Akston & Boyle
[2010] FamCAFC 56
•26 March 2010
FAMILY COURT OF AUSTRALIA
| AKSTON & BOYLE | [2010] FamCAFC 56 |
| FAMILY LAW - APPEAL – Against parenting orders made by a Federal Magistrate – Where a significant issue in the proceedings related to the use of drugs by the Father and the risk of harm to the child – Where there is a history of abuse of the child FAMILY LAW - APPEAL – EVIDENCE – Where the issue of any current or future risk of harm to the child required careful consideration of the evidence– Where the controversy about the use of drugs was clearly relevant to consideration of the matters in s 60CC(2)(b), s 60CC(3)(f), (i), (k), (l) and (m) and, in turn, s 65DAA(1)(a), s 65DAA(2)(c) and s 65DAA(5)(b) and (c) FAMILY LAW - APPEAL – EVIDENCE – Where the Federal Magistrate had the benefit of the Family Report and where the Family Consultant was not cross examined – Where the Family Consultant made a number of recommendations none of which were reflected in the final orders of the Federal Magistrate – Where the Federal Magistrate’s reasons for departing from the recommendations of the Family Consultant are inadequate FAMILY LAW - APPEAL – EVIDENCE – Where the Federal Magistrate made findings consistent with what was urged upon him on behalf of the Father – Where the Federal Magistrate failed to give sufficient consideration to a number of matters including but not limited to the Father’s drug usage – Where the Federal Magistrate gave undue weight to what the Father contended he had done since the interviews with the Family Consultant – Where there was a preponderance of evidence which pointed to a risk of harm which the Federal Magistrate failed to assess and give appropriate weight to when considering the very important question of risk of harm FAMILY LAW - REDETERMINATION – That the matter be remitted for rehearing – Where evidence will need to be adduced as to the what has happened since the orders subject of the appeal – Where a further Family Report should be prepared – Where consideration may have to be given to other expert evidence such as evidence from an expert in drug and alcohol abuse FAMILY LAW - COSTS – Where both parties are in receipt of a grant of legal aid – Where the appeal succeeded on an question of law – Costs certificates granted |
| A & J (1995) FLC 92-619 Norbis v Norbis (1986) 161 CLR 513 Oakley & Cooper [2009] FamCAFC 133 |
| Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Federal Magistrates Act 1999 (Cth) |
| APPELLANT: | MS AKSTON |
| RESPONDENT: | MR BOYLE |
| FILE NUMBER: | CSC | 1042 | of | 2007 |
| APPEAL NUMBER: | NA | 5 | of | 2009 |
| DATE DELIVERED: | 26 March 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Warnick, Boland & O'Ryan JJ |
| HEARING DATE: | 24 September 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 15 December 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 1448 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bourke |
| SOLICITOR FOR THE APPELLANT: | Cuthbertson & Co. Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms J Hogan |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Queensland |
Orders
The appeal be allowed.
Orders 11 and 12 made on 15 December 2008 be set aside.
The applications for final parenting orders are remitted for rehearing before a Federal Magistrate other than Coates FM.
There be no order as to costs between the parties.
The Court grants to the Appellant a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant in respect of the costs she has incurred in relation to the appeal.
The Court grants to the Respondent a costs certificate pursuant to section 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent in respect of the costs he has incurred in relation to the appeal.
The Court grants to each party a costs certificate pursuant to the provisions of section 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to them in respect of the costs incurred by them in relation to the rehearing.
IT IS NOTED that publication of this judgment under the pseudonym Akston & Boyle is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 5 of 2009
File Number: CSC 1042 of 2007
| MS AKSTON |
Appellant
And
| MR BOYLE |
Respondent
REASONS FOR JUDGMENT
Warnick J:
I have had the considerable advantage of reading in draft the comprehensive reasons of O’Ryan J. I agree that the appeal should be allowed and with the proposed orders.
However, I do not agree with the extent of the criticism of the Federal Magistrate’s reasons for judgment or of the grounds of appeal and the written summary of argument for the appellant.
The trial took place on 11 December 2008 which was a Thursday. On the second working day after that, the Federal Magistrate delivered his reasons. I am not sure whether they were in writing or delivered orally, although references in certain terms lead me to think it likely they were delivered orally. The Federal Magistrates Court is a very busy trial court and unless a percentage of judgments are delivered orally and within a short time of hearing, the burden of reserved judgments and the delays in delivering them are likely to become unacceptable.
Pressures also exist to deal with matters on the date allocated for trial, notwithstanding that preparation may be wanting. Adjournment of trials generally costs clients dearly, obviously causes delay and is not an efficient use of court time.
I agree with O’Ryan J that the appeal should succeed, because the assessment of risk of harm to the child through the father’s use of drugs, was flawed. Firstly, as O’Ryan J observed, the Federal Magistrate stated that he must order the father to remain off marijuana. The only reasonable inference is that the Federal Magistrate saw some risk of harm to the child if the father continued marijuana use. Yet there was no consideration of the likelihood of compliance with that order.
I also agree with O’Ryan J that a finding that the mother did not really believe that there was a risk of harm to the child from the father’s continuing drug use was far from an answer to the question which had to be asked, namely “What was the risk of harm to the child from the father’s continued use of drugs?”.
I agree with O’Ryan J that the Federal Magistrate failed to differentiate between two questions, both of which presented for consideration; the risk of harm to the child if the father continued to use methadone and/or marijuana, and the risk of harm to the child if the father returned to other drug use (which in turn included the question of the risk of recidivism).
The Federal Magistrate was likely to have been much assisted had there been expert evidence going to matters such as links between marijuana use and use of harder drugs, the effects of marijuana use as the father had described, the risk of recidivism, whether remaining on or off the methadone program, and of the consequences of, and availability of, continued use of the methadone program.
However, the learned Magistrate was left without that assistance.
The learned Magistrate thus may have been in the position where he could make few findings about the risk to the child from the father’s drug use or from a return to using other drugs.
In my view, it was not open to the learned Magistrate, in assessing the risk to the child of an equally shared parenting regime, to place such heavy reliance on an inference that, because the mother consented to an equal sharing of holidays, she did not believe there was any significant risk of harm.
Nor was it open to the Federal Magistrate to make the positive finding that he “could not term the risk or fear of the father’s return to drug usage as an unacceptable risk”.
I also agree that, for the reasons O’Ryan J gives, there is merit in ground 1(c), asserting that the Federal Magistrate placed insufficient weight on the evidence relating to the nature of the relationship between the child, his siblings and Mr W and the likely effect that the child’s separation from his siblings and Mr W would have on the child.
However, I disagree with O’Ryan J’s reasons for finding merit in ground 1(d) asserting that the Federal Magistrate failed to give sufficient weight to the Family Report or to provide any cogent reasons as to why the recommendations of the report were not followed. In so far as one of the reasons for the consultant’s recommendations was concern about the father’s emotional dependence on the child, the father’s case was that he had demonstrated insight into that deficiency and taken steps to remedy it. Thus, his case was that a factor, that seemed to be of some importance to the counsellor’s recommendation, had disappeared. In my view, though running a risk by not calling the consultant in the hope that she would accept that a basis for her recommendations had disappeared, this approach was open to the father.
On the other hand, the mother also failed to find out what the counsellor made of the evidence of change in the father’s behaviour.
While in these circumstances it would have been prudent for the Federal Magistrate to obtain the views of the consultant of any effect on her recommendations were the father’s evidence accepted, I do not consider it an appellable error that that was not done.
In my view, the reasons adequately explain the basis on which the family consultant’s recommendations were not followed, and that was a course open to the Federal Magistrate.
I agree with O’Ryan J that if order 11 is set aside, order 12 must also be.
Boland J:
I have had the benefit of reading in draft the very comprehensive reasons for judgment of O’Ryan J. I agree the appeal should be allowed and agree with the orders proposed by his Honour. I also have had the benefit of reading in draft the separate reasons of Warnick J.
O’Ryan J has set out with particularity the relevant provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and by reference to authority has set out the principles to be applied in the determination of a parenting case under that Part. I agree with his Honour’s careful analysis. I also agree with his Honour’s analysis of the principles which govern the determination of this appeal.
I also agree with Warnick and O’Ryan JJ that:
§the Federal Magistrate erred in his consideration of “unacceptable risk” to the child by failing to evaluate the risk, firstly, from the father’s use of methadone and/or marijuana and secondly, if the father returned to other drug use;
§the Federal Magistrate erred in his reliance on a finding that the mother did not really believe there was a risk of harm to the child (by permitting block school holiday periods with the father) as a significant relevant matter in determining unacceptable risk; and
§insufficient weight was given to the evidence of the child’s relationship with his half siblings and the mother’s partner, Mr W.
I also agree with O’Ryan J’s conclusions that the Federal Magistrate’s reasons for departing from the recommendations of the Family Consultant are inadequate. The Family Report was not substantially out of date at the time of the hearing having been prepared in July 2008 and the hearing commencing on 11 December 2008. The transcript discloses the Family Consultant was available to give evidence.
Although the Federal Magistrate referred to a number of aspects of the Family Report, the only reasons I can discern which may have caused him to depart from the Family Consultant’s recommendations are paragraphs 186 and 196 to 197 of the reasons for judgment.
While paragraph 196 may carry the implication that the Federal Magistrate accepted the father had recognised his “shortcomings and his lack of insight” he does not say this is why he has departed from the Family Consultant’s recommendation. Rather, the Federal Magistrate appears, at paragraph 199, to have departed from the Family Consultant’s recommendation and determined the issue of “shared care” at least, in part, because the mother did not present “a persuasive case” that shared care ought not be ordered. This finding of the Federal Magistrate suggests the mother was required to prove a negative case. That approach was rejected by the Full Court in Korban & Korban [2009] FamCAFC 143, at paragraph 86, as follows:
We do not read the guideline in paragraph 82(g) of Goode as suggesting s 65DAA(1) mandates that a court is to only make an order for equal time if there are no disqualifying factors or, put another way, a requirement to consider only factors contrary to a child’s best interests. Nor do we read the section or the guideline as imposing a negative test – to determine that equal time is not in a child’s best interests. The enquiry is a positive one, to ascertain whether equal time is in a child’s best interests. What we understand paragraph 82(g) to suggest is that a judicial officer will, on the basis of factual findings made under s 60CC, in his or her consideration under s 65DAA weigh up whether or not an equal time order is in the child’s best interests and reasonably practicable, and consider making such an order. Only if he or she concludes from that overall assessment and consideration that an equal time order should not be made, move to then consider substantial and significant time.
I am of the view the reasons do not identify with any specificity why it was appropriate to depart from the Family Consultant’s recommendations (see Hall and Hall (1979) FLC 90-713), and they are in the circumstances of this case, inadequate.
I wish to take this opportunity to say something briefly about the two grounds of appeal in this matter which were identified by the mother’s counsel in his oral submissions as the “pivotal” grounds. Grounds 1(a) and (b) are as follows:
1. His Honour erred in concluding that the child [the child] born [date] 1998 should live with the mother and father week-about, by reason that:-
(a)His Honour misdirected himself in assessing the Applicant father’s potential to relapse into drug-addiction by largely confining his assessment to the associated risk of the child suffering physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
(b)His Honour failed to properly take into account the impact of the Applicant father’s continuing opiate addiction and potential to relapse into drug-addiction upon the Applicant father’s capacity to provide for the needs of the child;
Before turning specifically to those grounds, it is appropriate that I refer briefly to the Federal Magistrate’s reasons. The language employed in the reasons, and my reading of the transcript of 15 December 2008 leads me to conclude the reasons were delivered orally, within a working day of the conclusion of the evidence and submissions.
Recognition that an appellate court should not over critically scrutinise an ex tempore judgment given shortly after a hearing in the same manner as a reserved judgment delivered after some period is based on commonsense and practicality. As Mason P observed in Maviglia v Maviglia [1999] NSWCA 188 “[a]n ex tempore judgment should not be picked over. And appropriate allowance should be given for the pressures under which judges of the District Court are placed by the volume of cases coming before them.” These comments are apposite to the caseload of Federal Magistrates in the Federal Magistrates Court (see also Porter v Byrne (2009) 40 Fam LR 644).
O’Ryan J explained, at paragraph 145, there was nothing wrong in the approach adopted by the Federal Magistrate in considering the additional considerations (s 60CC(3)), then the primary considerations (s 60CC(2)), before considering the question of whether the presumption of equal shared parental responsibility was rebutted. I agree with his Honour’s discussion in paragraph 145 of his separate reasons. I am also satisfied, as is O’Ryan J (paragraph 211), that the Federal Magistrate’s reasons, read in their entirety, disclose he identified of all the relevant provisions in Part VII required to be considered.
In my view O’Ryan J, in paragraph 250 of his reasons, has succinctly encapsulated the matters the Federal Magistrate should have taken into account in assessing unacceptable risk.
It is of concern to me that the issue of the father’s continuation on the methadone program was not investigated prior to the hearing. At paragraph 70 of her report, the Family Consultant highlighted the need for expert evidence on this topic. The Family Consultant said:
Of concern is the fact that [the father] remains on the Methadone Program. He insists his reliance on methadone is to treat back pain. However, it may assist the Court to seek an opinion from a specialist in substance abuse or a medical professional regarding the appropriateness of this treatment option for this particular problem.
The evidence in this case disclosed the competing parenting applications were about a very vulnerable and needy child who had been exposed to mistreatment, lack of proper hygiene and care, and who had for much of his life not received appropriate emotional nurturing. The Court was being asked to make an order having regard to his best interests as its paramount consideration. The matters revealed in the Family Consultant’s report indicated:
§that it was an appropriate case for the appointment of an independent children’s lawyer;
§the need for expert evidence on drug use and dependence; and
§consideration of transfer to the Family Court.
While I appreciate the rationale behind the objects of s 3 of the Federal Magistrates Act 1999 (Cth) and acknowledge the many innovative practices adopted by the Court to achieve those objects, to me, this case required more than a streamlined procedure. Although the predominant issue in this case revolved around the question of impaired, or potentially impaired parental capacity because of drug abuse, the discussion of the Full Court in Oakley & Cooper [2009] FamCAFC 133, although directed to the issue of family violence, has relevance. In Oakley, at paragraph 68, the Full Court said:
We also think it important to record that while s 3 of the Federal Magistrates Act1999 (Cth) includes in the objects of that Act that the Court operate as informally as possible in the exercise of judicial power and use streamlined procedures, those objects must be carefully balanced against the need to ensure that children’s proceedings conducted under the Act where serious allegations of violence are raised are not unduly truncated, and opportunity is afforded, particularly to an [independent children’s lawyer], to adduce evidence of appropriate protective or therapeutic programs or measures likely to avoid or minimise, as far as possible, the risk of harm to the children the subject of the proceedings where family violence affecting a child is identified. The allegations may be so serious that the proceedings should be transferred to the Magellan list in the Family Court of Australia. Also relevant in the context of this discussion are the provisions of Division 12A of Part VII of the Act. We draw attention to the principles to be applied in interpreting this Division including in particular s 69ZN(5), and certain provisions of the division which enable proceedings to be conducted in a manner appropriate to the matters in issue (see in particular s 69ZQ(1), and s 69ZX(1)). …
It is to be hoped that this discussion will be considered when this matter is reheard.
O’Ryan J:
Introduction
This is an appeal by Ms Akston (“the Mother”) against certain parenting orders made by Federal Magistrate Coates on 15 December 2008. The Respondent is Mr Boyle (“the Father”). There is one child at the centre of the dispute born on […] 1998.
Before the hearing of the final parenting applications, which commenced on 11 December 2008, the parties reached agreement in relation to the following orders:
(1) The parents have equal shared parental responsibility for the child … born […] 1998.
(2) The child live as follows:
(a)For half of all school holidays with each parent with the father having the first half of the school holidays in even numbered years.
(b)If both parents are spending Christmas in the same place, the child shall spend from 12.00 noon on Christmas Day until 5.00pm Boxing Day with the parent with whom he is not living.
(c)On the child’s birthday, or a sibling’s birthday the child will spend time with the other parent (with whom he is not currently living) for two hours if a school day or four hours if a non school day.
(d)On the parent’s birthdays, if the child is not currently living with that parent, the child will spend time for two hours if a school day or four hours if a non school day, but that parent shall be responsible for arranging transport.
(e)On Mothers Day and Fathers Day the child will spend from 9.00am until 5.00pm with the mother or the father respectively, that parent shall be responsible for arranging the additional transport.
(f)The parents may take the child on a holiday within Australia in their own time provided they provide the other parent with 28 days written notice including an itinerary, contact addresses and telephone numbers.
(3) The parties are to communicate directly or by email if available.
(4) Each parent will allow the child to have telephone communication with the other parent.
(5) Each parent is to provide the other with current address and telephone numbers and advise any change within 38 hours of such change.
(6) Neither parent will enter the home of the other without an express invitation.
(7) Neither parent is to use or permit the use of physical punishment upon the child.
(8) Neither parent is to use or permit the use of loud verbal abuse or scolding upon the child.
(9) The parties are not to discuss this litigation with the child.
(10) The parties are not to denigrate the other in the presence or within the hearing of the child.
On 15 December 2008 the Federal Magistrate made the following further orders:
(11) When the child is not otherwise living with each of the parents in accordance with Order (2) above, he will live in alternating weeks with each parent with the change-over occurring after school on Friday or 5.00 pm on a non-school day.
(12) The child attend at the [Y] Primary School.
(13) In the week the child is living with the mother, the mother is to transport the child to school and the father is to transport the child to the mother’s residence at the conclusion of school.
(14) The father be restrained and an injunction issue from the use of any illegal drugs including marijuana.
(15) By consent the father is to request a copy of the results of any drug tests taken by the Alcohol Tobacco and Other Drugs Services Unit of the Queensland Health Department (ATODS) and provide same to the mother until the child turns 12 years of age.
On 12 January 2009 the Mother filed a Notice of Appeal and on 6 April 2009 filed an Amended Notice of Appeal. At the commencement of the hearing we granted leave to the Mother to file a “2nd Amended Notice of Appeal”. The Mother is appealing against orders 11, 12 and 15. If the Mother is successful she seeks the following orders:
1. The child … born […] 1998 (“the child”) shall live with the Mother.
2. The Father shall spend time and communicate with the child:
a.From after school on Friday to before school on Monday every second weekend.
b.From after school on the Monday of the next week to before school on Tuesday of that week.
3. For the purpose of Clause 2a the parent who has the child will be responsible for taking him to the other parent and for the purpose of Clause 2b the father will be responsible for the cost of all travel.
4. Changeovers will take place at the school or the parent’s residence.
5. The mother be permitted to enrol the child at X Primary School.
6. The child be permitted to accompany [Mr W] to work at the mother’s discretion.
In relation to the appeal against order 15, I observe that the order was made by consent and none of the grounds of appeal were directed to that order.
The Mother has re-partnered with Mr W and has two children. The Father is on a disability pension and he gave no evidence of being re-partnered.
A significant issue in the proceedings related to the use of drugs by the Father and the risk of harm to the child. Ultimately, the Federal Magistrate made findings consistent with what was urged upon him on behalf of the Father. There is a very harrowing history of abuse of the child, and the issue of any current or future risk of harm to the child required careful consideration of the evidence.
At the hearing the Federal Magistrate had the benefit of a Family Report, however, the Family Consultant who prepared the report was not cross-examined. The Family Consultant made a number of recommendations, none of which were reflected in the final orders of the Federal Magistrate.
Background
The Federal Magistrate dealt with the “Background” at [22] to [36] of his reasons. However, consideration of what he said reveals only a brief description of relevant history. The Federal Magistrate had the benefit of a written outline of case document filed on behalf of each of the Mother and the Father, and there is attached to each outline, a chronology of relevant events and dates. Some of what I shall hereafter describe comes from the chronology attached to the written outline of case document filed on behalf of the Father, the affidavits and evidence given during the hearing before the Federal Magistrate.
The Father was born in September 1972 and the Mother was born in July 1976. The parties began their relationship in about 1991 or 1992. The Mother was about 15 years of age and the Father about 19 years of age.
As seen, the child was born in 1998. The Federal Magistrate observed at [30] that according to the Family Consultant the child “was born with severe drug withdrawal”.
The Federal Magistrate observed at [26] that the Father “was primary carer for perhaps the first five years but in saying that the child knows both of his parents”.
The Family Consultant said at paragraph 3 of the Family Report: “From birth to age five, [the child] was exposed to neglect, homelessness, severe financial issues, drug abuse and drug users. There has been a long child protection history that began from the child’s birth and relates to emotional and physical neglect”.
The Federal Magistrate observed:
27. The relationship between the parties has been chequered.
28. Both admit to using large amounts of alcohol and drugs including cannabis, heroin, morphine, amphetamines and other substances. Both engaged in criminal activity and prostitution, the father living off the mother's earnings to support, it appears, drug habits. Both have been the subject of police investigation, both have hepatitis C from intravenous drug use according to the evidence. Both in earlier times have not had stable accommodation and at one stage they set up house in a remote area to grow and use drugs. The father has served time in prison for offences.
29. The family consultant, [the Family Consultant] stated in her report and I will quote this:
“Reading the subpoenaed material was a harrowing experience and the squalor and deprivation of [the child's] living conditions throughout the time he lived with his father were abundantly evident”.
30. The drug usage of both was high and the child was born with severe drug withdrawal according to [the Family Consultant]’s report. (italics in original)
The Father deposed in his affidavit sworn 14 November 2008 at paragraph 20 that in or around 2000 he “was caught for some criminal matters [and] was given the option of rehabilitation”. He said that he “decided to take this opportunity” but the Mother did not want to go into rehabilitation with him. The Father contended at paragraph 21 that “on that basis” the Mother and Father finally separated in about May/June 2000 when the child was about two years of age.
The Father deposed at paragraph 22 that on 9 June 2000 he went into “detoxification” and “[a]fter a week or so [he] commenced rehabilitation”. This may have been because of what was described as a “twelve month intensive correction order”.
The Family Consultant recorded at paragraph 59 of the Family Report that from material adduced by the Department of Child Safety the Father attempted suicide twice in two weeks in 2000 and required a psychiatric assessment.
On 11 May 2001 orders were made in the Magistrates Court at Southport that the child live with the Father, and, the Mother have supervised contact with the child as agreed between the parents. The Federal Magistrate observed at [18]: “The mother stated in her earlier affidavits that at the time those orders were made she was drug affected and really didn’t know what she had signed. I'll put that into context very shortly but throughout the life of the child there has been conflict between the parents which can probably be put down to their abuse of drugs”.
The Federal Magistrate said at [102]: “The mother probably ceased using drugs sometime in 2002, maybe a bit before”. The Federal Magistrate also said:
114. I can compare [the Father’s] corrective action with that taken by the mother who went on to a Naltrexone program. She says, and I have no reason to doubt, that she is completely off drugs. I have got to consider her situation of being off drugs and the father's situation where he remains on a legally prescribed drug to fight the insidiousness of illegal drugs which he has given and which there is a lot of evidence about in this case. (emphasis added)
The Department of Child Safety acted on three occasions to obtain protective orders for the child. The first occasion was in or around September 2002 when the child was taken for four weeks.
The Family Consultant recorded at paragraph 59 that in 2002 the Father was to be prescribed anti-psychotic medication and was considered a danger to himself and the child.
In about October 2002 the Mother commenced a relationship with Mr W.
In the Family Report the Family Consultant recorded at paragraph 61 that material indicated that in 2003 the Father was shooting up in a public toilet in the presence of the child and the child was described as “filthy and dirty”. The Father contended that this occurred in January 2003.
In January 2003 the child was taken by the Department of Child Safety for about three weeks.
In about mid-2003 the child was taken by the Department of Child Safety for 12 months under a two year protection order. The Family Consultant observed that there were three reports written for the Department of Child Safety dated 12 January 2004, 28 November 2004 and 17 December 2004.
The Father contended that in 2003 he went on the methadone program. During cross-examination the Father gave evidence that he was drug free from the time he went on the methadone program in 2003. It was put to him during cross-examination (Transcript, 11 December 2008, p 15):
So from January 2003, from the time that you were on the Methadone Program, you have remained drug free?---Yes.
Illegal drug free?---I've only consumed the drugs that I've been given, yes.
In August 2003 the Father was assaulted by his brother and was admitted to a Gold Coast hospital and placed in a drug induced coma. He was later transferred to another Gold Coast hospital for further treatment and a period of rehabilitation from a head injury. The Family Consultant recorded at paragraph 61 that the Father and his brother were involved in a physical dispute in the presence of the child. The Family Consultant also said at paragraph 61 that material highlighted that the child “witnessed his uncle stomp on the father’s head and neck, but that [the child] did not seem upset by this. When the child was placed in departmental care, [the Father] was aggressive and threatened to abduct the child”.
The Father contended that in 2004 he was living with his father and he attempted to reduce the methadone but was unsuccessful because of back pain (Transcript, 11 December 2008, p 24).
The Federal Magistrate, referring to the Father’s use of “drugs”, said at [102]: “The father probably controlled his usage by some time in 2004”.
Towards the end of 2004 the child was placed in the fulltime care of the Mother. The Family Consultant recorded at paragraph 63 of the Family Report: “[f]ollowing reunification with his mother, records indicate that she always attended to [the child’s] needs on a developmentally appropriate level and provided games and activities, which he enjoyed”.
In January 2005 the Father was registered in the Queensland Opiate Treatment Program (“QOTP”) at the P Clinic in north Queensland. He was prescribed methadone regularly and diazepam intermittently. In a report dated 4 July 2005 from the Senior Medical Officer of the P Clinic attached to the affidavit of the Father sworn 14 November 2008 it was stated: “[The Father’s] medical records forwarded from the Gold Coast also record that [the Father] suffers from long standing back problems, x-ray and CT scan reports confirming the presence of significant arthritic and degenerative changes in the lumbar spine. Long-term medical prescription of morphine from his backache is one factor in his current enrolment in the Queensland Opiate Treatment Program”.
In cross-examination the Father admitted that in 2005 he was convicted of an offence for driving a motor vehicle while under the influence of alcohol. He was driving an unregistered vehicle (Transcript, 11 December 2008, p 29).
In October 2005 the child was enrolled at Y State School.
In September 2006, during a time when the child was with the Father, the Father injected himself with methadone and was hospitalised. In cross-examination he was asked why he injected the methadone and he replied “stupidness”. The questioning continued (Transcript, 11 December 2008, p 31):
It wasn't going to help your back pain any, was it?---No, that was for fun. Lesson learned, let me tell you. Never try that.
You weren't thinking of [the child] on that morning when you injected the methadone, were you?---No, no.
His best interests weren't at the top of your mind?---No. Well they were but, yeah, no, drug addiction's got a way of getting over things like that.
In relation to this incident the Federal Magistrate said:
103. He said he has had some relapses but he has pulled himself out of that and gone back on to the methadone program. There was an incident in 2006 when he was taken by ambulance to the emergency ward of [a north Queensland] Hospital for injecting himself with methadone. He said from “stupidness” and then he said words to the effect that you do not want to try that. The child was in his care at the time and was transported in the ambulance with the father to the hospital. At that stage the father took no care at all about shielding the child from a very stupid act, and the father said he was associating with users of heavy drugs and that did not assist him in controlling his habit. (emphasis added)
As to this incident the Federal Magistrate also said at [157]: “[The Mother] was stunned when she heard in the evidence that the father had injected himself with methadone in 2006. She did not know about that. The child was in the father's care. Although she did not state so in so many words, that is the type of thing she really worries about”.
The Father admitted that in May 2007 he told a medical practitioner that his use of marijuana was on a regular basis with the intake “limited by its availability”. The following was then put (Transcript, 11 December 2007, pp 41 to 42):
So when you told this Court before that you have not used any illegal drugs - - - ?---I'm sorry I don't class pot - - -
- - - since 2003 - - - ?---I don't class pot as an illicit drug, I'm sorry.
It's an illegal drug, isn't it?---It is an illegal drug, yes.
But you simply don't class it as one?---No.
I see?---I don't think it is an illicit drug, is it? Maybe illegal under the Drugs Misuse Act but I think you'll find it's not an illicit drug.
FEDERAL MAGISTRATE: What do you mean by "illicit drug"?---Hard drugs.
I see, all right?---You know, chemical drugs.
All right. If I were to make orders as you sought, without it conditional as to you not having any drug other than that prescribed, how would you cope with that?---I'd have no problems with doing urine tests as often as you felt necessary to show that I wasn't smoking at all or using anything else. It's not that big a part of my life. As I said, I only smoke when other people offer it to me. It wouldn't be a big thing for me to not smoke at all.
During cross-examination the Father was asked questions about a consultation he had with a medical practitioner on 1 June 2007. The following was put (Transcript, 11 December 2008, p 41):
You told him that you still smoked marijuana when available?---Yes.
But that doesn't amount to more than one or two cones every few days?---Yes.
You told him that?---Yes.
In about October 2007 the Mother commenced to take the child to Scouts.
The Father contended that in December 2007 he moved from Brisbane to north Queensland.
Proceedings were commenced in December 2007 when an application was filed by the Father.
On 16 January 2008 the Federal Magistrate made an order the child live with the Mother and spend three days a fortnight with the Father. The Federal Magistrate said at [20]: “At that time there were, as there were in this trial, significant concerns about the father's status. I also ordered a family report”.
The Family Consultant observed at paragraph 8 that the child lived with the Mother and in each fourteen day period spent time with the Father every second weekend from after school on Friday to before school on the following Monday and in the intervening week from after school on Tuesday to before school on the following Wednesday.
The Family Consultant conducted interviews and observations in February and April 2008.
The Father contended at paragraph 71 of his affidavit sworn 14 November 2008 that in March 2008 he moved to his current residence at Y in north Queensland. The Father said at paragraph 73 that his residence is located “on the same side of the road and is about 50 metres from the school”.
In early 2008 the Father may have become involved with the Scouting movement. I observe that in the written outline of case document filed on behalf of the Father on 10 December 2008, for the purposes of the hearing before the Federal Magistrate, it was contended: “Since the Report interviews the father has undertaken extensive training through the Scouts movement which has assisted him to understand appropriate relationship boundaries with children”.
The Father gave evidence that on 23 April 2008 he attended a north Queensland Hospital complaining about swelling in his hand because he was assaulted. Without repeating what happened, he got involved in an altercation and he punched someone in the head. In cross-examination it was put to the Father: “Were you drinking at the time?” and he said “We had had – yes” (Transcript, 11 December 2008, p 43). I observe there may have been another occasion when the Father was living at G in north Queensland where he was assaulted and he had not been drinking (Transcript, 11 December 2008, p 44).
The Family Report was completed on 22 July 2008. In his reasons the Federal Magistrate observed:
32. Both parties at the trial were aware of the recommendations of [the Family Consultant] who recommended the child live with the mother. She identified the issues as:
a)domestic violence allegations;
b)future living arrangements;
c)child abuse and neglect history;
d)drug abuse by parents and acknowledgement of the primary care giver.
The Family Consultant made the following recommendations:
78. That [the Father] and [the Mother] have shared parental responsibility for [the child].
79. That [the child] remain living with his mother.
80. That [the child] spend substantial and significant time with his father in the same manner as he is at present (the Court may consider an increase of one night in the second week.
81. That [the child] spend one week about with each parent throughout school holidays.
82. That [the Father] attend upon a suitably qualified counsellor [sic] to assist with emotional issues and parenting.
83. That [the child] attend upon a suitably qualified therapist to assist with issues related to strength building, self-esteem and the development of emotional resilience.
84. That, at times, [the child] is able to accompany [Mr W] to work as [Mr W] and [the Mother] deem appropriate.
85. That, with the exception of some of the recommendations, the contents of this report are never revealed to, or discussed with [the child]
The Family Consultant reported at paragraph 17 of the Family Report that the Father stated he did not wish to discuss the issue of consumption of illicit drugs.
I observe that the Family Consultant reported at paragraph 14 that the Father advised her that a requirement of the methadone program is that he has to undergo random drug tests.
The Family Consultant reported at paragraph 21 of the Family Report: “When discussing the effect of their lifestyle on [the child], [the Father] stated that [the child] knows a lot about drugs. He indicated that he has always been [the child’s] primary caregiver and has endeavoured to shelter him. He stated that [the child] has never seen me injecting” (italics in original).
In the Family Report the Family Consultant said:
60. Regularly, throughout the subpoenaed material, [the Father] was described as drug affected (as well as consuming drugs on supervised visits with [the child], at times consumed alcohol excessively; aggressive (regularly getting into physical fights, screaming abuse at neighbours, and had isolated family and friends); dishevelled, and continually exposed [the child] to drug users. His drug use impacted on his ability to provide a stable home for [the child]; [the child] was isolated ([the child] accompanied his father everywhere) and not attending preschool, kindergarten or child care; [the child] was neglected, which included, financial ([the Father] regularly hocked their possessions, including [the child’s]), emotional, physical and psychological ([the Father] became aggressive towards [the child] and blamed him for their situation). On one occasion, their home was observed to be smelly and unsanitary and cockroaches were observed to be coming out of the pillow cases. Subpoenaed material indicated that [the Father] placed his own needs ahead of his son’s and that [the child]’s developmental needs were not met. “[The Father] places his emotional needs before [the child’s] and places inappropriate pressure on [the child] to meet those needs by continually coaching [the child] to demonstrate his love towards him … [the child’s] young age makes him vulnerable to his father’s neediness. (italics in original)
It is important to consider what the Family Consultant said in paragraphs 65 to 77 of the Family Report under the heading “Evaluation”.
I observe that during final submissions counsel for the Father submitted (Transcript, 11 December 2008, pp 124 to 125):
What’s important for your Honour is what has occurred since the interviews with the report writer as far as the father is concerned, and whether those issues would lead your Honour to conclude that he has moved on from the concerns that the report writer raises.
The father stated in cross-examination, that he acknowledges that he made the comment that the history or the involvement of the Department of Child Safety in the past was that they had interfered, that they – and he – he openly stated your Honour, that he realises now that that wasn’t the case. And he said that many times in the course of his evidence. He said, “I should be thankful to them for stepping in when they did because things could have got so much worse and probably would have”. That’s the level of insight that the father has now.
And, your Honour, there was nothing about the way in which he gave evidence to suggest that he’s shored himself up or given the right answers for this case. That evidence came purely and solely from the way that he feels about things.
He was also able to say, “I realised that since doing the Scout training and since being involved with that throughout the year, I have realised that I was emotionally dependent upon [the child] and I have taken active steps to prevent that from happening. I encourage him to go off with other people. If we’re going on camps, send him in a different car, get him to sleep in a different tent, etcetera. I’m taking active steps to break that and I’m conscious of it”. At the time of the report interviews, [the Family Consultant] was concerned that he wasn’t conscious of it.
Your Honour has heard evidence that during the course of the year, and he repeated more than twice in giving his evidence that: “This past year has been a huge learning curve for me”. Your Honour has before you the evidence of the – of the Scout training. You can see what it is, that the courses that he has done, your Honour can see what it is that he has been taught and what he has learnt. He has been encouraged to learn about relationships between adults and children. He has been encouraged to learn about the developmental levels of children, things of which he was not fully aware.
As a result of his involvement in the Scout movement and the school this year, he has also become actively involved with other parents and he’s seen how they interact with their children, and he is moving forward and he is making – he is recognising where he has fallen down as a parent and he’s starting to address those. And he has addressed those, your Honour.
The Father relied significantly, and perhaps exclusively, on what he had done or what had happened since the interviews conducted by the Family Consultant in February and April 2008 and this was accepted by the Federal Magistrate. However, I observe that the Family Consultant was not required for oral examination and I presume that this was because there was no challenge to what she said and recommended. Further, no attempt was made to obtain a further report from the Family Consultant having regard to what the Father contended had happened.
Certain orders were made on about 13 August 2008. The Federal Magistrate said at [21]: “By 13 August 2008 there was obviously schooling in dispute, but the parents were able to come to a consent order that the child stay at the [Y] State School where he had been enrolled since 2005”.
On 16 and 17 August 2008 the Father undertook Scouts leadership training. In late September 2008, for two days, and on 12 October 2008 the Father undertook Scouts skills training. It will be recalled that in the written outline of case document filed on behalf of the Father it was contended: “Since the Report interviews the father has undertaken extensive training through the Scouts movement which has assisted him to understand appropriate relationship boundaries with children”.
Attached to the affidavit of the Father sworn 5 December 2008 is a copy of a letter dated 13 November 2008 from the senior medical officer of the P Clinic in which it was stated that the Father was currently:
… on the QOTP for opiate dependence. His methadone dose is 150 mg daily.
[The Father] records show that he has a long history of back pain caused by significant osteoarthritis from his lumber spine.
Long term treatment of his ongoing chronic pain has also contributed to his opiate dependency.
[The Father] attends his appointments regularly and has been compliant with treatment and follow up.
Counsel for the Mother submitted to us that this was the only current evidence “about the drug situation”. It was also submitted that in the letter there was “no mention of what monitoring takes place” (Transcript, 24 September 2009, p 5).
On 14 November 2008 an Amended Application was filed by the Father. On 24 November 2008 an Amended Response was filed by the Mother. In his reasons the Federal Magistrate summarised what each parent sought and also summarised what was agreed. He said:
3. In his amended application filed 14 November 2008 the father seeks that the child live with each parent on a shared care basis alternating weekly Fridays to Fridays.
4. He seeks shared parental responsibility and special orders: that the parents both medicate the child for asthma in accordance with medical recommendations; that the mother undertake to medicate the child for any condition in accordance with medical advice; that the child not be cared for in an industrial work space; that the child attend [Y] State School and that the mother use the father as the preferred child carer for after-school care.
5. He did not seek orders for holiday time.
6. In the mother's amended response filed 24 November 2008 she seeks orders that the child live with her although she seeks shared parental responsibility for both parents.
7. She seeks orders that the child spend every alternate weekend with the father Fridays to Mondays and overnight Tuesdays until Wednesdays in each other week.
8. She wants to change school, sending the child to [X] State Primary School and that the child be permitted to accompany her partner, [Mr W] to his workshop, at her discretion.
9. As to medical issues she seeks an order that each party keep the other informed as far as is practicable of any significant or health related treatment.
10. By the time this matter came to trial last week there were consent orders for shared equal parental responsibility, holiday time where the child would spend half of each school holiday with each of the parents and a regime was set out accounting for odd numbered and even numbered years and for Christmas Day and Boxing Day and special days such as birthdays, parents' birthdays, Mother’s Day, Father’s Day; for communication for each party to advise the other of addresses and telephone numbers; that the parties do not enter the home of the other without being invited and some associated orders such as not using physical punishment on the child or permitting loud verbal abuse or scolding of the child and that the parties do not discuss litigation with the child and they are not to denigrate each other in the presence or the hearing of the child.
11. I should say in her amended response the mother also sought that the father be responsible for the cost of travel and changeovers be at the school or the parents' residences.
Save as to school holidays the orders sought by the Mother were consistent with the recommendations of the Family Consultant. However, the Mother agreed to an order that the child spend time with the Father for one half of each school holiday period in one continuous period rather than “one week about”.
In his affidavit of 14 November 2008 the Father contended at paragraph 117: “I am drug free (apart from my Methadone)”. In the written outline of case document filed on behalf of the Father for the purpose of the hearing it was contended: “Both parents have overcome their respective addictions. In order to protect [the child] from future risk of harm, both parents must remain drug free and avoid violent relationships”. It was also stated: “[t]he father remains on the methadone program, at least in part, because of his serious back pain. There is no evidence which would suggest he has reverted to illicit drug use” (emphasis added).
The hearing before the Federal Magistrate occurred on 11 December 2008. On 15 December 2008 judgment was pronounced and reasons delivered.
The Reasons Of The Federal Magistrate
In his reasons at [12] to [16] under the heading “The law” the Federal Magistrate identified some of the relevant statutory provisions that his Honour was required to consider including the primary considerations in s 60CC(2) and the additional considerations in s 60CC(3) of the Act.
At the outset of consideration of what the Federal Magistrate said, I make the general observation that his reasons are at times discursive and perhaps confusing. However, this does not necessarily mean that he was in error.
As I have observed, the Federal Magistrate at [22] to [36] dealt with the “Background” and concluded:
35. Despite both parties stating they took steps over the years to shield the child from drug taking, realistically this child has experienced the effects of their drug usage. I do not think you could look at it in any other way.
36. The parents now present generally as having made great efforts to turn their lives around although both still question the other's parenting ability. Both remain opposed to the orders the other now seeks.
Thereafter the Federal Magistrate considered the additional considerations in s 60CC(3) of the Act commencing with s 60CC(3)(a). The Federal Magistrate from [37] to [49] dealt with the “Views of child”. I am not going to repeat all of what the Federal Magistrate said. However, in considering the views of the child the Federal Magistrate appears to have interspersed other topics. In so far as he directly dealt with the views of the child he said:
45. In considering what both parties have said, and given [the Family Consultant]’s evidence, the child, I think, is young and immature and I should be very careful about the weight placed on his stated views. If the father has isolated him or does isolate him from his peers, that is his friends, to allow the father's dependency to grow, then the child would be at risk from such isolation.
…
49. In any case, as I have stated, the child has told [the Family Consultant] that he wants to live with the father and spend more time with him.
Elsewhere in his reasons the Federal Magistrate said:
73. I have already stated and [the Family Consultant] has said in her evidence that the child stated he wants to live with the father and I have been careful to state that I should be very careful of the weight of the child's views in the circumstances in which [the Family Consultant] reported them - that is the dependency issue for the father and the father's past history…
…
137. I have also commented when I spoke about the views of the child that he is a 10 year old and I really need to be very careful of the weight which I put on his reported remarks that he wants to live with the father.
The Federal Magistrate from [50] to [62] dealt with “the nature of the relationship with the child with each of the parents and other persons including relatives” being the additional consideration in s 60CC(3)(b) of the Act. He commenced by observing at [51]: “The nature of the relationship has caused some of the allegations in this case”.
The Federal Magistrate at [52] observed that the Family Consultant said that she “observed a very good relationship with the child and both parents” and that “the child gets along with each of” his siblings. However, the Federal Magistrate also said “that is part of the nature of the relationship I have got to consider in terms of this application, whether making orders for the father would break that relationship or making orders for the mother would have an impact on the child's relationship with the father”. The Federal Magistrate never explained what he meant.
I observe that at [88], when considering s 60CC(3)(d) of the Act, the Federal Magistrate said: “In considering the parenting issue, the child has siblings in his mother's household. [The Family Consultant] reported an attachment between them as well as an attachment between [Mr W] and the child”. In the context of dealing with the matters in s 60CC(3)(f) and (i) of the Act the Federal Magistrate at [126] observed that the Family Consultant found “[Mr W] to be someone significant in the child's life”.
The Federal Magistrate also said at [53]: “The nature of the relationship in this particular case is a little more complex than merely stating that the child has a relationship with both parents” and then proceeded at [54] to [61] to discuss the issue raised by the Family Consultant, namely, the dependency of the Father on the child. I am not going to repeat all of what the Federal Magistrate said. However, he did say:
57. The evidence on paper seemed to suggest that the father had no insight into this issue which had been raised against him of his dependency on the child. In oral evidence, that is in the witness box during cross-examination, the father, and I think for the first time, recognised that he did have a dependence on the child. While he had trouble expressing himself, he said he had learnt a lot in the past year and although he had not sought counselling as recommended by [the Family Consultant] about parenting issues, he had spoken to parents and others whom he thought would have a good idea of parenting issues.
58. Given his recognition that he did have a dependency on the child, his statement about talking to and observing other parents was not as far fetched or naive as it appeared to be at first because he gave evidence of having attempted to learn from people he believed had provided better parenting than he had done in the past. That is how I have interpreted that bracket of evidence which the father gave. He has also achieved scout leadership qualifications and in the evidence was quite a thick book of all of those courses which a person who joins the scout movement has to achieve in order to be recognised as a scout leader.
59. Given that really he has had no commitment to anything for years, especially during his time of drug usage and drug abusage, and certainly no commitment to any job, profession, trade or anything else, that is quite an achievement.
60. While his insight into parenting issues have been questionable, it appears that he has started to take steps to obtain some understanding. When he made the admissions of being dependent and wanting to be with the child all the time he said the past year and his learning experience has allowed him to attend that scout group for his own benefit. He says, and he used very simple terms to the effect that he goes to the Scout group now for himself. In other words I took that and interpreted that to mean that he has something else to do in order to achieve something in life.
The Federal Magistrate concluded his discussion of s 60CC(3)(b) of the Act at [62] as follows: “The relationship between the mother and the child and her partner is such that they are reliable people. I have no doubt whatsoever that the mother, despite acts which I will come to in relation to the child and the father, still has the child's best interests in mind”.
The Federal Magistrate then under the heading of “Facilitating relationship” considered at [63] to [70] the matter in s 60CC(3)(c) of the Act, namely, the willingness and the ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent. Again, I am not going to repeat all of what the Federal Magistrate said. However, he referred to what he described as “hostility” between the parents and concluded:
70. The Act at s.60CC(2) says I have got to consider the benefit of the child having a meaningful relationship with both of the parents. This additional consideration of the willingness and the ability is a very important connected consideration. I have also to keep in mind the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and I am keeping those twin considerations in mind from s.60CC(2).
The Federal Magistrate then under the heading of “Effect of change” considered at [71] to [91] the matter in s 60CC(3)(d) of the Act, namely, the likely effect of changes in the child's circumstances including the effect on the child of any separation from either parent and from any other person including relatives.
The Federal Magistrate commenced his consideration of s 60CC(3)(d) of the Act by observing:
72. It was because of the continuing hostility and probably what could best be described as sniping at each other, that I was concerned that the child is being used by each parent. Any decision I make as far as is possible must be done to allow the meaningful relationship and protect the child when I consider the orders sought by both parents, that is the living arrangements.
The Federal Magistrate then said at [73]: “The issue of change though also goes to the issue of schooling” and thereafter he dealt with the controversy between the parents as to whether the child should attend X State School as sought by the Mother or continue to attend Y State School as sought by the Father. The Federal Magistrate observed at [74]: “The father lives next door to the school in a unit and has done so for nine months and he says the child has friends and the child actually named those friends to [the Family Consultant] for her report”.
As to what was sought by the Mother the Federal Magistrate observed:
78. [X] is about 15 kilometres from [Y]. The mother says that the distance is a strain on her getting the child to school especially when she has two little ones to take care of. She also said she had made inquiry with the [X] School and there is a letter there about the support available at the school. She is satisfied that the school can provide support and the letter is brief from the school but it says that there is a range of support available.
The Federal Magistrate said:
80. Many of the schooling issues are intertwined with the parenting issues in this case. While I am referring to the schooling issues, I am not isolating them because of the intermix of the other facts. In applying all of the relevant s.60CC factors, the first issue is to recognise that the child has had a very challenging life with his parents.
Without repeating all that the Federal Magistrate said he concluded:
86. In all those circumstances, I find a change of school would have an effect on the child because it would mean bringing more instability into his life.
87. As to whether the other questions which have arisen here, that is a change in the orders to a shared parenting order will also bring a change, are really issues which I need to address further.
88. In considering the parenting issue, the child has siblings in his mother's household. [The Family Consultant] reported an attachment between them as well as an attachment between [Mr W] and the child.
89. Although they are much younger, I have also got to consider the child's age because at 10 years, as [the Family Consultant] said, he will be wanting to spend time with his peer group. The dependency which the father said he recognises is a consideration in that respect because if he has not put this dependency behind him, then the child will not be spending time with his peer group. That would not be in his best interests.
90. By remaining at [Y], and this is the counter consideration, he will not be spending time with schoolmates except when he's at school or arrangements are made for his schoolmates to go to [X], or arrangements are made for the child to go to see his schoolmates or when the child spends time under the mother's orders with the father, when he could spend time with his schoolmates.
91. So they are the considerations which the evidence went to regarding this consideration of the likely effect of changes in the child's circumstances.
The Federal Magistrate then under the heading of “Practical difficulty and expense” considered at [92] to [95] the matter in s 60CC(3)(e) of the Act, namely, the practical difficulty and expense of the child spending time and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relationships and direct contact with both parents on a regular basis.
The first matter the Federal Magistrate referred to was “Schooling” and said at [93]: “Schooling, being 15 kilometres from the mother has caused a practical difficulty and it has caused an expense. A change would cause, in that sense, less expense for the mother but it would cause some more expense for the father”.
Then at [94] the Federal Magistrate observed that if a shared care arrangement “was put in to place, in a sense that would lift some pressure off the mother but I do not underestimate the pressures on her with a new baby and a small child and having to cope with a 10-year-old. The pressures on her must be immense”. He concluded:
95. So when I look at really what are the financial issues facing these parents, none of these parents could be said to be rich. The father is on disability pension. I do not think the mother, from the evidence, or her partner earns a great deal of money so they must be feeling under financial pressure. And the mother said in her evidence that the father does not assist with child support and being on disability pension, there is not much, I suppose, that he can assist with, although he says that he does pay when the child is at his place.
The Federal Magistrate then, under the heading of “Capacity/parental responsibility”, considered at [96] to [134] the matter in s 60CC(3)(f) of the Act, namely, the capacity of the parents and any other person to provide for the needs of the child including emotional and intellectual needs. He also considered the matter in s 60CC(3)(i) namely the attitude to the child and to the responsibilities of parenthood demonstrated by each of the parents. He observed at [97] that this was “because the two additional sets of considerations which come under s.60CC(3)(f) and (i) are very closely related”.
In relation to the capacity of each parent to provide for the needs of the child, which require the expenditure of money, the Federal Magistrate said at [98]: “As to capacity, as far as their incomes allow, both parents provide materially for the child. As I said, they struggle but they provide materially”.
The Federal Magistrate then said at [99] that, “[i]t is really the emotional and intellectual capacities which I think the mother is asking me to look at. She simply does not believe that the father has changed from his drug taking days or she is concerned that he will slip back into them. Her main area of concern on the evidence, I think, was because he remains on the methadone program”. The Federal Magistrate at [100] said that, “[the Mother] states while he is drug affected, and methadone is a drug, he cannot provide for the child emotionally and intellectually”. Then at [111] the Federal Magistrate said “the mother does not accept that he has reformed because he does remain on that methadone program”.
In his reasons at [101] to [115] the Federal Magistrate appears to deal with the issues raised by the Mother about the Father’s capacity because of the Father’s drug addiction. What the Federal Magistrate said is confusing. However, without repeating all of what he said, he referred to a number of matters such as the incident in 2006 at [103] and the Father’s use of marijuana at [104], [106] and [107]. The Federal Magistrate made a number of observations which included:
§The Father “could not remember dates and times because his memory has been affected by the years of abuse”: per [101]. However the Federal Magistrate “found [the Father’s] answers to be truthful as far as he could remember”: per [105].
§The Mother “probably ceased using drugs sometime in 2002, maybe a bit before”: per [102].
§The Father “probably controlled his usage by some time in 2004”: per [102].
§The Father “has had some relapses but he has pulled himself out of that and gone back on to the methadone program”: per [103].
§The Father “admitted using marijuana”: per [104].
§The Father was surprised that using marijuana “was a consideration” and “he thought the inquiry … would be into hard drugs”: per [104].
§The Father “does not view marijuana as being a hard drug”: per [106].
§“[T]here must be an order that [the Father] remain off marijuana”: per [107].
§If the Father returns to “drug usage … he is not showing any capacity whatsoever to provide for the child intellectually or emotionally”: per [107].
§“[I]f the [Father] progresses and takes up hard drug usage again” then any order that he spend time with the child would have to be reviewed: per [107]. I observe that it is not entirely clear if the Federal Magistrate was drawing a distinction between “drugs” and “hard drugs” given that he had earlier at [106] referred to the evidence of the Father that he did not “view marijuana as being a hard drug”. Elsewhere in his reasons the Federal Magistrate appears to have distinguished between “hard drugs” and “illegal drugs”: per [110].
§The Father’s admissions that “he was addicted to opiates and probably would remain so for the rest of his life [was] a frank admission of the realities of his situation after being a heavy user for so many years”: per [109].
§“Controlling the addiction is of extreme importance in [the Father’s] case” and the Federal Magistrate had to “decide his capacity to remain off hard drugs and off illegal drugs”: per [110].
§Methadone is a drug: per [112].
§The Father does need methadone: per [112].
§However, the “administration” of methadone “is a legal administration”: per [112].
§Methadone is “used and recognised by the state government as assisting addicts”: per [112].
§“Because the father stated that he was aware that he was drug dependent but had taken action to counter this by going onto the methadone program, [the Federal Magistrate] was satisfied that he has insight now into this issue [and] was also satisfied that he had taken corrective action”: per [113].
The Federal Magistrate concluded his consideration of the drug dependency of the Father when he said at [115] that, “[p]art of the risk then is, which I will come back to, whether the dependency is something which I need to take into account”. I assume that the Federal Magistrate was referring to the Father’s dependency on methadone.
The Federal Magistrate at [116] to [134] dealt with allegations the Father made, which I need not address, about the Mother and Mr W.
The Federal Magistrate under the heading of “Maturity, sex, lifestyle and background” considered at [135] to [138] the matter in s 60CC(3)(g) of the Act being the maturity, sex, lifestyle and background of the child and the parents and any other characteristics of the child which are relevant.
After referring at [136] to the “unfortunate history of the parents” and at [137] to the need to be cautious about the expressed views of the child, the Federal Magistrate concluded at [138]: “There was no real cultural issue which came out so I am not going to consider that”.
The Federal Magistrate under the heading of “Family violence” considered at [139] to [146] the matters in s 60CC(3)(j) and (k) of the Act being family violence involving the child or a member of the child's family and any family violence order that applies to the child or a member of the child’s family.
The Federal Magistrate at [140] observed that the Mother “alleged family violence when the parties were together but the father denied it” and at [141] that “[t]he mother and [Mr W] have had verbal disagreements over the father and quite possibly over other issues”. He concluded at [142]: “I do not think it can be said that the child has not seen any of that”.
The Federal Magistrate at [141] referred to the assault on the Father by his brother said that it was witnessed by the child. The Federal Magistrate at [143] made some reference to drug use and at [144] said that the Father has not seen his brother “since that attack”.
The Federal Magistrate concluded his consideration of the matters in s 60CC(3)(j) and (k) of the Act as follows:
145. While the history puts into perspective the early years for the child, the violence between the parties is just not present now. Obviously the child has been neglected in the past by the parents but both of them tell me, and I have no reason to believe otherwise on the evidence, that they are truly making and taking steps to ensure that they provide proper parenting. If I could consider violence as being the ongoing animosity that is about as far, I think, as any violence would go.
146. Whatever I decide, final orders may assist both parties to manage their parenting issue for their child.
The Federal Magistrate then considered at [147] the matter in s 60CC(3)(l) of the Act being 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. The Federal Magistrate simply said: “I have considered both sets of orders which both parents asked me to make and the orders which I will come to, I think, are the orders least likely to lead to the institution of further proceedings in relation to the child”. In relation to the time the child is to spend with the Father during the school term the Federal Magistrate ultimately made the order that the Father sought and the Federal Magistrate gave no reasons explaining why this order was least likely to lead to the institution of further proceedings.
The Federal Magistrate then considered at [148] – [152] the matter in s 60CC(3)(m) of the Act being “[a]ny other fact or circumstance that the court thinks is relevant”. The Federal Magistrate commenced this discussion at [148]: “Any other fact or circumstance which is relevant is really the association of the Department of Child Safety and the drug history and the present status of these two parties”. He said:
149. In looking at how the parents have fulfilled or failed to fulfil their parental responsibility, it is abundantly clear that both have failed to discharge those responsibilities in the past.
150. It is also abundantly clear that even though they are opposed to the orders sought by the other, and that there is mistrust, both have made great efforts to turn their lives around.
151. Whatever else he has done in the past, the father has recognised and said so in the witness box that the child needs counselling because he must feel, and it must surface in due course, the effects of his lifestyle on the child and the fact that his acts were certainly the cause of the Department of Child Safety involvement. In stating that I do not think it is the case that the mother does not recognise that her acts have also contributed to that.
152. I have considered that the father originally denied that the Department of Child Safety intervention was in the best interests of the child but he said in oral evidence and again, I think for the first time, that if it was not for that intervention other things could have happened and it is very clear that if not for that intervention, the child was in a situation where he was neglected because of the drug abuse which was occurring around him. It is another indicator that he is progressing in his ability to provide parenting for the child.
At this point in the reasons the Federal Magistrate had dealt with all of the relevant additional considerations enumerated in s 60CC(3) of the Act but had not yet dealt with the primary considerations in s 60CC(2), except perhaps the passing reference in [70] when considering s 60CC(3)(c).
The balance of the reasons being [153] to [218] has the heading “Assessment of risk”. The Federal Magistrate said at [153]: “So based on all of that, what I have got to do is assess risks to the child” and at [154]: “In doing that I have got to consider those cases which set out the guidelines for such an assessment”. The Federal Magistrate referred to the reasons of Moore J in [Peterson & Cochrane [2008] FamCA 712 delivered 1 August 2008]” and said:
156. So the Court does not say because there is merely risk, parenting orders cannot be made. The authorities state that I am to assess what the risk is on the evidence and come to those orders which would be appropriate if the risk is an unacceptable risk, or those orders which would be appropriate with or without safeguards because the risk is an acceptable risk. The Court recognises that parenting orders can be made despite risks being present.
The first matter that the Federal Magistrate appears to have dealt with at [157] to [166] was the risk of harm to the child as a result of the Father’s “drug usage”. The Federal Magistrate at [157] to [158] referred to the “fears” of the Mother about the Father’s use of drugs and without making any finding said at [159]: “In weighing up all of that and the drug usage and the accusations and allegations and the wrongful use of the methadone back in 2006 which is two years ago, I have to look at what the parties have done” (emphasis added).
Then when looking “at what the parties have done” the first matter the Federal Magistrate considered at [160] related to the agreed proposal that the child spend time with the Father for half of all school holidays in circumstances where previously there had been “no holiday orders”. The Federal Magistrate at [161] briefly referred to the evidence of the Mother that part of the reason she agreed to the proposal was because under the current arrangement she and her family could not go away on holidays and he said at [161]: “In my view, if she truly believed the father could not be trusted, that his decision making would be impaired, she would not have been prepared to come to consent orders”. He then said:
162. This was put to her and she accepted that part of the decision was through selfishness. If she is prepared to allow the child to spend up to three weeks with the father, the week about arrangement the father proposes would be less of a risk because she could detect any problems far more quickly on that arrangement than she could if the child was with the father for up to three weeks at a time. That really is the harsh reality of that consent.
163.It was put to me before the trial that the consent orders had been reached. The injection of the methadone came part way through the trial and I could see the mother was in real shock but at no stage was I told she had moved away from that consent order because that would have been the time to do it, unless I am satisfied that she was not capable of making the holiday shared time decision by consent or by other factors which were apparent. I could not term the risk or the fear of the father’s return to drug usage as an acceptable risk. He is on the methadone program to assist him to keep off the hard drugs.
A consideration of what the Federal Magistrate said discloses that in assessing risks to the child the first matter the Federal Magistrate dealt with was the consent proposal about school holidays and the Mother’s fears and concerns about the Father’s drug use. The Federal Magistrate clearly did not accept that the Mother had a real fear of risk of harm to the child because otherwise she would not have consented to the holiday proposal. As it transpired, in so far as the Federal Magistrate looked at “what the parties have done”, the only matter he identified was the consent proposal for holidays.
The Federal Magistrate then made a crucial finding when he said at [163]: “I could not term the risk or the fear of the father's return to drug usage as an unacceptable risk. He is on the methadone program to assist him to keep off hard drugs”. The Mother complains about this finding. The Mother contends that it was not open to the Federal Magistrate on the evidence to make this finding given the Father’s significant history of drug abuse and his continued use of drugs.
None of the opinions of the Family Consultant were challenged. What was submitted during final submissions on behalf of the Father was (Transcript, 11 December 2008, p 125):
The family report can only be of importance as it was in February of 2008. [The Family Consultant] hasn’t seen the parties since that time. There hasn’t been an updated assessment. She hasn’t seen the evidence that your Honour has seen. She hasn’t seen the certificates of the scout training. She hasn’t seen any of that material. She hasn’t spoken to the father recently. So she’s not in a position to give an opinion about how he sees things today. That’s matter for your Honour based upon the evidence that your Honour has heard during the course of this day.
It was also submitted on behalf of the Father that “[]s a result of his involvement in the Scout movement and the school this year, he has also become actively involved with other parents and he’s seen how they interact with their children, and he is moving forward and he is making – he is recognising where he has fallen down as a parent and he striving to address those. And he has addressed those, your Honour” (Transcript, 11 December 2008, p 125).
In summary, the Father submitted that the opinions and recommendations of the Family Consultant should be ignored because of the evidence of the Father as to what he had done between the interviews in February and April 2008 for the preparation of the Family Report and the trial in late 2008. There was no discussion about the necessity to obtain an up to date report given the Father’s contentions.
It becomes necessary to consider what findings the Federal Magistrate made about the Father’s use of drugs and the risk of harm or further abuse of the child.
At [33] the Federal Magistrate observed that “[b]oth parents say they have stopped using drugs illegally”. He also said that the Father “remains on prescribed methadone”. I am not going to repeat all of what the Federal Magistrate said. However, I observe that he made reference to drugs or the use of drugs at [59], [85], [99] and [100]. Then at [101] to [115], which I have already referred to, the Federal Magistrate spoke about the evidence in relation to the Father’s use of drugs including methadone and marijuana. It was during this discussion that the Federal Magistrate appeared to draw a distinction between four categories, of drugs namely drugs, illicit drugs, hard drugs and illegal drugs. I observe that the Father introduced the category of chemical drugs. In my view, that discussion by the Federal Magistrate was discursive and it was difficult to know what findings he made. For example, it was submitted by counsel for the Mother that it is unclear whether the Federal Magistrate regarded marijuana as a “hard drug”.
However, insofar as the Federal Magistrate made any relevant findings, at [107] he said that he must order the Father to remain off marijuana. At [112] he found that methadone “is administered legally”.
At [113] the Federal Magistrate said: “Because the father stated that he was aware that he was drug dependent but had taken action to counter this by going onto the methadone program, I was satisfied that he has insight now into this issue. I was also satisfied that he had taken corrective action”. I observe that the Father has been on the methadone program since 2003.
Then later, after referring to the Mother’s consent to an order that the child spend one half of each school holiday period with the Father, the Federal Magistrate at [163] made a finding in relation to unacceptable risk. At [163] the Federal Magistrate said that he “could not term the risk or fear of the father’s return to drug usage as an unacceptable risk. [The Father] is on the methadone program to assist him to keep off hard drugs”. It was submitted to us by counsel for the Mother that this finding was not open to the Federal Magistrate on the evidence given the Father’s history of drug use and his continued use of drugs.
The Federal Magistrate then at [165] made another finding, namely, that he “could not find that the father, on the evidence, has gone back to the use of hard drugs”. It was submitted to us by counsel for the Mother that methadone is a “hard drug”.
Then at [166], surprisingly, the Federal Magistrate said: “He may do so in the future but, at least during the life of this case, he has remained committed to obtaining parenting orders, and he knew, because it is apparent in his evidence, that if he was on hard drugs or illegal drugs there is little chance of him achieving what he set out to do”. There are number difficulties with what the Federal Magistrate said, however, one obvious problem is that the Father was still using marijuana. It was submitted by counsel for the Mother that in fact, “albeit legitimately” the Father is using a “hard drug” on perhaps a daily basis, namely, methadone. It was also submitted that it completely overlooked the use of marijuana.
Thereafter, with the exception of the discussion at [216] about a “guillotine order” nothing further was said by the Federal Magistrate about the issue of the Father’s use of drugs and the risk of harm to the child.
In passing, I observe, that in concluding that the Father was not using “hard drugs” and that there was no risk of harm to the child, the Federal Magistrate appeared to place weight on the fact that the Family Consultant had recommended that during the school holiday periods there be a week about arrangement, whereas, the Mother agreed to a continuous period or one half of each school holidays. Further, that even after the Mother learnt during the hearing about the 2006 injection incident the Mother did not seek to resile from her consent to the holiday arrangement. In fact, what the Federal Magistrate said at [163], which I have in part referred to, was:
It was put to me before the trial that the consent orders had been reached. The injection of the methadone came part way through the trial and I could see the mother was in real shock but at no stage was I told she had moved away from that consent order because that would have been the time to do it, unless I am satisfied that she was not capable of making the holiday shared time decision by consent or by other factors which were apparent. I could not term the risk or fear of the father’s return to drug usage as an unacceptable risk. [The Father] is on the methadone program “to assist him to keep off hard drugs.
Then later at [172] and [173] the Federal Magistrate returned to his view that the Mother’s “fear” or “belief” was not “genuinely held” because otherwise she would not have consented to the holiday arrangement. The Mother’s complaint about this is expressed in Ground 3 of the second amended notice of appeal.
I accept that, in so far as it was relevant to consider the Mother’s fear or belief of the Father’s drug usage and of any risk of harm, the Federal Magistrate was entitled to take into account the Mother’s consent to the holiday arrangement. However, in my view the issue was not whether the Mother had a genuine fear or belief of the Father’s drug usage and of risk of harm to the child but whether there was a risk of harm to the child irrespective of the Mother’s fears or beliefs.
I also observe that the risk that the Federal Magistrate identified was a risk of the Father’s “return” to drug usage and he said nothing in relation to whether or not in the circumstances the Father’s admitted current use of drugs was a risk of harm to the child.
In my view, consideration of the reasons of the Federal Magistrate reveals that it is very difficult to know what matters he took into account in reaching the two conclusions I have identified, namely, that the Father was not using hard drugs and that there was no unacceptable risk that he may “return” to drug usage.
In conclusion, I am persuaded that there is considerable merit in the complaints about the findings of the Federal Magistrate in relation to the Father’s use of drugs and the risk of harm to the child. In my view, there are a number of errors.
As I have observed this was a case where there is a significant history of abuse of the child and the inquiry was into whether there is a risk of harm to the child.
I am of the view that the Federal Magistrate failed to give sufficient consideration to a number of matters including the Father’s non controversial drug usage history, the 2005 drink driving incident, the 2006 injection incident, the 2008 assault incident, the unwillingness to discuss his previous drug usage with the Family Consultant, the recommendations of the Family Consultant, the admitted use of marijuana, the absence of any evidence of the results of random drug tests and the absence of any expert evidence as to the effect of the Father’s admitted drug usage. In my view the Federal Magistrate gave undue weight to what the Father contended he had done since the interviews with the Family Consultant. In other words there was a preponderance of evidence which pointed to a risk of harm which the Federal Magistrate failed to assess and give appropriate weight to when considering the very important question of risk of harm.
As I have already observed, it can be gleaned from a detailed consideration of the reasons of the Federal Magistrate that he identified most of the relevant statutory provisions. However it is not a case where “it is clear that overall the Federal Magistrate has done that which he/she is required to do by the Family Law Act and authority and has sufficiently evaluated the evidence”: see A v J.
In my view, the appeal should be upheld and for reasons I will shortly give the matter be remitted for rehearing.
Ground 1(c)
In ground 1(c) it is contended that the Federal Magistrate placed insufficient weight on the evidence relating to the nature of the relationship between the child, his siblings and Mr W and the likely effect that the child’s separation from his siblings and Mr W would have on the child. It was submitted that the child has developed a strong bond with his siblings and Mr W.
In the Family Report the Family Consultant gave evidence at paragraph 56 about her observation of the child interacting with his siblings and Mr W and said: “The interaction of the family was observed to be close and caring”. Under the heading “Evaluation” the Family Consultant also said:
74. Developmentally, [the child] is at an age whereby he will become increasingly focused on peer relationships. It is the opinion of the writer that he will be able (to a greater degree) to explore these relationships, at a developmentally appropriate level, when living with his mother. If [the child] lives with his father, it is the opinion of the writer that he will predominately spend his time with only his father.
75. [The child] was observed to have a strong attachment to his baby sister. Everyone interviewed commented on how much he loves [his baby sister]. At this stage of his life, particularly given his life from birth to age five, it is in his best interests to have as much contact with his siblings (or half siblings) as possible in order to develop and maintain sibling relationships, which could assist with the development of resilience.
It was submitted that while the Federal Magistrate at [52] of his reasons referred to an obligation to consider “whether making orders for the father would break [the] relationship” of the child and his siblings and Mr W or that making orders for the Mother “would have an impact on the child's relationship with the father”, in subsequent paragraphs of his reasons the Federal Magistrate focused only on the Father without giving any reasons in respect to the child's relationship in the Mother’s household.
What I observe is that in the context of dealing the matter in s 60CC(3)(c) of the Act when considering the issue of what school the child should attend the Federal Magistrate said:
88. In considering the parenting issue, the child has siblings in his mother's household. [The Family Consultant] reported an attachment between them as well as an attachment between [Mr W] and the child.
89. Although they are much younger, I have also got to consider the child's age because at 10 years, as [the Family Consultant] said, he will be wanting to spend time with his peer group. The dependency which the father said he recognises is a consideration in that respect because if he has not put this dependency behind him, then the child will not be spending time with his peer group. That would not be in his best interests.
In my view there is considerable merit in the complaint of the Mother. The Federal Magistrate failed to address the issue raised by the Family Consultant in paragraph 75 of her report, namely, that it is in the interests of the child to have as much contact with his siblings as possible in order to develop and maintain sibling relationships, which could assist with the development of resilience. This is particularly important for this child given the history of abuse and his enmeshed relationship with the Father.
It highlights the relevance of the failure of the Federal Magistrate to consider the necessity for further expert evidence given the contentions of the Father as to what happened after the report interviews. It is also an example of a failure by the Federal Magistrate to “consider, weigh and assess the evidence” on each of the relevant matters, and then “indicate” the relative weight the court attaches to each of those matters, and “how all of those matters balance out”: see Smith and Smith.
Ground 1(d)
In ground 1(d) it is contended that the Federal Magistrate failed to give sufficient weight to the Family Report and failed to provide any cogent reasons as to why the recommendations contained therein should not be followed.
It was submitted that “[t]he evaluation set out in paragraphs 65 to 77 of the [Family Report] was well reasoned and recommendations in paragraphs 78 [to] 85 based on that evaluation are such that they are in the best interests of the child”. It was submitted that the Federal Magistrate, while referring to the Family Report, “in parts largely ignored the recommendations and opinions of [the Family Consultant] and failed to give any reasons for doing so”.
Counsel for the Mother submitted that what the Father contended he had done since the interviews with the Family Consultant could be interpreted as a further manifestation of the dependency of the Father on the child and that this was a matter that the Family Consultant could have “been asked to comment upon”.
It was also submitted that given what the Family Consultant said about the relationship of the child and the Father there is a concern that in a shared care arrangement the child will become isolated in the dynamic of himself and the Father and be burdened with the emotional responsibility of the Father.
I agree with the submissions made in support of this ground of appeal. The Federal Magistrate made an order for the preparation of a Family Report because there were very obvious issues that the expert evidence would address. Then, in circumstances where there was no consideration given to updating the report, and the Family Consultant was not cross-examined, the opinions and recommendations of the Family Consultant were ignored. The Federal Magistrate said at [209]: “I have also considered the recommendations of [the Family Consultant]”. Presumably what the Family Consultant said was given no weight at all.
Consideration of what the Federal Magistrate said at [195] to [198] demonstrates that he accepted the submission made on behalf of the Father that what the Family Consultant said should be ignored because of what the Father said he has done since the interviews.
In my view, the Federal Magistrate failed to give any or any adequate reasons as to why this important evidence of the Family Consultant was ignored. Further, in so far as it may be said that he did assess the evidence of the Family Consultant with that of the Father, the Federal Magistrate failed to explain why, in the circumstances of this case, no weight would be given to what the Family Consultant said and why significant weight was given to what the Father said.
Grounds 1(e) and (f)
In ground 1(e) it is contended that the Federal Magistrate gave insufficient weight to the Father’s lack of insight, his dependency on the child, and the child’s protectiveness of him. In ground 1(f) it is contended that the Federal Magistrate gave undue weight to the Father’s scout leadership qualifications in considering his dependency upon the child.
It was submitted that the Father’s dependency on the child is well documented in paragraphs 22, 51, 60, 67, 71 of the Family Report. It was submitted that the Federal Magistrate placed undue weight on the fact that in the months following the report the Father had taken some scout training courses as evidence that he had overcome that dependency.
I do not propose to repeat what the Federal Magistrate said at [195] to [198]. Some of what I have already found is relevant to consideration of this ground. In summary, I am of the view that there is a great deal of merit in these complaints.
What I observe is that on a number of occasions in his reasons the Federal Magistrate referred to the Father’s “insight” and seemed to be persuaded that the Father has now recognised many of the matters dealt with by the Family Consultant and the Father’s own behaviour. For example at [56] the Federal Magistrate said that the Family Consultant commented on the “dependency pointing out that it was not a healthy situation”. At [57] the Federal Magistrate observed that the “[t]he evidence on paper seemed to suggest that the father had no insight into this issue” and that “[i]n oral evidence, that is in the witness box during cross-examination, the father, and I think for the first time, recognised that he did have a dependence on the child” (emphasis added). Thereafter, the Federal Magistrate appears to have found that the views of the Family Consultant should be ignored because the Father now has insight and has overcome the dependency on the child. With respect to the Federal Magistrate what the Father’s revelation during cross-examination should have done, given the extraordinary history, was alerted him to the importance of an updated report from an expert.
Ground 1(j)
In ground 1(j) it is contended that the Federal Magistrate gave undue weight to the wishes of the child.
It was submitted that while the child certainly expressed a wish to live with the Father, the Federal Magistrate “gave too great a weight to those wishes with regard to the age of the child and the established dependency between [the Father] and the child”.
I agree that what the Father said in cross-examination about discussions he had with the child about the court proceedings would be very relevant when considering the weight to be attached to the views of the child and perhaps other relevant best interests’ considerations (Transcript, 11 December 2008, pp 48 to 51). However, it is very difficult to glean from the reasons what findings were made about a number of evidentiary matters and statutory considerations.
I am of the view that there is no merit in this ground of appeal because although at [45], [49], [73] and [137] the Federal Magistrate referred to the evidence about the views of the child, and that he had to be careful about the weight ultimately he attached to those views. I cannot locate where he made a finding about the relevance of the views of the child or the weight that he proposed to attach to those views.
Grounds 2(a), (b), (c), (d) and (e)
Given that I would allow the appeal and remit the matter for redetermination the issue of the school that the child will attend would have to also be considered. However, I will briefly address some of the issues raised in relation to grounds 2(a), (b), (c), (d) and (e).
In the written outline of argument of the Mother it was submitted that in making the order, the Federal Magistrate paid insufficient heed to the practical difficulties arising from the Mother with two young children having each second week to transport the child to Y. Further, the Father gave evidence that “if the child was at [X] State School there would be no problem” (Transcript, 11 December 2008, pp 44 to 45). It was also submitted that the finding that a change of school would affect the stability of the child had no basis on the evidence.
On behalf of the Father a number of submissions were made. It was submitted in reaching his determination the Federal Magistrate considered a number of relevant matters being at [74] the importance of stability and friends; at [75] the existence of friends, support for learning and behavioural improvements and that the child was settled; and at [81] that the child had friends at school and had made some headway with regard to school work and social attitudes. What the Federal Magistrate ultimately found at [86] was that, in the circumstances, the child would be exposed to “greater instability [in] his life” in the event of a change of school.
Consideration of what the Federal Magistrate said at [77], [78] and [80] does reveal that he took into account the matters contended for on behalf of the Mother including that life for the Mother would be easier if the child could walk to school.
In my view, it does appear, although again what was said was somewhat discursive, that the Federal Magistrate did consider the benefits and detriments to the child of each proposal and in doing so, reached a decision which, was within his exercise of discretion. However, as the Federal Magistrate observed at [80], and I agree, many of the schooling issues were intertwined with the parenting issues and given the redetermination of the school term living arrangements the schooling of the child will also have to be dealt with.
Ground 3
In ground 3 it is contended that the Federal Magistrate erred in finding that if the Mother truly believed the Father could not be trusted, that his decision making would be impaired, she would not have been prepared to consent to half of all school holidays.
It was submitted that as the Family Consultant recommended that holiday time be spent week about, the Federal Magistrate erred in holding that the Mother's belief or concerns were not genuinely held. It was submitted that there will be far less opportunity for the Father to indulge in drug use over the holiday period without being detected than if there was a shared care situation.
I have touched upon issues that ground 3 raises when considering the grounds in relation to the Father’s use of drugs and the risk of harm to the child. As I have observed, in my view the belief of the Mother was not the issue and that it did not matter what her views were. Obviously the views of the Mother may be relevant to other statutory considerations for example, s 60CC(3)(c) and (f) of the Act.
It was submitted that the cross-examination of the Mother revealed that her fears about the Father’s use of drugs including his dosage of 150 ml of methadone were genuine and justified and that to treat her agreement about school holidays as undermining the genuineness of her views was unfair.
For reasons I have already given I accept that in so far as it was relevant to consider the fears and beliefs of the Mother it would be relevant to take into account her agreement about school holidays. However, I am also of the view that it was not a matter of significance and, in any event, is not something that would be determinative of any issue about whether fears and beliefs were genuine. For example, in this matter the parties agreed on an order for equal shared parental responsibility in circumstances where there is a great deal of evidence that would suggest that such an outcome was not in the best interests of this child.
Redetermination
We invited submissions as to whether in the event that appeal succeeded we re-re-exercise the discretion or remit the matter for redetermination before a Federal Magistrate other than Coates FM.
Counsel for the Mother asked us to re-exercise the discretion. Counsel for the Father sought that the matter be remitted for rehearing before a Federal Magistrate.
We were informed that a stay was not made of the orders made by the Federal Magistrate and thus it is now some months since the judgment was appealed against.
In my view, the matter should be remitted for rehearing before a Federal Magistrate other than the Federal Magistrate Coates. There will have to be evidence as to what has happened since the orders the subject of the appeal. As well, for reasons I have given, there should be an up to date Family Report and consideration may have to be given to other expert evidence such as evidence from an expert in drug and alcohol abuse.
Costs
At the conclusion of the hearing we received brief submissions in relation to costs. Both parties are in receipt of a grant of legal aid.
In the event that the appeal was successful both parties sought a certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) both in relation to the hearing before us and also the rehearing.
No submissions were made by either party in relation to the provisions of s 117 of the Act. I observe that a certificate cannot be granted under the Federal Proceedings (Costs) Act unless in accordance with s 117 of the Act each party to the appeal bears his or her own costs.
Given the absence of any submissions in relation to s 117 of the Act, I assume that given the appeal was upheld because there was an error of law by the Federal Magistrate and given that both parties have legal aid, then in accordance with s 117 each party to the appeal should bear his or her own costs.
I am of the view that the appeal did succeed on a question of law and that the pre-conditions required for costs certificates have been met. I am also of the view that a costs certificate should be granted to both parties that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment to them in respect of the costs incurred by them in relation to the rehearing.
I certify that the preceding two-hundred and ninety-one (291) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court of Warnick, Boland and O’Ryan JJ.
Associate:
Date:26 March 2010
4
4
16