Benedict & Paisley
[2021] FCCA 1907
•20 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Benedict & Paisley [2021] FCCA 1907
File number(s): DGC 3708 of 2018 Judgment of: JUDGE BURCHARDT Date of judgment: 20 August 2021 Catchwords: FAMILY LAW – parenting – dispute about best interests of 10 year old child – agreement child should live with the father (mother abandoning claims that child should live with her or spend equal time) – critical issue of risk arising from mother’s (denied) use of ice – hair follicle drug tests conclusively proving mother’s use of ice – unchallenged expert reports recommending supervised time until/unless mother is drug free – orders made as sought by Independent Children’s Lawyer Legislation: Family Law Act 1975 (Cth) Cases cited: Goode v Goode [2006] FamCA 1346 Number of paragraphs: 117 Date of last submission/s: 6 July 2021 Date of hearing: 5-6 July 2021 Place: Dandenong Counsel for the Applicant: Mr Moore Solicitor for the Applicant: Guthrie and Associates Advocate for the Respondent: Ms Valentine Solicitor for the Respondent: D M Valentine And Associates Counsel for the Independent Children's Lawyer: Ms Mansfield Solicitor for the Independent Children's Lawyer: Seawater Legal ORDERS
DGC 3708 of 2018 BETWEEN: MR BENEDICT
Applicant
AND: MS PAISLEY
Respondent
ORDER MADE BY:
JUDGE BURCHARDT
DATE OF ORDER:
20 AUGUST 2021
THE COURT ORDERS THAT:
1.All previous Orders be discharged.
2.The parties have equal shared parental responsibility for the child X born in 2017 (X).
3.X live with the father.
4.X’s time with the mother, save for communication by video call or telephone call as provided for by these Orders, be supervised as provided for by these Orders until the mother produces a supervised hair follicle test from the Victorian Institute of Forensic Medicine (VIFM), solely at the mother’s expense, together with any report from VIFM if relevant to (a) below, demonstrating that:
(a)the mother’s hair sample analysis is clear of illicit substances which are not a result of a medication actually prescribed to the mother;
(b)the hair sample analysis covers the period of 4 months immediately preceding the provision of the sample; and
(c)the collection of the sample was conducted and supervised by personnel employed by VIFM or a pathology collection service.
5.Whether or not the mother has complied with paragraph 4 of these Orders, X communicate with the mother by way of video call facilitated by the father or his partner at his direction, on two occasions each week at times to be agreed between the parties and failing agreement at 5.30 pm on Wednesdays and Saturdays with the mother to initiate the call to the father or his nominee.
6.Upon the mother’s compliance with paragraph 4 of these Orders, X spend time with the mother as follows: -
(a)During Victorian gazetted school terms, from 5.00 pm (or the conclusion of day-care/kindergarten or school if applicable) each alternate Thursday commencing the first Thursday following the Mother’s compliance with paragraph 4 hereof, until 8.30 am (or commencement of school/kindergarten if applicable) the following Monday.
(b)During each Victorian gazetted school term holiday periods as agreed and failing agreement, for a block of 4 days/3 nights from 9.00 am on the first day, until 5.00 pm on the fourth day, with the mother to provide the father with at least 28 days’ notice of the intended holiday.
(c)During the Victorian gazetted long summer school holiday period as agreed and failing agreement, for two blocks of 5 days/4 nights from 9.00am on the first day until 5.00 pm on the fifth day, with the mother to provide the father at least 56 days’ (8 weeks’) notice of the intended periods (all of them).
(d)For X’s birthday, as agreed and failing agreement:-
(i)If X is not in the mother’s care on the morning of X’s birthday, from conclusion of school/day-care/kindergarten or 3.30 pm on X’s birthday to 9.00 am or commencement of school/day-care/kindergarten the following day.
(e)For Mother’s Day with the mother, from 5.00 pm the Saturday before Mother’s Day until 5.00 pm on Mother’s Day;
(f)For the mother’s birthday from after school or 5.00 pm the night before the mother’s birthday until 5.00 pm on the mother’s birthday;
(g)For Christmas as agreed and failing agreement: -
(i)In odd numbered years, from 2.00 pm on Christmas Day until 2.00 pm on Boxing Day.
(ii)In even numbered years, from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day
(h)For Easter as agreed and failing agreement: -
(i)In odd numbered years, from 3.30 pm on Good Friday to 3.30 pm on Easter Sunday; and
(ii)In even numbered years, from 3.30 pm on Easter Sunday until 3.30 pm on Easter Monday.
7.The time X spend with the mother pursuant to paragraph 6 of these Orders be suspended so as to allow X to spend time with the Father as follows:-
(a)For Father’s Day with the father, from 5.00 pm the Saturday before Father’s Day until 5.00 pm on Father’s Day;
(b)For the father’s birthday from after school or 5.00 pm the night before the father’s birthday until 5.00 pm on the father’s birthday
(c)For X’s birthday, as agreed and failing agreement:-
(i)If X is not in the father’s care on the morning of X’s birthday, from conclusion of school/day-care/kindergarten or 3.30 pm on X’s birthday to 9.00 am or commencement of school/day-care/kindergarten the following day.
(d)For Christmas as agreed and failing agreement:-
(i)In even numbered years, from 3.30 pm on Christmas Day until 2.00 pm on Boxing Day.
(ii)In odd numbered years, from 3.30 pm on Christmas Eve until 2.00 pm on Christmas Day
(e)For Easter as agreed and failing agreement:-
(i)In even numbered years, from 3.30 pm on Good Friday to 3.30 pm on Easter Sunday; and
(ii)In odd numbered years, from 3.30 pm on Easter Sunday until 3.30 pm on Easter Monday.
8.Pending the Mother’s compliance with paragraph 4 of these Orders, X spend time with the mother up to two hours each two weeks supervised by one of either, at the mother’s nomination:
(a)The father or a family member of the father nominated by the father, at a regular time and venue nominated by the father; or
(b)A professional supervisor or supervision service nominated and, if at cost, paid for by the mother, at a location no further in distance by road from X’s place of residence with the father than B Contact Centre, Suburb C.
9.Both parties remain required to enrol with B Contact Centre, Suburb C if they have not already done so pursuant to the interim Orders made on 27 May 2021, for the purpose of supervision of contact between X and the mother in the event of the mother not having complied with paragraph 4 hereof and the mother nominating professional supervision.
10.Changeovers for the purpose of paragraphs 6 and 7 of these Orders, which are at the commencement or conclusion of school/day-care/kindergarten, occur at the school/ day-care/ kindergarten, and those which do not occur at school/ day-care/ kindergarten shall occur at a location as agreed between the parties in writing and failing agreement at the Town D Sports Club, E Street, Town D.
11.Both parties do all things as required to enrol X at Town D Kindergarten, F Street, Town D for the kindergarten program in 2021 (3yo kinder) and 2022 (4yo kinder).
12.Both parties do all things as required to enrol X at G School in Town D to commence Prep in 2023.
13.The parties will not unreasonably refuse a request for X to attend a birthday lunch or dinner for one of the following:
(a)each parent’s partner;
(b)paternal grandparents;
(c)X’s siblings (including half siblings); and
(d)each of the parent’s partners’ children.
14.The mother attend a suitably qualified psychiatrist, including Dr H if desired by the mother, and comply with all reasonable directions of the psychiatrist for a period of 12 months from the date of these Orders, with:
(a)the psychiatrist to be provided with a copy of the Psychological Assessment prepared by Dr J and a copy of these Orders;
(b)The mother to provide the father with written correspondence from the psychiatrist following attendance for 12 months, detailing the number of appointments recommended by the psychiatrist, the appointments the mother has made and/or attended, a list of medications prescribed and any ongoing treatment recommended by the psychiatrist;
(c)The cost of the psychiatrist appointments is to be borne by the mother.
15.Following the mother’s compliance with paragraph 4 hereof, the mother shall undergo supervised urine drug screens within 48 hours of such request being made by the father via text message, with the mother to obtain gas chromatography/mass spectrometry (GC/MS) confirmation of any positive result and provide the report to the father forthwith.
16.For the purposes of paragraph 15 of these Orders, the father must not request that the mother undergo supervised urine drug screens more than once per calendar month.
17.The mother will bear the cost of the supervised urine drug screens.
18.If the mother fails to comply with paragraph 15 of these Orders the father is permitted to request supervised urine drug screens on a weekly basis for 3 weeks.
19.In the event the mother’s drug screen is either:
(a)positive for an illicit substance, which she is not prescribed at that time or which does not result from a medication which the mother is prescribed at that time according to a report from the medical practitioner prescribing the medication; or
(b)not undertaken by the mother on 3 consecutive occasions (in the manner and within the time required by paragraph 15 of these Orders including being supervised)
then X’s time with the mother shall be suspended for 21 days from the date of the drug screen result or expiry of the time for provision of same, and thereafter, for a further 28 days, X’s time with the mother pursuant to paragraph 6 of these Orders shall occur in the substantial attendance of an adult elected by the father and thereafter the need for substantial attendance fall away, subject to the provisions of these Orders as to the provision of supervised urine drug screens.
20.The parties be restrained by injunction from consuming alcohol in excess of 0.05 BAC or consumption of illicit drugs whilst the child is in their care.
21.Each of the mother and father be and are hereby restrained by themselves, their servants or agents from denigrating and/or criticising and/or otherwise demeaning the other party or any other member of that party’s family in the presence and/or hearing of X.
22.Each of the parties are authorised to receive copies of all school reports and school-related documentation normally sent to parents (at their own expense) and each of the parties shall be at liberty to attend all school and extra-curricular activities in relation to X, to which parents are usually invited, including but not limited to parent-teacher interviews, school concerts and sports days.
23.Each of the parties shall keep each other informed of their current residential addresses, telephone contact numbers and email addresses and advise each other of any proposed changes to these details, no less than 14 days prior to any change, in writing (including by email or SMS text message in the event of emergency).
24.Each of the parties advise the other as soon as possible, but no later than 24 hours after the event, of any serious injury or significant health concern or emergency medical or dental treatment concerning X whilst they are in their respective care, including the particulars of any treatment, and including the name and address of the treating practitioner and each of the parties are authorised to liaise directly with any of X’s treating practitioners.
25.The order appointing the Independent Children’s Lawyer be discharged.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Benedict & Paisley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURCHARDT
This is a parenting dispute about X, who was born in 2017. The parties agree that there should be an order for equal shared parental responsibility. They also agree that X should live predominantly with her father. Where they disagree is about the amount of time the mother should spend with X. The father seeks that the mother’s time with X should be conditional on the provision of clean hair follicle drug tests: most notably, proving that the mother does not use ice. The mother, by way of contrast, seeks time each alternate weekends and half school holidays, and together with special days, with her drug screening to be done by urine test analysis. The central critical issue as the matter has devolved has been whether or not the mother is using ice, something that she vehemently denies. The independent children's lawyer’s position essentially supports that of the father.
For the reasons that follow, I am unable to accept the mother’s adamantine denials of the use of ice, and I propose to make the orders sought by the independent children's lawyer.
AGREED OR UNCONTROVERSIAL MATTERS
The father was born in 1984, and is presently just starting a business on his own in the construction industry, in which he has worked for some time. The mother was born in 1989, and is engaged in home duties. Both of the parents live with partners. In the case of the father, he lives with his now-fiancée, Ms K, and the mother lives with Mr L.
The father and Ms K are renovating a property into which they propose to move relatively shortly, but little is said in the mother’s material about her domestic circumstances.
Both of these parents are no stranger to parenthood. The father has three other children, Mr M born in 2003, N born in 2007, and O born in 2012. All three children were living with him, but Mr M has recently gone to Queensland to complete an apprenticeship. The mother has three other children by a relationship before that with the father, being P born in 2008, Q born in 2009, and R born in 2014. Those children live with the mother.
The mother and father in this case entered into a relationship in 2016 and separated in November 2016. They never really cohabited. The father was not initially made aware of X’s birth, and indeed, put paternity in issue for a brief period of time.
In July 2017, an incident took place which has very much marked the subsequent course of developments. The mother checked into a detox unit with X. That same night, she sought to leave the unit to take X to hospital. She called for the father’s assistance, but he turned up with his mother as he was not in a condition to drive. Following an argument at the roadside, to which it will be necessary to return, the parties spent the night at the grandparents’ home. The following day, the Department of Health and Human Services (now the Department of Families Fairness and Housing) (“the Department”) attended and X was placed in the father’s care, the mother behaving in such a fashion that she was arrested.
Thereafter, there were protracted Childrens Court proceedings, during the currency of which the father’s first application was filed on 2 November 2018.
The proceeding has taken an eternity to get to trial, being substantially delayed by the COVID-19 emergency, and also by the non-provision until the last moment of a hair follicle test undertaken in November 2020. This was provided to the parties other than the mother (whose representative had known about it for a considerable period of time) immediately before a posited trial date, which occasioned a further adjournment and another hair follicle test. That hair follicle test showed the presence of methamphetamine (ice), notwithstanding the mother’s denials of drug use since 2017.
THE PARTIES’ AFFIDAVITS
I have obviously read the file carefully and have regard to all the affidavit material. Much of it is repetitive. Much of it is covered in the agreed matters above.
The following additional points may be noted.
The father’s first affidavit complained in detail about the mother’s alleged failure to attend for the then-extant regime of time on Wednesdays and Fridays, and also each alternate week on Friday till Sunday. He complained of non-provision of urine drug screens on numerous occasions, although some clear screens were provided.
The mother’s responding affidavit, filed 2 January 2019, noted the mother’s history of drink driving and other offences from 2014 onwards. She was placed on a 24-months community corrections order on 23 March 2016, but did not comply, and ultimately the proceedings continued until March 2018. She was put on an interlock for four years. She deposed to using ice in April 2017 and being pulled over by the police and giving them a false name. She deposed that her other children were also removed by the Department when X was removed and given to the father. She expressed concerns about the father’s brother Mr S, and denied being inconsistent in her spending time with X. She deposed to living with Mr L and his daughter T who spends time with them, although apparently she lives in the primary care of her mother.
The mother also deposed to her medical history. She deposed to earlier diagnosis of bipolar, and treatment by Dr H. She deposed to not having consumed drugs since 2017.
The father’s affidavit of 11 March 2020 deposes to the mother providing no child support at all. He deposed to his relationship with Ms K and her son V, who is about eight years old. He deposed to having sold a property in Tasmania and thus being debt free, apart from the mortgage on the farm he has bought in Town W of 24 acres.
The mother’s affidavit of 19 May 2021 deposes at paragraph 13 to the hair follicle test to which I have referred, and her being shocked by that result. She repeated her denials of drug use post-2017.
It is appropriate to turn to the independent reports.
REPORT OF DR J
Dr J is a psychologist who undertook a psychological evaluation of the mother, which is dated on 23 May 2019, and the report is dated 24 June 2019. I note that Dr J assessed the mother as being below average rate of intelligence by estimate (paragraph 2). The report noted at paragraph 5:
Ms Paisley’s half-sister Ms Y died from cancer in 2014 and she discovered her husband was having an affair soon after; it was around this time that she reported going “off the rails”; she engaged in drug and alcohol abuse, and criminal and antisocial behaviour. Although she first tried illicit substances at age 15, her use was irregular until this period of time.
At paragraph (19-21), the report noted:
Ms Paisley described being exposed to disrupted attachment, neglect, family violence, alcohol abuse, and suspected mental health issues as a child. She was largely raised by her half-sister who later died, and maternal grandmother.
She began using substances at age 15, trying a variety of drugs irregularly, however, after her half-sister died and her husband had an affair, she engaged in antisocial behaviour and frequent use of ice and alcohol. She also engaged in criminal behaviour.
Around this time, she was diagnosed with borderline personality disorder and bipolar disorder, however the medication for the latter was not effective. In 2017, her diagnoses were reviewed and she was diagnosed with adult ADHD only. This could explain her elevated mood, rapid speech, and fidgety behaviour during assessment. Ms Paisley is prescribed with dexamphetamine for her ADHD symptoms. She acknowledged being hyperactive and inattentive in the past and said that the medication slows her thought processes. Similarly, when she took ice, another type of amphetamine, she found that it calmed and focused her rather than having the typical effect.
The report went on to assess the mother pursuant to the FSNA – family needs and strengths assessment tool – and assessed the likely risk to the child in the caregiver’s care as a result of neglect and/or abuse as high. At paragraph 38, the report asserted:
The likelihood the children will be exposed to neglect or abuse in the mother’s care was rated as High largely due to historical risk factors. This risk will be greatly reduced it contact and communication with X’s paternal family is well managed, Ms Paisley can abstain from substance use, her partner and sister continue to be supportive, and she continues to engage with services and professionals that can monitor her mental health.
The report noted that the risks would be low, provided that, inter alia, the mother can abstain from substance abuse (paragraph 40) and the report recommended drug testing.
THE REPORT OF MS Z
Ms Z produced a family report dated 15 February 2020.
Much of this has, in a sense, been overtaken by events. I note that at paragraph 48, Ms Z recorded:
Ms Paisley engaged cooperatively during her face-to-face interview. She and responded to questions posed clearly and responded to questions posed without any extreme overreaction. However, her demeanour was different during a follow-up phone interview. She quickly became frustrated and quarrelsome because the writer was unable to support her proposal for primary care of X. She spoke over the writer and perceived the writer was not listening to her points of view. The phone interview became untenable and was ended.
Ms Z recommended that X live with the father and spend time with the mother on alternate weekends, with additional time during holidays.
THE AFFIDAVITS OF DR AA
Dr AA is a medical practitioner, specialising in chemical pathology. He filed two affidavits. The curriculum vitae to his first affidavit, filed 16 March 2020, shows an impressive history in this field. He annexed a letter dated 12 March 2020 which, for these purposes, relevantly asserts:
I confirm that if the subject is taking prescription Dexamphetamine only or Vyvanse (lisdexamphetamine) only, we will find amphetamine only in the hair.
Should the subject be using another substance, this will be detected and reported as a separate finding in addition to the amphetamine.
That is should the subject be taking another member of the class such as methamphetamine (ice)… these are detected and reported as separate findings in addition to the amphetamine which might legitimately be present.
Dr AA filed a further affidavit on 25 May 2021, in which he appended correspondence with the Independent Children’s Lawyer. In an email dated 19 May 2021, relevantly, Dr AA asserted in response to a question as to whether it was possible that the presence of methyl amphetamine could be explained by/consistent with the use of dexamphetamine that is prescribed by a doctor:
Thank you for contacting me with this inquiry, although it should probably be directed to the expert recommended by VIFM.
However the matter in question is commonly asked.
No, users of amphetamine as dexamphetamine will have amphetamine only in their hair and secretions/excretions. Although users of methamphetamine excrete the parent methamphetamine as well as its metabolite (biological breakdown product) amphetamine in secretions and both are incorporated into hair, the reverse is not true.
THE AFFIDAVIT OF MR L
The mother’s partner, Mr L, filed an affidavit on 28 June 2021, after being served with a subpoena. That affidavit deposes to the very substantial financial impost that compliance would give rise to. I mention it only because it says nothing about his circumstances beyond what, apparently, would appear to be a significant earning capacity.
THE EXHIBITED MATERIAL
Exhibit A1 is an excerpt from the LEAP record concerning the events of 5 July 2017. It shows that the intervention order was applied for on behalf of the paternal grandmother and notes that the respondent was voluntarily admitted to a detox clinic and departmental involvement. The text of the narrative proceeds:
AT APPROXIMATELY 11.40 PM ON WEDNESDAY, 5 JULY 2017, AFM WAS TRANSPORTING RES, CHILD AND AFMS SON BACK TO HER HOME. AFM PICKED UP RES FROM DETOX CENTRE AFTER LIAISING WITH DHS THAT THE CHILD COULD REMAIN IN AFMS CUSTODY FOR THE NIGHT AND UNTIL THE MORNING. AFM WAS HAPPY FOR RES TO RESIDE THERE ALSO. WHILST DRIVING ON THE SUBURB BB FREEWAY, AFM AND RES BECAME INVOLVED IN A VERBAL ARGUMENT AS THE RES WAS ADVISED THAT SHE WOULD NEED TO MAKE ALTERNATIVE ARRANGEMENTS WITH DHS. RES UNBUCKLED HER SEATBELT WHILE THE CAR WAS STILL MOVING AND ATTEMPTED TO EXIT THE VEHICLE. AFM STOPPED THE CAR AND CONTINUED ARGUMENT ON THE SIDE OF THE FREEWAY. NIL VIOLENCE, NIL THREATS. AFM WAS HAPPY FOR RES TO STILL STAY WILL HER, AS LONG AS THERE WERE NO ARGUMENTS. NO CONCERNS FOR SAFETY OR WELFARE OF AFM. CUSTODY MATTERS BEING DEALT WITH BY DHS.
Exhibit A2 are records from Dr H the mother’s treating psychiatrist. The first correspondence, dated 7 November 2014, to the mother’s then general practitioner, Dr CC, notes a history of anxiety and depression since childhood and that the mother “presented as a moderately depressed woman without suicidal thoughts”.
I note that on 6 July 2019, Dr H wrote to Dr DD:
I reviewed Ms Paisley today.
She requested a script for dexamphetamine even though she obtained six-monthly scripts on 8 March 2018.
There had been previous numerous requests for early supply. She was fairly insistent but, in the end, accepted my advice that she wouldn’t be getting another script until September this year.
She presented as a fairly assertive woman without overt depressive symptoms or suicidal thoughts. She denied drug use.
In handwritten notes dated 5 January 2018, Dr H wrote:
4/52 ago underwent detox for over a year of daily ice use. Clean for 10/52. “It mellowed me out, helped me concentrate, get things done”.
Dr H also recorded the mother saying, “It sounds strange but I was a better mum on ice”. I note a further note on 29 April 2021, which records the mother “very stressed. Facing charges re: driving without Interlock. Valium and Seroquel will help a lot but GP will not prescribe.” The report suggests that Dr H did, indeed, prescribe, amongst other things, Valium.
Exhibit A3 is a report from Psychemedics in relation to a head hair test conducted on the applicant on 17 June 2021. This records the presence of both methamphetamine and amphetamine.
Exhibit R1 is the final affidavit of the wife, which was not filed, but only adopted in the witness box. It is worth saying that this does not provide any details of the mother’s dwelling or family circumstances in her home. It does confirm that the mother is prepared to engage with Ms EE for treatment.
THE SUBMISSIONS MADE AND EVIDENCE GIVEN AT COURT
What follows is taken from my notes.
Counsel for the applicant father was content to rely upon the written outline already filed as his opening. He referred to the mother’s hair follicle and drug screen test testing positive for methamphetamine.
The father was called and adopted his affidavits as true and correct. He is starting his own business in the next few weeks.
Under cross-examination by Counsel for the mother, the father conceded that when he filed his affidavit on 11 March 2020, he knew little of the mother’s circumstances. When asked what he had learnt since, he said that he had learnt about the drug screens and knows the results now. The test was in November 2020. He has had contact with the mother since March 2020. He agreed that the mother’s urine drug screens were negative and that he had allowed unsupervised time. He said that if he did not think that X was safe, he would not have let her go. He had not picked up on the mother’s behaviour. He confirmed that the parties had lived with his parents in 2015 for three to four years. Then he moved to Town FF. When asked why he and the three boys lived with the grandparents, he said he moved in there so that he could work fulltime. There were Federal Circuit Court orders which were by consent. He said that the mother never did anything to help, so he has had to do everything. His mother helped a lot. His parents had lent him money for legal expenses, but he had paid them back. The boys’ mother had moved to Queensland and there is nothing from Ms Paisley (the mother). He does not exaggerate when he said he does everything.
The father said his mother and sister looked after X while he worked. On the weekends, he undertook activities like camping and fishing. He does not drink a lot on weekends. He was asked how he had found out about the mother’s alleged drug use, as deposed in paragraph 17 of his affidavit filed 11 March 2020. He was unable to recall. It was maybe the Department. It was not one of his brothers. The mother might have told him.
The father said that when the Department turned up, the mother was not good at all. The night before that, they had had the incident with the police when his mother was with them.
It was put to the father that the reason he had attended was to get X to hospital because she was ill. The father said the mother rang him to say she was going to check herself out. It was put that the mother was concerned that she might be split from X, but the father said X was with her. There was nothing wrong with X. It was just the mother did not want to be in rehabilitation. She was yelling and screaming, and wanted to go to her mother. He did not think that this was safe in her condition. He did not know why she called the police. He and his mother suggested to the police that they all go back together, but the mother did not agree. He did not want the mother to take X to her own mother. She was just screaming and yelling.
The Department told him that the mother was kicked out of rehabilitation because she was still using drugs. He heard this in 2017.
He was cross-examined about paragraph 27(d) of his affidavit. He was asked how often he had supervised contact through the Department. He could not remember. It was he or his mum. He was at work. His mother was approved as a supervisor, and he thought his sister was also. He works five days a week, and gets an afternoon off at work. He did the weekends and after work. The mother did spend time during the week.
He was cross-examined about paragraph 32 of his affidavit, and the alleged failure of the mother to complete drug tests. He said it was in the Department report.
He was cross-examined about paragraph 37 of his affidavit. It was put that the mother had four clean drug screens, which showed a prescribed drug of dexamphetamine. The father said this did not cause him concern. Obviously, she needed the medication. It was put that he had prepared an application for orders once the Department withdrew the supervision requirement. The father conceded this, and said there was no encouragement from the Department. He did it himself. Counsel cross-examined about Christmas 2019, when X spent five days and four nights with the mother. It was a trip to Town GG and the changeover was convenient to both of them. Back then, the orders said Town HH. X spent five days and four nights with the mother around Christmas 2019. It was perhaps just after Christmas. The mother’s behaviour was not untoward.
Counsel cross-examined about cancelled visits, as described in paragraph 52 of the affidavit. The father said he a kept a diary back then. His partner had been on the scene since the start of 2018, and she had told them the mother did not attend. It was not just an inconvenience when she cancelled. He had probably changed times twice over four years. She got make up time on each occasion.
There was cross-examination about Ms Paisley’s birthday and, if I understand the matter, the father’s position was that the parties worked that out between them. It was put that the mother was very upset, and called him numerous times. The father said she wanted him to take X to her house, and not meet halfway. He had asked her if she could meet half the way, and there was a solicitor’s letter. He did not remember the correspondence. All she said was, she was having a party for X. She was pretty angry, but was sending mixed messages.
Counsel cross-examined about paragraph 61 of the affidavit, in which she had accused the wife of driving unlicensed. He said, “I seen her car. She was the only one there.” I construed this answer to mean that he had inferred that the mother was driving because her vehicle was present, and there was no one with her.
The father confirmed he had moved to Town FF, and had been there for five to six months when he met his partner. He confirmed that he was debt-free after selling his Tasmanian property, apart from the mortgage on Town W, and that this was true. The title is in his partner’s name, but they both pay for it. He pays $300 per week towards the mortgage, which is also in his partner’s name. When asked if he could point to any behaviour of the mother’s that he had actually seen that caused him concern, the father said there were the drug tests. He only sees her at pickup and drop off. They communicate by text message. They have spoken about X’s future. Ms Paisley wanted 50 per cent of the time, and still says that is what she wants. He got the mother’s affidavit on Friday night.
Counsel then cross-examined about the recent incident where X met her half-sibling in the park, with the paternal grandmother. It was put that he had put the grandmother up to this. The father said his mother lives in Town JJ. She took X and her cousin to the park. Q came up and gave her a cuddle. He did not know until his mother rang him. The mother does not live in Town JJ. He confirmed that there is a kid’s park and a skate park next to each other. The grandmother told Q she could bring him back.
The Father Under Cross-Examination by the Independent Children’s Lawyer’s Counsel
The father confirmed that he relied on his partner’s affidavit. They commenced co-habitation 12 months ago. In the household, there is X, N, who is 13, O, who is eight, and his partner’s son, V, who is eight. They are trying to renovate Town W before they move in. X is in childcare on Tuesday, Wednesday, and Thursday. He is proposing that she attend the same school as his boys. He lives 25 minutes from the school. The mother is about 40 minutes from Town D. He and his partner will move before the end of the year. When it was put that the mother seeks Thursday to Monday on alternate weekends, the father said this was before the drug test. It would be 40 minutes travelling. The mother is unable to get X to school on time. They were talking about R being in the same school as X. R could go to Town D School. Friday after school till Sunday was acceptable.
The father said he has been working on his own behalf for three weeks. He is home by 3.00 pm on Fridays. His partner works part-time from home. She will return to work in Town D. His work is now more local, and his partner does the bookwork. His mother is not very often involved with X. They have a good bond, and she sees her about once per fortnight. His sister lives near his mother and has two children. When asked what would occur if his relationship broke down, he said he would “make it happen.” He would have to return to Mum and Dad. He said, “The kids are my life, and I will make sure they’re good.”
The father confirmed that he had even offered to pay for a hair follicle test for the mother, but she had rejected it. Counsel noted that the test conducted on 16 November 2020 was only revealed on the 18 May 2021. Counsel put it to the father that his affidavit in May had made no complaints of the mother’s erratic behaviour. The father said that he had complained that the mother had been inconsistent in her attendances for time. He agreed that X had never complained that the mother had been absent or angry. He had no reason to believe the mother was using ice until the drug test.
The mother’s partner, Mr L, is his cousin. They do not really talk. They last spoke a few years ago. Mr L has one child, who is maybe nine or ten years old. He has never been inside their house. P and R live with the mother. X talks about them. She has seen X talk with the mother, and had no concerns. There have been no phone calls to the children in the last few weeks. X has not asked to see the mother in the last few weeks. After time ceased, she was a bit funny for the first week, but has been okay since then. X has seen P and Q and given them a cuddle.
He has thought about supervised time. At the end of the day, X is still her daughter. He was prepared to supervise. He wanted some kind of clear proof. A couple of them. She was welcome to come to his home, or they could meet in a park. When it was put there were only two instances where the mother’s behaviour had been problematic, the father also denoted the Department visit. Towards the end of the relationship, she was yelling again. He was not aware that she had ADHD and bipolar at that time. She would not tell him. She had all three children at that time. His family do not see the mother.
It was put that there could be holiday time when X starts school, through a slow progression of time. The father said the five days at Christmas was the longest time in 2019 to 2020. They would need to build up to it. He has had no phone time while X was with the mother.
There was no re-examination.
The Evidence of the Mother
Counsel called her client, who adopted her trial affidavit of 2021 as true and correct, and it was tendered, as earlier indicated, as exhibit R1.
Under cross-examination by Counsel for the father, the mother was cross-examined about text messages referred to in her affidavit of 2 January 2019. She said these messages were on her iPad.
Counsel cross-examined about the incident in July 2017. She recalled it. She had gone in to the facility because of an ice habit. She did not smoke it daily. She had not told the psychiatrist that she did. She told Ms KK she had used ice. It was put to her that she was distressed because she could not use ice in the facility, but she denied this. She had known ice dependency at that time. She had got caught driving on ice, and knew she had to straighten out. Mr Benedict’s (the father’s) ex-partner said to her to be careful how she went about it.
The mother said that she wanted to keep X with her, and that they were all meant to go to the hospital. Counsel went through callout records of the police of that evening on 5 July 2017. Those recorded no arguments about the hospital. The mother said there was an argument because they wanted her to go with them, and she wanted her to stay with her. The LEAP records as indicated were tendered as exhibit A1.
It was put to the mother that the Department attended the following day because she had left the Detox Centre. She said she was not aware the Department was involved at that time. It was put that the leave records said recent drug and ongoing drug habits had led to her going to detox.
The mother’s answers were evasive and non-responsive. But she said that she supposed that was how they referred to it. She had never used ice daily. She took it every second weekend when the children were not with her. She cannot remember where she smoked it. Not over a period of years. She was using it just after her husband had had an affair in 2015.
Counsel cross-examined about paragraph 3 in the wife’s most recent affidavit. She said the Department were called the day she went to detox. It all comes down to her telling the grandmother that she was going to lose her licence. The Department concerns were dealt with when the Department withdrew.
Counsel asked how often her older children spent time with their father. They spend every second weekend and half school holidays and special occasions. Previously it was fifty-fifty. Counsel queried how the wife could pay $3900 a month rent but was unable to pay for drug screens. She says she paid $290 towards rent and her partner pays $307 for a total of $3700 per month. They have a large block of land and she is on the lease. They had been together since 2019. They mixed their finances when they moved to Town LL one year ago. She last smoked ice in 2017. This was right before she went into the Detox Centre. She has not smoked since she completed at the Detox Clinic. The wife appeared to suggest that to the extent that her affidavit suggested she had ceased using ice when the Department had ceased their involvement in November 2018, it was wrong. It was put that she has not stopped using ice and she said this was just an error in the psychiatrist’s letter. When asked why it had taken her three months to do the hair follicle test which was ordered on 17 August 2020, the mother said it was the lockdown. The difficulties finding someone to do it and she was home schooling children. The result did not go to her. She assumed it went to the Court. She did not think she had anything to worry about. She had done urine drug screens. The hair test showing methamphetamines was wrong. When asked why the test in November was not disclosed until May 2021 she said she did not know where the report was going to. When it was put that she knew it had not been sent to anyone else she said that she had never asked. I interpolate and say that the mother’s evidence at this point was, I regret to say, unbelievable.
It was put that the laboratory test results that came out in June showed the same results as the previous test. It was put that the results were a lot higher in the second screen. She said she was not sure how to interpret results. The first hair follicle test had benzodiazepine medication in it and this one does not. She doubted the accuracy of the reports.
The Mother under Cross-Examination by Counsel for the Independent Children’s Lawyer
The mother confirmed that she was first diagnosed with ADHD as a child. She was about 13 or 14. She did not remember the name of the doctor who made the diagnosis. She had tried Ritalin when under the treatment by Dr H, or possibly the doctor before him. She cannot now recall how long she has been on Ritalin. She started with Dr H in 2014 who prescribed drugs for bipolar. She could not remember a letter from Dr H on 7 November 2014. It was possible that she did not see Dr H in 2015 and 2016. She has not been treated for most of the last 20 years for ADHD. She cannot remember if Dr H did any testing. She did a list of her drugs in her most recent affidavit. Dexamphetamine as prescribed by Dr H. She sees him six monthly. She was prescribed Quetiapine by Dr H and it is a mood stabiliser. Diazepam is prescribed by Dr H and is Valium. Codeine is just Panadeine Extra. One answer about quetiapine I did not follow. Lypralin is put on because she has severe carpal tunnel problems in her right hand. She has a hand specialist doctor whom she sees weekly. They prescribe cortisone but she does not see them anymore. She takes dexamphetamine, quetiapine, diazepam and paracetamol daily. On one occasion a chemist had lost her script and she got another one from Dr H. She lost another one in July 2018. She has not used ice since 2017 before she went to rehab. She asked Dr H for a letter. When it was put that she had not asked Dr H to comment on the hair follicle test the mother said that she had texted him after the first result but there were problems with COVID-19. When it was put that there was no evidence to explain the hair follicle results she said she did not know how. She cannot get an answer. She was not aware of Dr AA’s opinion.
I would interpolate and say that the wife’s answers about her continued failure to take the hair follicle test were completely unsatisfactory and unconvincing.
The mother said she spoke to X on Wednesday night. She does not drink to excess. She was done for drink driving twice. She has had no interlock for four years. There are no criminal charges pending. She does not often run out of dexamphetamines. She did not run out in mid-2021. She was caught recently driving without the interlock, but that matter has not gone further.
There was no re-examination.
Final Submissions by Counsel for the Father
Counsel for the father went through the schedule of orders he was seeking. He submitted X had lived with her father since she was three months old. The family report and the report of Dr J are not challenged. They were predicated on the mother being drug free. He adopted the recommendations of Dr J in the event of the mother relapsing. The dispute is about the suspension of supervision. The mother initially sought from Wednesday to Mondays then fifty-fifty when the child goes to school. The father says there should be time from Thursday to Mondays. The mother’s understanding of her conditions is somewhat limited. She does not understand the significance of drugs. Gold standard evidence is the hair follicle test. The evidence is now clear about ice and amphetamines. It was not clear why there was such a delay in reporting the results of the November 2020 drug test. The father was cross-examined about what would happen if there were no test, but the results were kept secret for six months. The mother will say that there are other children in her care. There is no evidence, however, from the mother’s partner or ex-partner about the mother’s home. The father’s orders are safe for X and final orders should be made. X’s primary attachment is to her father and the equal time application should be dismissed.
Final Submissions by Counsel for the Independent Children’s Lawyer
Counsel indicated that overall the Independent Children’s Lawyer supported the father’s position and referred to her case outline. She submitted that, sadly, we are no wiser about the mother’s drug use then we were on 27 May 2021. One would have hoped that the mother would have got evidence in the meantime. X is at some risk in the care of the mother. The mother’s order seeks engagement with the MM Centre. There is no report from Dr H, from the mothers GP or psychologist. The Independent Children’s Lawyer should be discharged rather than retained for a period of time. Ms EE with whom the mother was going to engage should also receive a copy of the report from Ms Z. It was put in round terms that the mother, in effect, needs to step up and address her difficulties herself. Counsel relies upon the report of Dr J and that of Dr AA. The key is the question of drug use. The mother denies this, but two recent hair follicle tests advised contrary. The mother has no cogent explanation. Counsel noted it as worrisome the mother’s reverence to herself, “Being a better mother on ice” made to Dr H. Dr H had not given evidence. Dr J has said there was a high risk if the mother was not drug free. She referred to paragraph 40 of her report in this context. None of the qualifications set out in paragraph 40 of Dr J’s report have been met.
Counsel submitted that the wife’s most recent affidavit had no details about X’s living arrangements. Her partner and his child are not even named. The mother’s affidavit contains much inadmissible material and seeks to deflect responsibility. There was an order made for a hair follicle test as long ago as January 2019. The father offered to pay but was rejected and Victoria Legal Aid funded the test. The father had facilitate time not knowing the mother’s drug use. The mother’s presentation to Ms Z was chaotic. She became irate. The mother’s evidence was given in a scattered way and she had no explanation for the hair follicle tests. Follow up with Ms Z had to be ceased. There was a concern of the lack of information about the mother’s household. It was not clear the previous day what the mother’s case was. She sought equal time from the time X starts school. The Independent Children’s Lawyer does not support equal time and nor did Ms Z and Dr J. It is clear that X has a relationship with her mother, but the bond with her father is clear as described in paragraph 80 of the Ms Z report. The father is supportive of a relationship between X and the mother and will facilitate supervised time. The mother is cavalier about drug use.
Counsel traversed the responses with Dr AA on 19 and 21 May 2021. She noted that Dr AA had said that, ideally, any reports should come from the initial tester. Counsel noted that the mother’s proposed Order 4, as to reports from the mother’s GP were erroneous and the report must be from the laboratory that conducted the tests. The mother’s attitude that she had nothing to worry about is of concern. Counsel noted that there was some goodwill between the parties. The father’s partner Ms K had brought a coffee to the mother and apparently they had offered some help in getting home. Equal shared parental responsibility was supported.
Final Submissions by Counsel for the Mother
Counsel submitted the issues in contention were first if the mother was being truthful about her drug screens and second, regardless, was there evidence to show that unsupervised time would lead to risk. Counsel submitted that neither parent had precise memory. The father had not identified any concerning conduct. There was once at the detox centre on 5 July 2017 when there was an argument about the removal of X, and an altercation on the highway. The LEAP extract, exhibit A1, was a report of the complaint by the parental grandmother. The outcome was that the police decided there was no further action and there was no intervention order application. The parental grandmother mentioned she had been in touch with the Department. They picked up the mother from the detox facility because she was not allowed to leave the child with the mother. This led to an issue with the mother.
Until 2019, the father was reassured by the drug urine tests. There was extensive unsupervised time. The father had considered sending X to the same school to manage risk but then the mother did not get the child to school on time. Only in mid-2019 did hair follicle testing become an issue. The mother’s previous lawyers had ceased, and she was self-represented. The sole focus was hair follicle testing as the most reliable test. There had been squabbles about changeover, but these were insignificant. The mother was not able to address the hair follicle testing issue while self-represented. Ms Valentine indicated it was she who had persuaded the mother to take the two hair follicle tests. It was her practice to circulate drug test requests straight away. They are sent to the client and she then seeks instructions. At the time of the first test in November 2020, it was a busy time. Ms Valentine had been informed that the parties were in discussion, but this did not ultimately resolve the matter. Ms Valentine confirmed in response to a question from the Court that she had elected not to forward the report to the other parties because the parties were in negotiations.
The mother was unshakeable about not taking drugs. The previous day, the mother had noted that the gold standard test by Psychemedics had a negative response for benzodiazepine. No one says what levels of test affect the mother’s capacity to look after children. It was open to the Court to find the mother was not telling the truth but equally open to find otherwise. Nonetheless, Ms Valentine did not seek the Court make the latter finding. The Court can find that there is no unacceptable risk if time is unsupervised.
The use of methamphetamine is not fatal to unsupervised time. It has not led to harm in the past. Neither the father nor the Independent Children's Lawyer referred to the uncontroversial evidence. The other children attend school and they are half siblings with X. Counsel submitted that the mother does not seek to contradict the fact that the two reports have identified the same methamphetamine use (this is not correct as the mother did, indeed, seek to challenge the reports by her reference to benzodiazepine). The mother was unshakeable in her evidence. It is not disputed that there was ample evidence that the mother had engaged in supports offered by the department previously. The parental grandmother had been proactive in the detox incidents, but the police actions were the proper ones.
There was a further incident just before trial where the parental grandmother took advantage of the chance meeting to drive a wedge between the siblings. She had told X that she would bring the children if the mother was not there. In the absence of indications of risk or abuse or neglect, an unacceptable risk did not arise, even if the mother was angry or lied. She sought the mother’s final orders proposed, which were largely drawn on the mother’s expectations (I confess, I found the submissions hard to follow at this point). The father should not be the arbiter of time. The court has power to make final orders subject to continuing involvement of the Independent Children's Lawyer.
In further short submissions, Counsel for the father referred to the father’s concerns at paragraph 50 of his affidavit of 11 March 2020.
SOME BRIEF OBSERVATIONS ABOUT THE WITNESSES
It should be noted that no party sought to cross-examine Dr J or Ms Z. Counsel for the mother initially indicated that she wished to put a single question to Dr AA but subsequently expressly declined the opportunity to do so. Their reports are self-evidently unchallenged.
The father impressed me, as did the mother, as being a poor historian. On a number of occasions, he was unable to recall events because they were said to have taken place so long ago. The time periods involved are not, however, so extensive that the lack of memory was particularly understandable. The father presented as a somewhat inarticulate gentleman and I would surmise from observation that he might well be in the same intellectual range as the mother. His answers were, however, notwithstanding their somewhat inarticulate tenor, relatively straightforward and direct, and I formed the clear impression that he was trying to tell the truth as best he could remember it.
The mother was a less satisfactory witness. Like the father, she was a poor historian and generally inarticulate. Like him, her style of self-expression involved relatively basic English. She was, as I have earlier indicated, on occasions evasive and non-responsive to the questions put, and a number of her answers were simply not believable.
Against these matters, we come to the statutory pathway as set out in Goode v Goode [2006] FamCA 1346 at [65].
In summary, the amendments to Part VII have the following effect:
1.Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2.The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).
3.If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and s 61DA(3)).
4.The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5.When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6.The Act provides guidance as to the meaning of “substantial and significant time” (ss 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).
7.The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8.Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9.The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.The child’s best interests remain the overriding consideration.
PARENTAL RESPONSIBILITY
Everybody agrees that there should be an order for equal shared parental responsibility and, while both parents have some deficiencies, there is nothing in the materials, taken overall, which would suggest that the presumption ought not to be applied. In the circumstances, that is sufficient to deal with this matter, important as, of course, it is.
THE SPEND TIME REGIME - THE TIME X SHOULD SPEND WITH HER PARENTS.
The father’s position, as I have noted, largely supported by the Independent Children’s Lawyer, seeks that X live with him and spend from each alternate Thursday to Monday with the mother, provided that the mother is able to provide clear drug screens as provided in the orders. If not, there would be video call on two occasions a week. The father’s regime also posits half holidays and special days, once again, if the mother is drug clear.
The father’s position is, further, that until the mother complies with the drug screens, the mother spend time with the father, up to two hours each week, supervised.
The mother’s countervailing position is that X should spend time with her forthwith from Wednesday to Monday in each alternate week and that from the commencement of school in January 2022 that time commence each alternate week from Wednesday 10.00 am until 5.00 pm Monday. The mother’s amended response is a little confusing because in subparagraph (3)(b) there is proposed to be an increase, but this appears to me to produce the same amount of time. Her orders are dependent on treatment with Ms EE and urine drug screens.
The Primary Considerations
Everyone agrees, in principle, that it is to X’s benefit to have a meaningful relationship with both of her parents. Nothing more needs to be said in this regard for the moment. Where the parties differ, of course, is as to whether there is a need to protect X from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Pursuant to section 60CC(2A) of the Family Law Act 1975 (Cth), the Court is required to place greater weight on this consideration than on the meaningful relationship with both parents. In truth, this is where the battleground in this case has been. It is inappropriate to address it in an isolated way at this point. It requires to be considered in the light of the additional considerations in section 60CC(3).
The Additional Considerations, Section 60CC(3)(a)
X is, of course, only four years old. She has expressed little in the way of views. When interviewed for the family report – at which time, she was, of course, about a year younger – X appeared very settled and secure in her father’s company (paragraph 72 Ms Z’s report). The observation with the mother was unremarkable but, to Ms Z (paragraph 80) “it seemed obvious that she has a stronger attachment to her father than with her mother”. Given that X has lived almost all her life in the primary care of her father, this is wholly unsurprising.
Section 60CC(3)(b)
In part, this has already been dealt with just above. X appears to have a primary attachment to her father, but there is no doubt that she loves her mother also. It seems clear that X is well aware of and loves her half-siblings who live with the mother and she was very pleased to see them when she did so recently in the company of the paternal grandmother. There is no direct evidence as to how she interrelates with, half siblings with whom she lives and V, Ms K’s son, but there is nothing in the materials to suggest that these relationships are in any way troubling. There is no evidence as to how X gets along with Mr L’s child whatsoever. The evidence of Ms K suggests that she has a good relationship with X, and there is nothing to contradict this as she was not cross-examined. There is no evidence from Mr L as to how he gets along with X at all. X, by all accounts, has an excellent relationship with the paternal grandmother, with whom she has, in the past, spent a lot of time, although, it would seem now, somewhat less. Clearly, the father could not have coped without her.
Section 60CC(3)(c)
There is, self-evidently, little evidence about the extent to which each of the parents have taken or failed to take the opportunity to participate in making decisions about long-term issues. Few long-term issues have thus presented themselves in relation to X other, obviously, than the question of with whom she lives. I note that the father appears to have taken appropriate steps in contemplation of kinder and, later, school, but little seems to turn on this. One area where there is evidence, however, is the question of the amount of time that the parents have taken up their opportunities to spend time and communicate with X. I have no hesitation in finding that the mother’s conduct in this regard has, from time to time, been less than satisfactory. The evidence taken as a whole only goes to support the impression I got from her affect in the witness box while giving evidence. Life presents many challenges for her, and while this is self-evidently not a matter of criticism, it cannot entirely be evaded. She has been unable to take up all of the time that would be available for her to spend with X because of the various difficulties that her own life has presented.
Having made it clear that I do not accept the mother’s evidence as to the amount of times she has failed to attend to spend time with X, I repeat that there is no reason to doubt that she loves X dearly, despite her deficits.
Section 60CC(3)(ca)
The father plainly has stepped up to bat when required. He has looked after X from a very young age. He fully supports her financially. He receives no child support from the mother, whom it should be noted is, in any event, impecunious.
Subsection 60CC(3)(d)
The mother’s application for equal time, let alone her original application for the child to live with her, has now fallen away. If it were not for the instance of risk, the parties’ positions would be relatively similar. The mother would be seeking a 9/5 arrangement and the father 10/4. It might be thought that there is but little to choose. X is, however, very young. She has never spent more than five days and four nights with her mother in her life, and this only on one occasion now some time ago. A move to five fortnights per fortnight is, in my view, contraindicated. She needs the security of the primary attachment that she has developed and the support that the father and Ms K are able to give her.
There is no direct evidence of the extent to which either the other half-siblings who live in the father’s household or the half-siblings who live in the mother’s household would or would not be affected by either of the two time regimes proposed, or the very limited time that would occur in the event that the father’s case is ultimately successful. I note that there is no challenge to the father and Ms K’s evidence that X gets along well with the children with whom she lives in the father’s household. There is limited evidence, which I nonetheless accept, that X misses the half siblings who live with the mother.
Subsection 60CC(3)(e)
There is no great practical difficulty or expense involved in what one might describe as the parties’ primary positions in the event that the drugs risk is set aside. Parties do not live all that far apart in the scheme of things. The mother appears to have re-partnered with a person who is well in funds and there is nothing to suggest finance presents a particular difficulty for either parent on any of the outcomes that the court might impose.
Section 60CC(3)(f)
In the context of this case, this subsection is particularly important. The father is well able to provide for X’s needs, including her emotional and intellectual needs. He has done so effectively all her life and X appears to be thriving. It is, of course, a fact that the father allowed the mother to have substantial amounts of unsupervised time prior to being made aware of the hair follicle test results. Counsel for the Independent Children’s Lawyer, I believe, described him as possibly slightly naive in this regard. I will turn, in the next subsection, to deal with the issues of the parties’ history. There is nothing to suggest that Ms K is not capable, as may be required, to provide for X and her needs and, although she no longer – apparently –is the scene as much as she was previously, I have no doubt the paternal grandmother is, subject to a somewhat negative view of the mother and, perhaps, an inability to keep that view from the children, able to do so also.
The mother’s capacity to provide for X’s needs is, as I will explain, compromised by the risks associated with her lifestyle and drug use. Once again, I repeat, there is no evidence of any sort as to whether Mr L is or it not able to make any appropriate contribution.
Section 60C(3)(g)
This is, of course, the critical subsection in the light of the evidence in this case. Both of these parents came to parenthood relatively young and they have certainly engaged in it on multiple occasions with multiple partners. One might surmise that they are not yet finished. Both of the parents struck me as being, by nature, somewhat inarticulate, and their fashion of speech suggested relatively average intellectual capacity. The father, however, has always been – until he became recently self-employed – in gainful employment, and the tenor of his evidence suggests that his endeavours as a self-employed person are likely to succeed. The fact is that the father has been able to buy a property, which he is renovating, he has been sufficiently organised to own a property in Tasmania, the sale of which otherwise removed his debt, and that he is in a secure, it would seem, and ongoing relationship.
This brings us to the mother’s circumstances. Having heard the evidence and seen the materials, there is no doubt that the mother was using ice in 2017. She has had, as the materials show overall, a very difficult and distressing childhood, and her life has not been easy. These are all matters for sympathy and not criticism. Nonetheless, she was using ice in 2017. Her endeavours, as it were, to blame the paternal grandmother for having to go to detox are of concern. Likewise, her remarks to Dr H from time to time that ice, as it were, made her a better mother. Having gone to detox, she decided to discharge herself on the first night even though the Department were already involved (although she did not know this).
The paternal grandmother very properly, together with the father, was not prepared to allow the mother to take the child to her own mother because of the behaviours she was exhibiting that night. I have no doubt she was yelling and screaming. It appears more probable to me than otherwise that she did, indeed, as the report to the police suggested, try to unbuckle her seat in order to get out of the car while it was moving. Small wonder that an argument burst out. It is noteworthy that although the police took no further action, the end point of this episode was that the father and his mother’s will prevailed and that the mother spent the night at their home.
The next day, the Department attended and enforced the placement of X into her father’s care. The mother so conducted herself that she was arrested.
True it is that these events were some time ago. Nonetheless, the mother’s attempts to deflect and dismiss her conduct on that occasion remains a significant concern. It would be far more encouraging if she had been able, fairly, to acknowledge the nature of her behaviour. There is no question, of course, that punishing the mother in any fashion for advancing a version of events that is so palpably untrue, but her lack of self-control simply cannot be put entirely to one side.
The mother still uses ice. True it is that she conducted a number of urine screens which were not decisively disclosive of the use of methamphetamine. But the fact is, as the Independent Children’s Lawyer rightly says, that endeavours were underway for a very long time to get the mother to undertake a hair follicle test. For reasons that remain wholly unclear, she rejected the father’s generous offer to actually pay for one for her.
When she finally got one in November, it must have been obvious to Ms Valentine that the results were injurious to her client’s case. Nonetheless, she elected, as she candidly conceded, not to make these known to the other parties because the parties were in discussions. This course of conduct is most unfortunate. It self-evidently represents a deficit in the proper role of the solicitor for the mother. She ought reasonably to have known that the revelation of the mother’s ice usage in this test was a very significant matter for that case and in the overall outcome of any negotiations that were taking place. It is entirely reprehensible that the result was not made known until May 2021, and this, of course, brought about the aborted trial that was then due to take place.
The mother had a second test and it is clear that, once again, methamphetamine has been detected despite the mother’s denials. Counsel for the mother emphasised strongly the mother’s adamantine denials of use of ice since 2017. Some glancing challenge was sought to be made to the evidence of Dr AA, which, in my view, was clear and unequivocal, by reference to the non-detection of benzodiazepine in the second test. There are a number of difficulties with this assertion. First of all, there is no direct evidence as to whether or not the second test was designed to test for benzodiazepine. More importantly, and accepting that it might have been thought likely to show up, there is no compelling or irrefutable evidence that the mother was, in fact, consuming benzodiazepine at the time. She has sworn as to her daily drug use, but I found her answers disorganised and unpersuasive. The reality is that the court has a test taken recently and another test taken in November last year that show, beyond doubt, in my opinion, that she has been using ice despite her adamantine denials.
The importance of this finding simply cannot be put to one side. It is said that there has been substantial unsupervised time during the period that the mother must be taken to have been using ice and that she has other children in her care. This, of course, is true, as far as it goes, but it does not go far enough. First of all, it is not enough to say that a person who is using that drug known to be so personality-distorting as ice has not thus far placed the child at risk. I accept, of course, that the mother loves the child and would not wittingly set out to harm her. Nonetheless, if she was to take ice while the child was in her care, there is simply no knowing what may occur. This difficulty is made all the more difficult by the mother’s continued and strong denials of her use of the drug. In a rather desperate sort of way, the more she denies it, the more the concern arises. I repeat: her evidence that she has not used drugs since 2017 is simply not made out on the evidence and this denial only goes to reinforce the question of risk which stood at the forefront of the position, most particularly, of the Independent Children’s Lawyer.
Second, while it is true that the mother has three other children in her care, there is, as the Independent Children’s Lawyer rightly submits, no evidence whatsoever from her partner, or even indeed from her, as to the particular circumstances and care of these children.
The matters to which the mother points simply do not dissipate the risk that, in the ultimate, even her Counsel concedes the Court might be likely to find exists. This is a decisive consideration.
Section 60CC(3)(h)
This is irrelevant.
Section 60CC(3)(i)
The father has displayed an unremarkable and appropriate attitude towards the responsibilities of parenthood. While of course he has had to work full-time to support himself and the child, and has been dependent first upon his mother and, more recently, upon Ms K to enable him to do so, there is no doubt that he has applied himself properly and has an appropriate attitude towards being a father. The mother’s attitude is, understandably, loving towards X. In a sense, I accept that she has done her level best throughout, but she has come up short as a result of her tendencies and has, on occasions, behaved very stupidly. I note recently she has been found to have contravened the conditions relating to her driving, albeit that it would appear that no present criminal charges are underway. This sort of attitude only goes to buttress the questions of risk to which I have referred to in the previous subsection.
Section 60CC(3)(j)
No party has suggested that family violence in the sense of any kind of physical chastisement plays any role in this case. The relationship between the mother and father was so short-lived and shallow that there was but little occasion for family violence in any other form to have much effect, and I do not understand either side to really press this point.
Section 60CC(3)(k)
They have, of course, at least one intervention order in this proceeding, if I understand the matter rightly taken up by the paternal grandmother against the mother. Whatever the status of that, at any stage, there is no suggestion that any intervention orders presently operate upon the court’s deliberations.
Section 60CC(3)(l)
The mother seeks that interim orders be made and that, as it were, the mother be given the necessary opportunity to prove that she is drug clean. Such matter to be, as it were, supervised or overseen by the Independent Children’s Lawyer. The Independent Children’s Lawyer and father seek final orders disposing on the matter now.
I can put my conclusion shortly. This matter has been in the court since 2018 and it needs to end. It is eminently in X’s best interests that her parents have removed from them the ongoing stress of further legal proceedings. Furthermore, I accept the submission of Counsel for the Independent Children’s Lawyer, which is it is indeed time for the mother now to step up and help herself. She says that the father ought not be the arbiter, but it is not a question of that. The proof that the mother is going to be required to provide pursuant to the orders I am going to make is objective, straightforward and simple. It can either be provided or not. The mother does not need the assistance of the Independent Children’s Lawyer to address this in respect of the matter.
CONCLUSION
As may be apparent from the discussion of the matters above, it is overwhelmingly clear, taking all of the relevant considerations into mind, that the orders proposed by the Independent Children’s Lawyer are those that are in X’s best interests. The risk arising from the mother’s unfortunate drug use and even more unfortunate resolute denial of it lead to no other conclusion.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burchardt. Associate:
Dated: 20 August 2021
Key Legal Topics
Areas of Law
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Family Law
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Evidence
Legal Concepts
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Natural Justice
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Procedural Fairness
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Remedies
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Duty of Care
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Negligence
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Expert Evidence
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