Bergman and Nixon (No.2)

[2019] FCCA 1778

FEDERAL CIRCUIT COURT OF AUSTRALIA

BERGMAN & NIXON (No.2) [2019] FCCA 1778

Catchwords:
FAMILY LAW – Parenting – undefended final hearing.

Legislation:

Federal Circuit Court Rules 2001 (Cth) r.16.05

Applicant: MS BERGMAN

Respondent: MR NIXON

File Number: MLC 13732 of 2018

Judgment of: Judge Harland

Hearing date: 16 May 2019

Date of Last Submission: 16 May 2019

Delivered at: Melbourne

Delivered on: 16 May 2019

REPRESENTATION

Counsel for the Applicant: Ms Gassanova

Solicitors for the Applicant: Cathleen Corridon & Associates

The Respondent: Appearing in person

Solicitors for the Independent Children’s Lawyer Ebejer Lawyers

ORDERS

1. The father have sole parental responsibility for the children [X] born … 2010 and [Y] born … 2014 (“the children”).

2. The children live with the father.

3. The mother’s time with the children be reserved.

4. The mother be at liberty to file an Initiating Application when she is in a position to:

   (a)Provide a hair follicle test result that indicates a negative result and that test show results for the three months preceding the application; and

   (b)The mother forthwith engage in drug and alcohol counselling and provide a report from the counsellor at the time of filing her application.

5. The father be at liberty to apply for passports for the children without the need for the mother’s consent.

6. The lawyer for the Applicant be granted leave to withdraw from proceedings.

7. The Independent Children’s Lawyer be discharged.

IT IS NOTED that publication of this judgment under the pseudonym Bergman & Nixon (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 13732 of 2018

MS BERGMAN

Applicant

And

MR NIXON

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This a parenting application that the mother commenced on an urgent basis on 28 November 2018. I refer to the reasons I gave on 4 December 2018 which outlines what she said in her affidavit, which I will not repeat here, and the concerns that I had with respect to the mother. It seemed that she had quite deliberately timed the Court application so that she instead of attending Court she actually attended and attempted to collect the children herself.

3. She did collect [X], and the school was concerned as she appeared jittery and appeared to be under the influence. It was necessary to issue a recovery order. The father has filed material where he outlines concerns about the mother’s behaviour, and what is clear is that there has been intervention orders between the parties historically. The mother has subsequently been in a violent relationship which has now ended. The arrangements for the children in the mother’s care has been quite unstable and Child Protection has been involved with the family.

4. The father says that the mother has moved on multiple occasions, so has not been able to provide stable accommodation for the children, but more concerning is her drug use an inability to get [X] to school with consistency and regularity. The father annexes to his affidavit the absentee records for [X] from her school and also the individual learning plan that the school had in place for her, as she was behind in some areas and needed the assistance of an aide because of the lateness and absenteeism which has had a negative impact on her education.

5. The father also annexes a letter from his psychologist showing that he has been engaging in therapeutic counselling to assist him. The father tells the Court this morning that previously [X] has had a 100 per cent attendance record this year and has made gains in her schooling such that she is now caught up and does not need the assistance of an aide. The father also tells the Court that [Y] is doing well at kindergarten, initially being somewhat reluctant but now enjoying his time there.

6. The children have a stable environment in the father’s home and the father has the support and assistance of his partner. The last time the mother had contact with the children was in December, when the children were removed from her. I appointed an Independent Children’s Lawyer and the matter came before me on 6 February 2019. The mother did not attend Court.

7. On 6 February 2019 I made orders for the mother to undergo a hair follicle drug test and to provide the Independent Children’s Lawyer with the names and details of her medical treaters. I also noted that the matter may proceed on an undefended basis if she did not attend Court. The mother is not in Court today. The mother did engage a solicitor who appeared this morning, who filed a notice of address for service on Tuesday. Her solicitor advised that she had last spoken to her client on Tuesday and could not explain why her client was not here, and had made several attempts to contact her but was unable to get instructions. In those circumstances I granted her leave to withdraw from proceedings and excused her from further attendance.

8. It is consistent with the mother’s lack of consistent engagement and commitment in this matter. The father also told the Court this morning that he called the mother on Mother’s Day so that she could speak to the children, and initially she asked him to call later. She did speak to the children, but the difficulty is that as with previous contact, she makes promises to the children and then disappoints. That this has been particularly difficult for [X], which is not surprising given her age. It is incredibly difficult for children to understand why a parent drops in and out of their lives. They then make promises and do not follow through with them, and the children feel rejected. Their response, often, is to reject that parent.

9. The information supplied by the Department of Health and Human Services (“the Department) also confirms the concerns about the mother’s capacity to parent the children. The Department’s letter, dated 3 May 2019, confirms that they have had four prior reports with respect to the children, with respect to the mother’s drug use, family violence between the mother and her then partner, Mr M., and alleged verbal abuse by the mother towards the children. In 2018, it progressed to an investigation after the mother presented to the Emergency Department with a suspected overdose.

10. She was referred to the Community Mental Health Service for assessment and treatment. The Department tried to work with the mother on a voluntary basis, but she refused to engage and the Department then commenced proceedings seeking an emergency protection application. They refer to a series of drug screens, several of which were positive, and also refer to making further attempts to contact her earlier this year in February and in April without success.

11. The Department also noted that the mother apparently had telephone contact with the children three or four times, but [X] was reluctant to engage, and that [Y] was also often limited given his age. The Department made several recommendations that include the children remaining in the father’s primary care and for the mother to undertake various actions to address her drug use. 

12. The Independent Children’s Lawyer proposes that final orders be made today and has handed up a minute of order which the father consents to. The father, in his response, had initially sought equal shared parental responsibility, but he prepared that without legal representation. What is clear from the material is that to make that order would be unworkable. He otherwise seeks that the children live with him and that the mother’s time be reserved.

13. The orders also outline what the mother will need to do if she seeks to bring further proceedings, which includes hair follicle tests showing negative result for three months. She would also need to address what steps she has taken to address her drug use. The order also seeks that the father be able to apply for passports for the children without the mother’s consent.

14. I am satisfied that the orders that are proposed are in the children’s best interests. It is apparent from the material that the children are settled in the father’s care and that they now have a consistent and stable environment where [X] is now progressing well at school, whereas previously she was not. It is to the benefit of children to have a meaningful relationship with both their parents, provided it is safe to do so. Certainly, in this case, on the material, and looking at the mother’s conduct, it would not be safe for her to have unsupervised time with the children.

15. One of the real difficulties, too, is the inconsistency in whether or not she is going to follow through to spending time with children. It is too hard for children of this age – and even any age – to expect to be able to deal emotionally with a parent coming in and out of their lives. The disappointment is real and difficult, but also a feeling of rejection. Whilst it is also hard not to have any time for communication with a parent, it is probably better than a parent coming in and out and disappointing them as their mother has, particularly in circumstances where she has a serious drug addiction and has other charges and is not able to provide a safe and stable environment for them.

16. If the mother is able to address those issues, then it is open to her to bring an application to the Court, but there is no benefit in having the proceedings remain on foot in these circumstances. She would also be entitled pursuant to rule 16.05 to seek to have these orders set aside as they were made in her absence, but she would need to satisfy the Court as to why it would be in the children’s best interests to continue these proceedings.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Harland.

Date: 26 June 2019