including but not limited to amphetamines, methamphetamines or cannabis.

17. That within 7 days of a request to the father or his solicitor by the ICL, the Father make an appointment any attend for hair collection at an Australian Workplace Drug Testing Services (AWDTS) Clinic or nominee for hair drug testing purposes. Collection is to be conducted by a qualified and certified collector. Chain of custody procedure is to be applied to the sample. Testing is to be conducted an approved laboratory accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this Order:

    17.1The Father is required to maintain his head hair at a length not less than 4 centimetres. Neither head hair or body hair is to be cut, bleached or dyed between the date of this Order and the time of collection of the hair;

    17.2    Within 7 days of the request by the ICL, the Father is required to make an appointment with AWDTS by telephoning 1300 378 483 for the purpose of providing a hair sample for hair drug testing purposes;

    17.3Each party or their legal representative is at liberty to provide AWDTS with a copy of these orders;

    17.4The Father is to attend at an AWDTS clinic or nominee and submit to the supervisor a collection of a hair sample at the earliest available appointment within 7 days of the date of these orders;

    17.5The Father is to provide the collector with photographic identification to be recorded before each hair collection and authority, with this order hereby authorising AWDTS or nominee to provide the results of each tests to the Father and Mother’s legal representative and the Independent Children’s Lawyer upon receipt of such test results;

    17.6The hair drug test may screen for drugs of abuse including amphetamine type substances, and metabolites, cannabis and metabolites and any other drug specified in this Order as required;

    17.7AWDTS is required to utilise the testing services of an appropriate laboratory to conduct hair testing to the recognized international standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with international society of Hair Testing (SoHT) guidelines, cost, and time required for results to be made available;

    17.8The costs of the hair testing is to be met by the Father

    17.9The Father is only required to submit to hair drug testing not more frequently than once every three calendar months.

18. The Father shall submit to urinalysis (under supervision and chain of custody) upon request by the Independent Children’s Lawyer, such urinalysis to be conducted in accordance with the Australia/New Zealand Standard 4308:2008 – Procedure for collection, detection and quantification of drugs and abuse in urine.

19. The Independent Children’s Lawyer communicate such requests for urinalysis to the Father or his legal representative in writing with any test to be completed within 48 hours of receipt of such request and be verified by certificate which includes a temperature endorsement.

20. The Father forward the drug test results to the Independent Children’s Lawyer and other party’s solicitor immediately upon receipt.

21. The Father shall live with the paternal grandparents at all times whilst the Children are in his care.

22. Leave to the Mother to seek costs of this Interim Hearing following judgment in the Final Hearing of these parenting proceedings.

23. Dr C be appointed as Expert to enquire into and report upon matters relating to the use of illicit and/or non-prescription drugs by the father and made recommendations for future treatment to address this issue.

24. For the purpose of preparation of her report, the father:

    24.1Attend all appointments made Dr C;

    24.2Provide copies of all reports from testing carried out pursuant to these interim orders and as otherwise required by Dr C for the report.

    24.3Comply with all reasonable directions and requests made by Dr C.

25. In preparing her report, Dr C be requested to consider the following matters;

    25.1Whether the father’s use of illicit and/or non-prescription drugs indicates an addiction to any such drug;

    25.2Whether the father may have an underlying mental health condition which may have contributed to his use of illicit and/or non-prescription drugs;

    25.3Whether the father’s use of illicit and/or non-prescription drugs can be managed through therapeutic means;

    25.4If therapy is considered appropriate, recommend a psychologist with the required expertise;

    25.5Whether it is considered appropriate for the father to enter a rehabilitation facility to address his drug use;

    25.6If a rehabilitation facility is considered appropriate, any timeframe or other recommendations in relation to rehabilitation;

    25.7Whether the father is at risk of relapse and/or future problematic drug use;

    25.8Any recommendations for future engagement with therapeutic or other health care practitioners and services, in relation to relapse prevention and maintenance of abstinence from problematic drug use;

    25.9Any other recommendations in relation to the father’s future engagement with therapeutic or other health care practitioners and services to address drug use, mental health or anything else;

    25.10Whether the father’s use of illicit and/or non-prescription drugs, and/or any mental health condition, may impact the father’s parenting capacity and if so, how the father’s parenting capacity may be affected;

    25.11Whether the father’s use of illicit and/or non-prescription drugs, and/or any mental health condition, may put the children at risk of being exposed to any physical or psychological harm if he were to spend with the father;

    25.12If it is considered that the children may be at risk of being exposed to any physical or psychological harm while spending time with the father, any conditions on the time which may ameliorate that risk;

    25.13Any other matter considered relevant together with a consideration of relevant s. 60CC Family Law Act 1975 factors.

26. The parties to bear equally the cost of the report by Dr C but subject to the Mother’s entitlement to make an application for refund of her half share of such report following judgment after the Final Hearing of these parenting proceedings.

27. Direct the Independent Children’s Lawyer’s to cause to be provided to Dr C a copy of Dr E’s evidence. 

28. These proceedings are adjourned for mention to 23 October 2020 at 9:30am. It is anticipated that the Expert Report of Dr C will have been released prior to this date.

29. Grant leave to parties and Independent Children’s Lawyer to apply to the Court in chambers for vacation of the above mention date in the event the Expert Report of Dr C has not yet been prepared.

30. Direct that the Father’s solicitors provide to the Court’s Associate in word format the Father’s proposed Interim Parenting Orders set out at pages 1 – 5 inclusive of the Father’s Tender Bundle.

31. Direct the Independent Children’s Lawyer to provide to the Court’s Associate within 14 days in word format a copy of the Independent Children’s Lawyer’s Short Minute of Orders.

    * This order, by not referring to the Father’s new partner, reflects the intention of the Court, as explained in paragraph 72 of the Reasons for Judgment; in this context the Court varies its making of the Father’s proposed Order 3 in his Tender Bundle, pursuant to Rule 16.05(2)(e) of this Court’s Rules.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 3560 of 2019

MS RAEBURN

Applicant

And

MR RAEBURN

Respondent

REASONS FOR JUDGMENT

1. These are reasons for judgment in relation to an interim hearing held in respect of the children, X, born in 2007, and Y, born in 2011.

2. The Court made interim parenting orders by consent on 5 November '19, inter alia, providing for the children to live with the mother, and for the children to spend time with the father under supervision of a professional independent contact supervisor.

3. At this interim hearing, the father proposed, inter alia, that his time with the children be supervised by either the paternal grandmother and/or the paternal grandfather and/or the father's partner, for a specified period.  He proposed the removal of supervision following a certain number of consecutive clean chain of custody drug screens.  He proposed a graduated increase of time to be spent with the children.

4. At the interim hearing, the father's counsel indicated to the Court that the father would be prepared to consent to an interim order that he remain living with the paternal grandparents whilst the children were in his care.  The father's proposed interim orders are otherwise set out in his proposed interim parenting orders attached to his tender bundle (pages 1 to 5).

5. The mother proposed that the interim orders of the Court made 5 November '19 continue.  She opposed supervision by the paternal grandparents or the father's partner.  She proposed that supervision be provided by a professional independent supervisor, and in the circumstances that the same supervisor firm has provided services to date.  She sought orders for an appropriately qualified person (whether that be Dr C or, in the alternative, a psychiatrist):

   To do a proper appraisal of the father's problems with the use of illicit drugs, and the path forward for rehabilitation, and otherwise provide a full family report.

6. The mother seeks an order that the father be solely responsible for the costs of any expert report.  In this context of the mother's proposed orders, the Court refers to her case outline.

7. The father's documents relied upon are set out in his case outline and in his tender bundle (containing 34 pages).

8. The mother relied upon the documents set out in and attached to her case outline dated 25 March 2020.

9. The father took objection to two documents sought to be relied upon by the mother.

10. Firstly, the father objected to the affidavit of Mr F filed 18 October '19 on behalf of the mother. The objection was taken pursuant to section 136 of the Evidence Act 1995 (Cth).

11. The Court is of the view that the affidavit of Mr F is admissible, subject to the following:  the Court does not admit into evidence the opinions of Mr F (for example, his opinion that the father was "deep into the behaviour of addiction" because the Court is not satisfied that Mr F has the expertise to provide such opinions, and accordingly, to allow his opinions into evidence would be unfairly prejudicial to the father, and would be misleading and/or confusing).

12. Secondly, the father objected to the additional report of the forensic toxicologist, Dr G, dated 4 March 2020. The father contended that this additional report was sought to be relied upon by the mother in breach of section 121 of the Family Law Act 1975 (the Act).

13. Both parties relied upon the original affidavit of that toxicologist filed 31 January 2020; this report was prepared pursuant to order 8 in exhibit A of the Court's orders of 5 November '19, and was effectively a joint single expert report of the parties. The Court is not persuaded that section 121 should result in the non‑admission of this additional report.

14. However, section 136 of the Evidence Act1995 (Cth) provides that the Court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might be unfairly prejudicial to a party, or be misleading or confusing.

15. The Court is of the view that the opinions of the toxicologist on page 3 of 4 of the additional report, being answers (a) and (b) to question 1, do not significantly extend the toxicologist's opinions beyond what he already stated on pages 5 and 6 of his original report dated 20 January 2020 (see point 1(l) and(m), and point 2(c) and(d)). In the view of the Court, there is no danger to admitting these opinions under section 136.

16. As to the further opinions of the toxicologist in his additional report set out in point 2(a) to 2(c), and point 3(d) and (e), the Court is of a view that there is no danger to admitting these opinions under section 136, because the toxicologist stated that Mr F's described observations of the father was not proof of use of illicit drugs, and he gave an inclusive opinion relating to the timeframe of drug usage between May and October 2019. In relation to point 3, it seems to the Court that there is no danger to admitting these opinions under section 136, because the toxicologist was simply being asked to provide an opinion, based on the assumption that the father's evidence of three occasions of usage only, as referred to in his affidavit filed 19 December 2019, was the correct position.

17. In relation to the admitted additional report of the toxicologist, the Court recognises that the opinions stated by him are untested at this interim stage.  The same comments can be made in relation to the toxicologist's original report.

18. The parties and ICL also relied upon the child inclusive conference memorandum to court dated 10 February 2020.

Agreed facts unless otherwise stated

1. The parties commenced cohabitation in 2005.  They separated in February 2016.

2. Following separation, until about October 2019, the mother asserts that the parties had been successfully co‑parenting the children in an informal equal time, week‑about arrangement.

3. The mother asserts that in about early October '19, she formed the view that the father may have had an addiction to methamphetamine (ice) and cannabis, and thereafter she withheld the children spending any time with him:

   …while I worked to obtain conclusive information regarding (the father's) drug use.

4. On about 9 October'19, a negative urinalysis test result for the father was provided to the mother's solicitors.  Inter alia, this was not a chain of custody test.

5. The mother asserts that one of the children had told the mother, inter alia, that the father does not sleep sometimes.

6. The father asserted in his affidavit filed 5 November '19, inter alia, that he underwent a hair analysis drug test on 12 October 2019.  That test result was positive for the use of amphetamine and methamphetamine and marijuana. 

7. The father asserted in his above affidavit that in about September 2019 he had been with a friend who had used that methamphetamine, but the father had not so used it.  In the father's later affidavit filed 19 December '19, he stated that this denial was misleading, and he went on to state that he had smoked ice on three occasions, being 24 August '19, 14 September '19, and 22 September '19.  He asserted that he had not used ice again since 22 September '19.  He asserted that he has ceased all contact with his friend.  He asserts that he has moved back home to live with the paternal grandparents.

8. The expert initial report of Dr G stated, inter alia, that the relevant time period represented by the father's hair sample was from about late May 2019 up to late September 2019.  He stated that it was highly unlikely that the test results were from passive exposure alone, and unlikely that the results were from only a few drug use occasions.

1. Dr G stated in his additional report that it was likely that the father's drug use was high, if it was assumed that he only used methamphetamines on the three occasions that he asserted.

Legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well settled:  see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel [2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows, at [120], [122] and [123]: 

   As has frequently been emphasised, interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children.  Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (section 61DB).

   In SS & AH [2010] FamCAFC 13, the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings.  Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   Later, at paragraph 100, their Honours amplified their comments and said:

   The intuition involved in decision‑making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested.  Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes 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.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

3. Of this, the Full Court of the Family Court of Australia in Eaby & Speelman [2015] FamCAFC 104 said at [19]:

   As would be immediately apparent, this approach enables the Court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

4. The Court also refers to the decision of the Full Court of the Family Court of Australia in Banks & Banks [2015] FamCAFC 36, especially at paragraphs 46 to 52.  In that decision, the Full Court stated, inter alia, that (at paragraph 49):

   It is also important to stress here that the requirement to "consider" each factor (under section 60CC of the Act) does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion:  SCVG & KLD [2014] FLC 93‑582.

5. Further, it stated at paragraph 50:

   When it is obvious that the findings made as to some of the section 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.  

6. Section 60B of the Family Law Act 1975 (Commonwealth) (the Act) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

7. 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 consider: section 60CA of the Act.

8. Section 60CC of the Act provides that in determining orders in the child's best interests, the Court must consider the matters set out in subsections (2) and (3). In this context, the Court refers to its discussion above in relation to the decision in Banks & Banks.

Best interests of children

Meaningful relationships primary consideration

1. The children have a meaningful relationship with the mother, and they will benefit from a continuance of that relationship.

2. The children have a meaningful relationship with the father, and they will benefit from a continuance of that relationship, provided it is safe for them to do so.

3. In the view of the Court, should the children spend time with the father in accordance with his proposed "time with" interim parenting orders (see his proposed orders 2 to 6 providing for a graduated increase in his time with the children, in conjunction with drug testing), in circumstances where the father lives with the paternal grandparents whilst the children are in his care, there is a reasonable prospect that the children's meaningful relationship with the father can be maintained and enhanced.

4. The Court has a concern in relation to the mother's proposed interim parenting orders, providing that the children continue to spend certain supervised time with the father through an external supervisory agency, that there is a real risk that the children's meaningful relationship with the father will dissipate and/or not be enhanced.  This concern of the Court is expressed in circumstances where the final hearing of these parenting proceedings may not take place until well into 2021.

5. The Court gives significant weight to this meaningful relationship primary consideration.

Need to protect primary consideration

1. The mother proposes that the children's time with the father continue to be supervised by an external supervisory service, as per the current interim parenting orders of the Court dated 5 November 2019, and she opposes any supervision by the paternal grandparents or the father's girlfriend.

2. In the view of the Court, and acting cautiously and conservatively, there will be no unacceptable risk of harm posed to the children, should they spend time with the father on the following terms:

   a)the children spend time with the father in accordance with his proposed "time with" interim parenting orders (see his proposed orders 2 to 6 providing for initial supervision, and a graduated increase in his time with the children, in conjunction with drug testing);

   b)provided that the Court makes the ICL's proposed orders (apart from the ICL's proposed "time with" orders) relating to, in particular, urinalysis and hair testing, albeit limiting the hair drug testing to no more frequently than once every three calendar months;

   c)restraining orders be made against the father in relation to the consumption of illicit drugs as proposed by the ICL;

   d)and provided that the father live with the paternal grandparents whilst the children are in his care, pending further order.  (The Court should state the father consented to this last proposed protective order at the interim hearing and, it would appear, without the ICL having prior knowledge of such proposed consent.)

3. In reaching the above view, the Court has taken into account all the material before the Court, including the following discussed material.

4. On about 9 October '19, a negative urinalysis test result for the father was provided to the mother's solicitors.  Inter alia, the Court recognises that this was not a chain of custody test.  The urine sample for this test was provided by the father on 4 October '19.

5. The father provided a hair sample for a hair analysis drug test on 12 October '19 which was positive for amphetamines and marijuana, as referred to in the test results.

6. The father maintains that he has not used ice again since 22 September '19.  He refers to his marijuana usage in his affidavit filed 5 November '19.

7. The Court has taken into account the toxicologist's opinions that it was unlikely that the hair test results were from only a few drug use occasions, again acknowledging that the toxicologist's opinions remain untested.

8. The Court takes into account the father's assertions that he did not have the children in his care when he was using the illicit drugs, nor for the days following.

9. The Court takes into account the children's statements to the family consultant that they never saw the father act any differently, and did not think that there was anything wrong with him, whilst acknowledging their tender ages.

10. The Court takes into account the parties co‑parenting the children in an equal time arrangement up until about October 2019.

11. The Court recognises from the material adduced by the mother, that it is possible that the father's use of illicit drugs, including amphetamines and marijuana, looking at the matter retrospectively, may have extended well prior to late May 2019 (noting that the hair test results comprised the period from about late May '19 up to late September '19).

12. The Court has taken into account that the father has engaged Dr E to seek counselling to address his illicit drug use.  The father asserts that he is willing to do all that is asked of him by Dr E.  Dr E states at the conclusion of her report that it may be helpful for the father to remain engaged with her for the purpose of monitoring any future parenting arrangement, in the light of his past drug use, proactively identifying and addressing any particular vulnerabilities that may serve to increase the risk to the children in the future.

13. The Court has taken into account the contents of Ms E’s report dated 16 February 2020, whilst acknowledging that this report remains untested.  Such contents included Ms E’s observations of the father during four consultations.  ("At no time did (the father) display any behaviours which might indicate he had recently been, or is currently using, illegal substances").  Such contents also included Ms E’s statement that whilst the father, on the one hand, presented in the sessions as open and insightful about his past use of methamphetamines, the "affidavit material and annexures" suggested this current openness is externally motivated.

14. The Court has taken into account that the father admits to previously misleading the Court through his first affidavit, relating to his previous illicit drug use.

15. The Court has taken into account the father's past association with Mr H.  The father alleges that he has ceased any association with this person.

16. Ms E’s report refers to the father's partner and the father forming a relationship at the end of December 2018.  Dr E refers to the father's partner stating that in relation to the father, his personality was always stable during the period from August to September 2019, and also across the rest of the year.  The father and his partner reported spending three to four nights together each week, talking on the phone daily.

17. The Court takes into account the negative hair analysis drug test result for the collection of hair in relation to the father on 31 January 2020.

18. The Court takes into account the negative urinalysis test of the father for urine collected on 11 February 2020, with the Court observing that the father acknowledges that he failed to undergo such drug testing until seven days after the ICL's request on 4 February 2020.

19. The Court takes into account the negative chain of custody hair analysis drug test result for the collection of hair in relation to the father on 28 February 2020.

20. The Court takes into account the negative chain of custody urinalysis test of the father for urine collected on 9 March 2020.

21. The Court takes into account that there is no significant evidence before the Court that the father is presently abusing illicit drugs.

22. The Court takes into account the positive comments by the children to the family consultant regarding both parents.

23. The Court takes into account the contents of the undertakings of the paternal grandparents.

24. The Court takes into account the allegations of the father's new partner, that she has never seen the father take any drug or have any drug paraphernalia in his house, and that she does not condone the use of drugs.  In this context, the Court has taken into account the mother's assertions in relation to the affidavit of the father's new partner.

25. The Court takes into account the nature and extent of the allegations of the mother relating to the father's adverse behaviour in her presence and in the presence of the children.  In this context again, the Court takes into account the parties' equal time arrangement up until about October 2019, and that this equal time arrangement continued for a considerable period following the mother allegedly starting to see changes in the father's behaviour.

26. The Court refers to the affidavit of the maternal grandfather.  There is no significant evidence before the Court that the paternal grandparents, or either of them, have previously observed or were aware (or should have been aware) of the father being affected by illicit drugs, and turned a blind eye to his behaviour.

27. The Court acknowledges that the mother and the maternal grandparents are distrustful of the paternal grandparents, or either of them, supervising the children's time with the father.  The Court refers to the mother's assertions and beliefs in relation to the issue of whether the paternal grandparents possess the ability to detect effects of illicit drugs.

28. Based on all the material before the Court, the Court is of the view that there is a significant prospect that either paternal grandparent would detect adverse behaviour exhibited by the father towards the children, or either of them, were he affected by illicit drugs in their home, and if they did so observe, that they would act according to their undertakings to the Court.

29. In this context, the Court takes into account, inter alia, that the paternal grandparents assert that they have no tolerance to the use of drugs;  the assertion of the paternal grandmother that no drug taking of any kind will be tolerated in her home or while the father was living with the paternal grandparents;  the past preparedness of the mother to have the paternal grandparents care for the children since, according to the assertion of the paternal grandmother, they were babies;  the awareness of the paternal grandparents of past illicit drug use by the father and his misleading them;  and the assertion of the paternal grandmother that, given that the father has now admitted using drugs, she would be careful in her observations of him, to ensure that he was not under any influence of an illicit substance, spending time with the children. 

30. The Court also takes into account in this context the attachments to the mother's case outline, being a two‑page document entitled "The Effects of Crystal Methamphetamine on the Brain".

31. Based on all the material before the Court, the Court is of the view that there is a significant prospect that the paternal grandparents would not permit the father to spend time with the children in their home whilst the father was living with them, if he was observed to be affected by illicit drugs, even if they were not formally supervising his time with the children pursuant to court orders (noting the father's proposed orders that the paternal grandparents initially supervise the children's time with the father);  there is a significant prospect that the paternal grandparents would act protectively towards the children at all such times.

32. Acting cautiously and conservatively, in relation to the father's new partner, particularly in light of the father and the new partner's fairly recent commencement of their relationship, the Court is not prepared to include the father's new partner as a supervisor of the children's time with the father.

33. The mother contends, inter alia, that returning to a shared care arrangement needs to be contingent on ensuring the father does not have a drug abuse problem.  She contends that she needs to ascertain what the nature of the father's "drug use issue is" and whether he needs "medical treatment".  The Court is of the view that the ICL's proposed drug testing of the father, and the Court's other discussed proposed protective orders, as discussed above under this need to protect primary consideration, will minimise the risk of the children being exposed to any significant risk of harm whilst in the father's care.

Additional considerations

1. So as to maintain and enhance the children's meaningful relationship with the father, it will be in the best interests of the children to make the father's proposed telephone time orders with the children, but without making the proposed restraint upon the mother remaining within the vicinity and hearing of the children whilst having telephone time with the father.  In view of the father's past illicit drug use, such an injunction would not be in the children's best interests.

2. As to the proposed report of Dr C, proposed by the ICL and the father but queried by the mother, this particular issue should be the subject of further submissions by the parties after judgment at this interim hearing.

3. The mother's application for costs of this interim hearing should be dealt with following judgment in the final hearing of these parenting proceedings.

4. On the material before the Court, there is a significant prospect that the paternal grandparents, or either one of them, would abide by Federal government directives relating to social distancing in the corona virus climate whilst the children are spending time with the father in their home.

5. It now appears that the parties and ICL are in agreement that an expert report should be prepared by Dr C.  The ICL had proposed that the parties bear equally the cost of the report by Dr C.  The mother objects to sharing in the cost of her report.  The mother contends that these proceedings have been brought about by the father's illicit drug use and associated alleged risk to the children.  The Court is of the view that initially the parties should bear equally the cost of the report by Dr C, but that the mother be permitted at the trial of these proceedings, following judgment, to make an application for refund of her half share of such report. 

6. Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following interim parenting orders, and the Court makes such orders:

7. The Court makes the ICL's proposed order number 1. 

8. The Court makes the father's following proposed interim parenting orders set out in his proposed parenting orders attached to his tender bundle:

   i)The Court makes the father's proposed orders 1 to 6 inclusive.

   ii)The Court makes the father's proposed order 8, but delete from that proposed order 8 the words "and that during any such communication, the mother is restrained from remaining within the vicinity and hearing of the child".

   iii)The Court makes the father's proposed orders 9, 10, 11, 12 and 13.

9. The Court makes the ICL's proposed order 6, but deleting the words "in order 3" and in their place, put the words "with the children".

10. The Court makes the ICL's proposed order 7.

11. The Court makes the ICL's proposed order 8, but delete the reference to the word "cocaine" in that proposed order.

12. The Court makes the ICL's proposed order 9, but in 9.2, delete the words "48 hours" and in their place put "seven days".  In the ICL's 9.6, delete the reference to "cocaine and metabolites, steroids", and in 9.9, delete the word "two" and in its place, put the word "three".

13. The Court makes the ICL's proposed order 10 and 11, and in order 11, delete the number "24" and in its place, put "48".

14. The Court makes the ICL's proposed order 12.

15. The father shall live with the paternal grandparents at all times whilst the children are in his care.

16. Leave to the mother to seek costs of this interim hearing following judgment in the final hearing of these parenting proceedings.

1. The Court, relating to Dr C, makes the ICL's proposed orders 13 and 14 and 15, and add the following words to clause 15.13 of that order "together with a consideration of relevant section 60CC Family Law Act 1975 factors".

2. The Court makes the ICL's proposed order 16, but add the following words "but subject to the mother's entitlement to make an application for refund of her half share of such report, following judgment after the final hearing of these parenting proceedings".

3. Direct the ICL to cause to be provided to Dr C a copy of Ms E’s evidence.

4. These proceedings are adjourned for mention to 9.30 am, 23 October 2020.  It is anticipated that the expert report of Dr C will have been released prior to this date.

5. Grant leave to the parties and ICL to apply to the Court in chambers for vacation of the abovementioned date in the event that the expert report of Dr C has not yet been prepared.

6. Direct that the father's solicitors provide to the Court's associate in Word format the father's proposed interim parenting orders, set out at pages 1 to 5 inclusive of the father's tender bundle.

7. Direct the ICL to provide to the Court's associate within 14 days in Word format, a copy of the ICL's proposed short minute of orders.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 20 May 2020