BELTRAN & KRAFT
[2019] FCCA 681
•15 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BELTRAN & KRAFT | [2019] FCCA 681 |
| Catchwords: FAMILY LAW – Parental responsibility and parenting orders – father’s failure to undertake hair follicle drug testing – risk factors – orders for staged increases in time if clean drug tests produced. |
| Legislation: Family Law Act 1975 (Cth), ss.61DA(2)(b), 4AB(3), 60CA, 60CC |
| Applicant: | MR BELTRAN |
| Respondent: | MS KRAFT |
| File Number: | BRC 11191 of 2017 |
| Judgment of: | Judge Egan |
| Hearing date: | 6 March 2019 |
| Date of Last Submission: | 12 March 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 15 March 2019 |
REPRESENTATION
| Applicant: | In Person |
| Counsel for the Respondent: | Ms Pendergast |
| Solicitors for the Respondent: | Whitehead Payne |
| Counsel for the Independent Children's Lawyer: | Ms McDiarmid |
| Solicitors for the Independent Children's Lawyer: | Legal Aid Queensland |
ORDERS
That all previous Orders be discharged.
Parental Responsibility
That the mother have sole parental responsibility for the child [X] born … 2007.
In exercising sole parental responsibility for the child:
(a)The mother shall inform the father in writing via the Talking Parents App of the necessity to make a decision, the proposed outcome of such decision, the reasons for the proposal and any documentation available to assist with the making of the decision;
(b)When the mother has made the decision, she shall write to the father and advise him of the decision and the reasons for the decision.
Lives with/spends time with
That the child live with the mother.
The child’s time with the father: phase one
The child shall spend time with the father at all times as agreed between the parents and failing agreement on a supervised basis as follows:
(a)On alternate Saturdays from 12noon to 4.00pm commencing 9 March 2019;
(b)12noon to 4.00pm on Father’s Day;
(c)12noon to 4.00pm on Christmas Eve
With the father to inform the mother via the Talking Parents App by no later than 4.00pm on the day immediately preceding the visit, the name of the nominated supervisor, being either Ms A or Ms B or another agreed supervisor.
The child’s time with the father: phase two – for the first period of three months commencing after the father has undertaken the drug test next referred to
Upon the father providing to the mother’s lawyer the results for a 501BZO hair follicle drug test from Australian Workplace Drug Testing Services (AWDTS) and the results are negative for illicit drugs and any prescribed medication that the father does not have a prescription for, the child will spend unsupervised time with the father at all times as agreed and failing agreement:
(a)Each alternate weekend from 12noon Saturday to 6.00pm Saturday on an unsupervised basis;
(b)9.00am to 3.00pm on Father’s Day;
(c)9.00am to 3.00pm on Christmas Eve.
In the event that the drug test results are positive for illicit drugs or prescription drugs not in accordance with the father’s prescriptions, the child will spend time with the father on a supervised basis in accordance with paragraph 5 of these Orders.
The child’s time with the father: phase three- for the second period of three months
In the event that the father:
(a)Provides the results for a second 501BZO hair follicle drug test to the mother’s lawyer from Australian Workplace Drug Testing Services (AWDTS) and the results are negative for illicit drugs and any prescribed medication that the father does not have a prescription for; and
(b)Is residing in a home where the child has her own bed and bedroom to sleep;
The child will spend time with the father at all times as agreed and failing agreement:
(i) Each alternate weekend from after school or 3pm Friday until 3.00pm Saturday;
(ii) 9.00am to 5.00pm on Father’s Day;
(iii) 9.00am to 5.00pm on Christmas Eve.
In the event that the drug test results are positive for illicit drugs or prescription drugs not in accordance with the father’s prescriptions, the child will spend time with the father on a supervised basis in accordance with paragraph 5 of these Orders.
The child’s time with the father: phase four- for the third period of three months
No earlier than three months after the commencement of time in paragraph 8 of these Orders and provided that the father:
(a)Provides the results for a third 501BZO hair follicle drug test to the mother’s lawyer from Australian Workplace Drug Testing Services (AWDTS) and the results are negative for illicit drugs and any prescribed medication that the father does not have a prescription for; and
(b)Is residing in a home where the child has her own bed and bedroom to sleep;
The child will spend unsupervised time with the father at all times as agreed between the parents and failing agreement:
(i) Each alternate weekend from after school or 3pm Friday until before school Monday;
(ii) On the Father’s Day weekend from after school or 3pm Friday until before school Monday;
(iii) 9.00am on Christmas Eve until 9.00am on Christmas Day.
In the event that the drug test results are positive for illicit drugs or prescription drugs not in accordance with the father’s prescriptions, the child will spend time with the father on a supervised basis in accordance with paragraph 5 of these Orders.
The child will remain in the mother’s care on:
(a)The Mother’s Day weekend;
(b)Christmas Day
And any Order for time inconsistent with this paragraph will be suspended at these times.
Telephone Calls
The father be at liberty to communicate with the child via telephone each Tuesday and Thursday between 7.00pm and 7.30pm and the child will initiate the call.
Attendance at the child’s school and extra-curricular activities
The father is at liberty to attend the child’s school functions to which parents are ordinarily invited including but not limited to: carnivals, sports days, fetes, concerts, plays and parent/teacher interviews, as follows:
(a)When the child is spending supervised time with the father pursuant to paragraph 5 of these Orders, the father is at liberty to attend provided that he is accompanied by a supervisor unless agreed otherwise by the parents;
(b)When the child is spending unsupervised time with the father pursuant to paragraphs 6, 8 and 10 of these Orders, the father is at liberty to attend these school functions.
Changeover
When the child is attending school, changeover will occur at the child’s school or such other place as the parents agree.
When the child is not attending school, changeover will occur at Town C Train Station or another agreed public place and for the purpose of changeover:
(a)The mother is permitted to send an agent to changeover on her behalf, provided that the agent is known to the child and the mother notifies the father of the name of the agent via the Talking Parents App;
(b)The father cannot refuse to hand over the child to the mother’s agent;
(c)Each parent shall be punctual in attending the changeover and if there is to be a delay shall send a message to the other parent via the Talking Parents App;
(d)Neither parent shall approach the other and shall remain near their cars so as to enable the child to move readily between the vehicles.
Communication
That the parents will communicate with each other regarding the child only by using the Talking Parents App ( or similar Application used for post separation parenting communication.
That each parent keep the other parent informed at all times of their residential address and contact telephone number and to notify the other parent at least 7 days prior to relocating their residence beyond a 20 kilometre radius from where they currently reside.
The mother will keep the father informed of the child's doctors, health care and other treatment providers and authorise those practitioners to provide the father with information that they are lawfully able to provide about the child and this order shall serve as such authority.
Each party shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the child and authorise any treating medical practitioner to release the child's medical information to the other parent.
The father shall complete the Parenting Orders Program with Centacare and shall provide the certificate of completion to the mother’s solicitor.
Specific Issues
That during the time the child are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent; and
(b)Speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent in the presence or hearing of the child; and
(d)Use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.
That neither parent will consume illicit drugs or be affected by illicit drugs whilst the child is in their care and each parent shall ensure that no other person uses or is affected by illicit drugs in the hearing or presence of the child.
That neither parent will consume alcohol to above the legal driving limit during the time the child is in their care.
The father will not drive unlicensed with the child in the vehicle.
The mother is solely responsible for the cost associated with the hair follicle drug testing referred to in paragraphs 6 and 8(a) of these Orders.
The father is solely responsible for the cost of the hair follicle drug testing referred to in paragraph 10(a) of these Orders.
That the Independent Children’s Lawyer be discharged.
Notation
A.That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the document attached to the sealed Orders titled “Parenting orders – obligations, consequences and who can help”.
IT IS NOTED that publication of this judgment under the pseudonym Beltran & Kraft is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 11191 of 2017
| MR BELTRAN |
Applicant
And
| MS KRAFT |
Respondent
REASONS FOR JUDGMENT
Introduction
The father and the mother married in 2006.
The applicant father is forty-eight (48) years of age. He operated a Business until he separated from the respondent mother in 2017. At the time of trial he was only sporadically involved in such activity, due mainly to the fact that he has had his license to drive disqualified. The father does not have any fixed place of abode. He most often lives with a girlfriend and her children in a home at Suburb D in Brisbane. He otherwise has lived in a car.
The respondent mother is fifty-two (52) years of age. She is a health care worker by occupation and is in stable employment. She resides at the former matrimonial home situated at Town E in Queensland.
There is one child of the relationship between the mother and the father, namely a female born in 2007. That child is presently eleven (11) years of age. She attends primary school and on all accounts is doing well both developmentally and educationally. The child has a particular interest in sports for which she has been recognised as a high achiever.
The father commenced parenting proceedings by the filing of an Initiating Application on 24 October 2017. At that time, the father was represented by a firm of solicitors.
The mother filed a Response on 24 November 2017.
Family Violence
The mother and the father both filed Notices of Risk. Each of them noted that a temporary protection order had been taken out on 27 September 2017 naming the mother as the aggrieved, the child as a named person, and the father as the respondent.
The father, in paragraphs 3.4 - 9 of his notice of risk filed on 24 October 2017 paraphrased the circumstances which gave rise to the making of the temporary protection order as follows:
“7. On Thursday, 21 September 2017, after the Mother refused to communicate with the Father about paying the bills and accounts, the Father wrote a message to her on the back of an envelope asking the Mother to pay the phone and internet bill. The Father left the corresponding bill on the kitchen counter. That following weekend, the Mother threw the envelope at the Father and said to him “don’t ever write me a note again”.
8. On the morning of Monday, 25 September 2017, the Mother was packing the car to take the Child somewhere. The Father went into the garage, where the Mother was packing the car, stood in the doorway and began to explain that the bill needed to be paid as a matter of urgency. The Mother responded by quickly moving towards the Father and barged into his side, moving the Father sideways. In response, the Father restrained the Mother by grabbing her arms and holding her against the car. The Mother let out a shriek and the Father immediately let go of her. The whole incident lasted about 2 seconds.”
The mother, in paragraphs 3(a) and 4(a),(b),(c) and (d) of her notice of risk filed on 24 November 2017 set out the circumstances which gave rise to the making of the temporary protection order as follows:
“QUESTIONS IN THIS SECTION RELATE TO ALLEGED FAMILY VIOLENCE:
3. Has there been family violence or is there a risk of family violence by a party to proceedings or any other person who is relevant to these proceedings?
[ ] No [X] Yes
(a) Particulars of alleged family violence or risk of family violence:
1. On 12 September 2015, following an argument, the father told the mother to “fuck off” and then suddenly leapt towards her using both his hands he pushed her violently causing her violently, causing her to fall backwards and sustain injuries to her back, wrists, arms and upper body.
2. The father assaulted the mother on 25 September 2017. The Police obtained a Protection Order and the father was ousted from the home.
3. The father verbally abused the mother throughout the course of the relationship, accusing her of suffering from mental health issues which included a narcissistic personality disorder, anxiety, etc. The father also repeatedly alleged that the mother had been abused as a child/teenager, and that her alleged mental health problems were due to such abuse.
4. The father demanded that the father not use the washing machine or air conditioner after 4.00pm, and if she did so, he would become angry and verbally abusive.
(b) Have these allegation/s been reported to an external authority?
[ ] No [X] Yes
(c) If yes, specify to whom these allegations have been reported.
[X] Police
[ ] Child Welfare Authority
[ ] Medical Practitioner
[ ] Other
4. Are there any other facts or circumstances that you allege pose a risk to a child who is the subject of the proceedings?
(a) Do you allege that a child is at risk because a party to the proceedings, or another person relevant to the proceedings, suffers mental ill-health?
[ ] No [X] Yes
Particulars of alleged facts or circumstances:
1. In early 2015, the father’s behaviour became extremely erratic. He would sleep all day and be awake at night, making noise around the home. At that time, the father stopped eating the meals that the mother had prepared and began consuming large amounts of ice cream, sweets and chocolate.
2. The father has displayed erratic behaviour for a number of years, due to his illicit drug and alcohol use, such that the mother has had to walk on egg shells’. The father appears to have no insight in relation to how his behaviour has impacted on the mother and the child.
(b) Do you allege that a child is at risk because a party to the proceedings, or another person relevant to the proceedings, abuses drugs or alcohol?
[ ] No [X] Yes
Particulars of alleged facts or circumstances:
1. The father drinks alcohol and drives a motor vehicle whilst the parties’ daughter is in the vehicle. The mother has requested the father not to drink and drive with the child in the car but he has ignored her or stated that she is “controlling” him.
2. The child has stated to the mother that her father “quite often” drinks alcohol while driving with her.
3. The father has used drugs throughout the relationship and has admitted in his Affidavit, filed 24 October 2017, to driving a motor vehicle with drugs in his system, namely ice’, and being charged and disqualified from driving for one month as a result of such offence.
4. The father admits in his Affidavit to being a “recreational user of ice”. He states “I no longer use illicit drugs”. Requests by the mother for the father to undergo hair follicle testing have been ignored.
(c) Do you allege that a child is at risk because a party, or another person relevant to the proceedings, suffers a serious parental incapacity?
[ ] No [X] Yes
Particulars of alleged facts or circumstances:
1. From November 2015 until the time the father was ousted from the former matrimonial home, he was sleeping in his truck at night. This was despite the fact that he had his own bedroom in the former matrimonial home.
2. In April 2015, when the mother was interstate, the father was supposed to be caring for the child. However, he slept overnight in his truck whilst leaving the child unsupervised in the house. On other occasions, when the child has been left in the care of the father, he has left her alone in the house, unsupervised, for periods of up to 1 hours.
3. The father has caused the child significant distress by delivering her to school late. When the child asks the father to leave home on time he would ignore her requests. The mother also requested the father to ensure that the child was delivered to school on time, but such requests went unheeded.
(d) Do you allege that a child is otherwise at risk?
[ ] No [X] Yes
Particulars of alleged facts or circumstances:
1. For approximately the last three years, the father has spent his days sitting in his truck, parked outside the former matrimonial home, or locked in a room in the garage. The mother believes that the father has been using drugs behind closed doors’.
2. The father watches pornography and when the parties were living under the same roof the mother was concerned that the child might walk in on the father whilst he was viewing such material.
3. In early 2015, the father’s behaviour became extremely erratic. He would sleep all day and be awake at night, making noise around the home. At that time, the father stopped eating the meals that the mother had prepared and began consuming large amounts of ice cream, sweets and chocolate.
4. From November 2015 until the time the father was ousted from the former matrimonial home, he was sleeping in his truck at night. This was despite the fact that he had his own bedroom in the former matrimonial home.”
The Court accepts the mother’s evidence that the daughter was present in the home during the incident of 25 September 2017, and that even though she may not have witnessed the father forcefully taking hold of the mother, she would nonetheless have heard the mother scream when he did so. The child told Ms F that she recalled hearing her mother scream. Such involvement would have been troubling to a young girl in such circumstances.
On 29 January 2018 the father consented, without admission, to the making of a domestic violence order (‘DVO’), where the mother was the aggrieved person, and the child was a named person the subject of the order. The DVO was expressed to continue in force up to and including 29 January 2020.
It is of relevance that the mother made four (4) complaints to the Queensland Police Service (‘QPS’) concerning alleged breaches by the father of the DVO. The mother alleges that two (2) of those four (4) complaints were actioned by QPS resulting in the father being charged for such breaches. She asserted that on 22 January 2019 – the day listed for the hearing of those charges – the father was found guilty in his absence. [1] The father, in cross examination, admitted that he had been so charged but stated that no conviction on those charges had been recorded. The father pointed to such charges relating to contact breaches involving email exchanges rather than physical violence related charges.
[1] Paragraph [69] of mother’s affidavit filed on 19 February 2019 (“mother’s affidavit”).
Father’s History of Drug Use
The father acknowledged a criminal history involving possessing and cultivating marijuana in 1995; a drug driving offence for driving under the influence of methyl-amphetamine in March 2017; and driving whilst disqualified in July 2017. [2]
[2] Paragraph 52 of Ms F Report dated 27 July 2018.
The father admitted that he had been a recreational user of ice in the past. In his affidavit filed on 24 October 2017, he stated that he intended to undertake urine drug testing prior to the first return date of parenting proceedings so as to demonstrate to the mother and to the Court that he was no longer using ice. [3] No such offer was made in respect of his undertaking hair follicle drug testing which is able to detect drug use over a much longer period of time prior to the taking of such a test.
[3] Paragraphs 42 – 48 inclusive of father’s affidavit filed on 24 October 2017 (“father’s affidavit”).
The mother has asserted that the father has had a long history of drug and alcohol abuse during the relationship. The drug use included ecstasy and other drugs. [4] The mother attempted to leave the marriage on a number of occasions after 2014. The mother accused the father of smoking a substance which she believed to be ice in his truck – it was, she alleged, being smoked through an illuminated glass pipe. [5] The mother asserted that the father had become more and more desperate for money leading up to the incident of 25 September 2017.
[4] Annexure C to mother’s affidavit.
[5] Paragraph 52 of mother’s affidavit.
At paragraphs 53 – 58 inclusive of the mother’s affidavit, the mother set out various incidents where the father had run out of money and had requested money from her, including for payment of a disconnected telephone service.
At paragraphs 73 – 90 of the mother’s affidavit, she set out ongoing drug related activity on the part of the father which she noted was related to a corresponding inability on the part of the father to be engaged in his business. She recounted how on occasions the father would take the child to school whilst under the influence of drugs. The mother recounted how she had seen the father smoke ice on two (2) occasions on 26 December 2014 and 15 May 2017 whilst sitting in his truck. The mother further recounted how in December 2017 the father was convicted of failing to provide a blood sample after a drug was found to have been present in his saliva whilst he was in charge of a motor vehicle. Though the father admitted that he failed to provide a blood sample, he stated in justification for his doing so that he had already provided saliva samples and that, therefore, he didn’t need to provide a further blood sample. He indicated that he was being unfairly targeted by police. That failure to provide a blood sample for analysis is of importance.
During the course of the proceedings, the father has on three (3) occasions been ordered to undertake hair follicle drug testing. The father has failed to comply with each of those orders, citing impecuniosity for his failures.
When confronted during the course of cross examination with the prospect of him undertaking a hair follicle test if someone else paid for such test, the father said that he would undertake the test if ordered to do so.
There was an obvious concern, expressed by counsel for the mother and the ICL, that there is a risk to the child if she was to spend unsupervised time with the father in circumstances where the father might be adversely affected by drugs, irrespective of whether such drugs are marijuana, ecstasy or ice.
The father has for a long time since separation been in a position to allay any fears that he still uses drugs, but he has failed to do so. His ongoing insistence that he be permitted to spend unsupervised time with his daughter has been tainted by his lack of insight as to how his own intransigence in undertaking hair follicle drug testing has contributed to his current predicament.
Parental Responsibility
During cross examination, the father conceded that he can’t communicate with the mother concerning the making of long term decisions which impact upon their daughter’s life, including the child’s future education. As to the child’s intended high school education, it has been suggested that the child has recently been awarded a full scholarship to attend the School G at Suburb H, commencing in 2020. Though that scholarship may very well reduce a potential area of conflict between the parents, there are many other aspects of the child’s future life which in the short term remain unresolved.
The father said that he had “a very negative view” of the mother’s behaviour. The father was preoccupied with what he considered to be the calculating actions of the mother in having him removed from the family home, and her otherwise preventing him from carrying on with his business activities. He blamed her for his homelessness and his impecuniosity.
The father has taken no personal responsibility for his having had his license disqualified on three (3) separate occasions in 2018. He even went so far as to justify past disqualifications on the basis that he needed to drive a vehicle so as to make a living, saying that he would do it again in the future to make money.
The father’s long history of driving related infringements, as illustrated in Exhibit 4 (Transport and Main Roads Department driving record), indicates that the father doesn’t learn from his past mistakes. His last three (3) disqualifications were recorded as follows:
5/4/18 Disqualified Driving $750 and 2 year disqualification
8/4/18 Disqualified Driving $750 and 2 year disqualification
30/10/18 Disqualified Driving 3 year disqualification
In circumstances where the father has indicated that he may very well drive in the future whilst disqualified, realising as he admitted in cross examination that he could be imprisoned for doing so, the father has shown that he is incapable of acting responsibly, not only in respect of his own affairs and well-being, but also in respect of the making of decisions which affect the long term future of his daughter.
In the present circumstances, the presumption of equal shared parental responsibility does not apply due to family violence. [6] The child would have been exposed to family violence, as defined in the Family Law Act, during the 25 September 2017 incident. [7] The father fails to appreciate what actually constitutes family violence under the FLA.
[6] Section 61DA(2)(b) of FLA.
[7] Section 4AB(3) and (4) of FLA.
The evidence before the Court relating to the inability of the father to act in a responsible manner; the unlikelihood of the mother and father ever being able to agree on matters which affect the long term welfare of the child; and past family violence; together rebut the presumption that there should be equal shared parental responsibility in the circumstances of this matter.
A psychiatric assessment of the father made by one Dr J, as annexed to his affidavit filed on 4 March 2019, recorded that the father remained relatively insight-less and rigid as to his views regarding the mother. It was said that he was not particularly amenable to positivity toward the mother. Though he did not have any psychiatric condition, the father nevertheless remained fixed in his adverse views regarding the mother. Despite that, the father in cross examination did concede that the mother loved the child, provided nutritious meals for the child, and otherwise properly ensured that the child’s daily needs were met.
Dr J’s assessment of the mother was that she had suffered from an adjustment disorder with anxious mood consequent upon her separation from the father. Dr J considered that the mother’s insight was reasonable and that her judgment was fair. Dr J did not find that she suffered from any personality disorder.
The Court had the advantage of assessing the demeanour of each of the father and the mother whilst they gave evidence. The father’s assertion that he was drug free was undermined by his having failed to undertake the very hair follicle drug tests which could prove such assertion. His failure to undertake the tests allowed the Court to make, as it does, an adverse finding on credibility against the father on that aspect of his evidence. The father’s protestations that he ought not to be subjected to such a requirement fall flat in the face of his past drug abuse. However, the father’s stated preparedness during cross-examination to undertake hair follicle testing if paid for by the mother was credible, and orders should be made in that regard.
The mother is not without fault. Since separation, she has unacceptably listened into private conversations between the daughter and the father in circumstances where the daughter could not have been entirely free and open with her father because of her mother’s close proximity. The mother even went so far as to record such conversations on her iPad/iPhone. Such conduct shows a lack of insight on her part.
The mother has, nevertheless, been the primary care giver for the child since separation. It is in the best interests of the child that the mother should have sole parental responsibility for decisions concerning the child’s long term welfare, including her education. She should nonetheless advise the father of what her long term decisions are in that regard.
Child’s Time with the Father
There is no doubt that there is mutual love and affection between the father and the daughter. That relationship should be nurtured such that it grows.
All parties are in agreement that it would be beneficial for the child to spend more time with her father. The question is whether such time should be staged, and if so, how such increased time should be staged.
In cases where a parent has admitted long term drug use and abuse, it is important that any assertion that such drug use has ceased be verified. The current time arrangement spent by the child with her father has been Court ordered to be on a supervised basis.
The father has not undertaken the requisite hair follicle drug testing as has been ordered by the Court. It is incumbent upon the father to demonstrate that he has given up drugs and is no longer a risk to his daughter on the occasions when she is able to spend time with him. That is, notwithstanding that there is no evidence that the father has ever caused any physical harm to his daughter. The risk of him doing so remains as long as he fails to prove that he is drug free.
Ms F is a psychologist who has had significant contact with the parties. It was her recommendation that the child’s time with the father be limited to day time, and that it be either supervised, or subject to supervised changeovers, until such time as the father has been able to produce a clean hair follicle drug test as well as having a clear CDT (Carbohydrate Deficiency Test).
Ms F then expressed the view that if the father was able to produce evidence to show that he was drug free, and that there was no risk of violence to the child, then the child should spend significant time with both parents, including time with her father every weekend.
The independent children’s lawyer has proposed that the child spend supervised time with the father until such time as the father produces a clean hair follicle drug test, but that upon such clean drug test being produced, the child’s time with the father be increased on a staged basis.
The mother’s proposal is similar to that of the ICL, but puts forward different timelines said to be more advantageous to the child for “phase two”, which period countenances the commencement of unsupervised time after the first provision of a clean hair follicle drug test.
The mother’s proposal also differs from that of the ICL insofar as the proposed imposition of a requirement that any overnight time is only to be spent at a home in respect of which the father is the lessee, or where the father shares the home in circumstances where it is shared with a de facto (with or without children), and is not otherwise a share home arrangement. The mother also seeks an order that the father complete a Parenting Orders Program with Centacare, and provides a certificate of completion of same to the mother’s solicitor.
The father produced written submissions which in large part vented his anger toward what he perceived to be the mother’s controlling behaviour. His attitude is summed up by the following excerpt from his submissions:
“The courts process of allowing [the mother] to dictate when and how I see [the child] is feeding [the mother’s] control issues and enabling her to continue her abusive behaviour.
I cannot willingly participate in a process that is damaging to [the child].
I will not accept any further drug or alcohol testing of any kind and I will not participate in any supervised visits.
My position is in no way disrespectful to the courts authority it is what I must do to break the damaging control dynamic imposed by [the mother].”The father’s stated reluctance to future drug testing being undertaken by him is an obvious road block to future significant contact between himself and his daughter being resumed.
The father did, however, submit that the following orders should be made:
I request that the court makes the following rulings.
1. That all current orders be dismissed.
2. That [the mother] is ordered to undergo counselling behaviour, to improve her communication skills and her understanding of the necessity for comprise in any healthy relationship.
3. That [the mother] and myself are given equal parental responsibilities for [the child].
4. That [the mother] is ordered to stop recording and eavesdropping on [the child’s] personal conversations either with myself or anyone else.
5. That [the mother] is ordered to surrender both [the child’s] Australian and Country K passports to myself immediately.
6. That [the mother] is prohibited from applying to change [the child’s] name.
7. That my time with [the child] no longer require supervision.
8. That [the mother] and myself are awarded equal 50/50 custody of [the child].
9. That until such time as I have a new home that provides [the child] with her own bedroom, [the child] is at Liberty to see her father anytime she chooses but no less than four hours every weekend.
10. That when I can provide a home where [the child] has her own bedroom she shall be at Liberty to stay with me from after school on Friday to Sunday each week.
11. That’s [the child] is given the right to decide if two nights per week is acceptable to her and that both parents must respect her decision if she wishes to alter this.
12. That [the father] is contacted first at any time [the mother] cannot meet a parenting operations due to illness or work commitment.
13. That this court uses it’s authority to order the dismissal of the current domestic violence protection order.
14. That with my gratitude the court dismisses the icl Ms Bradshaw.
Legislative Pathway
Section 60CA mandates that when making a parenting order, a Court must have regard to what is in the best interests of the child as the paramount consideration.
Section 60CC (1) – (3) of the FLA provides as follows:
60CC How a Court Determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsection (2) and (3).
Note: Section 68P also limits the effect of this section on a court making decisions under that section about limiting, or not providing, an explanation to a child of an order or injunction that is inconsistent with a family violence order.
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the object of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparents or other relative of the child);
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity.
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
This is a case where the need to protect the child, as countenanced by s. 60CC (2)(b) of the FLA, is to be given greater weight when making parenting orders.
As to the s. 60CC (3) matters to be the subject of consideration:
a)the child’s views have been recorded in the Ms F Report. The child stated that she didn’t like having supervised time with her father, and that it wasn’t the same if someone else was there. The child stated that she would like to spend one night per week with her father and that it would be nice to stay overnight, though she noted that the father presently didn’t have anywhere for her to stay. The child said that she didn’t know whether her future contact with her father would be supervised or not as she didn’t know what it was that was unsafe. The child said that spending equal time with each parent would involve her spending too much time with her father. The child stated that she enjoyed spending time with both of the parents.
b)the child’s primary relationships during whole of her life have been with each of the mother and the father. Since separation, the child has spent much more time with the mother.
c)the father has not always availed himself of available time which he could have spent with his daughter. The making of the DVO has made it difficult for the father to attend ceremonies which he otherwise would have been able to attend without difficulty. Had the parents been able to better communicate, the father could have attended the school academic excellence awards night in November 2018. The father had previously attended a sports training in July 2018 [8] but due to what was probably a misunderstanding resulting in the father leaving the school hall without the knowledge of the mother, the father was later required by the mother to attend similar school functions with a supervisor. That has placed stress upon the father, and unnecessary disappointment upon the child, in circumstances where the mother could have facilitated the father’s attendance by first agreeing to protocols with him. The mother should endeavour to do that in the future if possible. There is otherwise no suggestion that the mother has not appropriately spent time with the child, or otherwise participated in the making of decisions concerning the child, or communicating with the child. The mother has fulfilled her responsibility in performing her obligations to maintain the child. The father admitted that he has only made two (2) payments in the nature of maintenance to the mother since separation. The father’s lack of work and professional engagement since separation has no doubt been a factor in the non-payment of maintenance by him.
d)Should the father establish that he is drug free, it is probable that a staged increase in time being spent by the child with the father will result in an enhanced relationship between them. The ball is well and truly in the father’s court in that regard. Such increased time may very well benefit the mother as much as the father if it is established, in the mother’s mind, that the child is safe with her father in circumstances where she enjoys time with him.
e)The father presently is unable to lawfully drive a motor vehicle. Any changeover should occur at the nominated Town C railway station which is easily able to be accessed by each of the father, the mother and the child. That there ought to be hair follicle testing paid for on at least one occasion by the mother is supported by both the mother and the ICL. The Court considers that the mother should be responsible for the payment of the first two tests. The mother is gainfully employed. At the least, her payment for such drug testing should be seen as an encouragement to the father to remain drug free, a state which will not only enhance his health, but also enable him to be more likely to obtain gainful employment.
f)Each of the mother and the father have recognised that the child should be protected from the details of their conflict. So much was said by Ms F. [9] They are each to be commended in that regard.
g)The main hurdle faced by the father in respect of future contact with his daughter is the question of hair follicle drug testing. He must appreciate that it is his responsibility to undertake such testing such that the relationship between him and his daughter can be enhanced.
h)The family violence which occurred was due to in large part to the close interpersonal relationship which existed between the mother and the father when they were living together. That they are no longer living together lessens the prospect of there being future violence between them. The nature of the DVO requires ongoing compliance until 29 January 2020. The parties will need to have regard to the terms of the DVO when working out parenting arrangements. They are each capable of doing so.
[8] Paragraph 127 of mother’s affidavit.
[9] Paragraph 169 of Ms F Report.
Orders
The Court adopts in large part the position advanced by the ICL in this matter. The orders do not countenance the father undertaking a parenting orders program as it is not considered that participation in such program, in the circumstances of this case, would advance matters relevant to the exercise of further time by the child with her father.
It is not contested that the child has a Country K passport in addition to an Australian passport. There is no concern on the part of the Court that the child will not return to Australia to live her normal life if she travels overseas, either with her mother or as part of a school excursion. There is no demonstrated need for having the child’s name placed on the airport watch list.
The Court makes orders in accordance with the above reasons.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Egan
Date: 13 March 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Remedies
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