BUSH & BUSH

[2015] FCCA 1822

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUSH & BUSH [2015] FCCA 1822

Catchwords:
FAMILY LAW – Parenting orders – interim – unacceptable risk of harm from prescription drug abuse – risk management and assessment exercise – nature of the exercise and application to the facts.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 65DAA

Applicant: MR BUSH

Respondent: MS BUSH

File Number: WOC 534 of 2014

Judgment of: Judge Altobelli

Hearing date: 16 June 2015

Date of Last Submission: 16 June 2015

Delivered at: Wollongong

Delivered on: 25 June 2015

REPRESENTATION

Solicitors for the Applicant: Hennikers Lawyers

Solicitors for the Respondent: Rossi Simicic Lawyers

Solicitors for the Independent Children's Lawyer: Verekers Lawyers

ORDERS PENDING FURTHER ORDER

1. That the Father’s Application in a Case filed 15 May 2015 is dismissed.

2. That the Father is to spend time with the Children in accordance with the Orders made 27 January 2015.

3. That the parties are at liberty to file terms in the Registry for the purposes of orders being made in Chambers regarding the appointment of an expert.

4. That the matter be stood over to 1 September 2015 at 9:30am for Mention.

5. That liberty is granted to the parties to re-list the matter on 7 days notice by joint application to the Court in Chambers in appropriate circumstances.

6. That leave be granted to the solicitor for the Mother to issue such additional subpoena as they consider relevant to the issues before the Court.

IT IS NOTED that publication of this judgment under the pseudonym Bush & Bush is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 534 of 2014

MR BUSH

Applicant

And

MS BUSH

Respondent

ORAL REASONS FOR JUDGMENT

Introduction

1. This case is about X, who is 4 ½ and W who is 5 ½ and what time they should spend with their father and under what conditions.  The specific issue for the Court to decide on an interim basis is whether, firstly, the Father has been abusing prescription medication and secondly, if he has, whether this creates an unacceptable risk of harm to the children such that any orders for time should provide for supervision.

2. At the outset it should be noted that this is, in essence an exercise in risk assessment and management.  As is so common, it is taking place in a context where the evidence such as there is is untested, conflicting and significantly, there is no expert evidence.  Any risk assessment exercise seems to involve a number of factors and variables.  One factor is likelihood, that is, how likely is a risk to occur having regard to the available evidence.  The second factor or variable is that of the consequence to the children having regard to the risk.

Background

1. The Father in this case is 48.  The Mother is 43. The Father is a (occupation omitted) living in (omitted). The Mother is a (occupation omitted) living in (omitted). They co-habited between 1996 and 2014. They have an older child who is Y and she is 18 and there are a number of previous orders that have been made in this case. 

2. Significantly, on 21 August 2014 the parents entered into consent orders that provided for equal shared parental responsibility for the children to live with their mother but to spend time with their father, in general terms, each alternate weekend from Friday to Monday together with special days and school holidays.  On 3 November 2014 the Court made an order in relation to school holidays over December/January and that order provided, in effect, for three one week blocks.  In addition, the Independent Children's Lawyer was empowered to make requests for random urinalysis.

3. On 27 January 2015 the Court ordered a Family Report and by consent, made orders discharging the previous orders and making fresh orders for the children to live with their mother, spend time with their father supervised by (omitted), or a supervised contact centre at the Father's cost.  By way of background, this last order was the result of the Father failing to take drug tests.  It was made clear to him by the Court that if he could provide clean tests the Court would reconsider the issue of unsupervised time.  It is that issue that brings the matter back before the Court.

4. The focus has shifted, however, away from cannabis use towards the Father's use or abuse of prescription medication, namely, Tramadol and Panadeine.

The Competing Proposals

1. The competing proposals before the Court were as follows.  Firstly, the Case Outline document filed on behalf of the Father sets out a minute of the orders that he seeks.  In effect, he wants to reinstate the consent orders made on 21 August.  In addition, he seeks additional time each Wednesday from after school to Thursday morning.

2. The proposal advanced on behalf of the Mother is set out in the Case Outline that is filed on her behalf and in her Response to an Application in a Case.  She seeks, in effect, that the Father's Application in a Case be dismissed such that the existing orders be maintained. 

3. The Independent Children's Lawyer's proposal is set out in the very comprehensive Case Outline document that was provided by Mr Williamson as Independent Children’s Lawyer.  In effect, the Independent Children's Lawyer sought a continuation of the orders made on 21 August 2014, but in the alternative, if the Court took the view that there was an unacceptable risk, he sought an order that there should be daytime contact only from 9:00am to 5:00pm each alternate Saturday and Sunday with changeover supervised by an organisation, such as CatholicCare or (omitted).

The Evidence

1. The evidence before the Court was quite extensive.  Indeed, the delay between hearing this matter on 16 June and delivering reasons today is attributable to the necessity to go through the extensive material relied on by the parties.  Of course, there are the affidavits that are referred to in each of the case outline documents that have been provided.  In addition, the Independent Children's Lawyer and the Mother relied on tender bundles consisting of various documents that have been produced on subpoena, photocopied with the leave of the Court and tendered as bundles.  There is also a Child Dispute Conference Memorandum of 2 October 2014.

2. A very useful summary of the evidence is contained in the Case Outline document filed by the Independent Children's Lawyer and I can do no better than to simply incorporate into these, my reasons for judgment, the summary of the evidence contained at pages 3 through to 10 of Independent Children's Lawyer's Case Outline document as Schedule 1. The Court records its gratitude to the Independent Children's Lawyer for the efforts made in preparing this very useful document.

Discussion

1. On 16 June the submissions made could be summarised as follows.  Firstly, the Independent Children's Lawyer, Mr Williamson, conceded that he could not be confident with the submissions that had been made in circumstances where there was, at the very least, an uncertainty about whether or not the Father was abusing prescription medications.  His concern appeared to be that, whilst this Court is generally very cautious about parents and other illicit drugs, he could not be sure whether, and if so to what extent, it might be different in a case of abuse of prescription medication.  Indeed, he quite appropriately submitted that the Court cannot be sure whether the Father, in fact, overused the medication and, if he did, what is the effect on his parenting capacity.  Mr Williamson referred me to the evidence and ultimately submitted that if the Court was unsure that it should act conservatively.

2. On behalf of the Mother, Ms Kuemmel referred the Court to both the Mother's evidence and to the independent evidence that is contained in the subpoenaed documents comprised in the tender bundles that sets out what she submitted was his long history of abuse of prescription medication. 

3. Mr Henniker, on behalf of the Father, when not trying to give evidence from the Bar Table, sought to explain the Father's history of pain management using medication following a motor vehicle accident.  He submitted that, in effect, the evidence before the Court did not give rise to any concerns and that in the circumstances the orders should simply revert to the way they were. 

4. There are a number of uncontested facts.  For example, it is clear that the Mother was the primary carer of the children since the date of separation. 

5. It is clear that the Father's supervised time with the children since January this year has progressed satisfactorily from the children's perspective.  Indeed, the reports which are in evidence are positive. 

6. It is clear that each of the Father's drug screens have tested positive for opiates, namely, Morphine and Codeine, and one of the tests of 21 January was positive for cannabis. 

7. It is clear that at the very least the Father consumes Tramal SR, which the Court understands to be slow release tablets, 200 milligrams twice per day.  The Father says that this is all he takes, but the Mother raises issue about this. 

8. It is another uncontested fact that the Father also takes Panadeine purchased over the counter in conjunction with the Tramal for pain relief.  He does not, in his evidence, say how much he takes daily.

9. It is an uncontested fact that the Family Report has been ordered and is due on 1 September, thus pointing possibly to the time-limited nature of any order that this Court will make. 

10. It is also uncontested that on 27 January both parties were ordered to undertake the intake assessment for Catholic Care.  It is uncontested that the Mother has done so but, for reasons which are not clear to the Court, the Father has not done so.

11. I turn to the question of whether the Father has been abusing prescription medication.  The Father submits that he has not, that the evidence supports this but, however, he concedes that he has had pain management issues over a long time.  The Father's evidence about this needs to be looked at very carefully.  On his behalf reliance is placed on the various tender bundles of records produced by Medicare, the (omitted) Medical Practice, and his doctors.  On his behalf it is asserted that these records do not establish any reason for concern, let alone that he is abusing prescription medications. This evidence will be discussed shortly.

12. The Father's Affidavits provide the following evidence on the particular issue. For example, his Affidavit of 27 January at paragraphs 40 to 43 and his Affidavit of 20 April at paragraphs 1 and 16.  The Father's affidavit evidence needs to be seen in the context of the Mother raising concerns about the Father's drug use consistently in her Affidavit since 31 October 2014.  The Court is left in no doubt that the Father knew, or should clearly have known, precisely what the Mother's allegations against him were and of his obligation to put evidence before the Court to refute these allegations.  He was on notice from 31 October 2014 that the Mother alleged that he smoked marijuana, used methamphetamines and took excessive prescription medication as well as doctor shopped. 

13. The Father's evidence in response to these allegations in his Affidavit is minimalist and superficial in terms of explanation.  If part of the advocacy exercise undertaken by the Father in the presentation of his evidence was aimed to reassure the Court about the concerns raised by the Mother, it failed.  In his Affidavit of 27 January 2015, for example, he agreed that a urine test was positive for opiates and that the test records that it was due to prescription medications and also tested positive for cannabis.

14. He explains in his Affidavit that he manages chronic pain in both lower legs using Tramadol and Panadeine.  He says that he is prescribed Tramal SR 200 milligrams twice daily.  He also takes over-the-counter Panadeine to assist.  He conceded that he had been a recreational cannabis smoker for 20 years on-and-off, but he contends that he never smoked whilst caring for the children. 

15. In his Affidavit of 20 April 2013 he deposes to not having smoked cannabis since 23 December 2014 and that he is committed to remaining drug free.  He does not deal with the allegation about doctor shopping or methamphetamine use or that his prescription medication use was excessive.

16. The focus then turns to the objective evidence in the tender bundles.  How do these documents inform this risk assessment and management process?  The Independent Children's Lawyer summarises accurately, the Court believes, the PBS patient summary that was provided by Medicare at paragraph 15 of the Independent Children's Lawyer’s Case Outline, and I will simply incorporate this into my reasons.  The Independent Children's Lawyer also refers to the Medicare reports at page 13 and, again, I will incorporate this into these reasons.

    PBS Patient Summary

    Indication that from 31 May 2010 to 18 April 2015 the father purchases Tramadol by prescription on an approximately 4-5 week basis. Tramadol is for pain relief.

    On 21/12/2010 the father purchased 24 Dicloxacillin, 60 Tramadol Hydrochloride and 60 further Tramadol Hydrochloride on prescription by the same doctor all on the same day.

    On 26/09/2012 he purchased on prescription 240 tablets of Codeine Phosphate with Paracetamol and on 21/12/2012 on prescription he purchased 4 lots of 240 tablets of Paracetamol and Codeine.

    On 26/01/2013 and 6/02/2013 he purchased respectively 2 lots of 30 and 100 tablets of Pramipexole.

    On 6/02/2013 the father purchased 60 Tramadol and 100 Pramipexole on prescription at the same pharmacy.

    On other occasions he has also purchased Amoxycillin 20 tablets on 9/10/2014, 16/10/2014 and 16/10/2014 all on prescription but on 16 October 2014 2 prescriptions were filled from the same doctor but at different (omitted) Pharmacies.

    Medicare Report 29/04/2015

    Appears to relate to doctors consulted by the father which appears to total approximately 15 separate doctors some of whom are at the same surgery but at approximately 10 different locations. There is no time frame for when these attendances occurred but that appears to be set out in the next report.

    Medicare Report 29/04/2015

    Includes Medicare patient history report

    The records indicated attendances of between 170 and 180 occasions on doctors between 21/05/2010 and 18/04/2015 being on average approximately 35 occasions per annum.

17. Of further relevance are documents produced by the (omitted) Medical Practice, and it should be noted in this regard this is the Father's own doctors, and I will refer to a number of entries from these documents.  On 3 March 2015 there is an entry.  The entry reads, and it should be noted these are records produced in relation to the Father, the following:

    Going on a cruise.  Came with partner.  Partner keeping her Tramal so need extra Tramal until he returns. 

18. The Mother submits that this leads to the inference that the Father has access, not just to his Tramadol but his partner's as well, and is consistent with her submission about abuse of prescription medication.  On 20 February 2015 the record indicates:

    Shift worker. off pot, affected his sleep.

    On 12 February 2015 the record indicates:

    Told urine test cabinoids, amphetamines negative.  Only opiates positive, Tramal, Di-Gesic.

    On 10 February 2015, under the heading Cannabis Use, the record indicates:

    Says he has been cannabis free since 10 January.  Note is on Di-Gesic and tramadol.  Will test positive for opiates.

19. The Mother submits that this particular entry is highly problematic for the Father for two reasons.  Firstly, it is directly inconsistent with paragraph 1 of the Father's Affidavit of 20 April where he says he has not smoked since 23 December.  Secondly, that on being told by the doctor that cannabis use can show up in a drug test for up to 28 days, the delay between a request for drug testing and the provision of the sample is explained. 

20. The second point is probably too big an inference to draw in the present context, however, the first point is of real concern to the Court.  The Father not only deposed on 20 April 2015 that he had not smoked cannabis since 23 December 2014, but also that he was committed to remaining drug free.  He told his doctor, however, that he was cannabis free since 10 January 2015.  In a case where trust is so important, this is a significant inconsistency in the evidence.

21. There is potentially a third issue that arises from the file note of 10 February and, in fact, this is consistent with 12 February - that the doctor refers to Di-Gesic as well as Tramadol, but the Father nowhere in his evidence refers to the use of Di-Gesic. 

22. In the Mother's case there is reference to a file note of 16 January:

    Drug screen explained.  He uses marijuana on and off.  Also he takes OTC

    which the Court understands to be over-the-counter

    panadeine 6-8 a day.  He has taken Seroquel 25 by 2 tablets about 2/52 ago  

    the Court interprets this to mean two weeks ago, and then the significant entry:

    ...from a friend.

23. In the Mother's case it is submitted that this entry is, again, consistent with a submission that he has been abusing prescription medication and that his usage involves not just his partner but a friend as well.  There are further entries relied on, for example, 26 March 2014, 14 March 2014, 6 February 2013, 26 January 2013, 21 May 2010, 29 April 2010 and 14 November 2009.  Of course, all of the records were tendered in evidence and it should be noted that what has been referred to specifically in these reasons for judgment is by no means a comprehensive analysis of the records in question. 

24. In the written Case Outline filed on behalf of the Father there is this assertion that is contained in the third paragraph under the heading Summary of Arguments, s.60CC(2):

    Mother continues to make allegations that the father misuses tramadol when he has not done so.  The allegation is without any merit and the father and his partner have examined all subpoenaed medical documents and found no negative information.

25. This is a startling statement.  In his oral submissions the solicitor for the Father submitted that there was nothing in the records that were out of the usual.  The summary of the records that have been referred to so far provide a completely different impression.  The Court is left to wonder whether the solicitor for the Father inspected the documents produced on subpoena himself at all, and perhaps may have relied on the inspection of the Father and his partner.

26. In any event, the Court does not accept the Father's submissions.  The objective evidence strongly raises issues of concern about overuse and possible abuse of prescription drugs.  There is clearly adequate basis for a concern that the Father, having regard to his history, has been abusing prescription medication.  The issue that is consequential is whether this means there is an unacceptable risk of harm to the children unless their time with him was supervised. 

27. Whilst the Father does not concede that that is the case, and it should be noted that the failure to concede this is in itself a major concern, he contends, nonetheless, that not only has the Mother been well aware of his use of cannabis and Tramadol, she has consented to orders for the Father to spend time in the past notwithstanding this.  The inference here is that whatever the Mother's concerns were, clearly they were not serious enough to warrant the imposition of restrictions on the Father's time with the children. 

28. The Mother's response to this is twofold.  Firstly, she blames the orders she consented to on poor legal advice.  Secondly, she says it was only when the subpoenas were read by her current lawyers that she had the evidence to prove her case.  There are aspects to the Mother's explanations which are somewhat unconvincing.  Nonetheless, what the Mother knew or did or failed to do is actually quite irrelevant in the present circumstances.  The fact of abuse of prescription medication is now apparent.  The issue is not so much what past risk of harm to the children the Father presented, but rather what is the present risk.  Even if the Mother showed poor judgment in the past, her concerns today are supported by the Independent Children's Lawyer and the independent evidence.  The risk to these children in the future is not mitigated by any past actions.

1. The Independent Children's Lawyer quite properly expressed the concern that there is no objective evidence before the Court about the impact on parenting of a parent who abuses prescription medication, and that is technically correct.  What the evidence does establish is the consistent presence of opiates in the Father's urine.  The urine test confirmed that the opiates are morphine and codeine.  Mr Williamson submitted, again quite properly, that in other cases the Court has expressed concern about the effect of these drugs on parenting capacity because, amongst other things, it potentially affects the parent's physical and emotional availability to meet the needs of children. What he could not say in the absence of expert evidence was that this was necessarily a consequence on the present facts.  The fact is that the Father's current drug use has been sustained for almost the entire period of the relationship and after separation, even when he spent time with the children.  He appears to have held down a responsible job in (occupation omitted) in this period.  In many respects the Father appears high functioning. 

2. Whilst all of these matters may well be true, the present exercise is one of risk assessment where likelihood needs to be considered against consequence. The likelihood of the Father's continued misuse or abuse of Tramadol and Panadeine, and possibly other prescription medication, is in this Court's assessment almost certain, having regard to his pattern of use and lack of acknowledgment that it is even an issue.  Quite clearly at present, the Father sees no need to change because he does not see that he has a problem.

3. Turning to the consequences on the children if the Father's time is not supervised, how are these potential consequences to be assessed?  The submission on behalf of the Mother is compelling in this regard.  These children are far too young to either be able to identify or report any problem or to adequately protect themselves from the potential consequences of the Father's abuse of painkillers.  Moreover, why should the Court proceed on the basis that opiate abuse has any less adverse consequences on parenting capacity than any other narcotic drug, such as cannabis, heroin, amphetamine or methamphetamine in the context of interim orders pending a fuller investigation?

4. When one considers the potential consequences for the children as a result of being cared for by a parent who is almost certainly abusing prescription and non-prescription medication, those potential consequences range from insignificant to minor, moderate, major and even catastrophic.  The risk of some consequence to the children is high.  The risk is not necessarily less just because the Father has previously spent unsupervised time with the children.  The risk is certainly not less just because the Father has had supervised time with these children for a few months.

5. Mr Williamson is quite right in submitting that this Court's concerns about drug abuse and parenting is that it affects the user parent's availability to meet a child's needs, both physically and emotionally.  It only takes one moment of parental unavailability due to drug abuse to bring about tragic consequences for the children. 

6. In her affidavit of 19 January 2015 at paragraph 7, the Mother raises concerns about the Father driving the children around, a matter that is inevitable on the Father's own proposal and this is a simple example of a risk situation to the children.  The Court assesses the risk to the children to be unacceptably high unless the Father's time is supervised.  His failure to acknowledge that there is any risk merely exacerbates the Court's concern. 

The Legislative Pathway

1. It is necessary to discuss the legislative pathway. The previous orders for equal shared parental responsibility by consent were discharged on 27 January 2015. Pursuant to s. 61DA(3), this Court believes it would not be appropriate to apply the statutory presumption of equal shared parental responsibility at this time. Quite apart from the risk and issues that have been discussed above, this is clearly a high conflict case. The issue of parental responsibility may well be a hotly contested issue at a final hearing.

2. Whilst not strictly required, the Court nonetheless finds for the purposes of s.65DAA that neither equal time nor substantial and significant time are in the best interests of the children. This is primarily because of the s.60CC(2)(b) need to protect the children from the risk of harm. Section 60CC(2A) means the Court must prioritise that over s.60CC(2)(a) meaningful relationship. In any event, the (omitted) supervised contact report suggests that a meaningful relationship exists and continues between the Father and the children even though it is supervised.

Conclusion

1. Given the centrality of the risk issues in this case, the s.60CC(3) considerations, whilst not wholly irrelevant, are not determinative of the present application. What should be apparent from these reasons for judgment is that expert evidence is going to be needed for a final hearing. I ask the Independent Children's Lawyer to take this on board. The Family Report will still be relevant for other purposes.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:     13 August 2015

Schedule One

Summary of the evidence by the Independent Children’s Lawyer

1. THE FATHER’S EVIDENCE

Father’s Affidavit sworn 3 June 2014

1. The father is 47 years of age having been born (omitted) 1967 and the Respondent mother is 43 years of age having been born (omitted) 1971. The father has four children including W and X the children the subject of these proceedings as well as Y aged 18 and Z aged 14. The parties met in 1995 and lived together from 1996. The mother has 5 older children from previous relationships as well as W and X and the child Y born (omitted) 1996 (Pars 1-5);
2. The father worked as a full time (occupation omitted) and the mother also worked part and full time as a (occupation omitted). The parents have been foster carers for several children including the mother’s grandson A who is now approximately 2½ years of age. When working the parties had a regular baby sitter Ms R (Par 6-7);
3. The parties have had a boarder Mr S for the last 18 years. Mr S is now approximately 37 years of age. He has an intellectual disability and is in receipt of a disability support pension and he resided in the garage which had been fitted out (Par 8);
4. On 11 February 2014 the mother moved with the children and Mr S to (omitted), Queensland to be closer to her extended family and the father was to relocate later on. The parties however separated on 1 March 2014 after the father admitted to having an affair (Pars 9-10). The mother remained in Queensland with the children who spoke to the father regularly before their return to New South Wales 3 weeks later on 18 March 2014. The mother placed A in to foster care. Mr S is now living with the mother and the children. The father is uncomfortable with that arrangement as Mr S regularly drinks alcohol and needs to be fully supervised around the children (Par 11-12);
5. The father was able to see the children at McDonalds (omitted) on 19 March 2014. The children were excited to see him for about an hour and a half but the mother got angry towards the end of the visit and refused to allow the father to spend time with the children without her being there and she punched him as she left. The mother subsequently said she was too busy to allow the father to spend time with the children who stayed with the babysitter overnight. The mother refused to allow the children to spend time with the father overnight as she thought that he might kidnap them (Par 14-15);
6. The father again met with the children at McDonalds on 27 March 2014 but after half an hour the mother became angry and upset yelling at the children that their father did not care anymore. The mother did not answer the father’s calls for a few days but he was able to speak to the children on 31 March 2014 by phone. The mother stopped answering most of his calls but he continued to text and ask if he could see the children which the mother allowed him to do on 3 April 2014 for half an hour (Par 16-19);
7. The mother telephoned the father and he attended her home as she said she was sick at 8:00am. The mother started yelling at him about money and bills in front of the child X and demanded that he get out. She said she would call the Police and tell them that he had held a knife and used it to force his way into the home. The father decided to wait for the Police. Several Police arrived and spoke separately with each who advised the father to have another person with him when he attended. The mother told the Police that her allegations were untrue (Par 19-20);
8. The father had a visit with the children at McDonalds (omitted) on 6 April 2014 but the mother refused to make any further arrangements for him to see the children or speak to the children. The father telephoned on 12 April 2014 to see the children but the mother refused as she had just arrived home. The father attended the mother’s home in a taxi and saw the mother and her boyfriend driving away in a taxi (Par 22-23);
9. The father attended the mother’s home speaking to Ms A a friend of his daughter Y who said she was babysitting. The father collected the child W and telephoned the mother who eventually agreed the child could spend overnight with him. The father telephoned the mother the following morning about collection of the child and she yelled and swore at the father in front of the child and W started to cry. The mother pulled him up by the forearm and led him outside. The father went out to the car to see X but the mother was still yelling, aggressive and swearing at the father’s partner Ms J. The mother left and sent a text message “You’ll hear from my solicitor.” (Par 24-30);
10. That afternoon the father received a text message from Ms B the mother of the babysitter threatening to kill him and alleging that he had assaulted her daughter. A couple of nights later the father’s car was vandalised in the carport. He reported both incidents to (omitted) Police (Par 31);
11. The mother did not answer the father’s calls about spending time with the children. An email was received from the mother’s solicitor on 15 May 2015 advising that no further contact would be allowed until mediation takes place (Par 32). The father texted the mother about seeing the children over Easter but she refused (Par 34-35). The father drove to the mother’s home in the evening of Easter Sunday at 7:00pm where the babysitter’s car was parked. The babysitter Ms R advised that she had been told by the mother not to open the door. Ms R said that she was ringing Ms Bush’s son Mr L. The father phoned (omitted) Police as he believed that Mr L could get violent having previously reported him to the Police for damaging his car. Mr L attended in about 5 minutes with a friend both being very aggressive, yelling and swearing pulling part of the letterbox out of the ground (Par 36-39). Mr L continued to be aggressive towards the father and his partner Ms J saying he should have slit his throat, pushing Ms J away threatening her as well. He threw a pot plant at the father and continued yelling and swearing until the Police arrived (Par 40-42);
12. The father attended (omitted) Family Dispute Resolution Centre on 22 April 2014 about the possibility of mediation. The father continued to text the mother about seeing the children and was advised on 26 April 2014 that he might see them in a few months. The father kept asking for time with the children and the mother said that she had told the children that he had dumped them and did not care about them anymore and that she would keep reminding them until they don’t want anything to do with him. (Par 43-45);
13. The father contacted the Family Dispute Resolution Centre in (omitted) and also received a letter from Legal Aid about mediation on 22 May 2014. The father had not seen the children for 7 weeks when the mother texted him on 4 June 2014 at 3:30pm about seeing the children at McDonalds that afternoon but he was working until 8:00pm. The mother eventually agreed for the father to spend time with the children at McDonalds that Friday afternoon. She rang on Thursday night so the children could speak with him. The children were very happy to see the father on the Friday. The mother proposed the father spending time for 1 hour one afternoon a week at a park and then overnight once a month. The father did not agree. (Par 49-50);
14. The father saw the children for about an hour and a half and the mother agreed to have the children ring him over the weekend. This did not occur and the father had not been able to speak to the children since 6 June 2014. The father proposes the children live with the mother but spend time with him 2 or 3 nights each week/weekend. He can fit his work roster around any proposed care arrangements for the children. His partner is supportive. The parties currently live 50 minutes apart but the father plans to relocate in 2015 when W starts school.

Father's Affidavit sworn 20 April 2015

a.The father has not smoked cannabis since 23 December 2014 and undertook and returned a negative drug urinalysis test on 10 February 2015 and 19 February 2015 (Pars 1-3);

b.The father undertook a further urinalysis test which was negative on 31 March 2015 and it was his understanding from the Court on 27 January 2015 that the matter could be relisted once he returned negative urinalysis test results and contacted the ICL in that regard on 25 February 2015 (Par 3-6);

c.The father's previous solicitor wrote to the solicitor for the mother on 4 March 2015 requesting a return to unsupervised care but in reply the solicitor for the mother requested a more sustained period of non-drug use and requested a list of doctors by letter dated 11 March 2015. His solicitor wrote to the solicitor for the mother again on 16 March 2015 advising that he could not sustain the cost of supervised care and requesting that his partner Ms J attend but he received no reply (Par 7-10);

d.The father attaches (omitted) reports to his Affidavit and says that the time with the children has generally been very positive though the children have asked why his partner Ms J could not attend and have indicated they are sick of going to the park or on wet weather occasions to the bowling alley (Par 11-13);

e.The father takes fruit and vegetables to contact which is becoming increasingly difficult because of the mother's unwillingness to travel any further than (omitted) with the children. The father is committed to remaining free of using any drugs and seeks a return to the August Orders for unsupervised time as the children have indicated they are unhappy with the lack of contact with the father (Par 14-16).

2. MOTHER’S EVIDENCE

Mother’s Affidavit sworn 31 October 2014

1. The parties were married on (omitted) 2004 and separated in February 2014 after 18 years together. Their daughter Y lives independently and she has her own child B born (omitted) 2013. She often visits the mother with B. The mother has 5 older children all of whom are over the age of 18 years and they have a good relationship with the younger children (Par 1-5);
2. The mother has always been W and X’s primary carer. The parties had a boarder Mr S living in the granny flat at the back of the home. He has an intellectual disability and is on a disability support pension. Mr S continues to live with the mother in a granny flat at the back of the rental property and he does not pose any risk to the children with whom he has a good relationship. (Par 6-7);
3. The mother has also cared for 2 foster children in the past 4 years including her grandson A who due to circumstances she was forced to hand A back (Par 7-8);
4. During the relationship Ms R would care for the children who called her Nanna. She continues to babysit the children but not as often, as the mother is now not working and is available to care for the children (Par 8-9);
5. On 10 February 2014 the mother moved with the children and the boarder Mr S to (omitted) and the father was to join them later. The mother discovered the father was having an affair with a work colleague Ms J. The mother returned to (omitted) on 18 March 2014. The mother was upset about the affair and her relationship with the father was now very hostile (Par 10-14);
6. On 19 March 2014 the children saw the father at (omitted) McDonalds but the parties began arguing and the father became aggressive and she ended the visit. The mother denies punching the father. On 27 March 2014 the parties met at (omitted) McDonalds. Towards the end of the visit the father grabbed her arm and spat at her in front of the children calling her a slut amongst other things. The child X said she did not want her father to hurt her mother again (Par 15-17);
7. In early April 2014 the mother understood that the father would see the children once or twice a week around his work commitments until mediation. Arrangements were made for the children to see the father on 4 April 2014. The mother was not well so she arranged for the father to attend the home. The visit ended in an argument and the Police were called and the father asked to leave the property (Par 18-22);
8. On 6 April 2014 the mother arranged for a further visit to take place at (omitted) McDonalds. On 12 April 2014 the mother made plans to go out for dinner and arranged for the local babysitter Ms A to care for the children. The mother believed the father had been watching the house and he subsequently entered the house in her absence and removed W from the house leaving X crying. The Police were called (Par 23-24);
9. On 13 April 2014 the mother collected W from the father’s house. The mother was angry and said words to the father’s partner Ms J, got in her car and drove off (Par 25);
10. On 20 April 2014 Easter Sunday the father knocked on the mother’s door demanding to see the children. Ms R was babysitting at the time and she rang the Police being too scared to open the door telephoning the mother’s son Mr L who arrived and spoke with Mr Bush. The Police arrived and the mother understands the father was again asked to leave the property. The mother was concerned about the conflict the children were being exposed to and she was being harassed by calls up to 6 times a day with vile text messages. She stopped contact between the father and the children whilst mediation was arranged (Par 26-27).
11. On 4 June 2014 the mother arranged for the father to see the children at (omitted) McDonalds on 6 June 2014 when he spent an hour and a half with the children (Par 28-29);
12. The mother did not attend mediation with the Family Dispute Resolution Centre because mediation had been arranged with Legal Aid. The father nevertheless commenced proceedings but the mother pressed on with mediation through Legal Aid which took place on 17 June 2014. The mother’s solicitor drafted an Interim Order which was forwarded to the father who did not respond until 7 August 2014 when arrangements were made for the children to recommence spending time with their father (Par 30-41);
13. On 8 August 2014 the father began spending overnight alternate weekend time with the children and Interim Consent Orders were made on 21 August 2014 at the Court in line with the agreement reached at mediation (Par 42-43);
14. Throughout the relationship the mother had known the father to smoke marijuana and use methamphetamines and to take excessive prescription medication and to attend several different General Practitioners. On separation the mother contacted A's Caseworker at the Department and was advised that the father would have to undergo a drug test. The mother has been concerned for some time over the father’s erratic behaviour (Par 45-48);

1. The mother had observed the children to become quite unsettled after spending alternate weekend time with the father. W says he sleeps at his father’s place on the lounge (Par 50-52);
2. Since the Interim Orders were made the father has been telephoning to speak with the children on Tuesday and Thursday evenings. The father would become quite frustrated as the children did not actively talk with him though the mother encouraged them to do so. The father often calls the mother an “arsehole”. The mother attempts to facilitate calls with the father even if late though she would like more age appropriate conversations to take place (Par 53-56);
3. The mother became aware in the October long weekend that Ms J was looking after the children not Mr Bush and she is concerned that he has accepted work when the mother collected the children from the father following the long weekend the father was yelling and swearing at her. He shoved her against the car and subsequently drove forward and hit her with his car on the side of her left leg in front of the children (Par 59);
4. The mother resides in a 4 bedroom home where the children have separate bedrooms. The father resides in a 2 bedroom apartment in (omitted). The children currently attend day-care Mondays and Fridays. The mother has formed a friendship with Ms J’s daughters and ex-husband Mr C. She has not re-partnered. She does not see herself re-entering the workforce in the foreseeable future and is therefore available to care for the children. The father continues to work shift work and may not be available to care for the children at night. The mother is concerned that the father will not take the children to school on their scheduled day-care days as he failed to do so during the period 17 October to 25 October 2014 (Par 60-67);
5. The mother agrees that the children share a good relationship with their father but is concerned about the father’s proposal for the children to spend overnight mid-week time given the distance they live apart. The mother sends photographs to the father by mobile phone text message. W will commence kindergarten 2015. The mother proposes that the current interim arrangements continue but would consider more time if the father were living closer (Par 69-75);

Mother’s Affidavit sworn 19 January 2015

a.The mother believes the father’s drug use has escalated since separation and is concerned about the wellbeing of the children travelling long distances in a car with the father and being cared for by him alone. The mother’s previous solicitor raised her concerns about the father’s drug use in Court on 3 November 2014 including her observations that he used many different doctors and obtained prescription medications which he would take inappropriately (Par 4-10);

b.The mother has provided 3 clear urinalysis test results copies of which have been forwarded by her solicitors to the Applicant father who has himself not provided any urinalysis test results. The mother is concerned that he has not undertaken such testing because he continues to abuse illegal drugs and prescription medication (Pars 12-22). During their relationship the mother saw the father regularly to take Tremadole and Duramine (Par 23);

c.The father has continued to abuse the mother since the last Court date and belittles her in the presence of the children causing them to be distressed, anxious and upset (Par 25-26);

d.The mother is concerned at the lack of routine the father has with the children particularly in regard to W’s weight and their bedtime, with the father allowing them to stay up until they fall asleep watching television. The mother  believes the father is destructive of their routine including allowing W to sleep with him in the same bed as his defacto partner so that W does not sleep in his own bed when he returns home (Par 27-30);

e.The mother has implemented 1, 2, 3 Magic as a way to discipline the children but the father believes it is cruel and that Mr C has physically abused the children. The mother denies this and says that the children have developed a good relationship with Mr C who they respect and admire (Par 31-32);

f.The father’s partner Ms J was previously Mr C’s wife and the mother believes that this has  caused resentment (Par 33);

g.The mother is concerned at the dangerous and erratic manner of the father’s driving including an example on 21 November 2014 when his car accelerated from the intersection near the preschool moving the tyres at a high revolution and accelerating harshly causing the tyres to screech. She estimated he drove at 100km/hour in a 50km/hour zone with W and X in the car with him (Par 34);

h.An incident on 25 December 2014 at McDonalds (omitted) for changeover when the father began screaming at the mother in front of the children becoming aggressive and highly agitated. The mother believed he was off his head on drugs. The parties’ eldest child Y was present and became aggressive and grabbed the mother by the throat and hit Mr C. The mother left with him (Par 36-37);

i.On 31 December 2014 the mother received a text message in which the father threatened not to return the children to her. The mother believes the nasty and abusive tone of the texts illustrates how toxic the relationship is between them. The father was again verbally abusive to her at changeover on 2 January 2015 getting right in her face threatening that “Something is going to happen to you.” The father was intimidating and she felt frightened. This was all in front of W (Par 38-41);

j.On 9 January 2015 the mother and Mr C entered and exited by different doors so as not to come into contact with the father. The children say that they are fearful of him saying he might grab or spit at their mother. The two changeovers over the Christmas break the father was erratic in his mood-swings making the mother fear that he was under the influence of drugs. The mother is concerned about the children travelling in a car with him and that he has not undertaken his drug testing to hide the fact that he is abusing drugs.

Affidavit of Mr C sworn 19 January 2015

a.The deponent is 49 years of age and a cook by occupation. He is a friend of the Respondent mother having formed a friendship in March 2014. They do not cohabit but spend a lot of time together (Par 1-3);

b.He became aware that the Applicant father and his former spouse Ms J had been taking drugs while together at work and had witnessed Ms J in a drug induced state where she was incoherent and uncoordinated. After separation Ms J told him that the Applicant father dealt in weed and speed. This was in front of their daughter C and as a result C has no relationship with her mother Ms J. Similarly their older child aged 21 also has no relationship with Ms J. The mother has advised him many times over her concerns about the father’s drug use (Par 4-7);

c.The deponent formed a view that both the father and Ms J at changeover have been under the influence of drugs because of their aggressive and erratic speaking and their actions. The father has been verbally and physically abusive towards the mother (Par 7-9);

d.6 October 2014 the deponent heard the father verbally abusing the mother and grabbing her by the arm and pushing her up against the side of the car. The father deliberately drove the car forward hitting the mother on the leg causing deep bruising (Par 9-11);

e.The deponent was present on Christmas Day 2014 at a changeover at McDonalds where the father screamed at the mother. The deponent and the mother now position themselves for changeover so that the children can immediately leave with the father. The deponent still feels intimidated by the father (Par 12-13);

f.The deponent has received abusive and threatening text messages from the father over the past 12 months examples of which are annexed to his Affidavit. The father has called him a “Meathead” and a “fucking cunt” in front of the children. The mother becomes distraught after having encounters with the father when he is abusive, threatening and aggressive and this also causes upset to the children. He has seen constant messaging from the father to the mother which has caused her to be tense and stressed before any encounter with the father (Par 14-17);

g.The deponent has from time to time collected the children from preschool and they are always happy in his company. He observed the mother to be a loving and caring parent who disciplines the children appropriately. She has established good routines for the children (Par 19-22);

h.The deponent has observed the father to be manipulative and controlling. The children are difficult to settle after visits with the father though they are normally well behaved, but defiant and naughty upon their return. The children have now begun swearing after return from their father. W was sent to his room for swearing. W is also waking through the night with bad dreams. The deponent has never seen the mother use any illegal substance. They are both only social drinkers of alcohol.

Affidavit of mother sworn 28 May 2015

a.The mother seeks that the supervised time continue. After inspecting Subpoenaed material the mother asserts that the father continues to have issues with prescription medication and says that the father's use of opiates affects his capacity to care for the children and she holds concerns for their welfare notwithstanding his purported recent negative cannabis results (Par 9-14);

b.The mother has re-partnered with Mr C who works as a (occupation omitted) and cares for the children approximately twice a week for a few hours at a time. The father currently pays $32.50 per month in child support. The mother has been offered a fulltime contract as a (occupation omitted) in (omitted) and would like to relocate to (omitted) on a final basis for enhanced employment opportunities and to better provide for the children