BENNETT & ROBERTS

[2015] FamCA 1139

FAMILY COURT OF AUSTRALIA

BENNETT & ROBERTS

[2015] FamCA 1139

FAMILY LAW – CHILDREN – Application by father to spend time with and communicate with child – Allegations of drug and alcohol abuse – whether child is at unacceptable risk in the unsupervised care of the father – Orders that child live with the mother – Order that mother have sole parental responsibility for the child subject to certain conditions – Order that father spend supervised time with the child – Order that there be communication between the father and child as agreed in writing between the parents.

Family Law Act 1975 (Cth) s 60CC

Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038
APPLICANT:	Mr Bennett

RESPONDENT: Ms Roberts

INDEPENDENT CHILDREN’S LAWYER: Mr Patrick Fitzgerald

FILE NUMBER: HBC 59 of 2013

DATE DELIVERED: 18 December 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 28, 29 & 30 September, 1 & 2 October, 2 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Turnbull

SOLICITOR FOR THE APPLICANT: Ogilvie Jennings

COUNSEL FOR THE RESPONDENT: Mrs Mooney

SOLICITOR FOR THE RESPONDENT: Women's Legal Service

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Fitzgerald

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission

Orders

1. All previous parenting orders in respect of the child A born … 2011 (‘the child’) are discharged and vacated as and from the date of this Order.

2. Ms Roberts (‘the mother’) shall have sole parental responsibility for the child, subject to:-

   (a)such sole parental responsibility does not include changing the child’s name;

   (b)the parties ensuring that the child’s school and medical records show that both the father and the mother are entitled to information relating to the child; and

   (c)the mother keeping the father informed of any major long-term issue she makes or proposes to make with regard to the child; where reasonably possible in advance. 

3. BY CONSENT The child shall live with the mother.

4. The child shall spend time with the father:-

   (a)As and from the date of this Order up and until 2016 the child spend supervised time with the father one day each calendar month:-

   i.such time to be supervised by and at the X Contact Service; for up to four hours until June 2016; and then for 6 hours from July 2016 to December 2016, as long as the Service can make itself available to accommodate that time.

   ii.in the event that the X Contact Service are unable or unwilling to accommodate such time, the father shall spend time with the child such time to be supervised by an employee of Y Child Care Service (or similar service agreed between the child’s parents) for one day each month for up to four hours until June 2016 and then for six hours from July 2016 to December 2016, as is specifically arranged by the parties.

   (b)In addition, as and from the date of this Order, the child will spend supervised time with the father for six hours on Father’s Day and four hours within seven (7) days of the child’s birthday and Christmas Day. Such time to be supervised in accordance with order 4(a) above.

   (c)As and from 7 January 2017 the child shall spend supervised time with the father one Sunday each fortnight from 9.00am to 5.00pm (excluding Mother’s Day if the Sunday falls on that day, with makeup time the following Sunday); such time to be supervised in accordance with order 4(a) above.

5. Such other and/or alternate times as is agreed between the parents.

6. The father is to meet the costs of any supervision.

7. Communication between the child and the father as is agreed in writing between the parents.

8. BY CONSENT by way of injunction the father not use or be affected by alcohol or illicit drugs substance whilst the child is in his care

9. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

10. Following the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits (except for the parties’ case summaries, submissions and expert reports) are returned to the person or persons who tendered the same.

11. All extant applications, except costs applications, be otherwise dismissed and these proceedings be removed from the list of cases awaiting finalization.

12. Leave is given to the parties to relist the proceeding for mechanical orders (if the parties are unable to agree on the process of such time) for a period of one year from the date of this order

13. Any costs application may be dealt with in accordance with the Family Law Rules 2004 (Cth).

14. The appointment of the Independent Children’s Lawyer be discharged twenty eight (28) days from the date of these orders or such other time as is ordered if an appeal is lodged.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bennett & Roberts has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 59 of 2013

Mr Bennett

Applicant

And

Ms Roberts

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. The consequences of sexual abuse of children have far reaching impacts on those victims.  In this case both parents had been sexually abused as children.  As is often the case, the suffering and consequences for each such victim has been profound but different. They carry these burdens into adulthood.

2. Ms Roberts, (‘the mother’) grew into a responsible member of the community who has parented four children; R, N, D, and A (the latter being the child the subject of these proceedings (‘the child’)).

3. This proceeding is about how the Mr Bennett (‘the father’) should exercise parental responsibility (if at all), communicate and spend time with the child; in the context of an assertion that;

   (a)he constitutes an unacceptable risk of harm to the child; and/or

   (b)his unsupervised time with the child would cause such emotional and psychological harm to the mother that it would be likely to impeach her ability to parent the child and her other children.

4. The evidence is that the mother is a fine parent, she works hard with her children and has guided two of them through their teenage years.  She is managing D through her teenage years.  She is enjoying, but often exhausted by, the child, who has just celebrated her fourth birthday.

5. The father has not managed his transition to an adult as well as the mother.  He abused alcohol, having commenced drinking alcohol somewhere between ages twelve and fourteen.  He first became intoxicated at age sixteen.  He has abused alcohol throughout almost all of his adult life, but now asserts that since 4 January 2013, he has not consumed any alcohol in any form.

6. In addition, in his late teens, the father began using illicit drugs. Since that time he has abused many forms of illicit, prescription, over the counter and synthetic drugs; these include amphetamines, cannabis, synthetic ecstasy, ecstasy, synthetic cannabis, opiates and the like. He asserts that he became drug free on 4 January 2013 and that he remains drug free. 

7. The father is a health professional and on a number of occasions has had his licence either suspended or made the subject of conditions, given that he has stolen drugs from his employers including using drugs that were otherwise meant for patients.

8. The parties met in 2005 and for the father this was the first real intimate relationship in which he had engaged as an adult.  The mother fell in love with the father, and they endeavoured to create a life together.

9. They lived together until September 2012.  That period of six or seven years could best be described as a living hell for the mother and her children.  The father lied to her, lied to his employers, lied to professional regulatory authorities and lied to himself.  He abused drugs and he abused the love and support that the mother had offered to him.  He exposed the mother and the children to his drug and alcohol culture and his personal excesses and behaviours arising from those additions.

10. On occasions he emotionally blackmailed the mother.  The mother shared her financial security with him and as a consequence they bought a home which was lost and the mother’s financial security evaporated with it.

11. During the course of this time he promised much in terms of rehabilitation as to drugs and alcohol but time and again these promises vanished to nothing.

12. At the time of the parties’ separation the child was not yet aged one. 

13. The mother had developed a mistrust of the father during their relationship.  This increased afterwards due to the father’s lack of frankness in these adversarial proceedings.  As consequence of the father’s alleged untruthfulness and deceit, the mother continues to distrust him and genuinely fears for the wellbeing of the child in his unsupervised care.

14. The mother has been provided evidence that the father has been drug and alcohol free for some time, but she rejects much of that evidence given his behaviour beforehand.  She has seen him go to work and come from work whilst intoxicated by alcohol or affected by drugs, she has seen him operate at a high level as a health professional in this state and she says that she has heard his excuses and promises before.

15. The consequence, when the child spends unsupervised time with the father, is that the mother’s ability to parent the child is severely compromised by chronic stress and anxiety.  This was not cured by ‘habituation’ when the father had unsupervised time in the second half of 2014.  To the contrary, her distress and anxiety became worse.

16. It is in this context that a decision has to be made as to what time the child spends with the father, whether that time ought to be supervised, and if so for how long.

17. For the sake of the readers, I add that this summary was prepared after completion of the reflection and thinking and the reasons set out below.

18. Both of the parents and the Independent Children's Lawyer agree that the child should continue to live in the mother’s primary care. I have made that consent order.

19. The child is aged four and was born in 2011 and at present the child is spending supervised time with the father.  The precise orders the father seeks were set out in his case outline[1] and in essence those orders are that:-

    (a)the father and the mother have equal shared parental responsibility for the child;

    (b)his time with the child increase until it reaches a stage where the child spends each alternate week with him from 9.00am Wednesday until 9.00am Friday in week one and then from 4.00pm Friday to 4.00pm Sunday in week two;

    (c)he spends time with the child on special occasions including one half of the school holidays (once the child commences full time school), the child’s birthday, Father’s Day, Easter holidays, Christmas holidays and the like;

    (d)the mother authorise him to correspond and communicate with the child’s medical practitioners;

    (e)the mother be restrained by injunction from denigrating the father, and that each party keeps the other informed of the child’s general health;

    (f)there be communication and between himself and the child; and

    (g)he consents to an injunction being made against him that he not use or be affected by alcohol or illicit substance whilst the child is in his care;  I have made that consent order.

    [1] Exhibit F1.

20. The mother opposes the father’s application.  She seeks orders that:-

    (a)she have sole parental responsibility for the child;

    (b)the child live with her;

    (c)she will keep the father reasonably informed as to the child’s educational and medical status;

    (d)the father spend supervised time with the child two hours every calendar month, at the X Contact Centre or such other Contact Centre as may be arranged.  This time to grow but remain supervised; and

    (e)the child spend supervised time in advance of the child’s birthday, Father’s Day and Christmas Day for a period of two hours.

21. The father filed a contravention application on 27 May 2015.  At the commencement of the trial counsel for the father withdrew that application and it was dismissed.  The Court has taken into account the relevant facts which had otherwise supported that application.

22. At the conclusion of the hearing the Independent Children's Lawyer submitted, that if I accept the evidence of the Family Consultant (which evidence, from that set out later in these reasons, I generally do accept, particularly in the context of the other evidence and findings) then there ought not be a graduated move to unsupervised time between the father and the child at this time.  In the alternative he submitted, that if I did not accept that evidence then time should move to graduated time.

THE ISSUES

1. There are a number of issues which the Court had to determine.  These fell into the following categories:-

   (a)whether the impact of the child spending time with the father would be such as would undermine the ability of the mother to care for the child.  This would need to be seen in the context of the mother’s broader family, including her daughter D;

   (b)whether the father’s care of the child into the future, in an unsupervised manner, would expose the child to unacceptable risk of harm, abuse, violence or neglect, having regard to the matters alleged against the father by the mother; and

   (c)as a sub-set of the above, it was asserted that the father had failed to provide accurate and/or adequate histories to the medical specialists whom he saw for therapeutic treatment and whom he saw for the forensic purposes of this hearing.

2. These proceedings were originally commenced in the Federal Circuit Court but were transferred to the Family Court in February 2015 given that the original estimate for the trial was between one and two weeks.  An Independent Children’s Lawyer was appointed and he participated in these proceedings.

BACKGROUND

1. At the time of hearing the father was aged 44 and was employed as a health professional, albeit with limitations and conditions on his professional registration.  He deposed:-[2]

   About … 2012, I returned to work at the … Hospital with strict restrictions including that I cannot administer scheduled drugs.  I have been reviewed since returning to work, and my supervisors are happy with my progress.  I continue to work with restrictions; however, this does not impact on my work.

   [2] Paragraph 79 of the father’s affidavit filed 11 August 2015

2. At that time he shared rented accommodation with a friend, but by the date the proceedings concluded he was living alone.

3. The mother was aged 43 at the time of the hearing. Her occupation was that of a health paraprofessional.  She is the mother of four children, including the child.  The other three children are D, who at the commencement of the trial was aged 14, R aged 26 and N aged 19. D and the child live with the mother in rented accommodation in Hobart and N was to resume living with his mother and sisters in November 2015.

4. When the father was aged about 21 he spent two weeks in some form of detox or rehabilitation unit. 

5. In 1995 the father spent eight or nine months in rehabilitation.  He asserted he was free of drugs until he commenced studying for his professional qualifications at University in 1997.  The father completed his professional training in 2001.  He admits he became engaged in the abuse of drugs and alcohol during his time at university.  In May of 2003 he entered rehabilitation in Queensland for a number of months.  In 2003 the father was charged with and convicted of two offences in Queensland arising out of drink driving convictions and lost his driver’s licence for a period of time.

6. The father moved to Tasmania in about December 2003/January 2004 and commenced work at the Z Hospital in June of that year.  About one year later he was admitted to the Hospital with an accidental overdose of prescribed medication and alcohol after a social function.

7. In July 2005 the father entered a further rehabilitation program.

8. In August 2005 the father’s professional licence was suspended and his authority to administer drugs was likewise suspended.[3]  That notice has never been lifted.  The father concedes that he has not had permission to administer drugs under the State Law since that time.

   [3] Independent Children’s Lawyers bundle page 560.

9. In late 2006 the father commenced a relationship with the mother.  In the same month he was conveyed by ambulance to W Hospital under the influence of alcohol, cannabis and valium.

10. The father was anxious to have his licence fully restored and commenced an application in that regard.

11. In early 2007 the mother and father acquired a rental property at Suburb T, which they subsequently purchased.  They commenced cohabitation in April 2007.

12. In September 2007 the parties were holidaying in City H.  There was an argument between the parties, to which I will refer to later, and the father left early, leaving the mother with limited resources in that city.

13. By 2007 the relevant professional organisation released the father from his undertaking and an amended certificate was issued enabling him to work as a professional, he deposed:-[4]

    By late 2007 I was permitted to undertake night duty work.  Around this time the [relevant professional organisation] dropped all [their] restrictions and my advice was I was able to undertake work on an unrestricted basis as a [health professional] and did so.

    [4] Paragraph 41 of the fathers affidavit, filed 11 August 2015.  

14. The father was admitted to the Z Hospital on 10 August 2008, by his account, he attempted to jump from a high structure. 

15. The mother commenced training as a paraprofessional in 2009 and later that year there was a short separation between the parties. 

16. In about March 2011 the mother informed the father that she was pregnant with the child and an argument ensued.  There is an issue as to the cause of that argument, but not an issue that the father punched a hole in the wall.

17. In August 2011 the father was working at an aged care facility and was given a written warning in relation to leaving a medication trolley unattended. He later transferred to another nursing home.

18. On 30 November 2011 the father’s employment was terminated as was his licence as a health professional.  The father had been abusing alcohol and drugs at various times over the preceding years.  In 2011 and at least part of 2012 he was, at times, out of control with his alcohol drug use.

19. Between 19 January 2012 and 30 March 2012 the father was admitted to a detoxification unit and then to a rehabilitation service.

20. The parties’ relationship was under considerable pressure, particularly through 2012.  In August 2012 the parties separated under the same roof and they physically separated in September 2012.

21. For a period of time between May/June 2012 and September 2012 the mother was working three mornings a week.  She missed some work as she stayed home because of her back problems.  The father looked after the child, unsupervised, for a number of hours those days.  The father spent unsupervised time with the child on Father’s Day in September 2012.

22. After those times when the father wanted to see the child, the mother requested that this occur at the X Contact Service.

23. The father asserts that from 4 January 2013 he has not used any illicit drugs or alcohol.  The father completed a Parenting Orders Program in February 2013. 

1. The father became bankrupt in 2013 and as a result of the financial circumstances surrounding these events the parties’ home was sold and the mother was solely left with a significant debt.

2. In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.

THE LAW

1. The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-

   (1)    The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent

   consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

3. The torturous terminology of the section is thus that the Court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.

4. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, s 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and s 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.

5. The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-

   (1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   (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 objects 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).

   (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 grandparent 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);

   to provide for the needs of the child, including emotional and intellectual needs;

   (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.

THE EVIDENCE

The father

1. The father relied upon three affidavits: his trial affidavit filed 11 August 2015, his affidavit of 24 May 2015 filed in support of his contravention application (now dismissed) and his affidavit filed 28 August 2015 in relation to an alleged home invasion.

2. The annexures to the father’s trial affidavit were tendered in evidence, subject to weight.[5]

   [5] Exhibit F2.

3. The father amended paragraph 31 of his trial affidavit by saying that he did use marijuana in September 2012.  The father gave evidence that he initially tried to get on with N and gave some examples of times they shared together.  He said his relationship with N was the same as the mother’s and D’s.  For the reasons set out elsewhere in these reasons I do not accept the veracity of that evidence.

4. The father said that he did not criticise the mother nor was he nasty to her.  For the reasons set out elsewhere in this affidavit I do not accept the veracity of that evidence.

5. The father gave evidence, in chief, that around the time of separation he engaged in behaviour where he tried to scare N by banging on the window of the caravan where N was sleeping.  The father conceded that at that time he was ‘stoned’ [on drugs] and drunk [on alcohol].

6. Hearing his evidence one would be forgiven for thinking that this was a practical joke between a teenage boy and an older person.  However given the clear animosity that existed between the father and N it ought to be seen in a more sinister and damaging circumstance.

7. That the father would engage in the activity of involving the mother’s other children in marijuana and engaging with these children when he as the ‘so called’ the adult was affected by drugs and alcohol gives an insight into the father’s irresponsible behaviour at that time.

8. Much was made of the father’s interaction with two gay men at the time the marriage was breaking down.  It was lawful conduct and whilst that may have been hurtful to the mother it has no significant weight in terms of these proceedings, except in terms of the father’s piecemeal disclosure  of it to the mother. That piecemeal disclosure added to the mother’s post separation concerns that the father continued to be dishonest with her, thus adding to her anxiety. 

9. The father gave evidence that he did not access pornography, contrary to an assertion made by N.  He gave evidence that the mother had known about his looking at pornography and had simply asked him to stop.  I do not accept that evidence.  I accept that the father had been accessing pornography on a family computer which was available to members of the family and was endeavouring to deflect blame for this onto others rather than accept responsibility himself.

10. Two days before the birth of the child the father had lost his job in the most difficult of circumstances where he had abrogated his responsibility to the family and his responsibility as a health professional.  He denies he lost interest in the child at that time, but I do not believe him.

11. Given the evidence of the father and the evidence of the mother, I am satisfied the father had limited time with the child and that when he was extended his responsibility for the child after about May or June 2012 he was irresponsible in terms of being either affected by drugs (illegal, illicit or otherwise, but no doubt abusing them) or being intoxicated.

12. The father gave evidence regarding the discrepancy arising out of the different ages reported by the father to the different doctors of when he began to consume alcohol.  There was an issue as to whether he started using alcohol at 12, 13 or 16.  Not much swings on this except for the inconsistent histories he has given various doctors.  Alone this may not have been a problem, but as part of an approach adopted by the father it is somewhat troubling.

13. In terms of his first attendance at rehabilitation, the father was less than frank with many of his doctors about that event.  The father conceded in evidence that at 21 he was in rehabilitation or detox for about two weeks.  At about 24 he spent eight or nine months at K Service for his second involvement in rehabilitation.

14. At age 25 the father went to a health retreat and was there, he said, as a worker, although there was one occasion when he went away from there and abused alcohol or drugs.  He said he was clean for a period of about three or four years. In his trial affidavit[6] he says:-

    In approximately 1998, colleagues and fellow students introduced me to Speed and Ecstasy.  Initially, I would use the substances, occasionally, in a social setting.  However after a couple of years it became an abuse situation which I coupled with binge drinking.

    [6] Paragraph 28 of the father’s affidavit filed 11 August 2015.

15. The father says that after he graduated from nursing in 2001 he continued to abuse drugs and alcohol.

16. In Easter 2003 he fell asleep at the wheel of the car and was charged with drink driving and was placed on a good behaviour bond. In May 2003 he entered rehabilitation in Queensland for the treatment of alcohol, Valium, speed and ecstasy use.  The program ran for approximately two months.

17. The father wanted to move to Tasmania in July 2003, but the night before he left Queensland, his father and his brother took him to a hotel for a drink and on his drive home he was caught and charged with drink driving.  As a consequence his licence was suspended and he was fined.

18. After arriving in Tasmania he obtained employment at the Z Hospital.  He says that by 2005 he was feeling lonely and socially isolated, and that in the course of his employment he took and used ‘left over morphine’ subcutaneously.  The father said he abstained from using drugs for six months when first in Tasmania.

19. In his trial affidavit[7]  the father did not give evidence about his other drug use.  He denied at that time that he was stealing medication from patients and replacing it. In the book bundle there is indication that the father took Endone, but he denied this.  Given the documentary evidence, I am troubled by this denial.[8]

    [7] At paragraph 25.

    [8] Book Bundle (Exhibit ICL4) 570.

20. The father was interviewed by Dr S and did not provide him with a complete history.  In his discussions with Dr S the father omitted to disclose his use of amphetamines and ecstasy. 

21. A snap shot of the father’s drug use, at that time, was contained in an ambulance report of 5 June 2005 where he was hospitalised after taking alcohol, ecstasy and potentially Endone (Morphine), plus he took 14 Temazepam.  The father did not mention that event in his trial affidavit.  His explanation was inherently implausible.    

22. The father’s permission to administer drugs to patients was suspended by delegated authority under the Poisons Act 1971 (Tas).[9]  In numerous and consistent ways the father has been acting in breach of that notice on regular occasions since that time.

    [9] Ibid page 550.

23. The father saw Dr J and provided some history.  This history was also deficient.[10]

    [10] Ibid page 558.

24. The father was trying to re-establish his licence as a health professional.  The father asserted in his trial affidavit[11] that he had mostly abstained from using alcohol and drugs for approximately eight to twelve months.  He had been prescribed a drug for anxiety.  During that period he had two drug tests which showed positive for amphetamines, one in May 2006 and one in August 2006. His assertion in the affidavit was unreliable.  It is significant that Dr B says in his notes of October 2006 that the father’s alcohol use had increased and he was ‘feeling rough around the edges’.[12]

    [11] At paragraph 37.

    [12] Book Bundle (Exhibit ICL4) page 66.

25. It is clear over these periods of time 2007/2008 the father stole pain relief, intended for patients under his care, for his own purpose.  He sought the mother to come over and assist him.  In his evidence he sought to minimise this.  I do not believe him.

26. The father asserted that the mother had made up a story at paragraph 19 of her affidavit of 20 November 2014, when she said:-

    I recall on one occasion in late 2006 [the father’s] father called me and begged me to go and pick [the father] up as he had told his father that he was going to commit suicide. I drove around to [the father’s] house and found him in a complete mess. [The father] stayed in bed for several days after this incident as he was recovering from a significant amount of drugs that he had taken.

27. I prefer the mother’s evidence in that respect.

28. The father was using Diazepam and other prescription drugs in 2007, including those he took from the mother.  On 16 January 2007 he had a meeting with the licencing authorities to have his licence conditions lifted.  He provided false information to that group.[13]  At that meeting the father did not disclose that he had been at W Hospital some 17 days before.

    [13] Exhibit M2.

29. In his report of 9 February 2007, Dr C sets out the history.  That history also indicates that the father misled him, although the father did say to Dr C that he had been diverting some drugs for his own use.  Dr C, quite accurately at that time, determined that the father was at high risk of future drug problems. 

30. The father was cross-examined in relation to a report from Dr M.[14]  He misled Dr M in that report.  Dr M concluded that the father’s risk of relapse was ‘very low’.  However, Dr M was not provided with anywhere near a complete historical background.

    [14] Exhibit M4.

31. Earlier the father gave evidence about his relationship with N.  In the bundle at page 442 he provided evidence of N which was different from his substantive evidence.  The father does not seem constrained by normal codes of endeavouring to be honest in giving evidence.

32. An example of this was the cross-examination of the father about his marijuana use.  He gave evidence which was inconsistent with that set out in paragraph 45 of an affidavit which he swore on 31 January 2013.  In that affidavit the father also admitted to significant drug use in 2008.

33. In September 2007 the mother, the father, the mother’s children and the child went to City H.  The mother says that she flushed the father’s ecstasy down the toilet and he lost his temper and left her financially abandoned with the children in City H.  She said that when she finally raised enough money to return she arrived home and found a detritus of drug paraphernalia in the home and the father confined to bed affected by drugs.  The father asserted that it was the issue of him taking ecstasy that caused the argument and he left.  He said he picked the mother up from the airport.  I do not believe him.  I prefer the evidence of the mother.

34. Following the event in City H involving the father, Dr B issued a letter on 15 October 2007 asking for another opinion.

35. The father did not tell Dr B about the ecstasy nor did he tell Dr B that he was using narcotics at that time.  In his report of 14 May 2007 Dr B reported that [the father] had remained abstinent.  That assertion by the father to Dr B was false.

1. In his trial affidavit the father asserted that he began abusing Valium in 2008,[15] yet it was clear from cross-examination that he had been abusing Valium prior to that time.  This was consistent with his giving of evidence which was at times avoidant, and the father from time to time prevaricated.  The father did not inform the professional licencing authorities of his use of Valium.  He continued to press for the return of his unconditional licence even though he continued to abuse drugs.

   [15] At paragraph 58.

2. He saw Dr F and asserted that he was not using drugs.  This statement was not true.  He said he had, in the past, used morphine over a period of six months when in fact he was using morphine at the time of the interview, but did not tell the doctor that circumstance.

3. The mother had an ectopic pregnancy in 2009 and the father used some of her medication.  I am satisfied he did so without her consent.

4. It is instructive of the father’s self-focus that he complains that the mother did not support him.  Yet it was the mother who persuaded him to leave the hospital where he was abusing narcotics and go into the G Health Service where drugs were not as readily available.  The mother’s affidavit contains numerous examples of her supporting the father, yet that seems not to have been enough from the father’s perspective.

5. Through 2010 there is evidence that the father was doctor shopping to meet his needs for prescription medication so he could abuse prescription medication.  The father was provided anti-psychotic medication from April 2010 to July/August 2012. 

6. The father, at times, attended Alcoholics Anonymous and Narcotics Anonymous, but other times would go elsewhere rather than attend the meetings.  He was given warnings in terms of his employment with the nursing home over that period.

7. The father saw Dr U in 2011.[16]  The father stated that he had not been drinking for some time and he was not abusing Speed or Ecstasy.  He admitted he was an addict, which was true, and sought Diazepam from the doctor.  He did not provide Dr U with an accurate history.

   [16] Exhibit M7.

8. The mother was endeavouring to have the father use medication which would make him resistant to the effect of Morphine.  He was reluctant to use that other medication.  He was investigated by the police in October/November 2011 and denied any wrong-doing, although he admitted wrong-doing to the mother.

9. His licence as a health professional was suspended in October 2011, shortly before the child was born.  He asserted that at that point he had stopped using drugs.  That evidence is nonsense.   At that time he failed to attend a disciplinary hearing on 4 November 2011 which was later adjourned to 30 November 2011.

10. In December 2011 he drank alcohol and took Diazepam, although he said he only took the alcohol.  However, given the report notes from the Z Hospital[17] it is clear that the father was still abusing drugs at that time.

    [17] Book Bundle (Exhibit ICL4) page 416.

11. Another example of the father’s approach to evidence was given in terms of his assertion that he met two male prostitutes but did not have sexual intercourse with them.  However, in his affidavit of 12 June 2014[18] he said that he had sexual intercourse with them.  He now resiles from that evidence.  This adds to the mother’s concerns about the veracity of his evidence.

    [18] At paragraph 29.

12. In January 2012 the father went into detox and then rehabilitation.  He was released from those courses in March 2012.

13. Some indication of extent of the father’s use of drugs and his affliction at that time was set out in the report from the hospital.[19]  At this time the father was using so called legal drugs such as synthetic drugs such as Kronic and XTC.

    [19] Exhibit M8 and Book Bundle (Exhibit ICL4) page 428

14. He was seeing Dr O and provided her with a misleading and an understated history.  He provided an incorrect history and an inaccurate history in relation to this alleged care of the child.

15. In her notes Dr O observed that the mother had assisted the father ‘steal drugs from work’.  This was untrue, and the father conceded it was untrue, but did not know how Dr O got that information.

16. In 2012 the father was referred to Dr P, an addiction medicine specialist, who provided a report to AHPRA in December 2012.[20]  His report was based upon false, incomplete and inaccurate statements by the father, who provided selective information. 

    [20] Book Bundle page (Exhibit ICL4) 522 – 526.

17. On 16 January 2013 the father attended a meeting with a panel regarding his use of drugs and his licence to work as a health professional.  He asserted he had not abused medication, substances or alcohol since he finished working in 2011 and since his relationship with his partner [the mother] had ended.[21]  This assertion of fact to the regulators was untrue.

    [21] Ibid page 520.

18. It is clear from the evidence of the father that he does not treat the provision of information to doctors in any way seriously.  He provides them with information which will assist him to get the result that he desires.

19. In giving his evidence the father obfuscated, blamed others, and constantly endeavoured to understate and minimise his use of drugs.  In doing so his evidence was seriously impeached. 

The mother

1. The mother was cross-examined by counsel for the father.  In that cross-examination the mother agreed that the child expressed affection for the father.

2. It is significant that the mother cannot bring herself to be positive of the father, but endeavours not to be negative.  She says, given the history, that she from time to time cries when the child is present, and acknowledged this impacted on the child.  However, I find that the fact that the child has a close relationship with the father is indicative that the mother is not overtly endeavouring to demonise the father in the eyes of the child despite the comments that were made in the report from the Children’s Contact Service.  The mother satisfactorily explained those comments and the circumstances surrounding them.

3. The mother’s evidence was that the father rarely cared for the child up to the time of separation.  He looked after the child some mornings from May 2012 to September 2012, however, the mother was responsible for the bathing and preparing meals and the like for the child.

4. The mother gave an explanation of the events over that time, including her concern at the father’s lapsing or relapsing with alcohol through July 2012 and August 2012, as her limited trust of him melted away. 

5. She gave evidence of the father’s relapsing through October 2012 until an incident after the child’s birthday in November 2012.  This clearly deeply troubled the mother.

6. Her affect in giving evidence was nervous and fragile.  The mother is clearly alert to the benefit of the child having a relationship with the father, however, she made it clear that the child needs to be safe.  The mother expressed a strong feeling that the child is very vulnerable and any relationship between the child and the father should be on the basis of the child’s safety as a priority.

7. The mother denies denigrating the father.

8. In terms of her trust of the father, the mother gave cogent evidence as to the breach of trust that she endured over many years and the promises that were broken.

9. The mother gave evidence that she does her part for the child’s visits with her father.  She says she prepares her, but she cannot get excited.  She finds it difficult to talk about the father and she often cries when he is raised in conversation.

10. Since the commencement of these proceedings the mother says that the father has said things which cause her to be concerned about the veracity of what he says.  Examples of those were his letters to her from rehabilitation in early 2012[22] talking about one prostitute and in fact some time later she found it was two prostitutes.  Her distrust of the father is deeper than simply a fear that he will lapse or relapse.  It is his false statements.  This occurred from the start.

    [22] Exhibit F4.

11. When she first met the father he was a health professional and provided her only limited information about his history of drug and alcohol abuse.  The mother says, quite frankly, that she fell in love with him and tried to help him. She got him out of employment at the Z Hospital to try to get him away from the drugs.  He was untruthful to the mother about his professional licence application and she was not privy to much of the problems of that in the early years.

12. The mother conceded that the father was a gentle man when sober, but denied that he was a loving man.

13. In her evidence the mother said that after the argument in early November 2012 where the father had relapsed, she became more and more concerned about his reliability and the safety of the child with him.

14. As the time passed following separation and the following year she reflected more and more on it, and had better insight into the father’s alcohol and drug abuse and his dishonesty with her and her family.

15. The mother was cross-examined about why she allegedly stopped the paternal grandmother seeing the child.  She said that had invited the paternal grandmother into the home and everything had gone well.  She subsequently received a call from the paternal grandmother of a very angry nature.  The mother was so stressed that she has found it difficult to talk to the paternal grandmother since that event. The mother does not feel that the paternal grandmother is a reliable supervisor, but was open to the paternal grandmother talking to her and was open to the paternal grandmother seeing the child with the father.

16. The mother was cross-examined as to her concerns about presents.  She gave a logical, careful, thoughtful and child focused explanation which was simply that the child was being flooded with small presents and this impacted on her broader approach to life.  The mother requested that presents be restricted to primarily significant occasions.

17. The mother was questioned as to why make-up time was not available when the child was sick.  The mother said she was part of a broader family with two other children in the home and plans were made on the weekends.  Those plans were hard to change.

18. She acknowledged that one or two of the failures in that respect were inconsiderate.

19. The mother was open to sensible suggestions, but was concerned about the father’s intensity.

20. The cross-examination of the mother was over a relatively long period of time which enabled me to see and hear her at length to gauge the reliability of her evidence.  There was some cross-examination on day four of the hearing and she was cross-examined over many hours on day five of the hearing. 

21. A letter was sent by the mother’s solicitor to the solicitor for the father in September 2014[23] where the mother’s solicitor observed:-

    My client has no obligation to ensure [the child’s] time with your client is an ‘enjoyable experience’.

    [23] Bundle Book (Exhibit ICL4) page 41.

22. The mother was cross-examined in relation to this and acknowledged that the letter was sent on her instructions and it reflected her true feelings. The mother’s evidence was that she is unable to promote the father to the child.  She says most of the time when she talks about the father it causes her to become upset and distressed.  She tries hard to shield the child from this and says that the best she can do is be neutral.  The mother is conscious that the child may pick up on this.  As such she does not discuss the father in front of or within the hearing of the child.  She always asks the child after a visit, “Did you have fun?”  In addition, before the times she has a routine and calls it play group.

23. The mother was cross-examined in relation to the child using the mother’s first name (paragraph 129 of the mother’s trial affidavit) and said:-

    [The father] has said [N] is not [the child’s] brother.  He has told her to keep and tell secrets with him which I find extremely distressing.  [The child] out of the blue looked at me while she was watching TV and called me [by first name].  I asked her why she called me [by first name], she said because it is your name.  She said because it is your name, I agreed that it was. I feel [the father] encouraged her to do this.  For these and several other things [the child] has said, I believe [the father] is treating [the child] as a puppet to hurt me.  She does not return from access talking about having a wonderful time with him, she barely refers to him at all.

24. Whether this belief is soundly based or not it is the mother’s belief.  This needs to be considered in the context of the father objecting to the child calling him by his first name. Given that his first name is that used by the child’s elder siblings that use of his name should not be surprising. 

25. The mother was challenged in relation to her beliefs and managed the cross-examination quite well at times and other times she struggled.  At times she seemed to move from being robust with some aspects in giving sensible, sound, well considered answers to other times seeming very fragile, particularly in terms of her interactions with the father.

26. The mother gave further evidence on the last day of trial as to the proposed return home of N in the next week or so, the further incidents regarding D and her (D’s) threats of self-harm.

27. I generally accept the mother’s evidence to be reliable and that the evidence she gives about her concerns are real to her. 

28. The mother struggled both verbally and physically to respond to questions.  She felt that they were partisan with the father and did not feel that she could rely upon them.  I accept her evidence in that respect as being a frank reflection of her true feelings and concerns.

29. The mother impressed as a frank witness who made admissions against her interests.  She was careful and thoughtful and child focused.  The mother and her children had clearly endured a terrible time with the father’s abuse of drugs and alcohol and the consequent behaviour that the father inflicted upon the family.  She has endured untruthfulness and deceitfulness from the father.

30. The mother has believed this has continued since these proceedings have commenced, and in some regards she is quite accurate although perhaps somewhat hypervigilant. 

Ms L

1. Ms L is a manager of the Post Separation Services at Relationships Australia.  She provided information regarding the father’s engagement with the X Contact Centre.[24]

   [24] Affidavit filed the 7 August 2015.

2. It was generally innocuous information, but for some comments made by the child.  A number of the comments were no more than what a two or three year old child would make from time to time.  The other comments have been readily explained by the mother.

3. In addition Ms L provided an email dated 2 October 2015[25] saying that there have been no significant events since the last report and they would provide monthly visits up to February 2016 rather than fortnightly visits.

   [25] Exhibit ICL3.

Ms E

1. Ms E gave evidence in accordance with her affidavit sworn 11 November 2014 and filed 12 November 2014.

2. Ms E was cross-examined in relation to her evidence. She acknowledged that she was a friend of the mother and had known her for about ten years.  She also knew the father over the same period.

3. Ms E encouraged the father to apply as a health professional at a Nursing Home.  She did this notwithstanding his long history of depression, anxiety and alcohol abuse.  She worked with him at the nursing home and was concerned that he may have been taking too many Valium.

4. At times she saw him unwell, stressed and very thirsty.  There were occasions where she suggested he go home sick and at the end of the time began to question him about slurred speech.  She was not aware of the extent of his drug usage until after he left that employment.

5. Ms E was challenged as to the extent of the observed behaviour, but her evidence was not impeached.

6. She gave evidence as to the impact on the mother of the unsupervised time on one occasion during the latter part of 2014.   That was consistent with the mother’s evidence.

7. I accept that Ms E is a friend of the mother and her evidence is given from that context.  However, I found her evidence, despite the challenge, to be generally reliable.

Mr AA

1. Mr AA provided evidence in accordance with his affidavit sworn 18 September 2015 and filed 23 September 2015.  He is the child’s maternal grandfather.

2. He gave evidence, which was unchallenged, that he had been indirectly involved in an event at his home in October 2013 when two masked men broke into his hot house.  They were challenged by a neighbour and ran away.  I accept his version of that event.  He was asked whether he was involved in similar action in terms of the father.  He denied that he did so despite being challenged in terms of whether he had made telephone calls and questions about where he was.  His credit was not impeached.

3. The maternal grandfather made some unfortunate remarks in court on 16 June 2015 when unsupervised time was ordered.  He apologised to the mother soon afterwards.

4. On one occasion he took the child to a visit and described it as going without trouble.  The grandfather confirmed that he was protective of the child and he was upset by the orders made in June 2014.

5. I accept his evidence as being reliable although supportive of his daughter (the mother). 

Dr V

1. Dr V is a forensic psychiatrist who was appointed single expert for the purpose of an assessment of the mother in these proceedings.  Dr V opined that the mother had a current adjustment disorder with depressed and anxious mood.  He related this to her concerns regarding contact between the child and the father.

2. He summarised his report by observing the following:-[26]

   In summary, [the mother’s] condition would almost certainly be exacerbated by ongoing contact between [the child] and [the father] and treatment is unlikely to [be] effective if [the mother] is unable to change her beliefs regarding [the father], but cessation of contact between [the father] and [the child] may actually reinforce [the mother’s] anxiety in the longer-term.  It is possible, although perhaps unlikely, that [the mother] might become less anxious about the situation if unsupervised contact were to become inevitable.

   [26] At page 20 and 21 of the Report dated 24 September 2015.

3. Dr V saw the mother for two and a half hours and had not met nor seen the father nor the child.  He was concerned that some of the mother’s concerns were unreasonable particularly in terms of the risk of paedophilia, of which Dr V had significant expertise, and the risk of murder/suicide, of which Dr V had some training.

4. Dr V said he was not able, at that time, to make a diagnosis of major depression rather of an anxiety disorder in respect of the mother.  He said that if orders were made in terms of those suggested by the Independent Children’s Lawyer, it was ‘possible’ the mother would adapt.

5. Given the relatively short time Dr V spent with the mother and the longitudinal study of Dr Q, although in different professions and different backgrounds, I prefer the evidence of Dr Q in terms of the likelihood of the mother’s having a major depressive disorder.

6. Dr V said that the mother needed some movement to get her out of where she was in terms where he said she was emotionally stuck.  He said the litigation was a significant, but not the only factor, and if the litigation was brought to an end and determined orders were put in place, it is more likely than not that the mother would cope and be able to continue to be a good and primary carer.

7. However, there was also a possibility that it could trigger a major depressive disorder and the mother would be unable to care for the children.

8. I have had significant regard to the evidence of Dr V and I regard him as a reliable, thoughtful, and professional witness.

9. In his reports Dr V postulated that the mother’s concerns about the father were not well founded but he said in cross-examination that they probably were well founded.

Dr DD

1. Dr DD provided evidence contained in her report of 24 September 2015 which was annexed to her affidavit.[27]  The affidavit and report were read into evidence and there were no issues about her qualifications.

   [27] Sworn and filed 24 September 2015.

2. She is of the view that the father has had a sustained remission since early 2013.  Dr DD conceded that she would defer to the Family Consultant in relation to the commencement of any overnight time in the context of drug and alcohol abuse.

3. Dr DD observed at paragraph 61 of her report:-

   61.Given his long history of severe substance abuse disorder, [the father] must be vigilant in continuing active management of his risks of relapse. …

4. She had noted earlier that the father was vulnerable to relapse due to the chronic nature of his substance abuse disorder, however this needs to be seen in the light of her view that the father has a good prognosis of long-term recovery, although there was a caveat in terms of the possibility of relapses.

5. Dr DD considered that the conditions suggested by the Independent Children’s Lawyer were sensible, albeit the Court would need to consider that in the light of Dr O’s supervision.

6. Her views in relation to the time the child spends with the father must be seen in the context only of the expertise of this witness in her knowledge of the father in terms of substance abuse.

Dr RR

1. Dr RR is the father’s treating psychiatrist.  He provided an affidavit sworn 10 August 2015 and filed 11 August 2015 which was read into evidence.

2. There was no issue about his qualifications.

3. Dr RR’s first report available to this Court was dated 7 May 2013.  In that report he noted that the father should not ever become complacent or overconfident about his ability to maintain abstinence. 

4. In diagnosing the father, Dr RR noted his pattern involved strong abuse or binge components as opposed to individuals who take regular amounts of drugs to maintain a steady level of drug in their system.

5. It may well be that the father is a combination of both given the detailed history that was provided to the Court and, perhaps, not in full to Dr RR.

6. The father was referred to Dr RR by Dr O and I am satisfied that Dr O has, given the information provided to her by the father, a partisan view of the father and poor view of the mother.

7. From Dr RR’s observations the father appears to be drug free and has been drug free since January 2013.  He opined that the father’s motivation and his chances with continuing abstinence are ‘very good’. 

8. In respect of the father’s mental health and substance abuse, Dr RR did not consider that the father posed a risk to the child if unsupervised time were provided to him.

9. Watching the demeanour and listening to the evidence of Dr RR, it is clear that he supports the father and is, as his therapeutic provider, optimistic.  There were some issues about the father being diagnosed with a major depressive disorder or bipolar.  It was the view of Dr RR that this was likely to have arisen out of the father’s drug dependency.  He was positive in relation to the father in terms of his abstinence from alcohol and drugs.

Dr Q

1. Dr Q provided evidence in terms of her three affidavits namely:-

   (a)an affidavit filed and sworn 30 May 2014;

   (b)an affidavit sworn 31 October 2014 and filed 7 November 2014; and

   (c)an affidavit sworn 2 March 2015 and filed 6 March 2015.

2. Dr Q is a Clinical Psychologists and her qualifications were not challenged.  In each of her affidavits she provided information by way of a report.

3. She was cross-examined by counsel for the father and by the Independent Children’s Lawyer.

4. In her summary contained in her most recent report[28] Dr Q opined that the mother is:-

   Too distressed in sessions to engage with clinical interventions, and instead, sessions provide supportive counselling and anxiety management techniques.  To exacerbate matters, psycho-pharmacological interventions have also been ineffective thus far.  Furthermore, [the mother] reported levels of Depression, Anxiety and Stress accessed by psychometric questionnaire, continue to be severe. Although this is a self-report and could be subject to over-reporting symptoms (this was a general not a specific caveat), her scores on the measures are consistent with [the mother’s] presentation and sessions where she frequently became tearful, highly agitated and distressed. …

   [28] Dated 28 February 2015 attached to her March 2015 affidavit at page 10 of the Report.

5. Dr Q went on to recommend less time and continued supervision between the father and the child.

6. This report followed that of Dr Q in her report of 28 October 2014.[29]  In this report Dr Q thought there was some improvement and a ‘glimmer’ which she described as a small adjustment in terms of the mother’s psychological health.

   [29] Annexed to affidavit of Dr Q filed 7 November 2014

7. In her first report dated 28 May 2014 Dr Q provided a summary of assessment, diagnosis and recommendations.  In that summary Dr Q said[30];

   The mother has presented with Major Depressive Disorder, in response to stressful life events and significant fear surrounding [the father] having unsupervised time with [the child].

   [30] At page 11 of the Report dated 28 May 2014.

8. Dr Q has engaged a longitudinal treatment of the mother from June 2013 up to date.  Since her last report earlier in 2014 she has seen the mother eight times, the most recent being the Friday before the commencement of the hearing.

9. In giving oral evidence Dr Q said she had read Dr V’s report and made some comments in relation to it.

10. As to page 13 of Dr V’s report Dr Q said that she didn’t think the mother had a personality disorder at that time and at that time she was not in the midst of a major depressive episode. However, Dr Q went on to say words to the effect that the mother was under chronic stress and had suffered major depressive episodes in the past although she would have expressed this in singular terms when she spoke to Dr V.

11. It was Dr Q’s view that given her knowledge of the mother this was not an adjustment disorder, but more in the terms of a major depressive episode.

12. Dr Q also disagreed with Dr V in relation to habituation.  She agreed with his understanding of habituation, that is, that once a person became conditioned to the stressor, in this case such as unsupervised time or even overnight time, the impact of the stress would diminish.

13. Dr Q’s view is that habituation did not occur in the circumstances of the mother and given her chronic stress was unlikely to continue.  She went on to say that the mother is likely to worry excessively into the future and that she anticipates she would need to see the mother if orders were made extending the time to unsupervised, and the mother would need intensive therapy, support and medication.

14. The evidence of Dr Q was that if the Court made a decision it would alleviate the mother’s guilt but not her stress and anxiety.  She was not a supporter of the approach of Dr V regarding habituation.

15. In terms of the mother’s history of childhood sexual abuse, Dr Q said that the mother had contained that fairly well although with the events and breakup of the relationship she had become hypervigilant.

16. In terms of the question of the mother’s motivation to change, Dr Q’s evidence was that it was more of a confirmation bias rather than using the word motivation.

17. At the present time her view was that the mother is able to meet the physical needs of the children and in particular the child, but has, from time to time, struggled with the psychological needs as her ability to cope was fluctuating.

18. Counsel for the father suggested to Dr Q that the mother’s change in terms of unsupervised time in 2012 to supervised time in early 2013 (but open to unsupervised time) then to totally oppose unsupervised time later that year was unusual. Dr Q’s response was that this was not unusual.

19. In terms of the cross-examination by the Independent Children’s Lawyer Dr Q had observed that the mother had good resilience, given her response to the history of childhood abuse, but that resilience was compromised by the chronic stress which had affected her.

20. Dr Q was a very careful, thoughtful, and professional witness.  She made concessions where appropriate and was thoughtful in terms of the extent of her professional opinion.  I accept her evidence and observations as reliable.  In many ways her observations of the mother were reflected when the mother gave evidence later in the hearing.

Ms SS

1. Ms SS is a psychologist who provided an affidavit sworn 16 July 2015 and filed 17 July 2015.  The qualifications of Ms SS were not challenged.  The substance of Ms SS’s material was contained in her report dated 2 July 2015 which was annexed to her report.

2. Ms SS was cross-examined by video-link.

3. In that report Ms SS used expansive language and it contained much comment outside her area of expertise. 

4. Much of what Ms SS said was comment and much of it gratuitous comment.  An example of this is:-[31]

   [The father] has changed - he is not the same man that I met in 2012 nor is he the same man that entered into a relationship with [the mother]. …

   [31] At page 16 of 17.

5. This witness could hardly comment on the nature of the father some years before he first consulted her.

6. Ms SS gave views as to what weight the Court should give to the evidence of the supervisors, the family report and the mother’s state of the mind.

7. From this report and her evidence, this witness clearly accepts the history provided by the father in a completely uncritical way as is, perhaps, her role.  In many ways, her report is advocacy of the father’s case and in doing so this witness has impeached her own evidence.

8. What I can take from this report is that the father engaged with a psychologist in 2012 and has formed and maintained a close relationship with the psychologist, and that therapeutic relationship continues.  In the context of the father’s alleged abstinence from drugs at this time, this can only be seen as a positive.  The otherwise gratuitous comments, often in expansive and unhelpful language, assist little in terms of this determination.

9. Ms SS apparently did some joint counselling with the parties when she worked at Relationships Australia and subsequently went out in her own practice in 2012, and in early 2013 she commenced counselling with the father.  I limited her evidence to that relating to the father.

10. In cross-examination she was often defensive of the father, even to the extent that she was reluctant to concede his underlying vulnerability given his previous drug history.

11. During her cross-examination Ms SS was defensive of the father’s way of managing his sense of grievance against the mother and his anger against the mother.  This was in part moderated by her evidence that he acknowledged, at some levels, the position the mother had found herself.

12. Ms SS was protective of the father, was not objective about him, and gave little weight to his previous history. 

13. I have reflected on her evidence in terms of the father’s admirable and strong approach to change since January 2012, but otherwise note that her evidence is strongly supporting the father.  

Dr MM

1. Dr MM provided evidence in terms of his affidavit filed 7 November 2014 and sworn some two days earlier.  Dr MM is the general practitioner for the mother and also for her daughter, D.

2. The doctor gave evidence of an appointment he had with D on 6 October 2014.  D, who was then aged 13, provided a history of self-harm and explained to the doctor that she was anxious and upset because of her concerns of the child spending time with the father and being harmed by the father.

3. D had not communicated with the mother about the self-harm and it was only when the mother found out that she took the child to see the doctor.  The mother was present during that interview and provided some information for the doctor.

4. Counsel for the father expressed concerns about the method of interview, however, given the age of the child it was an appropriate therapeutic approach.

5. I am satisfied that the child expressed views of self-harm and showed indications of it as was contained in the doctor’s affidavit.

6. Dr MM’s evidence was frank, to the point and clear.  His evidence was not impeached in any meaningful way.

Dr O

1. Dr O is the father’s general medical practitioner.  She provided an affidavit sworn 30 September 2015.  I was also provided with clinical notes[32] and a letter from Dr O to Mr I.[33]

   [32] Exhibit M14.

   [33] Exhibit M15.

2. Dr O was not particularly well prepared for giving evidence, which she did by telephone.  She did, however, confirm the history provided by the father, including the false history he provided her in respect of his alcohol use and in respect of his relapses in 2012.

3. She was very loyal to him, perhaps too loyal. She did not want to give evidence about the lapses in 2012 as it might bring about an ‘overreaction’ in these proceedings. Given that evidence I have concerns about how effective and safe it would be to rely on Dr O to provide information to the mother given her loyalty to the father about what she understood to be his minor 2012 lapses.

4. The mother could not rely upon Dr O as a supervisor.

Mr GG

1. Mr GG of Queensland has qualifications in terms of analysing follicle hair samples.  His qualifications are set out in his curriculum vitae contained in his affidavit sworn 4 June 2014 and filed 12 June 2014.

2. Annexed to his affidavit is a report of hair follicle samples taken from the father in March 2014.  The hair follicle sample contained insufficient hair to determine whether there had been cocaine or metabolites present.  None of the drugs such as amphetamines, opiates or marijuana was detected in the hair follicle sample analysed.

3. Mr GG put a caveat on his assessment in that he said:-[34]

   However, the hair sample submitted was axillary (underarm) hair measuring approximately 5.2cm in length.  Axillary hair growth rates are not as consistent as those with head hair.  Based on the growth rate of approximately 1.3cm per month, 5.2cm of head hair would relate to about four months growth.  Because the growth rate of axillary hair may be slower or faster than head hair, it is not possible to determine the period of time that this sample of hair relates to.

   [34] At page 1 of the Report.

4. That evidence was read in unchallenged.

Mr LL

1. Mr LL provided evidence in accordance with his affidavit sworn 16 July 2015 and filed 17 July 2015.  Mr LL is a senior practitioner with the Sexual Assault Support Service and has an extensive curriculum vitae.

2. His evidence was that the father was referred to the Sexual Assault Support Service (SASS) in March 2015 and that he, Mr LL, was the second counsellor and assisted him from November 2013.  He gave evidence of the father’s expressed desire to remain in recovery and his desire to spend time with the child.

3. The father continues to attend at the service and has not made any statements which give rise to the service to have concerns for the welfare of the child.

4. That evidence was read in without cross-examination and without controversy.

Mr CC

1. Mr CC provided evidence in accordance with his affidavit sworn 4 August 2015 and filed 6 August 2015.  Mr CC’s evidence was in relation to the father’s employment and was read into evidence without controversy.  He confirmed that the father worked in a specialist Unit as a health professional and was generally regarded as a good professional in that service.

The mother’s son, N

1. N is the son of the mother and at the commencement of the hearing had recently celebrated his 19^th birthday.  He provided evidence in terms of his affidavit sworn 28 July 2015 and filed 8 August 2015.

2. His evidence was that he was aged ten when the father commenced attending at his mother’s house and that he wanted to form a relationship with the father.

3. The relationship between N and the father soured.  This may have been as a consequence of N’s own father expressing limited interest and disappointing N.  N described his relationship with his mother as close and denied that she used to scream at him, but said during his teen years he was at times rude to his mother. 

4. N said that he kept himself clear of the father and that the father was a negative impact in the house.

5. N admitted that he was angry during the course of his teen years and was angry as a consequence of the father’s behaviour to the household and the father’s treatment of his mother.

6. N both told the Family Consultant and provided in his affidavit that he believes that the father was a risk to the child.  He said this was because the father lied and mislead the family and created quite unhappy circumstances during the time he was there.

7. N gave evidence of an incident, which occurred when he was 15 or 16, where the father turned up at a caravan in which N was staying with friends on the family property and when the father was intoxicated with both alcohol and drugs.  I have discussed this incident elsewhere in the reasons.

8. The evidence of N was that the father endeavoured to share marijuana with him and with his sister R.  N is concerned that the father did not provide a good role model, particularly smoking marijuana in the presence of the children.

9. N gave evidence that over a period of a few months in 2012 when the father was looking after the child it was very basic care and the child was left, at times, in the care of N or his siblings.  On one occasion N moved out of the house for a few weeks, but then moved back.

10. As to drugs, N was engaged in some use of cannabis when he was in his mid teens although it was occasional use, more monthly than weekly.  He gave evidence that he did not see his mother smoke cannabis but saw the father and his elder sister using the substance, including in his sister’s bedroom.

11. N was cross-examined in relation to an allegation of an interaction between the father and him, where N had used poor language to the mother.  N said that this did not occur.

12. Paragraphs 50 and 51 of the father’s trial affidavit were put to N in terms of a number of matters to which N gave evidence different to that of the father.  N was smoking in his teenage years, and was cross-examined as to where he acquired his cigarettes and cannabis.  He made it clear that he did not get these from his mother, rather that he worked at the local store and had bought these with his own funds.

13. N gave evidence as to his discovery of pornography on the family computer.  It is not in issue that this was accessed by the father.  When N found this pornography he reported it to his mother. 

14. N was cross-examined in relation to the Family Consultant who observed:-[35]

    47.As well as his direct experience, his [N’s] mother provided him with negative information about [the father].

    [35] At paragraph 47.

15. In terms of this N gave evidence that the opinions were his own and not influenced by the mother.  Given that he was aged 18 when he provided that information, I accept his evidence in that regard.

16. Despite his own experiences with an absent father, N expressed the view that he saw little value in the relationship between the child and the father, because of the difficulties that the family had over the years, including lies and drug and alcohol abuse by the father and its impact on the family over quite a number of years.

17. N said that the father ‘came into our family and he lied to us and abused our trust’.  N candidly conceded that he hated the father.

18. N gave this evidence against his interests and conceded that his mother has, at times, been angry and outraged as to what the father was saying in the course of these proceedings.

19. N gave evidence that the father’s care of the child, during the period of months when the mother was working some mornings, three days a week, was less than optimal but conceded he did not raise this with his mother at the time.

20. He gave evidence that the mother endeavoured to shelter the children from the father’s behaviour, and it was only after the father went into rehabilitation at the beginning of 2012 that the mother provided further information to N.

(ii)    the likely impact any proposed parenting order under this Part will have on that right;

1. The father is of Aboriginal heritage and he points out in paragraph 215 of his trial affidavit the following:-

   I have Aboriginal heritage.  Given the difficulties in my childhood and my addiction, I feel I missed out on learning and experiencing Aboriginal Culture.  It is a part of me that I want to explore further and feel that reconnecting with this culture is an important part of my recovery.  I would love to be able to go on this journey with [the child] and to ensure that she does not feel disconnected from that aspect of her culture as I have done in the past.

2. The Independent Children’s Lawyer, in his submissions, suggested that the father should have parental responsibility in terms of this aspect of the child’s life.  

3. There is nothing to stop the father from immersing the child in that heritage in the time he spends with her, albeit a limited time over the next twelve months.  However, this has to be weighed and has been weighed by me in the context of the broader issues in this case.

4. The mother does not object to the child being immersed in her Aboriginal heritage and says that she encourages the child to participate in learning about her heritage and culture.  In her affidavit filed the 20 November 2015 the mother says the child attends a Child Care Centre where she participates in and celebrates NAIDOC week and is actively involved in cultural activities.  The mother says that she has an interest in aboriginal culture.

5. I was concerned that to give the father broader responsibility in that respect may have the impact of undermining the parental responsibility orders which I have otherwise considered appropriate.

6. As time increases over the years the father can, if he wishes, immerse the child in her Aboriginal culture.  That will occur in the times that she spends with him and I am satisfied that the mother will not undermine the child’s Aboriginal culture in that household.

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. There can be no serious criticisms of the mother’s child focused attitude in respect of her responsibilities of parenthood.

2. The father was irresponsible in terms of his approach to parenting up until January 2012.  From that time he has endeavoured to rehabilitate himself in terms of drugs and alcohol.  His attitude now is that he wishes to become a significant parent in the life of the child.  However, this has to be seen in the context of the other findings and circumstances of this case.

(j)       any family violence involving the child or a member of the child’s family;

1. This has been dealt with elsewhere in these reasons. I have no concerns that the father being violent to the child provided he is sober.

(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;

1. There was no evidence of a family violence order.

(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;

1. It was put to me, by counsel for the father, that a graduated approach to time between the child and the father from supervised to unsupervised to more time to overnight time was the appropriate course.

2. The rationale to that was that it would avoid further proceedings.  Unfortunately, given the particular and complex circumstances of this case, and having regard to the evidence of Dr Q and the Family Consultant, I am not satisfied that that course would be in the best interests of this child.

3. Given all of the other matters set out in these reasons I am satisfied that it would be in the best interests of the child for the orders that I have made to be put in place, that is one day per month slightly increasing in time for the next twelve months and then fortnightly time for the next two or three years after that time.

4. That way the mother’s health is given the opportunity to regenerate and the father’s remission from his chronic substance use and abuse can be strengthened and tested.

5. It is not necessary for the parties to go to court in two or three years time.  It is appropriate and incumbent upon the parents to try mediation either directly or through the various Government non-litigation avenues that are available to them.

(m)Any other fact or circumstance that the court thinks is relevant;

1. I accept the evidence of Dr Q that the mother has chronic long term stress.  I prefer her evidence in terms of the mother, in the past, having a major depressive episode.

2. Dr V expressed a view:-[54]

   Treatment is likely to change [the mother’s] thinking on this matter unless there is a change of circumstances which requires her to re-evaluate her thinking.

   [54] At page 18 of the report.

3. Dr V went on to talk about habituation and that unless there was a change in the arrangements he did not think the mother’s view would change.

4. When cross-examined about this Dr V said there were two possible outcomes.  One was an outcome where the mother would be highly stressed to start with but eventually habituation would set in and she would cope with the father spending unsupervised time with the child.

5. The other was that the mother would go into a major depressive episode and would be unable to cope as a parent in any way.

6. Dr Q’s evidence was more in keeping with the latter course.  I had the opportunity of observing the mother during the hearing.  I observed her leave the Court during part of the cross-examination of Dr Q.  More importantly I observed her in the witness box.

7. At times her affect was that she was struggling.  On a number of occasions I asked her if she wanted time and I could see her emotionally collect herself and then simply say she just wanted the cross-examination to be over with.

8. At times her head was bowed.  At times she was quietly weeping and distressed.  On each occasion when there was cross-examination about unsupervised time she became obviously stressed and was struggling.

9. I am satisfied that this was not a performance or untrue. 

10. The mother’s stress and her anxiety in terms of the child spending unsupervised time with the father for part of the time in the second half of 2014 was observed by others including her father and Ms E.

11. The impact of it showed up in the reports of Dr Q, particularly from September onwards. I am satisfied, on balance, that the child spending unsupervised time with the father in the short and medium term would have a profound negative impact on the mother, and would have the capacity to completely undermine her capacity to provide for the emotional, and at times, physical needs of the child.

12. I have considered Dr V’s evidence of habituation but given the history of this matter I am not convinced that this will apply for the mother.

13. The mother has endeavoured to work her way through this with Dr Q but it was not successful. 

14. Dr V says that the mother’s concerns regarding risk to the child do not appear well supported.  Given the history which the mother has endured in terms of her relationship with the father, including his regular attendance at Narcotics Anonymous over their relationship, Alcoholics Anonymous, attending at church, having counselling, including attending sexual abuse clinics and receiving counselling for psychological effects of sexual abuse, as far back as 2005[55] counselling jointly, counselling by himself, psychologists, psychiatrists, friends such as Mr EE, the father promised and broke promises and lapsed and relapsed over those years.

    [55] Book Bundle (Exhibit ICL4) – page 558.

15. The impact upon the mother and her family was profound.  Following 4 January 2013 the mother has had to deal with this litigation.  This  included: reading material from the father which she regarded as untrue, the expressions of the child during unsupervised time, words from the child during supervised time, the distress on her daughter D including the cutting of herself in 2014, the father’s evidence that he may or may not have had full intercourse with one or perhaps two young male prostitutes, her concerns that he was engaged in sexual relationships with people who, although apparently over the age of consent, were still very young and her thoughts of the risk she was putting her children.  This has had a profound impact on the mother.

16. The mother is ‘scared to death’ about the child coming to harm.  She has been told stories by the child or heard stories told by the child to her siblings about N not being her half-brother and saying ‘[N] were meanies’ were not assisted in this process.

17. The mother gave evidence that when D was told of the June 2014 order she went into ‘meltdown’.

18. When cross-examined about the need to protect the children from her stress the mother said she did her best and was also stressed that she was at times unable to fully shield the children.  That evidence was very powerful.

19. The mother is not satisfied by all of the measures put in place.  She observes that the father’s doctor was more protective of him than he was of the broader family, including the child, and that Dr O was reluctant to provide information that may ‘assist’ the mother from the mother’s point of view to protect her child.

20. For the mother the father’s pattern of relapse and denial is unchanged.

21. The mother said at one stage she used the term ‘paedophile’ in respect of the father’s interaction with the young male prostitutes.  She said it was a wrong choice of word and she apologised to members of the father’s family.  However given that background she still has concerns about the father’s interaction in that regard although she does not feel, at this stage, that the child is at risk of sexual abuse from the father.

22. In terms of the murder suicide the mother said she has a belief.  She says the father took a cab to a high structure and was going to commit suicide.  This was in the circumstances where he was lapsing with alcohol and/or drugs.  She says she does not know how this will impact in terms of his relationship with the child if he lapses or relapses.

23. She believes the child is genuinely at risk.  It is a not a substitute for avoiding overnight time.  It is her absolute fear.

Residence

1. It was not in issue that the child should continue to live with the mother, and given the circumstances outlined in these reasons and the history of the child being in the mother’s full time care since birth I will make that consent order.

Parental responsibility

1. Section 65DAA of the Act does not apply as this is a case where the father is not seeking significant or substantial time. He is seeking four nights per fortnight in growing terms.

2. On the evidence, it is not in the best interests of the child to have substantial and significant time with the father, and given the evidence of the mother that there was controlling abusive behaviour I am satisfied there is family violence within the context of the definition set out in section 4AB of the Act particularly in terms of his abusive and damaging behaviour over the years the parties lived together as outlined in the mother’s affidavits.

3. The mother seeks sole parental responsibility of the child.  The Independent Children’s Lawyer is not fixed on the question of parental responsibility and it depends upon the findings made by this Court.  The father seeks equal shared parental responsibility of the child.[56]

   [56] Exhibit F1 at page 3.

4. There is no effective communication between the mother and the father.  The mother genuinely distrusts the father and is genuinely concerned about the veracity of his evidence in relation to his abstinence from drugs and alcohol.  I am satisfied that those fears, although greater than reality, are not unreasonable given the history to which the mother and the family endured during the time that the father was living in the mother’s household and in terms of the mother’s perception of the father’s evidence since that time.

5. Such an order would impose enormous hardship upon the mother and has the capacity to lead to the undermining of her parenting of the child and of her broader family.

6. Given the circumstances of this case, I do not intend to make an order for equal shared parental responsibility.  I intend to make an order for sole parental responsibility.

7. That parental responsibility will not include any power to change the child’s name.  The father is entitled to information in relation to the child’s health and education and I will make orders accordingly.

8. In addition should the mother be considering any major long-term issue in relation to the child she should notify the father in advance, if that is reasonably practical, or as soon as possible afterwards if events do not reasonably allow such notice.

Communication

1. I have considered the question of the child communicating with the father outside the times nominated in these orders and I have made a positive determination that no such communication order should be put in place.

2. Given the nature of the relationship between the child and the father, it is likely that the child will seek communication with the father as she gets older in the next two to four years.  That will be a matter for the father and mother to negotiate through the Family Relationship Centres or through such other non-court processes as are available to them.

Mechanical provisions

1. However, I do not wish to put in place arrangements at this stage given the matters set out earlier in these reasons.

2. I have made provision in these orders for the parties to approach the Court, for a period of 12 months from the date of these orders, in the event that there are some problems with the mechanical provisions of the orders.  Hopefully the orders are clear enough and the parties can put in place supervised time using Y Child Care Service, in accordance with the evidence before me.

3. However, if there are difficulties over the next twelve months or so I have made provision for the matter to come back before me for mechanical type orders in that regard.

4. In his closing submissions counsel for the father said that the father had ‘laid his life bare’.  I do not accept that submission.  The father laid his life bare because he was required to do so given the volume of material which was disclosed in these proceedings.

5. It is clear that the father lied to the relevant professional organisation and medical practitioners from time to time when he tried to receive his licence back.

Spend time with

1. I accept the evidence of the mother, Dr DD, Dr V and more particularly Dr Q and the Family Consultant as to the impact of unsupervised time on the mother. There is also a broader impact on the child D which, whilst there may be other factors, is significant.

2. There is a real risk and an unacceptable risk to the mother’s health in the child spending unsupervised time with the father.  As submitted to me by counsel for the mother, the mother lived through the father’s lies, arguments, her despair, the attempts at counselling, the father’s suicide attempt or ideation and his interaction with the child.

3. The mother was aware of the father’s significant drug and alcohol problems over many years. It is not in issue that the father very successfully hid his abuse of drugs and alcohol with employers over many years.  This included taking medication otherwise meant for patients and using it for himself.  The mother has an understandable fear that the father will be untrue in what he says.

4. She sees it from her perceptions in parts of his affidavit material and his untruthfulness, at times, to support that which he seeks.  One of the recent examples is when he apparently told his general practitioner, Dr O, that the mother was stealing drugs with him. 

5. It was implicit or implied by the father that the mother was using her health as a way to prevent the child having a relationship with the father.  That the child has a relationship with the father and the mother’s initial openness to more time in 2012 is indicative that the mother is not undermining the father’s relationship with the child. The mother has a genuine fear for the child in the father’s unsupervised care and her evidence surrounding the experiment in August 2014 is indicative of that concern.

6. As I have dealt with earlier, the fragile nature of the mother’s health combined with the history of the father are such as would make it an unacceptable risk to leave the child in the unsupervised care of the father in the short to medium term.

7. Counsel for the father and indeed the Independent Children’s Lawyer asserted to me that it is more likely than not that the father has been drug and alcohol free since early January 2012.  That may well be the case and I accept that as a factual circumstance.

8. There are a few troubling aspects in relation to the blood tests but none which would enable a finding other than it is more likely than not that the father has been drug and alcohol free since that time. However the father has, over many years, engaged with many therapists including therapists regarding his issues arising out of the sexual abuse of him as a child.  The father has had, at times, years of abstinence and then has reverted back.

9. When he has reverted back he has lied and obfuscated about his use of drugs and alcohol.  That is as recent as 2011 when he persuaded Mr and Mrs NN that he had one problem with alcohol in the second part of that year when in fact he was significantly engaged in alcohol and drug abuse in the second half of 2011 after his time seeking rehabilitation.

10. The father was not frank with the mother in terms of his engagement with prostitutes and that information came out piece by piece

11. The father is trained as a health professional and has superior knowledge in relation to drugs and hiding his use of drugs.  This has to be seen in his long history of dishonestly in relation to his use of drugs and alcohol prior to January 2012.

12. The father has some limited access to drugs in the terms of his current work at patients’ homes.  I accept the submission that given the father’s history of early use of substance, sexual abuse, depression and living alone that it is possible that the father may relapse again and that he is unlikely to tell any person in authority of that relapse.

13. In terms of the mother, her psychological health is fragile.  The clear evidence of Dr Q and of Dr V is that if the mother does not become ‘habituated’ to the father spending unsupervised and/or overnight time with the child, she could face a major depressive disorder and would not be able to care for the child, D or herself for that matter.

14. Given all of those circumstances I do not propose to order unsupervised time and I accept the recommendation of the Family Consultant that there ought not to be a build-up of time towards unsupervised time and then overnight time as initially submitted by the Independent Children’s Lawyer and submitted by the father.

15. It may be that in two or three or four years’ time when the child is aged seven or eight that negotiations can be entered into between the parties in regard to the child at that time.  The father would need to make his medical history available then and the mother would be in a much better position to understand and perhaps accept that the father has been alcohol and drug free for an extensive period of time. The child will be much older and would be better able to report back to the mother. 

16. Given the evidence of the Family Consultant I do not wish to set any particular time in this respect but I note that it is a requirement of the parties to attend at a Family Relationships Centre or the like and engage in meaningful negotiations at that time in relation to changes of parenting arrangements.

1. Accordingly, I intend to put in place the supervised regime sought by the mother and recommended by Dr Q to enable the mother to come to terms with her brittle emotional and psychological state.

2. To that end I intend to provide an order that the child see the father four hours once per month until June 2016, then following that six hours once a month until December 2016.

3. From 2017 onwards the time will be each alternate Sunday from 9.00am until 5.00pm, a period of eight hours.  In addition the child will spend supervised time with the father on Father’s Day and at around the Christmas period and the child’s birthday.

4. The law is not that spend time with should be at all costs.  It is important that a child knows and has a relationship with the father, but it must be done in the child’s best interests and it is to be assessed by each case each with their individual fact and circumstance.

5. Dr Q recommends of four to six weeks to allow the mother time to address these issues and to allow the stress and anxiety of the mother to reduce.  This is consistent with the evidence of the Family Consultant, who suggests one visit each two months.

6. The Full Court considered the effect of contact on the primary care giver and I accept the submissions by counsel for the mother that she was devastatingly sad, she felt less of a person, and her guilt towards all of her children was there for all to see.

7. The mother was open to change but then added:-[57]

   If he wasn’t still being dishonest … it may have been a different story …. He will deny it until confronted … it’s all part of the pattern.

   [57] At page 8 of the mother’s Summary of Closing.

8. I am satisfied that the mother’s anxiety and stress are unlikely to be resolved by the approach considered by Dr V, that is, by habituation.  I find that the mother is likely to suffer a major depressive disorder and be unable to fulfil her role as the primary carer of the child and her other children.

9. As an addition to this there is the welfare of the child D who is a significant part of the child’s life.  D has expressed real fears of unsupervised time and overnight time, and I find that it is part of the anxiety which bedevils her at the present time and has done so since at least June of 2014.

10. Sometimes the most direct route is not the best route.  In this case it is to protect the well-being of the mother and the broader family.

11. The next question is how then can this unacceptable risk to the mother and her broader family, of which the child is a member, be reduced.  It is to follow the recommendations of the Family Consultant and Dr Q and reduce the supervised time, allow the mother some breathing space so that she can try and heal the wounds which arose over the years she was with the father.

12. It was submitted on behalf of the father that such a course would destroy the father’s relationship with his daughter.  I do not think that this is the case.  The relationship has endured, and some credit for this must go to the mother.

13. Counsel for the father suggested that there is concern about the psychological harm of the child if the mother maintains a negative view of the father.  I do not accept that submission, but I am concerned that if the mother is not given some relief in terms of the time, that her psychological health will be at unacceptable risk of harm.

14. A series of submissions were made on behalf of the father.  There is no evidence of the father ever putting the child at risk.  The father was intoxicated whilst the child was in his care.  It was submitted that the father was well supported through support groups. I accept that to be the case although this has also been the case prior to the father’s earlier relapses.

15. The father’s submissions are that a robust approach should be taken in relation to the mother’s ill health with a significant test.  This could be disastrous for not just the mother, but for the child and her broader family.  In many ways the father minimises the mother’s brittle psychological and emotional state.

16. In terms of the costs of the supervision, that should be borne entirely by the father.  The father has, through his recklessness in terms of the family’s finances and his abuse of drugs and alcohol, undermined the family’s financial circumstances.  The mother has been left with a significant liability which she is required to repay and bears most of the costs of caring for the child and D.

17. The father is in receipt of a significant income and there is no reason why he cannot meet the costs of the supervision service.

18. Given these findings I make the orders set out at the commencement of the reasons.

I certify that the preceding five hundred and twenty eight (528) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on     18 December 2015.

Associate:     

Date:  18 December 2015