Blakely and Dahlman and Ors
[2018] FCCA 574
•12 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLAKELY & DAHLMAN & ORS | [2018] FCCA 574 |
| Catchwords: FAMILY LAW – PARENTING – Where the father has spent time with his daughter aged 11 for much of her life but is sadly now in the grip of an addiction to methamphetamine (ice) and has psychotic episodes during which he hears voices, argues with imaginary people and becomes very aggressive – where the child has also spent time with her paternal grandparents all her life – where the mother and the paternal grandparents have always had a good relationship – where the paternal grandparents are reluctant to abandon their son but can be trusted to comply with an order that the child not be brought into contact with the father – order made for the child to spend no time with and have no communication with her father unless the mother agrees in writing but to spend alternate weekends and time during the school holidays with the paternal grandparents. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA |
| Mitchell & Northcott (No.3) [2017] FamCA 461 |
| Applicant: | MS BLAKELY |
| First Respondent: | MR DAHLMAN |
| Second Respondents: | MR A DAHLMAN & MS B DAHLMAN |
| File Number: | NCC 3392 of 2014 |
| Judgment of: | Judge Terry |
| Hearing dates: | 5 & 6 February 2018 |
| Date of Last Submission: | 6 February 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 12 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Court |
| Solicitors for the Applicant: | Ashby Family Solicitors |
| Solicitor Advocate for the First Respondent: | Mr Kogias |
| Solicitors for the First Respondent: | Chris Kogias Solicitors |
| The Second Respondents: | In Person |
| Counsel for the Independent Children’s Lawyer: | Ms Carty |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid NSW Gosford |
ORDERS
All previous parenting orders are hereby discharged.
The mother shall have sole parental responsibility for the child [X] born … 2007 (“the child”).
The child shall live with the mother.
Subject to order 11 the child shall spend no time with and have no communication with the father.
The child shall spend time with the paternal grandparents as agreed between the mother and paternal grandparents, and failing agreement as follows:
(a)Each alternate weekend from after school Thursday (or 3pm Thursday on non-school days) until the commencement of school Monday (or 9am Monday on a non-school day).
(b)Such other times as agreed between the mother and the paternal grandparents.
Changeover is to occur at the child’s school on school days and on non-school days by the mother dropping the child to the paternal grandparents’ house at the commencement of the child’s time with the paternal grandparents and collecting the child from the paternal grandparents’ house at the conclusion of such time.
Each party shall be and is hereby restrained from making critical or derogatory remarks in relation to any other party in the presence or hearing of the child and each party shall do all things necessary to ensure that no third party makes critical comments about any other party in the presence or hearing of the child.
The mother shall keep the paternal grandparents informed of any medical illnesses suffered by the child that require the paternal grandparents to provide the child with medication or other treatment during the time the child is spending with them.
The mother shall promptly inform the paternal grandparents if the child is involved in an accident or medical emergency requiring attendance at hospital or is diagnosed as suffering from a serious illness.
The mother and paternal grandparents shall advise each other and keep each other informed of their current addresses and contact telephone numbers (including both landline and mobile phone number if applicable) and advise each other of any changes to these details within seven days of such change occurring.
The paternal grandparents shall be and are hereby restrained by injunction from permitting the child to come into contact with or be or remain in the presence of the respondent father or have communication of any kind with the respondent father at any time that the child is in their care, unless with the express written consent of the mother.
The father shall be and is hereby restrained by injunction from:
(a)approaching or remaining within 100 metres of any school that the child attends;
(b)approaching or remaining within 100 metres of the home in which the child and the mother reside; and
(c)approaching or remaining within 100 metres of the home of the paternal grandparents whenever the child is spending time with the paternal grandparents.
IT IS NOTED that publication of this judgment under the pseudonym Blakely & Dahlman & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3392 of 2014
| MS BLAKELY |
Applicant
And
| MR DAHLMAN |
First Respondent
| MR A DAHLMAN & MS B DAHLMAN |
Second Respondents
REASONS FOR JUDGMENT
Introduction
These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter involves a dispute about parenting arrangements for [X] who is 11.
[X]’s parents separated before she was born but she spent time regularly with her father from her birth until she was seven years old.
Until about the time of [X]’s seventh birthday the father was living with the paternal grandparents and [X] spent time with him based at their home. In March 2014 he moved into a place of his own and [X] began spending time with him at his place, and this was quickly followed by [X] making disturbing disclosures about his behaviour.
In late 2014 after she was prompted by [X]’s school counsellor to do so the mother stopped sending [X] to spend time with the father. [X] had made disclosures to the counsellor about the father’s behaviour and had told the counsellor that she was afraid of the father.
In late 2014 the mother filed an application seeking parenting orders, the first time that had happened in the course of [X]’s life. Prior to that the parents had been able to reach agreement outside the court system.
The mother’s proposal about the time [X] should spend with the father has changed over the course of the proceedings. She has gone from proposing that the [X] spend time with the father supervised by the paternal grandparents to proposing no time when the trial commenced.
The mother seeks an order for sole parental responsibility.
The paternal grandparents sought to be joined after the mother amended her application to seek an order that [X] spend no time with the father. They have a very good relationship with the mother but said that they wanted to obtain an order for fixed time with [X] rather than rely on the order proposed by the mother that time be as agreed between them and the mother.
The grandparents’ proposal at the commencement of the trial was that the father be permitted to spend time with [X] supervised by them.
The father’s proposal has always been for equal shared parental responsibility and for [X] to spend time with him each Thursday to Monday during school terms and for half of the school holidays.
Once evidence that the father had a drug problem emerged he proposed that the time be supervised by his parents until he provided a series of test results which confirmed that he was not using drugs. The most recent incarnation of the orders he sought was that he proposed that unsupervised time commence on 5 June 2019 provided that he had produced clean drug test results until then. He proposed that if he did not produce those results then he continue to spend time with [X] supervised.
It was clear by the end of the evidence that it would be open to me to find that the father had an entrenched drug problem, that he was currently using ice and that when he was under the influence of ice he had auditory hallucinations, yelled and screamed at imaginary people and became very aggressive.
The father spent a number of weeks in a mental health unit in 2015 as a result of a drug-induce psychosis, and as recently as September 2017 the paternal grandparents called the police to their home because the father was in his caravan in their yard ranting and raving to imaginary people and threatened to smash the grandfather when he went out to investigate what was happening. Police removed the father and charged him with stalk intimidate and took out an ADVO for the grandparent’s protection.
It was clear throughout the trial that the father was in denial about the extent of his problems. Notwithstanding the incident in September 2017 and notwithstanding that he tested positive for ice in October and November 2017, once in a urinalysis test and once in a hair follicle test, he maintained throughout the trial that [X] had no fear of him and that the mother had coached her to make disclosures and was inventing allegations to stop him seeing his child.
However very unexpectedly during closing submissions the father’s solicitor changed his position and said that all the father was now seeking was to spend one hour per week or fortnight with the child supervised by the paternal grandparents.
That leaves very little for the court to decide. During closing submissions the mother agreed with the minute of order proposed by the Independent Children's Lawyer which in effect supported no time, and the paternal grandparents fell in with that as well with one or two minor amendments which the mother and the Independent Children's Lawyer then agreed with.
When I say the paternal grandparents fell in with the proposal for no time, in my view they did not do that with any enthusiasm, because despite their love for [X] and their very good relationship with the mother they are torn about abandoning their son, but they did agree to it.
As a result the only issues I now need to decide are first, the allocation of parental responsibility, because it is not clear that the father made any concession about that and I have a dispute about whether there should be equal shared parental responsibility or sole parental responsibility to the mother, and second, whether there should be a no time order in respect of the father or an order that time occur supervised for either one hour a week or one hour a fortnight.
However even to decide those things I still have to traverse all the evidence and make findings about the s. 60CC (2) and (3) matters.
The evidence
The mother gave evidence in her case, the father in his and the paternal grandparents in theirs.
A family report was prepared by Mr C, a Regulation 7 family consultant, and all the witnesses were cross-examined.
The father was a very unsatisfactory witness. I am not going to recount here all the problems with his evidence but it was significant that he failed to disclose his conviction for assaulting his girlfriend and the fact that he had been charged with stalk intimidate in respect of the paternal grandfather in September 2017, and his reference to his criminal record at paragraph 31 of his affidavit was a misrepresentation.
The paternal grandparents did not mention the September 2017 incident in their affidavits either but I am not going to make an adverse credit finding against them because their affidavits were drafted by the father’s solicitor.
Background
The mother is 44 and the father 35. They had a brief relationship in 2006. It is not necessary for me to make a finding about exactly how long it was but it was common ground that the mother found out she was pregnant after the parties ceased the relationship. She gave birth to [X] on … 2007.
The mother had an older daughter at that time. The father has no other children.
The mother told the father she was pregnant and he was present at [X]’s birth and by agreement between the parents he spent gradually increasing time with [X] culminating in him spending time with her from Thursday to Monday each alternate week from when she was about two and a half years old.
Until March 2014 the father lived with his parents and the four nights a fortnight that [X] spent with him were spent at the paternal grandparents’ home. The mother and the paternal grandparents established an amicable relationship over the years and it was apparent at trial that this continued.
In March 2014 the father moved out of the paternal grandparents’ home and the mother said that [X] began coming home upset and distressed after spending time with the father.
The mother said she did not think there was anything she could do to stop the visits but she instigated [X] seeing the school counsellor and in October 2014 the counsellor contacted her and told her that [X] was scared of the father and that she needed to get legal advice urgently.
The mother saw a solicitor and as a result she stopped allowing [X] to spend time with the father at his place. However she arranged with the paternal grandparents for [X] to spend the four nights per fortnight at their place and they promised they would not let the father take her away.
On 24 December 2014 the mother filed an application seeking parenting orders naming only the father as the other party. She proposed on an interim basis that [X] spend time with the father supervised by the paternal grandparents or the maternal Aunt Ms D.
The matter came before me on 11 February 2015 and on that day an order was made by consent for [X] to spend time with the father from Thursday to Monday each alternate week provided that she slept at the paternal grandparents’ home.
On 26 March 2015 the parties and [X] saw a family consultant for a child-inclusive child dispute conference. [X] told the family consultant that the father was angry and mean and that she was frightened of him and that he smashed his phone. She said that she only wanted to see him on special occasions.
The matter came before me again in April 2015 and the orders for [X] to spend time with the father provided that the time was based at the paternal grandparents’ home were continued essentially unchanged.
In May 2015 the father had a psychotic episode as a result of methamphetamine use and spent a number of weeks as an inpatient at Town E Mental Health Unit.
It is unclear to me exactly what happened with [X]’s time with the father after he was released from the mental health unit but in September 2015 the interim orders were changed to provide that the father’s time with [X] was to be supervised by the paternal grandparents.
Despite emerging evidence the father had a drug problem he persisted in seeking a return to unsupervised time and as a result a family report was ordered.
The family report was released to the parties on 22 November 2016. The report writer recommended that [X] continue to spend time with the father supervised by the paternal grandparents until he could prove abstinence from illicit substances for 36 months and provided that he was not admitted to a mental health unit in those 36 months.
The parties attended mediation after this and at one point it appeared that the matter might resolve, but in October 2017 the father tested positive for ice in a urinalysis and in November the matter was listed for trial.
An order was made in November for the father to undergo a hair follicle test. He did so and that test was also positive for methamphetamine.
[X]’s best interests
Any orders I make about [X] must be orders determined by treating her best interests as the paramount consideration, and s. 60CC(2) and (3) of the Family Law Act 1975 contain the matters to which I must have regard in order to determine [X]’s best interests.
I am going to start with the additional considerations in s. 60CC (3) and then come back to the primary considerations.
The first of the additional considerations is the views of the child and the weight to be given to those views.
There is quite a bit of evidence scattered through the material about [X]’s views, perhaps more on reflection than was apparent when the family report writer was cross-examined.
The school counsellor’s notes from 2014 suggest that [X] fears the father because of the behaviour to which she had been exposed.
On 26 March 2015 the parties attended a child inclusive child dispute conference and in the memorandum the family consultant prepared she said as follows:
[X] expressed views on parenting arrangements. She said that she wanted to spend time with the father only on special occasions like her birthday, Christmas and Easter “because it’s exactly what [F] has and she has a bad dad and I have a bad dad so we should have the same thing…and [H] will get the same thing because mum doesn’t really like [I] anymore so [H] will have to go through this too”. (NB: the mother reported that she and [I], the father of her youngest child [H], have temporarily separated). [X] said that she felt very sad at the thought of [H] “going through this”; describing it as “terrible”. She said “I can’t live like this anymore”.[1]
[1] Exhibit G
The family report prepared in November 2016 contains evidence about [X]’s views. I will read out a little bit of that because I have the grandparents here and I am not sure to what extent they have seen the report.
The family report writer said as follows in his report:
In regard to staying at her father’s house [[X]] stated that she did not really enjoy seeing her father because his house is dirty, he’s always tired, he’s mumbly, his lounge has smashed glass on it, there’s water over the sink and basin, he doesn’t have a job, he doesn’t have a licence, and he’s been on his red Ps since he was 18.[2]
[2] Family Report paragraph 69
The family report writer went on to comment:
This did appear to be the genuine feelings of the child and, given the childish nature of the concerns, such feelings of discomfort held by the child were thought to be genuine rather than influenced by anyone else.
Later in the report the family report writer referred to the fact that [X] told him she was frightened when the father had arguments. She also went on to say that she enjoyed spending time with her paternal grandparents and the family report writer said this:
She even appears to enjoy and value the time she has with her father when with the paternal grandparents. It seems as though she largely dislikes her time with the father specifically mostly due to boredom, even though she did describe going to the beach and movies with him.
There is clear evidence in the family report about [X]’s level of discomfort with the father and her dislike of spending unsupervised time with him.
The father’s solicitor suggested to the mother in cross-examination that she had coached [X]. There is absolutely nothing to support this contention, and the evidence about the father’s issues, which I will refer to later in the judgment, put beyond doubt that the child’s views of the father are due to her own lived experience.
The Independent Children’s Lawyer did not present any current information about the child’s views at trial and the paternal grandmother described a recent occasion at her home when the father was calm and well and the child enjoyed spending time with him.
However if you have a look at the paternal grandparents’ affidavits it is very unlikely that the child’s views about the father (in other words that she finds him frightening on occasions and is very concerned about his behaviour) have changed since the family report was prepared.
The paternal grandfather described a very disturbing incident which was only referred to parenthetically during the trial. It happened on an outing to Area J in National Park K on Sunday, 16 July 2017 when the paternal grandparents went there with the father and [X].
The paternal grandfather said that the father started to slip into a psychosis episode and was talking to voices in his head. He said:
I state Mr Dahlman was standing 1.5 metres from the cliff edge.
He referred to an annexed photo and then said:
Then Mr Dahlman turned toward the cliff edge and started to talk to voices over the cliff edge….[X] was very upset, blaming herself because she couldn’t make her dad better.[3]
[3] Paternal grandfather’s affidavit paragraph 2(q)
What concerns me about this is that the paternal grandfather said at trial (and I stress I do not want to be unduly critical of him because he is in a dreadful situation) that if his son appeared to be under the influence of drugs or psychotic he would not pick him up to spend time with [X]. However he picked his son up on that occasion, they went for a lovely family walk, and then his son slipped into a psychotic episode and [X] was exposed to the father standing on a cliff edge talking to voices in his head, something no child should have to endure.
The paternal grandfather also referred to an occasion in August 2017 when [X] told him that she was very unsure about being left alone with her father as he had offered her a shandy. I cannot get to the bottom of where the truth lies about what the father gave her but obviously [X] found that incident disturbing.
The grandfather said that when [X] stayed with grandparents on 27 August 2017 the father was still talking to himself but not aggressively. He said that with [X]’s better understanding of her father’s problems she had a happy weekend. He went on to say that [X] loved her dad and had a good understanding of his problems.
There is also something in the paternal grandmother’s affidavit which makes it very unlikely that [X]’s concern about her father and trepidation about him has really changed. She may be happy to be with him when he is in a good place but so often he is not, and the paternal grandmother said this about [X] observing the father talking to himself in August 2017 and listening to people who were not there:
At these times [X] would cry and say “I just want my old dad back. I love my dad, but when he’s like that I don’t know what to do.”
I consider it highly likely that [X] is genuinely afraid of her father. She may intermix that with being concerned about him but I strongly doubt that her views of her father are any different now to what they were when the proceedings were commenced.
I must consider the nature of the child’s relationship with each of her parents and any other person.
[X] has a good relationship with her mother and her siblings. Her older sibling [F] is 18 and she now has a younger sibling [H] who is four.
[X] also has a close relationship with her paternal grandparents and with her paternal aunt Ms D and Ms D’s children.
The family reported writer talked about the strong and enduring bond [X] had with the paternal grandparents and the enriching activities she did with them and commented that:
The relationship the child has with her paternal grandparents is clearly a positive one for the child, and it would appear as though she has a bond and an attachment to her paternal grandparents equal to that with her father, if not stronger.[4]
[4] Family Report paragraph 98
The child’s relationship with the father is a very mixed one. Her interaction with him at the family report interviews was described as relaxed, but she has also expressed fear and anxiety about him on many occasions and her relationship with him could not be described as a close relationship or a relationship to which [X] can look to for comfort or nurturing.
I must have regard to the financial support of the child. The father has not worked for some years and the mother is primarily financially supporting the child but that is an outcome of other problems that the father has.
I must have regard to the extent to which each parent has taken or failed to take the opportunity to spend time with the child but that is not relevant in the matter.
I must consider the likely effect of any change in the child’s circumstances.
Until the end of the trial [X] was seeing her father supervised by the paternal grandparents. If I make the orders sought by the mother she will not see her father in future which will be a radical change for her to what has been the case since she was a baby. However at the end of the trial in the light of the evidence even the father was only proposing that he spend one hour a week or fortnight with [X].
It is always regrettable if children cannot have a relationship with a parent but sometimes safety issues mean that cannot occur because the court has to prioritise the child’s safety over the benefit of the child having a relationship with a parent. On any view (and he really needs to face up to this although I am not convinced that he is able to do that) the father has totally let [X] down over the last four years.
The likely effect of the change proposed by the mother, given the evidence about the father, is that [X] will be kept safe.
[X] may miss her father but her strongest, most enduring and most positive relationships are with her mother, her siblings and her paternal grandparents. All those people will continue to be in her life and the change to her seeing her father either very little or not at all is something that she should weather with the assistance of some counselling.
I must consider the practical difficulty and expense of the child spending time with a parent. That is not relevant in this case.
I must consider (and this is probably the most important consideration in the case) the capacity of each parent and any other person to provide for the needs of the child, including her emotional and intellectual needs.
The mother is a very good parent and [X] is being very well brought up. Insofar as the mother has limited [X] spending time with the father it has been because of the need to prioritise the child’s safety.
The father has no capacity to properly parent the child because of drug use and mental health issues and issues with aggression.
The father is in denial about the extent of his problems. He maintained throughout this trial that he started using methamphetamine shortly before he was admitted to hospital in 2015 and that he did so because the mother had withheld [X] from him.
He maintained that he didn’t use drugs for a long time after his release from hospital and that he used once around the time of the October drug test, again because of the court proceedings. He maintained that this same use was also picked up in the hair follicle test. He maintained that all the allegations in the case were the result of the mother coaching [X] and inventing evidence.
However the evidence as a whole points to the likelihood that the father has been using drugs extensively for at least four years and that he has had issues with aggression and maladaptation to adult life throughout his adult life.
The father’s story about minimal ice use is not credible just on its own.
It is not believable that the father would have used methamphetamine in April or May 2015 because of disappointment about not seeing [X] when his time with her had been restored by a consent order made in February 2015. The only restriction placed on his time by that order was that [X] was to sleep at the paternal grandparents’ home.
The father’s assertion that the drug test results in both October and November 2017 were due to a single use of methamphetamine is not credible. To begin with it does not fit with the notation on the hair follicle test result which said that the test detected levels which were consistent with regular use of methamphetamine during a period of three to four months prior to 9 November 2017.
It also does not fit with the fact that on 26 September 2017 the paternal grandfather saw the father talking to himself and yelling and screaming and spinning around and that when the paternal grandfather went to investigate the father said he would smash him. The paternal grandfather was of the view that the father was behaving that way because he had been using drugs, and that was three weeks before the urine drug test, and ice is detectable in urine at most for only three days.
A large amount of additional evidence points to far more extensive drug use than the father was willing to concede.
There is absolutely no doubt, although the father denied it when he was initially admitted to the hospital in May 2015, that he was using ice prior to his admission and I am not prepared to find that he ceased his drug use for any length of time after he was released from hospital.
It is true that he produced a series of clean urine analysis tests in 2015 and 2016, but urine analysis is not the best test to detect for the use of ice. It is a test which can be evaded because of the short time the drug stays in the body.
According to the paternal grandparents’ evidence the father’s behaviour began declining again, consistent with the resumption of drug use, from early 2017. It was not the case that he suddenly had another episode consistent with drug use on 26 September.
In her affidavit the paternal grandmother said as follows:
Earlier this year I observed Mr Dahlman showing a few signs of mental health problems. [5]
[5] Paternal grandmother’s affidavit 2(a)
She then referred to the paternal grandparents letting the father stay in the caravan in their yard in March 2017.
She said that there was an occasion in July 2017 when the father had a bad day talking to himself and someone who wasn’t there and staring, which was a symptom of his drug use on the earlier occasion. [6] She also said:
[X] would come to either Mr A Dahlman or myself and ask, “What is wrong with Dad?” We would explain he wasn’t well.
[6] Paternal grandmother’s affidavit paragraph 2(l)
The cliff edge incident occurred in August 2017 and involved the father talking to people who weren’t there. It took 30 or 40 minutes to get him back from the cliff edge.
Then there was the incident in September 2017 where he had the episode which resulted in the police being called.
There is very clear evidence from the paternal grandparents that throughout 2017 the father was displaying the same kind of behaviour he had displayed prior to his admission in 2015 which strongly indicates he had returned to drug use, so I have reservations about the extent to which he ever stopped.
I have already given one reason why the father’s story that he only used for a short period prior to his admission in 2015 is not credible but another reason is that at the time of his admission the paternal grandparents told the mental health unit that the father had a 12 month history of erratic behaviour which included talking to himself and driving an imaginary car in the driveway.
The paternal grandmother said she had been told by the father’s girlfriend that he was using ice and that he admitted to her that he had been injecting steroids.
In a letter which the paternal grandfather sent to the hospital dated 31 May 2015 which is in the tender bundle he said that the father’s behaviour over the previous 12 months included violent mood swings which he said had been occurring since Christmas 2014. He said that his son had started to talk to people who weren’t there and had sores on him which he believed were associated with ice use.
It is open to me on the evidence to find that the father was using ice from sometime in 2014, coinciding with when [X] commenced spending unsupervised time with him in his own accommodation and it is also open to me to find that he continues to do so. The paternal grandmother said as follows in the affidavit she affirmed on 9 January 2018:
Recently, in the last two months, Mr Dahlman has appeared to be improving: still talking to himself, but not as loudly, and he is not leaning over appearing to listen to what someone imaginary is saying.
I do not accept that there is the evidence that the father has stopped using drugs. I am satisfied that it is open to me to find he continues to have a drug problem.
The fact that I make that finding together with the evidence the paternal grandparents have given about the father’s behaviour makes entirely credible [X]’s description to both the school counsellor and the family consultant of the way the father behaved in 2014. She described his behaviour as strange and aggressive and talked about him getting angry, banging things and stomping his feet on the floor.
Whether the father’s serious drug use only commenced in 2014 is unclear. The paternal grandparents said that he commenced using cannabis when he was 13 and continued to use drugs when he was in his occupation. The mother alleged the father told her that he had tried every drug under the sun.
The father denied saying that. He was not a witness of credit but nevertheless I cannot make findings about the extent of the father’s drug problem prior to 2014, although it has clearly been severe and concerning since then.
I do not believe a word the father says about his drug use. He has been using ice and I cannot be satisfied he has stopped using drugs. He has had minimal engagement with any drug and alcohol counselling since he left hospital in 2015 and he has no current engagement with drug and alcohol counselling; even the recent positive results have not been enough to cause him to engage in drug and alcohol counselling. He had not done so by the date of the trial.
I have described some things the father has been seen doing such as talking to imaginary people, hearing voices and having violent mood swings, and some of those things can be the result of mental health problems, and it is unclear on the evidence the extent to which the father’s problems are due to drug use and the extent to which they are due to mental health issues and whether he has mental health issues which have contributed to his drug use or whether his mental health issues are the result of his drug use.
The father has had concerning problems with his mental health for a considerable time. His parents said that he had been unstable on occasions during his life and had threatened to kill himself several times. The father denied this but I do not accept his denials; he was not a reliable witness.
Another problem intertwined with the drug use and the mental health issue (and it is convenient to deal with it here because it could be an independent problem or it could be the result of drug use and/or mental health issues) is the father’s aggression.
The paternal grandparents have made several reports to the police over the years as a result of the father’s aggression in their home.
The father was removed from their home on one occasion some years ago after he threatened the paternal grandmother when she would not give him money. He was dealt with by some sort of caution on that occasion.
In the letter the paternal grandfather wrote to the hospital on 31 May 2015 he referred to the father’s violence and he told the court at trial that every word in the document was true.
Under the heading “Violence” he said as follows:
Mr Dahlman is very intimidating. He swears and screams with spittle coming out of his mouth if he doesn’t get what he wants. He punches holes in walls. (I became quite good at repairing Gyprock.) Before his bike accident, he was taken to Town E Court because of his verbal standover abuse of his mother. No AVO put in place: just told to settle down. Mr Dahlman has no respect for anyone in authority. It is never his fault: always someone else’s. If a police officer gives him a fine, they are just “dogs” and “scumbag”.
In 2016 the father was charged with assaulting his girlfriend. He was convicted and placed on a bond and over the next two months was a charged with contravening the ADVO on two separate occasions and fined and placed on another bond.
There is reference in the police notes to these offences being connected with ice use. I cannot make any findings about where the truth lies about that but it is one of the things which inclines me to not accept that there was a period when the father ceased using ice after his release from hospital in 2015.
In September 2017 there was the incident at the paternal grandparents’ home where the father threatened to smash the paternal grandfather and he was charged with two counts of stalk/intimidate.
The father has pleaded not guilty to those charges and they are still to be dealt with by the court but the paternal grandfather was adamant that the event had occurred as he described it to the police, and I accept his evidence.
Then there is the mother’s evidence about what happened at court on 17 October 2017 when the positive test for ice was revealed. She said as follows:
When we left the court room after the matter had been listed for final hearing, Mr Dahlman said to me in what I considered to be a very threatening tone, “Drug testing, private investigator, prostitution,” or words to that effect.
The mother said that she had never been involved with prostitution or drugs and found that comment very threatening and felt intimidated by the father saying that so loudly at court.
The father denied that it occurred. I do not believe him.
In summary there is some very concerning evidence in this case about incidents where the father has been aggressive and some of the incidents are recent.
There is also a wider problem described by the grandparents. In his letter to the hospital dated 31 May 2015 the paternal grandfather described a long history of other problematic behaviour such as the father not getting a driving licence, not paying back loans and telling lies.
The father undoubtedly has a drug problem, he has mental health issues which may or may not be connected with drug use and he has a problem with aggression, and he is unwilling or unable to face up to the reality of the situation.
The father ran a case throughout trial that the mother was blocking him having a relationship with [X] for no good reason and was coaching her to make false accusations against him.
He told the family report writer that prior to his admission in May 2015 there was little to be concerned about with his parenting, which runs completely counter to all the things that [X] has said. The evidence is just overwhelming that the father has had problems for years and he refuses to see it.
The father is not having any counselling and there is no sign of him overcoming his problems, and in light of the issues he has had throughout his adult life I cannot be confident that any change is likely to happen. It is abundantly open to me to find that [X] would be unsafe in the father’s care and that he has no capacity to parent her.
I finally want to deal with the paternal grandparents’ parenting capacity.
In 99.9 % of respects I have no concern about them. However having heard the paternal grandfather in the witness box saying that he was able to judge if the father was under the influence of drugs and was safe to be around the child and then having re-read the description of the cliff edge incident, I question, perhaps not their judgment, but their ability to be appropriately protective given the level of risk the father poses to the child.
Sadly for them they might still be finding it difficult to abandon their son and there is some risk that they make decisions about [X] which are not in [X]’s best interests.
I trust them to comply with a restraint not to bring [X] into contact with father but I mention this issue because I have become increasingly concerned about whether there should be an order which permits the grandparents to facilitate telephone communication between the father and [X]. I will come back to that later on.
I must consider the child’s maturity, sex and background.
That is not relevant as a separate consideration and neither is the next one: attitude to the child and to the responsibilities of parenthood.
Family violence I have discussed, and it is a serious issue.
[X] told the school counsellor that she was frightened of the father yelling and screaming. He has threatened to smash the paternal grandfather and he has assaulted his girlfriend. The father’s propensity to commit acts of family violence is a real concern in this case.
I must consider whether there is any family violence order is in place.
There is one in place to protect the paternal grandparents. It does not prevent contact but it does mean the father cannot live at the paternal grandparents’ home. The paternal grandfather is trying to assist the father to an extent in relation to that charge and the ADVO. I have enormous sympathy for him but it raises a tiny little concern in my mind about priorities.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
The order least likely to lead to further proceedings is an order for no time with the father. An order for any time, and even an order for telephone communication, could result in the matter speedily returning to court.
I must consider any other relevant matter but everything has been covered.
At this point I must go back to the primary considerations in s. 60CC (2) of the Family Law Act 1975 and they are the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence.
Most children, all children if they can have it, benefit from having a meaningful relationship with both of their parents.
Most children know they have two parents, they want to have a good relationship with both of them, and if there are no problems with the parents children benefit from having a meaningful relationship with both of them.
The father’s case during cross-examination was that the mother did not support him having a meaningful relationship with [X]. That proposition is completely and utterly unsustainable on any examination of the evidence.
The mother facilitated [X] spending time with the father from when she was a baby until when she was seven years old. She stopped time only because of the child’s disclosures about the father’s erratic and aggressive behaviour, and given what has happened since those disclosures she abundantly did the right thing.
Even after proceedings were commenced the mother still wasn’t saying “You are not going to see your child.” She agreed to the father continuing to see the child providing she slept at the paternal grandparents’ home. Then the father had the psychotic episode and the change was that the time had to be supervised by the paternal grandparents: still not a no time application. It was only after the two recent positive tests for ice that the mother finally admitted defeat and sought an order that child spend no time and have no communication with the father.
It is abundantly clear that the mother has the capacity to facilitate the child having a relationship with the father if it is safe for the child to do so.
That leads to the second primary consideration which is the need to protect the child from harm from being exposed to abuse, neglect or family violence. S.60CC(2A) of the Family Law Act 1975 says that I have to prioritise that over the benefit to the child of having a meaningful relationship with both of her parents.
I cannot be sure if the father’s primary problems are drug use leading to mental health issues and aggression or mental health issues making him prone to drug use and aggression, or whether it is a combination of that. However it doesn’t matter because on all of the evidence before me, at the moment [X] would be unsafe in the father’s care.
He has been aggressive on numerous occasions over the years: he assaulted his girlfriend in 2016; he threatened to smash the paternal grandfather in September 2017; he is having paranoid delusions. The family report writer said that this made him particularly fearful about what could happen. He said he was fearful for the father’s parents and commented that meth frightened him.
There is ample basis for me to find that [X] would be unsafe in the father’s care at present.
Sometimes safety issues can be dealt with by an order for supervision, but in this particular case I am not satisfied that supervision by the paternal grandparents is sufficient protection for [X]. The incident in September 2017 and historical matters indicate that the paternal grandparents may be personally at risk from aggression by the father. [X] may be exposed to that and she may be physically harmed in a really bad worst-case scenario.
[X] is at risk of being exposed to family violence and even abuse if she spends unsupervised time with the father or if she spends time with him supervised by the paternal grandparents: an unacceptable risk of harm.
It could be argued that the one-hour visit once a fortnight or once a week, which the father proposed at the very end, would limit the risk, but it would not entirely remove it. I go back to the grave concern I felt after I re-read the affidavits in the course of preparing this judgment and realised what had actually happened during the cliff edge incident, because the grandfather had picked the father up and he had a psychotic episode or some sort of psychosis while they were out for a walk, so anything could happen even in a short period of time.
Supervision by the grandparents would not contain the risk, and neither, with that sort of risk, would supervision by an accredited service, but nobody suggested that this be considered.
Parental Responsibility
I must consider the allocation of parental responsibility because it was unclear whether any concession was made about that.
There has been family violence; the father has been violent to his parents. The presumption in s. 61DA of the Family Law Act 1975 does not apply.
I have numerous concerns about the father and about his perception of reality and his drug use and its effect on his behaviour. I could not possibly consider that an order for equal shared parental responsibility was in [X]’s best interests, and I am going to make an order that the mother has sole parental responsibility for [X].
Conclusion
It would be unsafe for [X] to spend unsupervised time with the father. Supervised time would also be unsafe for her, and the paternal grandparents themselves may not be safe from the father if he had a psychotic episode. There is at the very least a risk of the child being exposed to violence in the form of yelling and bizarre behaviour and that has already occurred.
There is a risk that cannot be ameliorated in any way.
Supervised time for one hour a week or a fortnight would not eliminate the risk. In addition it might be more troubling and unsatisfactory for [X] to have that very limited time than it would be for her to have no time, because with proper support and the continued role of the paternal grandparents in her life, in my view she can adjust to an order for no time, and that is the order I am going to make.
It is always regrettable if children cannot have a relationship with a parent, but I cannot do anything to change the father, only he can, and given the plethora of problems referred to in the paternal grandfather’s letter of 31 May 2015 I cannot be confident that change is achievable.
I hope for his parents’ sake that it is but the father appears to have had problems since his early teens. However if a miracle happens and a change occurs then he can bring another application.
I indicated earlier that I was very troubled about the issue of the telephone communication.
I asked the family report writer whether he thought that an order which allowed the paternal grandparents to facilitate [X] having telephone communication with the father might be suitable but the fact that I raise something with a family report writer does not mean that I have formed a view that it is a good thing. When ideas come into my head I seek input from experts about whether they are good ideas.
The family report writer said that it might be suitable. However given the evidence as a whole and the fact that the grandparents are still torn between supporting their son and supporting their granddaughter (not to the extent of ever putting their granddaughter at risk, do not get me wrong, but perhaps placating or trying to make their son feel better, or perhaps doing something they felt might motivate him to make some change) they might prioritise desire to help their son over the child’s needs and facilitate telephone communication when it was really it was not a good idea.
I am not minded to make an order that the paternal grandparents can choose to allow the child to have telephone communication with the father.
The orders
The final orders prepared by the Independent Children’s Lawyer did not include an order that the child spend no time with and have no communication with the father. They simply included a notation that the orders intentionally made no provision for the child to spend time with or communicate with the father and if, when and how she may do so were decisions the mother shall make as an incident of her sole parental responsibility for the child.
I was troubled when I saw that, and the more I reflect on it the more unsuitable I consider it to be.
Counsel for the Independent Children’s Lawyer referred me to Mitchell & Northcott (No.3)[7] in which that form of order was used but it was a very different case to the one before me. It did not involve risk issues. It involved a mother who the trial judge found did not support the child having a relationship with the father. The trial Judge made an order that the child live with the father and he made a notation similar to the one proposed in the case before me.
[7] Mitchell & Northcott (No.3) [2017] FamCA 461
In Mitchell & Northcott (No.3) the mother was leaving Australia to go to New Zealand, so she was not going to physically be around. I would be very troubled about only making an order which said, “The child will live with the mother and she will have sole parental responsibility” and was silent about whether the father should spend time with the child in a case where the father was going to be around and I had safety concerns, because how is any third party to know in the mother’s absence, whether it is alright for the father to take the child? They would have no evidence about what decision the mother had made in the exercise of her parental responsibility.
In a risk of harm case I cannot see that dealing with an issue by way of notation is a suitable way of proceeding.
I am going to make a no time order subject to the mother agreeing otherwise in writing and I am going to order that paternal grandparents are restrained by injunction from permitting the child to come into contact with or be or remain in the presence of the respondent father, or from having communication of any kind with the respondent father at any time that the child is in their care, unless with the express written consent of the mother.
If the grandparents and the mother confer and agree the child should see the father or talk to the father that can occur. There needs to be a little bit of flexibility. I hope this will never happen but a situation could arise where the father was admitted to hospital as a result of a serious accident, and nobody would want to prevent parties dealing appropriately with [X] seeing the father in those circumstances. But whatever happens for [X] has to be with the mother’s input into whether the communication or the time occurs. That does not prevent the grandparents from continuing to have their own separate, extremely important relationship with the child.
I certify that the preceding one hundred and seventy two (172) paragraphs are a true copy of the reasons for judgment of Judge Terry
Associate:
Date: 9 March 2018
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