Bauer and Bauer

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAUER & BAUER

[2017] FCCA 1723

Catchwords:
FAMILY LAW – Parenting – child aged 12 – third round of proceedings – where the child has lived with the father since 2013 – where the mother has a long history of illicit drug use – where in August 2016 the father ceased to comply with an order that the child spend time with the mother as a result of concerns about her choice of housemate and pestering of the child – where the time subsequently resumed supervised – where a recent hair follicle test detected ice in the mother’s hair – where the child is not opposed to spending some time with her mother but where there is no end in sight to the mother’s denigration of the father, pestering of the child and drug use – order made for the mother to spend supervised time with the child on four occasions each year.

Legislation:

Family Law Act 1975, s.60CC

Cases cited:
Hungerford & Tank [2007] FamCA 637
Mazorski & Albright (2008) 37 FamLR 518
Rice & Asplund (1979)FLC 90-725

Applicant:

MR BAUER

Respondent:

MS BAUER

File Number:

NCC 2191 of 2010

Judgment of:

Judge Terry

Hearing date:

26 June 2017

Date of Last Submission:

26 June 2017

Delivered at:

Newcastle

Delivered on:

27 June 2017

REPRESENTATION

Counsel for the Applicant:

Mr Levick

Solicitors for the Applicant:

Harris Kelly & Associates Lawyers

Appearance for the Respondent:

In person

Solicitors for the Independent Children Lawyer:

Denise Clark & Associates

ORDERS

All previous parenting orders concerning the child [X] born (omitted) 2005 (“the child”) are discharged.
The child shall live with the father.
The father shall have sole parental responsibility for the child.
The mother shall spend supervised time with the child on four (4) occasions each year being:
(a)On one occasion as close as possible to Christmas Day;
(b)On one occasion as close as possible to Mother’s Day;
(c)On one occasion as close as possible to the child’s birthday; and
(d)On one other occasion each year as organised with an appropriate supervision service.
For the purposes of the supervised time the mother spends with the child in accordance with Order 4 :
(a)The father shall nominate the provider of the supervised time;
(b)The father shall arrange with the supervision provider the day and time on which any supervised time is to occur;
(c)The father shall give the mother not less than fourteen (14) days’ notice of the date and time the supervised time is to occur;
(d)Any supervised time shall take place for no more than 4 hours; and
(e)The mother shall pay the costs of the supervised time NOTING THAT if the mother fails to make arrangements with the supervision provider to do so the time shall not occur.
The mother is restrained by injunction from discussing these or any previous Court proceedings or the child’s living arrangements with the child or questioning the child as to whether she wishes to spend more time with her mother.
The mother is authorised to instruct the Principal/s of the child’s school to forward to her copies of the child’s school reports at the end of each Semester and copies of the child’s school photographs at her own expense.
The father shall ensure that the mother is advised as soon as is practicable in the event of a serious accident or illness suffered by the child and shall provide copies to the mother of any relevant medical reports which may issue as a result of that accident or illness.
Each of the parties shall advise the other party of a change of address or contact telephone number within twenty four (24) hours of the change occurring.
Neither party shall speak disrespectfully of the other party, their friends or family members (nor allow any other person to do so) in the presence or hearing of the child.
Pursuant to Section 68B of the Family Law Act 1975 and for the personal protection of the father and the child, the mother is restrained from entering upon or approaching within 100 metres of the residence of the father or the child or at any school attended by the child from time to time without prior written consent of the father.
Within seven (7) days of the date of these Orders the father shall make the child available to the Independent Children’s Lawyer for the purposes of having the Independent Children’s Lawyer explain these Orders to the child.
The Independent Children’s Lawyer’s application for costs is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 2191 of 2010

MR BAUER

Applicant

And

MS BAUER

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
These proceedings concern [X] who is 12 ½. She has been the subject of litigation in this Court since very shortly after her parents separated when she was five years old. Two family reports have been prepared and the hearing I have just conducted ends the third round of litigation between the parties.
The father filed an application in August 2010 seeking orders that [X] live with him and spend time with the mother. He was concerned that the mother was behaving erratically and was using drugs. The mother sought an order that [X] live with her and raised a concern about the father’s alcohol use.
A family report was prepared in May 2011 by Ms K, a family consultant. She recommended that if the Court was satisfied that the mother was not using drugs then the child should live with her and spend time with the father.
On 29 September 2011 final orders were made by consent which provided for [X] to live with the mother and spend time with the father on alternate weekends and each Wednesday overnight to Thursday during school terms and for half of the school holidays.
On 20 January 2012 the father filed an application for property settlement. A hearing into the property matter took place on 28 March 2013 and judgment was reserved.
On 26 April 2013, prior to the judgment being handed down, the father filed an amended application seeking fresh parenting orders. He sought an order that [X] live with him and spend supervised time with the mother and again the mother’s drug use was his primary concern.
The property decision was handed down on 21 August 2013.
The mother had been ordered to do a hair follicle test in March 2013 and had not done one and on 11 September 2013 she was ordered to do a urinalysis test within 24 hours. She tested positive for methamphetamines, in other words ice. She also tested positive for methamphetamines in a subsequent urinalysis test in October 2013 and on 11 October 2013 an interim order was made that [X] live with the father and spend time with the mother supervised by a private supervisor.
[X] has lived continuously with the father since that order was made.
Mrs Clark was appointed Independent Children’s Lawyer for [X] at this time and she has remained the Independent Children’s Lawyer since then.
In August 2014 a second family report was prepared by Ms K. She recommended that [X] live with the father and she made the following recommendations about her time with the mother:
If the Court finds that the mother is genuine in supporting [X]’s relationship with the father, that she is able to protect [X] from her emotional state (both generally and as it relates to the father) and that she is not misusing drugs then it would appear to be appropriate for [X] to spend each alternate weekend with the mother.
If the Court is of the view that there is some risk, but that such risk could be mitigated by limiting the mother’s time with [X] then the Court may wish to consider [X] spending time with her mother each alternate weekend (day time only).
If the Court believes that the mother’s time with [X] should be supervised it is suggested that this occur fortnightly (the time could be extended) to enable [X] and the father to spend a full weekend together. [1]
[1] 2014 Family Report paragraphs 66, 67, 68
The matter did not settle after the release of the report and it was listed for hearing before me in March 2015. Prior to the hearing commencing however the parties reached agreement and on 11 March 2015 final orders were made which provided for [X] to live with the father and for the father to have sole parental responsibility for her.
The orders provided for [X] to spend time with the mother unsupervised. Initially it was to be during the day only but subject to the mother providing satisfactory drug test results then as of 23 April 2016 it was to be from 8.00 am Saturday until 4.00 pm Sunday each alternate weekend unless the mother tested positive for illicit drugs or failed to do a drug test upon request. In that case the time was to revert to time during the day only.
The mother did the drug tests required prior to 23 April 2016 and did not test positive and as of 23 April 2016 [X] commenced spending overnight time with her.
However on 27 August 2016 the father ceased to make the child available to spend time with the mother. His concerns were that the mother was wearing the child down with requests that the child ask to spend more time with her. He was also concerned that a known ice user, Ms C, had moved into the mother’s house.
The mother filed a contravention application but it was withdrawn after the father filed an application to vary the existing parenting orders on 5 December 2016. The variation he sought was that the child’s time with the mother should revert to supervised time.
Once the father filed that application the Independent Children’s Lawyer was speedily reappointed and on 19 December 2016 interim orders were made suspending the existing orders and providing for the mother to spend time with [X] from 10.00 am until 2.00 pm each alternate Saturday supervised by a person appointed by Quality Care which is a private supervision service.
That time has since occurred.
On 2 March 2017 an order was made for the mother to do a hair follicle test. She complied with the order and tested positive for methamphetamines.
The mother was adamant when the matter came back before the Court after that test result that she had not used ice and was not using any other drugs although she could not explain the positive result. It remained her case that the 2015 orders or something like them should be reinstated.
The father was adamant that there were ongoing concerns about the mother’s drug use, associates and pestering of the child and that her time with [X] should remain supervised which would necessarily mean that it would not be very extensive or frequent. I therefore had a dispute which needed to be resolved and I listed the matter for hearing before me on 26 June 2017.
I did not consider that I would be assisted by obtaining a third family report and my view about that was reinforced at the hearing.
The report prepared in August 2014 confirmed that [X] wished to live with and was happy with her father and nothing in the information provided to me in subsequently filed documents suggested that had changed.
It was not in dispute either that [X] loved her mother and wished to spend time with her. During closing submissions the Independent Children’s Lawyer said, and this was well supported by the evidence, that [X] loved her mother and that the biggest problem for her was that her mother was constantly at her about stuff and as she got older she was finding that harder to deal with.
Ms K made recommendations in the 2014 report about the alternatives which should be considered depending on the Court’s findings about certain issues and the issues remained the same in 2017. In my view nothing would have been gained by requiring the parties and the child to attend a third round of report interviews nor would it have been a justifiable use of court resources.

The parties proposals at trial

The father proposed that the existing orders be discharged and that an order be made that [X] spend supervised time with the mother as agreed between the parties. During closing submissions the father’s counsel conceded that this could be viewed as a thinly veiled application for no time.
The mother proposed that an order be made for equal shared parental responsibility, so she sought to reagitate the parental responsibility issue, and for [X] to spend three nights every second weekend with her and also to spend time with her for half of the school holidays, unsupervised of course.
The Independent Children’s Lawyer proposed that the child spend time with the mother as agreed between the parties but failing agreement on no less than one occasion each calendar month for a minimum of two hours supervised, with the mother to pay the costs of the supervision.
She proposed that the mother be restrained from discussing the Court proceedings or the child’s living arrangements with the child or questioning the child about whether she wished to spend more time with the mother.

The evidence

The father relied on his affidavit and Minute of Order filed on 5 June 2017.
The mother relied on her affidavit filed on 6 June 2017 and her Minute of Order tendered at the trial.
The mother and father were both cross-examined.
The family report prepared in 2014 was admitted by consent. No party asked to cross-examine Ms K. The mother was specifically informed on two occasions during the trial that she could ask to do this if she wished.
I did not have any concerns about the father as a witness but the mother was a very difficult and a very poor witness.
The mother frequently responded to questions not by answering them but by giving explanations for why she had done things. She persistently re-framed questions to avoid making admissions and a striking example of this was that she was asked on a number of occasions about whether she had used ice in the past and her answer always was, “I have used drugs, yes.”
After finding that her denials or explanations were falling flat following being challenged about inconsistencies in her evidence or about the inappropriateness of her actions the mother would resort to saying that she was sorry. She strongly gave the impression of trying out an answer and when realising that it was not making the right impression trying out a different answer.
Shortly before the father commenced the current proceedings the mother allowed a known ice user to commence living in her house and after proceedings commenced she allowed a man who had an extensive criminal record and who had been investigated for child sex offences to live there. She more than once referred to these people during cross-examination simply as “colourful characters.”
The mother gave contradictory evidence within a short space of time. When she was asked about allowing the ice user to live in her house she said that this person was a former neighbour who had babysat [X] as a child, that the person did not pose a risk of harm to [X], that she had asked this person to cease living in her home because of her erratic behaviour and that she never left [X] alone with this person. It did not seem to occur to the mother that there was a contradiction in some of those answers.
The mother completely lacked credit as a witness.

The specific issues

Before I turn to the best interests considerations I need to make findings about four issues which arose during the trial namely:
i)Whether the mother is currently using drugs.
ii)The mother’s capacity to contain her emotions and her attitude to the father.
iii)Whether the mother has been inappropriately pestering [X] about parenting arrangements causing stress for [X].
iv)The relevance of the mother allowing the “colourful characters” to live in her house.

Whether the mother is currently using drugs

The father’s case was that the mother had a history of illicit drug use dating back to prior to the parties’ separation. However the fine detail of the claims about early drug use was not conveyed to the Court during the present hearing and the father’s case about drug use centred on the fact that in September and October 2013 the mother tested positive for methamphetamines after doing supervised chain-of-custody drug tests. As I mentioned earlier the mother had been ordered to do a hair follicle test in March of that year but did not do so.
Notwithstanding the fact that she tested positive for ice on two occasions in 2013 the mother for a long time refused to concede that she had been using either amphetamines or methylamphetamines. In cross-examination she was asked about an affidavit she filed on 5 February 2014 where she said as follows:
I do not use illicit substances. I specifically deny that I have used illicit substances since the final consent orders on 29 September 2011 as alleged by [Mr Bauer]. I cannot explain why it has been reported that I produced positive readings in my drug screen in October 2013. [2]
[2] Mother’s affidavit filed 5 February 2014 paragraphs 10, 11, 12
The mother went to the family report interviews with the same position namely that she was the victim of some bizarre mix-up and that she had not used amphetamines or methamphetamines. However she eventually made some admissions to Ms K and Ms K said as follows:
Throughout these proceedings the mother has steadfastly denied any use of amphetamines/ methyl amphetamines. For the vast majority of my interview with her the mother continued to deny any use “I don’t know how (how the drugs were in her system) I would not take them knowingly. But they were in my system”. Towards the end of the interview the mother asked what she would need to do to start to spend more time with her daughter. She was advised that her denial of drug use was a problem as if she continued to deny it then the issue could not be addressed by her. The mother then conceded that she had used amphetamines/methyl amphetamine as alleged. She stated that she was not a “drug addict” (this was a repeated theme from the mother) and that she had used “recreationally once every three to four months” “it was not every single day, it was every couple of months” and “I’ve probably used six times in my life”. The mother said that the reason she hadn’t previously admitted use was “because I’m not an addict. I was a recreational user. I didn’t want to be accused of being an addict. I got fed up and denied it”. She conceded that her solicitor had told her she should admit use if it had occurred.
The mother reported that her first use was “probably in about 2011/2012”. The mother said that she was emotionally vulnerable at the time and hanging out with the wrong crowd (she had earlier denied having friends involved with drugs). The mother said that she normally went to bed early and when she was out at night with a group of friends someone suggested that the drug would help her to stay up longer.
The mother said that she mixed it and drank it with coke. That’s about it”. The mother said that she had never taken any drugs whilst [X] was in her care. The mother denied that she had used the drugs as a coping mechanism. She fervently denied that there was any risk of relapse and emphasised that she was not an “addict”.
On the mother’s reports she was using illegal substances (amphetamine/methyl amphetamine) on a “recreational” basis from at least 2012 (at the latest) to October 2013.[3]
[3] 2014 Family Report paragraphs 30 to 33
However despite eventually admitting to Ms K that she had used ice, during the hearing before me the mother refused to admit that she had knowingly used ice in 2013. She continually substituted the word “drugs” for “ice” whenever she was asked a question and she insisted that she thought she was using speed and that someone must have slipped some other drug into her coke without her knowledge.

Ms K was extremely concerned about the mother’s drug use. She said as follows in the report:
It is noted that the drug screens from 13 September 2013 and 1 October 2013 both contained amphetamine and methyl amphetamine which indicated use had occurred within 48 hours of the sample being taken. That is, the mother used on a minimum of two occasions in September and October 2013. On the first occasion the mother didn’t complete the urinalysis as directed within the 24 hours. She told me that this was because she was just out of hospital, unwell and doped up by the medication she had in hospital – thus she couldn’t attend within the stated 24 hour period ordered. She also stated to me (when denying any history of use) “why would I come out of hospital and take drugs. It doesn’t make sense”. The second occasion of use clearly occurred when the mother was aware that she was under the close scrutiny of the Court. The mother’s pattern of use – shortly after being released from hospital and using when under the close scrutiny of the Court raises some concerns as to the mother’s statements that she was “not addicted” as it seems unusual that the mother would continue to use a substance for “recreational” purposes if she knew would be tested for by the Court. [4]
[4] Family Report paragraph 35
She also said as follows:
The mother’s drug use presents a significant quandary. On one hand the mother has presented at least seven months clean random urine screens which would seem to support that she is not currently using and that she has been able to maintain abstinence for a significant period of time. On the other hand there are concerns that the mother has repeatedly denied and lied about her drug misuse, denied that there was any risk of future relapse and denied there was any impact on [X] of her drug misuse. All of which heighten the risk of relapse.
A lack of historical impact on [X] and a low risk of future relapse is possible if the mother’s reporting of her use is accurate, however I do hold some concerns that perhaps the mother has under reported her drug misuse. These concerns are based on the irrational nature of the text messages to the father, the mother’s avoidance of drug testing from May – September 2013 and the mother’s known drug use shortly after leaving hospital and whilst under the scrutiny of the Court.[5]
[5] 2014 Family Report paragraph 59, 60
On 2 March 2017 the mother agreed to do a hair follicle test. She provided a hair sample on 31 March 2017 and the results of the analysis was as follows:
a)The hair segment contains approximately:
i)400 pg methylamphetamine per mg
ii)60 mg amphetamine per mg
b)No other drugs were detected in the hair.
c)No drugs were detected in the external wash of the hair
The mother said as follows about this report in her trial affidavit:
For reasons I cannot comprehend a toxicology report from the Government of South Australia, Forensic Science SA, dated 2 May 2017 came back setting out that the level of methyl amphetamine reported was 400 pictograms found in my hair sample. In scientific terms this level is 10 to the power of 12 of a single gram. In layman’s terms less than one times 1000^th millionth of a single gram. I repeat and I say on oath I have not used a single illicit drug since September 2013.
I pause to add that the mother’s second positive drug test in 2013 was in October 2013 but never mind.
The mother went on to say:
I also note the qualification in the report on page 2 which says, “Drugs can be incorporated in the hair in a number of different ways including drug use and external contamination. It should not be assumed that the presence of a drug in the hair is a result of drug use without further consultation with an expert.
Not only did the mother continue to insist she had not used ice recently, she refused to admit the use of ice previously (as opposed to the use of other illicit drugs) in her June 2017 affidavit. Under the heading “Drug use” she said as follows:
It was August 2012, I was out with some girlfriends and one of them said to me:
“Try this”
and she put some powder in my soft drink, a glass of Coke. She told me that it was Speed.
After that, I would use Speed a couple of times a month, on social occasions only, always by having it in a glass of soft drink, again usually Coke.
From the very first time that I ever used Speed until the very last time that I ever used Speed was a period of 13 months.
I can remember precisely the last time I used Speed. It was on a girls’ night out for one of the girls who was getting married and I used Speed on that occasion in September 2013.
I knew that that sort of lifestyle was not for me and I made a conscious and deliberate decision not to use again and I have not used Speed or any other single illicit drug since that night in September 2013.[6]
[6] Paragraph’s 30-34 of the mother’s affidavit.
I have to consider the issue of whether the mother is currently using ice against the background of two drug tests showing the presence of ice in the mother’s urine in 2013 and a hair follicle test in May 2017 showing ice in her hair sample.
I acknowledge that there are other ways that ice can come to be incorporated into hair besides somebody using ice and we discussed that during submissions. The mother had a known ice user living in her house until January 2017. That could have caused the mother to be exposed to ice, and sexual relations with an ice user might also be a relevant consideration.
The problems for the mother though are these.
First, although the mother said that the Court should consider that there might be other explanations for the ice in her hair she did not proffer any other explanations; the known ice user ceased to reside in her home in about January 2017 I was told; the mother vehemently denied that this person had used ice in her home; and she also vehemently denied that she had had sexual relations with Mr E who was the male person residing in her home until recently.
Second, the mother has used ice in the past. She tested positive for it in September/October 2013 which makes it not incredible that she might have used ice again.
Third, the mother has lied about her drug use in the past and she admitted that in the witness box. She was not even remotely a witness of credit during the hearing so her denials about current ice use and any other illicit drug use carry no weight.
Finally, the fact that the mother recently allowed a known ice addict to reside in her home for six months undermines her credit in claiming that she herself has not been using ice.
The obvious explanation for the ice being in the mother’s hair is that she has used ice and I accept the submission by the Independent Children’s Lawyer that I should find on the balance of probabilities that this is the case.
In 2014 after the release of the family report and around the time the mother was charged with offences in respect of stalking a Federal Circuit Court Judge the mother’s GP referred her to Ms M, a psychologist, and in a letter to the GP dated 30 October 2014 the psychologist said as follows:
Ms M vehemently denies she has –
I think it should be “ever”; it says, “never”.
ingested the drug. However, in the process of working with a family law counsellor –
I pause to add that is apparently a reference to Ms K.
…discussing how she could get more contact with her daughter she states that the counsellor said that she would have to admit to using drugs because this would indicate motivation to stop the drug use. In desperation Ms M claims she said, “All right then. I admit to taking ice.” But Ms M states she said this because she thought it would help her to get her daughter back. Ms M states she has now had 30 urine tests, all clear.
Ms M’s notes record that in February 2015, despite that denial on 19 October 2014, the mother admitted to Ms M that she had used illicit drugs in the past. She said that it had started after separation because she was lonely and depressed and a neighbour offered her drugs – query whether the neighbour was Ms C – and she participated because she wanted friends.
The psychologist expressed the view that the mother was suffering from depression and anxiety and the content of her notes suggest that the counselling the mother received from her was supportive in nature.
The mother has never had any drug and alcohol counselling. She remains in denial about the nature and extent of her drug use and I can have absolutely no confidence that the mother is either willing or able to deal with what now appears to be a drug problem of longstanding.

The mother’s capacity to contain her emotions and her attitude to the father

The mother’s attitude to the father and her capacity to contain her emotions was identified as an issue in the August 2014 family report. Ms K said as follows:
It is common ground that from December 2012 until March 2013 the mother sent repeated and numerous hostile and abusive text messages to the father which denigrated the father, stated unambiguously that the mother did not value the father’s role in [X]’s life and that he should disengage from being involved with [X]. She also indicated by way of text message that she strongly detested the father, stated that she would not involve him in any decision making in [[X]’s] life, and indicated that it was her intent to relocate to Sydney with [X]. The messages appear to be highly inflammatory in nature and irrational in their content at times. They continued after an AVO was implemented protecting the father in January 2013 and the mother was later convicted of breaching the AVO. The father reported no further communication with the mother since the conviction for breach of AVO.
On the mother’s self-report (as outlined above) she was using amphetamines / methyl amphetamines “recreationally” during the period she was sending text messages to the father. The mother denied that her drug use had influenced her emotional state and subsequent text messages (I discussed this with her given the apparent irrationality of the messages and her continued texting after the implementation of the AVO). She said that she was simply emotional as a result of the relationship breakdown. The mother described her distress as arising after the father ceased all contact with her at a time when she thought reconciliation was imminent. The mother described feeling very distressed about the situation and said that she sent the text messages in order to get the attention of the father. She said that the more he ignored her the more she sought his attention by upping the ante and making more outlandish statements in an attempt to get a response from him. The mother denied ever allowing [X] to be aware of her views of the father at the time. She said that she has always supported [X]’s relationship with her father.
The mother said that in retrospect she can see that she was childish in her approach and she said that she thoroughly regrets sending the text messages. She articulated that she is no longer bitter and that she strongly supports [X]’s relationship with her father. The mother is hopeful that the parents can move forward and co-operate in the best interests of [X]. She is somewhat frustrated that the father is unwilling to communicate with her. She struggles to understand that her actions toward the father may impact on his willingness to engage with her in communication. [7]
[7] Family Report paragraphs 37 to 39
In his trial affidavit the father said that the mother’s behaviour to him had not changed. He recounted an instance on 21 May 2016 when he approached the mother at changeover hoping to discuss a concern about [X] and the mother started screaming loudly, “Call the police. Call the police.”
The father left the scene with [X]. The mother did call the police but they declined to take action and expressed reservations about whether the mother was telling the truth about feeling threatened by the father.
The mother cross-examined the father about this incident and alleged that he was at fault but I do not accept that, I accept the father’s evidence about what happened on that occasion.
During the trial an incident occurred which demonstrated continued emotional dysregulation by the mother toward the father.
The father was the applicant at the hearing and he went into the witness box first and the mother cross-examined him. One of the questions she asked him was when he intended to start co-parenting with her, in other words she suggested that any problems with communication were down to him. The father refuted this allegation.
The father’s evidence concluded and cross-examination of the mother commenced but did not conclude before lunch.
When Court resumed in the afternoon the mother was asked whether shortly after she walked out the Court door when the matter was adjourned at 1.00 pm she said, “Kiddie fiddler” to the father as she passed by.
The mother agreed that she had used the words “kiddie fiddler” but maintained that she said them to the cousin who was her (omitted) friend.
In answers to questions she agreed that the father was within three metres of her when she said the words, said that she was not suggesting that her cousin was a kiddie fiddler and said that she could not explain why she said those words.
I am satisfied that the mother directed the words “kiddie fiddler” at the father.
This is yet another example of the mother engaging in dysregulated behaviour which is destructive to her own case.
There is absolutely no doubt that the mother was extremely upset about the order made in 2013 for [X] to live with the father. In 2014 she was charged with harassing the Federal Circuit Court Judge who made the order by way of a telecommunication device. She pleaded guilty and as a result of her actions she lost her job at a private health company and the matter was transferred to my docket.
Based on the evidence I heard at the trial I do not accept that the mother is no longer bitter and strongly supports [X]’s relationship with her father.
The parties have been separated for nearly seven years and [X] has lived with the father for nearly four and if the mother has not changed her behaviour by this time there is in my view no prospect of her changing her behaviour in the future.

Whether the mother has been inappropriately pestering [X] about parenting arrangements

The next issue I have to consider is whether the mother has been inappropriately pestering [X] about parenting arrangements causing stress for the child.
In December 2015 when the mother was having day time contact with [X] pursuant to the March 2015 orders the father said that there was an occasion when he went into [X]’s room to check on her and saw that [X] had written the following words on her whiteboard:
I hate mum. Mum lies. Mum asked me too many questions. Help me. No more lies or questions.
He said that after she spent time with her mother in early 2016 [X] said to him:
When I turn 12, I can decide where I live.
He said that after overnight time commenced in April 2016 [X] began coming home withdrawn and distressed and that in May 2016 he had the following conversation with her:
I said: “What’s wrong?”
[X] said:“Mum keeps asking me over and over if I would like to stay with her more often. She told me it would be good if the time I spent with her was every weekend and Wednesday nights.”
I said:“The Courts have set up the time with mum.”[8]
[8] Paragraph 22 of the father’s affidavit.
The father said that he began to put the phone on speaker because he was concerned for [X], and that on 10 May the mother asked [X] about five times whether she wanted to live with the mother, and would not let [X] change the subject when she tried to.
He said as follows about a conversation which occurred on 17 May 2016:
I was so concerned about this telephone call that on 17 May 2016 I again put the phone on speaker phone when Ms M called to talk to [X]. Ms M again started asking [X] if she wanted to spend more time with her. I could see [X] was becoming very stressed and upset.
[X] said: “Can we talk about something else?”
Within 30 seconds of talking about other things, Ms M again said to [X] 4 or 5 times:
“Do you want to spend more time with me?”
[X] said: “Can we talk about something else?”
Ms M said:“I want to take you to your cousin’s engagement party.”
Ms M then stated a name that I cannot recall.
[X] said:“I don’t know that person. I don’t want to go. I won’t know anyone.”[9]
[9] Paragraph’s 25 and 26 of the father’s affidavit
The father said that as a result in October 2016 he changed [X]’s mobile telephone number.
The mother made some admissions about these issues. She agreed that she had told [X] that she could decide for herself where she lived when she was 12. She said she had been given that advice by a lawyer. She agreed that she had asked [X] on the phone about spending extra time with her and she agreed that [X] had asked her to stop but she maintained that this was because [X] did not want to talk about the matter in front of the father.
The Independent Children's Lawyer put to the mother that [X] was significantly distressed by being pestered about agreeing to ask for additional time with the mother.
I accept the father’s evidence that the mother has been putting pressure on [X]. He was a witness of credit; the mother was not. The mother made some admissions about some of the conversations and there is also some evidence in the Quality Care notes from 2017 about the mother making unsettling comments to [X], for example, asking her if she would like to come to Sydney or (omitted) with her to see her family or ride horses.
I am satisfied that the mother has inappropriately pestered the child about parenting arrangements and that it has caused stress for the child.

The relevance of the mother allowing the “colourful characters” to live in her house

In about August 2016 the mother allowed Ms C, a former neighbour of the parties, to move into her house. She agreed that she was aware that Ms C had been an ice user but said she felt sorry for her because she had nowhere else to live and that she accepted her assurances that she was no longer using illicit drugs.
There are significant concerns about Ms C.
Two COPS events from 14 September 2015 and 17 December 2015 when Ms C was living in another location were tendered.
The September entry refers to Ms C being seen by the police, spoken to and appearing drug-affected and saying she used ice but had not for a few days.
The December 2015 incident involved the police attending because Ms C was yelling, screaming, crying and making noises the same as a character out of the Dragon Ball Z cartoon. The policeman must be a fan I would presume.
The police spoke to Ms C. She denied taking any ice stating she was upset. The police considered she was under the effects of drugs and having a psychotic episode.
Although the mother knew, prior to the trial and prior to filing her 6 June 2017 affidavit, that the fact that she had allowed Ms C to live in her home was a concern she did not refer to the issue at all in her trial affidavit.
In cross-examination the mother said that Ms C no longer lived with her and that she had asked her to leave because of her erratic behaviour. The Independent Children's Lawyer seemed to think that Ms C had left in January 2017 but I have not been able to source that in the material.
Ms C is not living in the mother’s home any more but the fact that the mother permitted her to do so is a significant concern to me and I will come back to that later on.
At some point this year the mother permitted a man named Mr T to live in her home. It is unclear when he commenced living there. The mother does not refer to him in her affidavit either but in Quality Care notes made on 29 April 2017 she is recorded as saying that she has someone called Mr T living in her house.

Mr E is 36 and has a criminal record dating back to 2000.
Mr E has numerous convictions for driving offences including mid-range and high-range PCAs. He has convictions for assault, property damage and break, enter and steal and a conviction for intentionally causing a fire and being reckless as to its spread. Most recently he has a conviction for stalk/intimidate (domestic) in respect of an incident which occurred in December 2016.
Mr E was charged with DUI and other offences on 2 April 2017 after crashing into a parked car and leaving the scene of an accident and that occurred shortly before the mother mentioned a person Mr T to [X] at the supervised visits.
Mr E was investigated in 2013 and 2014 for allegedly sexually assaulting a niece and in October 2014 he was investigated for allegedly assaulting his partner’s child causing bruising. He does not appear to have been charged with offences arising out of either of those investigations but he was convicted of assault x 2 on his partner in December 2016.
It would appear that after the Independent Children's Lawyer raised a concern about Mr E during a court mention of the matter the mother asked him to move out.
The mother described Mr E as a colourful character and said during cross-examination that she was unaware of his criminal history when she let him move in. She said that he had only been living in her home from Monday to Friday and went somewhere else on the weekends.
The mother was conspicuously not a witness of credit. I cannot and do not accept her evidence about her lack of knowledge concerning Mr E’s history and her lack of knowledge about the extent of Ms C’s problems and even if I did accept it the mother’s actions in allowing these persons to live in her home causes me grave concern about what might happen in the future.

[X]’s best interests

Any orders I make about [X] must be orders determined by treating her best interests as the paramount consideration and s. 60CC (2) and (3) of the Family Law Act 1975 contain the matters to which I must have regard in order to determine her best interests.
There are primary considerations and additional considerations and I will start with the additional considerations, the first of which is any views of the child and the weight to be given to the views.
There was no independent evidence before me of [X]’s views today but in the family report in 2014 Ms K said as follows:
[X] denied any knowledge of why she had come to live with her father and why she spent limited time with her mother. She said that when she was told she was living with her father she was “excited” “because I always wanted to be with dad….because I love him”.
From the interview it is apparent that it is [X]’s clear preference to live with her father and that she is managing the reduced time with her mother well.[10]
[10] 2014 Family Report paragraphs 47, 49
In my view that is still likely to be the case. The Independent Children's Lawyer put to the mother that it was the case and the Independent Children's Lawyer is a very involved Independent Children's Lawyer. I do not consider she would have put that question without foundation and there is nothing in the Quality Care notes to indicate that the child has any concerns about living with the father or any wish to change that arrangement.
In addition, the mother did not suggest that [X] was unhappy where she was living. The mother did not seek a change of residence. In her June 2017 minute of order she only sought an order about time.
[X] said during the 2014 family report interviews that she was happy to spend time with the mother and I am satisfied that is still the case and that it is possible she might grieve and worry if she did not see her mother at all.
I must consider the nature of the relationship between the child and each of her parents and any other relevant person.
The family consultant observed a good relationship between the child and the father in 2014 and there was nothing in the material to suggest that this had changed.
The child would appear to have a close relationship with her paternal grandmother. The father gave evidence that she lived nearby and the mother had no complaint to make about her except about her age. I am satisfied that the child also has a good relationship with other paternal family members.
The family consultant observed a reasonably satisfactory interaction between the child and the mother in 2014 and they have interacted reasonably well at the supervised time in 2017.
I am satisfied however that the mother pesters the child about her living arrangements and that the child has a lot of trouble dealing with that.
That is not anything new because Ms K said as follows in the family report:
A theme for [X] throughout the interview, when asked about her mother, was whether her mother would know the information she conveyed. [X] said that she didn’t want her mum to be upset or angry with her. She said that if she told something and her mum challenged her about it, “I’d have to say, no, I didn’t say that because I don’t want her to know that I really did.”[11]
[11] Family Report paragraph 48
There are issues in the relationship between the mother and the child, with the child feeling sometimes overborne and pestered and feeling that she cannot really prevent the mother asking her a lot of questions and becoming extremely stressed about it.
The mother has a large extended family but the nature of [X]’s relationship with them is unclear to me.
I have to consider the issue of financial support of the child.
The mother is working and she is assessed to pay and does pay child support.
The documents produced on subpoena by the mother’s employer indicate that the mother is currently having $112.00 per fortnight garnisheed from her wages. That is a contribution but it is not a massive amount of money and the father is the child’s primary financial carer.
I must consider the extent to which each parent has taken, or failed to take, the opportunity to spend time with or communicate with the child or be involved in decision-making about the child.
I do not consider that is relevant.
I must consider the likely effect of any change in the child’s circumstances.
This is a core issue in the case.
The mother sought a change in that she sought a return to unsupervised time and also an increase over what was provided for in the 2015 orders.
That would only be appropriate if there was no risk of harm to the child in the mother’s care, if the mother was not using illicit substances, if there were no parenting capacity issues, and if the mother was not going to say or do anything which might undermine the child’s relationship with the father or undermine the child’s sense of security.
I will have to return to that issue after making further findings about the s. 60CC (2) and (3) matters.
The father proposed an order that time be as agreed between him and the mother. In my view that would be very likely to result in no time given the inability of the parents to communicate. It would be a significant change for her and I question whether it would be a good outcome.
My other concern about that outcome is that it could well lead to inappropriate conduct by the mother given her history. If she could not get what she wanted by discussion with the father then she could break out in other ways which might be deleterious for the child.
I must consider the practical difficulty and expense of the child spending time with a parent but that is not a relevant consideration in this case.
I must consider the capacity of each parent to provide for the needs of the child including her emotional and educational needs.
The father is caring for [X] appropriately.
The mother raised an issue about the father’s alcohol consumption. She has always raised that issue but there was no evidence that it was currently an issue of concern. There was nothing to suggest that the father had convictions for example. There was simply no evidence on the issue and I cannot do anything with that allegation.
The mother raised a concern about the father’s relationships, although it does not seem that he has had many post-separation, and she was particularly concerned about one recent relationship.
As the Independent Children’s Lawyer pointed out there was no evidence that this relationship had been an issue for [X], indeed the mother herself said that [X] liked that particular partner, Ms Y, and liked her children when the father was in that relationship.
There is no evidence before me that the father’s post-separation relationships have caused a problem for the child.
[X] started high school this year and her education is being properly attended to. There was no evidence that she had issues at school. I am sure the Independent Children’s Lawyer would have brought any concerns about that to my attention.
[X] has had counselling at school and the father said as follows in his affidavit:
Around this time I was contacted by [X]’s teacher regarding her transitioning to High School in 2017. [X]’s teacher recommended that [X] be involved in a program run by (omitted) High School which seeks to support children who the school has identified as being vulnerable when commencing High School.
[X] was involved in this program and in the later part of 2016 attended at (omitted) High School on 4 or 5 occasions and met with various teachers.[12]
[12] Paragraph’s 42 and 43 of the father’s affidavit
In early 2017 [X] commenced the Anchor program run by Interrelate. She was involved in a Jigsaw program from February to March 2017 and the father said in the witness box that she was still seeing someone – I think the name was Mr I – through that organisation.
The father has made appropriate arrangements for the child to have counselling and have some support and assistance and he described in his affidavit some of the activities he did with [X] and the chores that she did in his home which is a good thing for a child.
I am satisfied that the father is doing a good job caring for [X].
I have serious concerns about the mother’s parenting capacity.
The evidence suggests that the mother is using drugs and not only using drugs, using the extremely damaging, highly addictive drug, ice. She gave no adequate explanation for why she introduced two very concerning adults into her home in August 2016 and sometime in 2017. She is putting endless emotional pressure on the child to ask for or agree to extra time to meet the mother’s own needs and she refuses to be amicable with the father.
The mother lost her job after being convicted of harassing a judicial officer but she commenced employment with (employer omitted) as a (occupation omitted) in July 2014 and she is still employed there. It appears to be part-time but she now has a lengthy history of employment there and she said her stable employment history should count for something. It does, because if people are productively employed they are good role models for their children in that regard but it is only one factor that I have to take into account. Overall I have some very serious concerns about the mother’s parenting capacity.
I have to consider the child’s maturity, sex and background.
The mother is of (omitted) heritage. However apart from explaining how this made it difficult for her as a teenager in Australia she did raise it as an issue in the proceedings.
I must consider any family violence but that was not raised as an issue by either party in the hearing before me and there are no family violence orders.
I have to consider whether it is preferable to make the order least likely to lead to further proceedings.
The orders the father sought that time be as agreed, which in my view would result in no time or is highly likely to result in no time, is probably the order which is least likely to lead to further proceedings. Any order for time carries with it a risk of the matter returning to court because it does not work and if an order for unsupervised time is made the prospect of the matter returning to court is very high.
I must consider any other relevant matter.
Both the father and the Independent Children’s Lawyer proposed that if time was to occur in the future it would have to be supervised and orders for long-term supervised time are fraught with difficulty.
There are already signs that [X] has become bored with the Quality Care options and the mother chafes at the restrictions imposed by this option and recently told the child, which was somewhat emotionally damaging for the child, that she did not intend to do any more supervised visits.
Private supervision costs money and people can find that very difficult over a period of time, although there was no evidence at the moment that the mother could not afford it and she is working.
Sometimes the private service which has been identified ceases to operate and the parties are not able to reach agreement about using another service and I had a matter return to court before me because of that very problem and as children get older, for a variety of reasons, they may simply become resistant to going.
Long term supervised time can potentially have a lot of problems and the risk if I make an order for supervised time is that the matter may for a whole variety of reasons return to Court.
It is also sometimes said – and I will have to consider what I do with this in the context of this case – that the Court should only make orders for supervised time if there is a possibility that time may eventually become unsupervised.
A relevant matter raised by the mother was that [X] was a girl. The mother said that as a female she was best placed to guide [X] through her adolescence in other words that the child needed her mother.
This is of some relevance but of course the child can obtain that guidance from other females.
A third relevant matter is the mother’s attitude to the father. It is oppositional and combative and that is not likely to change. There is no possibility of reasonable communication between these parties in the future. I do not consider on reflection that the mother’s attitude to the father is likely to undermine the child’s relationship with the father given the strength of her attachment to him but her attitude to the father could cause the child psychological harm in trying to deal with it.
I then have to turn to the primary considerations and the first of those is the benefit to the child of having a meaningful relationship with each of her parents.
A meaningful relationship has been defined as a relationship which is valuable, important and significant to the child.[13] Even an order for supervised time might mean that [X] was able to have a relationship with her mother that was valuable, important and significant to her but it would be at the end of the range in terms of significance.
[13] Mazorski & Albright (2008) 37FamLR 518
The mother would not have much input into [X]’s life but she would be able to see [X]. [X] would know that she had a mother who wanted to have a relationship with her and supervised time could ensure that a meaningful relationship was maintained.
There is no certainty of that however. If the mother continued to pester the child, to get in her ear, to make the child feel emotionally at risk, then the child’s relationship with the mother might not be meaningful and the fact that the child saw the mother might actually cause harm to the child.
I informed the father’s counsel that in my view the father’s proposal was for a thinly veiled no-time order and there was mention in the 2014 family report of the father perhaps having some view that it would be better if the child did not see much of the mother at all.
However the father has not historically sought to undermine the child’s relationship with the mother. He is not enthusiastic about time, I think that is fair to say, because it has caused a lot of problems, but until August 2016 he complied with the Court orders and the mother gave no evidence that he badmouthed or denigrated her to the child. The fact that after all this time the child still goes without protest to spend time with the mother is clear evidence that the father is not undermining her relationship with her mother.
I am satisfied that the father has supported the relationship under very trying circumstances.
The second primary consideration is the need to protect the child from physical or psychological harm as a result of being exposed to or subjected to abuse, neglect or family violence. Section 60CC (2A) says that the Court must prioritise this consideration over the need for the child to have a meaningful relationship with a parent.
[X] would be at considerable risk if she spent unsupervised time with her mother.
She would be at risk of neglect if the mother used illicit drugs, in particular ice.
She would be at risk of serious harm if there were other ice users in the house or someone like Mr E in the house. She could be exposed to someone like Ms C having one of her psychotic rages. She could be physically harmed. Mr E was very recently in the mother’s house and he is no longer there only because the Independent Children’s Lawyer raised a concern about him. In my view [X] would be at unacceptable risk of harm if she spent unsupervised time with the mother.

Parental responsibility

The parties agreed in 2015 that the father should have sole parental responsibility for the child and nothing in the evidence suggests that I should reconsider that final order.

Conclusion

In view of Hungerford & Tank[14] I must have regard to the fact that there is an existing order about the child spending time with the mother. There have in fact been two sets of final orders and the old case of Rice & Asplund[15] makes it clear that the Court should not reconsider orders about children unless there had been some change of circumstance which means that it would be in the children’s best interests that the Court do so.
[14] Hungerford & Tank [2007] FamCA 637
[15] Rice & Asplund (1979)FLC 90-725
I am satisfied that there are good reasons to reconsider the 2015 orders. First there is the recent drug test result, second there are the mother’s housemates, and third there is evidence about the stress the child is under being pestered in relation to her living arrangements.
I am satisfied that it is in the child’s best interests that I reconsider the 2015 orders and indeed both parents asked me to do so. The mother, for her own reasons, wanted me to do that as well.
I could not possibly consider extending the mother’s time with [X] or allowing a return to overnight time or even unsupervised daytime in view of the evidence I have heard. I have made a finding that on the balance of probabilities the mother is using ice, I am extremely concerned about the people she has introduced into her home in the last 12 months and I am extremely concerned about the emotional pressure that is being placed on the child week in and week out about the amount of time she is to spending with her mother.
It is important to again refer to paragraph 66 of the 2014 report where Ms K said as follows:
If the Court finds that the mother is genuine in supporting [X]’s relationship with her father, that she is able to protect [X] from her emotional state, both generally and as it relates to the father, and that she is not misusing drugs, then it would appear to be appropriate for [X] to spend each alternate weekend with the mother.
The problem for the mother is that I do not consider she is genuine in supporting [X]’s relationship with the father, I do not consider that she is able to protect [X] from her emotional state and I consider that she is misusing drugs, and in addition other issues have since arisen such as the introduction of the two unsatisfactory housemates.
Ms K went on to say that if the Court was of the view that there was some risk but the risk could be mitigated by limiting the mother’s time with [X], then the Court may wish to consider [X] spending time with the mother each alternate weekend, daytime only. She then went on to make a recommendation about supervised time if that was considered appropriate.

The mother set out at length in her affidavit the things she said that she could do for [X] in her adolescence, including giving her advice about dating, but the mother’s recent decisions about her housemates leads me to be gravely concerned about the mother’s judgment and perceptions of danger and to seriously question whether she is someone who would give [X] good advice. Her refusal to acknowledge her own drug use issues makes her an extremely poor role model for [X], and her drug use and her associations could lead to [X] commencing drug use. There is also a serious risk of [X] being harmed by emotional pressure from the mother and by negative comments about the father.
Unsupervised time was tried in 2015 in accordance with recommendations in the Family Report. It has failed and I would not be prepared to make an order continuing unsupervised time between the mother and [X], let alone extending it in the way the mother proposed.
The father proposed an order that would very likely result in no time. That could cause difficulties for the child. She has historically had a relationship with her mother. She is used to seeing her. She is not resistant to seeing her as such. Not seeing the mother may cause her some short-term relief in terms of not having to deal with the emotional pressure the mother puts on her but it may also cause her some grief and worry. As we discussed during submissions there are no maternal family members who have a good relationship with the father who could be a conduit for [X] obtaining some information about the mother if she did not see her.
I prefer in broad general terms, although not in terms of the extent of it, the Independent Children’s Lawyer’s proposal that there should be a continuation of some supervised time.
An order for long-term supervised time is not a good outcome in a case but this is a very difficult case. The child has a mother with problems but she knows her mother and it is in her best interests that she continues to have some contact with her.
The father gave evidence in his affidavit about seeing [X] approach another child’s mother and give her a hug and say, “Can you be my mum? Mine is broken.” So the child knows that her mother has problems but she also has a longstanding relationship with her and may grieve if she does not have time with her and I therefore consider that it is preferable to make an order for some fixed supervised time.
I am concerned about it because there is a moderate to even a high risk of further proceedings occurring if an order is made for supervised time. That could happen for a whole variety of reasons. The child may become resistant when she is not much older to going. The mother’s situation may fluctuate. The father may stop time when the mother’s circumstances are at a nadir and then refuse to reinstate it if things change. The mother could then bring contravention proceedings, something she has done once in the past.
These proceedings are expensive for the father and being repeatedly in court is debilitating for anyone. In the last seven years these parties have been out of the Court system for only about 15 or so months on my calculation.
However although I accept that this risk exists, on balance it is better, as the Independent Children’s Lawyer proposes, to order some time. If the mother continues in a downward trajectory however the next step is certainly a no-time order.
I am not going to make an order that the time occur every month. I think that is not going to be able to be supported and is more likely to cause problems. In my view the time should occur four times a year, and that is what I am going to order.
I am going to order that the father may select the supervisor and that the father shall organise with the supervised service the day and time on which the supervision shall occur. The reason I am going to do that is because [X] will have her own priorities, especially as she gets older. She may get a part-time job. She may do some sport. She may have other activities she wants to go to. The father will be aware of that and he can arrange the time so that it is consistent with the child’s needs.
That will lessen the likelihood of the matter coming back to court and the father can then notify the mother no less than 14 days prior to the time he has organised of the date and time when the supervised time will take place.
I will further make an order that the mother is to pay the costs of the supervision and if she fails to make arrangements with the supervised service to do so then the time shall not occur.
The father sought an order pursuant to s. 68B of the Family Law Act 1975 that the mother be restrained from entering on or approaching the father’s residence or any school attended by the child.
There is no evidence that the mother has ever sought to go to the child’s school or take part in any school events but given the likelihood of conflict between the parents, including the event in May 2016 when the mother screamed out, “Call the police, call the police,” I think it would be in [X]’s best interests for me to make the s. 68B order and I will make that order. School is a safe haven for [X] and she needs to be protected from any risk of her parents coming into conflict at her school or of anything unpleasant occurring at her school.
I intend to order that the mother be restrained from discussing the Court proceedings or the child’s living arrangements with the child or questioning the child about whether she wishes to spend more time with her and I warn the mother that if she does that at the supervised time and an application is made to discharge the orders there is a risk of that happening.

The Independent Children’s Lawyer’s application for costs

The Independent Children’s Lawyer sought an order that each parent contribute to the costs of the Independent Children’s Lawyer.
The father is earning something like $100,000.00 a year. He could pay costs but it is certainly not his fault the matter is in the Court system. He is primarily supporting his child. He is paying for private legal representation and the orders I make carry with them some risk that there may be further expenses in the matter. So although I am sympathetic to the Independent Children’s Lawyer’s application, because the community should not have to bear the costs of ICLs if the parties can pay, I intend to dismiss that application as regards the father.
The mother is not a high income earner and if I am not going to make an order that the father contribute I am similarly not going to make an order that the mother contribute, so I will treat the Independent Children’s Lawyer’s application for costs as made and dismissed.

I certify that the preceding two hundred and one (201) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 25 July 2017

[2017] FCCA 1723

27 June 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Costs

Jurisdiction

Remedies