Altman and Wicklow
[2014] FCCA 1886
•22 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ALTMAN & WICKLOW | [2014] FCCA 1886 |
| Catchwords: FAMILY LAW – Parenting – Father with long history of drug and alcohol use – series of events during relationship that involved significant violence (including the use of an axe in front of the children) – issues of rehabilitation (of Father) and protection of children. |
| Legislation: Evidence Act 1995, s.128 Family Law Act 1975, ss.60CA, 60B(1) & (2), 60CC(2)(a) & (b), 60CC(2A), 60CC(3)(a) – (i), 61DA, 65DAA |
| Champness & Hanson (2009) FLC ¶93-407 Collu & Rinaldo [2010] FamCAFC 53 Lindsay & Baker [2012] FamCAFC 189 McCall v Clark (2009) 41 Fam LR 483 Maluka v Maluka (2012) 45 Fam LR 129 Mazorski v Albright (2008) 37 Fam LR 518 Moose & Moose (2008) FLC ¶93-375 Morgan v Miles (2008) 38 Fam LR 275 Mulvany v Lane (2009) 41 Fam LR 418 MRR v GR (2010) 240 CLR 461 Sayer v Radcliffe (2013) 48 Fam LR 298 SCVG & KLD [2014] FamCAFC 42 Shaeffer v Jacobs (2011) FLC ¶93-468 Sigley v Evor (2011) 44 Fam LR 439 |
| Applicant: | MR ALTMAN |
| Respondent: | MS WICKLOW |
| File Number: | CAC 828 of 2013 |
| Judgment of: | Judge Neville |
| Hearing dates: | 13 & 14 February 2014 |
| Date of Last Submission: | 25 February 2014 |
| Delivered at: | Canberra |
| Delivered on: | 22 August 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Longman Hill Solicitors, Orange |
| Solicitors for the Respondent: | Pappas J Attorney, Canberra |
| Solicitors for the Independent Children's Lawyer: | Legal Aid ACT |
ORDERS
All previous orders be discharged;
Parental Responsibility
The Mother have sole parental responsibility for the children, X, born (omitted) 2007 and Y, born (omitted) 2009, (“the children”);
Living arrangements and time with each parent
The children live with the Mother;
For a period of three (3) years from the date of this order, the children spend time with the Father four (4) times per year under the following arrangements:
(a)The time will occur at a contact centre in the greater Melbourne area unless otherwise agreed;
(b)The time on each visit be for not more than two (2) hours per visit;
(c)The time be supervised by a professional supervisor;
(d)The first three (3) visits per year to occur during each of the school holidays which fall at the end of terms 1, 2 and 3 each year;
(e)The fourth visit each year occur in the week prior to Christmas day;
(f)The Father be solely responsible for meeting the cost of professional supervision;
Within 7 days of the date of these orders each party will make contact with Family Life Children’s Contact Service, (omitted) on (omitted) and do all things necessary to register with the service;
Information Sharing
The Mother is to notify the Father as soon as practicable, if either child suffers any serious illness or injury requiring hospital admission;
The Mother is to advise the Father by letter only, and the Father is restrained from responding in any way, of decisions in relation to any major long-term issue in relation to the children;
Within 14 days of the date of these Orders the Mother will authorise the children’s school/s to provide to the Father copies of all school reports for the children and all order forms for school photographs, at the Father’s expense;
Other Matters
Neither of the parents will discuss issues between the parents or say unkind or rude or critical things about the other parent to, or in front of the children, or allow any other person to do so;
The Father is to undertake a parenting course each year for the three (3) years following these orders, with an emphasis on post-separation parenting and anger management;
Upon the conclusion of the three (3) year period referred to in Order 4 of these orders, the Father may apply to the Court to have the head of the family consultants in the Canberra Registry of the Court review:
(a)The notes from the contact centre for the previous three years;
(b)The evidence of completion of parenting courses referred to in Order 10 of these orders;
(c)Not less than three (3) concurrent, clear chain of custody drug urinalysis results, with the tests to be taken at least four (4) weeks apart in the six (6) months prior to the application being made;
(d)The results of one clear chain of custody drug urinalysis test undertaken at least a year, but no more than 18 months, prior to the application being made;
(e)A report from the Father’s treating psychiatrist attesting to the Father’s mental health status, current medication, and other treatment, and in view of those details, his capacity to spend unsupervised time with the children; and
(f)To meet with each of the parents separately following the review of the notes from the contact centre.
If the material referred to in Order 11 of these orders is not supplied by the Father, there is to be no meeting with the family consultant until it has been so provided;
The family consultant who does this review pursuant to Order 11 of these orders is further requested to provide a note to the Court as to whether the matter should be re-listed to see whether any increase in time between the children and their Father should be permitted;
The Independent Children’s Lawyer is discharged;
The matter is now finalised and will be immediately removed from the docket.
IT IS NOTED that publication of this judgment under the pseudonym Altman & Wicklow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 828 of 2013
| MR ALTMAN |
Applicant
And
| MS WICKLOW |
Respondent
REASONS FOR JUDGMENT
Introduction
The scope of the current parenting matter is relatively narrow. The determination of the issues in dispute, in my view, rests primarily on the consideration of the evidence in the light of the Court’s protective responsibilities towards the young children involved, X (now aged 7 years) and Y (aged 5 years).
The children’s Father has had “issues” in relation to, among other things, the use of drugs for many years. He also has some not insignificant mental health issues. Unfortunately, there was a paucity of evidence in relation to the Father’s mental health issues, such as his medication and the like. My concerns in this regard were echoed by the independent children’s lawyer (“the ICL”) ICL at the outset of the trial. It is important to note the following comments by the experienced ICL in this regard:[1]
[1] See Transcript (13th February 2014) pp.2-3. Unless otherwise required, hereafter transcript references should be taken to be to this date and will simply be “T” followed by the relevant page number.
… there is no medical evidence, independent or otherwise, to indicate what the Father’s condition is. … it’s a major shortcoming and it is difficult to see how this Court can make anything approaching the orders of what the Father seeks in the absence of that evidence. I note from his orders sought, at order 4, that he seeks to provide the Mother with a report from his treating psychiatrist, confirming his compliance with his prescribed treatment regime and fitness to have unsupervised time with the children. Well, your Honour should be aware there’s a number of difficulties with that. Firstly, it’s providing judicial discretion on a psychiatrist to decide whether or not the Father is fit to have contact with his children, but, more importantly, that’s the evidence that should be before this Court so that this Court can make that decision, your Honour.
The evidence from subpoena is from (omitted) Hospital and, your Honour, I think you will see that does not paint the Father’s mental health in a very positive light at all, and it may be possible that the Father has made remarkable gains in the last 12 to 18 months, but there’s no evidence before the Court to show that. And certainly, he can’t give that medical evidence himself. So I’m in a position where I’ve gone with Ms S’s recommendations because that is the evidence which is before the Court, and there’s nothing to counter that.
In the same exchange, the ICL continued:
HIS HONOUR: Can I ask this. Does the subpoenaed material suggest or disclose anything other than the schizophrenia to which the other ‑ ‑ ‑
MR STAGG: Well, your Honour, interestingly enough, the subpoenaed material doesn’t disclose schizophrenia. The subpoenaed material suggests borderline personality traits, and there’s no mention of schizophrenia other than the Father tells (omitted) Hospital he has been treated for schizophrenia.
HIS HONOUR: I see.
MR STAGG: There are some real difficulties and, certainly, from my point of view in being able to conclude anything other than what Ms S’s recommendations are because there’s nothing to counter that.
In addition to these matters, his relationship with the Mother was occasioned, at times, by very significant violence that was perpetrated by the Father in front of the children. Although it is noted in more detail later, one such incident - a terrifying one - involved the Father wielding an axe and, in the course of this exercise, taking one of the children from his slumber in bed. As a result of this incident the Father was unsurprisingly charged with malicious damage, and assault of the Mother.
The ICL had issued a subpoena to the NSW Police, which organisation only provided a report on the 25 events involving the Father since January 2010. There were disclosed 79 events on the NSW Police system. However, to the exasperation of the ICL, only the most recent 25 events were provided in answer to the subpoena.
The Mother, ultimately, removed herself and the children from the locality where the Father lives and now resides in an un-named town in Victoria.
The Family Consultant’s recommendation (which was adopted/supported by the ICL) was that the Father have only four visits each year with the children, supervised at a contact centre. Provided there was sufficient evidence, and over a not insignificant period of time, that the Father’s “issues” (notably but not limited to his drug consumption) the Mother said that she was amenable to moving to an increase in time that the Father spends with the children.
The basal issue for the Court to determine is whether, in the children’s best interests (pursuant to s.60CA of the Family Law Act 1975 [“the Act”]), and having regard to the Court’s protective responsibilities (pursuant to ss.60B(1)(b), 60CC(2)(b) and 60CC(2A)), the Father’s time should remain (as recommended by the family consultant) severely limited and supervised, or (provided relevant protections are put in place) whether it might, in time, move to some graduated increase.
After setting out the orders sought by each of the parties and the ICL, these reasons proceed as follows: (a) the evidence of the parties, (b) the evidence of the family consultant, (c) outline of relevant principle, (d) consideration and disposition.
Orders Sought
The Father sought the following orders:
1. That the children X born (omitted) 2007 and Y born (omitted) 2009 live with the Respondent mother.
2. The Applicant Father spend time with the said children:
a)Each weekend from Friday 3pm until Sunday 6pm provided the children live within a 100 kilometre radius of the father’s residence.
b)(omitted) NSW gazetted School holidays alternating between the first half in even numbered years and the second half in odd numbered years.
c)Shared Christmas and Birthdays and special occasions.
d)Liberal and unsupervised telephone contact as agreed between the parties but in the absence of agreement, each Tuesday at 6pm.
e)At such other times as agreed between the parties.
f)Pickup to occur at the beginning of contact from outside the father’s residence and at the conclusion of contact, the mother to pick-up the children from outside the father’s residence.
3. The father’s time with the children as set out in Order 2 above be suspended until the following re-introduction is successfully completed :-
a)For a period of two months from the date of these Orders, fortnightly supervised contact at (omitted), (omitted), NSW, for a period of two hours.
b)Thereafter, for a further period of two months, unsupervised contact from 10am to 4pm each alternate Sunday. The father not to remove the children from the (omitted) town limits.
c)Thereafter, for a further period of two months, unsupervised day contact from 10am to 4pm each Saturday and Sunday each alternate weekend. The father not to remove the children from the (omitted) town limits.
d)Thereafter, for a further period of two months, unsupervised overnight contact from 10am Saturday till 4pm Sunday.
4. The father provide the mother with a report from his treating psychiatrist confirmng his compliance with his prescribed treatment regime and fitness for unsupervised time with the children.
5. Provision of clear urinalysis drug screening within twenty four hours of receiving a random request from the mother’s Solicitor, no more frequently than once per month, for period of six months from the date of these Orders.
The Independent Children’s Lawyer proposed orders in the following terms:
Parental Responsibility
1. That the mother have sole parental responsibility for the children X, born (omitted) 2007 and Y, born (omitted) 2009, (“the children”).
Living arrangements and time with each parent
2. That the children live with the mother.
3. That the children spend time with the father 4 times per year under the following arrangements:
a) The time will occur in the greater Melbourne area unless otherwise agreed;
b) The time on each visit be for not more than 2 hours per visit;
c) The time be supervised by a professional supervisor;
d) The first 3 visits per year to occur during each of the school holidays which fall at the end of terms 1, 2 and 3 each year.
e) The fourth visit each year occur in the week prior to Christmas day;
f) The father be solely responsible for meeting the cost of professional supervision.
4. Within 7 days of the date of these orders each party will make contact with Family Life Children’s Contact Service, (omitted) on (omitted) and do all things necessary to register with the service.
Information Sharing
5. That the mother is to notify the father as soon as practicable, if either child suffers any serious illness or injury requiring hospital admission.
6. That within 14 days of the date of these Orders the mother will authorise the children’s school/s to provide to the father copies of all school reports for the children and all order forms for school photographs, at the father’s expense.
Other Matters
7. That neither of the parents will discuss issues between the parents or say unkind or rude or critical things about the other parent to, or in front of the children, or allow any other person to do so.
8. That the father have leave to reapply to vary these Orders in relation to the time the children spend with him upon the filing of an Initiating Application and an Affidavit providing the following information:
a) An outline of the time the father has spent with the children since the making of the Orders;
b) Not less than 3 concurrent clear chain of custody drug urinalysis results within a 6 month period, but separated by at least 4 weeks between tests;
c) A report from the father’s treating psychiatrist attesting to the father’s current mental health status, current medication and other treatment, the professional opinion of the psychiatrist of the effect (if any) of the father’s mental health on his functioning and the professional opinion of the treating psychiatrist as to the suitability of the father having unsupervised time with the children.
9. For the purpose of preparation of the report pursuant to Order 7(c) the father shall provide a copy of any judgement in this matter to the writer of the report prior to production of any report.
The Mother sought orders in the same terms proposed by the ICL.
Two things should be noted about the Father’s orders sought. First, clearly there is no specific or formal order sought to have the Mother and/or the children return to live in the (omitted) region from which she and they moved in early 2013.
Secondly, as a corollary of the first point, the matter was conducted on the basis that the Mother and the children would continue to reside in Victoria.
In these circumstances, the principles that apply in parenting cases that involve relocation do not formally apply or need to be considered here. Indeed, there was no submission made that principles of the kind articulated by Boland J in Morgan v Miles had any relevant application to the current matter.[2]
[2] Morgan v Miles (2008) 38 Fam LR 275.
The Father’s Evidence
The following is a summary of the Applicant Father’s evidence.
The Father confirmed that he is aged 37 years, and that he is on a disability pension. He confirmed that he attends a local mental health service in (omitted) twice per month which, he said, is staffed by a range of health care workers, including psychiatrists. Unfortunately he could not recall the name of any psychiatrist, in part because such personnel change (so it would appear) on a semi-regular basis.[3]
[3] T 7.
He outlined as best he could various changes to his medication. For example, he said that he had been on a dozen medications in the last six years.[4]
[4] T 7.
The Father confirmed that he was in a relationship with the Mother for approximately four years. He described it (in his affidavit material and in oral evidence) as a relationship “with benefits” – essentially sexual benefits. The parties were not a “couple.” Indeed, most of the time he did not reside with Ms Wicklow; rather, he resided in a caravan that was kept on her property. She “visited” his caravan regularly (he said).
He confirmed that the relationship (however described) ended when the Respondent Mother discovered that the Father ‘was cheating on her with another lady.’[5]
[5] T 9.
The Father also confirmed that there was a succession of apprehended violence orders against him to protect the Mother (and later the children) in the course of the relationship.[6] He said however that on various occasions, notwithstanding such orders being in place, the Mother invited him into her residence and or to spend time with the children.
[6] T 10. The Father’s criminal history is contained in a number of documents, each of which became exhibits in the proceeding: Exhibit C (NSW Police – criminal history); Exhibit D1(NSW Police - events history); Exhibit F (Court attendance notices & facts sheet).
Two incidents were the subject of particular focus in the Father’s cross-examination: one in 2008 and the other in 2010. Although they are, now, of some history, they remain of some relevance to the determination of parenting orders having regard to the Mother’s decision and move to reside so far removed from the Father, essentially on the grounds of ‘safety’.
In September 2008, on the Father’s evidence, he and the Mother had been drinking most of the day. She later turned off the power to his caravan. To provide some light for his abode he lit a fire with some leaves. The Mother accused him of trying to burn down her house; the Father denied this. There was some sort of altercation between the parties following which the Father was charged with common assault, to which he pleaded guilty. He did concede, albeit to a limited degree, that there was a risk that the fire could have spread to the house, which was close to where the fire had been lit.[7]
[7] See T 12-13.
The 2010 incident was as follows. In relation to this incident, the Father pleaded guilty to malicious damage and assault. The “Fact Sheet” from the NSW Police in relation to this incident is part of Exhibit F.
The Fact Sheet records that (a) the Father suffers from schizophrenia and depression, (b) at the time of the incident he had not been taking his medication, (c) the Father said to the Police that he was an alcoholic who drinks almost every day, (d) the Father also confirmed to the Police that he smoked cannabis and was taking other drugs, such as “speed” every now and again.
After drinking for part of the afternoon the Father returned to his residence at which time the Mother told him that she no longer wished to reside in the same residence with him.[8] Although the Father alleges that the Mother attacked him on his return from the pub, the Police Fact Sheet records that the Father was the aggressor, including him making threats to kill the Mother. In the course of this incident the Father picked up an axe and smashed it into the wall, the lounge and a large chest freezer, saying that he intended to “smash the house” and that “I’m gunna end it.”
[8] Although having already noted that the Father resided in a caravan on the Mother’s [rental] property, occasionally the parties lived together.
The Fact Sheet records that the Father took his [then] two year old son, X, out of his bed (after he had yelled at the Mother’s older child, A, a child from a different relationship). The Fact Sheet records that the Father said to the Mother, in reference to X: “I’m taking him and I will hurt him too.” The Father actually took X to his parents’ house and told them “Keep my son safe.”
The Police further noted that they had spoken with the Father, who was “extremely agitated.” He would not surrender to the police.
Later, the Father was admitted to (omitted) [Psychiatric] Hospital, (omitted). Upon his discharge from that hospital some time later, the Police recorded that the Father agreed to be interviewed and made a number of ‘partial admissions.’ Among other things, the Father said to the police that “when he gets angry he needs to let off steam at times and smashing things was a way he did that.”[9] The Father agreed with police that his behaviour could have caused fear and scared the Mother.
[9] Exhibit F: NSW Police Fact Sheet, p.5.
The account from the Fact Sheet was basically confirmed by the Father in the course of his cross-examination.[10] He said that he was in (omitted) Hospital, a psychiatric facility, for approximately two weeks before he was discharged, and then was interviewed by the police. At the time of, and during his time in hospital, he confirmed that he was suffering from auditory hallucination and suicidal thoughts.[11]
[10] T 14 – 18.
[11] T 16.
Moving to more recent times, the Father confirmed that he had not seen the children since February 2013. He also confirmed that the Mother said that he had not seen the children also between April 2010 and October 2012. On his evidence, he did not see the children regularly after October 2010, but between April and October of that year he did see them reasonably frequently.
The Father said that he had difficulty recalling either at all or with relevant accuracy events from mid-2010 because, at that time, he was heavily medicated.[12] His heavy medication caused his general functioning to be impaired.[13] He said that he was not so heavily medicated now. He said he remained heavily medicated until mid-2011. He said that his medication was changed because (a) he whinged so much about how drugged he felt, and (b) he said he was diagnosed further with some form of psychosis (in addition to his schizophrenia).[14] After his medication was changed, his general functioning was impaired, but not quite to the same degree as previously.[15] He also said that he lost his driver’s licence for 12 months over his ‘heavy medication’; details were unfortunately lacking.[16]
[12] T 20.
[13] T 22.
[14] T 22.
[15] T 22.
[16] T 23.
The nature and kind of “impairment” to which the Father referred, he said, related not to memory (this is notwithstanding the Father’s earlier evidence that his memory was affected) but rather to his lack of motivation.[17]
[17] T 23.
The following exchange with the Father, in my view, is significant (emphasis added):[18]
His Honour: Can I ask you this, and let me be very frank about it, in many ways this really gets to the heart of the case, as I understand the case that’s put against you by Ms Wicklow, the case that effectively is put against you, obviously I haven’t yet heard from Mr Stagg, we’re going on the orders that he’s seeking as the independent children’s lawyer, supported all by Ms S, is there are two aspects. One is that you haven’t spent very much time with the children at all in recent times and secondly, the issue of your capacity to care for the children. And there’s a third issue that relates to the Mother’s – what she says her fear of you. Why should the Court go beyond the recommendations of Ms S and, effectively based on those recommendations, the orders sought by the ICL of you having regular but not all the frequent time with the children four times a year? Why do you say the Court should go beyond what is recommended?‑‑‑Because I’ve had more contact than what they’re acknowledging. I’ve spent time looking after the kids. I’m healthy. I’m well. I’m motivated. I want to do it.
See, because I’ve got to make orders that are in the best interests of the children not what is in the best interests of the parents?‑‑‑Yep.
I obviously take into account the best interests of the – sorry, that I take into account the relationship and the capacities and so forth of the parents, but ultimately my responsibility is to make orders that are in the best interests of the children. So why is it in the children’s best interests to spend time with you in the circumstances that are outlined in the material that’s come in before the Court?‑‑‑Because I’m their Father. They deserve to have a Father. I’m a good person. I’m not as bad as what it makes out to be. I’m actually – and I think I’m good, I don’t feel sick anymore.
[18] T 24.
The Father (who, as previously noted, is aged 37 years) confirmed that he had used marijuana since he was a teenager, and that he still uses it socially, perhaps now “a couple of times a week.”[19] Prior to his reduced consumption of cannabis from about December 2013, the Father said that he used the drug perhaps 10 cones every second day.
[19] T 26 - 28. Pursuant to these admissions, a certificate was granted to the witness pursuant to s.128 of the Evidence Act 1995.
The Father confirmed that he had not read the family report (which became Exhibit A) because he had not seen a copy of it.[20] In the course of that report, the family consultant said that the Father said to her (at par.33 of the Report) that he had little ability to control the effect of drugs on his life. In his oral evidence, the Father said that he disagreed with what was recorded by the family consultant.
[20] Three things may be noted here: (a) the Father’s solicitor made it plain that he had in fact provided the Father with a copy of the report; (b) because, in the course of his cross examination, he was provided with a copy of the report and was referred to specific passages in the report, and (c) because he had the opportunity over the course of the two days of the trial to consider [again] the terms of the Family Report and to make any other submissions in relation to it (but did not do so), in my view, no procedural taint should be inferred or taken in relation to the Father’s contention that he had not seen the Family Report prior to the trial.
Rather, the Father said (by way of context) that he had had issues in the past with heroin, speed, and ice, but was no longer a user of those drugs. He said that he did not really wish to continue to use cannabis, but that drug was more difficult for him to get off.[21]
[21] T 28.
In relation to the Mother, the Father said that she was a nice person, and that he had no concerns, in general, about her ability to look after the children. He said that he had nothing bad to say about her.[22]
[22] T 30.
Notwithstanding these comments, the Father confirmed the view he expressed to the family consultant to the effect that the Mother was “playing on being a girl” which was, in turn, used against him as the Father.
He confirmed that he would abide by an order of the Court that provided for him to travel to Victoria to see the children at a contact centre.[23]
[23] T 31.
The Father provided the following evidence in answer to questions from the ICL.
The following exchange is not insignificant, as it relates to the Father’s practice to take prescription medication and still to consume cannabis (among other things):[24]
Firstly, I want to go to look briefly at your current mental health status and what it was previously. Now, you say that your medication was changed about four months ago?‑‑‑Yep.
And prior to that you were on some medication that impacted on your functioning to a certain degree?‑‑‑Yeah.
And then sometime in 2011 you were changed onto that medication, but prior to that you were on a very heavy dose of something else?‑‑‑I was – yeah, prior to that I was on multiple medications. It wasn’t just one it was three. There was two lots of medication and an injection that I was getting once a fortnight.
Right. And you would have been told at the time that mixing those medications with marijuana use wouldn’t have been a good idea?‑‑‑Yeah. They tell you that all the time.
Yes?‑‑‑That it’s – that it’s not a good idea. They say that it won’t let the medication do its job properly.
Right. And that was the same for the medication that you were prescribed from 2011 onwards, until about four months ago?‑‑‑Yep.
And it would be the case now, as well, wouldn’t it?‑‑‑Yeah. Part of the reason they put me on this one was because it didn’t have some – like it didn’t seem to have the conflict with the marijuana.
[24] T 32.
In relation to his original application filed in April/May 2013, the following questions and answers were provided (emphasis added):[25]
MR STAGG: At the time you filed your application in May, and you did your affidavit in April 2013, you were seeking to spend time with the children?‑‑‑Yep.
And you were seeking exactly the same arrangement that you’re seeking now, every weekend and half the school holidays?‑‑‑Yep.
The impression – sorry, I will withdraw that. It would be correct to say that the impression you wanted to create to the Court was that was the time you should have with your children as of that date?‑‑‑Yep.
Do you now accept from the evidence you’ve given today that at the time you made that application, one, your medication was having some effect on your day-to-day functioning. Secondly, that the amount of marijuana you were smoking was daily and how much a day at the time?‑‑‑About 20 cones.
Twenty cones a day. And you were drinking?‑‑‑Yeah.
[25] T 33.
In the light of these comments, the following propositions were put to the Father (emphasis added):[26]
[26] T 34.
MR STAGG: In fact it would be safe to say, wouldn’t it, that any reasonable person would have some pretty major concerns about leaving kids in your care at that time, wouldn’t they?‑‑‑No.
Let me put it another way. Would you be happy leaving your children in a mate’s care who was knocking back 20 cones a day, 18 drinks, leaving your kids in that person’s care, knowing that he had schizophrenia and it wasn’t medicated properly?‑‑‑It depends on the person, really. I know people that don’t have any of them problems and I wouldn’t leave my kids with. So ‑ ‑ ‑
That wasn’t the question I asked, though, was it?‑‑‑Well, you asked whether I would feel safe leaving them with someone like that. Yes, I probably would, depending on the person.
Okay. So you say that you are – I just want to get clear about which your current level of drug use and history wise, you say you currently use marijuana?‑‑‑Yep.
And that’s about a couple of times a week?‑‑‑Yep.
And that’s, I think you said, about 10 cones?‑‑‑Give or take, yeah.
In my view, the Father’s evidence just shows very little insight in relation to the care and best interests of the children.
In later questions from the Bench, the Father confirmed that he had a standing order with a regular supplier for his supply of cannabis, which cost him approximately $50.00 per week.
In relation to his criminal history, the ICL put to him that no information regarding it was provided in his affidavit material. To this he somewhat blithely replied that he thought that it would come out anyway, implying that this was the reason why he did not provide that information himself.[27]
[27] See T 36 & 43 - 44. See also the lengthy discussion about the Father’s history of drug use, particularly in the last five years, including his time in hospital, at T 37 – 39.
In my view, such a response was unsatisfactory. Among other things, it demonstrated a willingness or tendency to let others do what the Father himself should do. In short, a certain lack of responsibility, in my view, was demonstrated by the Father by answers of the kind highlighted here.
The Father confirmed that, at times, both his parents, and his sister, have had apprehended violence orders against him, as well as having been detained by police for anti-social behaviour in 2007.
And while the Father put in his most recent material allegations that the Mother has self-harmed, he did not put anything before the Court in his affidavit material that he had self-harmed, which he confirmed in his oral evidence that he had done, and on more than one occasion.[28]
[28] T 47 – 48 & 51.
In relation to his cheating on the Mother, the following oral evidence is important:[29]
[29] T 52.
HIS HONOUR: How long do you say the so-called cheating had been going on?‑‑‑15 months.
So it was a significant period of time?‑‑‑Yes.
So then what were the circumstances, you say, about Ms Wicklow finding out? How did she find out?‑‑‑Because I left my phone at her house one night and she went through my phone and found messages from the other party.
Among other things, I suggest that comments such as these, and others noted earlier in these reasons (e.g. in relation to his violent conduct using an axe in front of the children), and consistently with other similar observations, show a significant lack of insight and lack of responsibility by the Father, on many fronts and in a wide number of respects.
Later in his evidence he recounted the events that gave rise to an AVO obtained by his parents against him. It is sufficient to note that the Father admitted that he damaged his parents’ property. He said: [30]
[30] T 53.
… because it pissed me off I went up there and sort of spread stuff everywhere, like all the – all the books and stuff that were sitting on the table I just pushed them all onto the floor.
So this is at your parents’ place?‑‑‑Yes. That was what the AVO was about.
Were they there at the time?‑‑‑No.
He said that his relationship with his parents now was/is good. My concern, however, is the evidence before the Court which confirms the Father’s capacity, and his consistency, to resort to violence against persons he professes to love or be concerned about when he is dissatisfied or disgruntled with action which he perceives to be against his interests.
The Father confirmed that he made “advances” to the Mother as recently as 2013. She said that they were very unwelcome, and were done in front of the older of the children, X (on which more later). He accepted that part of the “advances” account by the Mother was true, but other parts were not, including that he groped her breasts and legs, and that he refused to stop until she started screaming.[31]
[31] Further details regarding this event are set out later in these reasons, but generally, see the Form 4 filed on behalf of the Mother on 4th July 2013.
The Father confirmed that in relation to charges concerning drugs, he has a criminal record that includes “dealing”, but he was at pains to point out that he was not selling drugs (marijuana), only delivering them.[32] In my view, the matter speaks for itself.
[32] T 57 & 58 (emphasis added).
In the course of questioning by the ICL, the Father was informed that the Mother had provided a clear drug screen, while the results of the Father’s drug screen had yet to materialise – although he said that he had done it.
In response to comments in the family report (at pars.47 & 52) the Father agreed with the Mother’s concern that, when he is taking drugs (prescription and non-prescription) and also consuming alcohol, he is unpredictable.[33] He also agreed generally that he had a significant history of self-harm and suicide attempts; he did not concede however that there had been perhaps ‘a dozen or so’ such attempts.[34] Then there was this exchange with the ICL:[35]
Do you agree that it would be reasonable for her, given your history, to have concerns that if you had some mental health difficulties and/or a bad combination of drugs, you could do something in front of your children, that would be a reasonable fear, would it not?‑‑‑Yes. I suppose it could be a reasonable fear.
She’s worried as to what her children might be exposed to, and I will take it from that it would be reasonable for her to be worried you may consume drugs, or drink to excess or have some sort of mental health episode while you had the children in your care. A reasonable concern?‑‑‑Yes.
[33] T 61.
[34] T 61 – 62.
[35] T 62.
Then by reference to par.71 of the family report, there was the following exchange between the ICL and the Father (emphasis added):[36]
And at paragraph 71 of Ms S’s affidavit, this is where she’s evaluating what has been said, she says:
Unfortunately Mr Altman’s current presentation, his history, current circumstances and health status, coupled with his formal test results did not lead to confidence that Ms Wicklow’s fears –
[36] T 62.
which we’ve just gone through –
will be easily allayed or indeed that the children will actually be safe with their Father.
Now, all the questions which I’ve asked you lead around – come round to that conclusion, and that is the concern that I have as the solicitor for your children, is that if any of these things that you have a history of were to happen when the children came into your care, they would be at huge risk. You have given evidence that you’ve addressed those issues and your medication has been changed in the last four months and things are different now. However, you also gave evidence at the time that you did your affidavit that things were good under your previous medication. Are you now saying that wasn’t the case?‑‑‑Well, they were – I was stable. It was the side-effects that wasn’t good, that was the issue. I ‑ ‑ ‑
The difficulty that I have is that you present reasonably well, you say these things, but I have nothing, so far as evidence from a psychiatrist, or any sort of medical expert, to back up what you’re saying. What do you say to that? How – I withdraw that. Maybe I should ask it in a different way. How is the Court going to be reassured that your children are not at risk?‑‑‑Why didn’t you get my records from mental health? You’ve got the records from (omitted)? It would prove it there.
The ICL confirmed that he had endeavored to obtain the medical records referred to – but without success.
Finally, the Father said, essentially, that he would do whatever it takes to ensure that he spent time with his children.[37]
[37] T 63.
The Mother’s Evidence
At the outset of the Mother’s evidence she confirmed that, in order to attend the interview with the family consultant for the purpose of the preparation of the family report, she travelled 11½ hours from her residence in Victoria to Canberra. She currently has living with her the two children the subject of the proceeding, and two others from an earlier relationship(s), who are aged 11 and 19 years.
She confirmed that she struck up the friendship with the Father over ‘cannabis and coffee’, which they both shared at the time.[38]
[38] T 68.
There was some discussion in relation to a mediation that took place between the Mother (by telephone) and the Father and his solicitor in the latter part of 2012 (and after she relocated to Victoria in early 2013). The Mother referred to this mediation in her trial affidavit (par.40), and contended that she felt pressured into agreeing to a gradual increase in the children’s time with their Father, albeit that she would initially supervise it. It was shortly after this mediation that she moved to her current abode in Victoria.[39]
[39] See T 69 – 70.
The Mother said, on more than one occasion, that she should have moved away from the Father much earlier, such as in 2010. However, she said that it was, ultimately, because of the [poor] state of his residence that was the last straw (so to speak) which prompted her to move away from the Father.[40]
[40] T 71 & 73.
The Mother said that Y is unaware that Mr Altman is her Father, and that X is a very shy and apprehensive boy. She said that Y refers to Mr Altman as “X's Dad”, which she said she corrects. She also said that X has not spoken of or referred to the Father since the move to Victoria.[41]
[41] T 72.
In relation to the “concerns” of the Mother and what in particular gave rise to them, which were set out in par.44 of her trial affidavit, in answer to questions from the Bench, she said:[42]
[42] T 75.
HIS HONOUR: Sorry, Mr Hill. Can I just ask [the Mother], if you read paragraph 44 – and I’m not trying to head you off, Mr Hill – when do you say you became increasingly concerned? Is it – as I apprehend Mr Hill suggesting, did your concern start to materialise after Christmas 2012, January 2013, or when, because otherwise, if I understand Mr Hill, obviously in the order of the paragraphs, paragraph 44 comes after this series of dates?‑‑‑Yes, I understand. No, it – it was well before Christmas and Boxing Day.
So when and how did this concern arise? What were the circumstances?‑‑‑I had – I had noticed, like I had said before, that he was red-eyed and smelt a bit of alcohol, and so that contradicted what everyone had told me. And then, when he asked for visits at his house, I would knock on the door and smell marijuana and, you know, the state of his house was a filthy, disgusting mess, so it became concerning.
So when do you say that these concerns ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ first arose for you approximately? Was it mid ‑ ‑ ‑?‑‑‑October.
October?‑‑‑Yes.
2012?‑‑‑Yes.
She further said that she agreed to the Father having unsupervised time with the children in October/November 2012 because she was seeking to find a solution to the Father not being absent from the children’s lives. But, she said, her realisation of the poor and or dangerous position of the children (in her view) by being with the Father was a gradual process. However, she confirmed that ‘[another final] straw that broke the camel’s back’ was the Father’s unwanted advances towards her in the front seat of her car in mid-January 2013, with X also present.[43] It was this “incident” that was also the catalyst for the Mother’s move to Victoria, as well as having the offer of ready (and free) accommodation from her sister.[44]
[43] T 76. See also pars.43-46 of her trial affidavit. Although the Mother confirmed that she reported the incident to police, the ICL confirmed that there was nothing in the police records that related to it.
[44] T 77.
She confirmed that otherwise the relationship with the Father had been an ‘on again/off again’ situation up until April 2012, and that up to that time, she had accepted his “advances.”
It was also suggested to Ms Wicklow that another catalyst for her significant geographical move away from the Father was that she had been contacted by another female partner or lover of the Father. Although the Mother said that she had been harassed by this woman, that person’s involvement with the Father was not a reason for the relocation to Victoria.[45]
[45] T 78.
When it was put to the Mother that at least some of her fears concerning the Father (e.g. in relation to his drug taking or concerning his mental health issues) would be allayed by being provided with relevant medical records (or a letter) from his mental health adviser, Ms Wicklow said:[46]
Well, would that allay your fears if there was going to be some sort of stepped program, that the next progression simply wouldn’t occur until he had a report or a letter from a mental health professional?‑‑‑The problem that I had in that regard is that Mr Altman has been very good at manipulating his drug use or lack of it, proposing that he’s not, when he is, and to even professionals. So I found it hard to – just like the recent drug test. There are ways and means to fool those things. So, you know, I will remain doubtful but hopeful as – as the same time.
[46] T 80.
She also said, by reference to the recommendations of the family consultant:[47]
Well, I understand from your solicitor’s case outline that you’re going with Ms S’s recommendation of four times a year and that’s it?‑‑‑Yes. And also in that it says that if he proved to be, you know, recovered, responding well to medication, etcetera, I would be open to further discussion about it, but I need someone, apart from me, to be able to judge that.
What do you suggest in that regard?‑‑‑I suggest that it remains at four times a year until Mr Altman goes about his business of getting his life together.
[47] T 81.
In my view, having regard to the Father’s criminal history, his drug history, and his mental health history, the Mother’s position is not unreasonable.
In the course of questions from the ICL, Ms Wicklow confirmed that she once had a problem with alcohol, and that her last use of cannabis was in 2010, the day of the incident that can conveniently be referred to as the ‘axe attack’ by Mr Altman. I have already noted that the Mother has provided a negative drug screen test. The Mother says that she made a specific decision not to drink alcohol 22 months ago.
The Mother said that subject to professional advice, she thought that the Father would have to establish that he was ‘clean and sober’ for at least 12 months before there could be any move from the protected environment of a contact centre.[48]
[48] T 88 – 89.
Evidence of the Family Consultant
I will deal firstly with matters from the family report prepared by Ms S (Exhibit A), then comments from her oral evidence.
The Family Report
At par.31, Ms S recorded:
Mr Altman was still seeing two caseworkers from (omitted) Mental Health each on a fortnightly basis so that he saw one of them every week. One was a drug and alcohol counsellor who was assisting him to give up marijuana. Prior to taking antipsychotic medication, Mr Altman explained he was hearing voices in his head and was sleeping very poorly. He no longer heard the frenetic voices in his head which he described as “non-stop” noise. Mr Altman said Ms Wicklow had alleged that at times he was “off his head” and was frothing at the mouth. In his defence he said at the time he was actually on an injection of prescription antipsychotic medication as well as eight to twelve Valium a day. Mr Altman denied any current suicidality although he said he had felt suicidal in the past, perhaps four years ago. He nearly died from an overdose four years ago and said he had not been in hospital for three years. Mr Altman did not consider that his mental health presented any risk to the children.
In relation to the Father’s psychological test results, Ms S said (at [32] – [34] (emphasis added):
[32] Mr Altman’s test results are at Attachment 1. His Personality Assessment Inventory (PAI) clinical profile is marked by significant elevations, indicating the presence of clinical features that are likely to be sources of difficulty for Mr Altman. The configuration of the clinical scales suggests a person with a history of acting-out behaviour, most notably in the area of substance abuse but probably involving other behaviours as well. His test results suggested that impulsivity and drug use have likely led to severe impairment in Mr Altman’s ability to maintain social role expectations, and his recklessness has probably alienated most of the people who were once close to him.
[33] Mr Altman’s test responses indicated that his use of drugs has had many negative consequences on his life at a level that is above average even for individuals in specialised treatment for drug problems. Such a pattern indicates that his use of drugs has had numerous ill effects on his functioning. Problems associated with drug abuse are probably found across several life areas, including strained interpersonal relationships, legal difficulties, vocational failures, financial hardship, and/or possible medical complications resulting from prolonged drug use. He reported having little ability to control the effect that drugs are having on his life. With this level of problems it is increasingly likely that Mr Altman is drug-dependent and withdrawal symptoms may be a part of the present clinical picture. The withdrawal syndrome will vary according to the substance of choice, but such syndromes can include many psychopathological phenomena such as concentration problems, anxiety, and depression.
[34] Mr Altman described a personality style that is consistent with a number of antisocial character features. His interview and test profiles were consistent with DSM-IV diagnoses of substance dependence, alcohol abuse and antisocial personality disorder.
In relation to Ms Wicklow generally, Ms S noted, at [51] and [52] of her Report (emphasis added):
[51] Ms Wicklow did not consider that Mr Altman would deny the allegations she has made about his past behaviour. She rather thought he would argue that he had recovered and was better now. She did not think he would criticise her parenting.
[52] In response to my query about what risk Mr Altman would present to their children, Ms Wicklow expressed concern about how unpredictable he was. She said she could not even remember how many times he tried to kill himself while they were together and worried he might make an attempt in front of the children. Ms Wicklow worried what the children would be exposed to. She noted Mr Altman had been caught with pounds of drugs in his car and charged for drug related offences. However he had never been jailed because he would offer to go to rehabilitation. Ms Wicklow said she did not want the children to live a life involving “drugs, violence and crime”.
There is a reference in Ms S’s report, at [54], where Ms Wicklow reported that X has been diagnosed with Autism Spectrum Disorder. This is said to manifest itself in some speech difficulties, and in X’s extreme shyness.
Then at [56], Ms S recorded the Mother as saying that (emphasis added):
Ms Wicklow argued she had been able to move because there were no orders in place. She commented “I got away from what I thought and what I still think to this day is an extremely dangerous person who will kill me”. She went on “How far does he have to go?” Ms Wicklow said she was very frightened of Mr Altman and had e-mailed her lawyer to ensure he was not coming to see me on the same day. Ms Wicklow said she was “sick to death” of trying to work matters out with Mr Altman rather than doing what was best for the children.
And at [57], the Mother noted (emphasis added):
In terms of Mr Altman’s schizophrenia, Ms Wicklow acknowledged his illness could be managed by medication and that he might get better. Indeed she said she would always hope this would be so and would then be open to him seeing the children again. However Ms Wicklow said many times in the past Mr Altman had said he was taking his medication when he either was not or was mixing it with other non-prescription substances. Ms Wicklow alleged Mr Altman prided himself on being “a professional liar”.
Subject to later comments, the Mother’s observation about the Father taking prescription medication with non-prescription drugs was confirmed by the Father in the course of his oral evidence, as noted earlier in these reasons.
The Mother confirmed to Ms S (at [59]) that she had no friends or family in (omitted), apart from her Mother, who was about to move away as well.
Ms S confirmed that both children were too young to express any relevant views for the purposes of the current proceeding.[49]
[49] See Report at [65] – [67]. At [69], Ms S noted that X did not appear to know who Mr Altman was.
At the outset of her evaluation, Ms S said, at [68]:
The complex issues in this matter are compounded by the question of whether the children should be required to return to (omitted). The number of identified risk factors including the Father’s mental health history, criminal record, drug abuse, sexual assault of the Mother as well as his current psychological presentation suggests a fuller assessment than this one might be more appropriate. Further issues are the Mother’s fear of the Father and the special needs of the older boy. It is to be hoped the Court can be more fully assisted by reference to Mr Altman’s medical and psychiatric records.
At [70] and [71], the family consultant said (emphasis added):
[70] … Ms Wicklow impressed as credible and concerned for her children although perhaps she failed to always make the best choices for herself. I can only assume her fear of Mr Altman’s behaviour coupled with her low self-esteem and loneliness led to her continually reconciling with him. Ms Wicklow was not in principle opposed to the children seeing their Father but understandably worried about their safety and well-being in his care.
[71] Unfortunately Mr Altman’s current presentation, his history, current circumstances and health status coupled with his formal test results did not lead to confidence that Ms Wicklow’s fears will be easily allayed or indeed that the children will actually be safe with their Father. Mr Altman did not assist himself by calling his ex-partner a bitch given the need for them to co-operate whatever regime is put in place. He demonstrated no insight into the effects of his previous actions on his children and indicated that he considered it was in anyway unacceptable to have pushed Ms Wicklow. He mainly denied all the allegations against him and blamed Ms Wicklow for any violence. The Court will have to decide veracity of the allegations and counter allegations.
Regarding his drug use generally, Ms S said, at [72] (emphasis added):
Another previous partner of Mr Altman has made their children unavailable to him. Mr Altman has a significant mental health history, and while he reported he was complying with taking his current medication, he was still using marijuana and alcohol undermining, if not negating the usefulness of the prescribed medication. Mr Altman’s continued use of marijuana was concerning, given the likelihood that continuing use around the children would impair his ability to respond to and care for them and perhaps involve them in an undesirable peer group.
Regarding X and Ms Wicklow’s care and support for him, the family consultant said, at [73] and [74] (emphasis added):
[73] X has been diagnosed with autism and indeed his speech was significantly delayed. He is receiving much needed speech therapy now and is ideally placed in a small school. He would be very unsettled if he had to change schools again. Ms Wicklow may well require the support of her family to best assist X and meet his extra needs as he gets older.
[74] It was not clear to me what Mr Altman could offer such young children beyond the knowledge that he was their Father. I would be concerned that the children would be very unsettled by a return to (omitted) and that Ms Wicklow’s care would be deleteriously affected by the immediate anxiety and stress she would experience and by on-going anxiety and fear if she had to return to the (omitted) area. Mr Altman certainly could not be considered suitable to ever assume a major caring role.
Finally, at [75] – [77], Ms S noted and recommended as follows:
[75] Mr Altman and Ms Wicklow are a long way apart both in terms of what they consider is best for their children and in actual distance. In the child protection arena, that is, in matters where child safety is a key concern, supervised contact to the parent presenting some concern is usual to keep this person psychologically alive to the children who have a genealogical right to know who their parents are. This would be the most time I would recommend that these children spend with their Father in this matter.
[76] In the Child Protection arena a parent is usually given the opportunity via a care plan to work towards demonstrating they have addressed raised concerns. In this matter such a plan would probably include Mr Altman adhering to organised contact, complying with taking prescribed medication as well as providing substance free random urinalyses for a specified period. Such a plan cannot be effected via the current Court action.
[77] That the children live with their Mother at her current location and see their Father for supervised visits only at a contact centre four times a year.
It is important, in my view, also to note the following from Ms S’s psychological testing, from pp.34-37 of her Report:
Clinical Features
The PAI clinical profile is marked by significant elevations, indicating the presence of clinical features that are likely to be sources of difficulty for Mr Altman. The configuration of the clinical scales suggests a person with a history of acting-out behaviour, most notably in the area of substance abuse but probably involving other behaviours as well. His impulsivity and drug use have likely led to severe impairment in his ability to maintain social role expectations, and his recklessness has probably alienated most of the people who were once close to him. Generally impulsive and thrill-seeking, his use of drugs will likely further impair his already suspect judgment. His interpersonal relationships are likely to be volatile and short-lived; even those relationships that have been maintained will have suffered some strain from his egocentricity and from the consequences of his drug use.
Mr Altman indicates that his use of drugs has had many negative consequences on his life at a level that is above average even for individuals in specialised treatment for drug problems. Such a pattern indicates that his use of drugs has had numerous ill effects on his functioning. Problems associated with drug abuse are probably found across several life areas, including strained interpersonal relationships, legal difficulties, vocational failures, financial hardship, and/or possible medical complications resulting from prolonged drug use. He reports having little ability to control the effect that drugs are having on his life. With this level of problems it is increasingly likely that he is drug-dependent and withdrawal symptoms may be a part of the present clinical picture. The withdrawal syndrome will vary according to the substance of choice, but such syndromes can include many psychopathological phenomena such as concentration problems, anxiety, and depression.
Mr Altman describes a personality style that is consistent with a number of antisocial character features. His responses suggest that he has a history of antisocial behaviour and may have manifested a conduct disorder during adolescence. He may have been involved in illegal occupations or engaged in criminal acts involving theft, destruction of property, and physical aggression toward others. Other features of the antisocial personality constellation, such as egocentricity, lack of impulse control, disregard for others, disloyalty, and recklessness, do not appear to be particularly prominent characteristics of Mr Altman's clinical picture by comparison.
Mr Altman describes his thought processes as marked by confusion, distractibility, and difficulty concentrating. He may also have problems communicating clearly with other people because of speech that may tend to be tangential or circumstantial.
Mr Altman reports that alcohol use has caused occasional problems in his life. These problems may involve difficulties in interpersonal relationships, problems on the job, and/or the use of alcohol to reduce stress.
Mr Altman indicates some concerns about physical functioning and health matters in general. He reports being particularly preoccupied with his health status and physical problems. His social interactions and conversations likely often focus on his health problems, and his self-image may be largely influenced by a belief that he is handicapped by his poor health.
Mr Altman reports some difficulties consistent with relatively mild or transient depressive symptomatology.
In relation to “interpersonal and social environment”, Ms S said, at p.37 (emphasis added):
Mr Altman’s interpersonal style seems best characterised as remote and somewhat controlling. He is not likely to be very interested or invested in social relationships, and he may take more from relationships than he gives. As a result, his relationships are likely to be pragmatic, businesslike, and viewed in terms of their benefit to him rather than as a source of enjoyment. He is probably skeptical of close relationships and will be disinterested in any commitment to them.
And concerning “treatment considerations”, the family consultant said (in part), at p.38 (emphasis added):
With respect to anger management, the pattern of responses suggests that aggressive behaviours play a prominent role in the clinical picture and that such behaviours may represent a potential treatment complication. His responses suggest that he is easily angered and may be perceived by others as hostile and quick-tempered. He is not likely to be intimidated by confrontation with others. He does report having some control over more extreme displays of anger such as verbal abuse or physical violence.
Family Consultant: Oral Evidence
The first relevant part of Ms S’s oral evidence focused on her recommendation about the children spending time with the Father supervised at a contact centre for [only] limited periods each year. She confirmed that she made such a recommendation on the basis of the safety of the children.[50] In this context, particularly in relation to the limited frequency recommended for the children to see their Father, Ms S confirmed that the Father, in her view, “could” be an unsettling influence. She also confirmed that she did not see the Father with the children.
[50] See Transcript (14th February 2014) pp.9-10. Hereafter, references will be taken to be to the transcript of this date “T” followed by the page number.
After acknowledging that her point of reference (as noted in her Report) was in the context of [analogously] child protection, in terms of the Family Law Act, and acknowledging the significant logistical issues in the matter, Ms S said that the frequency of the time the children spent with their Father could be either once every month, or once every two months.[51] In the opinion of the family consultant, there would need to be some review of the “time with” arrangements in the future.
[51] T 12.
A possible course, suggested by the Court, with which the family consultant agreed, was that after a suitable period of supervision at a contact centre (e.g. three years) the centre’s notes could then be reviewed by, for example, the head of the family consultants at the Court in Canberra, who in turn, could make a recommendation for the next stage of the time the children would then spend with their Father.[52]
[52] T 13.
Ms S disagreed with the proposition, put to her by the Father’s lawyer, that (assuming the time the Father with the children goes well and that no other issues arise) a period of six months would be a sufficient period of supervised time at a contact centre, which could then move to supervision at a public place, such as a park.[53]
[53] T 14.
Having regard to the issues before the Court, and particularly the young ages of the children, Ms S suggested that a period of two or three years was necessary for supervised time at a contact centre before any review took place to see if some increase in time was warranted.[54]
[54] T 15.
In answer to questions relating to her recommendation for supervised time between the children and the Father, Ms S confirmed that this was predicated upon the young ages of the children, their lack of familiarity with their Father, his mental health history, the Father’s history of violence and substance abuse, and his continued use of cannabis.[55]
[55] T 19.
In answer to questions and contentions put by the ICL, Ms S said that the chronology provided by the ICL to her, which outlined part of the Father’s criminal history, and his recent admissions to a psychiatric hospital only confirmed her view that supervised at a contact centre was appropriate, and (at least for the immediately foreseeable future) that this should occur four times per year.[56]
[56] See T 21-23.
The ICL asked Ms S about ‘pre-conditions’ for a review of the supervised time/contact centre regime proposed. She said that a report from his treating psychiatrist would have to be part of the information provided to the Mother (and the Court); the ICL said that he would wish there to be an independent psychiatric assessment of the Father. Ms S also confirmed that the Father would need to be free of drug use, and for this to have been at least for a period of six months.[57]
[57] T 23 – 24.
In the light of the evidence of the parties and that of the Family Consultant, I have no hesitation in accepting the evidence of Ms S, both in her Report and in her oral evidence. Not only is there nothing provided by the Father to counter or to contradict her recommendations and observations, but more so there is significant further evidence, not least provided by the ICL and in the Father’s oral evidence, to support them.
The Legislative Scaffold
In the light of the evidence of the parties, and the comments already made in relation to it, I note the following in relation to the statutory scaffolding that must be negotiated to determine orders that are in the children’s best interests, pursuant to s.60CA of the Family Law Act1975 (“the Act”).
Subject to what is said later in these reasons, a convenient jurisprudential touchstone for the following discussion is the summary of principle by Brown J in Mazorskiv Albright in relation to Part VII of the Act, noting, of course, that there have been significant changes to the primary and additional considerations in relation to “family violence”. Respectfully, and cognisant of the ‘family violence’ changes to the ‘pathway’, I adopt Brown J’s overview of relevant sections (and principles) of Part VII of the Act. Her Honour’s comments should, of course (as I have said), be considered in the light of relevant statutory changes, for example, to s.60CC(3)(c).[58] At [3] – [6] her Honour said:
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[58] Mazorski v Albright (2008) 37 Fam LR 518. Her Honour’s remarks in relation to the “twin pillars” have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; Maluka v Maluka (2012) 45 Fam LR 129.
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[59]
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the Court should consider equal time arrangements.
[59] Brown J’s remarks in this regard have been endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and by a differently constituted Full Court in Mulvany v Lane (2009) 41 Fam LR 418 at [90], and McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335] similarly approved Brown J’s remarks.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the Court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the Court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the Court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) – (4) is intended to ensure that the Courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Before getting to the discussion of the legislative scaffold, it is important to record one particular aspect of the submissions made by the experienced ICL. In my view, it is important to record part of his submissions at a little length. He said (emphasis added):[60]
Your Honour, for the issue of whether and what time the children should spend with their Father, it’s my submission that the Court is in a difficult position because of the complete absence of any real evidence from the Father as to what his current circumstances are and what gains he has made. He mentioned, in his cross-examination, words to the effect of “Why didn’t you subpoena my mental health records?” Your Honour, my response back is – I tried. There was no evidence at any stage from the Father about his criminal history, his mental health history, his drug use history in any material filed before this Court on behalf of the Father, with the exception of one paragraph that says:
I have suffered from schizophrenia for a number of years and I am under the care of Dr T in (omitted). I have complied with my medication and as long as I remain so, I do not suffer any symptoms.
[60] T pp.36-37.
Well, to start, your Honour, in his evidence before the Court, that statement was wrong. Of course, he has since has [sic] his medication changed, on his word, and he says, “Yes, but now I’m better”. So, your Honour, I would like to be able to tell – to submit to your Honour that there is some evidence to say that things have improved and things are going to improve in the future, and, indeed, that is my view. But there is no evidence other than the Father’s word. And he’s not expert and the Court has to take only limited note of the Father’s own evidence in that regard. He seems to have taken what your colleague, Brewster J, refers to as “the Bo Peep Solution” – to mention anything and hopefully they will come home, wagging their tales behind them.
But there is no evidence for this Court to base anything on positively, other than what the Mother says. And as a result of what the Mother says, I have been able to obtain some subpoenaed material. But even then what came out of that was only (omitted) Hospital, not his treating psychiatrist that seems to be through some other organisation. I couldn’t even subpoena that because I didn’t know it existed, your Honour. Your Honour, my friend, Mr Hill, has made submissions that applying the principles that apply in a – the children protection arena is an error on the part of this Court.
In my submission, your Honour, that is absolutely and categorically wrong. Both jurisdictions have the overriding principle of what is in the best interest of the children. Your Honour, under section 60CC (2), the two are pillars, so to speak, for the consideration of the Court is, firstly, the benefit of the children having a relationship with the parent, but, secondly, the need to protect the children from physical or psychological harm. That brings the issues of possibility of harm fairly and squarely into this jurisdiction.
HIS HONOUR: And section 60CC(2A) says in applying those, the protective responsibilities of the Court have to basically take precedence. Greater weight has to be given to those.
MR STAGG: That was my next point, your Honour.
I accept the ICL’s submissions in their entirety. They provide an important evidentiary context for the following discussion.
Without necessarily referring to each sub-paragraph, I should be taken to follow sequentially the order of matters set out in s.60CC(3).[61]
[61] Generally, regarding the order of addressing relevant “considerations” under the Act, see the recent Full Court discussion in SCVG & KLD [2014] FamCAFC 42 at ]71] ff.
Having regard to the ages of the children, there are no relevant views for the Court to consider.
In relation to the children’s relationship with the parents the Court may note the following. First, there is no suggestion that Ms Wicklow has not been the children’s primary carer, and that they have always lived with her. Further, Mr Altman said that, to speak generally, and notwithstanding a number of adverse comments towards her in his most recent affidavit, he considered Ms Wicklow to be a good Mother.[62]
[62] I note again here that there were no orders sought by the Father to have the Mother and the children return to the (omitted) area.
Secondly, also by way of observation, accepting that the children were not viewed by the family consultant with their Father, he confirmed that, in more recent times, he has not seen the children for a good many months. And further to this, the family consultant noted that Y seemed not to know who Mr Altman is.
There is no evidence before the Court (other than passing references) to two other, older children of the Mother who live with her and the children, and likewise that the paternal Grandparents have had, in the past, apparently some involvement with the children.
In terms of s.60CC(3)(c), apart from quite general comments by both parties about the Father’s involvement with the children a significant time ago, he has had no relevant association with the children since approximately January/February 2013. This, of itself, together with the Mother’s expressed fears, and hers and the children’s very long distance from the Father’s residence, have obviously made it impossible for the Father to have had any meaningful or relevant engagement or participation in the lives of the children. It follows that the Mother has been the only relevant carer for the children, and therefore the only person to have made, and who continues to make, parenting decisions in relation to the children.
The comments just made are equally relevant to the considerations in s.60CC(3)(ca). This is also to say that there is no relevant evidence before the Court to suggest that the Mother has not fulfilled her responsibilities and obligations towards the children.
The comments made in relation to sub-paragraphs (c) and (ca) have equal application to sub-paragraphs (f) and (i).
In relation to sub-paragraph (d), the Court has evidence from the family consultant to the effect that it would be detrimental to the children to have too much change in their lives, and particularly the risks that would likely flow to the children if they were to return to the (omitted) area.
The issues of practical difficulty are, self-evidently, a major consideration in the current matter. The general distance between the Mother’s general locality and the Father’s residence is immense (which I noted at the outset of these reasons). Further, neither party is very well off, particularly the Father being on a disability pension. The capacity (financial and otherwise) for either party to travel long distances is very limited, as it seems to me.
Save for what is shortly to be said, for reasons already given, I do not propose to comment further in relation to sub-paragraph (f). However, given the evidence before the Court (including that given directly by the Father in cross-examination) in relation to Mr Altman’s mental health and drug consumption histories (and other things), in my view the Court is entitled to take a view, in keeping with its protective responsibilities, that at least questions the capacity of the Father (until established otherwise that he is “clean” from his on-going drug habit) to relevantly provide for the needs of the children. This is more so the case having regard to the considerations in sub-paragraph (g) and the young ages of the children, and in the light of X’s autism.
The only [further] matter to note in relation to sub-paragraph (i) is the evidence from the Father that with his prescription medication he also continues to take cannabis. He also confirmed that he continued to consume alcohol while taking prescription and non-prescription drugs. In the absence of appropriate [expert] evidence, the Court may reasonably infer that the combination of drugs and alcohol is generally contra-indicated, and is more likely than not to impair the functioning of Mr Altman. Indeed, such impairment is more likely than not to reduce his capacity properly to care for the children at any time they are in his care.
In addition to the matters just indicated, in re-examination Mr Altman confirmed that he was now much more tolerant of cannabis than had formerly been the case. While I generally accept that he has acquired a tolerance of cannabis based on his years of consumption of it, it in no way provides comfort to the Court that such tolerance necessarily translates into a greater capacity, or a less impaired capacity, to provide and care for the children should they be in his care.
In relation to matters of ‘family violence’, (a) the lengthy, but still somewhat incomplete, criminal history of the Father, (b) the ‘axe incident’ that involved the Father wielding an axe in front of the children, and (c) the account given by the Mother of the Father’s unwanted and repelled sexual advances while she was in a car (and with X also present) (which account I accept), all warrant the Court to have very particular regard to these matters. This must especially be the case having regard to the priority which s.60CC(2A) requires the Court to give to its protective responsibilities pursuant to s.60CC(2)(b).[63]
[63] The Court must also have regard to s.60B. In this matter, in my view the objects in s.60B(1)(b) must assume priority over other objects and principles” in that section having regard to the evidence before the Court.
In my view, subject to what is said shortly, no other matters in s.60CC(3) are relevant to the Court’s determination of the orders that are in the children’s best interests.
All of the above considerations (particularly those that relate to family violence) lead the Court to accept the submissions on behalf of the Mother and the ICL that the evidence clearly rebuts the presumption in favour of equal shared parental responsibility. It follows that there should be an order for sole parental responsibility in favour of the Mother. Such an order necessarily results in the Court not having to consider the terms of s.65DAA.
Discussion & Disposition
In conclusion, I note the following.
In Mulvaney v Lane, May and Thackray JJ said, at [89] (emphasis in original):[64]
The question that truly arises from s 60CC(2)(a) is not “What outcome will best ensure that S has a meaningful relationship with his Mother”, but rather, “What is the benefit to the child of having a meaningful relationship with his Mother?”. (See in this regard the most useful discussion by Bennett J in G and C and Independent Children’s Lawyer [2006] FamCA 994.)
[64] Mulvany v Lane (2009) 41 Fam LR 418. See also the comments by Finn J at [12] – [13].
Having due regard to the comments of the Full Court, I have already noted the importance, in the light of the evidence, of the Court placing particular emphasis on the Court’s protective responsibilities towards the children. In my view it is through this particular protective prism that the Court must frame orders that are in the children’s best interests.[65]
[65] See s.60CA.
In this regard (as I have earlier noted) I should be taken to accept the evidence of the family consultant, as well as the submissions of the ICL. This leads, in my view, to orders being made as essentially sought by the ICL, which will require the Father to attend upon a contact centre that is much closer to the Mother’s residence in Victoria than it is to his residence in country New South Wales.
The questions then become what regime as to frequency, and review, should be ordered.
As to frequency, in the light of the Father’s mental health, drug and alcohol history, and having regard to the young ages of the children, I accept the family consultant’s recommendation of there being time between the Father and the children four times per year supervised at a contact centre in the greater Melbourne area, and as supported and sought by the ICL.
As to the process of review of the Father’s time with the children, I note very briefly the following.
In Champness & Hanson the Full Court referred, at [215] – [221], to the wide discretion of the Court in relation to, among other things, “supervision orders”, as well as the significance of some kind of “review mechanism.”[66] Such matters are directly ‘in play’ in the circumstances of this case, as I have noted.
[66] Champness & Hanson (2009) FLC ¶93-407. This Full Court authority has recently been considered and applied in an appeal that included a ground which stated: “His Honour has made an error of law in not providing a sunset clause for supervision of visits.” This ground of appeal was dismissed. See Lindsay & Baker [2012] FamCAFC 189 at [77]. Although apparent from the ground of appeal, I simply observe that in that case the Court made an order for continuing supervision. That is not this case where there is a defined time for supervision and an ‘appropriate review mechanism.’
In general terms, I should be taken to accept the submissions, and in consequence, the orders sought, by the ICL. As earlier noted, the Mother supports the orders as sought by the ICL. As a result, but with specific reference to the discussion earlier referred to with the family consultant regarding a review mechanism, the orders which I consider to be in the children’s best interests, are as follows:[67]
[67] The discussion with the family consultant regarding a review regime is relevantly at T 13 – 14.
a) All previous orders are to be discharged.
b) The Mother have sole parental responsibility for the children.
c) The children live with their Mother.
d) The Father be permitted to spend time with the children at a contact centre in the greater Melbourne area for up to but not exceeding two (2) hours, four times per year. The first three visits per year are to occur on the last weekend in each of the school holidays for terms 1, 2, and 3. The fourth visit shall occur on the first weekend in December. This order is to remain in place for three years.
e) For each of these three years, the Father is to undertake and to provide to the Court evidence of having completed a parenting course, with an emphasis on post-separation parenting and on anger management. If this evidence is not provided there will not be any review as noted below.
f) At the conclusion of the three year period, upon application by the Father, the head of the family consultants in the Canberra Registry of the Court is requested to review (1) the notes from the contact centre for the previous three years, and the evidence in relation to the Father having completed (2) the courses ordered, (3) results of the chain of custody drug urinalysis tests, undertaken at specified times, (4) the report from the Father’s treating psychiatrist attesting to the Father’s current mental health status, and in view of that status, his capacity to spend unsupervised time with the children, and (5) to meet with each of the parents separately following the review of the notes from the contact centre. If the material to be provided by the Father is not supplied, there is to be no meeting with the Family Consultant until it has been so provided.
g) The family consultant who does this review is further requested to provide a note to the Court as to whether the matter should be re-listed to see whether any increase in time between the children and their Father should be permitted.
h) The Mother is to advise the Father by letter only, and the Father is restrained from responding in any way, of decisions in relation to any major long-term issue in relation to the children;
i) Within 14 days of the date of these orders (or within 14 days of a child currently not enrolled at school being so enrolled) the Mother will authorise the children’s school(s) to provide to the Father copies of all school reports for the children and all order forms for school photographs, at the Father’s expense.
j) There will also be orders prohibiting the denigration of either parent, as well as on each of the parents discussing parenting issues with or in front of the children.
The ICL be discharged.
The Court so orders.
I certify that the preceding one hundred and thirty-two (132) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 22 August 2014
Key Legal Topics
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Family Law
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