Maynard & Rainier

[2021] FCCA 1027

FEDERAL CIRCUIT COURT OF AUSTRALIA

Maynard & Rainier [2021] FCCA 1027

File number(s):	PAC 6341 of 2020
Judgment of:	JUDGE NEWBRUN
Date of judgment:	21 July 2021
Catchwords:	FAMILY LAW – interim parenting - best interests of children - orders made
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC
Cases cited:	Banks & Banks [2015] FamCAFC 36 Eaby & Speelman [2015] FamCAFC 104 Goode & Goode (2006) FLC 93-286 Marvel & Marvel (No 2) [2010] FamCAFC 101
Number of paragraphs:	98
Date of last submission/s:	22 March 2021
Date of hearing:	22 March 2021
Place:	Parramatta
Counsel for the Applicant:	Ms Gillies
Solicitor for the Respondent	Ms Barnett
Solicitor for the Independent Children's Lawyer:	Ms Sundar

ORDERS

PAC 6341 of 2020

BETWEEN:

MR MAYNARD

Applicant

AND:

MS RAINIER

Respondent

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	21 JULY 2021

PENDING FURTHER ORDER THE COURT ORDERS THAT:

1.The Interim Orders of the Court made on 12 April 2021 are discharged.

2.That the children, X, born in 2008 and Y, born in 2010, (collectively, “the children”) live with the Mother.

3.That the children spend time with the Father as follows:

(a)During the school term, each alternate weekend from the conclusion of school Friday or (3:30pm if a non-school day) until the commencement of school Monday (or 9:00am if a non-school day);

(b)During the school holiday period at the conclusion of terms 1, 2 and 3, for the second half of each school holiday period; and

(c)During the school holiday period at the conclusion of term 4, for half of the school holiday period as follows:

(i)From 2:00pm on 8th day of the school holiday period for 7 nights concluding at 2:00pm on 15th day of the school holiday period; and

(ii)Each alternate week thereafter for a period of 7 nights until the conclusion of school holiday period.

4.All changeovers shall occur at the Mother’s residence if not at the children’s school and the Father shall collect the children from the Mother’s residence or the children’s school and return the children to their school or the Mother’s residence at the conclusion of their time with the Father.

5.For the purposes of changeover at Order 4, the Father shall be solely responsible for collecting and delivering the children and is restrained from causing a nominee to attend changeover on his behalf.

6.The parties be and are hereby restrained from consuming alcohol whilst the children are in their care, and in the 12 hours prior to the children entering into their care.

7.The Mother is injuncted and restrained from consuming illicit substances 72 hours prior to and during the time the children are in her care.

8.The Mother shall take all reasonable steps to ensure, whilst the children are in her care, that any member of her household, or any person visiting her household:

(a)does not consume alcohol or illicit substances,

(b)is not adversely affected by alcohol or illicit substances.

9.The Mother shall not engage in disputation with her partner Mr B in the presence or near presence of the children and will take all reasonable steps to ensure that her partner will not engage in such disputation with her.

10.The Mother shall attend upon, and shall take all reasonable steps to have her partner Mr B attend upon, a relationship counsellor to improve communication between herself and her partner.

11.That the children’s time with the Mother be suspended:

(a)From 3:30pm or afterschool on Friday immediately before Father’s Day until after school on 3:30pm on the day immediately following Father’s Day each year;

(b)From 3pm on Christmas Day until 3pm on Boxing day;

(c)From 3:30pm on each of the children’s birthdays until after 6:30pm on each of their birthdays;

(d)From 3:30pm of after school on the Thursday immediately preceding Good Friday until 2:00pm on Saturday immediately following Good Friday.

12.That the children’s time with the Father be suspended:

(a)From 3:30pm or afterschool on Friday immediately before Mother’s Day until after school on 3:30pm on the day immediately following Mother’s Day each year;

(b)From 3pm on Christmas Eve until 3pm Christmas Day;

(c)For each of the children’s birthdays other than in accordance with Order 7(c);

(d)From 2:00pm on Saturday immediately following Good Friday until before school on the following Tuesday after Easter Monday.

13.That the parties do all acts and things necessary to ensure the children attend upon, and continue to attend upon, C Clinic at Suburb D for the purpose of psychological and / or therapeutic treatment with such sessions to be non-reportable.

14.That if the psychologist / treater of the children from C Clinic deems it necessary and / or otherwise appropriate and so recommends that either or both of the parties shall attend such treatment with the children, then either or both of the parents shall so attend as recommended.

15.That the Mother’s lawyers be given leave to provide to C Clinic at Suburb D a copy of all pleadings filed to date by the parties and a copy of these Orders.

16.The Mother and the Father equally pay the costs of each child’s attendance upon C Clinic Suburb D.

17.The Mother and the Father shall both undertake a hair follicle test, such test shall be conducted in the following manner:

(a)Such testing is to be carried out by Australian Workplace Drug Testing Services (AWDTS) clinic or its nominee who shall be directed to carry out hair follicle testing for the detection and quantity of drugs of abuse within both parties’ system and such testing shall:

(i)Be conducted by a qualified and certified collector;

(ii)Follow a chain of custody procedure;

(iii)Be conducted at an approved laboratory, accredited to conduct hair drug testing to the international standard ISO/IEC 17025:2205 by the relevant National Accreditation Body for that laboratory;

(b)The Mother and the Father are to provide the collector with photographic identification to be recorded before the hair collection;

(c)The Mother and the Father are at liberty to provide AWDTS with a copy of these Orders;

(d)The Mother and the Father shall do all things and sign all documents necessary to undertake hair follicle testing in accordance with the procedure outlined in this Order.

18.Upon the parties’ compliance with Order 13, the Mother and the Father shall thereafter undertake hair follicle testing within 48 hours of receiving a request from the independent children’s lawyer (ICL) provided that no more than one request is made in any four-month period and such test shall be undertaken in accordance with the terms of Order 13.

19.The parties shall submit to random supervised chain of custody urinalysis testing conducted in accordance with the Australian/New Zealand Standard 4380:2008 procedure for the collection, detection and quantification of drugs of abuse in urine, within 48 hours of the ICL making a written request of the parties and the parties will provide the test results to the ICL within 48 hours of them being available and the ICL is not to make more than one request per month.

20.Each party shall meet the costs of their own testing pursuant to Orders 17, 18 and 19.

21.The proceedings are adjourned to 7 September 2021 at 2:15pm for mention.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT

JUDGE NEWBRUN:

INTRODUCTION

1. This interim parenting hearing relates to the children X born in 2008, now aged 12 years, and Y born in 2010, now aged 11 years. 

   PROPOSALS

2. The Father’s proposals were referred to in his Application in a Case filed 13 January 2021; inter alia, he seeks:

   (a)A Recovery Order in relation to the children (the children are presently living with the Mother);

   (b)An Order that the children live with the Father;

   (c)Conditional upon the Mother providing to the Father a clear hair follicle test,  the children spend time with the Mother, in the absence of agreement, during school terms each alternate weekend from Friday after school until 5 PM on Sunday, during half of each school holiday period, and on special occasions;

   (d)An Order that once the Mother has commenced her time with the children, the Mother thereafter submit to random supervised chain of custody urinalysis testing in relation to detection and quantification of drugs of abuse in urine;

   (e)An Order that the Mother’s time with the children be suspended in the event that the Mother provides a negative hair follicle or urinalysis test result, with such time recommencing upon the Mother providing to the Father are clean chain of custody supervised urinalysis test result;

   (f)That the Mother be restrained from consuming illicit substances 72 hours prior to and during the time the children spend time with her;

   (g)That the Mother be restrained from permitting the children to come into contact with her partner Mr B.

3. The Mother’s proposals were set out in a proposed Minute of Order attached to the Mother’s Case Outline dated 21 March 2021; she seeks Orders, inter alia, that:

   (a)The children live with the Mother;

   (b)the children spend time with the Father during school terms, each alternate weekend from the conclusion of school Friday until the commencement of school Monday, for half of each school holiday period, and on special occasions;

   (c)the parties be restrained from consuming alcohol whilst the children are in their care, and in the 12 hours prior to the children entering into their care;

   (d)the parties undertake CDT testing within 24 hours of receiving a request from the ICL;

   (e)the parties both undertake a hair follicle test;

   (f)upon the parties compliance with the above hair follicle test, the parties thereafter undertake hair follicle testing within 48 hours of receiving a request from the ICL, provided that no more than one request is made in any four-month period.

4. The ICL supported the Mother’s proposed Orders, but she did not support an Order for CDT testing.

   MATERIALS RELIED UPON

5. The Father relied upon the following documents:

   (a)His Case Outline dated 22 March 2021;

   (b)Applications in a Case filed 13 January 2021 and 19 May 2021;

   (c)Affidavits of Mr Maynard filed 25 November 2020, 12 January 2021, and 17 May 2021;

   (d)Affidavit  of Ms E filed 17 February 2021;

   (e)Affidavit  of Ms F filed 16 March 2021;

   (f)Affidavit  of Mr G filed 20 March 2021;

   (g)Child Inclusive Memorandum dated 21 January 2021;

   (h)His Tender Bundle of documents: Exhibit B;

   (i)Written submissions filed 6 July 2021.

6. The Mother relied upon the following documents:

   (a)Affidavits of Ms Rainier filed 19 March 2021 and 22 June 2021;

   (b)Her Case Outline dated 21 March 2021;

   (c)Affidavit  of Mr B filed 18 December 2020;

   (d)Affidavit  of Ms H filed 10 March 2021;

   (e)Affidavit  of Ms J filed 10 March 2021;

   (f)Child Inclusive Memorandum dated 21 January 2021;

   (g)Her Tender Bundle of documents: Exhibit C;

   (h)Written submissions filed 1 July 2021.

7. The ICL relied upon her Case Outline dated 21 March 2021, and written submissions filed 5 July 2021.

8. The following further Exhibit was relied upon:

   (a)Child Inclusive Conference Memorandum to Court dated 27 January 2021: Exhibit A.

   AGREED FACTS UNLESS OTHERWISE STATED

9. The child Y is in Year 6 at Suburb D Primary School.

10. The child X is in Year 7 at K School in Suburb L.

11. The Father is aged 34 years.  The Mother is aged 32 years.

12. The parties commenced cohabitation in 2007.

13. The parties separated in about late 2016.

14. The Mother has a child, M, from a previous relationship, born in 2005, and she is aged 15 years.  M is in Year 9. She was living with the Mother and attending the above College in Suburb L until about 25 March 2021 when she travelled to Brisbane to reside with her biological father, Mr G. The Mother alleges that it is a short term arrangement that M will live with Mr G. She alleges in her second affidavit filed 22 June 2021 that it is the intention that M continue living with the Mother “once the current school term has concluded”. She alleges in that affidavit that this child’s placement at K School continues to be held by the school for the child’s return to Sydney “for the next school term.” 

15. Post separation the children lived primarily with the Mother and spent regular fortnightly overnight time with the Father.  The parties are in dispute as to the extent of the children’s fortnightly time with the Father. The Father alleges that post separation up to about June 2020 they spent time with him each alternate weekend from Thursday to Monday, and for 6 months each Tuesday afternoon, whereas the Mother alleges that they have spent time with the Father either one or two nights per fortnight. The Court observes that their property adjustment Orders dated 1 November 2017 recited that the children live with the Mother and spend 4 nights per fortnight with the Father.

16. The Father alleges that in June 2020 the children, M and the Mother relocated from Suburb N to Suburb O.

17. The Father alleges that on about 22 November 2020 the children came into his care.  On about 24 November 2020 he alleges that the youngest child came back into the Mother’s care. The Mother alleges that on about 26 November 2020 the youngest child came into the Father’s care.

18. The children came back into the Mother’s primary care on about 18 December 2020.  The Father, as at the interim hearing date held on 22 March 2021, alleges that he had not spent time with the children since about 18 December 2020.

19. On 1 April 2021, the Court having reserved judgement on 22 March 2021 in relation to the interim hearing held on that date, the parties agreed to consent interim parenting Orders (with the Court making those Orders on 12 April 2021) pending the Court’s judgment in relation to the interim hearing, inter alia, as follows:

    1.That the children, X born in 2008, now aged 12 years, and Y born in 2010, live with the Mother;

    2.That the children spend time with the Father as follows:

    (a)From 3 PM or the conclusion of school on Thursday 1 April 2021 until 5 PM Saturday 3 April 2021; and thereafter,

    (b)Commencing on 16 April 2021, each alternate weekend from after school on Friday until before school Monday.

    3.That changeover shall occur at the Mother’s residence if the children are not in attendance at school.

20. The Mother alleges that she is in a de facto relationship with Mr B, born 1987. She alleges that they commenced cohabitation in about mid-2018. The Mother alleges that they live in rental accommodation in Suburb D.

21. The Mother alleges that Mr B has a child from a previous marriage, P born in 2016.  The Mother alleges that this child spends 4 nights per fortnight in her household.

    RELEVANT LEGAL PRINCIPLES

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

23. In Marvel & Marvel (No 2) [2010] FamCAFC 101, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:

    [120] 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 (s 61DB).

    [122] 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.

    [123] 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.

24. Of this, the Full Court 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.

25. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects and principles of Part VII of the Act relating to children that inform the making of parenting Orders.

26. In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

27. Section 60CC of the Act provides that in determining what is 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 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 s60CC 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”. Further, it stated, at paragraph 50, “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”.

    THE BEST INTERESTS OF THE CHILDREN

    Section 60CC Considerations

    Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents:  a primary consideration

28. The children have a meaningful relationship with both parents and will benefit from a continuance of those relationships.

1. Should the children continue to live with the Mother and spend time with the Father, as proposed by the Mother (and ICL), there is a significant prospect that the children’s meaningful relationship with the Father can be maintained. The children would appear to have maintained their meaningful relationship with the Father post separation having spent regular fortnightly time with him.

   Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. The Father contends that he has ongoing concerns about the Mother’s ability to properly care for the children and believes that they are at risk of harm in her primary care.

3. The Father contended that there were three particular risk issues, namely:

   (a)The risk that the children will be exposed to domestic violence between the Mother and her partner;

   (b)The risk that the children will be exposed to illicit drug and alcohol use by the Mother, her partner and those in their cohort; and

   (c)The risk that the children will be neglected in the Mother’s care.

4. The Court will firstly discuss the contended risk that the children will be exposed to domestic violence between the Mother and her partner. There is a considerable amount of material before the Court in relation to this issue and the Court does not propose to set out the entirety of that material.

5. The Father alleges that the children informed him, inter alia, that on 22 November 2020 that there had been a fight at the Mother’s home between the Mother and her partner early in the morning of that day, which persisted for a significant period of time until about 5 AM in the morning. 

6. The child, M, had allegedly told the Father, inter alia, that there had been a party on Saturday night (21 November 2020) and she was worried about the Mother being abused. 

7. The Father alleges that the children and M told him on Sunday evening 22 November 2020 that the Mother’s partner scares them and that they are scared he is going to hurt the Mother badly. 

8. Later, the next day, the Father alleges that the child M told him that there were drug fuelled parties at the Mother’s home on many weekends; that Y had told him that she had found the Mother in a cupboard crying; that the children and M told him that they had seen the Mother’s partner pushing the Mother; and that M had told him that lots of random men keep coming into and out of the house.

9. The paternal grandmother’s Affidavit alleges, inter alia, that the child Y had contacted her on the morning of 22 November 2020 asking for her to come and pick up the children because the Mother and her partner had been fighting all night and they were scared.  She alleges that she went to the Mother’s home, observed the Mother crying and distressed, and that she then left with the children.  She alleges that the child Y later told her that the Mother and her partner are always fighting and it is scary.

10. The former close friend of the Mother, Ms F, alleges in her Affidavit that the Mother and the children lived around the corner from her when the Mother lived in Suburb N.  She alleges, inter alia, that in about the second half of 2019 the Mother had told her that the Mother’s partner was always yelling and screaming at herself and the children and belittled the children and the Mother. Ms F alleges that her friendship with the Mother soured in about January 2020 and then all communication between them ceased.  She alleges that in about early May 2020 the child M told her, inter alia, that the Mother and her partner had had a huge fight.  She alleges that she had a conversation with Ms R in about November 2020 when Ms R had told her inter alia, that she had heard the Mother’s partner screaming early in the morning.  She alleges that the child M told her on about 24 November 2020 that the Mother had just told her over the telephone that if the children left her she would kill herself.

11. The Father of M, in his Affidavit, alleges, inter alia, that M had told him that she was sick of the Mother’s partner putting the Mother down and making her cry.

12. In this context, the Father also points to alleged statements made by the child M to officers of DCJ (see Exhibit B) in early February 2021, inter alia, that the Mother and her partner fight a lot and that the partner frequently screams at the Mother.

13. The Court observes, in this context, that the Father alleges that he had been informed in about February 2020 that there had been “many fights on many nights” between the Mother and her partner at the home of the Mother and the children when they were living in Suburb N. Whilst the Father alleges his concern that violence in the Mother’s house was escalating after this time, it is not without relevance that the Father did not object to the children living with the Mother, despite this knowledge, until he retained them in late November 2020.

14. The Court also, in this context, refers to the Child Inclusive Conference Memorandum; the children and the parents were interviewed on 21 January 2021. The Court acknowledges that this Memorandum is untested, both in relation to the statements and opinions of the Family Consultant and the statements of the parties and children to the Family Consultant.

15. The Father had told the Family Consultant that previously he had not had any concerns about the children’s physical safety and well-being with the Mother, stating that he always thought that the Mother was pretty perfect.  He stated he became increasingly concerned that he has been told by neighbours that they could hear conflict between the Mother and her partner, and then when the children and their older maternal sister M showed evidence that the Mother was using drugs.  He said he (then) thought it necessary to protect the children by taking them into his care.

16. The Mother told the Family Consultant that she denied family violence within her relationship with her partner, Mr B. She stated that they have arguments and disagreements but stated that this was in the context of normal relationship conflict. She stated that she and her partner both have strong personalities and loud voices, and since becoming aware of how the children experienced their disputes, she and her partner have made changes to the way they manage their conflict to avoid the children being adversely impacted by exposure to the conflict.  Not without relevance, in this regard, the child Y told the Family Consultant that the Mother and her partner do not fight often and they are trying to stop their disagreements.  Outside of her concern for the Mother during conflict with her partner, Y denied feeling afraid of the Mother’s partner Mr B.  The child X had told the family consultant, in this context, that she denied being fearful or afraid of the Mother’s partner.

17. The Mother’s partner, Mr B, swore an Affidavit. He alleges that he commenced cohabitation with the Mother in about mid-2018, which is consistent with the Mother’s allegations in this regard.  He denies that the Mother and himself yelled or shouted each other and raised voices on about 22 November 2020.  He alleges that since the Mother and himself met, they have not been involved in any form of family violence.  He alleges that the Mother has never been violent towards himself in a physical or verbal way nor has he been physically or verbally abusive towards the Mother. He alleges that, similarly, the Mother and himself have never been physically or verbally abusive towards the children at any time.  He alleges that the police have never attended their home or been called to intervene in any conversation he has had with the Mother.  He alleges that he works for the Employer S as a manager and does not have a criminal history.  He alleges he has never been arrested or been charged with or convicted of drink-driving and maintains a current working with children check as part of his employment.

18. The Mother’s sister swore an Affidavit and alleges, inter alia, that she has spent time with the children since their return to the Mother on 18 December 2020 and they seem happy and settled back living in Suburb D.

19. The Court has considered all the material before it relating to this issue of alleged domestic violence occurring between the Mother and her partner in the presence of the children. Taking into account the above discussions in relation to this issue of domestic violence between the Mother and Mr B, including:

    (a)The significant suggestion that the Father was aware prior to November 2020 of disputation between the Mother and her partner occurring in the presence of one or more of the children, yet did not formally object to the children living with the Mother;

    (b)The Mother’s statements to the Family Consultant that she has become aware of how the children experience her disputes with her partner, and that she and her partner have made changes to the way they manage their conflict, so as not to expose the children to such conflict;

    (c)The children’s statements to the Family Consultant that they do not fear the Mother’s partner;

    (d)The child, Y, told the Family Consultant that the parties do not fight often and they are trying to stop their disagreements;

    (e)There is no suggestion that the children do not want to live or spend time with the Mother;

    (f)The Court’s proposed restraining Orders, discussed below, relating to alcohol and illicit drug consumption, and proposed alcohol and illicit drug testing Orders;

    (g)The Court making an Order that the Mother attend, and take all reasonable steps to have her partner attend, a relationship counsellor to improve communication between herself and her partner;

    (h)The Court making an Order restraining the Mother from engaging in disputation with her partner in the presence or near presence of the children and that she will take all reasonable steps to ensure that her partner will similarly not engage in such disputation;

    (i)The statements of the Family Consultant in this context, whilst acknowledging that her Memorandum is untested;

    (j)The DCJ and/or M’s Father have not intervened in relation to the child M potentially returning to live with the Mother;

    the Court is of the view that should the children remain living in the Mother’s primary care, together with the Mother’s partner Mr B, the children should not be exposed to an unacceptable risk of family violence.

20. The Father contends that the Mother and/or her partner are engaging in illicit drug use whilst the children reside with her, and that this is a significant risk issue posed to the children. This alleged drug use by the Mother, and others with her, was an issue that the Father alleges led to him retaining the children in late November 2020.

21. The Court has had regard to all the material before it relating to this issue of alleged drug use by the Mother and others. The Court has not overlooked that the Mother withdrew an earlier denial of drug use in about late November 2020.

22. Some context should be given to the Father’s allegations in relation to drug use by the Mother. He told the Family Consultant that both parties used illicit drugs during their relationship. He stated to the Family Consultant that one of the reasons that the relationship broke down was because the Mother continues to use illicit drugs (cocaine) whilst he stopped.  Again, the Court observes that the Father did not formally object to the children living with the Mother prior to retaining the children in his primary care in late November 2020.  The Mother admitted to the Family Consultant that she used an illicit drug with her partner in November 2020. She had stated to the Family Consultant that in hindsight she regretted her actions, stating that she should not have used it nor had it in the home with the children. The Mother had alleged to the Family Consultant that she had not used illicit drugs regularly prior to this time.

23. The Court observes that the child M allegedly told an officer from DCJ on about 5 February 2021 that whilst she had been exposed to the mother and her partner frequently using cocaine and alcohol, and had frequently found packages with white powder in them around the home, when asked by the DCJ officer if the drug use was continuing she stated that she did not believe so.  This child had stated that she does not believe that the Mother and her partner had recently used cocaine.  This child had also stated that she was unsure if the Mother and her partner were currently using cocaine however the mother continues to drink wine at home.  In relation to the Mother’s consumption of alcohol, this child stated to the DCJ officer that since the Mother had cut back her drinking, she was very restrictive of this child’s movements.

24. The Court observes that the Father submitted that, on the material before the court, there was a real doubt as to whether M would return to reside with the mother and children and in this regard her absence from the household remove the protective and supportive factor available for the children in the mothers care noting the allegations of drug use against the Mother.  In response to these submissions, firstly, there is a significant suggestion, from the mother’s most recent affidavit, that M may well return to live with the Mother for the NSW school term commencing after the mother’s swearing of her Affidavit on 22 June 2021. And secondly, and in any event, even if M was not to return to live with the Mother and children, the Court is of the view that there is a significant prospect that the risk of harm posed to the children from being exposed to the Mother and others within her home when adversely affected by illicit drugs and/or alcohol can be minimised by the below discussed protective proposed interim Orders.

25. The Court has had regard to the material before it relating to the Mother and her partner ingesting alcohol.

26. The Court recognises that children can experience significant neglect if a parent or parents are adversely affected by illicit drugs or alcohol.

27. The Court is of the view that there is a significant prospect that the risk of harm posed to the children from being exposed to the Mother and others within her home (and the Father; see the Court’s discussions later in these Reasons relating to the Father’s alleged alcohol and drug use) when adversely affected by illicit drugs and/or alcohol can be minimised if the following proposed interim Orders are made relating to:

    (a)The Mother being injuncted and restrained from consuming illicit substances 72 hours prior to and during the time the children are in her care;

    (b)The Mother (and Father) being restrained from consuming alcohol whilst the children are in their care, and in the 12 hours prior to the children entering into their care;

    (c)The Mother shall take all reasonable steps to ensure, whilst the children are in her care, that any member of her household, or any person visiting her household:

    (i)does not consume alcohol or illicit substances,

    (ii)is not adversely affected by alcohol or illicit substances.

    (d)The Mother (and Father) undertaking a hair follicle test and that thereafter they undertake such a test within 48 hours of receiving a request from the ICL; and

    (e)The Mother (and Father) submitting to random supervised chain of custody urinalysis testing within 48 hours of a written request by the ICL, with the parties to provide the test results to the ICL within 48 hours of them being available, and the ICL is not to make more than one request per month.

28. The Father seeks an interim restraining Order against the Mother that she not permit the children to come into contact with her partner Mr B. Taking into account the above discussed matters, both in relation to domestic violence and alcohol and illicit drug use, the Court is of the view that it will not be necessary to make such an Order to minimise the risk of the children being exposed to domestic violence between the Mother and her partner.

29. The Father contended that the children would be exposed to neglect if living in the Mother’s primary care.  In this context, the Father submitted that there is material before the Court, inter alia, suggesting the children are often left on their own or cared for by the child M, and he refers to the DCJ documents in Exhibit B relating to alleged disclosures by M.  The Father also submitted that because the child M had returned to reside with Mr G in Brisbane and there was a real doubt as to whether child would return to live with the mother, the absence of M living with the Mother and children had caused, inter alia, a disruption to their care arrangements.

30. Having regard to all the material before the Court, the Court does not accept that there is an unacceptable risk of harm posed to the children through neglect if living with the Mother on an interim basis (and even assuming the child M was not to return to live with the mother and the children).  In this regard, the Court takes into account, inter alia:

    (a)The children’s positive statements to the Family Consultant in relation to the Mother;

    (b)There is no significant suggestion that the children do not want to live with or spend time with the Mother;

    (c)The children’s statements to the Family Consultant in relation to M; these statements would not appear to suggest that the children are significantly reliant on M’s care, albeit that the child Y had described M “as kind of nice, explaining that if she is afraid of loud noises or has a nightmare she will go to M’s room and M will hug her and look after her.  She said that sometimes M called her a “snitch” when she tells (the Mother) about things M is doing that she perceives is wrong”;

    (d)The statements of the Family Consultant in her Memorandum;

    (With respect to the recent submissions of the Father and ICL regarding the child M returning to reside with Mr G in Brisbane, there is a significant suggestion that the Family Consultant’s references, in paragraph 44 of the Child Inclusive Conference Memorandum, to a “change of care arrangements” was referring to the existing care of the children by the Mother (not the care of the children by the Mother and/or M) being changed to the children being cared for by the Father.)

    (e)The suggestion, on the material before the Court, that the children are regularly attending school;

    (f)The DCJ have not intervened in relation to the child M potentially returning to live with the Mother;

    (g)M’s Father has not intervened in these proceedings in relation to M. 

    (In this regard, the court takes into account the Mother’s allegations of her recent discussions with Mr G in relation to M; her allegation (in her affidavit sworn and filed 22 June 2021) that herself and Mr G intend “that M continue living with me in Suburb D once the current school term has concluded.  M’s placement at K School continues to be held by the school for M’s return to Sydney for the next school term”, including her allegation that M’s recent residence with her father in Brisbane was a short term arrangement.)

31. The Court should state that even assuming the child M remains residing with Mr G in Brisbane, and the children were thereby deprived of M’s usual presence in their day-to-day lives, the court is of the view, based upon all the material before the court, that the children would not thereby suffer relevant neglect in the Mother’s care, and there is a significant suggestion that they would not experience significant emotional harm.  In this context, the Court observes, inter alia, from the mother’s allegations, that in recent times she has made arrangements for the child M to return to visit the Mother and children in Sydney, and which has allegedly occurred.

32. The Court should refer to the Mother’s mental health. In this context, the Court refers to the Mother’s allegations in relation to her mental health in her Affidavit, and also to the Mother’s statements to the Family Consultant in relation to her mental health.  The Court also refers to the child M’s alleged statements to DCJ officers in relation to the mother’s mental health.  

1. The Mother frankly alleges that 2020 was a particularly difficult year with extra stresses to family life.  She alleges that in about June 2020 she sought out the assistance of her GP (named by the Mother as Dr S) who prescribed the Mother with a medication for treatment of possible depression.  She attended upon the GP again in November 2020 and obtained a prescription for medication to assist her with sleeping. The Mother further consulted with the GP about the dosage of her antidepressant medication. The Mother refers to her current dosage of anti-depressant medication. The Mother refers to her alleged daily walks and eating healthy foods to take care of herself.  The Court refers to M’s alleged disclosures to officers of DCJ in about early February 2021, previously discussed above, that the Mother had cut back on alcohol consumption and that she did not believe that the Mother’s drug use was continuing. There is a significant suggestion, on the material before the court, that the Mother’s mental health is being positively addressed by the Mother, that she is presently enjoying good health and her pregnancy is progressing well. 

2. As to the Father’s mental health, the Court refers to the Mother’s allegations in this regard.  The Court also refers to the Father’s statements in relation to his mental health made to the family consultant. The Father had stated, inter alia, to the family consultant, that there was a period of time during the parent’s relationship, notably towards the end of their relationship, in which the Father was using alcohol and cannabis in response to his symptoms of depression and anxiety and stress arising from the breakdown in the parent’s relationship. He had identified to the Family Consultant that, prior to the parties’ separation, the children had seen him “drunk to the point of blackout” and generally seeing him heavily intoxicated, and which may have made the children feel unsafe.  

3. The Father told the Family Consultant that he is prescribed cannabis to assist with symptoms of anxiety, pain relief and to assist with sleeping difficulties. He said that his prescription allows him to take prescribed doses on an as-needed basis. He stated that he had been using his prescribed dose of cannabis infrequently from the middle of 2020.  He stated that with the stress associated with the proceedings and the disruption of his time with the children, he recommenced using cannabis as prescribed on a more regular basis from December 2020.

4. In that latter regard, the Father had told the Family Consultant that when the children spent time with the Mother for the eldest child’s birthday and did not return to his care by the Mother, he had a four day period of experiencing symptoms of depression and he used alcohol to cope with his emotional state.  He stated that he recognised that this was not a healthy way to manage his emotional state and that he contacted his “neurolinguistics programmer” to reengage his services in relation to his mental health symptoms.

5. In this context of the Father’s mental health, the Court takes into account the statements of the Family Consultant (see paragraph 45 of the Memorandum) that the Father has reported a history of misusing alcohol and cannabis to manage his emotional state and that by his account he reinstated inappropriate use of alcohol when the Mother unilaterally retained the children in her care (on about 18 December 2020).  The Family Consultant had stated that the Court may be assisted by information from the Father’s treating professionals outlining the nature of his diagnosed conditions, his treatment and the impact of non-compliance with this treatment on his parenting capacity.

6. Taking into account the above matters relating to the Father’s mental health, the Court has a concern that the Father’s mental health may not be optimally managed.

7. The Court refers to the Mother’s allegations of family violence against the Father. Her allegations are particularised to a not insignificant extent. She alleges, inter alia, that the Father’s abuse started as verbal, that the Father was often angry, and that the Father yelled and screamed certain abusive remarks at her.  She alleges that it was more often the case than not that the children witnessed this alleged verbal abuse. 

8. The Father told the Family Consultant that there were high levels of verbal conflict between the parties during their relationship.  He stated that the Mother constantly said negative things about him and that when he was under the influence of alcohol he would lash out and throw verbal abuse at her.  He said he had no filter and said horrible stuff.

9. The Mother told the Family Consultant that the Father was verbally abusive throughout their relationship which would increase under the influence of alcohol.  She alleged that the Father’s alleged verbal abuse against her continued post separation and escalated in terms of how he allegedly spoke to the Mother.  She alleged that the Father had pushed her on occasion during the relationship; that the Father would throw cups, photo frames and on one occasion punched through a glass door.  On another occasion she alleged that the Father head-butted a wall putting a hole in it.  She alleged that the Father would push pillows over her face because he knew the Mother was claustrophobic and it would upset her.  She alleges the Father had threatened to kill the maternal grandfather.

10. The Court has a concern in relation to these allegations of family violence made by the Mother against the Father.  In particular, the Court has a concern that should the children now live with the Father on an interim basis, there may well be an increased risk that the Father will verbally denigrate the Mother in the presence of one or both of the children.

11. The Mother contends, inter alia, that should the children now live with the Father on an interim basis, they will experience significant disruption to their lives, through having to change schools again, not living in the Mother’s primary care noting her historical primary care of the children, and taking into account what the Mother alleges is the Father’s lack of parenting capacity were the children to live primarily with him on an interim basis. There is force to these contentions of the Mother. 

12. The Court takes into account the stability of what appears to have been a well-settled arrangement of the children living with the mother that has been predominantly in place since the parties’ separation. Post separation in 2016, the children have spent time with the Father, up until about June 2020, for only between 1 to 2 nights per fortnight, according to the Mother, and, according to the Father, four nights each fortnight, and Tuesday afternoons, and since about June 2020, 2 nights each fortnight up to about late November 2020 when the children came into the Father’s care. The children moved from Suburb N with the Mother to Suburb D in about mid-2020 and began attending schools in that area.  The eldest child has begun in a new high school in that area this year.  There is a suggestion on the material before the Court that the children are content and are proceeding satisfactorily with their new schooling arrangements. 

13. In relation to the Father’s alleged lack of parenting capacity, the Court refers to, for example, the Mother’s allegations in paragraphs 65-66 and 121-140 of her Affidavit filed 19 March 2021, and the allegations in paragraph 19 of the Mother’s sister’s Affidavit).  The Court takes into account the statements of the Family Consultant in this context, for example at paragraph 44 of her Memorandum. 

14. Further, there is some force to the submissions of the ICL that the Father has not adduced significant material in relation to arrangements that he would put in place to care for the children if they lived with him.  The Father had told the Family Consultant that he travels intra and interstate frequently for his employment but said that he would be able to make changes to his employment to ensure that he is able to be at home and care for the children should orders be made for them to live with him, however no significant particulars were given in this regard in his affidavit material.

15. The Court does have some concerns in the above respects if the children were now to live with the Father on an interim basis.

16. In summary, it will not be in the best interests of the children to live with the Father on an interim basis and, in the view of the Court, on the material before it, there is a significant suggestion that the children will not be exposed to an unacceptable risk of harm in remaining living in the Mother’s primary care provided the above discussed proposed protective Orders under this need to protect primary consideration are made.  It will be in the best interests of the children to spend time with the father in accordance with the Mother’s proposed interim orders and which will, together the above discussed proposed protective orders in relation to illicit drugs and/or alcohol consumption, minimise the risks of the children being exposed to any significant risk of harm in spending time with him.

    SECTION 60CC(3) - ADDITIONAL CONSIDERATIONS

    (a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

17. The child, X, described the Mother to the Family Consultant as a good Mother, who was not strict.  She denied being fearful or afraid of Mr B. She denied being fearful or afraid of the Father.  Her interview with the Family Consultant was brief.

18. The child Y identified to the Family Consultant that the parents are able to recognise her sad feelings and both are able to help her with her feelings.  She described the Father as nice and loving. She stated that ideally she would like to live in an equal time arrangement and emphasised that she wants to be able to spend time with each parent.

19. Y described the Mother as nice and caring to the Family Consultant and stated that she thinks the Mother tries really hard.  Again, she stated to the Family Consultant that the Mother and Mr B do not fight often and that they are trying to stop their disagreements.  Outside of her concern for the Mother during conflict with Mr B, the Family Consultant stated that Y denied feeling afraid of Mr B.

20. Y stated that she loves all of her sisters.

21. Y told the Family Consultant that she spends time with the paternal grandparents and said that the paternal grandfather is really good with kids but has anger issues and that sometimes he takes his anger out on the Father.  She stated that when the paternal grandfather is angry it makes the Father stressed.

22. Y told the Family Consultant that she is anxious to recommence school because there have been rumours about her at school because she was taken out of school by the Father and did not return to school to finish term 4 in 2020.

23. The Court takes into account the statements and views of the children made to the Family Consultant whilst acknowledging that the Child Inclusive Conference Memorandum is untested at this interim stage.

    (b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

24. The Court refers to its discussions above under the meaningful relationship primary consideration.  The children would also appear to have positive relationships with the paternal grandparents, the maternal aunt and grandmother, and Mr B’s Mother.

    (ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

25. There is a suggestion, on the material before the Court, that both parties have fulfilled such obligations.

    (d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

26. The Court refers to its discussions above under the primary considerations, in particular as to the potential disruption to the children’s lives if they were to move into the Father’s primary care.

27. The Court has a concern, based on all the material before the Court, that if it was to make the Father’s proposed live with and spend time with proposed interim parenting Orders, providing, inter alia, for the children to spend time with the Mother during school terms effectively two nights each fortnight, that the children’s meaningful relationship with the Mother may be detrimentally affected.

    (e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

28. The Court observes that the Father was able to spend at least regular fortnightly time with the children after the Mother and children moved from the Suburb N area to Suburb D.

    (f) the capacity of:

    i) each of the child’s parents; and

    ii) any other person (including any grandparent or other relative of the child);

    to provide for the needs of the child, including emotional and intellectual needs

29. Subject to the Court’s discussions above under the need to protect primary consideration, there is a suggestion, on the material before the Court, that both parties have such capacities.

    (g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant

30. The Court refers to its discussions above under the primary considerations.

    (h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting Order under this Part will have on that right

31. Not applicable.

    (i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

32. The Court refers to its discussions above under the need to protect primary consideration. Subject to those discussions, there is a suggestion, on the material before the Court, that the parties have demonstrated appropriate attitudes towards the children and to their responsibilities of parenthood.

    (j) Any family violence involving the child or a member of the child's family

33. The Court refers to its discussions above under the need to protect primary consideration.

    (k) If a family violence Order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the Order, taking into account the following: the nature of the Order; the circumstances in which the Order was made; any findings made by the Court in, or in proceedings for, the Order; any other relevant matter

34. Not applicable.

    (l) Whether it would be preferable to make the Order that would be least likely to lead to the institution of further proceedings in relation to the child

35. These are interim parenting proceedings.

    m) Any other fact or circumstance that the Court thinks is relevant

36. It will be in the best interests of the children to make the Mother’s proposed Orders 8 to 11 relating to psychological treatment of the children.  These proposed Orders are supported by the ICL.  The Court refers to the Mother’s allegations in this context, in particular at paragraphs 169 to 174 of her Affidavit filed 19 March 2021.

    PARENTAL RESPONSIBILITY

37. Neither party, nor the ICL, sought an Order relating to parental responsibility. It will not be in the best interests of the children to make such an express Order at this interim stage. An equal time parenting regime will not be in the best interests of the children, nor reasonably practicable, and in this regard the Court refers to its discussions above under the need to protect primary consideration. The Mother’s proposed Orders relating to the children spending time with the Father will probably constitute substantial and significant time under the Act, and will probably be reasonably practicable.

    SUMMARY

38. Evaluating the above discussed relevant considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Interim Orders:

    1.The Interim Orders of the Court made on 12 April 2021 are discharged.

    2.That the children, X, born in 2008 and Y, born in 2010, (collectively, “the children”) live with the Mother.

    3.That the children spend time with the Father as follows:

    (a)During the school term, each alternate weekend from the conclusion of school Friday or (3:30pm if a non-school day) until the commencement of school Monday (or 9:00am if a non-school day);

    (b)During the school holiday period at the conclusion of terms 1, 2 and 3, for the second half of each school holiday period; and

    (c)During the school holiday period at the conclusion of term 4, for half of the school holiday period as follows:

    (i)From 2:00pm on 8th day of the school holiday period for 7 nights concluding at 2:00pm on 15th day of the school holiday period; and

    (ii)Each alternate week thereafter for a period of 7 nights until the conclusion of school holiday period.

    4.All changeovers shall occur at the Mother’s residence if not at the children’s school and the Father shall collect the children from the Mother’s residence or the children’s school and return the children to their school or the Mother’s residence at the conclusion of their time with the Father.

    5.For the purposes of changeover at Order 4, the Father shall be solely responsible for collecting and delivering the children and is restrained from causing a nominee to attend changeover on his behalf.

    6.The parties be and are hereby restrained from consuming alcohol whilst the children are in their care, and in the 12 hours prior to the children entering into their care.

    7.The Mother is injuncted and restrained from consuming illicit substances 72 hours prior to and during the time the children are in her care;

    8.The Mother shall take all reasonable steps to ensure, whilst the children are in her care, that any member of her household, or any person visiting her household:

    (a)does not consume alcohol or illicit substances,

    (b)is not adversely affected by alcohol or illicit substances.

    9.The Mother shall not engage in disputation with her partner Mr B in the presence or near presence of the children and will take all reasonable steps to ensure that her partner will not engage in such disputation with her.

    10.The Mother shall attend upon, and shall take all reasonable steps to have her partner Mr B attend upon, a relationship counsellor to improve communication between herself and her partner.

    11.That the children’s time with the Mother be suspended:

    (a)From 3:30pm or afterschool on Friday immediately before Father’s Day until after school on 3:30pm on the day immediately following Father’s Day each year;

    (b)From 3pm on Christmas Day until 3pm on Boxing day;

    (c)From 3:30pm on each of the children’s birthdays until after 6:30pm on each of their birthdays;

    (d)From 3:30pm of after school on the Thursday immediately preceding Good Friday until 2:00pm on Saturday immediately following Good Friday.

    12.That the children’s time with the Father be suspended:

    (a)From 3:30pm or afterschool on Friday immediately before Mother’s Day until after school on 3:30pm on the day immediately following Mother’s Day each year;

    (b)From 3pm on Christmas Eve until 3pm Christmas Day;

    (c)For each of the children’s birthdays other than in accordance with Order 7(c);

    (d)From 2:00pm on Saturday immediately following Good Friday until before school on the following Tuesday after Easter Monday.

    13.That the parties do all acts and things necessary to ensure the children attend upon, and continue to attend upon, C Clinic at Suburb D for the purpose of psychological and / or therapeutic treatment with such sessions to be non-reportable.

    14.That if the psychologist / treater of the children from C Clinic deems it necessary and / or otherwise appropriate and so recommends that either or both of the parties shall attend such treatment with the children, then either or both of the parents shall so attend as recommended.

    15.That the Mother’s lawyers be given leave to provide to C Clinic at Suburb D a copy of all pleadings filed to date by the parties and a copy of these Orders.

    16.The Mother and the Father equally pay the costs of each child’s attendance upon C Clinic Suburb D.

    17.The Mother and the Father shall both undertake a hair follicle test, such test shall be conducted in the following manner:

    (a)Such testing is to be carried out by Australian Workplace Drug Testing Services (AWDTS) clinic or its nominee who shall be directed to carry out hair follicle testing for the detection and quantity of drugs of abuse within both parties’ system and such testing shall:

    (i)Be conducted by a qualified and certified collector;

    (ii)Follow a chain of custody procedure;

    (iii)Be conducted at an approved laboratory, accredited to conduct hair drug testing to the international standard ISO/IEC 17025:2205 by the relevant National Accreditation Body for that laboratory;

    (b)The Mother and the Father are to provide the collector with photographic identification to be recorded before the hair collection;

    (c)The Mother and the Father are at liberty to provide AWDTS with a copy of these Orders;

    (d)The Mother and the Father shall do all things and sign all documents necessary to undertake hair follicle testing in accordance with the procedure outlined in this Order.

    18.Upon the parties’ compliance with Order 13, the Mother and the Father shall thereafter undertake hair follicle testing within 48 hours of receiving a request from the independent children’s lawyer (ICL) provided that no more than one request is made in any four-month period and such test shall be undertaken in accordance with the terms of Order 13.

    19.The parties shall submit to random supervised chain of custody urinalysis testing conducted in accordance with the Australian/New Zealand Standard 4380:2008 procedure for the collection, detection and quantification of drugs of abuse in urine, within 48 hours of the ICL making a written request of the parties and the parties will provide the test results to the ICL within 48 hours of them being available and the ICL is not to make more than one request per month.

    20.Each party shall meet the costs of their own testing pursuant to Orders 17, 18 and 19.

    21.The proceedings are adjourned to 7 September 2021 at 2:15pm for mention.

I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.

Associate:

Dated:       21 July 2021