ADEMA & HAMBLETON
[2018] FCCA 3152
•2 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ADEMA & HAMBLETON | [2018] FCCA 3152 |
| Catchwords: FAMILY LAW – Child aged 21 months old – interim hearing – assessment of risk – mother’s previous history of drug abuse – proportionate response to degree of risk involved – unacceptable risk test – meaningful level of relationship with each parent – best interests. |
| Legislation: Family Law Act 1975 (Cth), ss.60B; 60CA; 60CC; 61DA(3) |
| Cases cited: Deiter & Deiter [2011] FamCAFC 82 |
| Applicant: | MR ADEMA |
| Respondent: | MS HAMBLETON |
| File Number: | ADC 4220 of 2018 |
| Judgment of: | Judge Brown |
| Hearing date: | 31 October 2018 |
| Date of Last Submission: | 31 October 2018 |
| Delivered at: | Adelaide |
| Delivered on: | 2 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bowler |
| Solicitors for the Applicant: | Scales & Partners |
| Counsel for the Respondent: | Mr Hemsley |
| Solicitors for the Respondent: | Legal Services Commission of South Australia |
ORDERS
UNTIL FURTHER OR OTHER ORDER:
The child [X] born 2017 (hereinafter referred to as “the child”) live with the father.
The child spend time with the mother as follows:
(a)each Wednesday from 7:30am to 5:30pm commencing 7 November 2018; and
(b)each Saturday from 9:00am to 5:00pm commencing 10 November 2018.
The time set out in order (2) hereof be subject to the following condition:
(a)It take place at the home of the maternal grandmother Ms J and subject to her supervision.
An injunction issue and the mother is restrained from ingesting any illicit drug during any period of time the child is in her care or beforehand.
The child be exchanged between the parties to give effect to order (2) hereof at the home of the maternal grandmother.
The parties be restrained and injunctions are hereby granted restraining each of them from abusing or denigrating the other in the presence or hearing of the child or permitting any other person so to do.
The parties be restrained and injunctions are hereby granted restraining each of them from having the child medically or psychologically/ psychiatrically examined unless they both consent to such examination or the examination is directed by an officer of the Department for Child Protection (SA).
Pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 15 February 2019.
The family assessment to deal with the following matters:
(a)to include interviews with the parties, the child and relevant family members;
(b)observed interaction between the child and the parties;
(c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;
(e)any other matters that the family assessor considers important to the welfare or best interests of the said child.
The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.
Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference
NOTING:
A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
B.Section121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court
Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
During the period of the adjournment (prior to 28 February 2019) the mother participate in three (3) random urine drug screen tests within twenty-four (24) hours of being requested by the father’s solicitor to submit to a urine test for the presence of illegal drugs and/or substances and for the purposes of such testing the provision of the urine sample is to be personally supervised and observed by a qualified medical practitioner or their authorised delegate in accordance with the chain of custody protocol specified in AS/NZ 4308:2008 with a copy of the results of such tests to be provided to the father’s solicitor as soon as they become available.
The matter be listed for trial on 14, 15 & 16 August 2019 at 10:00am.
The matter be adjourned to 28 February 2019 at 9:30am for further directions.
IT IS NOTED that publication of this judgment under the pseudonym Adema & Hambleton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 4220 of 2018
| MR ADEMA |
Applicant
And
| MS HAMBLETON |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Adema and Ms Hambleton are the parents of [X], born 2017. Mr Adema and Ms Hambleton are unable to agree on interim provisional arrangements for [X]’s care, following their recent and emotionally challenging separation and in the context of a serious medical crisis affecting Ms Hambleton.
Given [X]’s tender years, he must be regarded as a vulnerable child, who is not in a position to seek safety or voice concerns, from those in authority, if his parenting becomes compromised for any reason. Axiomatically, he is dependent upon the adults around him to provide him with a safe living environment.
At this early stage, his safety – in both physical and emotional terms – must be the court’s major focus, particularly given there has not as yet been sufficient time for any independent, objective and expert report to be prepared.
In due course, such a report will be able to canvas the parenting capacity of each of the parties and examine the nature of [X]’s relationship with each of his parents. Such a report is likely to be essential to determine the outcome which will serve [X]’s best interests in the longer term. However, pending the provision of that report and until each of the parties has been given an ample opportunity to gather evidence and test the case of the other, the court must put in place provisional arrangements for [X]’s care in difficult and challenging circumstances.
The father’s position is the mother is in the grip of a serious addiction of methamphetamines, which has precipitated her to suffer two serious episodes of psychosis, requiring a significant level of hospitalisation. He believes that [X] was subject to compromised parenting, during these incidents, which included him being exposed to the mother’s volatile, violent and unpredictable behaviour.
The father is not confident that the mother has been candid with him about her condition or fully compliant with the treatment and counselling regime prescribed for her. More significantly, he is not in a position to assess whether the mother is either drug free and likely to remain so has and has both access to and is willing to utilise therapeutic support to remain so.
In these circumstances, he contends that considerations of [X]’s overall safety dictate that the child should live predominantly with him and spend only day time periods, in the care of his mother, subject to the supervision of some responsible adult. Ms Hambleton’s mother, Ms J would be acceptable in this regard.
The mother is not in a position to dispute that she has not recently been significantly unwell. At my direction, she has submitted two discharge summaries, from the Hospital, which indicate that she was in hospital, on two occasions, between 16 July 2018 and 23 July 2018; and between 26 September 2018 and 5 October 2018; respectively.
It is the mother’s position that her condition has now stabilised and she is seeking the treatment required by her, which will ensure she remains drug free. She is living with her mother, Ms J, whom she characterises as a responsible person, who is vehemently opposed to drug taking and who will be vigilant for [X]’s safety.
More significantly, it is her position that she has been [X]’s primary carer, since his birth and it will be potentially emotionally destabilising if he moves into the predominant care of his father and have only limited interaction with her. She is not confident the father will be able to both work and be able to parent [X].
These proceedings are directed to resolving this complicated dispute, which arises at a point of extreme crisis in the lives of the individuals concerned. At this early stage, I am not in a position to resolve definitively the complicated evidentiary controversies, which arise between Mr Adema and Ms Hambleton.
In addition, at this provisional stage, I do not have the necessary evidence available to me to determine how [X]’s best interests are to be served on a long-term final basis. At this stage, my focus is on providing triage for the family. In this context, it is my responsibility to assess risk for [X]. This risk can be summarised in the following terms:
·There is a risk for [X] if he is in the care of a parent who is drug affected and who may display labile behaviour, whilst under the influence of illicit substances;
·Even if Ms Hambleton is currently drug abstinent, there is a potential risk that she will resume drug use clandestinely, particularly if placed under some form of emotional stress, with possibly serious and unpredictable consequences for [X];
·This risk may remain notwithstanding the efforts of responsible adults, such as Ms J, who may not be able to detect the signs of relapse or other factors potentially leading to further crisis because of a lack of objectivity and expertise;
·There is a risk that [X]’s emotional wellbeing will be compromised if he is removed from the care of his primary carer, particularly if he is required to spend long periods of time, in child care, whilst his father continues to earn his living;
·This risk would be particularly serious if it later transpires that the mother was in a position to provide an appropriate standard of care for [X], whilst she lived with her mother.
Proceedings of this kind, conducted against a background of emergency, are not calculated to foster any degree of cooperative relationship or trust between the parents concerned. Frequently, they lead to an environment in which significant criticisms are made of the individual parents concerned. Due to the absence of cross-examination, at the interim stage and because affidavit material has frequently been hastily prepared, such controversies cannot be satisfactorily resolved at the interim hearing stage.
It is the mother’s position that Mr Adema has his own significant social problems, which include alcohol abuse, gambling and an addiction to pornography. It is also her case the father has himself abused illicit drugs in the past.
In this context, it is the mother’s case that the father poses a significant risk to [X] because of what she would characterise as his serious anti-social behaviour. It is further her position that [X] has been exposed, in some way, to some aspects of this behaviour because she has noted him to behave in unusual ways after spending time with his father. She alleges that [X] is aggressive and has started humping his toys after being with his father. She asserts that this behaviour became more extreme whilst she was in hospital and [X] was in the care of his father.
In this context, Ms Hambleton is also concerned that what she would characterise as the father’s extremely long working hours, which will necessarily dictate that [X] is placed in day care during the majority of the working week. Essentially, it is her case that she is more emotionally intuned with [X] and it would be risky to disrupt him further, at this vulnerable stage of his development.
On the other hand, it is Mr Adema’s position that the mother is either exaggerating or has fabricated [X]’s behaviour in an attempt to portray him in a poor light. It is his case that there is absolutely no probative evidence, which indicates that he constitutes any form of risk for [X], which he asserts cannot be said for Ms Hambleton, given her well documented level of substance abuse.
In this context, he would categorise the mother’s affidavit evidence regarding her current situation and the factors which led to her hospitalisation as being vague and evasive in nature. It is his position that she has failed to be frank with both him and the court about her very serious problems. In particular, he points to the fact that the mother has recently disclosed being charged with driving offences, including dangerous driving, but has provided scant details of the offending, particularly whether [X] was in the motor vehicle at the time and what, if any, was the involvement of illicit substances.
In short, the positions of the parties are polarised in the extreme. Each has made significant criticisms of the other’s personality and capacity as a parent. In these difficult circumstances, as best it can, the court must put in place an arrangement for [X]’s care, which it considers to be in his best interests. This task fundamentally involves the assessment of risk. The court is under an obligation to assess the degree of that risk and put in place mechanisms which are commensurate with the degree of risk so assessed.
In this context, it is Mr Adema’s position that the only reasonable and child focussed response to the risk represented by Ms Hambleton’s drug problems and the related danger that she will suffer a recurrence of paranoia is for the child to live with him and have closely monitored time with his mother, until such time as Ms Hambleton has demonstrated a long-term commitment to remaining drug free and there is evidence of her having successfully completed treatment.
On the other hand, it is the mother’s position that for [X] to live with her, subject to the supervision of her mother, whilst she undergoes voluntary treatment and is subject to a regime of random drug screen tests is a response commensurate the degree of risk, which her previous conduct represents for [X]. As a corollary of this position, she asserts that it has the potential to be emotionally harmful for [X] to live with his father.
Background
The father was born in 1989; the mother was born in 1990. They met in 2008 and began living together in 2015. They married on 2018 and separated, in difficult emotional circumstances, approximately two months later. It is the mother’s position that the abruptness of this separation, following a reasonably lengthy relationship, caused her to become destabilised emotionally.
The father is employed as a (occupation omitted). The mother is not currently employed. In the past she has been employed as a (occupation omitted) at a (employer omitted). She has an interest in studying (course omitted).
It is Mr Adema’s position that the mother’s increasingly erratic behaviour led to the parties’ separation. On the other hand, it is the mother’s position that the separation was precipitated when she discovered evidence of the father’s online gambling and accessing of pornography on his mobile telephone and challenged him about it, leading to conflict. She was devastated. In these circumstances, she deposes that she “resumed using drugs as a way to cope with the stress of the marriage breakdown”.
At this stage, there is a dearth of independent and so objective evidence about the mother’s current level of health. In this context, her counsel Mr Hemsley points to the fact that there has been very little time to gather this evidence. I accept that this is so. However, in these circumstances, the discharge summaries, provided by the mother, assume significant importance.
In the first summary, the following salient aspect of the mother’s history provided:
“History of methamphetamine use since the age of 19 … dependent on methamphetamine between 2013 and 2015, attending rehabilitation centre for six weeks, abstinent from this time until recent relapse. Clean throughout pregnancy with [X]. Began to use daily in May 2018 following separation from husband. … Ms Hambleton noted that she had separated from her husband of several years in May 2018 … since then, she has been managing feelings of stress and anxiety with methamphetamine. Ms Hambleton’s most recent use of methamphetamine occurred the day prior to presentation.”
On discharge, the mother’s mental state was noted to have settled quickly. She was prescribed an anti-psychotic medication and referred to her general medical practitioner for management. She was also referred to a psychologist and given details for drug and alcohol counselling. In these circumstances, she was discharged to the home of her mother.
Mr Adema knew of this admission and returned [X] to her care on 24 July 2018. It is his position that the mother assured him that she was not intending to use drugs in the future and her relapse had been a “one of episode”. Thereafter, it is Mr Adema’s evidence that he became increasingly concerned at Ms Hambleton’s physical presentation whenever he saw her. In his assessment, she looked unwell. In these circumstances, he was concerned that the mother was not capable of looking after herself, let alone [X]. He took some reassurance from Ms Hambleton’s mother and sister that Ms Hambleton seemed to be settling down.
In the second summary, the wife’s presenting problem on admission is noted to be “drug induced psychosis”; in this context Mr Adema is concerned that the mother may not have been compliant with the anti-psychotic medication prescribed for her earlier. In addition, for obvious reasons, the second admission has caused him to lose confidence in the capacity of Ms Hambleton to support the mother and monitor her behaviour.
On the second occasion, the mother was brought to hospital by an authorised officer under the provisions of the Mental Health Act. The officer concerned was “called by Family for Concern regarding bizarre behaviour and aggression in context of drug-induced psychosis. Urine drug screen on presentation was positive for methamphetamine and amphetamine.”
In second summary, under the heading Substance Use History, is recorded the following passage:
“Ms Hambleton reported one-two points of meth only when she is under stress or lonely but collateral suggested that this is an under-estimate.”
At this stage, I have not been provided with any detailed psychiatric/psychological assessment of the mother, particularly detailing what factors may precipitate her to relapse in future. Necessarily, Ms Hambleton’s current circumstances are stressful.
In this context, it is the import of Mr Adema’s evidence that Ms Hambleton’s earlier assurances to him that her problems were under control and she was drug free are axiomatically fallacious. In addition, it is his case that the social supports put in place to support Ms Hambleton, after her first admission, were insufficient to negate the factors which triggered her resumption of amphetamine use.
On the other hand, it is the submission of Mr Hemsley, counsel for the mother that the fact that it was Ms J, who was instrumental in arranging the involuntary admission of the mother to hospital (presumably by calling police to her home) and her obvious level of candour with the medical staff there indicate that she is both a responsible and insightful individual.
Essentially, it is Mr Hemsley’s submission that the court can have confidence that Ms J will act protectively, so far as [X] is concerned and her conduct indicates that she will act proactively, if Ms Hambleton become compromised in future, notwithstanding her ties of love to her daughter.
On her admission on 26 September 2018, the mother’s presentation was noted to be resistant to treatment. Thereafter, Ms J was a frequent visitor. The mother was given guidance to deal with her pressing social problems, which included traffic fines of $13,000.00 and the unfolding prospect of these proceedings. In this context, her progress is recorded in the following terms:
“Mental state stabilised over the next few days with reduction in hostility … appropriately engaging with treating team and allied health. There was no evidence of psychosis as of 2 October 2018. … Family meeting was held with Ms Hambleton, Ms J and treating team. Despite Ms J’s initial strong reservations to let Ms Hambleton return to her home, with Ms Hambleton demonstrating strong and apparently genuine willingness to stop drug use, Ms J agreed to let Ms Hambleton come back with strict conditions.”
In this context, the mother was released into the care of Ms Hambleton, with her agreement that she would be subject to random urine drug screen tests at Ms J’s discretion. A prescription for anti-psychotic medication was also provided and she was rescheduled for drug counselling support.
Ms J is employed as an (occupation omitted). She has provided an affidavit in these proceedings. It is her evidence that the mother has not used drug since being released from hospital in October and has sought appropriate treatment from her doctor and a counsellor. She deposes as follows:
“I am very protective of my grandson [X]. [X] is my number one priority.
I do not tolerate drug use. If I suspected my daughter was using drugs again, I would immediately remove [X] from the situation and not allow the mother back into my house whilst she was using or affected by drugs. I am aware of the risks of using drugs and do not want my grandson exposed to drug use. I can tell when my daughter is affected by drugs from her behaviour and her eyes.”[1]
[1] See affidavit of Ms J filed 29 October 2018 at [9] & [10]
The father was present, when the mother was taken to hospital, on 26 September 2018. It seems improbable that his account of the mother’s presentation, on this occasion, is unreliable, given the response of police to it. On any view, the mother’s behaviour was highly concerning and disturbing.
It is the father’s evidence that [X] was present during the incident with police and presented as being distressed, flustered and in tears. It is Mr Adema’s evidence that Ms Hambleton had to be handcuffed. In these circumstances, it is hardly surprising that he has lost trust in the mother, at this stage.
He continues to believe that Ms Hambleton is likely to be down playing the significance of what has happened and lacks insight into the extent of her difficulties. It is his view, albeit one which lacks professional expertise, that she needs to enter a residential drug treatment facility, as she did previously, in order to overcome her current difficulties.
In her affidavit material, Ms Hambleton has deposed as follows:
“I am compliant with my medical treatment and am having counselling. I see a doctor every 2 weeks to check on my medication (currently anti-depressants). I have had 2 phone appointments with my counsellor, Mr B, and will start face-to-face appointments on 31 October 2018.”[2]
[2] See affidavit of Ms Hambleton filed 25 October 2018 at [43]
The father is concerned at this statement, in the light of the second discharge summary, which indicated the need for the mother to have ongoing anti-psychotic medication. He is concerned that the mother has apparently ceased this medication and is now being prescribed anti-depressants, which does appear to be congruent with the treatment regime prescribed for her on release from hospital. This is yet one more evidentiary issue, which cannot be resolved in the context of these interim proceedings.
The father commenced these proceedings on 9 October 2018, the day following the mother’s release from hospital. On his request, they were given an urgent return date, which was 26 October 2018. At that stage, his evidence indicated that [X] was in his care and was accordingly safe.
Following this application, the mother resumed care of [X]. It seems clear that this did not occur on a consensual basis. Police were involved, during which the mother alleged Mr Adema was sexually abusing the child.
These circumstances have undoubtedly exacerbated the already extreme level of difficulty in this case. Whatever happens next, it is clear that there must be a fixed regime, so that all concerned know when and where [X] is to be exchanged between the parties and what conditions should attach to these arrangements.
In the lead up to the interim hearing, Mr Adema has deposed a further affidavit, in which he vehemently refutes any suggestion that he would abuse [X]. It is his position that since the mother assumed care of [X], he has not been able to see the child, which is indicative of a poor level of insight on Ms Hambleton’s part into the responsibilities of being a parent.
He has provided written testimonials from a doctor and [X]’s day care centre regarding his relationship with [X]. It is his position that there is no independent evidence to support the mother’s assertion that [X] has been behaving in any manner, which is supportive of him having been sexually abused. In this context, it is the submission of his counsel, Mr Bowler that the child’s behaviour, if indeed it has been unusual, may very well be reflective of his mother’s volatile behaviour.
On the first mention of the matter, I was hopeful that some agreed plan could be negotiated between the parties to ensure that there was both stability and protection for [X], during which emotions might settle and the extent of the mother’s difficulties became clearer. I harboured this aspiration because of what had happened, following the first admission, which seem to indicate some capacity on the part of the parents to communicate with one another. This hope has proven to be misplaced and the current proceedings have been vigorously contested.
The first mention was adjourned for a short period of time and some holding orders agreed upon. From Mr Adema’s perspective under sufferance. I directed Ms Hambleton provide her discharge summaries and, if possible some further medical evidence. She was also directed to undergo a supervised drug screen test within twenty four hours. This was done and proved to be negative for illicit substances.
Legal principles applicable
The central issue, in the case, at this stage, centres on child protection issues. What is the level of risk, arising for [X], if he remains in his mother’s care due to her previous history of drug abuse, leading to drug induced psychosis?
On the other hand, what level of risk arises for [X], if he is placed in the care of a person who is alleged to have subjected him to some form of exposure to sexually explicit material? In addition, what are the emotional risks for [X] of being removed from his historical primary carer?
In the absence of any independent family assessment, these are difficult issues to resolve, on the basis of untested and hastily prepared affidavit material. Notwithstanding these evidentiary difficulties, which arise at the interim hearing stage, the court must still nonetheless make a decision and put in place the orders, which it considers will best regulate the situation, as far as [X] is concerned, according to the relevant principles contained in the Family Law Act 1975.
In this context, it is clear that the court is required to consider child protection issues in its decision making processes, and should not defer its responsibility in this regard because of deficiencies in the evidence before it or, more importantly, because it is not in a position to resolve definitively controversies arising between the parties, including in respect of potential child abuse issues.
In Deiter & Deiter[3] the Full Court said as follows:
“The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”
[3] See Deiter & Deiter [2011] FamCAFC 82 at [61]
In SS v AH[4] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:
“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.”
[4] See SS v AH [2010] FamCAFC 13 at [100]
In Eaby & Speelman[5] the Full Court endorsed this approach as enabling “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.” In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution, at the interim stage. This is the position in the matter currently before the court.
[5] See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19]
It is to be noted that although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. In deciding to whether to make any particular parenting orders, in relation to a child, the court must regard the best interest of that child as the paramount or most important consideration [Family Law Act 1975, section 60CA].
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Family Law Act 1975 set out in section 60B.
As indicated above, in Deiter, the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.
Essentially, the court is required to assess risk and put in place a proportionate response to the degree of risk involved. Risk arises in every aspect of human endeavour. No individual’s life, including the life of a child, can be rendered entirely free of all risk. In this court, as with life, it is a question of balancing and assessing the degree of risk arising, on an objective basis.
The court is frequently called upon to assess all manner of potential risks to the children concerned in proceedings coming before it. These risks include the risk of exposing a child to a parent, who is incapacitated by the consumption of drugs or alcohol; compromised parenting, as a result of psychological illness or personality disorder; possible risks relating to the exposure of a child to an angry and unpredictable parent; and, the risk of a child being exposed to a person’s sexual behaviour or the child being sexually assaulted or used as an object of sexual gratification.
In M & M,[6] the High Court formulated a test, which has since been referred to as the “unacceptable risk test” as means of balancing the benefits arising for a child of interacting with a parent with possible detriments arising from exposure to that parent. Essentially the court should not grant time to a parent with a child, if the situation envisaged would expose the child concerned to an unacceptable risk suffering some form of harm or abuse. The standard of proof applicable to the assessment of risk, in this context, is the ordinary civil standard.[7]
[6] See M & M (1988) FLC 91-979 at page 77,081
[7] See B & B (1988) FLC 91- 957 at 76,935
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
“The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.” [8]
[8] Slater & Light [2013] FamCAFC 4 at [37]
Conclusions
I accept that [X] has a close and loving relationship with each of his parents. In this context, he is likely to benefit from continuing to have a meaningful level of relationship with each of them. The question is how can this occur safely and in circumstances in which there is no unacceptable risk that he will suffer some form of either physical or emotional harm because of the conduct of one of his parents?
In my assessment, the mother’s conduct, following the parties’ separation, has been highly concerning. The evidence indicates that hers was not an isolated incident of amphetamine abuse. Rather it was protracted and has had serious medical consequences for her. The sequelae of her illness are not yet clear.
It may well prove to be the case that she has succumbed to drug abuse because of her emotional vulnerability to the stressors unleashed at the end of the parties’ marriage. This may be a cause for the court to feel some sympathy for her plight, but such a reaction is not necessarily protective of [X].
In my view, [X]’s age – not yet two years of age – is a central consideration in the case. [X] is highly vulnerable. His safety must be the court’s paramount consideration. In these circumstances, I am gravely concerned at the inability of Ms Hambleton to prevent her daughter’s continuing drug use, following her first admission and the treatment provided for her.
In these circumstances, I have reached the conclusion that I would be derelict in my responsibilities, if I countenanced the child continuing to live with his mother, even subject to the proviso that this occur in Ms J’s home and be subject to her supervision. In my view, the risk of a further relapse, with the significant possibility of [X] being exposed to an episode of violent and unpredictable behaviour emanating from his mother, is just too extreme for the court to take.
I have no reason to doubt the assurances of Ms J that [X] is her number one priority. However, she has her own responsibilities in life and is not professionally trained. She is not a drug counsellor. More significantly, as indicated above, she was not able to prevent her daughter’s relapse into drug use following her initial hospitalisation.
I wish Ms Hambleton well in her treatment, which I hope is now established. However, the fact remains that she is only a few weeks out of hospital. In addition, I have no expert evidence regarding her prognosis in the medium to longer term. Rather, the evidence I have is relevant to the treatment she received at the point of extreme crisis in her drug use, which was directed to stabilising her condition rather than treating it in the longer term.
This evidence suggested the way forward for Ms Hambleton – a combination of medical and therapeutic interventions. The mother has said that she is committed to them. However, I have no direct evidence from either her counsellor or doctor in this regard. In addition, Ms Hambleton’s life remains replete with stressful factors, not the least of which are her loss of licence and the very significant traffic fines she must expiate. At this stage, I am concerned that there is a lack of evidence to indicate that her life is permanently back on track as she suggests it is.
In addition, she is not a person who can be described as having only a tangential involvement with illicit drugs. Regrettably, since her adolescence, albeit with long periods of abstinence, she is a person who has struggled, from time to time, with drug abuse issues. This too calls for a cautious approach.
In my view, these factors militate in favour of the court making the orders which Mr Adema seeks. In my assessment, there are simply too many question marks surrounding Ms Hambleton at this stage. These include the circumstances surrounding her traffic offending. Both Mr Adema and the court are entitled to know more about this and to have more information about her ongoing treatment in addition to her assurance that she is following her doctor’s recommendations.
I am well aware that Mr Adema’s proposals may constitute a significant emotional break for [X]. Although I have no desire to enter into the controversy of the benefits of day care vis-à-vis the care provided by a loving parent, one on one with a child, the fact that [X] must attend day care is not, of itself, a factor sufficient to negate the concerns raised by the father.
On any view, [X] has a close and loving relationship with his mother. I also accept that he has a close relationship with his maternal grandmother and no doubt with other members of his extended family, on both the maternal and paternal aspects. In this context, I accept Ms Hambleton is a well-motivated person. It is deeply unfortunate that the current crisis has precipitated such a deep and acrimonious rift in [X]’s family, which previously seemed to be reasonably close.
Although I appreciate the mother may regard the father’s proposals for [X] to spend time with her as being far from ideal and indeed oppressive and cruel to her, in my view, they do provide an appropriate means for the child to maintain his relationship with his mother, particularly whilst she is given an opportunity to focus on the restoration of her health. They will also ensure that [X] will be able to engage regularly with his maternal grandmother and aunt.
The mother has characterised Mr Adema as a person with his own significant social problems, centred on pornography and alcohol, which pose a threat to [X]’s wellbeing. These allegations arise in the context of these emotionally laden and vitriolic proceedings. The only evidence to support them comes from the mother and arises in the context of the parties’ obviously very difficult separation.
As Fogarty J said in N&S and the Separate Representative:
“…courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”[9]
[9] See Per Fogerty J in N & S and the Separate Representative (1996) FLC 92-655 referred to in W & W at [95]
In W and W [Abuse allegations: unacceptable risk][10] the Full Court summarised a number of authorities dealing with abuse allegations. I acknowledge that the considerations delineated are more relevant to final hearing situations. However, in my view, they remain a useful yardstick to assist the court in assessing whether an unacceptable risk arises, in any particular parenting situation. They include the following:
[10] W and W [Abuse allegations: unacceptable risk] [2005] FamCA 892
·What is the nature of the events alleged to have taken place;
·Who has made the allegations;
·To whom have the allegations been made;
·What level of detail do they involve;
·Over what period of time are the events alleged to have occurred;
·What are the effects exhibited by the child;
·What expert evidence has been provided;
·Are there satisfaction explanations for the allegations apart from abuse;
·What are the likely future effects on the child.
In this context, the relationship between the parties is extremely poor and they communicate with extreme difficulty. The mother’s complaints have arisen in the context of the parties’ acrimonious separation. There is no clear explanation as why [X] has behaved in an unusual manner, although it is clear he has been subject to unstable arrangements of for his care. There is no clear attribution of any misconduct by the mother, on the father part in respect of this alleged behaviour. The detail of complaint is slight. Her complaints are thus based on a significant level of conjecture.
Having, assessed the evidence available in this case, whilst noting the interim nature of these proceedings, I am not of the view that the father’s alleged behaviour can be assessed as representing an unacceptable risk for [X]. Rather, on balance, the concerns I have regarding the mother, ameliorated although they would be by the continuing involvement of Ms J are more significant.
The controversies in this matter are unlikely to abate in the short to medium term. I will order that a family report be prepared and will set the case for a final hearing, so if necessary, the evidence of each party and those associated with them can be fully examined. Necessarily that trial date will be some time off. This will, I hope, give the mother the opportunity to concentrate on her health and rehabilitation, which surely is in [X]’s interests. He needs a fully functioning and healthy mother.
In the context of this report, in my view, it is not appropriate that [X] be subject to any other form of forensic examination unless the parties themselves agree it is necessary or it is directed by the Child Protection Authorities. I will make the injunction sought by the father in this regard.
It is not appropriate, in the circumstances of this case, at this interim stage, for the presumption of equal shared parental responsibility to be applied [see section 61DA(3)]. Accordingly considerations relevant to equal time and substantial and significant time arrangements are not germane.
I will direct that [X] be exchanged between the parties at Ms Hambleton’s home given the mother’s lack of a driver’s licence. At this stage, I am of the view that daytime periods of time are appropriate whilst the mother is in the early stages of treatment.
The time will be subject to the supervision of her mother and the proviso that she is drug free. I will make a further order for three supervised random drug screen tests in the period of the adjourned, which will be to a date after it is anticipated the family report will be to hand.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 2 November 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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Proportionality
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